A person (respondent) placed in removal proceedings at Immigration Court have several important rights which he or she can exercise.
1. Right to Retained Immigration Counsel – Pursuant to INA section 239(a)(1)(E) and INA section 240(b)(4)(A) the respondent has the right to retain an immigration attorney to defend the case. Unlike criminal courts, there is no right to court appointed lawyers for people that are poor. The immigration lawyer must competently represent the individual according to cases that have interpreted the 5th Amendment to the United States Constitution. In expedited removal proceedings the right to counsel is limited to the extent that the representation does not delay the process. An individual that represents themselves, even if he or she cannot afford to hire an immigration attorney, cannot successfully argue ineffective assistance of counsel. Whoever self represents bears the risk and the responsibility for that decision. It is important to retain legal counsel for any type of removal proceeding. A great suggestion is to retain the law firm of Hilf & Hilf, PLC for effective legal representation.
2. Notification of Legal Services – an individual (respondent) has the right to be given a list of available legal services that are updated quarterly. It is important to note that there is no guarantee that a particular legal service will accept the individual’s case, or the services that are provided, if any, will rise to the level of a competent, licensed immigration attorney. More often than not, you get the value of what you pay.
3. Translation – Due process requires that the individual (respondent) at the Immigration Court be able to fully understand what is occurring. Respondents that do not speak English have a right to have an interpreter as part of the right to present evidence, and to cross examine witnesses on their behalf.
4. Right to Examine Evidence – the individual (respondent) in removal proceedings have the right to examine the evidence, to present evidence to defend the case, and to cross examine any witness called by the government.
5. Right to be Advised of Eligibility for Relief – the Immigration Judge is required to inform the individual (respondent) of his or her potential eligibility to apply for certain forms of applicable immigration benefits, and given the individual (respondent) the ability to make such an application during the Immigration hearing.
6. Right to Due Process of Law – Under the 5th Amendment to the United States Constitution, individuals (respondents) in immigration removal proceedings have the right to a full and fair hearing. In order to challenge a due process violation, the individual (respondent) must establish some form of prejudice that potentially affected the outcome of the immigration removal proceedings. The Immigration attorney can file motions with the Immigration Court to suppress evidence on due process grounds if its use is not fundimentally fair, and challenge other aspects of the case.
7. Juvenile Respondents – Individuals under the age of 18 years must be accompanied by a relative, friend or guardian in order to plead to a basis for removability to an Immigration Judge. If the admission is not accepted, a hearing is scheduled to determine the issues raised.
8. Burden of Proof – the burden of proof depends upon the situation:
A) Arriving Aliens – have the burden of proof to show beyond a reasonable doubt they are entitled to be admitted and are not inadmissible under INA section 212.
B) Lawful Permanent Residents – the government has the burden of proof in establishing the inadmissibility of the individual (respondent).
If an individual is charged with being in the United States without admission or parole, ICE must first establish the person’s alienage. Once the alienage is established, it is up to the individual (respondent) to prove by clear and convincing evidence that he or she was lawfully in the United States due to a prior admission. If this cannot be established, the individual (respondent) has the burden of proving beyond a reasonable doubt that he or she is entitled to be admitted to the United States, and is not inadmissible under INA section 212.
If the individual (respondent) is charged with deportability, ICE has to show by clear and convincing evidence that he or she is deportable under INA section 237.