Volume 111

Immigration Law's Missing Presumption

by Fatma Marouf

The presumption of innocence is a foundational concept in criminal law but is completely missing from quasi-criminal immigration proceedings. This Article explores 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 to facilitate deportation. The Article examines the meaning of “innocence” in the immigration context, revealing how historically racialized perceptions of guilt eroded the notion of innocence early on and connecting the missing presumption to persistent associations between people of color and guilt. By analyzing how a presumption of innocence is impeded at multiple decision points, from the investigations stage to detention, removal, and even post-conviction relief, the Article demonstrates the cumulative disadvantage that the system inflicts. Finally, the Article argues that immigration law not only is 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 crime. By shedding light on how immigration law undermines a presumption of innocence and reinforces racialized perceptions of guilt, this Article reveals a form of covert racial discrimination in the immigration code.

Continue Reading Immigration Law’s Missing Presumption