Immigration Removal Hearing Double Jeopardy

Authored by , LegalMatch Law Library Managing Editor and Attorney at Law

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What is “Double Jeopardy”?

Double Jeopardy” is a principle found in criminal law.  It states that a person can’t be tried for the same crime twice, if the trials are based on the same set of facts.  The right not to be tried twice for the same crime is guaranteed to U.S. citizens by the 5th Amendment to the Constitution. 

Does “Double Jeopardy” Apply to Immigration Hearings? 

The 5th Amendment right to be free from double jeopardy does not directly apply to non-citizens when it comes to immigration removal hearings.  On the other hand, courts have ruled that the legal concepts of “res judicata” and “collateral estoppel” do apply to immigration removal/deportation hearings. 

Res judicata means that once a court reaches a final decision, that case cannot be re-tried.  Similarly, collateral estoppel means that if an issue has been settled in a case, then those same issues cannot be raised once more in a different lawsuit filed by the same parties, if the new case is based on the same facts. 

These two principles combined have nearly the same effect as that of double jeopardy in a criminal setting.  Basically, an alien or non-citizen cannot be subjected to two removal hearings for the same crime, if they are based on the same set of facts.     

So How Does This Apply to an Immigration Hearing?

Thus, if the government files removal proceedings against an alien, and then loses, they cannot begin a new set of removal hearings based on the same set of facts.  However, if any new facts arise that were not previously known, then the government can file another removal proceeding against the alien.

For example, if a non-citizen was found guilty of a serious crime such as grand theft, they will likely be subject to a removal hearing.  If the government loses the removal case, then the alien cannot be removed or deported later for the same instance of grand theft. 

However, if it is later discovered that alien’s grand theft charges also involved the use of firearms, these are new facts that might allow the government to initiate another round of removal hearings.    

Should I Hire a Lawyer for Issues with Immigration Removal Hearings?

Removal hearings are extremely important matters that could determine your ability to stay in the U.S.  If you have any questions or issues regarding any immigration proceedings, you may wish to contact an immigration lawyer for advice.  A qualified immigration attorney can also represent you during a hearing if necessary, and inform of your rights regarding re-trials. 

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Last Modified: 04-10-2013 02:47 PM PDT

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