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).

Comment in Opposition to Executive Office for Immigration Review Rule "Good Cause for Continuances"

The American Immigration Council and the American Immigration Lawyers Association submitted the following comments in response to the Executive Office for Immigration Review proposed rule, Good Cause for a Continuance in Immigration Proceedings. Throughout the Proposed Rule, EOIR overturns decades of precedent and discretionary policies that have protected the ability of immigrants to have a fair day in court and seek Congressionally created remedies to the harsh penalty of deportation.

District Court Orders Immigration Agencies to Produce Immigration Case Files in First of Its Kind Class Action

Judge William H. Orrick granted summary judgment in favor of two nationwide classes suing DHS, USCIS, and ICE for failing to timely produce the class members’ immigration files (A-Files). The court ordered the agencies to clear their backlogs by responding to the more than 40,000 thousand cases outstanding within 60 days.

American Immigration Council Asks U.S. Supreme Court to Ensure Bond Hearings for Certain Immigrants Seeking Protection in the United States

The American Immigration Council, other immigrant rights organizations, and legal service providers filed a friend-of-the-court (or amicus) brief with the U.S. Supreme Court. The brief urges the justices to find that immigrants who seek humanitarian protection from removal should have access to bond hearings—instead of being subjected to mandatory detention.

Lawsuit Seeks to Uncover Secretive Expansion of Judicial Black Sites for Immigration Cases

A lawsuit filed against the EOIR—which oversees immigration courts—and the GSA seeks information on the expansion and creation of immigration adjudication centers, which were established as part of EOIR’s Strategic Caseload Reduction plan designed to accelerate removal proceedings at the expense of due process.

Comment on Executive Office for Immigration Review Proposed Rule Regarding Appeal Procedures and Administrative Closure

The American Immigration Council and the American Immigration Lawyers Association, through their joint initiative, the Immigration Justice Campaign, submitted this comment in opposition to the proposed rule, "Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure."