The Fifth Amendment privilege against self-incrimination and fear of foreign prosecution

Article Abstract:

The Fifth Amendment privilege against self-incrimination should be interpreted as a protection against government overreaching and not as an individual right when raised by individuals fearing prosecution in foreign countries but not in the US. Individuals subject only to deportation by the US may also be subject to criminal prosecution in the countries they return to. The US Supreme Court's "real and substantial fear" test has been applied inconsistently by the US Courts of Appeals for the Fourth and 11th Circuits. By focusing on the intent of the privilege, to limit government activities, the problems of the "real and substantial" test can be avoided.

International aspects, Criminal procedure, Self-incrimination, Self incrimination, international

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The curious evolution of immigration law: procedural surrogates for substantive constitutional rights

Article Abstract:

The plenary power doctrine has blocked the extension of constitutional rights to aliens in immigration law, but courts have created a procedural due process exception as a substitute for substantive judicial review. The use of procedural due process has predominated especially in cases involving equal protection and freedom from detention. The reliance on procedural due process is a result of the tension between the plenary power doctrine in immigration and the extension of rights to aliens in other legal contexts. The plenary power doctrine is out of step with other areas of law and should be abandoned.

Analysis, Due process of law, Procedure (Law)

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In through the out door? Retaining judicial review for deported lawful permanent resident aliens

Article Abstract:

The author discusses federal court jurisdiction over claims by deported permanent resident aliens who have been removed following conviction for criminal offenses. Revisions to US immigration law in 1996 limiting judicial review in deportation cases are analyzed.

United States, Federal jurisdiction

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