Does “Double Jeopardy” Apply to Immigration Hearings?
No, the double jeopardy clause of the Fifth 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
- Committing certain offenses repeatedly
Generally, removal proceedings are held before an immigration 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
- 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
- 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
- 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
- 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).
What Powers Does Immigration and Customs Enforcement (ICE) Have?
The enforcement branch of the Department of Homeland Security (DHS) is Immigration and Customs Enforcement (ICE). ICE can be considered similar to an immigration police force because they are tasked with investigating criminal offenses, such as:
- Money laundering
- Child pornography
- Bomb threats
- Human trafficking
- Drug smuggling
- Passport fraud
- Gun smuggling
- Other offenses
ICE can detain people it suspects are human traffickers, illegal immigrants, or terrorists. It can also arrest people suspected of breaking an immigration law.
Suspects may be detained for 48 hours by ICE without a warrant. If there is an emergency situation, the suspect may be detained for a longer period of time. Once this 48 hours passes, ICE has to release the person or begin procedures for their deportation.
It is important to note that, when someone is in local criminal custody, if ICE has a detainer placed on them, they can be transferred to federal immigration custody even after posting a state court bond of $1,500 or more. This means that, even if they pay a local criminal bond, they can still be taken into custody by ICE.
The person who is detained by ICE can challenge that detention by stating they are not a member of any group that ICE has the authority to detain or deport. It is also important to be aware that there are legal complications that may extend an individual’s detainment for a very long period of time.
In some situations, a person may not be able to be returned to their country of origin, which means their detention is indefinite. When this happens to a detainee, they can request a writ of habeas corpus, allowing them to challenge their detainment in court.
There are also other differences between immigration cases and criminal cases. For example, Miranda warnings that apply to criminal proceedings typically do not apply to an immigration arrest because removal proceedings are categorized as civil and not criminal.
Suspects, however, do have the right to remain silent just like individuals involved in criminal cases do. When an ICE agency requests to ask questions about someone’s immigration status or conduct a search, the person can verbally state that they do not provide consent.
It is very important not to sign any documents requested by ICE without having an attorney review them first. These rights are provided based on case laws which hold that, even in narrow immigration contexts, they are provided under the Fourth and Fifth Amendment.
What Immigration Laws May Apply to Removal and Deportation Proceedings?
There are many different immigration laws that can apply to removal and deportation proceedings, including hearings. Some have been on the books for many years and some are newer. One newer and broad immigration law that applies to most immigration issues, including removal and deportation proceedings, is the Immigration and Nationality Act (INA).
There are also other immigration laws and executive orders that can apply to someone’s immigration issue or hearing. Due to the fact that many different laws can apply and they can be updated at any time, especially with changes in presidential administrations, it is very important to reach out to an immigration lawyer for any immigration issues or proceedings.
Executive orders that may apply are discussed below.
Executive Order Guaranteeing the States Protections Against Invasion
With this order, people cannot enter the United States at the southern borders. The Secretary of State and the Department of Homeland Security (DHS) can admit applicants on a case-by-case basis.
Executive Order Protecting the Meaning and Value of American Citizenship
With this order, birthright citizenship is terminated. This means that babies born in the U.S. are no longer given automatic citizenship.
Although this term may be considered controversial, this may also be referred to as anchor baby status, as it can allow other members of a family to become citizens. Under this order, one of the baby’s parents must be a permanent resident of the U.S. or a citizen for the child to be given birthright citizenship.
If the parents of the baby are in the U.S. on a temporary visa, the baby would not be given birthright citizenship. This order is not in force because of an injunction.
Executive Order Protecting the American People Against Invasion
Under this order, information and policies are provided about enforcing deportation and removal, enforcing illegal entry, and unlawful presence in the United States. This order also expands the use of expedited removal for immigration cases.
Executive Order Realigning the United States Refugee Admissions Program (USRAP)
Under this order, how people are allowed to apply to enter the United States is limited. However, people can apply on a case-by-case basis. This order is suspended awaiting evaluation.
Every immigration law that is in force, including those executive orders noted above, can have a direct effect on someone’s immigration removal hearing. It is important to be aware that immigration laws may be updated frequently, so having a lawyer handle any type of immigration removal hearing is very important.
What Types of Evidence Are Required In Court for a Deportation or Removal Case?
When someone finds themself involved in removal proceedings, it is very important to make sure they have the right documents and evidence to establish their credibility and support the claims they make in their case. There are some common categories of documents that are helpful and may even be required for a deportation or removal case, including:
- Personal Identification:
- birth certificates
- marriage certificates
- government-issued IDs that establish identity and connections
- Proof of Physical Presence:
- lease agreements
- employment records
- utility bills that show residence in the United States for a specified period
- Proof of Good Moral Character:
- criminal background checks
- letters of recommendation
- certifications of community service
- Proof of Family Ties:
- birth certificates of children born in the country
- marriage certificates
- Evidence of Hardship:
There may also be other types of documents or evidence that may be required, depending on the specific facts and circumstances of an individual’s situation. Due to the potential need for different types of evidence, the possibility of variations in unique cases, and the very important need to protect the rights of a detainee, it is essential to have an attorney for any type of deportation or removal question or issue.
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.
Any type of removal issue or procedure can be both challenging and stressful, especially when English is not your native language. You can use the lawyer-client matching services provided by LegalMatch for free to find an immigration lawyer in your area who you can communicate with clearly and effectively.
It will only take you a short amount of time to go through the online submission process, where you will be matched with prescreened and licensed immigration attorneys in your area who are experienced with handling immigration removal hearings. Having legal help is your best change at a favorable outcome, so get started today.
