Deportation Proceedings – Criminal, Civil, or Both?

In instances where persons are suspected of being in this country illegally,  the deportation process may be prescribed. In discussing the process, we understand that this process includes taking these individuals into custody. In essence, the subsequent arrest (or detainment) manifests the deprivation of the arrestee’s ability to move about freely as the individual is being held (presumably) against his will.  Immigration and Customs Enforcement officials (ICE) may hold the individual for up to forty-eight hours while the agency decides whether to pursue a deportation action against the individual. After the forty-eight hour hold, ICE may opt to keep the individual in custody as the agency proceeds with the deportation action. Even though factors such as the arrest for breaking the law (entering and or being in the country illegally), coupled with the state imposed prohibition on individual liberty to move freely about, the State action against the individual is deemed to be a civil and not a criminal matter.

The rationale for this civil action classification is that the goal of the deportation hearing is to determine whether the individual has the legal right to remain in the country and no punitive action is said to be associated with the event. However, factors exist which weigh against the declaration that the deportation process is a civil matter. Because of factors such as the deprivation of liberty during the deportation process, coupled with the search and seizure of the individual’s person and property when being suspected of illegal entry and the fact that retribution is prescribed by law when the individual “enters or attempts to enter the United States in a manner other than as designated by immigration officers, immigration law which has at its core a punitive component cannot be classified as a civil proceeding. It must be classified as a criminal proceeding. 

Legal and Constitutional Concerns

To begin this discussion, we must consider some legal and Constitutional concerns. Criminal matters are usually matters where a crime has been committed and the victim of the crime is the society at large. [1] People convicted of charges in a criminal matter are subject to sentencing for their crimes. Criminal law defines goals of sentencing to be: (1) rehabilitation, (2) retribution, (3) incapacitation and (4) deterrence. [2] When a criminal statute is established, it will list the offense and state what actions or inactions would give rise to a person being guilty of committing the offense. The statute will also state the punishment or retribution one is subject to upon conviction. We differentiate criminal actions from civil actions in that liability under a criminal action usually results in some sort of deprivation of liberty such as incarceration or probation. In addition, criminal liability could include a monetary fine. [3]

Civil matters are usually matters where a dispute arises between parties as to the rights and responsibilities granted to or owed to one another. [4] The liabilities in a civil matter are less severe in that with few exceptions, the penalty for a conviction in a civil matter usually does not demand a deprivation of one’s liberty. In fact, the customary liability one is subjected to when a judgment is against that person consists of the payment of a monetary award, or a court ordering the person to either perform or refrain from performing an act. Nevertheless, when one is deprived of liberty under a civil action, the deprivation cannot be punitive in nature because for it to be such, it would fall outside of the scope and intent of a civil proceeding and would fall under the goal of criminal sentencing. Because of this, court proceedings where the outcome of the proceeding metes out retribution or punishment cannot be considered as civil in nature, but rather such a proceeding would fall under the umbrella of a criminal and not a civil action. 

Under 8 U.S. Code § 1325(a), any alien who:

  1. enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both. [5]

An examination of the language in § 1325(a) provides a clear statement that retribution or punishment attaches to any alien who illegally enters or attempts to illegally enter the United States. The punishment consists of a fine, imprisonment or both. Because of this fact, a person arrested and charged for a violation of this immigration law section cannot have the matter adjudicated in a Civil Court. The court must be a Criminal Court. 

Yet, there are instances where courts have held that even though the end result of a civil procedure was a deprivation of one’s liberty, it was indeed proper to classify the proceeding as civil and not criminal. One such instance is in Allen, where the question for the Court to consider was “whether the proceedings under the Illinois Sexually Dangerous Persons Act (ISDPA) were criminal within the meaning of the Fifth Amendment right against self-incrimination.” [6] When the Court ordered Allen to undergo a psychiatric evaluation to determine whether he was a sexually dangerous person pursuant to the ISDPA, Allen agreed to the evaluation. However, Allen subsequently claimed that since the evaluation would be used to possibly place him in confinement and deprive him of his liberty, the proceeding was criminal and not civil. Because of this fact, Allen claims that the privilege of invoking Fifth Amendment protections should have been available to him. Thus, all statements made by him during the psychological evaluation must be excluded. [7] After considering the argument, the Allen Court held that while Allen’s liberty was in jeopardy, the deprivation of liberty Allen faced was not punitive in nature. Rather, confining Allen to a correctional institution was to Allen’s benefit in that Allen would receive much needed psychological treatment and therapy for his deteriorated mental state which resulted in his being classified as a sexually dangerous individual. [8] Without the punishment or retribution factor, the Court held that the proceeding was civil and not criminal. 

Clearly, Allen is distinguished from a deportation procedure pursuant to § 1325(a) in that the punitive element does not exist in Allen, but it does exist in a §1325(a) prosecution. Therefore, while the Court was correct in holding that Allen was properly classified as a civil matter, the Court also supported my assertion that deportation proceedings based on immigration law which has at its core a punitive component cannot be civil proceedings, but are criminal proceedings. 

In criminal proceedings the victim is society at large. Because it is not practical for each individual citizen to cry foul when a crime is committed, the State, while yielding tremendous power and influence, stands in place of the citizenry to prosecute criminal acts. The Constitution, in turn also stands in place of the citizen as a force to mitigate the possibility of the State using her overwhelming power and influence to unjustly deprive the citizenry of certain rights, privileges, or property without due process of the law. [9] To illustrate this principle, we again look to Allen. In Allen, the issue was whether Fifth Amendment protections against self-incrimination could rightfully be invoked. [10] The Fifth Amendment provides that “no person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.” [11] If the proceeding in Allen was held to be criminal instead of civil, Mr. Allen would likely have prevailed in his argument and the statements he made during his psychological evaluation may have been excluded. This may have resulted in no confinement or deprivation of liberty. Instead, the Court held that the proceeding was in fact a civil matter, negating the Fifth Amendment claims put forth by Mr. Allen. 

The holding in Allen can be applied to a deportation case such as a § 1325(a) case, when the immigration officials use a person’s silence or refusal to answer questions as the basis for forming probable cause to detain the individual as a suspected undocumented immigrant. If there was a right to remain silent, it seems there would be a plethora of challenges to the appropriateness of law enforcement officials considering use of a Constitutionally guaranteed privilege as the basis to claim probable cause does exist for a subsequent deprivation of one’s liberty to effect a immigration inspection. [12] To do so implies that one places himself in some degree of jeopardy by law enforcement officials when one decides to exercise Constitutional privileges. 

To further illustrate this point, we can look to an incident between Shane Parmely and the U.S. Border Patrol. [13] When Parmely was stopped at a checkpoint in New Mexico by Border Patrol agents, they asked Parmely whether she was a U.S. citizen. Parmely refused to answer questions related to her citizenship status. Because she decided to remain silent about her status, the Border Patrol agent informed her that she was being detained for an immigration inspection. This inspection resulted in a deprivation of her liberty, which lasted about one hour. During this time, the conversation between Parmely and the agent seemingly morphed into a debate about the appropriateness of asking her questions about her citizenship status and whether or not she would answer the agent’s citizenship status questions. 

During the encounter, the agents did not obtain any information about Parmely’s citizenship status and eventually allowed Parmely to go free without her answering the citizenship status questions.  When considering this event and the fact that Parmely was detained for not answering the citizenship status question, it seems reasonable to assert that it is likely that Parmely was detained as punishment for not answering the agent’s question. Had the basis for Border Patrol checkpoints been to enforce immigration violations that were classified as criminal in nature, it is likely that because the Fifth Amendment right against self-incrimination would have been available to invoke, Parmely’s refusal to answer questions could not have provided the basis for probable cause to detain her for the immigration inspection since the act of remaining silent would have been protected under the Fifth Amendment. 

The last Constitutional concern I will address is Fourteen Amendment Due Process and Equal Protection clauses as they relate to deportation proceedings. The Fourteenth Amendment states that “no state shall deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” [14] This Constitutional provision presents a dilemma in that during a criminal prosecution, there is a retributive, punitive liability. Because of the threat of punishment, the Fourteenth Amendment demands that before a person can be convicted and suffer retribution, due process must take place. Due process must include all applicable Constitutional rights and privileges one can exercise to defend against any and all charges. Yet, while in the case of a § 1325(a) prosecution where the statute clearly expresses its identity as a criminal statute, we are charged to hold that the basis of the prosecution is a civil matter. Because of this, the question arises as to how one can be convicted under § 1325(a) and sentenced to six months in jail without being afforded the opportunity to exercise the Constitutional protections traditionally afforded to any person in jeopardy of serving a jail times? The issue gets even trickier. For instance, when we must discern between “unlawful presence” and “unlawful entry,” we must keep in mind that unlawful presence does not necessarily mean that an unlawful entry has occurred. Unlawful presence is classified as a civil matter. However, unlawful entry is criminal. But, even though one’s unlawful entry is criminal, the act of maintaining an unlawful presence as a result of that unlawful entry is not criminal. [15] In addition, depending on the circumstances, unlawful reentry after a deportation order can be classified as a criminal act. 

When attempting to discern whether or not the immigration statute is criminal or civil. Allen tells us that the best way to make a determination is to look at the statutory construction. For instance, in the case of § 1325(a) the construction of the statute clearly identifies itself as a criminal statute in that it calls for a punitive jail term of not more than six months. [16] In contrast, § 1325(b) is clearly constructed as a civil statute in that it calls for civil penalties or sanctions for a violation of the statute. [17] Ward delves further in exploring the criminal and civil construction by looking into the intent of Congress when establishing the punitive mechanism of the statute. [18] At last Ward solidifies the assertion in this discussion that deportation proceedings are criminal in nature. Ward accomplishes this not by definitively stating that deportation processes are criminal. Rather, Ward states that even when Congress has shown its intent on making the statute civil in nature, a test for the Constitutionality of the statute to present itself as a civil statute which negates many of the Constitutional due process provisions required to be manifest in criminal prosecutions is called for when the punitive scheme of the statute was so punitive in its purpose or effect, as to negate the intentions of Congress. [19] Yet, a successful challenge to the Constitutionality of these civil statues based on the punitive scheme is no walk in the park. Proof of the punitive scheme being outside of the purpose or effect of the statute must be beyond reproach. It must be so clear as to be able to transform what was meant to be a civil remedy into a criminal penalty. [20]

Clearly, the State benefits in making deportation proceedings civil matters. Because many of the Constitutional protections such as the Fifth Amendment right against self-incrimination and sixth Amendment trial by jury provisions are requirements in criminal proceedings and not in civil proceedings, many deportation proceedings are able to move through the system quickly and with less cost than their criminal counterparts. Because of this fact, we can see why most deportation proceedings are civil matters.  Yet, Because of factors such as the deprivation of liberty during the deportation process, coupled with the search and seizure of the individual’s person and property when being suspected of illegal entry and the fact that retribution is prescribed by law when the individual “enters or attempts to enter the United States in a manner other than as designated by immigration officers, the classification of deportation proceedings is punitive in nature and cannot be classified as a civil matter.


[1] The Differences between a Criminal Case and a Civil Case, Findlaw, (last visited Jan 21, 2018).

[2] John L. Worrall, Criminal Procedure: From First Contact to Appeal 432 (3rd ed. 2010).

[3] Findlaw, supra note 1.

[4] Id.

[5] 8 U.S. Code § 1325(a).

[6] Allen v. Illinois, 478 U.S. 364 (1986).

[7] Id. at 370.

[8] Id. at 373.

[9] The Bill of Rights, National Archives and Records Administration, (last visited Jan 21, 2018). 

[10] See supra text accompanying note 6.

[11] U.S. Const. amend. V.

[12] See id. § 1325(a).

[13] San Diego teacher detained after refusing to answer Border Patrol questions at checkpoint -LA Times, Los Angeles Times, (last visited Jan 21, 2018). 

[14] U.S. Const. amend. XIV, § 1.


[16] Allen v. Illinois, 478 U.S. 369 (1986).

[17] 8 U.S. Code § 1325(b).

[18] United States v. Ward, 448 US 242 (1980).

[19] Id. at 249. 

[20] Rex Trailer Co. v. United States, 350 US 148 (1956).

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