What Is “Due Process” for Immigrants?

Immigrants to the U.S. face a wide array of federal laws, regulations, rules and policies, but only one U.S. Constitution. One of its amendments impacts what procedures and process can be used when the federal government decides the status of the person. For someone in Kentucky seeking help in an immigration matter, constitutional protections may be critical for a positive outcome.

“Due process” is a phrase in the 14th Amendment to the U.S. Constitution. It was originally added to protect the rights of ex-slaves who were emancipated during and after the Civil War. It also applies to non-U.S. citizens who enter or are seeking to immigrate into the U.S. What process is due depends on the situation.

The U.S. Supreme Court has ruled that due process permits people to exercise their legal rights in a court proceeding permitted by American law. These parties can contest an action proposed by the government in front of a neutral decision maker, like a judge, but it need not be a judge to comply with constitutional protections.

Undocumented immigrants have a right to due process. Anyone on U.S. soil is protected by the constitution’s stated right to due process — even a person who illegally entered or stayed in the country. Generally those inside our borders enjoy greater legal protections than those at the border.

How much process is “due” depends on the situation. Those coming into the U.S. illegally and are ordered deported have a right to appeal those decisions. But Congress can create limited procedures that are constitutionally sufficient for noncitizens detained at the border.

Immigrants who are ordered to leave the country can fight deportation through civil proceedings involving immigration courts and judges overseen by the Justice Department. Individuals in such situations must secure legal representation from a skilled Kentucky deportation lawyer who can guide them through the process. With the right attorney, immigrants have the opportunity to appeal unfavorable decisions to the Board of Immigration Appeals, ensuring a comprehensive and diligent defense strategy.

If the appeals board agrees that the immigrant should be deported, he or she may be able to appeal that ruling to federal court. This could potentially then reach a federal circuit court of appeals, then the U.S. Supreme Court. The process could take years, because there are so many immigration cases in particular and federal appellate cases in general.

An immigrant could be deported without a hearing, a lawyer or a right of appeal under limited circumstances, a process known as expedited removal. Under current policy this applies to undocumented migrants found within a hundred miles of the border, within two weeks of entering the U.S.

This can be avoided if the person seeks asylum. If so, a United States Citizenship and Immigration Services officer reviews the case and decides whether the applicant has a credible fear of persecution in the home country. If so, the person receives fuller consideration of their request. If not, that decision can be appealed to an immigration judge.

Immigration law can be complex given the facts of a person’s situation, the applicable laws, what processes and procedures are used and whether they’re sufficient under the constitution. All this adds up to the fact that an attorney could be extremely helpful in an immigration matter.

If you or a loved one lives in Fayette County, Kentucky, or the surrounding area, and you have questions about immigration law or need representation in an immigration matter, the experienced team at Carman & Fullerton, your trusted Lexington immigration lawyer, can help you, whether you speak English, Spanish or another language. Your future and that of your family is at stake, so contact us today.

Attorney Kirby J. Fullerton

Mr. Fullerton’s practice is focused on immigration law. He speaks Spanish, and represents clients in cases before the immigration courts and the Board of Immigration Appeals. He began his career practicing criminal defense, and understands how matters in criminal courts can affect a client’s immigration status. [Attorney Bio]