Rights of Undocumented Immigrants Under the Federal Constitution

Does the federal constitution protect illegal immigrants? Of course, illegal immigrants are also protected by the federal constitution. It is true that the protection of illegal immigrants in the federal constitution is somewhat weaker than that of citizens, but the provisions of the Constitution that do not specify the subject of application to citizens also apply to illegal immigrants.

How does the 5th Amendment Due Process apply to illegals?

The 5th Amendment to the Constitution stipulates that “no life, liberty, or property shall be deprived without due process”. For example, the deportation trial itself must be conducted in accordance with the due process principle stipulated in the 5th Amendment to the Constitution, since it is a situation that has a serious impact on the freedom of the deportee.

To whom and how does the 5th Amendment apply?

The due process principle means that the due process must be fair. However, it does not specifically state what the due process is. Whether the due process principle has been observed should be evaluated based on the following three factors.

First, whether the life, liberty, or property of an individual is adversely affected by the government’s actions. Second, it is necessary to examine whether there is a risk of deprivation of individual interests due to the actions of the government. Third, it is necessary to weigh what kind of burden the government will bear if additional legal procedures are added to protect personal interests.

What specifically does the principle of due process mean?

At a deportation trial, at least the following must be observed to avoid due process disputes. First, whether the right to receive the assistance of an attorney is guaranteed. In deportation trials, the government does not need to hire a lawyer at the government’s expense to the person being tried. However, the person undergoing the trial has the right to seek the assistance of an attorney, and should be given the opportunity to obtain an attorney. In the first master hearing of the deportation trial, if the deportation trial person appoints a lawyer and it takes time, the immigration judge will not hesitate to postpone the trial date. Because of this principle,

Second, the notice of the deportation trial must be received. It is also an important constitutional right of a person subject to trial to be notified of the time and place of the deportation trial that applies to him or her. Third, immigration judges are obliged to explain their legal rights to deportation judges. Fourth, immigration judges have an obligation to make the trial fair. For example, it is unconstitutional for an immigration judge to find evidence or witnesses not submitted by ICE and influence the deportation trial. Fifth, when undergoing a deportation trial, the subject of the trial has the right to examine the witnesses and examine the evidence.

Does the principle of due process apply to USCIS case review?

Of course, this due process principle also applies to USCIS examinations. For example, when revoking an immigration petition that has already been approved, the party must be given an opportunity to object. If an already approved case is withdrawn without giving an opportunity to object, it is a violation of due process. When rejecting a petition such as the H-1B, it is also against the principle of due process if a reasonable reason for refusal is not specified. Matters over which USCIS can exercise its discretion, such as the I-485 review, are not subject to judicial review in principle, but even if it is a matter at the discretion of USCIS, if the due process principle guaranteed by the Constitution is violated during the review process, USCIS can be sued for unconstitutionality. can In order to file a USCIS complaint with the court on the basis of a due process violation, it is possible only after step-by-step appeal procedures of all administrative agencies have been followed as stipulated by the law.

Written by / Attorney Kim Seong-hwan

MI Asian Staff
Author: MI Asian Staff