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.
The American Immigration Lawyers Association and the American Immigration Council released documents obtained via Freedom of Information Act litigation revealing the Department of Justice Executive Office for Immigration Review’s updated hiring plan for immigration judges and appellate immigration judges.
Today’s Court decision denying the emergency temporary restraining order in NIPNLG, et al., v. EOIR, et al., is deeply disappointing. This lawsuit was brought against the Executive Office for Immigration Review and U.S. Immigration and Customs Enforcement to protect the health of immigration attorneys, immigrants, and the public from the impact of dangerous and unconstitutional policies during the COVID-19 pandemic.
This practice advisory discusses the standards of review that the Board of Immigration Appeals is required to employ when it reviews appeals of immigration judge decisions.
Immigration groups moved for an emergency temporary restraining order against the Executive Office for Immigration Review and U.S. Immigration and Customs Enforcement in order to protect the health of immigration attorneys, immigrants, and the public from the impact of dangerous and unconstitutional policies during the COVID-19 pandemic.
This lawsuit demands the government take immediate actions to prioritize the health and safety of attorneys and clients at risk in response to the COVID-19 pandemic.
The U.S. Court of Appeals for the Ninth Circuit has upheld a ruling blocking a Trump administration policy that categorically denies bond hearings to asylum seekers. The case is Padilla v. ICE.
This urgent letter from over 100 organizations expressing deep concern about the need for remote legal access and representation in immigration court and detention during the COVID-19 pandemic.
In a letter calling for prioritizing the health and safety of government employees, detained individuals, and their legal representatives amid the COVID-19 outbreak, the American Immigration Council and the American Immigration Lawyers Association, together with the National Immigrant Justice Center, the Southern Poverty Law Center, and more than 100 other organizations, urged the U.S. Department of Justice Executive Office for Immigration Review and U.S. Immigration and Customs Enforcement to immediately authorize the robust and automatic use of remote options for immigration court appearances and attorney-client meetings.
The American Immigration Council and the American Immigration Lawyers Association filed a lawsuit Tuesday in federal court to compel the Department of Justice’s Office of Information Policy to release records about the Executive Office for Immigration Review’s hiring procedures for appellate immigration judges and Board of Immigration Appeals Members. The lawsuit seeks to understand current hiring procedures for the BIA—the highest administrative body for interpreting and applying immigration laws—after reports came to light of anti-immigrant bias in the hiring process.
