Immigration Law

Immigration Courts a Legal Paradox: Geoffrey Hoffman

"Many of the paradoxes so ingrained in immigration adjudication can be traced to the central presupposition that removal is a civil versus a criminal proceeding. This largely unquestioned assumption has served to insulate removal proceedings from the important constitutional protections widely guaranteed to criminal defendants. The lack of constitutional safeguards affect a wide array of rights including access to counsel, rules of evidence and discovery, i.e., access to information in government files. 

While many courts pay lip service to the de facto punitive consequences of deportation and detention of immigrants, there is also a line of Supreme Court cases which affirms that removal proceedings are merely civil in nature. The paradox lies in the demotion which "decriminalizes" deportation at the expense of the rights of the accused or in this case of the rights of the respondent "charged" with grounds of inadmissibility and/or removability. The paradox has become even more acute recently with the sharp rise in recent year in prosecutions of immigrants for illegal immigration-related activity such as illegal entry and illegal reentry after an order of deportation.

This core paradox is at the root of a comment made by a sitting immigration judge, Hon. Dana Marks that immigration adjudication is like doing "death-penalty cases" in a traffic-court setting. This is no idle quip. It contains a deep insight. The procedure which should be in place for cases with such grave consequences is ill-equipped to guarantee the level of substantive fairness we expect and demand from a US court." - Geoffrey Hoffman, Sept. 5, 2014.

Professor Geoffrey Hoffman is a Clinical Associate Professor at the University of Houston Law Center in Houston, Texas. He is the Director of the school's Immigration Clinic.