Criminal Defense of Immigrants

(B)  Procedure.  The statute provides for a hearing, followed by a cease and desist order with a civil monetary penalty, followed by administrative appellate review, and finally judicial review in the federal court of appeals.[175]  After judicial review, the order would be final, and deportation proceedings could be initiated on the basis of the final administrative order.[176]  The administrative law judge need only find the necessary facts by a “preponderance of the evidence” that an alien has committed document fraud.[177]  Counsel can argue that an order in a civil document fraud case, based on a preponderance of the evidence, cannot be res judicata for a removal order, because strong constitutional considerations requiring proof by clear and convincing evidence in deportation cases preclude a document fraud violation from automatically making a noncitizen removable.[178]

[175] INA § § 274C(d)(2)-(5), 8 U.S.C. § § 1324c(d)(2)-(5).

[176] INA § 237(a)(3)(C)(i), 8 U.S.C. § 1227(a)(3)(C)(i). 

[177] INA § 274C(d)(2)(C), 8 U.S.C. § 1324c(d)(2)(C). See C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § 111.07[4][f][ii][A] (2004).

[178] Cf. Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 Yale L.J. 545, 572 (1990) (Supreme Court in Woodby v. INS, 385 U.S. 276 (1966), was guided by a “strong constitutional due process norm”).