"If It Looks Like A Duck: Removal Proceedings and Due Process" | Alexander Weinman

Safe Passage, August 17, 2014

August 2014. NYLS JD Candidate, Alexander Weinman, has written an article about the removal proceedings and due process entitled “If It Looks Like A Duck: Removal Proceedings and Due Process.” Click here to view the article in Google Docs or open this post to read it below.

“If It Looks Like a Duck: Removal Proceedings and Due Process”
by Alexander Weinman, J.D. Candidate, New York Law School

“If it looks like a duck, swims like a duck, and quacks like a duck …”

Lest there remained any doubt about the constitutional stature of the reasonable doubt standard, Justice Brennan, writing for the majority of the Supreme Court in In Re Winship in 1970, explicitly held that: “the due process clause protects the accused against conviction, except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” With respect to determining whether something is an element of a crime, Winship set forth three factors to be considered: stigmatization, community confidence in the accuracy of our verdicts, and loss of liberty.

The problem with removal proceedings is that they are [characterized as] civil, therefore due process doesn’t apply, therefore no Winship factors, and of course, no reasonable doubt standard. People are removed from the United States by a preponderance of the evidence.

Winship also held that a state could not “conveniently” label a proceeding as civil (holding that juvenile delinquent proceedings were criminal, notwithstanding New York’s statute explicitly labeling them civil). Instead, a court must look to the “operation and effect” of the goings on. In spite of this, removal proceedings remain “civil,” because courts continuously reject the contention that removal constitutes punishment.

But then we get to Padilla v. Kentucky. Padilla is careful not to mention due process (except in a footnote in the dissent), and acknowledges that removal is civil, but the decision states:  “deportation is intimately related to the criminal process.” Its holding (that attorneys must make defendants aware of the potential immigration consequences of plea bargains) is limited to removal as a result of criminal conduct, but there is certainly room for the reasoning to be expanded.

And it has been. In People v. Peque (November 2013), the New York Court of Appeals held that for a plea bargain to be “voluntary,” the defendant must be aware of the immigration consequences thereof. In the first paragraph of the decision, the court wrote: “Our resolution of this issue is grounded in the right to due process of law, the bedrock of our constitutional order.” The court based its reasoning on today’s “nearly inevitable consequence of deportation” after a felony conviction, and the “uniquely devastating deprivation of liberty” resulting therefrom.

The court also discussed direct and collateral consequences of plea bargains. Direct consequences must be known by the defendant to constitute a voluntary plea, and only voluntary pleas are valid. A direct consequence “has a definite, immediate and largely automatic effect on the defendant’s punishment,” while a collateral consequence is “peculiar to the individual’s personal circumstances and one not within the control of the court system.”

The court concluded that removal “resemble[s] in many respects a direct consequence of a guilty plea, even though we concur … that it is technically on the collateral side of the direct/collateral divide,” and it overrules People v. Ford insofar as Ford conclusively characterized removal as a collateral consequence of a guilty plea.

In summation, the court acknowledged that removal results in the deprivation of liberty, and that it increases a criminal defendant’s punishment. It also categorized removal as a technically collateral, yet somewhat direct, consequence of a plea bargain, because not doing so would be a violation of due process– which is generally inapplicable to immigration and removal.

The holding’s basis in due process cannot be reconciled with removal’s historic characterization as civil-because-it-is-not-punishment. Further, that removal is a quasi-direct consequence of a plea bargain because it increases punishment by depriving liberty, presupposes that removal is in and of itself, punishment.

Winship’s prohibition of labels of convenience notwithstanding, removal proceedings remain civil as a matter of law. But given the New York Court of Appeal’s recent decision in Peque, this may soon be up for debate; a petition for Certiorari was filed in February 2014 to the United States Supreme Court.