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).
The Trump administration makes it harder for unaccompanied children to navigate the immigration courts by attacking their right to counsel
A large federal contract that had funded the nonprofit legal organizations representing more than 20,000 unaccompanied immigrant children expired on July 31. The end of the contract impacts a nationwide network of nearly 100 legal service providers that help migrant children navigate one of the… Read More
Federal Court Delivers Major Blow to Trump Detention Policy of Jailing Immigrants With No Hearing, No Explanation
WASHINGTON, D.C., July 3, 2026 — On July 2, the U.S. Court of Appeals for the Fifth Circuit ruled that people facing immigration detention have the right to meaningful due process protections and must be afforded a bond hearing within 90 days. The decision deals a major blow to… Read More
The Asylum Turnback Case: From the First Filing to the Supreme Court
After years of jockeying through the courts, on June 25, a 6-3 majority of the U.S. Supreme Court sided with the government in Mullin v. Al Otro Lado. First filed in 2017, Al Otro Lado is the Council’s long-running litigation challenging the first Trump administration’s policy of turning back people seeking asylum as they approached ports of entry on… Read More
As Public Support for Mass Deportation Falls, New Proposal Seeks to Restore Credibility and Humanity in Immigration Enforcement
Washington DC, May 12 Tues – Today, the American Immigration Council released a new framework calling for the overhaul of the United States’ immigration enforcement system. The framework argues that the country’s current approach is fundamentally disconnected from public safety and has trapped the immigration debate into a… Read More
Defending the Constitutional Right of Longtime Residents to Challenge Their Detention
On July 2, 2026, the U.S. Court of Appeals for the Fifth Circuit held that noncitizens subject to mandatory detention under 8 U.S.C. § 1225(b)(2) have a due process right to challenge their detention under the Fifth Amendment. The court’s ruling has enormous implications for the thousands of noncitizens… Read More
Council Submits FOIA Request Seeking Information on Immigration Judge Training
In February 2025, the Executive Office of Immigration Review (EOIR) began firing over 100 immigration judges without reason. These judges had completed EOIR’s training program before investiture, and many of them had years of experience adjudicating complex immigration cases. On August 28, however, EOIR submitted a final rule that… Read More
Supreme Court Today: Immigration Advocates Tell Justices Trump’s Turnback Policy Violated Law
Thousands denied right to seek asylum and forced back into danger; case has implications for refugee rights March 24, 2026, Washington, D.C. – Immigration advocates argued today before the Supreme Court that the Trump administration’s turnback policy violated federal immigration law. Under the now-defunct policy, immigration officers… Read More
Electronic Filing and Access to Electronic Federal Court Documents
This Practice Advisory explains the federal rules authorizing electronic filing in federal court; describes how to file documents in federal court using the Electronic Case Files (CM/ECF) System; and outlines how to access electronic documents through Public Access to Court Electronic Records (PACER). The Advisory discusses restrictions on electronic access to court documents in immigration cases. Read More
Federal Court Blocks Significant Pieces of Administration’s Sweeping Immigration Appeals Rule That Eliminates Meaningful Judicial Review
Order Halts Implementation of Dangerous Steps that Would Have Dismantled Safeguards at the Board of Immigration Appeals Washington, D.C. — The U.S. District Court for the District of Columbia issued an order late last night in Amica Center for Immigrant Rights et al. v. Executive Office for Immigration… Read More
Challenging the Trump Administration’s Regulation Gutting Appellate Review at the Board of Immigration Appeals
In February 2026, the Trump administration issued an Interim Final Rule (IFR) that guts the Board of Immigration Appeals, the agency that hears appeals of cases from immigration courts. The IFR upends the system for noncitizens to be able to challenge adverse immigration judge decisions, making summary dismissals the… Read More
America's story is an immigrant story.
