Recent efforts to defend the rights of refugee children have shed light on the broader denial of due process within the immigrant detention and deportation system. Not only do children deserve and need basic rights and a chance to tell their stories – but all immigrants, young and old – should be afforded protections.
The Supreme Court has upheld certain rights regardless of citizenship or immigration status, but it has also ruled that immigration violations are a civil, not criminal matter. Those facing deportation, therefore, do not have the same legal protections and rights guaranteed to those facing criminal proceedings.
In practice, this denies basic constitutional protections to those trapped by mechanisms of mass incarceration and deportation. This must be changed.
1. Due process protections are essential to democracy.
Due process refers to rights guaranteed by the 5th and 14th Amendments to the U.S. Constitution. Both amendments state that no person shall “be deprived of life, liberty, or property, without due process of law.” These rights are fundamental protections of individual liberty.
Last year, the American Immigration Council released a report on the systematic deprivation of rights within deportation proceedings. Immigrants do not have the same right to a court-appointed attorney, nor to a hearing before a judge, nor a bond hearing to determine if someone can be released on bail. This can mean years-long detention regardless of whether someone represents a flight risk. There is neither presumption of innocence nor a guarantee of judicial independence.
2. Denial of due process has devastating impacts.
Two weeks ago, the LA Times revealed that at least five Honduran children have been killed since February following their deportation from the U.S. Clearly, the current refugee and asylum screening procedures are insufficient and must be strengthened. Individual cases must be heard, so judges can be sure they are not to sending people – children or adults – to their deaths. This means a right to legal counsel, to a hearing before a judge and a right to appeal the decision.
Furthermore, the systematic denial of basic legal protections within detention facilities and deportation proceedings has contributed to the dramatic rise in deportations, and the devastating impacts on families and communities across the U.S.
3. Denial of due process exacerbates racial bias in the immigration enforcement system
Racial profiling by law enforcement and Border Patrol underpins the overrepresentation of Black and Latino immigrants in detention centers and deportation proceedings. The Black Immigration Network reports that “black immigrants are detained and deported at five times the rate of their presence in the undocumented immigrant community.”
A 2011 Berkley Law study demonstrates that those from Latin America are disproportionately targeted through the Secure Communities (a federally enacted fingerprint sharing program): 93% of those identified by Secure Communities are from Latin America, even though Latin American migrants represent only 77% of the undocumented population.
The lack of adequate legal protections within these systems denies essential legal tools for protecting individuals targeted by discriminatory policing practices, compounding the racial biases displayed by the U.S. criminal justice and immigration enforcement systems.
4. All human beings deserve basic legal protections – regardless of citizenship or status.
International law affirms the right to due process and equal protection under the law for all people. Specifically, the Universal Declaration of Human Rights, Article 10, states that “everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”
When the rights of some of are denied, the rights of all are weakened.
In the name of national security and anti-terrorism, for example, Arab, Muslim and South Asian communities have been targeted for unconstitutional surveillance. In the name of enforcing our immigration laws, Border Patrol agents have been given sweeping powers under cursory oversight or accountability. All the while, law enforcement agencies have become increasingly militarized.
Combined with the systematic deprivation of due process rights for immigrants, these phenomena have undermined the safety and liberty of all who reside in the U.S. Ensuring rights to due process is only one step towards remedying such ills.
Lauren Taylor is a field organizer at the Center for New Community.