The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) overhauled the process by which aliens are either expelled from or prevented from entering the United States. For cases starting on or after April 1, 1997, there is a single removal proceeding.
The IIRAIRA created one uniform procedure for removing aliens, rather than the previously separate deportation and exclusion proceedings. IIRAIRA calls the uniform procedure for expelling noncitizens from the United States "removal."
The Due Process Clause of the Fifth Amendment of the United States Constitution applies to removal proceedings. For a noncitizen in removal proceedings, this generally means that he or she is entitled to a fair hearing. The right to confrontation and cross-examination of witnesses is a primary element of a fair hearing. This right is ordinarily limited to evidence produced in or relevant to the proceeding.
Right to Confront Witnesses
Under the Immigration and Nationality Act, an alien must have a reasonable opportunity to examine the evidence against him or her and to confront witnesses presented by the government.
Not Entitled to Examine National Security Information
Although the alien is allowed a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien's own behalf and to cross-examine witnesses presented by the government, those rights do not entitle the alien to examine such national security information as the government may proffer in opposition to the alien's admission to the United States or to an application by the alien for discretionary relief.
An alien in a deportation hearing is entitled to cross-examination of persons who have made prehearing statements that are used by the government in the deportation hearing.
Procedural due process requires that a competent interpreter be provided, such that the alien can understand the proceedings and exercise his or her right to cross-examination.
Demand for Production of Statements
An alien, represented by counsel, who fails to demand production at the time the witness testifies may not subsequently be entitled to the statements.