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Due Process: A Matter Of Life And Liberty

by Donna Lipinski

Due process is fundamental to our country, and although immigration matters frequently involve issues of life and liberty, our immigration system lacks some of the most basic due process protections that we take for granted in our American system of justice. Important principles of fairness and justice are often overlooked amid the ongoing debate over immigration.

Due process must be an essential element of comprehensive immigration reform. What does "due process" mean? It means that individuals are presumed innocent until proven guilty; that there is a right to a hearing before a judge; that there is right to counsel and to examine adverse evidence; that there is a right to appeal; and that there is right to seek release on bond. It means judges should be allowed to use discretion in considering whether someone is banished from this country.

Many basic elements of due process and fairness were stripped from our immigration laws in 1996, resulting in the mandatory detention of many long-term permanent residents. Today people are being deported for offenses that were not deportable when committed, as the result of their retroactive application.

When Congress created an expanded definition of "aggravated felony," it made felons out of immigrants for relatively minor nonviolent offenses, such as writing bad checks or for shoplifting. This resulted in the deportation of immigrants for offenses that were neither aggravated nor felonies, and which were not bases for removal when committed.

People convicted of these minor offenses, which are now defined as aggravated felonies under immigration law, face mandatory detention; removal from the U.S. without a hearing before a judge; or the inability to offer any mitigating factors.

Our current laws do not permit adjudicators to consider individual equities such as the length of time individuals have been in the U.S.; whether they have U.S. citizen children or spouses; whether they are the heads of household; their ties to the community, to their churches and children's schools; whether they own homes or have cars; or whether they have jobs or pay taxes.

Truly, the real losers in this game are the lawful permanent residents and U.S. citizen children, spouses and parents whose families are split apart, whose homes are broken and whose lives are forever changed.

Our current immigration laws fail to fully uphold the tenets of due process that underlie our entire legal system, thereby denying immigrants basic fairness and justice. The time is now to restore fairness and due process to our system and to reaffirm these fundamental principles that form the heart and soul of our vibrant democracy.

About The Author

Donna Lipinski is AILA's Associate Director of Advocacy, Family and Due Process.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.