Double Jeopardy of Immigration Removal Hearing

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 What is “Double Jeopardy”?

Double jeopardy is a criminal law concept found in the 5th Amendment to the United States Constitution. It guarantees an individual will not be tried twice for the same crime in the same jurisdiction. Double jeopardy provides that a defendant cannot:

  • Face a second prosecution for the same offense after a conviction;
  • Face a second prosecution for the same offense after an acquittal;
  • Face multiple punishments for the same offense.

A defendant cannot be tried for the same crime with the same set of facts more than once. There are, however, exceptions to this rule. For example, a defendant can be tried for the same crime based on the same facts in different jurisdictions without violating double jeopardy. A state government and the federal government can try the same individual for the same conduct so long as the defendant’s conduct violated both a state law and a federal law.

It is important to note that although double jeopardy prohibits multiple criminal prosecutions on the same facts for the same crime, a defendant may still face a civil lawsuit based on their offense. This applies even if the defendant was acquitted of the crime.

Does “Double Jeopardy” Apply to Immigration Hearings?

No, the double jeopardy clause of the 5th Amendment does not directly apply to a non-citizen facing an immigration removal hearing. Therefore, immigration double jeopardy does not exist.  However, courts have held that the legal concepts of res judicata and collateral estoppel apply to immigration removal/deportation hearings.

The legal concept of res judicata provides that when a court reaches a final decision, that case cannot be retried. Collateral estoppel is a similar concept that means if a certain issue has been settled in a case, then the same issue cannot be raised again in a different lawsuit filed by the same parties if the new lawsuit is based on the same facts. 

Res judicata and collateral estoppel are effectively the same as double jeopardy in a criminal setting. In other words, an alien or a non-citizen cannot be subjected to more than one removal hearing for the same crime if the hearings are based on the same set of facts.

For example, if the government begins removal proceedings against an alien and is not successful, they cannot begin a new removal hearing based on the same set of facts. It is important to note, however, that if the government discovers new facts that were not previously known, they can file another removal proceeding against an alien.

An example of this issue would be if an alien was found guilty of the serious crime of grand theft, they will most likely be subject to a removal hearing. If, however, the government is not successful in their removal case, the alien cannot be removed or deported at a later time for the same instance of grand theft. However, if new facts are later discovered, such as if the person also used a firearm, the government may be able to initiate new removal hearings based on these new facts.

What Happens at an Immigration Removal Hearing?

Deportation proceedings and removal proceedings are a legal process involving removal cases. If an alien commits certain crimes or violations, a removal hearing may be required. Offenses may include:

  • Entering into the U.S. illegally;
  • Committing certain felonies; or 
  • Committing certain offenses repeatedly. 

Generally, removal proceedings are held before an immigraiton judge that is appointed to hear removal cases. These proceedings may also include participation from other individuals including attorneys and members of an immigration board who are trained to review removal cases. 

Aliens suspected of being removable may be subject to removal proceedings. These proceedings are typically done on an individual, case by case basis. Grounds for removal or deportation may include:

  • Overstaying a visa;
  • Violating a criminal statute;
  • Denial of an immigration petition application; or
  • Other problems or issues which might make an individual’s presence in the U.S. illegal.

An individual will be summoned to a removal proceeding with a Notice to Appear (NTA). a Notice to Appear informs the individual of their case and gives them further instruction regarding the removal proceedings. This notice provides the alien with information including:

  • The nature of the proceedings;
  • A list of the individual’s alleged acts that may constitute violations of the law;
  • That the individual has a right to an immigration lawyer; and
  • The consequences the individual will face if they fail to appear at the hearing as scheduled.

There are different types of hearings for which the alien may be required to appear before an immigration judge, including:

  • A general removal hearing;
  • A bond redetermination hearing; or
  • A withholding of removal hearing.

A general removal hearing usually involves two basic issues. The issues are: 1) whether or not the alien will be subject to removal from the United States; and 2) whether or not the alien is eligible for any form of relief from removal. 

A bond redetermination hearing applies to an alien who is being detained by immigration or homeland security authorities. An immigration judge will determine whether the bond amount for the individual’s detention should be lowered or removed.

A withholding of removal hearing is held to determine if the alien is eligible for a withholding of removal. A withholding of removal may include the removal being withheld, delayed, or suspended for a period of time. This typically occurs if there are administrative matters that must be resolved prior to removal, such as if the alien is currently involved in another legal proceeding.

During the removal hearing, the individual can expect an examination of the evidence related to their removal case. During these proceedings, the alien will be permitted to present their case to an immigration judge. Their case can include things such as:

  • Witness statements;
  • Expert testimony; or
  • Any necessary documentation. 

These items may be used to prove the alien should not be removed from the United States.

Conclusions reached during any of these hearings are generally final. In some circumstances, however, an unfavorable determination may be appealed. Appeals of these decisions should be directed to the Board of Immigration Appeals (BIA).

Can Removal Proceeding Results Be Appealed?

Yes, in some cases, the result of a removal proceeding can be appealed. An appeal may be granted if there was an administrative error in the process, such as a defective Notice to Appear, or an administrative oversight. If an appeal is not permitted or granted, the alien will be removed from the United States.

It is important to note that aside from an appeal, some aliens may be granted relief from deportation, including cancellation of removal or a temporary suspension of the removal. These reliefs are granted on a case by case basis and usually require the assistance of an attorney.

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

Yes, it is extremely important to have the assistance of an immigration lawyer for any issues regarding immigration removal proceedings. Removal hearings may be the process that decides whether or not you get to remain in the United States. An experienced lawyer can provide advice on these proceedings, assist you during the proceedings, and even assist in obtaining cancellations or temporary suspensions of a removal.

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