Immigrant deported based partly on invoking 5th Amendment

In Murdock v. Attorney General, No. 04-2338 (3d Cir. Mar. 10, 2005) (not precedential), the Third Circuit allowed an immigrant to be deported partly based on how he invoked his Fifth Amendment rights.

One question was whether the government satisfied its burden of proving the immigrant's alienage by clear, unequivocal, and convincing evidence. The Third Circuit ruled that:

Murdock's refusal to testify entitled the Immigration Judge to draw a negative inference that any answer he may have given would have been adverse to his interests and to conclude that the statement was reliable and trustworthy. United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 154 (1923).

The eighty-year old Bilokumsky case, however, focused on how the immigrant could not claim the Fifth Amendment regading alienage when his only concern was a criminal charge for sedition, a charge that had nothing to do with alienage. Therefore, Bilokumsky is rooted in how the 5th Amendment claim was improper, not that a proper invocation allows drawing a negative inference.

The Third Circuit also set forth its rule about how almost anything is admissible in immigration proceedings. An immigration form can be convincing evidence if the statement is sworn, signed by an ICE official and a Senior Immigration Inspector, and the [formerly-INS] District Director certifies that it is the original or a copy from [formerly-INS]'s records.

I think the decision can be attacked on the grounds that the immigrant properly invoked his 5th Amendment right and the exclusionary rule does not apply in a 2005 deportation proceeding (the opposite was true in 1923, as stated in the Supreme Court's decision).