Tiffany J. Lieu
92 Geo. Wash. L. Rev. 580
Rebuttable presumptions—ones that offer the opportunity to overcome a presumed fact—are a common fixture in U.S. civil law. Some rebuttable presumptions, however, are not in fact rebuttable at all and are instead rebuttable in name only. Nonetheless, courts often take at face value a presumption’s claim to be rebuttable when reviewing challenges to such presumptions. This Article contends that such so-called rebuttable presumptions should be recognized as a distinct category of presumptions: effectively irrebuttable presumptions. It argues that effectively irrebuttable presumptions violate constitutional due process norms because, although they offer proceedings, they deprive process. Part I examines a so-called rebuttable presumption in the immigration context, which, once triggered, precludes individuals from applying for persecution-based forms of relief. Part II proffers a four-part framework for defining effectively irrebuttable presumptions, which looks at the structure of the presumption, the ways it has (and has not) been implemented, and the number of cases that have successfully rebutted it. Part III argues that such effectively irrebuttable presumptions offend procedural due process norms. Applying two procedural due process frameworks, it argues that effectively irrebuttable presumptions violate the axiomatic guarantee of a meaningful opportunity to be heard at a full and fair hearing. Part IV then sets forth recommendations for procedural safeguards necessary to identify and bring effectively irrebuttable presumptions in line with due process norms. This Article focuses on the constitutional dilemma effectively irrebuttable presumptions pose in the immigration context, but its implications may reach broadly to other civil contexts.
