Immigration Law's Missing Presumption

• Author: Fatma Marouf
• Position: Professor of Law, Texas A&M School of Law
• Pages: 983-1041

Immigration Law’s Missing Presumption

FATMA MAROUF*

The presumption of innocence is a foundational concept in criminal

law but is completely missing from quasi-criminal immigration proceed-

ings. This Article explores the relevance of a presumption of innocence

to removal proceedings, arguing that immigration law has been designed

and interpreted in ways that disrupt formulating any such presumption to

facilitate deportation. The Article examines the meaning of “innocence”

in the immigration context, revealing how historically racialized percep-

tions of guilt eroded the notion of innocence early on and connecting the

missing presumption to persistent associations between people of color

and guilt. By analyzing how a presumption of innocence is impeded at

multiple decision points, from the investigations stage to detention, re-

moval, and even post-conviction relief, the Article demonstrates the cu-

mulative disadvantage that the system inflicts.

Finally, the Article argues that immigration law not only is missing its

own presumption of innocence but also erodes the presumption of inno-

cence in criminal law. The Article offers three examples of this phenom-

enon involving immigration law’s treatment of pending charges, untested

arrest reports, and unproven facts related to a crime. By shedding light

on how immigration law undermines a presumption of innocence and

reinforces racialized perceptions of guilt, this Article reveals a form of

covert racial discrimination in the immigration code.

TABLE OF CONTENTS

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 985

I. LOST INNOCENCE IN IMMIGRATION LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . 993

A. THE MEANING OF “INNOCENCE”............................. 993

B. RACIALIZED PERCEPTIONS OF INNOCENCE AND GUILT. . . . . . . . . . . . 997

* Professor of Law, Texas A&M School of Law. © 2023, Fatma Marouf. I would like to thank Kathy

Brady, Holly Cooper, Kara Hartzler, Kari Hong, Philip Torrey, and Andrew Wachtenheim for

contributing to the ideas that helped shape this piece. I would also like to thank Pooja R. Dadhania,

Maryam Jamshidi, Catherine Kim, and Qudsiya Naqui, who gave valuable feedback on an earlier draft

of this paper at the Second Annual Workshop for Asian American Pacic Islander and Middle Eastern

and North African Women in the Legal Academy, hosted by UC Davis School of Law. Additionally, I

would like to thank Jason Cade, Amy Kimpel, Abel Rodriguez, Anita Sinha, and Tania Valdez, who

provided thoughtful reactions at the Clinical Writers’ Workshop hosted by NYU Law School. I am also

grateful to Gerald Neuman and Christopher Slobogin for their helpful observations. Finally, I would like

to thank Claire Yang and the student editors of The Georgetown Law Journal for their discerning

comments and careful edits on this piece. Any errors are my own.

983

1. Racialized Origins of Reversed Burdens in Chinese

Exclusion Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 997

2. Reinforcing Racialized Perceptions of Guilt . . . . . . . . . . 1001

II. IMPAIRING INNOCENCE IN IMMIGRATION INVESTIGATIONS. . . . . . . . . . . . . . 1003

A. IGNORING FACTUAL INNOCENCE IN INTERPRETING REASONABLE

SUSPICION.............................................. 1004

B. STIFLING LEGAL INNOCENCE BY REJECTING THE EXCLUSIONARY

RULE.................................................. 1007

1. Constitutionally Suspect Warrants, Arrests, and

Interrogations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008

2. No Suppression Remedy . . . . . . . . . . . . . . . . . . . . . . . . 1011

III. IMMIGRATION LAW’S BURDENS: DETENTION, REMOVAL, AND POST-

CONVICTION RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013

A. REVERSED AND SHIFTING BURDENS . . . . . . . . . . . . . . . . . . . . . . . . . . 1014

1. The Reversed Burden in Custody Determinations . . . . . . 1014

2. The Reversed and Shifting Burdens at Trial . . . . . . . . . . 1019

3. The Undefined Burden: “Clearly and Beyond a Doubt”. . 1023

B. THE BURDEN FOR VACATED CONVICTIONS (AND OTHER KINDS OF

POST-CONVICTION RELIEF) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026

IV. ERODING CRIMINAL LAW’S PRESUMPTION OF INNOCENCE . . . . . . . . . . . . . 1029

A. SELF-INCRIMINATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030

B. UNTESTED ARREST REPORTS AND UNPROVEN CHARGES . . . . . . . . . . 1032

C. EXPANSION OF THE “CIRCUMSTANCE-SPECIFIC APPROACH” TO

CONVICTIONS.................................... ....... 1035

V. OBJECTIONS TO RECOGNIZING A PRESUMPTION OF INNOCENCE . . . . . . . . . . 1038

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1041

984 THE GEORGETOWN LAW JOURNAL [Vol. 111:983

INTRODUCTION

The maxim “innocent until proven guilty” appears in Supreme Court cases dat-

ing back to 1895.

1

Although the presumption of innocence does not appear in the

U.S. Constitution, it is embedded in the principle of due process protected by the

Fifth and Fourteenth Amendments.

2

The Supreme Court has described the pre-

sumption as a “principle of justice so rooted in the traditions and conscience of

our people as to be ranked as fundamental.”

3

Although the Court considers a pre-

sumption of innocence necessary for a fair criminal trial,

4

it is completely absent

from quasi-criminal removal proceedings that can lead to deportation.

This Article examines how various components of immigration law collec-

tively disrupt the notion that noncitizens may be innocent. From the investigation

phase to detention and removal proceedings in immigration court, immigration

law is designed to facilitate deportation, not to protect against erroneous deci-

sions, no matter how catastrophic the consequences. This Article also goes one

step further, arguing that immigration law erodes criminal law’s well-established

presumption of innocence.

In a criminal case, a defendant must be presumed innocent until the govern-

ment proves each element of the alleged offense “beyond a reasonable doubt.”

5

Although this entire concept is often described as the presumption of innocence,

it actually includes two distinct components: first, the burden of proof is on the

government, and, second, the standard of proof is “beyond a reasonable doubt.”

6

The presumption of innocence refers to the burden and should not be collapsed

with the standard of proof.

7

This is a critical distinction to understand, especially

when taking a broad view of the presumption that extends to the pretrial period.

8

1. See Coffin v. United States, 156 U.S. 432, 453 (1895) (“The principle that there is a presumption

of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its

enforcement lies at the foundation of the administration of our criminal law.”). For a description of the

historical origins of the presumption of innocence, see generally Kenneth Pennington, Innocent Until

Proven Guilty: The Origins of a Legal Maxim, 63 JURIST 106 (2003).

2. See Estelle v. Williams, 425 U.S. 501, 503 (1976) (“The presumption of innocence, although not

articulated in the Constitution, is a basic component of a fair trial under our system of criminal

justice.”); In re Winship, 397 U.S. 358, 364 (1970).

3. Nelson v. Colorado, 137 S. Ct. 1249, 1256 n.9 (2017) (quoting Medina v. California, 505 U.S. 437,

445 (1992)).

4. See, e.g., Taylor v. Kentucky, 436 U.S. 478, 490 (1978).

5. Coffin, 156 U.S. at 459.

6. Douglas Husak, Social Engineering as an Infringement of the Presumption of Innocence: The

Case of Corporate Criminality, 8 CRIM. L. & PHIL. 353, 355 (2014).

7. See Shima Baradaran, Restoring the Presumption of Innocence, 72 OHIO ST. L.J. 723, 742 (2011)

(arguing that “[t]he failure to recognize the importance of due process and the presumption of innocence

pretrial allowed the Court to equate these principles with the prosecutor’s burden of proof”).

8. For articles embracing a broad view of the presumption that extends to the pretrial period and/or

civil cases, see, for example, Harvie Wilkinson III, The Presumption of Civil Innocence, 104 VA. L.

REV. 589, 595 (2018) (arguing that a presumption of innocence should be recognized in all civil

proceedings, without abandoning the traditional “preponderance-of-the-evidence standard”); Baradaran,

supra note 7, at 738; Jelani Jefferson Exum, Presumed Punishable: Sentencing on the Streets and the

Need to Protect Black Lives Through a Reinvigoration of the Presumption of Innocence, 64 HOW. L.J.

2023] IMMIGRATION LAW’S MISSING PRESUMPTION 985