Undocumented Immigrants and Due Process Rights

 Posted on September 05, 2018 in Immigration

On June 23, 2018, the President Trump tweeted what appears to be a message advocating for the blanket deprivation of due process rights for all undocumented immigrants, which would, in his mind, also include asylum seekers. As it stands under the current metrics of U.S. law, such a proposal is both illegal and unconstitutional, to say nothing of utterly morally indefensible. However, it does raise an important point: Everyone should be aware of the due process rights they possess under relevant law. Knowing your rights may save you one day.

Everyone Has Due Process Rights

While many U.S. citizens may be unaware of the fact, all immigrants (even the undocumented) have due process rights. The Fifth and Fourteenth Amendments have been ruled to apply to everyone within the country’s borders, interpreted through a multitude of cases — most recently Zadvydas v Davis (2001) in which the Supreme Court held that the due process clause applies to “all persons within the United States.” Not all the rights granted to a U.S. citizen or documented immigrant may be granted to the undocumented — voting is prohibited, obviously, and they are not eligible for most federal benefits, though documented immigrants may be.

One important caveat to this is that the individualized due process guarantees under the U.S. Constitution, such as the right to face one’s accuser (contained in the Confrontation Clause of the Sixth Amendment), have been ruled only to apply to civil and criminal matters, but not to immigration. Immigration courts are peculiar and do not fit the mold of most courts created under the Constitution’s authority. For example, this is why so many immigrants do not have an attorney — unlike in U.S. criminal matters, no law exists to require they be provided with one. They may engage one, but with their own funds. It makes a difference.

The Exception: Expedited Removal

There is one procedure that has been used by the U.S. government to facilitate removal without due process for people who are undocumented or who have committed some type of fraud. Expedited removal is a process that was implemented in 1996, after the passage of the Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA), and originally it permitted government authorities to immediately turn around any foreign national who appeared at a U.S. border without documentation. The person would either be put right back on the bus or other transport, or detained until he or she could be safely deported.

As years advanced, the power of expedited removal was augmented and boosted until today’s state of affairs. Nowadays, not only can any low-level immigration officer use expedited removal to detain and deport any undocumented person at the border, an immigration officer may also use this power if undocumented people who have been here less than 14 days are apprehended anywhere within 100 miles of a U.S. border. This is a terrifying state of affairs for any undocumented person, as it means that immigration authorities are able, in many circumstances, to simply pick people up off the street. Chicago is within the 100 mile zone, since water is considered a border. Due process concerns are considered secondary within the zone, in the alleged interests of national security.

Call an Experienced Illinois Immigration Lawyer

Contrary to what media may have to say, it is impossible for the president to unilaterally end due process rights for immigrants, but it is still imperative to know what yours are. If you have questions, contact a passionate Chicago-area deportation defense attorney at Mevorah & Giglio Law Offices as soon as possible. We want to work with you and help protect your interests in this trying time. Contact our office today for a free consultation.

Sources:

https://www.law.cornell.edu/supct/html/99-7791.ZO.html

https://www.americanimmigrationcouncil.org/research/primer-expedited-removal