Legal System
A just and fair legal immigration system upholds due process and adherence to the rule of law, while effectively managing immigration. Our efforts work to uphold the best version of the system, holding government entities accountable for fairly enforcing policies and addressing injustices at all levels of government.
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).
Supreme Court Declines to Impose New Hurdle on Immigrants Appealing their Cases
In a unanimous decision, the Supreme Court ruled last week that a transgender woman from Guatemala did not need to jump through an additional hoop—filing a new motion with the Board of Immigration Appeals (BIA)—before she could take her case to federal court to challenge her deportation order. The… Read More
Council Files Amicus Brief with Supreme Court on Fair, Consistent Way to Interpret Aggravated Felony Deportation Ground
In this amicus brief the Council urges the Supreme Court to correct the BIA's mistake in not applying that criminal "rule of lenity" when interpreting the aggravated felony deportation ground. Read More
What Is the Law? Under New Immigration Decision, the Answer Isn’t Always Clear
Written by Emma Winger and Raul Pinto of the American Immigration Council The Board of Immigration Appeals (BIA) published a decision last week seeking to address a seemingly basic question: what law should an immigration judge apply when deciding the case of a noncitizen facing removal? In a time… Read More
Immigration Agencies Violate FOIA, Harming Immigrants and Government Transparency Alike
Immigration agencies have a problem with transparency. With an immigration system as complex as ours and Freedom of Information Act offices that are chronically underfunded, it’s no surprise that immigration agencies violate FOIA—a statute created to strengthen our democracy by helping regular citizens understand what the government is up to—by… Read More
Supreme Court Pauses Oral Arguments in Title 42 Case – What’s next?
In December 2022, the Supreme Court stepped in to keep Title 42 (the pandemic health policy that has allowed the United States to carry out over 2.5 million expulsions since March 2020) in effect, after a DC court had overturned the policy. The… Read More
Practice Tip: Opposing a Motion to Dismiss Asserting the Consular Nonreviewability Doctrine in Agency Delay Cases
Practitioners who challenge delays in visa processing often face a motion to dismiss based on the consular nonreviewability doctrine. This practice tip examines the scope of the doctrine. It provides arguments, with supporting documentation, to oppose common situations that the government claims are final, nonreviewable decisions. Read More
Nightingale v. USCIS and FOIA Requests for Immigration Case Files (A-Files)
This practice advisory explains 1) the ways to submit a FOIA request for a client’s immigration records, or A-File, 2) provides suggestions for avoiding agency rejections of the requests, and 3) identifies issues related to the Nightingale injunction that class counsel are monitoring. Read More
A Guide to Obtaining Detention Records
Our comprehensive guide on obtaining detention records provides a brief overview of FOIA requirements, information about the types of records government agencies possess, tips about how to request those records, and an overview of what to expect after submitting the request. Read More
The Supreme Court Takes on Enforcement Priorities and Other Immigration Questions in Its 2022 – 2023 Term
The Supreme Court will tackle more hot button immigration issues in its 2022 – 2023 term. Front and center is the Biden administration’s effort to set immigration enforcement priorities. But the Court will also consider what a noncitizen must do to get federal court review of immigration court decisions. It… Read More
Delay Actions In The Asylum Context: Avoiding Dismissal And Proving The Case
This Practice Advisory provides information for filing a delay action in federal district court under the Mandamus Act and the Administrative Procedure Act (APA) for an asylum applicant who is awaiting an interview or a final decision on their affirmative asylum claim. It discusses the required elements of a successful APA and mandamus actions and jurisdictional hurdles. The advisory also addresses asylum-specific case law and arguments, including USCIS’s use of the “Last-In, First-Out” processing and statistics showing the growing asylum backlog. Read More
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