Restoring the Balance Between Immigration Self-Reporting Requirements and the Fifth Amendment

Authors

Sheena Kelley

Document Type

Note

Abstract

(Excerpt)

This Note argues that the test currently relied on to maintain this balance is no longer effective and must be replaced. Part I analyzes the history of immigration law and limitations on Fifth Amendment protections. Part I also examines the legislative history of 8 U.S.C. § 1324(a)(2)(B)(iii) and its intended use as an anti-smuggling statute. Part II discusses the factors used by courts to evaluate Fifth Amendment claims and courts’ treatment of various reporting provisions. This Part also discusses how these factors, as they are currently applied by the courts, no longer adequately protect individuals’ Fifth Amendment rights. Part III illustrates the inadequacies in the current application of these factors by applying them to the “bring and present” requirement of 8 U.S.C. § 1324(a)(2)(B)(iii). Part IV suggests that the factors evaluated by courts must be fundamentally altered to guarantee the continued protection of the Fifth Amendment privilege to be free from compelled selfincrimination. This Part suggests that a more effective test would restrict the evaluation of the nature of inquiry to the statute itself and would require courts to conduct a more structured evaluation of the group targeted by the statute.