Due Process

Our legal system rests upon the principle that everyone is entitled to due process of law and a meaningful opportunity to be heard.  But for far too long, immigration courts have failed to provide noncitizens with a system of justice that lives up to this standard.  A noncitizen has not truly had his day in court if he is removed without ever seeing a judge, if he does not have access to counsel and necessary evidence, or if the decision in his case receives only perfunctory review.  The 2013 Border Security, Economic Opportunity, and Immigration Modernization Act (“S. 744”) would take significant steps toward ensuring noncitizens have a fair hearing.  This fact sheet explains some of the critical policy proposals found in S. 744 and the basis for them.

A system without sufficient protections

Deportation without a judge

In the current system, many immigrants who are removed never see the inside of a courtroom.  In fact, the majority of noncitizens are returned to their home countries through accelerated processes that do not include a hearing before a judge.  Even immigrants who are entitled to hearings may not make it to court if an immigration agent convinces them to agree to be deported before their first hearing.  More than 160,000 immigrants agreed to these “stipulated removal” orders between 2004 and 2010; the vast majority were unrepresented and in immigration detention.  Those whose cases reach immigration court appear before overburdened judges with insufficient time and resources for the cases in front of them.

Vulnerable immigrants without attorneysRead more...

Published On: Wed, May 15, 2013 | Download File

There is a growing consensus that our immigration system is broken. Severe visa backlogs hurt U.S. businesses, undocumented workers are frequently exploited, and record levels of deportations tear families apart. While much energy is now focused on addressing these problems, one issue that is frequently overlooked is the structure and quality of justice accorded immigrants who are caught in the enforcement net. In reforming our immigration system, we must not forget that the immigration removal system—from arrest to hearing to deportation and beyond—does not reflect American values of due process and fundamental fairness.

The failure to provide a fair process to those facing expulsion from the United States is all the more disturbing given the increasing “criminalization” of the immigration enforcement system. Although immigration law is formally termed “civil,” Congress has progressively expanded the number of crimes that may render an individual deportable, and immigration law violations often lead to criminal prosecutions. Further, local police now play an increasingly active role in immigration enforcement. Consequently, even relatively minor offenses can result in a person being detained in immigration custody and deported, often with no hope of ever returning to the United States.

This special report is a product of the Immigration Policy Center and the Legal Action Center of the American Immigration Council.  It lays out the the incongruency of America's criminal justice system and its immigration justice system, and provides recommendations for how these problems could be fixed.

Read the report here.

Read the policy recommendations here.

Published On: Tue, Mar 19, 2013 | Download File