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).
After Justice Department Admits Mistake, Immigrant Advocates Ask Supreme Court to Fix Prior Opinion
Of the many problems with our immigration system, one of the least known—but most frustrating—is that when the government deports immigrants whose appeals are still pending, it offers little to no help returning to the United States if they ultimately prevail in court. Immigrant advocates were thus perplexed when the Justice Department filed a Supreme Court brief in 2008 claiming to have a “policy” of helping such immigrants return to the country. Now, more than three years after the brief was filed, the current administration has conceded that no such policy existed at the time—and immigrant advocates have asked the Court to modify a portion of its ruling that relied on the government’s misstatement. Read More
Supreme Court Asks Hard Questions at Oral Arguments Over Arizona SB 1070
Almost two years to the day after Arizona enacted the notorious immigration law known as SB 1070, the Supreme Court heard arguments in what could be the first of many cases over the validity of the measure. Although most critics of the law have focused on its potential for civil rights violations, the only question before the Justices was whether federal immigration laws “preempt” four provisions of SB 1070 that were blocked by lower courts. While the ultimate fate of those provisions will not be known until a ruling is announced, a few preliminary observations can be made based on the questions posed by the Justices. Read More
Five Things to Know Before the Supreme Court Hears Arguments on Arizona SB1070
In less than 48 hours, the Supreme Court will hear oral arguments in Arizona v. United States, the long-anticipated dispute over the legality of SB 1070. More than any case in recent history, the dispute raises fundamental questions about the role of states in the enforcement of federal immigration law. The Court’s decision could thus determine not only the future of SB 1070, but the fate of other state immigration laws being challenged in court and the odds of similar laws being passed around the country. While much ink has already been spilled about the case, below we’ve highlighted five important facts to remember before the argument. Read More
AIC Challenges BIA Decision Denying Miranda-like Warnings to Immigrants Under Arrest
Washington, D.C.—On Friday, the American Immigration Council challenged a decision by the Board of Immigration Appeals (BIA) ruling that immigrants who are arrested without a warrant do not need to receive certain Miranda-like warnings before being interrogated. Under federal regulations, immigration officers must advise such noncitizens of the reason… Read More
Does the Punishment Fit the Crime? Experts Examine “Proportionality” and “Discretion” in Our Immigration System
As immigration becomes an ever more controversial part of the American debate, conversations often turn to details about legislation and court battles rather than questioning whether fundamental principles of justice are being applied throughout our immigration system. Two new reports released today, however, address some of these key principles, such as the idea of proportionality (whether the punishment fits the crime in immigration court) and the idea of discretion (how and when immigration law is applied). While these reports probe different areas of immigration law, they both represent a new way of thinking about how our immigration system functions, or at least should be functioning, today. Read More
Appellate Court Hears Arguments in Case Challenging DOMA, Bi-National Married Couples File New Suit
Same sex couples face often insurmountable hurdles when it comes to immigration status. Under the Defense of Marriage Act (“DOMA”), lesbian and gay U.S. citizens and lawful permanent residents are barred from obtaining immigrant visas for their spouses. When Congress enacted DOMA in 1996, no state celebrated marriages between gay and lesbian couples. But, the landscape has changed. Today, lesbian and gay couples in six states plus the District of Columbia have the freedom to marry under state law. This welcome progress, however, does not help the estimated 36,000 lesbian and gay bi-national couples living in the United States. Because DOMA prohibits immigration authorities from recognizing same sex marriages that are legal under state law, bi-national married couples continue to face potential separation. However, last week brought us closer to immigration equality for lesbian and gay couples. Read More
Proportionality in Immigration Law: Does the Punishment Fit the Crime in Immigration Court?
Proportionality is the notion that the severity of a sanction should not be excessive in relation to the gravity of an offense. The principle is ancient and nearly uncontestable, and its operation pursuant to diverse constitutional provisions is well-established in numerous areas of criminal and civil law, in the United States and abroad. Immigration law, however, which is formally termed “civil” but is functionally quasi-criminal, has not previously been subject to judicial or administrative review for conformity to constitutional proportionality principles. Yet it is undisputed that the Due Process Clause—one of the sources of the proportionality principle in American law—applies to immigration proceedings. This Perpsectives suggests that understanding the use of proportionality in criminal and civil law offers immigration practitioners a new way to challenge the status quo, particularly in cases where the underlying basis for the removal order and the resulting consequences of removal are so disparate. Applying established proportionality principles, attorneys and policymakers can both argue for a more sane and balanced approach to immigration enforcement, one that measures the relative nature of an immigration offense against the severity of the current removal system, while securing judicial review of individual removal orders for consistency with constitutional proportionality requirements. Listen to Michael Wishnie discuss this paper: Read More
Supreme Court Flooded with Briefs Opposing Arizona SB 1070
Proponents of Arizona SB 1070 often insist that the infamous immigration law enjoys considerable public support. Yet even if such claims are correct, one would hardly know it from the flood of briefs filed at the Supreme Court this week opposing the measure. Unlike the monolithic set of briefs filed last month in support of SB 1070, the briefs opposing the law were submitted by a strikingly broad range of parties—from commissioners of the former INS, to more than 40 cities and counties, to a group of law enforcement officials that includes an Arizona sheriff whose county shares a border with Mexico. Read More
The Council Applauds Supreme Court Decision Rejecting Retroactive Application of Immigration Law Provision
Washington, D.C.—Yesterday morning, the Supreme Court issued an important decision, Vartelas v. Holder, No. 10-1211, rejecting the retroactive application of a provision of a law passed by Congress in 1996 that has prevented many lawful permanent residents (LPRs) from returning to the United States after a trip abroad. Citing… Read More
Supreme Court Brief on SB 1070: Arizona Seeking Confrontation, not Cooperation
When Arizona Governor Jan Brewer wagged her finger in President Obama’s face at a Phoenix airport earlier this year, she may have been seeking to score political points with the White House’s ideological opponents. What the governor may not have realized, however, is that she was giving the Obama administration the photographic equivalent of its closing argument in the legal challenge to SB 1070—namely, that Arizona is more interested in confronting the federal government than cooperating with it. Read More
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