Immigration courts versus the criminal justice system
The process for how to become a documented or legal immigrant can be confusing. Let’s start with one of the most important facts about American immigration court. Specifically, immigration courts are NOT part of the judicial branch of the federal government.
From the earliest ages, American school children learn of three branches in the federal government: congressional, executive and judicial. Under Article I of the U.S. Constitution, the U.S. Supreme Court has recognized Congress as having “plenary” power over immigration.
That means the U.S. Senate and House of Representatives have the ultimate authority to determine who may immigrate to the United States. However, Article II of the Constitution grants the president broad powers to enforce immigration law.
Congress as ultimate authority
For this reason, enforcement currently falls to the U.S. Department of Justice (DoJ). Thus, immigration courts are part of the Executive Office for Immigration Review (EOIR) within the DoJ.
Unlike the criminal justice system, immigration courts are administrative courts that conduct hearings and render decisions on immigration status for people appearing before them. Most immigrants facing deportation have rights to a hearing.
Yet these rights differ from rights granted in criminal cases considerably.
Differences between immigrants & the criminally accused
- Immigrant defenders – called “respondents” – have no right to a public defender. They may have legal representation only on a self-pay or pro bono (volunteer) basis.
- Respondents are not entitled to Miranda warnings about their rights to counsel and to remain silent during police custody.
- Respondents may be held more than 48 hours before having a hearing.
- Immigrants appear in court for hearings, not trials.
- Immigrants do not have access to a discovery process prior to a hearing that will determine the outcome of their case. In contrast, anyone charged with a crime is entitled to see all evidence in the possession of a prosecutor.
- Some respondents may be held in detention without the opportunity to post bond and be released.
- Immigrants are entitled to just one review by an appellate court, the Board of Immigration Appeals, in the Washington, DC area. Convicted criminals are entitled to at least two rounds of appeals
- Whereas the U.S. president generally appoints criminal-system judges for life, immigration judges are employees of the Department of Justice and can be hired and fired at will by the president.
Immigration law classification of immigrants
Law has so much jargon that there’s even a fancy phrase for legal jargon: term of art. Sounds swanky, doesn’t it? The word jargon isn’t very complimentary. But term of art suggests elegance, culture, and erudite.
Let’s use plain English. Here are definitions of the individual classifications under immigration law.
Non-citizen/alien
- Any person not a United States citizen or national
- Non-immigrants:
- Individuals with temporarily approved status to be in the country.
- Examples: Tourists, students, temporary workers
- Immigrants
- Foreign nationals (not U.S. citizens) intending to make the United States their home
- Non-immigrants:
Arriving alien
- A non-citizen seeking entry at a U.S. port of entry (any immigration checkpoint at a border, airport or ocean port)
Undocumented/unlawful presence
- Immigrants without legal authorization to remain in the country.
Conditional residents
- Individuals with a temporary green card good for two years, such as those married to a U.S. citizen for less than two years
Lawful Permanent Residents (LPR)
- Holders of green cards who can live and work indefinitely and later apply for citizenship
Citizens
- Anyone born in the United States, per the Fourteenth Amendment’s “birthright citizenship”
- Any Lawful Permanent Resident who:
- Has been a permanent resident for five years (three years if married to a U.S. citizen)
- At least 18 years of age
- Possesses “good moral character”
- Maintains continuous residence in the U.S.
- Can pass an English and civics test