Due process is meaningless

Something we used to think was justice

Due process is a meaningless concept in immigration court. Even if everyone had an attorney, they would not receive an opportunity to be heard in an impartial tribunal, nor would their rights be protected from the arbitrary and unjust actions of the government.

There have never been public defenders in immigration court, because the proceedings are administrative, not criminal. Even with consequences just as severe - if not more so - than those in the criminal system, it’s up to you to find your own attorney.

In the past, I supported the push for a public-defender-type system for immigration court. But at this point, that would only serve to legitimize a profoundly unjust and illegitimate system. For the majority of people who are detained, it does not matter if you have an attorney or not. Getting detained destroys your chances at immigration relief that you otherwise could win.

Bond has been eliminated for the vast majority of people in immigration court. That means that even without any criminal history, if ICE chooses to detain you, you must stay there for months until your case is decided. If you want to appeal the judge’s decision, you’re signing up for $1,000+ in government fees AND another 6+ months in detention. That’s a steep price to pay in money and time for justice that might be elusive even upon appeal.

Asylum has been decimated by the current administration. Victims of domestic violence, gang violence, and many forms of torture are now ineligible for protection. And if you don’t fill out the paperwork well enough, the judge can deny your case without even giving you the opportunity to explain yourself.

Cancellation of Removal is an option for folks who have been in the US for 10+ years and have immediate family members who are citizens or residents. The administration just narrowed this form of relief to near-meaninglessness. You have to establish that your relatives would suffer exceptional hardship without you. Having multiple children with serious medical needs is no longer enough.

Affirmative applications won’t keep you here any more. These applications are filed when you are eligible for some kind of status, but it has to be decided by a different agency, apart from the court. Earlier this year, one of my clients who was a victim of trafficking was deported while her application for a T-visa was pending.

And the Supreme Court has said that ICE can continue racially profiling. Justice Sonia Sotomayor warned: “We should not have to live in a country where the Government can seize anyone who looks Latino, speaks Spanish, and appears to work a low wage job. Rather than stand idly by while our constitutional freedoms are lost, I dissent.”

We should care about this even if it “only” concerns immigrants. And, as so many people have been saying, those of us who are US citizens might not continue to have the comfort “us vs. them” brings us, a safe insularity whereby we can still rely on due process even if they cannot. If that’s what it takes for someone to care, then please spend time worrying about getting locked up. Then imagine being unable to find an attorney, being told you are ineligible for bail and all of your pending applications are worthless, and that you must pay thousands of dollars and months of your life to have even a slim chance at something we used to think was justice.