Revisiting the Rules of Evidence and Procedure in Adversarial Immigration Proceedings

This article addresses the concern over the state of deportation proceedings in the United States. Professor Kidane argues that a lack of formal rules of procedure and evidence is the main factor contributing to the unpredictability, and inconsistency inherent in our system of immigration law. The argument is placed in context by reviewing the growth of the administrative agencies up through the adoption of the Administrative Procedure Act (APA). Kidane notes that the APA embodies one approach as a compromise between those advocating strict formal rules of procedure and evidence and those supporting a more relaxed system for administrative proceedings. However, Professor Kidane continues by stating that the Immigration and Nationality Act (INA) effectively made many of the evidentiary and procedural provisions of the APA inapplicable to immigration proceedings. Kidane argues that, by adopting more relaxed evidentiary standards and informal procedural rules, the INA violates basic principles of due process and fundamental fairness; resulting in a system that lacks uniformity and integrity. After reviewing the main problems inherent in the INA\u27s lax evidentiary standards, such as free admission of hearsay and administrative notice of adjudicative facts, Professor Kidane argues that important lessons could be learned from the more formal system of evidentiary and procedural rules adopted by the Department of Labor (DOL). By noting the similarity between DOL proceedings and deportation proceedings, Kidane draws the conclusion that the DOL provisions would make a good substitute for the rules currently in place in the immigration arena. Professor Kidane concludes by arguing that these formal rules must be adopted for deportation proceedings in order to restore integrity and predictability to the system