Vendzules on Arrests in Immigration Decisionmaking

Sarah Vendzules has posted Guilty After Proven Innocent: Hidden Factfinding in Immigration Decisionmaking (112 Calif. L. Rev. __ (2024) (forthcoming)) on SSRN. Here is the abstract:

The mere fact of arrest can cause an immigrant to lose their status, their freedom, or even their life. Immigration judges and other agency employees frequently use information from the criminal-legal system to justify a discretionary denial, even when all criminal charges have been dismissed, and even when the immigrant is able to provide compelling evidence of innocence. Conventional wisdom among scholars and practitioners holds that, due to the unique discretion granted the immigration agency, there are few, if any, limits on how its adjudicators might use information from a criminal case in the exercise of their discretionary powers. This belief rests on the mistaken assumption that adjudicators are merely “balancing factors” rather than finding facts.

This article introduces a framework to identify “hidden” factfinding in immigration decisionmaking and to guide adjudicators in the use of information from the criminal-legal system in the immigration system and beyond. The framework has the potential to transform the way immigration adjudications are conducted and reviewed. It allows factfinding in aid of discretion to be treated like any other factfinding, enabling adjudicators to draw on existing law and opening up avenues for due process review. This is especially important for bond determinations which, despite the liberty interest being directly implicated, have been allowed to escape scrutiny because of the misconception that they are purely discretionary. The framework also invites a rethinking of immigration’s “categorical” approach for analyzing criminal convictions. This piece suggests that a relatively simple evidentiary tweak can help bring discretionary immigration decisionmaking back in line with the “fundamental norms of constitutional right, administrative procedure, and judicial role that animate the rest of our legal system.”