According to the INA, to qualify for asylum in the United States, a noncitizen must demonstrate persecution (or a well-founded fear of future persecution) on the basis of at least one of five enumerated grounds: race, religion, nationality, membership in a particular social group, or political opinion.  For persecution to be “on account of” one of the enumerated grounds, the ground must be “at least one central reason for persecuting the applicant.”⁶  The persecutor need not have acted with malice, however.  As in many FGM cases, the persecutor may have acted in conformity with social tradition or in the belief that the persecutor was helping the asylum applicant.  On the other hand, the asylum applicant must show that “the persecutor is aware or could easily become aware of the [applicant’s] protected status or beliefs.”⁷

Membership in a particular social group is the most appropriate and most common category for applicants seeking asylum based on FGM.  Essentially, a particular social group is “a group of persons all of whom share a common, immutable characteristic.”⁸  A characteristic is immutable if “members of the group either cannot change [the characteristic], or should not be required to change [it] because it is fundamental to their individual identities or consciences.”⁹  An immutable characteristic can be “innate or experiential.”¹⁰  Notably, some courts have balked at defining any “particular social group” too broadly.

In addition, the BIA and most circuit courts recognize a “social visibility” requirement as part of the meaning of “particular social group.”  As the courts apply the term, “social visibility” measures the “extent to which members of the purported group would be recognizable to others” in the community.¹¹

The BIA first confronted the issue of FGM as a basis for asylum in 1996 in In re Kasinga.¹²  The BIA held that the applicant had a “well-founded fear of persecution in the form of FGM if returned” to her home country and thus granted her asylum.¹³  The BIA defined the applicant’s social group as a group “consisting of young women of [her tribe] who have not had FGM, as practiced by that tribe, and who oppose the practice.”¹⁴  The BIA concluded that both being a young woman and being a member of the applicant’s tribe were immutable characteristics.  Further, “[t]he characteristic of having intact genitalia is one that is so fundamental to the individual identity of a young woman that she should not be required to change it.”¹⁵ Although the BIA came down squarely in favor of granting asylum on the basis of FGM, the BIA took pains to note that it would not “speculate on, or establish rules for, [FGM] cases that [were] not before [it].”¹⁶

Since Kasinga, courts analyzing asylum claims under the social-group category have looked favorably upon claims for asylum based on FGM.  In Niang v. Gonzales, for example, the Tenth Circuit reasoned that “female members of a tribe would be a social group” because “[b]oth gender and tribal membership are immutable characteristics.”¹⁷  In contrast to Kasinga, however, the Tenth Circuit reasoned that there was no need for a social-group definition to include more than gender and tribal membership (that is, there was no need to include opposition to FGM).

The Ninth Circuit further paved the way for future asylum claims based on FGM in Mohammed v. Gonzales.¹⁸  In that case, the court held that women who have undergone FGM in the past are eligible for asylum even without a further showing of a well-founded fear of future persecution.  The Ninth Circuit reasoned that FGM, “like forced sterilization, is a ‘permanent and continuing’ act of persecution, which cannot constitute a change in circumstances sufficient to rebut the presumption of a well-founded fear” of persecution.¹⁹ Other circuits, however, still allow the government to rebut the presumption of a well-founded fear of persecution.

In September 2007, the BIA decided another FGM asylum case, In re A-T-,²⁰ which conflicts with the Ninth Circuit’s decision in Mohammed v. Gonzales.  In In re A-T-, the respondent, a twenty-eight-year-old woman from Mali, had undergone FGM as a child but had no memory of the experience.  The BIA distinguished the respondent from the applicant in Kasinga because the applicant in Kasinga had not yet undergone FGM.  Therefore, the BIA held that because “FGM is generally performed only once,” the respondent could not have a well-founded fear of future persecution.²¹

In June 2008, the Second Circuit reached a very different conclusion in an FGM case.  In Bah v. Mukasey, the Second Circuit held that the BIA had erred in In re A-T- by assuming “categorically” that a woman could undergo FGM only once.²²  Rather, the court said that the government has the burden of proving, in each case, that the specific applicant is not in danger of suffering FGM again.  Further, the court stated that the BIA erred by requiring that the applicant fear repetition of the identical harm (FGM) that the applicant originally experienced.  Indeed, the court found that members of the applicant’s particular social group commonly suffered many types of harm.

Several months after the Second Circuit decided Bah, the Attorney General vacated the BIA’s decision in In re A-T-.  The Attorney General agreed with the Second Circuit that the BIA had erred in deciding that a woman could suffer FGM only once and by ignoring the possibility that a woman who suffered FGM in the past could suffer a different form of persecution in the future.  The Attorney General remanded the case to the BIA to determine whether the regulations entitle the applicant to a presumption of a well-founded fear of persecution; “if so, whether the Government has satisfied or can satisfy its burden . . . of establishing one of the factors that would rebut the presumption”; and whether the applicant’s past experience of FGM is related to fears of other types of harm, such as her fear of a forced marriage.²³

The current trend toward allowing women to obtain asylum in the United States on the basis of FGM is a positive change in the law.  Indeed, the INA’s definition of the term “refugee” should include both women who face FGM and those who have already suffered it.  Unwanted FGM is clearly persecution, and a showing of FGM in the past should create a rebuttable presumption of a well-founded fear of future persecution.

First, unwanted FGM constitutes persecution.  Both the short- and long-term physical and psychological effects of FGM are severe enough to rise to the level of persecution.  In addition, both the Second Circuit’s decision in Bah v. Mukasey and the Attorney General’s decision in In re A-T- were correct in asserting that a showing of past FGM creates a rebuttable presumption of a well-founded fear of future persecution.  In fact, some women undergo FGM multiple times.  Furthermore, many communities justify FGM as a means of controlling women’s sexuality, either to insure that women remain virgins until marriage or to reduce women’s sexual desires.  These justifications are a violation of women’s human rights.  Although not every human rights violation constitutes persecution for asylum purposes, the severe physical and psychological harm that FGM causes makes it persecution.  Indeed, courts have recognized the existence of persecution in cases involving much less severe physical harm or even in the absence of physical harm.

Because FGM is plainly persecution, women who have a well-founded fear of FGM should be eligible for asylum in the United States under the INA on the basis of membership in a “particular social group.”  Women who fear female genital mutilation generally meet the criteria for membership in a particular social group.  In communities where FGM is prevalent, persecutors target women who have not undergone FGM.  In addition, the characteristic of fearing FGM (or, analogously, desiring not to undergo FGM) is likely to be immutable among most women.  Even if changing a woman’s attitude toward FGM is possible, no woman should be forced to change this characteristic or belief—that is, women “should not be required to change [this characteristic] because it is fundamental to their individual identities or consciences.”²⁴

Moreover, women who have already suffered FGM will also satisfy most of the criteria for membership in a particular social group.  In some cultures, persecutors target these women for repeated FGM.  Even if a particular community did not subject women to multiple experiences of FGM, a showing of past persecution and enduring physical and emotional harm should be sufficient for such women to obtain asylum.  For women who have already suffered FGM, the immutable characteristic is experiential, rooted in their having undergone FGM.

In the cases of both women who have already undergone FGM and those who have not, the visibility requirement of the social-group category presents a problem.  Another person will not immediately know whether a woman has undergone FGM or whether she fears FGM.

In 1991, the Second Circuit created the visibility requirement of the “particular social group” category in Gomez v. INS.²⁵  The court held that the applicant’s asserted social group, “women who have been previously battered and raped by Salvadoran guerillas,” did not constitute a particular social group under the INA because “would-be persecutors could [not] identify [the women] as members of the purported group”—that is, it was not possible for the persecutors to target members of the alleged group for persecution.²⁶  The Second Circuit later required that members of a particular social group “share[] a . . . characteristic that is identifiable to would-be persecutors and is immutable or fundamental.”²⁷

The BIA approved the Second Circuit’s new “social visibility” requirement in In re C-A-.²⁸  In that case, the BIA explained that the “recognizability” of a social group depended on its visibility to others in a society.²⁹  As long as society perceives individuals as part of the social group, however, group members need not physically differ from others in society.  Nonetheless, the social visibility requirement is difficult to meet and many asylum applications based on the social-group category fail, both before the BIA and courts, because their alleged social groups lack social visibility.

The visibility requirement for a particular social group is not appropriate in FGM cases for several reasons.  First, in the cases that apply the visibility element to the asylum claim, the opinion usually justifies the visibility requirement because of the need for persecutors to perceive, and thus target, members of the alleged group.  Yet, in cases in which applicants fear FGM, persecutors have no difficulty perceiving the applicants.  In these cases, the applicants are usually young or about to marry, and they are always female.  Moreover, in most FGM cases, the applicant is part of a tribe or other small community, and potential persecutors are neighbors and relatives.  Thus, many potential applicants are known to their persecutors, which makes identifying characteristics unnecessary.

In cases in which the BIA or courts have applied the visibility requirement of the social-group category and denied applicants asylum, the persecution the applicants allege often differs substantively from FGM.  Indeed, in most social-group-category cases in which the court holds that the alleged group lacks the visibility element, the court’s unspoken rationale seems to be that another element besides the visibility requirement is missing from the applicant’s claim.  Most often, the missing element actually seems to be that the characteristic or belief that forms the social group is not immutable or fundamental enough.  It may seem odd to discuss a characteristic or belief as not being immutable or fundamental “enough”—indeed, by definition, the two words are take-it-or-leave-it qualities.  For this reason, however, courts seem to shy away from discussing such applicants’ characteristics as not being immutable or fundamental and, instead, rely on the visibility requirement to deny claims.  Moreover, it would be unreasonable for the court to suggest that individuals in such a group should change such a characteristic or belief, even if that characteristic or belief is not fundamental to the individuals’ identities.  That it would be unreasonable for an adjudicator to ask an asylum applicant to change a characteristic or belief, however, does not make that characteristic or belief fundamental to the applicant’s identity.

Courts and the BIA should abolish the social-visibility requirement.  In asylum cases in which adjudicators rely on the visibility requirement as the key issue, courts and the BIA could instead simply weigh the strength of the applicant’s characteristic or belief that is the basis for the social-group-category claim.  Such balancing would be at least as clear as the current social-visibility requirement, and the change would allow courts and the BIA to judge asylum cases with an eye to fundamental fairness.  In prioritizing different applicants’ characteristics or beliefs, adjudicators might use as a guideline whether the characteristic or belief is innate or immutable, or merely learned or adopted.  The experience and symptoms of having been genitally mutilated are, of course, immutable.

Even if courts and the BIA do not abolish the social-visibility requirement of the social-group category of the INA entirely or just for FGM, asylum applicants may still be able to reliably establish asylum on the basis of FGM.  The INA explicitly includes forced sterilization as a basis for asylum and categorizes forced sterilization as persecution on account of political opinion, not membership in a particular social group.  Therefore, asylum applicants who hope to gain admission to the United States on the basis of a fear of FGM may be able to analogize FGM to involuntary sterilization and thereby avoid the social-visibility-requirement problem.

Female genital mutilation, like forced sterilization, has ongoing physical and psychological effects on the individuals who are involuntarily subjected to it.  Indeed, one potential effect of FGM is infertility.  Considering this potential health consequence, FGM is arguably even more physically and emotionally scarring than involuntary sterilization.  Moreover, women who are genitally mutilated against their will and individuals who are forcibly sterilized both suffer a grievous breach of bodily autonomy.

In fact, the best solution to the difference in statutory treatment between involuntary sterilization and FGM is to also explicitly mention FGM as a basis for asylum in the INA.  Such an addition could be accomplished easily.  The current language of section 101(a)(42) of the INA could remain, but an additional sentence, analogous to the current sentence about forced sterilization, should be added at the end of the section.  That sentence might read:

For purposes of determination under this chapter, a person who has been forced to undergo involuntary genital mutilation, or who has been persecuted for failure or refusal to undergo such a procedure, shall be deemed to have been persecuted on account of membership in a particular social group, and a person who has a well-founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well-founded fear of persecution on account of membership in a particular social group.

With the inclusion of such a sentence, an adjudicator would have to make only a factual determination as to an asylum applicant’s claim—whether or not the applicant had a well-founded fear of FGM.  Such a statutory change would thus have the added benefit of alleviating currently overloaded court dockets.

In addition to domestic asylum law, applicants seeking asylum on the basis of FGM may have recourse to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).³⁰  The Convention Against Torture defines torture as

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.³¹

The most difficult element of the CAT definition of torture for a woman who has suffered or fears suffering FGM would most likely be the fourth element, which requires that a public official or someone acting in an official capacity inflict, or at least acquiesce to, the harm.  In most FGM cases, the requirement that an “official” acquiesce is not at issue; in the communities that practice FGM, no one attempts to stop the practice, nor even to condemn it.  Rather, the difficulty for a woman who has suffered FGM would be showing the “officialness” of the actor or actors.  Because the usual practitioners of FGM are members of the female’s community or tribe, they are not always formal public officials.  Nevertheless, an applicant seeking protection under CAT could plausibly argue that respected tribal leaders function as officials of the tribe.  Additionally, given that most females who undergo FGM are children and young women, such women could argue that the practitioners of FGM often have an age-related authority over their victims.

Asylum law based on the particular-social-group category of section 101(a)(42) of the INA is murky, and the category is difficult to apply in practice.  For this reason, the BIA and the courts should make clear that an applicant who has suffered or who fears suffering FGM has a well-founded fear of persecution.  Further, the applicant’s asylum claim should not falter with application of the particular-social-group category.  Despite the unwise recent addition of the visibility requirement to the definition of a social group, women who have undergone or who fear undergoing FGM are a clear example of a social group that deserves protection under U.S. asylum law.  Additionally, the rationales for the visibility requirement are still fulfilled in cases of FGM.  Further, although courts should recognize that women in FGM cases have the requisite social visibility, the requirement should be abolished for all asylum cases.  As long as communities around the world continue to practice FGM, women who fear or unwillingly undergo the practice should qualify for asylum in the United States.

The difficulty of applying the social-group category may be eclipsed altogether by simply adding FGM to the INA as an explicit ground for relief.  Such an addition would properly mirror the inclusion of involuntary sterilization as a ground for asylum.  And, until U.S. immigration law properly allows victims of FGM to obtain asylum, FGM victims may also consider an asylum claim under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Hopefully, one day the path to asylum for victims of female genital mutilation will not require resort to international law at all.  As long as communities around the world continue to practice FGM, women who unwillingly undergo the practice should be able to take refuge in the United States.

Acknowledgements

Zsaleh Harivandi is a 2010 J.D. candidate at Cornell Law School.

I am grateful to Stephen Yale-Loehr and the members of the Cornell Law Review, particularly Colleen Holland, Julie Rubenstein, and Naushin Shibli, for their help with this piece and to Joel Atlas for his general academic guidance and friendship. Finally, a special thanks to Sue, Ali, and Mithra Harivandi and Jason Yamada-Hanff for their love and support.

You are a juror sitting in a courtroom (a place you’ve never visited), hearing an opening statement by a loud-mouthed lawyer you barely know.  After an hour, a first witness walks into the courtroom and sits by himself on the witness stand.  The lawyer’s cross-examination of the witness implies, “Be careful of that guy.  He is an illegal alien.”  A few minutes later, a second witness enters the courtroom; he also sits alone on the stand.  The lawyer’s cross-examination of the witness implies, “Be careful of that guy.  He cheats on his wife.”  Which of these two people do you trust less?

According to the recent opinion of one federal appellate court, the illegal alien is the answer, and the second line of interrogation is prohibited.  In United States v. Almeida-Perez,¹ the Eighth Circuit found that an extensive interrogation into the immigration statuses of defense witnesses was not plain error.  The court relied upon First and Second Circuit opinions that found that the way individuals enter this country is relevant to their character for truthfulness. In reaching its conclusion, the Eighth Circuit also acknowledged—but was ultimately unpersuaded by—an analogous Eleventh Circuit decision.  The Eleventh Circuit found that a district court erred when it allowed the State to question three defense witnesses about a letter written by the defendant/appellant, which proposed an adulterous liaison, because the letter did “not directly relate to the Appellant’s truthfulness and honesty.”  The Eleventh Circuit’s opinion was in line with precedent from across the country, which generally holds that witnesses cannot be impeached through acts of misconduct unless such acts bear directly on their truth-telling capacity; evidence that a witness has engaged in unlawful trespass, the act most similar to entering this country illegally, cannot be used to impeach the witness under such cases.

This Essay argues that courts err when finding that witnesses can have their character for honesty impeached through cross-examination regarding their immigration statuses.  First, immigration status, in and of itself, does not directly bear upon (dis)honesty.  Second, even if immigration status does have sufficient bearing on witness honesty, the probative value of immigration interrogation is substantially outweighed by the danger of unfair prejudice that it introduces.  Finally, if an attorney seeks to impeach a witness based upon his immigration status or his alleged commission of some immigration-related crime, such as fraudulently obtaining documentation, the witness should be able to invoke his Fifth Amendment privilege against self-incrimination.

 
I.
Impeachment’s Reach

Unless a witness has been convicted of a certain category of crime, his character for honesty generally may only be impeached through opinion and reputation testimony and not through testimony concerning specific instances of (mis)conduct.  For instance, after a defendant testifies in his trial for a crime such as arson or assault, the State could call a witness to testify that he has been the defendant’s neighbor for ten years and that (1) in his opinion, the defendant is a liar and/or that (2) the defendant has a reputation in the neighborhood for being a liar.  The prosecution witness could not, however, testify about those acts that constitute the basis for his opinion.  In other words, if this prosecution witness thinks the defendant is a liar because he believes or has knowledge that the defendant committed embezzlement, the witness is nevertheless prohibited from testifying concerning this specific instance of misconduct.

Federal Rules of Evidence 608(a) and (b) explain this dichotomy.  In relevant part, Rule 608(a) states that “[t]he credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation . . . .”² Conversely, Rule 608(b) begins by stating that in “attacking or supporting the witness’s character for truthfulness [specific instances of a witness’s conduct], other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence.”³

But Rule 608(b) goes on to state that:

In other words, if defense counsel responded to the prosecution witness by calling its own witness to testify that, in his opinion, the embezzling defendant is honest, the State could ask that witness on cross-examination whether he knew or had heard that the defendant committed embezzlement.  Pursuant to the Rule, however, the State remains unable to prove the act in question through extrinsic evidence (in other words, with evidence from another witness or document); it is bound by the witness’s response.

Moreover, once the defendant’s character is at issue, the State may ask the defendant directly whether he committed embezzlement.  The problem with this tactic is that Rule 608(b) ends by cautioning: “[t]he giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused’s or the witness’ privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness.” Assuming, therefore, that he is not on trial for the embezzlement alleged, the defendant could invoke his Fifth Amendment privilege if questioned about the matter. The defense witness, by contrast, cannot “plead the Fifth” because his testimony about the defendant’s embezzlement would not tend to incriminate him.

 
II.
Immigration Interrogation

In United States v. Almeida-Perez, the Eighth Circuit case referenced above, José and Porfirio Almeida-Perez appealed their convictions for being illegal aliens in possession of firearms transported in interstate commerce.  They alleged, among other things, that the judge (rather than the prosecutor) improperly badgered defense witnesses concerning the defendants’ immigration statuses.  The Eighth Circuit denied their appeal, relying upon “two cases in which unlawful entry into the country or other violation of immigration laws was considered admissible because relevant to truthfulness.”

In addition to the two courts issuing the opinions relied upon by the Eighth Circuit, many other courts, both state and federal, would have reached the same conclusion.  The Supreme Court of Wyoming in Marquez v. State,⁵provides one example.  In Marquez, Oscar Rodriguez Marquez appealed from first-degree assault and assault and battery convictions, claiming, inter alia, that the trial court improperly allowed him to be impeached based upon illegal alien status. The court denied his appeal, curtly concluding that Marquez’s status as an illegal alien was probative of his character for truthfulness and that Marquez had “not directed us to any legal authority which would persuade us otherwise.”

The Second Circuit in United States v. Cambindo Valencia,⁶ provides another example.  In Cambindo Valencia, the defendant appealed from his convictions, which related to a conspiracy to commit narcotics offenses, claiming, inter alia, that the district court erred by allowing the prosecutor to cross-examine him about whether he had a green card. The district court permitted such interrogation, finding that it bore upon the defendant’s credibility; the Second Circuit affirmed, simply concluding that the questioning was proper.

Conversely, other courts, such as the United States District Court for the Eastern District of New York, have precluded the impeachment of witnesses based upon their immigration statuses because of the lack of an established link between such status and credibility. According to these courts, individuals enter the United States for a variety of reasons and under a variety of circumstances.  Thus, “[a]n individual’s status as an alien, legal or otherwise, . . . does not entitle [the government] to brand him a liar.”⁷ Still other courts have held that a witness cannot be impeached solely based upon his status as an illegal alien, but may be impeached if the witness has committed some immigration-related crime, such as falsifying his identity.

 
III.
The Truth of the Matter

To determine which courts are acting correctly, we must consider the types of conduct typically covered by Rule 608(b).  As the text of the Rule reveals, attorneys may cross-examine witnesses only regarding acts that are probative of (un)truthfulness.  Although courts vary somewhat in enumerating what those acts are, many courts, including the Second and Eighth Circuits, hold that Rule 608(b) only permits inquiry into specific acts “related to crimen falsi, e.g., perjury, subornation of perjury, false statement, embezzlement, [or] false pretenses” that could lead to arrest.  Most illegal immigrants enter the country without inspection, meaning that the act of illegal entry is usually not an act relating to crimen falsi because it does not involve deceit of or false statements to government officials or bodies.  It follows that the opinions in Almeida-Perez and Cambindo Valencia, which made no reference to the impeached witnesses’ use of lies or deceit to enter this country, were wrongly rendered because the courts issuing those opinions otherwise only allow impeachment based upon acts of deception.

Some courts have held that Rule 608(b) permits inquiry into a broader range of acts, such as property crimes.  For instance, in State v. Williams, the Court of Criminal Appeals of Tennessee reversed an appellant’s armed robbery conviction after concluding that the trial judge erred when he precluded the appellant from impeaching a prosecution witness by inquiring into an act of larceny the witness had allegedly committed.  The court simply found that “[l]arceny is a bad act constituting dishonesty.”⁸

Even the courts that read Rule 608 broadly, however, find that trespass, the act most similar to entering the country illegally, is not an act involving dishonesty or false statement.  Accordingly, they hold such activity is beyond the scope of Rule 608(b).  To wit, in State v. Philpott, a Tennessee trial court found that “[c]riminal trespass is not a crime involving dishonesty or false statement.”⁹ Later, recognizing the similarity between illegally entering this country and trespassing, the same Tennessee appellate court that found larceny to be a crime of dishonesty relied upon Philpott in finding that a trial court properly precluded a defendant from interrogating a witness regarding his illegal work status. Conversely, no court has explained how immigration status is a proper subject for impeachment while trespassing is not, nor has any court provided anything more than a cursory comment “to support the conclusion that the status of being an illegal alien impugns one’s credibility.” This lack of sound reasoning is particularly disturbing given that there are reasons even beyond the plain language of Rule 608(b) for excluding inquires into a witness’s illegal alien status.

 
IV.
Divide and Prejudice

Even if cross-examination regarding a witness’s immigration status was sufficiently relevant on the issue of (un)truthfulness under Rule 608(b), a court would still have to foreclose such inquiry if: (1) its probative value were substantially outweighed by its prejudicial effect under Rule 403, and/or (2) it were necessary to protect the witness from harassment or undue embarrassment under Rule 611(a). Indeed, in Almeida-Perez, the Eighth Circuit acknowledged on the one hand that “the relevance of an immigration violation to character for truthfulness is at the least debatable,” and on the other that “the use of such evidence is fraught with the danger of prejudice to a defendant by introducing the possibility of invidious discrimination on the basis of alienage.” Although the Eighth Circuit ultimately found that the immigration interrogation in the case before it navigated the Rule 403 tightrope, it should not have done so based upon the tendency of such questioning to divide and prejudice jurors against the illegal alien.

In making its decision that immigration interrogation is not reversible error, the Eighth Circuit relied on precedent from the First and Second Circuits.  The First Circuit case, United States v. Cardales, is a 1999 opinion in which the appellate court found that the district court did not err by allowing the prosecution to impeach the defendant’s character based on its interrogation into his unlawful entry into Puerto Rico.¹⁰ That opinion failed to reference Rule 403.  The Eighth Circuit thus would have been better served relying upon the First Circuit’s 2004 opinion in United States v. Amaya-Manzanares because, unlike Cardales, Amaya-Manzanares actually addressed the prejudicial effect of immigration interrogation.

Amaya-Manzanares illustrates the unfair prejudicial effect of immigration interrogation.  The Amaya-Manzanares court reversed a defendant’s conviction for false use of a green card, finding that the district court erred by failing to consider such effect under the Rule 403 balancing test before allowing the prosecution to cross-examine him regarding his unlawful entry into the United States. In reversing, the First Circuit acknowledged that Amaya’s unlawful entry was relevant to the question of whether the green card was false because such entry would make “it more likely that the card is false than it would be without evidence of such entry; after all, an unlawful entrant would have use for a false green card, while a lawful entrant would have a far better chance of qualifying for a valid card.” Nonetheless, the court found that “[n]o sensible judge would be likely to let in the unlawful entry evidence to show falsity” because, among other things:

Some courts also have found that immigration interrogation violates Rule 403 and/or Rule 611(a) when the party impeached is a civil plaintiff.  For example, one case in the United States District Court for the Southern District of New York proscribed a defendant-employer from inquiring into the immigration status of a former employee who sued the company for employment discrimination.  In so doing, the court affirmed the findings of a magistrate judge who had concluded that the probative value of such interrogation would be substantially outweighed by the harm it would cause by “discouraging illegal alien workers from litigating unlawful discrimination and other employment-related claims for fear that [being forced to] publicly disclos[e] their unlawful presence in this country would subject them to deportation proceedings . . . .”¹¹

Other opinions illustrate the divisive nature of immigration interrogation.  For instance, in Salas v. Hi-Tech Erectors, an undocumented immigrant brought a personal injury action against a scaffolding contractor, and the trial court allowed the defendant to question the plaintiff and his brother regarding the plaintiff’s immigration status at length.  The Court of Appeals of Washington deemed this decision to be erroneous, concluding that “[t]he issue of immigration status is divisive and prejudicial.”¹² Because immigration interrogation is lacking in probative value and has this tendency to divide and prejudice jurors, courts should preclude it, even if it is warranted under Rule 608(a).

 
V.
Immigration Incrimination

Although most illegal immigrants enter this country without engaging in acts that might be construed as constituting crimen falsi, in some cases, immigrants do illegally enter this country through the use of some type of deceit or false statement; in other cases, immigrants not only enter this country illegally, but also commit some further immigration-related crime that has direct bearing upon their honesty.  For instance, in the previously mentioned Marquez opinion, the defendant not only entered the country illegally but also used a false Social Security number. Although in one sense such acts of crimen falsi present a stronger argument for impeachment than the bare act of entering the country illegally under Rule 608(b), the interrogator faces a common obstacle under the Rule in any of the above-mentioned scenarios: the Fifth Amendment.  If an attorney or judge seeks to impeach a witness based upon his immigration status or his alleged commission of an immigration-related crime of dishonesty (and that witness is not the subject of a deportation proceeding or a criminal defendant facing charges for one of those alleged crimes), the witness should be able to invoke his Fifth Amendment privilege against self-incrimination.  Rule 608(b) ends by cautioning that “the giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused’s or the witness’ privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness.”

When asked about his immigration status or one of these honesty-related crimes, an illegal alien should be able to invoke his Fifth Amendment privilege against self-incrimination because his response would create a “real and appreciable” hazard of incrimination and prosecution that is not “so improbable that no reasonable man would suffer it to influence his conduct.” Indeed, in an Advisory Opinion issued on January 30, 2009, the Maryland Judicial Ethics Committee instructed judges not to inquire into a defendant’s immigration status at either a bail or sentencing hearing because a defendant who entered the country illegally can be subject to criminal penalties, triggering the Fifth Amendment privilege.

 
Conclusion

As the Maryland Judicial Ethics Committee noted in its recent Advisory Opinion, “[i]t is public knowledge that there are millions of illegal aliens in the United States and that the issues arising from that fact are controversial, high-profile, and perceived by members of the public as involving national origin, race, and socioeconomic status.” ¹³ This Essay opened by asking whether a prospective juror should trust an illegal alien less than an adulterer.  According to courts allowing for immigration interrogation, the illegal alien is less deserving of a juror’s trust.  But are these decisions based on the fact that immigration is a hot-button issue, or are they based upon illegal immigrants actually being less trustworthy than those who have committed adultery, trespass, and other acts held to be non-deceitful?

Data shows that most illegal immigrants come to this country to work and to reunify their families. You are a juror.  The lawyer’s cross-examination of a first witness implies, “Be careful of that guy.  He is an illegal alien.  He is trying to provide for and pull together his family.”  The lawyer’s cross-examination of a second witness implies, “Be careful of that guy.  He cheats on his wife.  He is tearing his family apart.”  Which of these two people do you trust less?

Acknowledgments:

Copyright © 2010 Northwestern University Law Review.

The author would like to thank Daniel Garramone for his diligent research assistance.

Colin Miller is a Professor at the John Marshall University School of Law.

This Legal Workshop Editorial is based on the following Law Review Article: Colin Miller, Crossing Over: Why Attorneys (and Judges) Should Not be Able to Cross-Examine Witnesses Regarding Their Immigration Statuses for Impeachment Purposes 140 NW. L. Rev. 290.

But if citizens and noncitizens may be treated differently, how differently may they be treated? Most scholars answer this normative question on the basis of doctrine or political theory. Doctrinal accounts attempt to derive noncitizens’ rights from constitutional and legal traditions. Political theories derive noncitizens’ rights from various theoretical conceptions of democracy and citizenship.

Largely overlooked, however, are equally important descriptive questions: Why do governments, such as the U.S. government, grant any rights to noncitizens at all? Why have the rights of noncitizens improved over the years? And why do they still fall short of the rights enjoyed by citizens? If we assume that a state’s policy toward noncitizens reflects that state’s own interests, what policies would we predict states to have, and how do we explain variations across states and across time?

 
I.
The Structure of Migrants’ Rights

Migrants’ rights vary along two dimensions. First, they differ in their scope. In the United States, migrants are classified in many different ways, and each class enjoys a different bundle of rights. People who enter the country illegally have certain basic rights—to life, to property, to minimal process—but little more. People who enter legally have more generous rights, but their rights are still more limited than those of citizens. For example, tourists and the spouses of certain migrants have the basic rights to life, property, and criminal and civil process, but they do not have the right to work for pay or to remain in the country beyond the period of their visas. Migrants with work visas have the right to work in certain positions but often no right to change jobs.

Lawful permanent residents have the right to work as well as the other rights described above, but they do not enjoy the right to vote. And whereas citizens cannot be “removed” (exiled), lawful permanent residents and other migrants can be removed (deported) for committing certain crimes, posing a security threat, and so forth. Lawful permanent residents are granted an additional important right: the right to become citizens after they have resided in this country for five years, passed a citizenship exam, and satisfied certain other conditions. Some migrants, therefore, but not others, are granted the right to acquire full citizenship rights through naturalization.

Migrants’ rights also vary along a second dimension: their “strength,” or, more precisely, the difficulty or ease with which the government can change them. At one extreme, rights can be administrative: The executive branch has the sole discretion to determine the rights of migrants and can change them at any time. Rights can also be statutory: Congress determines and changes them. At the other extreme, rights can be constitutional, in which case they may be changed only by amendment or through judicial interpretation of the Constitution. Migrants enjoy all three types of rights. For example, the Constitution sets some basic minima for process rights, which statutes and administrative regulations have elaborated on and extended.

Our full-length Article investigates variations in both the content and strength of migrant rights. It also analyzes one type of right, the right to vote, that cuts across these two categories. Voting rights (as well as other rights of political participation) are important citizenship rights. The holder of voting rights has the power to affect political outcomes by influencing the selection of public officials. In one sense, voting rights are an aspect of the scope of a migrant’s rights: Migrants who can vote have rights that other migrants lack. In another sense, voting rights also affect the strength of a migrant’s rights, including the strength of the voting right itself. Although in theory Congress could eliminate a migrant’s voting right by repealing the statute that created it, doing so would be more difficult than repealing other types of migrant rights because migrants would likely vote against politicians who appeared inclined to repeal their voting rights.

In the United States, migrants rarely gain voting rights upon arrival, and when they do, they are only at the municipal level and are limited. However, in the past, migrants were granted more substantial voting rights at the state level, as we will discuss. Even today, voting rights remain an important aspect of the incentive system used to lure migrants to the United States: Migrants are promised that if they qualify for citizenship and naturalize, they will have the right to vote. We can thus think of contingent, deferred voting rights as an aspect of the bundle of migrant rights.

 
II.
An Optimal Contract Framework for Migrants’ Rights

To explain the content and strength of migrant rights, we borrow the optimal contract framework developed by economists to analyze contractual behavior. Although migrants do not enter into actual contracts with the U.S. government, their relationship with the U.S. government is analogous to a contractual relationship—both sides gain from an implicit deal. The migrant enters the United States, invests in learning English and aspects of American culture, and obtains a return on this investment in the form of higher wages, a share of public goods, and other benefits. The U.S. government—which we use as a stand-in for native citizens—gains from its contracts with migrants in diverse ways: Increased tax revenues from immigrant workers help finance public goods, immigrant labor reduces average labor costs, and the immigrants contribute to cultural and social life.

In thinking about these issues, most people focus on the question of how the government should select among migrants. The world presents a large pool of potential immigrants, and states have to figure out how to separate those immigrants it considers desirable from those it does not. This debate tends to focus on the desirability of certain characteristics such as labor skills and familial relationships with American citizens. But there is another problem of equal importance: how the “migration contract” between the migrant and the U.S. government should be designed once a particular migrant is selected. The main problem for the government is that a migrant who is highly desirable at the time of migration might become undesirable at a later time—for example, if increased unemployment during a recession makes immigrant workers less helpful to the economy. All else equal, the government would like to retain the option to remove any migrant any time events change such that the benefits from the migrant’s presence no longer exceed the costs.

However, the problem with such flexibility is that a migrant will not enter a country, or will enter but decline to sink roots in that country, if she knows that she can be removed at any time. Countries often do best when their immigrants make what we will call “country-specific investments”—like learning the dominant language and developing social networks—but a typically risk-averse migrant will not make such investments if she can be easily removed. Moreover, migrants may worry that the government will wield its removal power opportunistically, trumping up security threats or exaggerating financial downturns in order to justify deportation.

Since governments want migrants to make country-specific investments, it is in their interest to guarantee a migrant’s right to remain even if bad events occur—at least up to a point. It will therefore sometimes be in a nation’s interest to tie its own hands so that it cannot use its deportation power opportunistically. The optimal migration contract balances the government’s interest in flexibility and the migrant’s interest in tying the government’s hands. It can do so in two ways: (1) by granting migrants more or less generous rights, and (2) by making it harder or easier for the government to change those rights.

 
III.
Different Rights for Different Migrants

Our approach helps expand the possibilities for legal design by showing why different packages of rights might be conferred on different groups of migrants. Much existing scholarship suggests that there is a relatively static, hierarchical relationship among various migrants’ rights. On these accounts, rights increase in lock-step with increasing “membership” in the Receiving State. Rights also tend to be arranged hierarchically, with rights like political participation almost always associated with higher levels of membership than rights like occupational freedom. Our account abandons this idea of a lexical relationship among various migrants’ rights.

We also abandon the assumption common in the literature that all migrants should be accorded the same rights. Migrants come with various goals: Some hope to come and work in the Receiving State for a short time, others hope to remain for a long time but expect eventually to return home, and others intend to remain in the Receiving State permanently. Each of these groups of migrants will value rights differently: For some, the right to remain for a guaranteed period of time will be far more important than occupational freedom, while others will have the opposite preferences. As a result, our approach makes it possible to see why we should expect variations among migration contracts—variations that are hard to evaluate within the literature’s existing frameworks.

Our full-length Article builds on the economic approach to immigration law that we developed in an earlier article.¹ In this approach, the relationship between the Receiving State and the migrant is treated as though it were a contractual relationship, which allows one to use ideas from the optimal contract literature in economics. As in all contractual relationships, the two parties have partially overlapping interests. States gain by allowing migrants to enter, and migrants gain by entering states. But each side of the transaction does better by retaining flexibility unavailable to the other. The contracting problem is to choose “terms”—that is, immigration laws—that maximize the joint benefit.

 
IV.
The Precommitment Problem and the Optimal Migrant Contract

A central theme of our full-length Article is that the optimal migration contract between migrant and government—that is, the package of rights that the migrant receives—is shaped by a central precommitment problem: Governments seek to attract migrants with desirable skills and characteristics, but governments also want to maintain flexibility so that the migrants can be expelled or otherwise regulated if circumstances change. However, if governments maintain flexibility, migrants will be reluctant to enter and invest in their relationship with the Receiving State. The optimal migration contract depends on (and hence changes with) a host of exogenous variables. Rights will be weaker, for example, when governments expect that the risk of future adverse events is high. They will be stronger when governments gain a net benefit as migrants make country-specific investments.

Our full-length Article provides a more comprehensive treatment of these exogenous variables and the ways in which they affect the optimal contract between the migrant and the Receiving State. With an understanding of the relationship between these variables, one can explain some of the variation in the rights granted to migrants.

Acknowledgments:

Copyright © 2010 New York University Law Review.

Adam B. Cox is a Professor of Law at the University of Chicago Law School.
Eric A. Posner is the Kirkland and Ellis Professor of Law at the University of Chicago Law School

This Legal Workshop Editorial is based on the following Law Review Article: Adam B. Cox & Eric A. Posner, The Rights of Migrants: An Optimal Contract Framework, 84 N.Y.U. L. REV. 1403 (2009).

Mission:

The Legal Workshop website provides a single online forum for cutting-edge legal scholarship from the top law journals in the country.

The Legal Workshop features “op-ed” versions of the articles published by the member journals. These concise and lively pieces are written for a generalist audience, combining the best elements of print and online publication.

Each Legal Workshop Editorial undergoes the same rigorous editorial treatment and quality screening as the journals’ print content, but readers are able to offer comments and esteemed academics have the option of submitting response pieces, which are checked for citations and substance.

By aggregating the work of multiple law reviews, The Legal Workshop is able to provide frequently updated content. New article-based content is posted every Monday and most Wednesdays and Fridays. The Legal Workshop provides a one-stop forum for readers wishing to stay abreast of contemporary legal scholarship.
 

Founding Members:

New York University Law Review
Stanford Law Review
Cornell Law Review
Duke Law Journal
Georgetown Law Journal
Northwestern University Law Review
University of Chicago Law Review
 

Acknowledgments:

The generous pro bono work of David Sando, an attorney with Skadden, Arps, Slate, Meagher & Flom LLP, has been and continues to be essential to The Legal Workshop.

The idea for The Legal Workshop was originally conceived by Joe Ross, Volume 59 President of the Stanford Law Review. He and Erin Delaney, then Editor-in-Chief of the New York University Law Review, first solicited potential members for The Legal Workshop in the spring of 2007.

Editors at NYU and Stanford who have played a special role in carrying the torch include Thomas Haymore, Ben Kingsley, Matt Lawrence, Lincoln Mayer, Michael Montaño, Sam Nitze, Sean Nutall, and William Rawson.
 

Recommended Browsers:

For Mac:  Safari 3.2.1. and Firefox 3.0.8.
For PC:  Safari 3.2.2., Firefox 3.0.8., and Internet Explorer 8

Thanks for visiting our new website. We hope you enjoy it.