Opinion: Due process of law is under siege in America

What is due process of law?

The right to due process of law is a core protection around which the founders of our nation built our system of government. It is a right enshrined in the Fifth and Fourteenth Amendments to the Constitution. Its origin is the Magna Carta (1215). We inherited it from England as part of our legal identity.

Due process of law is a check against arbitrary government action. It guarantees us important rights, including the right to notice of the accusation against us, the right to a fair hearing before a neutral judicial officer, and the right to retain a lawyer, before the government may deprive us of life, liberty, or property. Along with the election franchise, due process is our primary bulwark against tyranny.

Who is ‘us’? Who is entitled to due process?

The Supreme Court has repeatedly made clear that the right to due process of law belongs to every person physically present on U.S. soil, both citizens and noncitizens. When the Preamble to the Constitution speaks of “We the people,” it includes immigrants living here, both legally and illegally.

This means even immigrants living here illegally are entitled to due process protection — the right to challenge their detention and deportation, the right to retain an attorney and the right to a bond hearing — potentially leading to release from detention while awaiting a deportation hearing. These rights apply to immigrants who:

• Entered the country without authorization and have been here for an extended period of time.
• Were inspected and admitted at the border on a valid visa, but overstay their visa.
• Are temporarily allowed into the country under special programs such as immigration parole or temporary protected status authorized by Congress for humanitarian reasons or for significant public benefit.

These three categories encompass an estimated 14 million immigrants living illegally in America today — comprising roughly 4% of the U.S. population.

Are immigrants living in the U.S. illegally receiving due process?

Today our government is systematically depriving the population of immigrants living here illegally of life, liberty and property without the due process of law to which they are entitled. Below is a list of some of the ways government infringes due process that are a part of everyday life in the chaotic world of America’s immigration system. Altogether, they drastically affect the lives of millions of human beings. Each of these actions and omissions against immigrants living in the U.S. illegally is either a direct violation of due process or contributes to a violation of due process:

• Unholy pressure on ICE agents to meet a quota of 2,000 arrests per day.
• Masked ICE agents on doorsteps, in the corridors of courthouses, inside and outside workplaces, cruising the streets, and prowling neighborhoods to make arrests without warrants.
• Acts of violence by ICE agents against immigrants living in the U.S. illegally.
• Immigrant jails crowded mainly (over 70%) with people innocent of any crime.
• Immigrants detained for months and years awaiting deportation hearings.
• Immigrants denied the opportunity to see and challenge the evidence against them.
• Denial of bond hearings.
• Effective denial of the right to legal representation.
• Immigration hearings that are not real hearings at all, rather cattle calls where immigrants are processed en masse without individualized consideration of their cases.
• Immigration judges who are unable or unwilling to act impartially because they are not real (i.e., neutral) judges at all, but employees of the U.S. Department of Justice who are constantly at risk of being fired for failing to issue enough removal orders to satisfy the administration.
• Overtaxed immigration courts: Approximately 3,195,137 immigration cases were pending in immigration courts as of June 2026, an astronomical number augmented by tens of thousands of new cases per month.
• A shortage of immigration judges made worse by firing more than 100 of them (one-seventh of the total) for political reasons.
• Rushed and mistaken decisions by overwhelmed immigration judges.
• Effective denial of the right to seek habeas corpus relief in many cases.
• Military lawyers substituting for immigration judges.
• Relentless pressure on immigrants to abandon their legal rights and self-deport, including offering them bribes of $2,600.
• Abruptly terminating temporary protected status for hundreds of thousands of immigrants and issuing fines of $998 per day for failure to leave immediately. Fines are applied retroactively (often up to five years), some totaling $1 million or more.
• DHS’s decision to overturn 40 years of precedent and seek expedited removal of all immigrants living in the country illegally, not just those apprehended within 100 miles of the border within 14 days following unauthorized entry.
• Summary removal to third-party countries without assessing their tolerance for persecution/torture.
• Housing immigrants in warehouse jails, where the right to due process is expendable.
• Inhumane conditions in many of ICE’s 200 jails.
• More than 145,000 children with at least one parent detained by ICE nationwide.
• More than 22,000 U.S. citizen children deprived of both co-resident parents by ICE, leaving them without any parent at home.
• Forcing children of detained parents into foster care.
• Incessant shuttling of immigrants back and forth in the U.S. detention system, including 100 or more flown out of Salt Lake City weekly, effectively preventing them from asserting their rights.
• Incarceration of children.
• A complicated system of immigration laws and procedures that baffles even lawyers.
• Expenditure of $45 billion by ICE to jail approximately 400,000 immigrants arrested in the nation’s interior as a solution to a problem that doesn’t exist; immigrants in the interior are seldom flight risks, threats to their communities or unlikely to appear at court hearings; detention is no more necessary for them than for citizens.

This is the lawless frontier of today’s immigration system, where miscarriages of justice of are routine.

Why denial of due process to unauthorized immigrants matters

Due process of law is under siege in America, and when due process of law is under siege, democracy is under siege; government accountability declines and personal liberties erode.

The signers of the Constitution intended due process of law for the purpose of securing the blessings of liberty to themselves and their posterity — citizens and noncitizens alike. Today, it is our task to resecure the blessings of liberty for us and our posterity — citizens and noncitizens alike. We are failing catastrophically.

The list above reflects an animus toward immigrants unworthy of great nation. ICE’s crackdown in all its permutations is a stain on our national character as damnable as Jim Crow — a racist attack on 14 million unauthorized immigrants living in America today who are entitled by constitutional decree to the due process of law we are systematically denying them.