Right to Due Process


Foto de Ingo Joseph en Pexels

Immigrants have the right to due process and deportation proceedings that are fair:


International Covenant on Civil and Political Rights, Article 13: An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.


American Convention on Human Rights, Article 8(1): Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.


The Fifth Amendment says that no one shall be "deprived of life, liberty or property without due process of law." The Fourteenth Amendment, ratified in 1868, also has the Due Process Clause, which describes a legal obligation of all states. These words have as their central promise an assurance that all levels of government must operate within the law and provide fair procedures.


The 1996 Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act, allows immigrants convicted of a crime, including minor crimes, to be subject to mandatory deportation after they serve their sentences. Under these laws, they are not given a full hearing where they can explain their reasons for staying in the country. Since 1996 those seeking to enter the U.S. have been subject to “expedited removal” if they lack proper documentation. It permits immigration authorities to deport people without a hearing, a lawyer or a right of appeal under certain conditions.


Human rights law recognizes that immigrants should follow the laws of their host countries but the right to live in a country should not be taken away without providing fundamental due process protections, which includes the right to a fair hearing.


What kind of due process do undocumented immigrants get?


Immigrants ordered to leave the country can fight deportation through civil proceedings involving immigration courts and judges. They can present testimony and evidence before an immigration judge, like a trial. They can be represented by a lawyer and can appeal unfavorable

decisions to the Board of Immigration Appeals. Even if immigrants are ordered to be deported by the immigration appeals board, they can challenge the rulings again in front of a court.


Can a new immigrant avoid expedited removal?


Yes, by seeking asylum. Officers at the United States Citizenship and Immigration Services will review cases to decide whether applicants have a credible fear of persecution back home. If so, they are placed in the immigration court system for a fuller consideration. If officers decide that sylum seekers have no credible fear and that they should be deported, they still have a right to appeal that denial to an immigration judge.