Immigration FAQ

What Rights Do Aliens Have in Removal Proceedings?

Removal proceedings are instigated by the US government's Department of Homeland Security when an alien has entered or attempted to enter the country illegally or has violated US laws. US courts have held that aliens in these proceedings are afforded due process rights and are entitled to the fundamental fairness protections of the Fifth Amendment of the US Constitution. Below is a summary of these rights. Aliens should not take removal proceedings lightly, given the severity of the consequences. For more information on your legal rights in removal proceedings, contact an experienced immigration lawyer today.

Right to Notice

Once the Department of Homeland Security has decided to seek removal of an alien, a Notice to Appear will be served to the alien. The Notice will explain the charges against the alien and the alien's rights in these proceedings. The Notice also will contain the date, time and location of the first hearing before an immigration judge, which must take place within 10 days of service of the notice. The Notice to Appear must meet certain legal requirements in order to be properly served upon the alien. The Notice can be hand delivered or sent through the mail. The alien is responsible for making sure the US government has his or her current address. Failure to update a changed address is not a valid reason for an alien not to have received the Notice to Appear.

Right to Representation

Among the most important rights of an alien facing deportation is the right to legal representation. Aliens have the right to legal counsel at all stages of removal proceedings. The alien will be provided a list of local attorneys who provide representation at reduced or no fees (pro bono).

However, aliens in removal proceedings do not have the right to appointed counsel. Under US law, the right to appointed counsel is reserved for those facing criminal charges. Removal proceedings, despite the severe consequences of a decision to deport an alien, are considered civil proceedings. This means that the alien must be able to pay for the legal representation, or find an immigration attorney willing to donate his or her time. Aliens who can show they are indigent may be able to make a case for appointed representation, but courts have been split on whether or not they will allow this.

Right to Present Evidence

Aliens are allowed to present evidence in their defense. The evidence must be material and relevant to either the issue of the alien's deportability or the issue of the alien receiving discretionary relief from the court (i.e. another option besides being forcibly removed from the country). The evidence can include testimony during the hearing or the introduction of documents, written interrogatories, depositions or subpoenas. Like all of the alien's rights in removal proceedings, the right to present evidence can be waived. If the alien does not request the right to present evidence or does not present evidence, the right is considered waived.

Right to Cross-Examine

The alien also has the right to cross-examine government witnesses and review the evidence against him or her. This right does not extend to any information that is considered sensitive or confidential information for national security reasons. The alien should assert his or her right to cross-examine immediately after a government witness has testified or the government has introduced a document or written statement.

Right to Appeal

If the immigration judge finds for the government and issues an order for the alien to be deported, the alien has a limited amount of time to appeal the decision to the Bureau of Immigration Appeals (BIA). If the BIA also finds against the alien, the alien has the option of appealing the case again to the appropriate US Circuit Court of Appeals. Finally, if the alien receives a negative decision from the circuit court, the alien can appeal the case to the US Supreme Court.

The majority of aliens fail to retain legal representation for removal proceedings. If an alien is ordered removed from the country, he or she may never be allowed to return to the United States, or at best, may be allowed to return after 5 years. It is vital to seek experienced legal representation for immigration matters. If you or a loved one is facing removal proceedings, contact a knowledgeable immigration attorney in your area today.

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DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

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