William & Mary Bill of Rights Journal


Mary Holper


Part I of the Article outlines the police report problem by discussing the four situations in which police reports are used in immigration court, why police reports are unreliable, and the scope of the problem. Part II discusses criminal law’s treatment of police reports, focusing on the Confrontation Clause of the Sixth Amendment, which provides the constitutional justification for excluding police reports in criminal cases. Part III discusses the use of hearsay evidence in immigration cases, where hearsay is allowed due to the characterization of removal proceedings as civil, not criminal. While there has been a trend to reject unreliable documents under the due process fundamental fairness test in immigration cases, this trend has stopped short when an immigration judge relies on a police report, especially when making a negative discretionary decision. Reviewing courts are more likely to critique immigration judges’ reliance on police reports to establish removability, however. The Article offers an explanation of this disparate treatment: as courts and the agency began to reject the categorical approach —the time-honored, elements-based method for determining whether a conviction can lead to deportation —the police report problem was exposed, causing courts to critique the use of police reports to establish facts in removal cases.

Part IV examines the right to confront police officers by exploring three different ways to conceptualize removal proceedings: (1) in light of the Supreme Court’s 2010 decision in Padilla v.Kentucky, deportation should be considered punishment, thus guaranteeing the application of the Sixth Amendment Confrontation Clause; (2) under the Mathews v. Eldridge case-by-case balancing test of the Due Process Clause, courts should balance the interests at stake and adopt a right to confrontation and cross-examination of police officers in immigration court; and (3) if deportation is conceptualized as “quasi-criminal” and thus deserving of some, but not all, of the protections guaranteed at a criminal trial, one of those protections should be the right to confront one’s accuser, especially when the accuser is a police officer.

Part V explores the proposed right to confrontation in immigration court: that immigration judges not admit police reports into evidence against a noncitizen unless the police officers are subject to cross-examination.