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).
Calls for Independent Immigration Court Grow Louder at Congressional Hearing
A congressional oversight committee held a hearing this week on the need for immigration court reform and the systemic due process challenges within the immigration court system. The House Judiciary Committee’s Subcommittee on Immigration and Citizenship heard from several experts on the issue. Most experts made… Read More
Statement for the House Judiciary Committee on “Courts in Crisis: The State of Judicial Independence and Due Process in U.S. Immigration Courts”
The American Immigration Council submitted a written statement to the House Judiciary Committee’s Subcommittee on Immigration and Citizenship for a January 29, 2020, hearing on “Courts in Crisis: The State of Judicial Independence and Due Process in U.S. Immigration Courts.” The statement shares our analysis and research regarding the systemic… Read More
Judge Allows Certain Family Separations at the Border to Continue
The Trump administration received an unfortunate victory in the case against their family separation policy. On January 13, 2020, Federal Judge Dana Sabraw sided with the government in a lawsuit challenging continued separations at the border. Although the judge ordered an end to most family separations in 2018, he has… Read More
Tent Immigration Courts Are Still Not Fully Open to the Public
Asylum seekers subject to the Migrant Protection Protocols—or the “Remain in Mexico” program—in Laredo and Brownsville, Texas attend their court hearings in tents known as “port courts.” The government announced these secretive courts would finally be opened last week, but the public still does not have full access. For the… Read More
‘Zero Tolerance’ Overwhelmed Courts and Diverted Resources From Criminal Investigations
Attorney General Sessions’ orders to prioritize prosecuting people for immigration-related offenses in 2017 and 2018 put a significant strain on law enforcement across the border, diverting resources away from drug and organized crime prosecutions. The increase in immigration prosecutions, which played a primary role in the… Read More
Immigration Courts Further Limit Legal Help Available to People Facing Deportation
Every year, thousands of people are forced to face the complex deportation system without an attorney representing them. Now, the immigration courts are seeking to limit the assistance that these individuals can receive from “friend of the court” attorneys. The Executive Office for Immigration Review (EOIR), the agency which includes… Read More
Federal Court Blocks Trump Asylum Ban from Being Applied to Thousands of Asylum Seekers
A federal judge blocked the Trump administration’s asylum ban from being applied to thousands of asylum seekers who were unlawfully prevented from accessing the U.S. asylum process before the ban was implemented. Read More
‘I Was Denied Access to the Tent Courts Where Asylum Seekers Are Rushed Through a Sham Process.’
Nearly 60,000 people seeking asylum in the United States have been returned to Mexico to wait for their U.S. court hearings under the Migrant Protection Protocols (MPP), also known as the Remain in Mexico program. Last week, I traveled to South Texas to observe the effects of the Trump administration… Read More
Immigration Agencies’ Intrusive Searches of Cell Phones, Laptops Are Ruled Unconstitutional
A federal court ruled this week that sweeping policies permitting U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) to search personal cell phones, laptops, and other electronic devices without reasonable suspicion are unconstitutional. The policies that the court rejected authorized CBP… Read More
What’s Happened to the People Returned to Mexico Under the Migrant Protection Protocols?
It’s been nearly a year since the Trump administration announced the Migrant Protection Protocols (MPP), or the “Remain in Mexico” program. This program forces vulnerable asylum seekers to return to Mexico to await their U.S. immigration court dates. It has since been expanded to six cities… Read More
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