The analogies used to convey the dysfunctions of immigration adjudication to outsiders are often colorful, but not hyperbolic. The gambling game of roulette describes asylum decisionmaking, because the luck of the draw largely determines whether a noncitizen will receive asylum or not. Except, of course, in the case of “asylum-free zones,” where immigration judges simply deny almost all the time. Immigration judges decide cases that carry death penalty-like consequences with the resources of traffic court. And so on. Sarah Vendzules adds another powerful analogy to this list: zombies. More precisely, the practice of immigration adjudicators treating certain forms of evidence like zombies, irrefutable and “effectively impossible to kill.” (P. 697.)
The evidence that Vendzules interrogates is the information contained in documents produced by a noncitizen’s prior criminal law proceedings, or what she calls “criminal legal system (CLS) outputs.” Such documents include police reports, criminal complaints, sentencing reports, transcripts of various proceedings, guilty pleas, and jury verdicts, to name a few. The problem is that in the world of immigration, adjudicators treat CLS outputs as though they constitute established facts. Yet as any student of criminal procedure knows, different procedures and standards of proof in the criminal system create its many different records. Compare police reports to guilty verdicts. Police reports are famously unreliable, potentially containing “unsworn allegations,” “multiple levels of hearsay,” and “may be an amalgamation of information from several unidentified sources.” (P. 716.) Guilty verdicts after trial, on the other hand, are produced “with all the processes and protections that the system can muster.” (P. 719.)
But in immigration court, the de facto rule, as Vendzules puts it, is the following: “anything can come in.” (P. 709, italics in original.) And it’s more than simply the fact that anything can come in, it’s that CLS outputs—like zombies—come in with far more force than logic would suggest. Like zombies, CLS outputs stay alive and effectively take over certain forms of decisionmaking. Vendzules emphasizes that once an allegation of criminal activity appears in the immigration record, decisionmakers can refuse to accept contrary evidence supplied by the noncitizen as refutation. She provides examples from her experiences in immigration law practice to illustrate how immigration adjudicators have refused to consider even evidence of clients’ innocence—for instance, in the form of dismissed charges, acquittals at trial, or independent evidence such as sworn recantations from complaining witnesses. In those cases, decisionmakers have treated CLS outputs created with minimal evidentiary guardrails as sufficient bases on which to justify discretionary denials of relief. As suggested by the title, Guilty After Proven Innocent: Hidden Factfinding in Immigration Decisionmaking, the use of zombie evidence means that noncitizens remain guilty in the eyes of the immigration system even if proven innocent through evidence from outside the criminal legal system.
Vendzules uncovers how this world is possible by explaining that the immigration agency fails to understand that when immigration adjudicators consider CLS outputs, they are engaging in the process of factfinding. In reality, “hidden factfinding,” (in the title and throughout the article) describes current practice, because the immigration system—doesn’t approach said factfinding as factfinding. The Board of Immigration Appeals (an agency within the Department of Justice that adjudicates immigration court-issued removal orders) has developed this mindset through its caselaw precedent, which establishes agency practice at various adjudicatory stages with little intervention from the federal courts. Instead of seeing agency officials’ task as evaluating the reliability of the evidence before them and drawing factual conclusions based on that evidence, the agency views adjudicators as engaged in the work of “weighing factors.” (P. 713.) But by conceiving of officials’ roles as weighing factors, rather than engaging in factfinding, the decisionmaking process takes place under a “hidden cloak of discretion.” Thus, immigration adjudicators can treat “criminal complaints and police reports as absolute truth,” because they are considering discretionary factors, not finding facts based on reliable evidence (P. 713.)
Scholars have discussed the operation of discretion in administrative systems like immigration at length, but Vendzules dissects it with a level of detail that artfully exposes the conflation of issues, “squishy thinking” (P. 713) and Kafkaesque nature of reasoning in the context of CLS outputs. In doing so, Guilty After Proven Innocent also provides a vocabulary for critiquing practices that have long frustrated many advocates in the trenches.
The solution? Rather than insist on binary rules of inadmissibility, she advocates for a framework in which adjudicators evaluate the portability of records from one system (criminal) to another (immigration). Doing so would require adjudicators to engage in factfinding and account for the reliability of the document when deciding whether to treat facts in those documents as true. A contrast to the “anything can come in” standard, this proposal makes sense.
As Vendzules demonstrates, the proposed portability framework would affect a number of other aspects of immigration adjudication, largely because it would infuse otherwise discretionary standards with clearer legal standards. These areas include judicial review of immigration cases (especially constitutional claims), bond proceedings to determine whether noncitizens may be released from detention, and the still-controversial categorical approach to determining the immigration consequences of prior convictions. She also notes that the portability framework might also work for a number of legal systems outside of immigration that rely on CLS outputs, such as housing or child welfare.
Most critical analyses of immigration adjudication are based upon constitutional norms concerns. Vendzules’ approach to the convergence of the criminal and immigration systems as presenting a fundamental “evidentiary question” adds an important perspective to the collective critique (P. 706.) Although immigration continues to swirl with controversy, the issues tackled by Vendzules—how the immigration system decides cases, and the high human stakes associated with immigration—will continue to matter irrespective of political rhetoric. The article is both a stark reminder of how far removed the immigration field continues to be from normal rules of law and process as well as the possibilities for practical reform.
