Constitutional Provisions Worth Knowing If You Fear Being Removed (PART ONE)

The Constitution plays a significant role in US immigration. In the context of the government’s attempt to deport or remove a noncitizen from the US, many of the constitution’s provisions come into play. In this two-part blog post, we’ll look at a few of the clauses of the constitution that play a role in removal proceedings, a few tools that attorneys may sometimes use to prevent a noncitizen’s removal.

In Part One, we will look at procedural due process and substantive due process. In Part Two, we will look at equal protection, the naturalization clause, and the ex post facto clause.

Procedural Due Process

The Fifth Amendment’s due process clause protects against federal government deprivation of life, liberty, or property without fair and adequate procedures. The Supreme Court has explained that the protection of the due process clause “applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.”

Thus, for example, a noncitizen (through his or her attorney) may make procedural due process challenges to a mandatory detention statutes or practice in certain situations.

One example of which a noncitizen might make a procedural due process challenge is where removal results from DHS’ failure to begin deportation proceedings when statutorily required to do so. See Singh v. Reno, 182 F.3d 504 (7th Cir. 1999) (INS foot­dragging in completing deportation proceedings until petitioner no longer statutorily eligible for relief stated the basis of a substantial constitutional due process claim).

Substantive Due Process

The Fifth Amendment’s due process clause also protects against government action infringing fundamental liberty interests, no matter what process the government provides, when the infringement is not narrowly tailored to serve a compelling state interest. A noncitizen might challenge, under substantive due process grounds, legislation imposing disproportionate penalties affecting liberty or property interest. Also, a noncitizen may challenge, as violative of due process, legislation that has retroactive aspects affecting such liberty or property interests when the retroactive application is irrationally unfair.

And, a court might find the retroactive application of a new deportation statute to be violation of the due process clause. See United States v. Ubaldo-Figueroa, 347 F.3d 718 (9th Cir. 2003) (reversing noncitizen defendant’s conviction for illegal reentry after removal after finding that prior removal order was invalid as defendant had “plausible” claim that Congress’ retroactive application of IIRIRA § 321 [expanding categories of offenses falling within aggravated felony ground] violated due process).

An argument relying on constitutional provisions may be what rescues a noncitizen from deportation. These provisions are often overlooked as tools to do that.