Due Process Rights
Written in plain language for general understanding. This is educational content, not legal advice. Based on federal statutes and official sources.
What is this right?
Every person on U.S. soil has constitutional rights — not just citizens. The 5th and 14th Amendments guarantee due process of law to all "persons," which includes undocumented immigrants, visa holders, and asylum seekers.
Due process means the government cannot take away your life, liberty, or property without fair procedures. In immigration cases, this means you have the right to a hearing before an immigration judge, the right to present evidence, and the right to appeal a removal order. The Supreme Court confirmed in Zadvydas v. Davis, 533 U.S. 678 (2001), that even people ordered deported cannot be detained indefinitely without justification. You also have the right to an interpreter in immigration court proceedings if you do not speak English.
When does it apply?
This right applies when:
- You are physically present in the United States, regardless of immigration status
- The government is trying to deport (remove) you through removal proceedings under INA § 240
- You are detained by Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP)
- You are in any proceeding where the government could take your liberty or property
Common misconceptions:
- "Undocumented immigrants have no rights" — False. The Constitution protects all persons on U.S. soil. The Supreme Court has confirmed this repeatedly since Yick Wo v. Hopkins (1886).
- "ICE can deport me without a hearing" — In most cases, you have the right to appear before an immigration judge. Exceptions exist for people caught at the border or with certain prior orders (expedited removal under INA § 235(b), 8 U.S.C. § 1225(b)).
- "I don't have the right to a lawyer in immigration court" — You have the right to hire a lawyer, but the government is not required to provide one for free. However, some nonprofits and legal aid organizations offer free representation.
- "I cannot get an interpreter" — Immigration courts must provide an interpreter if you do not speak English. This is required under 8 C.F.R. § 1240.5. You do not need to bring your own.
What should you do?
Step 1: If detained by ICE or CBP, say: "I want to speak with a lawyer before answering any questions." You have the right to remain silent. Do not sign any documents without a lawyer reviewing them.
Step 2: Ask for a hearing before an immigration judge. If ICE tries to issue an expedited removal order, tell the officer: "I want to see an immigration judge." If you fear returning to your country, say: "I am afraid to return. I want to apply for asylum."
Step 3: Request an interpreter. If English is not your first language, you have the right to an interpreter in immigration court. Tell the judge or officer: "I need an interpreter in [your language]."
Step 4: Contact a free legal aid organization. Call the National Immigrant Justice Center at (312) 660-1370 or the Executive Office for Immigration Review (EOIR) free legal services list at 1-800-354-0365.
Step 5: Know your "A-number." Every person in immigration proceedings is assigned an Alien Registration Number (A-number). This 8- or 9-digit number is on all your immigration documents and is essential for tracking your case.
Step 6: Keep copies of all documents. Make copies of every notice, form, or paper ICE, CBP, or USCIS gives you. Store them in a safe place and share copies with your lawyer and a trusted family member.
What should you NOT do?
Don't sign a voluntary departure form or stipulated removal order without talking to a lawyer first. Signing these documents means you agree to leave the country and give up your right to a hearing.
Don't lie about your immigration status. Making false claims to an immigration officer is a federal crime under 18 U.S.C. § 1546 and can permanently bar you from future immigration benefits.
Don't use false documents. Using a fake Social Security number, green card, or passport is a serious crime that leads to deportation and criminal charges.
Don't ignore court dates. If you miss an immigration court hearing, the judge will issue a removal order against you in your absence (called an "in absentia" order under INA § 240(b)(5)). If you move, immediately update your address with the court by filing Form EOIR-33.
Don't open your door to ICE without a judicial warrant. ICE administrative warrants (Form I-200) do not allow agents to enter your home without your consent. Ask them to slide the warrant under the door — if it is not signed by a judge, you do not have to open the door.
How Florida differs from federal law
Florida has adopted policies requiring cooperation with federal immigration enforcement:
- SB 168 (2019) — Anti-sanctuary law: Florida law prohibits sanctuary city policies. State and local agencies are required to comply with ICE detainers and cannot adopt policies that restrict cooperation with federal immigration enforcement.
- SB 1718 (2023) — Immigration enforcement: Strengthened anti-sanctuary provisions, required hospitals receiving Medicaid to collect patient immigration status data, invalidated out-of-state driver's licenses issued to undocumented immigrants, and imposed penalties on employers who knowingly hire undocumented workers.
- E-Verify mandate: As of 2023, private employers with 25+ employees must use E-Verify to check new hires' work authorization.
- Due process still applies: Despite these state laws, all persons in Florida retain federal constitutional due process rights (5th and 14th Amendments), including the right to a hearing in removal proceedings and the right to an attorney (at their own expense).
Additional Steps in Florida
Contact Americans for Immigrant Justice at aijustice.org or call (305) 573-1106 (Miami). Contact the Florida Immigrant Coalition at floridaimmigrant.org. If detained, exercise your right to remain silent and do not sign anything without an attorney.
Relevant Law: Fla. Stat. § 908.101 et seq. (SB 168 — anti-sanctuary), SB 1718 (2023 immigration enforcement); Federal 5th and 14th Amendment protections apply
Legal Resources
We may earn a commission if you use these services — at no extra cost to you. This supports our mission to make legal information free for everyone.