Document Type
Article
Publication Date
5-2023
Journal Title
Georgetown Law Journal
ISSN
0016-8092
Abstract
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.
First Page
983
Last Page
1041
Num Pages
59
Volume Number
111
Issue Number
5
Publisher
Georgetown University Law Center
Recommended Citation
Fatma Marouf,
Immigration Law's Missing Presumption,
111
Geo. L.J.
983
(2023).
Available at:
https://scholarship.law.tamu.edu/facscholar/1896