Immigrants Have Rights: Due Process Against ICE

 Posted on March 30, 2018 in Immigration

In this day and age, immigration enforcement has taken on an angle that many see as cruel. Media in the U.S. and in other countries have spoken up regarding the behavior of Immigration & Customs Enforcement (ICE), and immigrant rights groups in the country are making certain that the issue remains at the forefront of discussion.

However, in the midst of the actions being taken against both documented and undocumented immigrants, it is imperative to remember that immigrants, especially the undocumented, have rights. You are entitled to due process, even if you are in ICE custody.

Due Process Rights Are Clear ...

Despite the protestations of talk radio and certain media and government outlets, many rights have been held to apply to the undocumented, mostly through jurisprudence rather than legislation. For example, the Supreme Court case of Plyler v. Doe (1982) grants all children the right to attend public school, regardless of immigration status, and the ruling in Almeida-Sanchez v. U.S. (1973) applies all First Amendment protections, including freedom of assembly, to the undocumented.

Immigrants also have due process rights, in addition to the general rights granted to all. The Fourteenth Amendment, with its due process clause and equal protection guarantees, has been held to apply to everyone within U.S. borders, most notably in Zadvydas v. Davis (2001). The Fourth Amendment against unreasonable searches and seizures has also been applied to the undocumented, as well as the Sixth Amendment right to a speedy trial. In criminal matters, all defendants, even undocumented immigrants, are entitled to be Mirandized and have the services of an attorney at their disposal.

… Less So in Immigration Court

While due process rights are guaranteed to all by the Constitution in criminal court, the issue is more clouded in immigration court. The Supreme Court case of Yamataya v. Fisher (1903) explicitly held that anyone facing deportation was entitled to a hearing which meets certain due process standards, though these standards do not equal those demanded in criminal court. For example, one may have an attorney present in immigration court; however, since immigration violations are civil, not criminal, the Sixth Amendment right to be granted an attorney at government expense does not apply.

Another significant issue that has been before the Supreme Court is the issue of periodic bond hearings for those detained. While the Court seems amenable to allowing such hearings as of this writing, they do not have to, because there is simply no law which requires granting of such a hearing—Yamataya does not entitle an immigrant to bond hearings, merely to a hearing before a judge—and review in federal court if necessary—on the actual deportation issue.

Still, proponents argue that it is a due process issue to keep people in detention for as long as many have remained locked up at Dilley and other immigration detention centers, especially when allegations of inhumane treatment appear normal. One must adjust their approach if the court eventually decrees no bond hearings are necessary.

Contact an Experienced Attorney

While the U.S. government does not have to provide immigrants with attorneys, the rate of success in immigration court is substantially higher if you are able to bring one with you. The zealous Chicago-area deportation defense lawyers at Mevorah & Giglio Law Offices have experience in such cases, and we will fight for you. Call today to set up an appointment.