The Constitution grants certain due process rights to citizens and noncitizens on United States soil. Though the country’s immigration system has never ensured those rights were fully and adequately respected, we are now witnessing an increasingly devastating attack on the right to due process for immigrants.

What is due process?

A core principle of the U.S. government is that all people have the right to fair treatment under the law. Due process of law, enshrined in the Fifth and 14th Amendments, requires the government to provide a person with notice and an opportunity to make their case in court before depriving them of life, liberty, or property.

Due process protects us from the arbitrary exercise of government power. It is the reason that police and prosecutors must prove that they had probable cause to arrest a person, that the government cannot arbitrarily cut off someone’s public housing or food assistance, and that civil court processes must be followed before the state can terminate a parent’s rights.

Are immigrants entitled to due process when facing deportation?

Yes. The Fifth and 14th Amendments’ due process clauses protect every person within U.S. borders, regardless of immigration status. The Supreme Court recently reaffirmed this, ruling that immigrants facing deportation under the Alien Enemies Act are entitled to the opportunity to challenge the legality of their detention before removal. The Court cited its ruling in Reno v. Flores, a 1993 case where Justice Antonin Scalia wrote, “it is well established that the Fifth Amendment entitles [immigrants] to due process of law.”

This means that a person accused of being in the country without authorization should have the right to a fair trial in immigration court. People should have a chance to see and challenge the evidence against them. This can prevent harmful injustices and the unchecked use of government power to detain, deport, and disappear people—many of whom are seeking safety and may have the right to stay rooted in their community.

Has the immigration system ever ensured immigrants due process?

Unfortunately, in practice, deprivations of due process have long been routine and have occurred on a massive scale in our immigration legal system—leading to many examples of gross miscarriages of justice.

People facing deportation are not entitled to a court-appointed attorney if they cannot afford one. This differs from criminal court, where the Sixth Amendment of the Constitution guarantees all people the right to an attorney whether they can afford one or not. Legal representation is expensive, and far too many people in immigration court face deportation proceedings without an attorney to protect their rights. In fact, an estimated 70 percent of people held in immigration detention on deportation cases opened in the past three years are unrepresented in their proceedings. Because immigration law is notoriously complex, many people who could have established a legal right to remain in the United States with the help of an attorney are instead deported to countries where they face real danger.

Legal representation is fundamental to delivering due process. Lawyers serve as a critical check on claims made by U.S. Immigration and Customs Enforcement (ICE), ensuring that the government is following the rules and accurately interpreting the law. For example, lawyers frequently find that U.S. citizens have been unlawfully detained by ICE or that green card holders may face detention based on ICE’s erroneous application of the law. They identify when someone has legal relief from deportation and help people—including children, people who have mental health conditions, and Indigenous language speakers with limited translators available—present complex claims for the judge to consider.

In a new threat to due process, the Trump administration is bypassing immigration courts to deport people without a fair hearing.

President Trump’s mass detention and deportation agenda significantly escalates threats to due process by claiming that immigrants are not entitled to due process or a hearing at all. Trump has gone so far as to say that “you can’t have a trial for all of these people,” referring to immigrants facing separation from their families and expulsion to countries where they may face dangerous circumstances.

President Trump issued executive orders early in his second term that bypass immigration courts in many instances by expanding expedited removal, a process that allows the Department of Homeland Security to detain and deport someone without a hearing before an immigration judge. Although past administrations also used this policy, the Trump administration has supercharged the harm by expanding who is subjected to it and deploying significant resources to deport people without going through the court system.

In mid-March, President Trump invoked the wartime Alien Enemies Act of 1798 to allow his administration to deport people who are accused—oftentimes with little or no evidence—of being associated with the Venezuela-based Tren de Aragua gang without giving them the opportunity to appear before a judge. Hundreds of people, most with no criminal record, have been sent to Centro de Confinamiento del Terrorismo (CECOT)— a Salvadoran prison with a history of human rights abuses—without the opportunity to defend themselves against the accusations or to prove they have the legal right to remain in the United States. In many cases, the government’s accusations rest on nothing beyond innocuous tattoos honoring family and soccer. Andry Hernandez Romero, an asylum seeker from Venezuela whose tattoos depict crowns over the words “mom” and “dad,” was deported to CECOT with no chance to defend himself in court. Kilmar Armando Abrego Garcia, a Maryland father with protected legal status, was also wrongfully deported and placed in CECOT.

Although the Trump administration has since admitted Abrego Garcia’s deportation was an “administrative error,” it has made no effort to return him to his family. Frustrated by the Supreme Court’s affirmation that immigrants targeted under the Alien Enemies Act have a right to challenge their detention through a writ of habeas corpus, the Trump administration is reportedly considering suspending access to habeas corpus—an extraordinary measure that is only permitted “in cases of rebellion or invasion.”

For those in immigration court, the Trump administration has made it even harder to access legal counsel.

Even people who are not subjected to expedited removal will face an immigration court system with a significantly undermined ability to provide even a minimum of due process. The Trump administration’s expanded use of detention and rapid deportations will drastically reduce the likelihood that people will be able to secure legal representation to help them navigate their case.

Lawyers and the immigrant defense infrastructure that has grown over decades to protect immigrants’ rights has also come under attack. Trump has issued an executive order accusing immigration attorneys of fraud and threatening them with investigations and sanctions. He has also gutted funding for critical legal services that help people facing detention and deportation. The U.S. Department of Justice (DOJ) ordered legal service providers to cease work on critical programs including the Legal Orientation Program, the Immigration Court Helpdesk, the Family Group Legal Orientation Program, the Counsel for Children Initiative, and the National Qualified Representative Program—which represents people in detention who a judge has determined cannot competently represent themselves because of mental illness. The Office of Refugee Resettlement has also canceled the Unaccompanied Children Program, which was representing 26,000 children who arrived to the United States without a parent.

The cancellation of these bipartisan-supported, longstanding, and successful programs is being contested in litigation. Nevertheless, threats to these programs leave hundreds of thousands of people—including children—without access to the basic legal information and representation necessary to navigate complex court processes. It has also forced layoffs of hundreds of committed and experienced nonprofit legal services staff, weakening a growing field that has already struggled to meet the overwhelming demand for services.

The Trump administration has further proposed record funding for an unprecedented expansion of immigration detention by using federal prisons, military bases, the detention facility in Guantánamo Bay. None of these facilities are set up to house people who need routine access to counsel to prepare for court proceedings, adding even greater barriers for people targeted for deportation to find and communicate with an attorney.

Finally, Trump has fired or laid off dozens of immigration judges and court staff at a time when the immigration court backlog is at historic highs and he seeks to put even more people through deportation hearings. The remaining judges face even larger dockets, with directives from DOJ requiring them to terminate certain asylum claims without a hearing and consider more cases at a faster pace, resulting in an expedited process that deprives people of a meaningful opportunity to be heard.

Due process is essential.

The Constitution and our constitutional system apply to all people in the United States, regardless of where they were born. At a bare minimum, people facing deportation should be able to understand what they are accused of and be able to examine and challenge evidence, in a language they understand, alongside a trained advocate who can decipher complex immigration laws. Due process is essential to safeguard our country’s fundamental democratic values as we work to advance immigration policies that respect fairness, family unity, and human dignity.