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
Due process 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 deliberated 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—raising profound questions about the boundaries of constitutional protections in immigration enforcement.
Why is due process important?
Under the American Constitution 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.
Do non-citizens have the right to due process?
Yes. The U.S. Constitution guarantees due process rights to all individuals, regardless of immigration legal status. 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.
A fair hearing
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 mistaken decisions, 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 rapid deportations that deny them the opportunity to present their case to a judge.
A former immigration judge previously described immigration court hearings as “death penalty cases in a traffic court setting” because of the high stakes outcomes in a system that has limited protections. Now, fair hearings are becoming even harder to come by.
Legal representation
Another key part of due process is the right to speak with a lawyer and to have your attorney represent you in court. People in the immigration deportation process have a right to bring a lawyer with them to court, but unlike in a criminal case, they are not provided with a lawyer.
Because immigration law is very complex and some immigrants don’t speak English fluently, having a lawyer who understands the immigration rules and procedures and who can present the client’s situation to the judge is critical. It can mean the difference between people being able to stay in the U.S. with their family or being deported to a country where they fear for their life. Studies show that people with lawyers are five times more likely to receive the immigration legal status they are entitled to under the law compared to those without legal representation.
Children who arrived in the U.S. without their parents particularly need lawyers to protect their rights and ensure they are not sent back to abuse, trafficking or other danger. But recent contract terminations are threatening to effectively end a special program that for over 20 years has found lawyers to represent unaccompanied children. Without an attorney, children, including infants and toddlers, will have to face the complicated immigration process alone, with little chance to defend their rights or avoid deportation.
In April 2025, a federal court temporarily blocked the Trump administration's attempt to cut this life-saving program, but this due process protection that gives children a fair chance in immigration proceedings remains at risk.
One child in an IRC office had trouble speaking up about his story. Through play therapy, he was able to open up to “Javi,” a pig puppet used by his legal advocate. The story he shared with Javi turned out to be critical to his asylum case.
The Alien Enemies Act: A threat to due process
The Trump administration recently used the Alien Enemies Act to forcibly transport Venezuelans to a prison outside the U.S. without immigration hearings or any other legal process. This is a profound break from the Constitution and the American tradition of due process.
On March 15, 2025, President Trump declared that the U.S. was under invasion by a gang based in Venezuela and invoked the centuries-old Alien Enemies Act (AEA). Part of the Alien and Sedition Acts of 1798, the AEA gives the U.S. government authority during wars to arrest and expel non-citizens from enemy countries. It has only been used three times in U.S. history, most infamously during World War II as part of the internment of Japanese Americans, which President Ronald Reagan later described as a “grave wrong” and an action “taken without trial, without jury” that was “based solely on race.”
Under President Trump’s 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.
American authorities used this order to send 238 Venezuelans from the U.S. to a notorious prison in El Salvador without any chance to go before an immigration court or a federal judge. It remains unclear how officials decided these men were part of the gang or if they had any evidence at all, since there weren’t any individual hearings or other legal processes. Seventy-five percent of the Venezuelans sent to the Salvadoran prison reportedly have no criminal record. They include a makeup artist seeking asylum in the U.S. because he was targeted for being gay, and a man who had been granted refugee protection in the U.S.
The invocation of the AEA is a profound threat to due process. It makes Venezuelan refugees, asylum seekers and those with other legal protections vulnerable to expulsion from the U.S. without any legal process. While legal challenges are ongoing, on April 7, 2025, the U.S. Supreme Court held that before expelling anyone under the AEA, the U.S. Government must let them defend themselves in court.
A young girl reads a book in a quiet corner of an IRC Welcome Center.
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 IRC:
- The recent expansion of the fast track expedited removal process will allow immigration officers to rapidly deport people without a full hearing, including Afghans, Cubans, Haitians, Nicaraguans, Ukranians and Venezuelans who entered the U.S. with humanitarian parole protection. Under new immigration guidance, officers can terminate parole and initiate expedited removal, which includes a very limited review by an immigration judge.
- A March 2025 executive order claims that the immigration system is rife with “meritless claims” and “replete with examples of unscrupulous behavior by attorneys and law firms.” 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 mistakenly deporting a Salvadoran father of a disabled U.S. citizen child to El Savador, where he is being held in a notorious prison, despite an immigration judge having previously granted him protection against 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 International Rescue Committee (IRC) and other groups work to uphold due process for non-citizens by providing legal services, challenging harmful policies, and educating the public. IRC’s 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, IRC’s 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 The Fair Day in Court for Kids Act of 2025 and expanding access to legal representation for individuals facing deportation through the SHIELD Act.
- 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—it 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.
