Due process
In this article:
- Do non-citizens have the right to due process?
- What is the Alien Enemies Act?
- Ways to advocate for due process rights of non-citizens
is a fundamental right guaranteed by the U.S. Constitution. It protects people against arbitrary government decisions and ensures fairness in legal matters. Both citizens and non-citizens in the U.S. have the right to due process - a chance to defend their rights and to have a fair hearing.
Now, this principle faces a critical test. On April 7, 2025, the Supreme Court on whether non-citizens have the right to any form of legal process before being removed to foreign countries. Although the justices differed on the specifics of the process, they unanimously reaffirmed that the fundamental right to due process extends to everyone in America, regardless of their legal status.
This case comes amid policy changes and executive actions by the Trump administration resulting in the rapid expulsion of non-citizens, including asylum seekers, often without traditional legal hearings鈥攔aising profound questions about the boundaries of constitutional protections in immigration enforcement.
Do non-citizens have the right to due process?
Yes. Under the and laws, due process requires just and fair treatment of everyone, regardless of background or immigration status, if their life, freedom, or property is at risk. This includes having the opportunity to defend their rights in court.
But current policies that speed up deportations and limit access to lawyers have made it harder for non-citizens to get a fair chance. Furthermore, some policies are denying non-citizens any process at all before they are expelled. Due process is fundamental to ensuring credible and fair immigration and asylum systems.
What is habeas corpus?
A vital part of due process is . This protection, which predates the U.S. Constitution, allows individuals to challenge their detention by the government, ensuring that imprisonment is not arbitrary or unlawful. For immigrants, habeas corpus serves as a crucial safeguard, enabling them to contest their detention to ensure that proper legal procedures are followed. It is a fundamental check on government power and a key element in upholding justice. The Supreme Court has this year that non-citizens have a fundamental right to challenge their detention and removal through habeas corpus.
Why is a fair hearing important?
Having a chance to go before a judge is an essential part of due process. Hearings allow individuals and the government to present evidence and for the judge to make a decision based on the facts and the law. Individuals get to explain their situation and appeal , protecting their rights. Fair hearings can lead to better decisions so that the public has confidence in the integrity of the legal system.
Non-citizens facing deportation have a right to due process, which usually includes a hearing before a judge. But current policies are making it even more difficult for non-citizens to get a fair hearing - rushing decisions, limiting the authority of immigration judges, and trying to remove people from the U.S. through that deny them the opportunity to present their case to a judge.
A former immigration judge previously immigration court hearings as 鈥渄eath penalty cases in a traffic court setting鈥 because of the high stakes outcomes in a system that has limited protections. Now, fair hearings are becoming even harder to come by.
Why does legal representation matter?
The right to speak with a lawyer and to have your attorney represent you in court is a key part of due process. However, in immigration cases, unlike in criminal cases, lawyers are not provided by the government.
Immigration law is very complex, and some immigrants don鈥檛 speak English fluently. Having a lawyer who understands the complexities of the law and the immigration process鈥攁nd who can present the client鈥檚 situation to the judge鈥攊s critical. Studies show that people with lawyers are more likely to receive the immigration legal status they are entitled to under the law compared with those without legal representation.
Why are children especially in need?
Children who arrived in the U.S. without their parents need lawyers to protect their rights and ensure they are not sent back to abuse, trafficking or other danger. Without an attorney, children鈥攊ncluding infants and toddlers鈥攈ave to face the complicated immigration process alone, with little chance to defend their rights or avoid deportation.
For more than 20 years, unaccompanied children have received legal aid through a program funded by the federal government. However, contract terminations threatened to effectively end the program. On April 1, 2025, a federal court the Trump administration's attempt to cut this support and while funding has been temporarily restored through September 2025, due process protection that gives children a fair chance in immigration proceedings remains at risk.
A young girl reads a book in a quiet corner of an 探花精选 Welcome Center.
Arresting asylum seekers at immigration courthouses
As part of the Trump administration鈥檚 efforts to increase the number of deportations, there are now various of asylum seekers being arrested by officers at immigration courts during routine immigration check-ins.
Placing those seeking refuge in immigration detention makes it incredibly difficult for people to have a fair chance to present their case. Those held in detention often struggle to find lawyers, which makes it more challenging for them to be able to gather the evidence and find the witnesses they need to prove their cases on their own.
In some cases, the government is even seeking to terminate asylum seekers鈥 immigration court hearings and to put them into a fast-track expedited deportation process that further limits their due process rights, including eliminating the right to appeal to a federal judge.
The of asylum seekers attend their immigration hearings, but this type of immigration enforcement tactic at courthouses only create further fear, chaos and disorder, which could dissuade some people from showing up to their proceedings.
Members of Congress, including Republican representatives and , have expressed concerns that people who fear persecution in their home countries and who are complying with the steps of the asylum process are being needlessly arrested at immigration courts.
, a Republican state senator who worked in the Department of Homeland Security during the first Trump Administration, has criticized current immigration enforcement actions as 鈥渁rbitrary measures to hunt down people who are complying with their immigration hearings 鈥 in many cases, with credible fear of persecution claims鈥 and that 鈥渢his undermines the sense of fairness and justice that the American people value.鈥
The risks of third-country removals and expulsions
The practice of removing and expelling non-citizens to "third countries"鈥攏ations that are neither their country of origin nor the United States鈥攑resents another threat to due process rights when people are not provided proper notice or an opportunity to express fears of persecution, effectively bypassing crucial legal protections.
A landmark case, , now challenges this troubling practice. On , a federal judge the Department of Homeland Security (DHS) to stop sending non-citizens to third countries without providing them with written notice and an opportunity to challenge these removals.
Third-country removals and expulsions manifest in various forms, each with significant due process implications. For instance, in February 2025, hundreds of families and individuals, including many people who were at the southern US border, were sent by the US government to without an opportunity to apply for protection. In other cases, the government is seeking to deport people who have been through US immigration procedures and received an official removal order by sending them to a country that is not their home country. Recently, immigrants from several Central Asian countries were deported to , and the US is reportedly in talks to send others to , and . In these scenarios, it is equally crucial that, at a minimum, adequate notice and an opportunity to challenge the removals are provided before people are sent to a third country.
Due process and refoulement risks
Sending people to a country they鈥檙e not told they鈥檙e being sent to and without an opportunity to explain what danger they might face there fundamentally undermines essential due process safeguards and, in some cases, the right to seek asylum. These removals and expulsions can expose people to immediate harm in that third-country, including being held in or . It even places some of them at risk of being sent back to the home country they originally fled if such a third-country lacks fair and accessible asylum procedures, known as chain refoulement. For example, it has already been reported in , a Guatemalan man was 鈥渕istakenly鈥 deported to Mexico and then returned to Guatemala, when a judge had already found the man risked persecution or torture if returned.
In a critical development, on May 7, 2025, following reports of a planned third-country removal flight to North Africa, litigators filed an emergency motion to prevent the removal of migrants to Libya without prior notice or a chance to explain their fear of being sent there. The court that proceeding with the flight would violate existing orders, leading to its immediate cancellation鈥攈ighlighting the vital role of judicial review in protecting due process rights. The court also that the deportation of third country nationals to South Sudan without adequate notice or an opportunity to request protection violated the court鈥檚 earlier order.
The Alien Enemies Act: A threat to due process
On March 15, 2025, President Trump declared that the U.S. was under invasion by a Venezuelan gang, Tren de Aragua, and the centuries-old Alien Enemies Act (AEA). Part of the , the AEA gives the U.S. government authority during wars to arrest and expel non-citizens from enemy countries. It has only been used , most infamously during World War II as part of the internment of , which President Ronald Reagan later as a 鈥済rave wrong鈥 and an action 鈥渢aken without trial, without jury鈥 that was 鈥渂ased solely on race.鈥
Under President Trump鈥檚 current order, Venezuelans as young as 14 (with the exception of U.S. citizens and green card holders) can be expelled from the country without any hearing if they are merely accused of being members of the Tren de Aragua gang. Several lower courts as well as the Supreme Court the administration from removing people under the AEA, but litigation remains ongoing.
Forcibly transporting Venezuelans to a prison outside the U.S. without immigration hearings or any other legal process is a profound break from the Constitution and the American tradition of due process.
One child in an 探花精选 office had trouble speaking up about his story. Through play therapy, he was able to open up to 鈥淛avi,鈥 a pig puppet used by his legal advocate. The story he shared with Javi turned out to be critical to his asylum case.
How are other recent policies impacting due process?
If due process protections for non-citizens continue to be weakened, countless vulnerable people will be at risk of unjust treatment, including many of the individuals and families supported by the 探花精选:
- The recent expansion of the fast track process will allow immigration officers to rapidly deport people without a full hearing, including Afghans, Cubans, Haitians, Nicaraguans, Ukrainians and Venezuelans who entered the U.S. with humanitarian parole protection. Under new immigration , officers can terminate parole and initiate expedited removal, which includes a very limited review by an immigration judge.
- A March 2025 claims that the immigration system is rife with 鈥渕eritless claims鈥 and 鈥渞eplete with examples of unscrupulous behavior by attorneys and law firms.鈥 Threatening the use of professional and legal sanctions against attorneys who are legally and vigorously defending their clients could have a chilling effect on legal representation, further eroding due process guarantees for non-citizens who need lawyers.
- By reducing or eliminating due process protections, the administration is setting itself up to make more mistakes in its deportation efforts. Already, immigration authorities have acknowledged to El Savador, where he was held in a notorious prison, despite an immigration judge having previously granted him protection from being returned to El Salvador. Errors like this can have life or death consequences, and are the inevitable result of prioritizing speed over fair process.
Protecting due process for non-citizens
The 探花精选 (探花精选) and other groups work to uphold due process for non-citizens by providing legal services, challenging harmful policies, and educating the public. 探花精选鈥檚 programs across 24 U.S. communities offer:
- Comprehensive legal representation for refugees and other groups seeking protection, including family reunification and naturalization assistance.
- Legal screenings to help people understand their options for securing lawful status and avoid exploitation.
- Know Your Rights clinics that impart crucial legal knowledge.
- Fee waiver assistance, saving clients an estimated $1.5 million annually in immigration application costs.
- Up-to-date information through Signpost, the 探花精选鈥檚 award-winning platform combating misinformation on immigration policies and connections to critical services.
How can I help?
- Urge policy reforms to strengthen due process protections, including legislation that guarantees legal representation for unaccompanied children in immigration proceedings through and expanding access to legal representation for individuals facing deportation through the .
- Raise public awareness to promote fair treatment of all non-citizens in the U.S. and prevent the erosion of their fundamental legal rights under the Constitution.
Ensuring due process is not just a legal obligation鈥攊t is a safeguard against discrimination and injustice. Policymakers and advocates must work together to uphold these protections and prevent policies that threaten the basic rights of non-citizens in the U.S.
