Due Process Gone Wild

The National Catholic Reporter (NCR) recently ran an article titled “Without a Lawyer, Immigrants Lost in a System Stacked Against Them.” It claims that thousands of immigrants are being denied due process because they don’t get a free lawyer at taxpayer expense.

To hear the “experts” consulted by NCR, you’d think the American immigration system was set up to play dirty tricks on foreigners. They claim:

  • Aliens don’t have full due process rights.
  • There’s a presumption of “guilt” in immigration proceedings.
  • U.S. citizens are regularly deported by the immigration court.
  • Immigrants have no right to counsel.

But these assertions are utterly spurious:

The 14th Amendment to the Constitution clearly states that all persons within the United States are entitled to both due process and the equal protection of the laws. And the Supreme Court has repeatedly affirmed this fact in Yick Wo v. Hopkins, Wong Win v. United States, Yamataya v. Fisher and Alameida-Sanchez v. U.S.

There is no presumption of “guilt” in immigration proceedings, because they are civil, not criminal. The U.S. Immigration Court has no authority to adjudicate guilt for any criminal offense. It may only determine whether an alien is subject to removal from the U.S. Deportation isn’t a form of punishment, it’s returning people to the country where they hold citizenship and are legally entitled to live.

There’s no evidence that the immigration court has a habit of deporting U.S. citizens. Northwestern University’s partisan Deportation Research Clinic (DRC) estimates that 0.005 percent of “people deported are citizens who were unable to prove their claims.” In plain English, that means some people in immigration proceedings claimed citizenship as a defense against removal but couldn’t provide evidence to substantiate their claims, so they were deported. That’s how courtroom proceedings are supposed to work. And it hardly establishes an epidemic of inappropriate deportations.

In an ideal world no U.S. citizens would ever be accidentally deported. However, the fact that it happens is not a reflection on the quality of justice that immigrants receive in U.S. courts. It is a reflection of the fact that the U.S. has no central index of citizens and no easy way of proving citizenship, unless one applies for a passport.

And immigrants do have a right to a lawyer – just not a free one. 8 U.S. Code § 1362 explicitly states that anyone in removal proceedings is entitled to counsel at his/her own expense. Free, court appointed attorneys are available to anyone in criminal proceedings. But no one is entitled to counsel at government expense in a civil proceeding, not even U.S. citizens.

American justice is based on fundamental notions of fairness. Far from being stacked against immigrants, our system even protects the rights of illegal alien felons. Expecting those who violate our borders to pay for their own immigration lawyer is neither unfair nor unreasonable. But it would be  inexcusable if American taxpayers were forced to bear the cost of a lawyer for every foreigner in deportation proceedings

About Author


Matthew J. O’Brien joined the Federation for American Immigration Reform (FAIR) in 2016. Matt is responsible for managing FAIR’s research activities. He also writes content for FAIR’s website and publications. Over the past twenty years he has held a wide variety of positions focusing on immigration issues, both in government and in the private sector. Immediately prior to joining FAIR Matt served as the Chief of the National Security Division (NSD) within the Fraud Detection and National Security Directorate (FDNS) at U.S. Citizenship and Immigration Services (USCIS), where he was responsible for formulating and implementing procedures to protect the legal immigration system from terrorists, foreign intelligence operatives, and other national security threats. He has also held positions as the Chief of the FDNS Policy and Program Development Unit, as the Chief of the FDNS EB-5 Division, as Assistant Chief Counsel with U.S. Immigration & Customs Enforcement, as a Senior Advisor to the Citizenship and Immigration Services Ombudsman, and as a District Adjudications Officer with the legacy Immigration & Naturalization Service. In addition, Matt has extensive experience as a private bar attorney. He holds a Bachelor of Arts in French from the Johns Hopkins University and a Juris Doctor from the University of Maine School of Law.


  1. avatar

    To FAIR, are you saying that all the foreigners currently being held in detention waiting for deportation court hearings are paying for their lawyers?? Is that truly happening?? The USA, nor any organization within our nation is paying for a lawyer for them?? Since it should be easy to prove that a person is in our country illegally, why are lawyers and court hearings even involved? Why isn’t US officials simply providing proof to a judge enough for deportation?? Why is it more complicated than that? And, typically, how long are these people held in detention centers before their court hearing? I recently read that all the detention centers are full up and ICE has contracted to have a new one built. Is that true? Instead of the cost of construction of another such building, wouldn’t it bed much cheaper to make use of an existing empty building in the area such as a former hotel, school, etc? Has such been even considered? Assuming the person has to pay for his/her own lawyer, we taxpayers are footing the total bill for their time in detention, aren’t we, no matter how long it lasts, food & all other essentials of daily living, medical care including doctors, nurses, medical supplies & medicines, schooling. And I assume we also provide more than adequate entertainment possibilities such as TV (cable??), video games, golf & other sports areas/equipment, etc?? You guys do a great job. Could you possibly find answers to these kinds of questions plus costs for us??

  2. Pingback: Due Process Gone Wild, Again! | ImmigrationReform.com

  3. avatar

    If you put your foot across the border from another Country with out proper document. YOU DON’T HAVE NOT ONE BIT OF RIGHTS. standing before a deport judge, you should be jailed You broke into this country. You use a false or stolen document to obtain employment. (Your driving) NO RIGHT AT ALL