Tuesday, September 20, 2022

Immigration Article of the Day: Immigration Law's Missing Presumption by Fatma Marouf


Immigration Law's Missing Presumption by Fatma Marouf, Georgetown Law Journal, Forthcoming


The presumption of innocence is a foundational concept in criminal law but is completely missing from quasi-criminal immigration proceedings. This Article is the first to explore 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 in order to facilitate deportation. The Article defines the concept of “innocence” in the immigration context and examines how seminal Supreme Court cases related to immigration investigations both ignore factual innocence and stifle the possibility of legal innocence. Next, the Article examines how reversed and shifting burdens of proof operate in immigration law to disrupt a presumption of innocence, highlighting the undefined standard of “clearly and beyond a doubt” that is placed on certain categories of noncitizens, as well as inconsistencies and uncertainty regarding which party bears the burden of proof in cases involving vacated convictions and other forms of post-conviction relief. Finally, the Article argues that immigration law is not only missing its own presumption of innocence, but also erodes the presumption of innocence in criminal law. The Article offers three examples of this phenomenon involving immigration law’s treatment of pending charges, untested arrest reports, and unproven facts related to a conviction. By shedding light on how immigration law undermines a presumption of innocence, thereby reinforcing implicit associations between people of color and guilt, this Article reveals a form of covert racial discrimination in the immigration code.



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