Beyond "Crimigration" and the Civil-Criminal Dichotomy - Applying Mathews V. Eldridge in the Immigration Context
Nadadur, Ramanujan, Yale Human Rights and Development Law Journal
Policies and regulations from the past decade underscore the need for strong constitutional safeguards in removal proceedings, which are administrative proceedings where an Immigration Judge adjudicates whether a noncitizen should be deported from the United States under the Immigration and Nationality Act (INA). Deportation has accelerated; the Obama Administration has removed nearly 400,000 noncitizens in each of the last three years. (1) Congress and the Executive have limited appellate review of final orders of removal (2) and sharply curtailed avenues of discretionary relief. (3) Immigration detention has increased significantly; Immigration and Customs Enforcement (ICE) detained a record total of 384,000 noncitizens in 2009, and 363,000 noncitizens in 2010. (4) Immigration law also has become more complex, with a maze of difficult regulations that govern the forms of relief available at different stages of the removal process. (5) Recognizing recent changes in immigration enforcement and the severity of deportation, this Note suggests that some groups of noncitizens in removal proceedings ought to have heightened procedural safeguards as a matter of constitutional law.
In Padilla v. Kentucky, (6) the Supreme Court recently drew attention to the constitutional safeguards for noncitizens facing removal. The Court held that the Sixth Amendment right to effective assistance of counsel requires criminal defense attorneys to advise noncitizen clients about the immigration consequences of a guilty plea or conviction. (7) Over the past two years, this decision has led to a dramatic shift in criminal practice. It has prompted a series of advisories for defense attorneys who represent noncitizen clients; criminal defense offices have begun to create new positions staffed by immigration experts; (8) and state bar associations and other organizations have sponsored training sessions to instruct defense attorneys on immigration law. (9) Although Padilla focused on the rights of noncitizens in criminal proceedings, the Court also recognized the significant individual liberty interests for noncitizens facing removal, the decreasing avenues of immigration relief available for noncitizens, and the growing nexus between immigration law and criminal law, the latter of which grants strong constitutional protections to suspects and defendants. (10)
Despite the recent changes to immigration law and language in Padilla recognizing the seriousness of deportation, noncitizens in removal proceedings continue to lack important procedural safeguards for a variety of reasons. Historically speaking, the Supreme Court considered deportation proceedings to be an intrinsic part of the U.S. government's sovereignty; the Court held that the government therefore retained the power to limit the procedural rights granted to noncitizens. (11) The expansion of procedural rights would also entail a significant financial burden on the state; the approximate cost of providing counsel to indigent noncitizens could be as much as $110 million per year. (12) Given the negative public perception towards those convicted of crimes, it is politically challenging to support greater procedural rights for noncitizens today; the Obama Administration has focused a significant part of its removal efforts on removing noncitizen criminals. (13) Moreover, the relative lack of procedural rights for noncitizens allows the government to enforce criminal or anti-terrorism priorities within an administrative system that does not require that the government extend litigants the rigorous protections associated with the criminal process. (14) The government, for example, can preventively detain a suspected terrorist for immigration violations and circumvent the pre-trial detention requirements from criminal law. (15)
Accordingly, several notable procedural weaknesses persist in removal proceedings. First, indigent noncitizens do not have the right to court-appointed counsel, (16) a right that can be outcome-determinative given the complexity of immigration law. …