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).

Request to Repeal EOIR Rule Imposing Immigration Fee Increases

The American Immigration Council and over 150 organizations supporting people in proceedings before the Immigration Courts or the Board of Immigration Appeals (BIA) sent a letter to the Executive Office of Immigration Review (EOIR)—which oversees immigration courts and houses the BIA— to request the repeal of the EOIR rule that drastically increases immigration court fees across-the-board for critical immigration filings. The rule imposes excessive fees on already vulnerable non-citizens — many of them unrepresented — seeking to defend their liberty, and often their lives, in proceedi

Coalition Letter on COVID-19 to Domestic Policy Council and Executive Office of Immigration Review

The American Immigration Council, sent a letter to the White House Domestic Policy Council and the Executive Office for Immigration Review (EOIR) letter raising major concerns about the ICE and EOIR response to COVID-19 and calls on the Biden administration to effectuate new emergency responses as the virus overruns local health systems across the nation.

11 Years of Government Data Reveal That Immigrants Do Show Up for Court

A new report released today by the American Immigration Council examines 11 years of government data on the rate at which immigrants appear for hearings in U.S. immigration court. The report, “Measuring In Absentia Removal in Immigration Court,” concludes that an overwhelming 83% of immigrants attend their immigration court hearings, and those who fail to appear in court often did not receive notice or faced hardship in getting to court.