The federal government decided it didn’t care what the state judge said, and ordered my client deported anyway, based on the testimony of another family member and the fact that she had lived in Mexico as a child.
I lost the case—but not because it’s impossible to do fact-finding about decades-old events. No one on either side would have ever suggested that the ordinary process of calling witnesses, asking questions, and examining documents was somehow inapplicable. And no one would have suggested that there was “no point” in talking to third-party witnesses or subpoenaing documents; or proposed that we just throw up one representative from each side, put on some “he said, she said,” and then decide whom to believe.
And that case was not unusual. There are dozens if not hundreds of pending cases in which the federal government requires a person to prove where he or she was born—a fact which, by definition, none of us remembers.
Here’s another example. The Department of Justice has a whole section dedicated to identifying World War II–era Nazis who obtained U.S. citizenship by concealing their wartime activities. I worked on one such case in 2006—60 years after the end of the war.
Here’s one more. In California, victims of childhood sexual abuse have until age 26 to bring civil lawsuits. And they can go to the court, in certain circumstances, for permission to bring the cases even later. I once had a case involving a claim of alleged sexual assault that was more than 50 years old.
Allegations of misconduct create serious repercussions for those accused, even if the allegations don’t result in a conviction. That’s why, in some contexts, our laws provide procedural vehicles for a person to affirmatively prove his or her innocence, erasing or mitigating those collateral consequences. California, where I practice, has a statute that allows a person to go to court and request a “judicial finding of factual innocence” if he’s been accused of a crime but not convicted, whether the charges were dropped, he was acquitted at trial, or the statute of limitations ran out.
Further reading: The 17 most striking moments from the Kavanaugh hearing
It’s like a criminal trial but with the roles reversed: The (formerly) accused puts on his case, with witnesses, physical evidence, documents, and so forth, and has the burden of convincing the court beyond a reasonable doubt that he is factually innocent. The petitioner has to show that “no reasonable cause exists” to believe that he committed the offense. If the petitioner succeeds, then the state has to seal and destroy all the police and court records. It’s as if, for legal purposes, the accusation was never made.
The law sets a high bar for findings of factual innocence, and most applications are denied. But I’ve succeeded—twice—in cases involving clients falsely accused of sexual assault. All I did was use the ordinary tools of investigation and litigation to amass documentary and testimonial evidence, I presented my case to the court in writing, and then I appeared at a hearing and argued.