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.
A federal court has blocked a Trump administration policy that categorically denies bond hearings to asylum-seekers. The policy, announced April 16 by Attorney General William Barr, targeted asylum-seekers whom immigration officers previously determined have a “credible fear” of persecution or torture if returned to the places they fled. The American Immigration Council, Northwest Immigrant Rights Project, and American Civil Liberties Union challenged the policy with the lawsuit Padilla v. ICE.
A class action lawsuit challenges the Department of Homeland Security and its component agencies’ nationwide practice of failing to timely respond to requests for immigration files under the Freedom of Information Act.
This practice advisory provides an overview of the reinstatement statute and implementing regulations, including how the Department of Homeland Security (DHS) issues and executes reinstatement orders.
The American Immigration Council, Northwest Immigrant Rights Project, and The American Civil Liberties Union, filed a proposed amended complaint in federal court today in order to challenge the Trump administration’s new policy that categorically denies bond hearings to asylum seekers. The policy, announced April 16 by Attorney General William Barr, targets asylum seekers whom immigration officers previously determined have a “credible fear” of persecution or torture if returned to the places they fled.
In a decision today, Attorney General William Barr ruled that individuals with valid protection asylum claims who entered between ports of entry no longer are eligible for release on bond by an immigration judge. The decision could result in the unnecessary detention of thousands more individuals each year, despite the enormous financial and human costs. With the Northwest Immigrant Rights Project and the ACLU, the American Immigration Council intends to challenge the new decision.
The statement shares our analysis and research regarding the nation's immigration courts, due process, and the importance of a truly fair day in court.
The statement addresses immigration court backlogs, the detailing of immigration judges to border facilities, detention policies, asylum-free zones, unaccompanied alien child definitions, and other challenges that are currently undermining due process within the immigration courts.
In a groundbreaking decision, a federal judge in Seattle dealt a blow to the government’s campaign to deter and obstruct asylum seekers applying for protection in the United States. Judge Marsha Pechman ordered the government to provide certain individuals with bona fide asylum claims either a bond hearing before an immigration judge within seven days of their request or to release them from detention.
Texas—and specifically El Paso—has been ground zero for many of the incredibly harmful policies introduced under the Trump administration, such as family separation, returning asylum seekers to Mexico to wait for hearings, and keeping migrant families under an overpass for days to wait for processing. Findings uncovered in a new complaint, however, reveal profound deficiencies […]
