Due Process and the Courts
What does the constitution say about due process?
The Fifth Amendment to the Constitution says clearly that no person shall be deprived of life, liberty, or property without the due process of law. Note that this says person, not citizen, and over the years the Supreme Court has consistently ruled that the Due Process Clause applies to all people in the United States.Do non-citizens have the right to due process in the U.S.?
Yes. The Constitution guarantees due process rights to all "persons," not just citizens. This means non-citizens, including undocumented immigrants, are entitled to fair treatment under the law. This includes the right to defend themselves in court. But recent Trump administration policies that speed up deportations and limit access to legal representation make it harder for non-citizens to get their fair day in court.- Access to legal representation Access to legal counsel is an essential part of our justice system and our democracy. In the criminal justice system, anyone facing even one day in jail gets a lawyer if they can't afford one. But immigrants facing deportation usually don't get that chance.The research is clear – the most effective way to ensure some level of due process for people navigating our complicated immigration system is for them to have trained attorney at their side. But Trump administration is now working to strip attorneys from as many people as possible, all in the name of increasing its deportation numbers. This attempt to eliminate basic due process will hurt people who already have few options.
- Fair day in court Due process guarantees that individuals have the opportunity to defend themselves in court. This includes non-citizens facing deportation.
Why is due process important?
We are seeing right now the importance of due process when it comes to President Trump's actions to carry out the so-called Alien Enemies Act, a 1798 wartime law that permits people to be deported outside of the normal framework of immigration law. President Trump has alleged that this law allows him to simply point at any person, declare them to be an alien enemy, and kick them out of the country without ever having a chance to see a judge. Thankfully, the Supreme Court said that is not true, and in a unanimous decision, ruled that people can challenge the Trump administration's invocation of the Alien Enemies Act. That is why due process is so important, because it means that no person can be rounded up and sent to another country without a chance to go to court and make the government prove their case.How is the American Immigration Council working to protect due process?
- We serve thousands of individuals in immigration detention centers through the Immigration Justice Campaign, our initiative with the American Immigration Lawyers Association. The Justice Campaign provides free legal services for immigrants who would otherwise have to navigate our complicated immigration system without a lawyer.
- We use the courts to demand a fair process for immigrants. Our litigation team is fighting back against the Trump administration’s blatant disregard for due process including filing a lawsuit challenging their illegal detention of immigrants in El Salvador’s notorious Terrorism Confinement Center (CECOT).
New Pilot Program in El Paso Rushes Asylum Seekers Through A Deeply Flawed Process
Media reports today indicate that the government has initiated a new pilot program in El Paso, Texas to rush the review of sensitive asylum cases. The reported program, called “Prompt Asylum Case Review,” forces families to navigate the asylum process while detained in the custody of U.S. Customs and Border Protection. Read More
The Perils of the Migrant Protection Protocols
Rape, violence, kidnapping, and lack of basic health care is, unfortunately, a reality for hundreds of asylum seekers subjected to the Migrant Protection Protocols (MPP) or “Remain in Mexico” program. Multiple recent accounts, including a report by Human… Read More
Administrative Closure Post-Castro-Tum
This practice advisory provides a brief overview of administrative closure and explains the impact of that decision on the future availability of administrative closure, as well as on cases that are currently administratively closed. Read More
In Historic Ruling, Thousands of Immigrants Waiting for Their Immigration Records Can Now Challenge Agency Delay
A federal court in San Francisco certified two nationwide classes of immigrants and attorneys challenging extreme agency delays in producing immigration case files. Plaintiffs allege that U.S. Citizenship and Immigration Services (USCIS) and U.S. Immigration and Customs Enforcement (ICE) have a system-wide practice of failing to… Read More
Which Immigration Cases Will the Supreme Court Rule on This Session?
The Supreme Court began a new session this October, and in the coming months, the justices will hear several high-profile immigration cases. These cases involve the attempted termination of the Deferred Action for Childhood Arrivals (DACA) initiative, the highly-criticized killing of a young boy in Mexico… Read More
Judge Grants Class-Action Status to Thousands of Immigrants Waiting for Access to Their Immigration Records
A federal court in San Francisco certified two nationwide classes of immigrants and attorneys claiming that U.S. Citizenship and Immigration Services and U.S. Immigration and Customs Enforcement have a systemic pattern and practice of failing to provide access to immigration case records within deadlines set by the Freedom of Information Act. The case records, known as A-files, contain information about individuals’ immigration history in the United States. This is the first time a court has certified a class in a lawsuit alleging a pattern and practice of violating FOIA Read More
Pennsylvania Should Widen Access to Justice for People in Immigration Detention
People in immigration detention who are represented by an attorney are more likely to receive a positive outcome in immigration court than those that face judges alone. Unfortunately, people who arrive in the U.S. from other countries are not guaranteed representation even though having one can be the difference between… Read More
Agency Delay Litigation: Opposing a Motion to Dismiss
This practice advisory summarizes the most common grounds raised by the government in motions to dismiss federal court agency adjudication delay lawsuits and outlines arguments that can be made in response. Read More
Federal Judge Says DHS Must Keep Its Promise to Protect Children in Immigration Detention
A federal judge on Friday blocked the Trump administration’s attempts to significantly undo the Flores Settlement Agreement, which mandates certain protections for children held in immigration detention. The changes to the settlement would have allowed the administration to hold immigrant children and their parents indefinitely in jail-like settings. Federal Judge… Read More
Federal Judge Blocks the Expansion of Fast-Track Deportation Program, Expedited Removal
A federal judge blocked the expansion of a fast-track deportation program, known as “expedited removal,” minutes before the government said it would begin implementing its expansion on September 28, 2019. Expedited removal allows the government to deport certain people without basic legal protections. Those who are… Read More
Make a contribution
Make a direct impact on the lives of immigrants.
