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.
Discussing efforts in S. 744, “The Border Security, Economic Opportunity, and Immigration Modernization Act,” to restore a measure of discretion and flexibility to the immigration system.
Addressing the BIA's affirmance without opinion process, three-member panel decisions, and precedent decisions, as well as exhaustion of administrative remedies and the scope of administrative review
Regarding the departure bar to motions to reopen, ineffective assistance of counsel, fair removal procedures for noncitizens with mental disabilities, and asylum clock problems.
Addressing access to counsel, effective assistance of counsel, protections for noncitizens lacking mental competency, the employment authorization employment clock, and the departure bar to motions to reopen.
Pertaining to regulations on motions to reopen, stays of removal, bond hearings, telephonic and video hearings, filing and service of documents and decisions, and stipulated removal orders.
The American Immigration Council and National Immigration Project of the National Lawyers Guild (NIPNLG) are seeking to preserve federal court review of damages actions brought by noncitizens for abuse of authority by immigration agents.
The American Immigration Council, working with the National Immigration Project of the National Lawyers Guild, has repeatedly challenged the “departure bar,” a regulation that precludes noncitizens from filing a motion to reopen or reconsider a removal case after they have left the United States. The departure bar not only precludes reopening or reconsideration based on new evidence or arguments that may affect the outcome of a case, but also deprives immigration judges and the Board of Immigration Appeals of authority to adjudicate motions to remedy deportations wrongfully executed, whether intentionally or inadvertently, by DHS. We argue that the regulation conflicts with the statutory right to pursue reopening and, as interpreted by the government, is an impermissible restriction of congressionally granted authority to adjudicate immigration cases.
By statute, noncitizens who have been ordered removed have the right to file one motion to reopen. 8 U.S.C. § 1229a(c)(7)(A). In most cases, these statutory motions to reopen are subject to strict filing deadlines. See 8 U.S.C. §§ 1229a(c)(7)(C)(i), (b)(5)(C)(i). However, as nine courts of appeals have recognized, the deadlines are subject to equitable tolling, a long-recognized principle through which courts can waive the application of certain non-jurisdictional statutes of limitations where a plaintiff was diligent but nonetheless unable to comply with the filing deadline. Several courts have also recognized that the numerical limitation on motions to reopen is subject to tolling. The Council continues to advocate in the remaining courts of appeals for recognition that that the motion to reopen deadlines are subject to equitable tolling and, with the National Immigration Project of the National Lawyers' Guild (NIPNLG), has filed amicus briefs in the Fourth, Fifth and Eleventh Circuits.
Noncitizens facing removal must have a meaningful opportunity to present their cases to an immigration judge. On occasion, noncitizens are deprived of this opportunity due to their lawyers’ incompetence or mistake. Although the government has recognized the need for a remedy for ineffective assistance of counsel, see Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), the framework currently used to evaluate whether ineffective assistance has occurred is severely flawed. The Council has long worked to protect the right to effective assistance of counsel for noncitizens in removal proceedings.
