Pleading the Fifth in Immigration Court: A Regulatory Proposal

Protections of noncitizens’ rights in immigration removal proceedings have remained minimal even as immigration enforcement has exponentially increased. An overlooked, but commonplace, problem in immigration court is the treatment of the constitutional right against self-incrimination. Two routine scenarios occur where noncitizens are asked to sacrifice their right against self-incrimination in immigration court. One involves testimony regarding conduct related to immigration status that may lead to prosecution for federal immigration violations, such as illegal entry, illegal reentry, or alien smuggling. The other involves testimony regarding any other potentially criminal activity, including when the noncitizen currently has pending charges in criminal court yet is expected to testify about the underlying facts of the case during immigration court proceedings. In both of these circumstances, the immigration system puts noncitizens in the untenable position where they must either elect to waive the constitutional right not to self-incriminate and testify regardless of possible criminal consequences, or exercise their right to silence and risk the immigration judge drawing an adverse inference that could result in deportation. The skewed incorporation of criminal norms into the immigration arena—a supposedly civil system—without a simultaneous expansion of procedures designed to protect and enforce noncitizens’ rights leads to disastrous results. Moreover, the lack of procedural fairness in removal proceedings exaggerates the imbalance of power between the federal government, with its immense resources, and the individuals it seeks to deport. Considering the broad powers granted to the executive and legislative branches of government to regulate immigration, and the attendant limited oversight by Article III courts, the courts are not likely to provide the most efficient or far-reaching solution. Thus, this Article posits that, rather than utilizing the traditional judicial avenue for vindicating constitutional rights, federal agency regulatory rulemaking is the best way forward. The Article then offers proposed regulatory language that is intended to provide a meaningful procedural vehicle through which noncitizens’ right against self-incrimination may be enforced. The proposed regulations provide that immigration judges must advise noncitizens of their right to remain silent, prohibit judges from drawing an adverse inference where noncitizens have pending criminal charges, clarify the procedures that must be followed in order to compel speech, and limit the government’s use of evidence obtained as a result of statutory or regulatory violations