Immigration Article of the Day: Presumed Guilty: “Illegal Alien” Evidence and the Rights of Non-Citizen Defendants by Christian Sundquist 

Abstract

Dangerous political rhetoric demonizing migrants and racialized persons has altered social norms regarding the acceptability of racism while ushering in a new era of white nationalism across the world. The increasing normalization of racism has shaken bedrock American constitutional principles of equality and fair treatment under the law as it has become commonplace for courts to admit prejudicial evidence of a Latinx criminal defendant’s lack of citizenship and undocumented immigration status in nonimmigration proceedings. Relying on recent empirical research on juror cognitive biases this Article argues that the strategic use of a criminal defendant’s immigration and citizenship status to signify criminality and untruthfulness undermines the defendant’s constitutional rights to a fair trial and equal application of our evidentiary laws while reifying racialized stereotypes about undocumented non-citizens.

KJ