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Due Process in Immigration Proceedings

What is Due Process?

Due process is one of the seminal principles in immigration law. Due process in immigration proceedings is guaranteed by the Fifth Amendment of the United States Constitution. The Fifth Amendment guarantees a fair hearing to immigrants in removal proceedings. A violation is consequential and could lead to the termination of proceedings, the reopening of proceedings, or the dismissal of the Notice to Appear.

An immigrant must have a liberty interest that is protected for the Due Process violation to occur.  Valencia-Alvarez v. Gonzales, 469 F.3d 1319, 1330 n.13 (9th Cir. 2006). If the immigrant is ineligible for the relief sought, there will be no Due Process violation. Id. The denial of discretionary relief, by itself, without prejudice, would not be deemed a violation. Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247 (9th Cir. 2008).

Examples of Due Process Violations

Attorney Ahmad Yakzan has defended numerous immigrants in removal proceedings. He has used the Due Process Clause to suppress evidence, reopen proceedings, and terminate them. Examples of Due Process violations include:

  • Abandonment of impartiality by the Immigration Judge
  • Prejudgment of an immigrant’s claim by the immigration judge
  • Summary decisions that did not include a detailed analysis
  • Deficient administrative records that deprive the right to appeal
  • Prevention of full examination of the immigrant
  • Denials of Motions to Continue
  • Violations of the agency’s own regulations

There are other examples of such violations. Violations might depend on the individual circumstances.

Prejudice Requirement

To prevail on a Due Process claim, an immigrant must show that there was a violation of her rights and that she was prejudiced by the denial of her rights. Prejudice usually means that the result of the proceedings would have been different. An immigrant bears the burden of meeting these requirements.

In some cases, prejudice is not required. For example, a violation of the agency’s own rules that are designed to protect the immigrant is enough to show prejudice. Lazaro v. Mukasey, 527 F.3d 977, 981 (9th Cir. 2008). Moreover, a deficient representation that deprives an immigrant of his right to appeal also meets the presumption of prejudice. Ray v. Gonzales, 439 F.3d 582, 587 (9th Cir. 2006).

Exhaustion Requirement

An immigrant must preserve the Due Process violation before the agency for federal court review. 8 U.S.C. § 1252(d)(1). A federal court would not review such a claim if it was not preserved. The mere mention of the due process violation is not enough. An immigrant must brief such claim sufficiently to put the agency on notice. Young v. Holder, 697 F.3d 976, 982 (9th Cir. 2012). However, some claims that are not within the agency’s purview do not have to be exhausted. Coyt v. Holder, 593 F.3d 902, 905 (9th Cir. 2010).

Violations of Due Process are very convoluted and must be reviewed by an immigration attorney before you proceed. A competent immigration attorney would preserve such arguments at the immigration court level. Contact us today to schedule a consultation to analyze your case.


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