What Is Due Process—and Why It Matters Now More Than Ever in U.S. Immigration Law

In the American legal system, due process is a foundational principle that protects individuals from arbitrary or unjust treatment by the government. Enshrined in the Fifth and Fourteenth Amendments of the U.S. Constitution, due process ensures that no person—citizen or noncitizen—can be deprived of “life, liberty, or property” without fair legal procedures. In the context of immigration law, due process is both a legal shield and a moral compass, protecting vulnerable individuals from rushed or discriminatory decisions that could upend their lives.

The role of due process in immigration is under renewed scrutiny. Immigration law is one of the few areas where executive authority is expansive, and the threat of sweeping enforcement policies, mass removals, and curtailed legal protections looms large. That’s why now, more than ever, it’s essential to understand what due process is, how it works in immigration law, and why defending it should matter to all of us.

At its core, due process guarantees fairness in how laws are applied and enforced. It has two main components. Procedural due process refers to the specific steps the government must follow before it can lawfully deprive someone of their rights. In immigration, that means notice of hearings, access to evidence, a chance to present your case before an immigration judge, and the right to appeal. Substantive due process protects certain fundamental rights from government interference, even if fair procedures are followed. In immigration, this could apply to family unity, bodily integrity, and freedom from indefinite detention.

While immigrants may not have all the constitutional rights afforded to U.S. citizens, noncitizens are entitled to due process—a fact confirmed by the U.S. Supreme Court in multiple rulings, including Zadvydas v. Davis and Plyler v. Doe. Regardless of status, every person on U.S. soil has the right to be treated fairly by the legal system.

In immigration proceedings, due process plays out in several critical ways: the right to a hearing before an impartial judge, the right to receive notice of charges and hearing dates, the right to review the evidence against you, the right to submit your own evidence and call witnesses, the right to have legal counsel (though not provided at government expense), and the right to appeal a removal decision to the Board of Immigration Appeals and, in many cases, federal court. Due process is what prevents immigration courts from operating like conveyor belts. It is the mechanism by which individuals can explain their circumstances, challenge government claims, and seek relief under the law—whether it be asylum, cancellation of removal, adjustment of status, or another form of protection.

But in practice, due process rights are often strained by structural problems in the immigration system, including case backlogs, limited access to attorneys, language barriers, and fast-tracked removal procedures like expedited removal and the Migrant Protection Protocols. These limitations are only magnified under enforcement-heavy administrations.

Immigration due process is not just an issue for noncitizens—it reflects the integrity of the American legal system as a whole. When due process is weakened for one group, it sets a dangerous precedent for others. History has shown us that erosion of civil liberties in one area often spreads to others. Moreover, the stakes in immigration are high. We’re not talking about minor penalties or regulatory infractions. We’re talking about permanent separation from family, deportation to dangerous conditions, and the destruction of livelihoods and communities. If we’re going to enforce immigration laws, we must do so in a way that reflects our commitment to justice and humanity.

Due process is not a technicality—it is the bedrock of fairness in immigration proceedings. As we face a potential new wave of immigration enforcement, defending the procedural and substantive rights of immigrants must remain a priority. Whether someone is applying for asylum, facing removal, or seeking to keep their family together, due process is the thread that ensures every voice is heard. At a time when immigration law is vulnerable to politicized enforcement, due process must remain our non-negotiable standard. Because without it, we don’t just fail immigrants—we fail our own Constitution.