Criminal Defense of Immigrants

Sections 15.23-15.40, infra, present a brief overview of the procedural aspects of immigration law directly related to criminal/immigration issues, including the entities involved, how noncitizens come into contact with the immigration authorities, and the procedural progression of a removal hearing.  For the most part, in depth discussions of these topics are beyond the scope of this book.[139]

                Noncitizens are entitled to the same procedural protections as United States citizens, since the Due Process Clause applies to all “persons” within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.[140]

[139] See C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure (2007).

[140] Zadvydas v. Davis, 533 U.S. 678, 693-694, 121 S.Ct. 2491 (June 28, 2001) (“[O]nce an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all “persons” within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent. See Plyler v. Doe, 457 U.S. 202, 210 (1982); Mathews v. Diaz, 426 U.S. 67, 77 (1976); Kwong Hai Chew v. Colding, 344 U.S. 590, 596-598, and n.5 (1953); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886); cf. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212, 73 S.Ct. 625 (1953) (“[A]liens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law”). Indeed, this Court has held that the Due Process Clause protects an alien subject to a final order of deportation, see Wong Wing v. United States, 163 U.S. 228, 238 (1896), though the nature of that protection may vary depending upon status and circumstance, see Landon v. Plasencia, 459 U.S. 21, 32-34 (1982); Johnson, supra, at 770, 70 S.Ct. 936.”).