Due Process and the Courts

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).

What You Need to Know About the DAPA and Expanded DACA Case Before the Supreme Court

What You Need to Know About the DAPA and Expanded DACA Case Before the Supreme Court

In the spring of 2016, the U.S. Supreme Court will consider United States v. Texas, a politically charged lawsuit about the legality of some of President Obama’s executive actions on immigration. The oral argument will take place on Monday, April 18 before the eight sitting justices. The initiatives in… Read More

Defending DAPA and Expanded DACA Before the Supreme Court

Defending DAPA and Expanded DACA Before the Supreme Court

This guide provides brief answers to common questions about United States v. Texas, including what is at stake in the case, how the litigation began, what the contested issues are, and the impact the case may have on our country. Read More

Letter by the Council and AILA urging USCIS to address reports of widespread and recurrent restrictions on access to counsel. (Mar. 24, 2011)

Letter by the Council and AILA urging USCIS to address reports of widespread and recurrent restrictions on access to counsel. (Mar. 24, 2011)

In this March 24, 2011 letter, the Council and AILA urged USCIS to address reports of widespread and recurrent restrictions on access to counsel. These restrictions, documented in a nation-wide survey (http://www.aila.org/infonet/final-results-attorney-representation-before-dhs) of immigration attorneys, included limitations on attorneys’ ability to communicate with their clients, restrictions on attorney seating during USCIS interviews, and limitations on attorneys’ ability to submit documents to the interviewing officer. Read More

Council and AILA’s Recommendations for Changes to the USCIS Adjudicator's Field Manual (AFM)

Council and AILA’s Recommendations for Changes to the USCIS Adjudicator’s Field Manual (AFM)

The Council and AILA provided recommendations for changes to the USCIS Adjudicator's Field Manual (AFM) to better safeguard the attorney's role in USCIS interviews. These recommendations were in response to a request from USCIS to present specific recommendations for changes to USCIS guidance on access to counsel. Read More

Comments to the USCIS Interim Memo “The Role of Private Attorneys and Other Representatives; Revisions to Adjudicator’s Field Manual (AFM) Chapters 12 and 15; AFM Update AD11-42.”

Comments to the USCIS Interim Memo “The Role of Private Attorneys and Other Representatives; Revisions to Adjudicator’s Field Manual (AFM) Chapters 12 and 15; AFM Update AD11-42.”

The Council and AILA submitted comments on the USCIS Interim Memo “The Role of Private Attorneys and Other Representatives; Revisions to Adjudicator’s Field Manual (AFM) Chapters 12 and 15; AFM Update AD11-42.” The comments recommended, among other things, that USCIS take additional steps to clarify the role of attorneys and the treatment of attorneys’ written submissions; to address continued limitations on attorney seating; to expand the requirements related to waivers of representation; and to improve the complaint process. Read More

Council and AILA comments to the DOJ/EOIR regarding the “Retrospective Regulatory Review” (Nov. 27, 2012)

Council and AILA comments to the DOJ/EOIR regarding the “Retrospective Regulatory Review” (Nov. 27, 2012)

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. Read More

Council and AILA Letter Urging ICE to Address Reports of Restrictions on Access to Counsel in a Range of Interview Settings

Council and AILA Letter Urging ICE to Address Reports of Restrictions on Access to Counsel in a Range of Interview Settings

In this letter, the Council and AILA urged ICE to address reports of restrictions on access to counsel in a range of interview settings. These restrictions, documented in a nation-wide survey of immigration attorneys, included complete bars to attorney presence during ICE interviews and limits on participation when attorneys are permitted to be present. Attorneys also reported that ICE officers often were antagonistic toward attorneys. Read More

Comments on the Immigration Adjudication Draft Report by the Administrative Conference of the United States (ACUS) (Feb. 13, 2012)

Comments on the Immigration Adjudication Draft Report by the Administrative Conference of the United States (ACUS) (Feb. 13, 2012)

Addressing representation, stipulated removal orders , prosecutorial discretion, video hearings, and the asylum clock. Read More

Council and AILA letter urging CBP to address restrictions on access to counsel

Council and AILA letter urging CBP to address restrictions on access to counsel

In this May 11, 2011 letter, the Council and AILA urged CBP to address restrictions on access to counsel. These restrictions - documented in a nation-wide survey of immigration attorneys - included limitations on attorneys’ access to their clients in secondary and deferred inspection. In instances where attorneys were able to accompany their clients, CBP officers limited the scope of representation. Attorneys also reported that CBP officers prevented attorneys from providing relevant documentation and sometimes adopted an adversarial approach. Read More

Testimony submitted to the Senate Judiciary Committee for May 18, 2011 hearing, “Improving Efficiency and Ensuring Justice in the Immigration Court System.”

Testimony submitted to the Senate Judiciary Committee for May 18, 2011 hearing, “Improving Efficiency and Ensuring Justice in the Immigration Court System.”

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. Read More

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