Invoking Common Law Defenses in Immigration Cases

Abstract

This Article argues that we should take a deeper look at the applicability of federal common law defenses in immigration cases. In the rare cases where noncitizens attempt to raise common law defenses, such arguments tend to be dismissed offhand by immigration judges simply because removal proceedings are technically civil, not criminal. Yet many common-law defenses may be raised in civil cases. Additionally, immigration proceedings have become increasingly intertwined with the criminal system. After examining how judges already rely on federal common law to fill in gaps in the Immigration and Nationality Act (INA), this Article proposes three categories of removal cases where federal common law defenses are particularly viable. The first category involves INA provisions that require conduct to be unlawful without requiring a conviction; the second category involves INA provisions barring asylum, which are closely connected to principles of criminal culpability; and the third category involves certain grounds of removal with no explicit mens rea requirement. Finally, the Article examines some of the legal and practical challenges to prevailing with these defenses in the removal context, drawing on criminal cases where such defenses have been raised to immigration-related charges. The Article concludes that a more principled approach to the use of federal common law defenses in removal proceedings is necessary in order to promote consistent and fair adjudication.