Procedural Law: Rights Of Non-Us Citizens Explained

The US Constitution and its amendments protect the rights of both citizens and non-citizens. While the right to vote is exclusive to citizens, the Fifth and Fourteenth Amendments guarantee due process to all persons within US jurisdiction. This includes non-citizens, even those in the country illegally. Procedural law, which governs the methods and rules of court proceedings, is derived from these due process guarantees. In the US, procedural law takes the form of rules and practices that guide federal and state courts in civil and criminal trials.

Non-citizens' right to due process

The right to due process is a critical component of the legal system in the United States, and it applies not only to citizens but also to non-citizens, including undocumented immigrants. This right is enshrined in the Fifth and Fourteenth Amendments of the U.S. Constitution, which guarantee that no person shall be deprived of life, liberty, or property without due process of law.

Application to Non-Citizens

The extension of due process rights to non-citizens is well-established in U.S. law, with Supreme Court rulings affirming that non-citizens, even those in the country illegally, are guaranteed due process protections. This means that non-citizens facing deportation or other legal proceedings are entitled to certain fundamental rights and fair procedures.

Procedural Protections

The specific due process protections for non-citizens include the right to a hearing, legal representation, and the opportunity to present evidence. While civil proceedings, which have fewer constitutional protections than criminal trials, are often used in immigration cases, deportation officers must still provide non-citizens with a full and fair hearing. Additionally, the notice to appear at a removal proceeding must be properly served, and the proceeding must be conducted by a neutral fact-finder.

Asylum Seekers

Asylum seekers are a notable exception to the general rules regarding due process for non-citizens. They must be granted a hearing, and their cases are subject to more comprehensive consideration. If an asylum seeker can demonstrate a credible fear of persecution in their home country, their request for asylum receives a fuller assessment.

Limitations and Challenges

While non-citizens do have due process rights, there are limitations and challenges in practice. For example, under the expedited removal process, undocumented migrants found within a certain distance of the border and who have been in the country for less than two weeks can be deported without a hearing. Additionally, the quality of legal representation and the evidentiary standards in immigration courts can vary significantly.

In conclusion, while non-citizens in the United States, including undocumented immigrants, do have a right to due process, the specific procedures and protections may differ depending on their circumstances and the jurisdiction in which they find themselves. The complexities of immigration law and the varying interpretations of due process rights underscore the importance of legal representation in navigating these matters.

Procedural law and civil trials

Procedural law refers to the guarantees of certain procedural methods and rules, and it is distinct from "substantive law", which refers to the rights and duties of everyday conduct. Procedural law provides the mechanism for applying substantive law to real disputes. It sets guidelines for what information the judge or jury receives, how that information is presented, and the standards of proof by which the information will be judged.

In the US, civil procedure usually takes the form of a series of rules and judicial practices. Federal courts follow the Federal Rules of Civil Procedure (FRCP), while state courts follow their own rules, which often mirror the federal rules. Procedural law and civil trials are underpinned by the Fifth and Fourteenth Amendments' guarantees of due process, which state that no one shall be "deprived of life, liberty or property without due process of law".

Due process is determined by the three-part test laid out in Mathews v. Eldridge. This requires a court to consider: the person's interest that will be affected by the action; the risk of an erroneous deprivation of that interest through established procedures and the gain to decision-making accuracy of additional or substitute procedural safeguards; and the government's interest in avoiding the burdens of the proposed safeguards.

In civil trials, the initial burden is on the plaintiff to file suit in court and demonstrate a legitimate claim. The majority of suits filed in the US are settled before trial through negotiations or arbitration. However, there are rules of civil procedure that govern pre-trial activities. Rules 3-16 of the FRCP govern parts of the pre-trial process.

The US Constitution guarantees every defendant in a non-petty case the right to be tried before a jury, or they can waive this right and have a professional judge decide on the verdict. To ensure impartiality, both the prosecution and defence can reject jurors they believe to be biased. Additionally, the defence (and the prosecution in the US) has the right of peremptory challenge, where they can reject a number of jurors without reason.

In many legal systems, the court checks the accuracy of the accusation before admitting the case for trial. In Anglo-American systems, the court holds a hearing to determine "probable cause" for trial, whereas, under continental law, courts make this determination based on documents assembled during the investigation. A characteristic of the Anglo-American system is the opportunity for defendants to plead guilty or not guilty. If the defendant pleads not guilty, a trial is held; if they plead guilty, the court pronounces them guilty and determines the penalty.

In Anglo-American law, the presentation of evidence is left to the parties, and witnesses are examined and cross-examined by counsel. The trial judge enforces the rules governing evidence and asks supplementary questions if needed. The defendant may testify as a witness but is not examined by the judge. In contrast, under continental law, the presiding judge typically dominates the process of taking evidence. They call and question witnesses, introduce evidence, and interrogate the defendant.

A basic principle of both Anglo-American and continental procedures is that the defendant is presumed innocent until their guilt is established beyond a reasonable doubt. Therefore, the burden of proof rests upon the prosecution.

In the US, jury verdicts must be unanimous, and if the jury cannot agree, a new trial can be held before another jury. In England, majority votes of 10 to 2 or 9 to 1 are acceptable after the jury has deliberated for at least two hours.

Procedural law and criminal trials

Procedural law establishes the rules of the court and the methods used to ensure the rights of individuals in the court system. Procedural law applies to non-US citizens, as evidenced by Supreme Court cases dating back to the late nineteenth century. These cases established that non-citizens, even those in the US illegally, are guaranteed due process of the law by the Fifth and Fourteenth Amendments.

Criminal procedure regulates the modes of apprehending, charging, and trying suspected offenders, the imposition of penalties on convicted offenders, and the methods of challenging the legality of conviction after judgment is entered. The law of criminal procedure is primarily concerned with the series of proceedings through which the government enforces substantive criminal law. Municipalities, states, and the federal government each have their own criminal codes, defining types of conduct that constitute crimes. Federal crimes typically deal with activities that either extend beyond state boundaries or directly impact federal interests.

Federal prosecutions follow the Federal Rules of Criminal Procedure, which outline the procedure for conducting federal criminal trials. These rules incorporate and expand upon the guarantees included within the US Constitution's Bill of Rights, such as the right to due process and equal protection, the right to legal counsel, the right to confront witnesses, the right to a jury trial, and the right to not testify against oneself.

State prosecutions follow the criminal procedure code of the individual state, although many states choose to mimic the Federal Rules. State procedural rules may offer greater protection to a defendant in a criminal trial than the US Constitution or the Federal Rules, but they may not offer less protection.

The criminal trial process typically begins with an investigatory phase, where the competent authority (the police, the public prosecutor, or the investigating magistrate) investigates the circumstances of a reported criminal offense. Relevant evidence is collected and preserved for a possible trial, and the suspect has the right to collect evidence in their favour. In civil-law countries in continental Europe, the suspect can request the investigating authority to assist in this endeavour, whereas in common-law countries, the suspect takes the initiative in preparing their defence.

The police play a primary role in the investigation, interrogating suspects and witnesses, and carrying out arrests, searches, and seizures. In Anglo-American legal systems, the police perform investigations on their own authority, while on the continent, they act under the formal supervision of public prosecutors or investigating magistrates.

In some countries, such as France and Italy, a magistrate conducts the investigation in cases of serious criminal offenses, personally hearing witnesses and directing police to perform relevant acts such as the seizure of evidence. In other jurisdictions, such as the US and Germany, magistrates authorize specific acts of investigation involving serious invasions of civil rights, such as arrest, pretrial detention, search, seizure, and surveillance of mail and telecommunication. Generally, such acts are lawful only with prior written judicial authorization (the warrant).

Public prosecutors are government-appointed lawyers who represent the state in criminal matters. In some legal systems, such as Germany, the prosecutor is formally responsible for conducting criminal investigations, but in practice, their role is limited to advising and supervising the police.

The law has gradually recognized the suspect's autonomous position as a subject of the criminal process. The right to remain silent to avoid self-incrimination has been universally acknowledged in principle, although the specifics vary by jurisdiction. For example, in the US, under the Miranda v. Arizona ruling of 1966, a defendant's statements will be excluded from evidence if they are not specifically warned of their right to remain silent before interrogation while in police custody. In most countries, evidence of a confession is admissible in court unless it is obtained through coercion, such as torture or threats.

The defendant has the universally recognized right to present their view of the facts to the court, and in many jurisdictions, this right can be exercised before the court decides whether there is sufficient evidence to hold a trial.

The defense lawyer has a dual function in the investigation phase: assisting the suspect in gathering exonerating evidence and protecting them from violations of their rights by law enforcement. All legal systems grant the suspect the right to legal assistance, and in many countries, the suspect must be informed of this right before interrogation. If the suspect cannot afford a lawyer, the state may provide one or cover the attorney's fee.

However, defense counsel's ability to carry out their functions is restricted in some ways. For example, in some jurisdictions, the attorney has no right to be present when the suspect or a witness is interrogated by the police, and only a few countries grant the defense the right to compel witnesses to appear in court. Additionally, in most jurisdictions, the defense has limited or no access to information gathered by the prosecution before the case reaches the court.

Incarceration of the suspect before the trial can impair the preparation of an effective defense, yet all legal systems permit pretrial detention under certain conditions. The rules for pretrial detention and release on bail vary between Anglo-American jurisdictions and continental European countries.

Once the investigation is complete, the case proceeds to trial, following the specific procedures outlined above for federal and state prosecutions.

Procedural law and the Supreme Court

Procedural law establishes the rules of the court and the methods used to ensure the rights of individuals in the court system. In the US federal court system, the Rules Enabling Act of 1934 gives the Supreme Court the power to prescribe rules for the district courts of the US and the courts of the District of Columbia. This has resulted in the Federal Rules of Civil Procedure, which provide a comprehensive guide on how federal courts should conduct the administration of justice.

Procedural law can greatly influence a case, despite being distinct from substantive rights. The Supreme Court has dealt with the difficult process of delineating substantive and procedural law since its landmark Erie R. Co. v. Tompkins decision in 1938, where the court declared that federal courts must follow state substantive law, but that "no one doubts federal power over procedural law".

The Due Process Clause, found in the Fifth and Fourteenth Amendments, states that no one shall be "deprived of life, liberty, or property, without due process of law". While the words "due process" suggest a concern with procedure rather than substance, the Due Process Clause is widely understood to guarantee both procedural due process and substantive due process.

The Supreme Court has played a role in supervising the development of federal equity law and managing lower court practices. The Court's Equity Rules addressed matters ranging from service of process to partial demurrer, structuring the equity procedures of the lower courts. The Court has also engaged in procedural supervision beyond the scope of the Equity Rules, developing, via adjudication, rules in equity.

The Supreme Court has also weighed in on the rights of non-citizens, ruling that non-citizens, even those in the US illegally, are guaranteed due process of the law by the Fifth and Fourteenth Amendments. In Yick Wo v. Hopkins, the Supreme Court struck down a San Francisco ordinance that required all laundries in wooden buildings to obtain permits from the city to operate, as the board didn't grant a single Chinese owner a permit to operate. In Wong Wing v. United States, the Court ruled that while the government can forbid non-citizens from entering and can deport legal and illegal aliens, it was unconstitutional for the government to impose punishment without "a judicial trial to establish the guilt of the accused" under the Fifth Amendment's guarantee of procedural due process.

Procedural law and state rules

Procedural law establishes the rules of the court and the methods used to ensure the rights of individuals in the court system. Procedural law is distinct from substantive law, which refers to the rights and duties of everyday conduct, such as those related to contract law and tort law. Procedural law provides the mechanism for applying substantive law to real disputes.

In the US, federal courts follow the Federal Rules of Civil Procedure (FRCP), while state courts follow their own rules of civil procedure. State civil procedure often mirrors federal rules, but each state has its own system of civil procedure laws, many of which are modelled on or influenced by the federal rules.

Procedural law in the US is derived from the Fifth and Fourteenth Amendments, which contain the Due Process Clause. This clause states that no one shall be "deprived of life, liberty or property without due process of law". The Due Process Clause guarantees both procedural and substantive due process.

Procedural due process ensures that non-citizens facing deportation are involved in a civil lawsuit and are entitled to a hearing before an immigration judge, to be present at the hearing, to be represented by a lawyer, to put forth witnesses and defences, and to be afforded interpretation for non-English speakers. Non-citizens charged with a criminal offence have the same due process protections as citizens, including the right to a speedy and public trial by jury, the right against unlawful searches and seizures, and the right to an attorney, among others.

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