What rights do immigrants have while facing deportation?

Whether it’s over allegations that facilities such as Florida’s Alligator Alcatraz are detaining individuals illegitimately and in inhumane conditions, or allegations that immigration authorities have wrongly deported U.S. citizens, the Trump administration has taken flak for its aggressive crackdown on illegal immigration.

Critics say that since President Donald Trump took office, government officials have creatively reinterpreted federal immigration laws in an effort to deport as many illegal immigrants as possible. Trump’s supporters claim that he’s just the first president to try fully enforcing every federal immigration law on the books—and the first to try deporting everyone who legally qualifies for deportation. But both sides agree the federal deportation system is complex and difficult to navigate.

Experts acknowledge it can be difficult to determine what legal rights an illegal immigrant has and exactly what the government has to do to follow due process while trying to deport them. And, depending on the situation, potential deportees could either have at their disposal numerous legal ways of trying to stay in the country or almost no legal recourse at all.

Let’s say an illegal immigrant is arrested at the border or shortly after arriving in the United States. What happens next?

If U.S. Customs and Border Protection arrests someone trying to cross the border at a port of entry without valid entry documents or while using fake entry documents, the Immigration and Nationality Act permits federal authorities to immediately place that individual into expedited removal proceedings. U.S. Immigration and Customs Enforcement or CBP personnel can use expedited removal proceedings to immediately deport an illegal immigrant without providing a hearing before an immigration judge to determine whether they might have a legitimate reason to stay in the United States.

If CBP personnel catch someone trying to cross the border outside a port of entry, that person is also subject to expedited removal proceedings. ICE can also use the process if agents arrest an illegal immigrant at large inside the country, if that individual can’t prove that they were legally admitted or paroled into the United States and that they’ve been in the country for longer than two years.

Start to finish, expedited removal proceedings can take less than a day, according to the National Immigration Forum. After an individual is apprehended by federal authorities, he has the right to notify the arresting officers if he has a credible fear of harm or persecution if he returns to his home country. The notified officer must then refer that individual to a federal asylum officer.

If the asylum officer determines the migrant does have a credible fear, then that individual can apply for asylum and cannot be deported unless his asylum application is processed and denied. If the asylum officer finds that he doesn’t have a credible fear of persecution, then the individual can be deported immediately.

“In the past, for reasons that are not entirely clear, the government has eschewed expedited removal,” said Matt O’Brien, an immigration lawyer and deputy executive director of the Federation for American Immigration Reform, or FAIR. “The Trump administration appears to have adopted the philosophy that, if an alien is clearly removable via a summary process and is definitively ineligible for any form of relief, then it is incumbent upon the executive branch to execute the law as written by Congress.”

Zachary Kohn, a practicing immigration attorney, also noted that under the Trump administration, expedited removal proceedings have become more of a go-to method for deportations.

“Quickly, this administration realized that in terms of expedited removal powers, you can remove noncitizens who’ve been here for less than two years, who’ve entered without inspection,” Kohn said. “A tactic that the administration used was to dismiss proceedings for people who fit that criteria, arrest them, deport them. The only due process that those noncitizens have [is] the right to request a credible fear interview with an asylum officer.”

Kohn said the administration has also used expedited removal to deport individuals whose parole status expired.

What if they’re apprehended after the first two years?

If authorities arrest an illegal immigrant after he has been in the country for longer than two years, the individual is usually no longer subject to expedited removal proceedings. If someone was in the country on a humanitarian parole program and their parole expired or was terminated, that individual could be subject to expedited removal proceedings, according to the National Immigration Forum.

Can the government arrest illegal immigrants anywhere and everywhere?

U.S. Customs and Border Protection agents are allowed to apprehend anyone caught crossing the border without authorization. But once individuals have entered the country, they gain some protections.

For example, the Immigration and Nationality Act authorizes ICE agents to arrest without a warrant any individual they reasonably believe to be in the country illegally, but only if that person is in a public place. In order to enter a private residence to make an arrest, ICE agents must obtain a judicial search warrant, according to the ACLU of Northern California. ICE cannot break into someone’s home based solely on an arrest warrant or an administrative order of removal.

Federal agents can arrest illegal migrants encountered during routine operations if they have a reasonable belief that the person is in the country without permission. State and local agencies with 287(g) agreements, which authorize local law enforcement officials to act as ICE agents in certain circumstances, can also detain individuals on behalf of the federal government upon reasonable suspicion.

Zachary Kohn said that immigrant advocates have grown concerned—specifically in response to increased ICE activity nationwide this year—that federal agents have been too quick to arrest individuals who might or might not be illegal immigrants.

“To me, there should be a reasonable and articulable suspicion that someone is a foreign national before ICE questions them further, detains them, has probable cause to arrest them,” Kohn said. “But we’re seeing right now just lots of people being unfairly targeted. … There are people being pulled over, immediately arrested—no basis for the arrest other than appearance and presumption.”

Kohn notes that even some U.S. citizens and immigrants who are legally in the United States have been swept up in such arrests.

Do illegal immigrants have the right to a lawyer before being deported?

Under expedited removal proceedings, illegal immigrants don’t have a right to a lawyer. Under ordinary removal proceedings, they have the right to obtain legal representation, but only if they pay for it themselves or can find free legal services from a nonprofit organization or law school program.

Having counsel represent someone during immigration proceedings significantly improves someone’s chances of being able to stay in the country, Kohn added.

“It’s just implausible to me that a non-attorney [or even most attorneys who don’t practice immigration law] … could adequately prepare cases in removal proceedings,” Kohn said. “There’s plenty of cases where, had the person not been represented, it certainly would have made a difference in the case.”

How are immigration courts different from other courts? How are their judges different?

Federal immigration proceedings are civil—not criminal—matters. That’s the case even though someone crossing the border is technically committing a crime, Kohn explained. In contrast to other federal courts, immigration courts are agency courts that operate under different rules, and their judges do not need approval by the U.S. Senate.

“An immigration court is essentially a non-independent court. It’s an Article 1 court, so it’s controlled by the executive branch,” Kohn said.

The U.S. attorney general appoints permanent federal immigration judges. Since 2014, the U.S. Department of Justice has had the ability to appoint temporary immigration judges to assist those permanent immigration judges, said Andrew Arthur, a former immigration judge and a resident fellow at the Center for Immigration Studies.

Last month, the Justice Department proposed a rule that would allow military lawyers to serve as temporary immigration judges. The agency said it was a needed step to address the mounting backlog of immigration cases.

What if an immigrant has an asylum application pending?

An immigrant cannot be legally deported if he has an asylum application pending. But federal immigration officials can throw out claims they deem to be frivolous or fraudulent, said Matt O’Brien from FAIR.

“Generally speaking, any asylum claim raised by an alien will be resolved as part of the removal process,” O’Brien said. “However, there are circumstances in which an alien who has filed an invalid claim for asylum can be deported without the claim being heard.”

If immigration authorities move to deport someone claiming asylum and the individual’s claim does not appear frivolous or fraudulent, a federal immigration judge must review the application and offer a verdict. The asylum-seeker can then appeal that decision to the Justice Department’s Board of Immigration Appeals.

After receiving a decision from that office, the asylum-seeker can appeal his case to a federal appeals court. If someone is applying for asylum but not undergoing deportation proceedings, the appeals process remains entirely within the control of U.S. Citizenship and Immigration Services.

How does the process change if the illegal immigrant has a U.S. criminal record?

An illegal immigrant is already eligible for deportation simply by being an illegal immigrant, Matt O’Brien from FAIR explained.

“An alien needs only to have violated the Immigration and Nationality Act in order to be removed from the U.S.,” O’Brien said. “Crimes committed by illegal aliens may serve as alternate bases for removal, and those crimes may also bar an illegal alien from relief for removal, but it is a myth that an illegal alien without a criminal record is somehow immune to removal from the United States.”

But a complex web of rules decides which crimes actually affect an illegal immigrant’s ability to avoid deportation. For example, driving under the influence of alcohol or drugs does not change an illegal immigrant’s chances of obtaining relief from deportation, Andrew Arthur explained.

But if the illegal immigrant has been convicted of an aggravated felony or a crime involving “moral turpitude,” such as rape, assault, or theft, that conviction could put him on a faster track to deportation. The American Immigration Council explains that “aggravated felony” applies to about 30 offenses including theft, burglary, and murder but also filing a false tax return, failing to appear in court, and simple battery.

Not every crime applies to every immigrant’s case the same way, said Arthur. Immigrants who entered the United States illegally are automatically deportable even without any criminal convictions, so a gun conviction wouldn’t make a difference, he explained. But immigrants who originally entered the country legally are not automatically deportable, meaning that a gun conviction could strengthen the deportation case against them.

“It all depends on whether you’ve been admitted to the United States or not,” Arthur said.

The U.S. Supreme Court has ruled the Fifth and 14th Amendments’ guarantees of due process apply to illegal immigrants inside the United States just as they apply to native-born and naturalized citizens.

How long can a person be detained during immigration court proceedings?

Because immigration courts are a civil proceeding, the rules of detention are different from that of criminal courts, Zachary Kohn explained. The Constitution prevents someone from being detained for extensive periods of time, but defendants facing civil charges can be held in pre-trial detention for far longer than defendants facing criminal charges.

“It’s not a settled issue if the Eighth Amendment [which prohibits] cruel and unusual punishment is applicable to immigration, because it’s not a criminal punishment,” Kohn said. “But to me, it should be, and by all means, it is punishment.”

Kohn explained that, earlier this month, the Board of Immigration Appeals issued a decision saying that all illegal immigrants who entered the country without inspection were subject to mandatory detention. The board said such immigrants needed to apply in federal court before they could obtain a bond that would allow them to be released from detention while their case is pending.

“This is a unique interpretation of the law that I think is incorrect, and I think it’s essentially a tactic to curtail due process rights, because it’s more difficult to have access to counsel in detention,” Kohn said. “It’s more difficult to present a case in detention. If it’s a hardship case, you need to file documents and things like that. That’s a little bit challenging in a detention center. And if you don’t speak the language of the forms and things like that, that’s challenging to navigate, and there’s pressure to move rather quickly in the proceedings.”

Additionally, the board’s decision removes from immigration judges—who know the details of an illegal immigrant’s case—the ability to decide whether to release them into the community, Kohn said.

Does the U.S. immigration system treat unaccompanied children differently than adults?

An unaccompanied child is automatically protected from removal proceedings until substantial efforts are made to ensure that a child is not being returned to an abusive or unsafe situation, according to the legal advocacy group Kids In Need of Defense.

The Trafficking Victims Protection Reauthorization Act of 2008 ensures that the process of removal moves more slowly against an unaccompanied child than it does against an adult, explained Emily Norman, an attorney with the group.

“They have certain protections in the way that they are treated, because they are children and are uniquely vulnerable,” Norman said. “And so the process of voluntary departure that has been traditionally followed … is a way to ensure that if a child is going to be going back to their home country, that some types of checks have been put in place in order to ensure that they’re going to a safe situation.”

Does the illegal immigrant’s home country have a say?

An individual’s home country has to agree to take back an illegal immigrant before U.S. officials can send that individual there. If a home country refuses to take back its nationals, the U.S. State Department can apply pressure by restricting visas to the country. Restricting visas works with varying degrees of success, Andrew Arthur said.

“Recalcitrant countries either slow-walk that process or simply stonewall the U.S. government,” Arthur said. “So at that point, it becomes a diplomatic issue. It becomes [an] economic leverage issue to force them to take their people back.”

If an individual’s home country refuses to take him back, Arthur said, the migrant can be handed over to a third country that might agree to take him. Handing a person over to a third country can raise concerns about human rights protections, but U.S. officials may still pursue it as a last resort.

“We can send somebody to the country that they were ordered removed to, or a country that they are a national of, or that they were born in, or that they were resettled in,” Arthur said. “But once we go down that list, the last option is any other country that will take the alien. So if we find a third country that will take them, we move them there.”