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).
Arizona’s New Law Upends Federal Priorities
Today, a federal judge will begin to hear arguments on Arizona law SB1070. One of the problems with SB1070 is that it places the federal government in an impossible situation. While the proponents of SB1070 say that Arizona will help ICE enforce immigration laws, the fact is that it would impinge upon ICE’s ability to fulfill its mandate, set enforcement priorities, and allocate resources effectively. SB1070 would inundate DHS with requests to determine the immigration status of individuals police have arrested for suspicion of being unlawfully present. If ICE determines that the individual is indeed unlawfully present, ICE would be expected to take custody of him/her and place him/her in deportation proceedings. Today, IPC released a new fact check on how Arizona's new law interferes with federal enforcement priorities. Read More
Obama Administration Mimics George W. Bush on Immigration Prosecutions
It would seem that the Obama administration has chosen to mimic its predecessor in its zeal to pursue the criminal prosecution of unauthorized immigrants for minor, nonviolent offenses such as crossing the border. As the Associated Press reported recently, “federal prosecutions of immigrants soared to new levels this spring, as the Obama administration continued an aggressive enforcement strategy championed under President George W. Bush.” However, the IPC has noted that this “dramatic increase in criminal prosecutions can be traced in large part to Operation Streamline, a Department of Homeland Security (DHS) program which mandates federal criminal prosecution and subsequent imprisonment of all persons caught crossing the border unlawfully.” Yet large numbers of these federal immigration prosecutions “have focused on non-violent border crossers.” In other words, DHS under the Obama administration is needlessly clogging the federal courts with people who have not committed any serious crime. Read More
A Closer Look at the Seven Lawsuits Challenging Arizona Law S.B. 1070
Almost immediately after Arizona governor Jan Brewer signed S.B. 1070 into law, lawsuits were filed in federal court in Arizona challenging the law. The lawsuits all seek the same result—a halt to the law’s enforcement—although each suit argues different grounds. Some suits cite civil liberty violations, racial profiling and unlawful regulation of federal immigration law, while another suit states that the police training videos exacerbate conflicts between federal and state law. As July 29, 2010, the date S.B. 1070 is set to go into effect, draws near, litigants and supporters on both sides of the lawsuits are seeking swift resolutions. Ultimately though, the timing of any resolution will depend on the court. Read More
Arizona Senators Decry DOJ Lawsuit Yet Refuse to Support Immigration Reform
Yesterday, the Department of Justice (DOJ) filed a lawsuit against the state of Arizona, challenging the state’s immigration enforcement law (SB 1070). The DOJ lawsuit—which seeks to stop the law from going into effect on July 29th—argues that Arizona’s law is unconstitutional since it claims state authority over federal immigration policy. While political opposition in Arizona to DOJ’s legal challenge has come from both parties, some of the most laughable comments have come from Arizona’s Republican Senators who have used the lawsuit as yet another opportunity to claim that the Obama administration has failed to do anything on immigration. Only Senator Lindsay Graham (R-SC) has been willing to engage the Democrats on immigration at all this year and even still, Sen. Graham back peddled after health care reform was passed. To date, ZERO Republicans are willing to step forward and play ball on an actual immigration reform bill—which makes the political finger-pointing from those unwilling to meet the President halfway all the more infuriating. Read More
The United States v. Arizona: Drawing a Clear Line Between Federal and State Immigration Authority
Washington, D.C. – Today, the United States Department of Justice filed a lawsuit against the state of Arizona in federal court. The lawsuit, prompted by passage of SB 1070 in the Arizona legislature, will argue that federal law trumps the state statute and enforcing immigration law… Read More
A Lopsided Approach to Border Violence Doesn’t Solve Anything
During a debate of the defense authorization bill this week, Republican members of Congress are expected to push for the deployment of even more troops to the border. This is in addition to the 1,200 National Guard troops President Obama already requested to address border violence and the flow of drugs and guns across the border last month. However, while advocating for the allocation of more money and manpower to “secure the border” may make for good campaigning in an election year, experts find that beefing up the border actually does little to curb border violence. In fact, these “get tough” border initiatives—more troops, fencing and operations that target non-violent border crossers—pull valuable resources away from solving violent crimes. Read More
Class Action Challenging Arizona Law Reveals Depth of Constitutional Rights at Stake
Yesterday, a diverse group of individuals and organizations filed a class action challenging Arizona’s harsh immigration enforcement law SB 1070, scheduled to go into effect on July 28, 2010. This law, among other things requires state and local law enforcement to check the immigration status of individuals it encounters, and makes it a state crime to be without proper immigration documentation. The lawsuit offers a compelling look at the egregiousness of the law, the variety of constitutional rights at stake, and the diverse group of individuals and organizations who will be adversely affected if the law goes into effect. Read More
Immigrants, African Americans and the Struggle for Civil Rights
In a new report released today by the Immigration Policy Center, Before Brown, There was Mendez: The Lasting Impact of Mendez v. Westminster in the Struggle for Desegregation, author Maria Blanco examines the impact of a federal circuit court's 1947 decision which found the segregation of Mexican American school children in California unconstitutional. It is fitting that Blanco, who is the Executive Director of the Chief Justice Earl Warren Institute at Berkeley Law, wrote this paper because of the key role that Justice Warren played in both the Mendez and Brown cases. Before Brown, There was Mendez tells a unique story of an immigrant family as well as the story of the people who came together to support them and make history. The Mendez family story alone is an amazing tale of strength and perseverance in the face of discrimination and bigotry. Read More
The Lasting Impact of Mendez v. Westminster in the Struggle for Desegregation
Years before the U.S. Supreme Court ended racial segregation in U.S. schools with Brown v. Board of Education, a federal circuit court in California ruled that segregation of school children was unconstitutional—except this case involved the segregation of Mexican American school children. The Ninth Circuit Court of Appeals reached this historic decision in the case of Mendez v. Westminster in 1947—seven years before Brown. Historic in its own right, Mendez was critical to the strategic choices and legal analysis used in arguing Brown and in shaping the ideas of a young NAACP attorney, Thurgood Marshall. Moreover, the Mendez case—which originated with LULAC but benefited from the participation of the NAACP—also symbolized the important crossover between different ethnic and racial groups who came together to argue in favor of desegregation. From a legal perspective, Mendez v. Westminster was the first case to hold that school segregation itself is unconstitutional and violates the 14th Amendment. Prior to the Mendez decision, some courts, in cases mainly filed by the NAACP, held that segregated schools attended by African American children violated the 14th Amendment’s Equal Protection Clause because they were inferior in resources and quality, not because they were segregated. Read More
New TRAC Reports Show a Staggering Immigration Caseload and an Unrelated Drop in Federal Prosecutions
The Transactional Records Clearinghouse (TRAC) reports that the backlog in U.S. Immigration Courts reached an all-time high of 228,421 cases in the first months of fiscal year (FY) 2010. However, the Executive Office for Immigration Review (EOIR) is taking important steps to alleviate this backlog by attempting to hire more immigration judges. The number of cases awaiting a hearing is up 23% from the end of FY 2008, and up 82% from 10 years ago. This has led to the average pending time for each individual case at the EOIR to rise to an all time high of 439 days. Read More
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