Deportation Cases--Rights Not Guaranteed

Aliens in the United States--including those who may have lived here legally for decades--lose the benefit of some crucial constitutional protections when they are facing deportation proceedings, experts in immigration law say.

Like the group of Arab immigrants arrested Monday for allegedly belonging to a Palestinian terrorist group, such aliens have the “right to some minimal considerations of fairness and that’s all” when the government seeks to deport them, said visiting UCLA law professor Jose Bracamonte, an expert in immigration and labor laws.

Lawyers representing the Arab group have charged that their clients are being held under “severe conditions of confinement” in violation of their legal rights. Some are being held in isolation and without access to sanitary facilities and medical aid, the lawyers have charged. Others are being incarcerated far from their families and friends.

But unlike U.S. citizens, who are guaranteed basic rights ranging from the right to an attorney to the right against self-incrimination, “. . . the Constitution does not apply (to aliens facing deportation), the theory being we are dealing with strangers,” Bracamonte said.

“And we’re talking here about resident aliens of 20, 30 years standing. They are treated no differently than an undocumented alien who has been here less than one day,” he added.

“There are a number of basic rights people do not have in the context of deportation hearings,” said Peter Schey, executive director of the National Center for Immigrants Rights Inc. in Los Angeles. “Despite the severe consequences, the courts have treated these proceedings as a civil and not a criminal hearing. “The courts refuse to consider deportation as punishment.”

Among the constitutional protections not applicable in deportation proceedings are the right to representation by an attorney for those who cannot afford private counsel and the prohibition against unlawful search and seizure. In deportation proceedings, evidence can be introduced that was illegally seized unless the arrest was “egregious,” according to a federal appellate court decision.

Moreover, aliens have no right to a jury trial and no right to have expert witnesses supplied at government expense during deportation proceedings. Those rights do apply to criminal proceedings.

In addition, U.S. Immigration and Naturalization Service policy does not require aliens facing deportation to be read their rights under the so-called Miranda decision, in which the U.S. Supreme Court required authorities to give suspects notice of their right to remain silent and their right to counsel.

INS attorney Robert M. Kay said aliens subject to deportation basically have the “same rights all citizens have as a general rule,” including the right to present witnesses, cross-examine government witnesses and the right of appeal. But he acknowledged that deportation proceedings have frequently raised constitutional objections.

The complaints raised most often, Kay said, are based on Fourth Amendment unlawful search and seizure grounds and Fifth Amendment guarantees against self-incrimination.

Although immigration laws have faced numerous challenges based on such constitutional issues, legal experts say the basic doctrines underlying the laws date to an 1891 decision called the Plenary Power Doctrine.

“That doctrine says Congress and the executive are free to promulgate substantive immigration provisions totally free from constitutional constraints,” UCLA’s Bracamonte said. “From the very origins of immigration law, this doctrine has been faithfully followed by the courts.”