Our clients often wonder what kind of rights they have within the immigration system, or if they have any at all. This is such a good question considering all of the discussion around illegal immigration in America, especially for those who are seeking asylum.
U.S. courts have consistently established the rights of individuals, illegal or not, and their right to due process. The bigger question is how much process is “due” depending on each person’s unique circumstances. Congress has more control over the answer to this question than any other branch of the U.S. government. Congress decides how strict or lenient this process should be for illegal immigrants or asylum seekers.
The Process for Undocumented Individuals
Any individual who is potentially looking at deportation proceedings can fight that ruling with civil proceedings through the U.S. immigration court system. Within the Justice Department, an individual can bring testimony in front of a judge who will determine the outcome of a case. The individual seeking to stay in the United States can offer evidence to the judge as to why they should be able to stay. This can be done alone, but we highly suggest that an individual do this with the help of an immigration lawyer for more favorable outcomes.
Once a judge makes their ruling, the undocumented immigrant can either follow the order or appeal the decision with the Board of Immigration Appeals. This individual would work with their immigration attorney to help them file the appeal and await their court dates which can take months or even years to acquire.
When the U.S. Government Seeks to Bypass the Courts: Expedited Removal
In 1996 an immigration statute was passed that allows immigration authorities to bypass the hearing process and deport individuals as an expedited removal. The policy states that immigration authorities can seek to expedite removal when an undocumented person is found 100-miles of a U.S. border and within 14 days of entering the country. Currently, no geographic limitations apply, and this expedient process can be used for up to two years of the person entering the country. This “expedited removal” process, essentially takes away the right of undocumented immigrants to fight their cases in court!
Avoiding Expedited Removal
Undocumented persons can avoid expedited deportation by seeking asylum in the United States. Rather than a judge presiding over the immigration case, the U.S. Citizenship and Immigration Services (USCIS) will oversee the person and decide whether an applicant has a reason to seek asylum. This happens through interviews with USCIS officials who will try to learn whether or not a person has a credible fear of danger for returning home.
If it is deemed the person has no credible fear, that person can still seek a hearing with the U.S. immigration system and go through the appeals process. In this situation, an immigration judge will have seven days to decide on the outcome of the case.
We know this can all feel pretty overwhelming and somewhat scary. At Landerholm Immigration, our immigration attorneys are here to assist those who are seeking to stay in the U.S. You can review our ‘Am I Deportable’ video series to learn more about this process. Also, you can reach out to us online to set up an appointment.