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‘Due Process” Should Apply to Undocumented Immigrants


‘Due Process” Should Apply to Undocumented Immigrants

When foreign citizens land at Miami International Airport, set foot on a Florida beach, or cross the U.S. border from Mexico or Canada, they arrive with very limited legal rights. The same is true for “undocumented” immigrants who may have lived in South Florida for decades (and are not U.S. citizens and do not hold a “green card” for lawful residency.)

Under the federal government’s crackdown on illegal immigration, these adults, teenagers and children are at risk of being deported every day of their lives. A traffic citation, a misdemeanor marijuana charge, another misdemeanor or a felony could lead to imprisonment, an eventual hearing before a U.S. Immigration Court judge and an order to return to the country they left days, weeks or years ago. Appearances in court for a non-immigration matter, or just going to work can result in an arrest by federal authorities.

Every day, illegal immigrants come to the U.S. seeking asylum from political persecution, an escape from violence and abuse, and an opportunity for a better life. Under the due process provisions of the U.S. Constitution, they should be given a fair hearing where they can present evidence to support their claims and receive an impartial judicial ruling.

However, that is not how it works today under the government policy of strict enforcement of U.S. immigration laws. After spending time in incarceration, foreign adults appear before a federal immigration judge for a deportation hearing. Unlike other U.S. courts that are independent from the Executive Branch, the immigration courts are part of the Justice Department and the Executive Branch of our government, not the judiciary.

Facing a confusing situation in a courtroom – often not speaking the language or understanding the law – an illegal immigrant has little chance of obtaining a ruling to remain in the U.S.

A competent immigration attorney may be able to persuade the immigration judge to defer a decision on deportation pending a fuller presentation of the facts.

Traditionally, undocumented immigrants have been allowed to enter the U.S. based on a claim of political asylum. This requires a review of the foreign national’s situation at their home and the reasons for entering the U.S. Asylum-seekers often flee brutal regimes and lawless countries in Central America. Under the current policy, it is likely those refugees would be sent back to their homelands in spite of well-founded fear of harm in their home country.

Supporters of the current policy have argued that strict enforcement is necessary to deter a flood of undocumented immigrants. After all, adults who cross the border without papers are breaking the law and should be held accountable.

We must provide fair hearings based on due process; deport the convicted violent felons, and weigh other claims based on their individual merits. Let’s live up to the concluding words of the Pledge of Allegiance: “With liberty and justice for all.”

Jeffrey S. Weiner is a Miami based board certified criminal defense attorney whose clients include foreign nationals facing United States immigration consequences as a result of alleged criminal conduct. He is a former president of the National Association of Criminal Defense Lawyers.

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