DHS Must Follow Due Process For All

We are at a frightening crossroads in our country. Two U.S. citizens have been killed standing up for the due process rights of their neighbors. The Department of Homeland Security (DHS) has sent thousands of Immigration & Customs Enforcement (ICE) and Customs and Border Protection (CBP) officials to Minneapolis, a city with a large refugee (therefore “legal”) population, in the name of enforcing our immigration laws. While there, DHS has engaged in what appears to be arbitrary arrests of many individuals, including U.S. citizens, Lawful Permanent Residents, and others with lawful status. In return, the community has objected to DHS’s approach by engaging in large-scale protests.

2026 will be my 20^th year practicing immigration law. As an immigration attorney, I have dedicated my career to helping people navigate the United States immigration system. Over the past year, I have spent considerable time making sure that noncitizens Know Their Rights in the United States.

One of the most common questions I am asked lately is, “What is DHS legally permitted to do when enforcing our immigration laws?” 

Due Process

Let’s start with the most fundamental and important concept: Under the Fifth Amendment of the U.S. Constitution, every person in the United States, regardless of immigration status, has the right to due process. This means they have the right to remain silent; the right to refuse consent to a search of themselves, their car, or their home (absent a warrant or other exception); the right to leave if not under arrest; and the right to have an attorney.

DHS is not following due process in Minnesota right now. We are seeing arrests and questioning of non-white people and wide-scale intimidation of the population. What’s worse is that when the community has come together through protest and presence to remind DHS that government agencies must follow due process for every individual when engaging in immigration enforcement, DHS has labeled them domestic terrorists.

Now, DHS has killed two people, Renee Good and Alex Pretti. They are both U.S. citizens, but their citizenship status is really not important – these are two human beings, killed by government agents while trying to protect their neighbors from DHS abuses.

Who is Subject to Immigration Enforcement?

People that have a lawful immigration status or permission to be physically present in the United States should not be subject to immigration enforcement, unless they have committed a crime or other action that renders them removable from the United States.

Here is a list of the types of people who have permission to be in the United States, some permanently, some temporarily: U.S. citizens; Lawful Permanent Residents (green card holders); Refugees; Asylees; people with valid non-immigrant status, including F-1/J-1 students, B-1/B-2 visitors, E-1/E-2 investors, H-1B professionals, H2 temporary workers, L corporate transferee workers, Q/J cultural exchange visitors, R-1 religious workers, TN workers, T/U survivors of trafficking and crime, A/G diplomats, etc.; people with Temporary Protected Status (TPS) or Parole; DACA recipients; people with pending applications for asylum, lawful permanent residency, and extensions of their nonimmigrant status; and people with pending Immigration Court cases.

Probable Cause

To start any type of enforcement/removal action against a person, DHS must have probable cause.

What is probable cause? It is an individualized determination that a particular person is present in the United States without lawful status and removable from the United States.

How is probable cause established? The information that a person is here without lawful status can come from a variety of sources: sometimes it will come from local law enforcement after a criminal arrest or conviction, sometimes it will come from DHS after a person’s application for an immigration benefit (green card, work visa, etc.) has been denied, and sometimes it will come along the border after someone attempts to enter the United States without inspection.

Probable cause can also be established if a person voluntarily provides information about themselves that indicates they are in the United States without lawful status; however, they cannot be forced into providing information about themselves. Unless a person voluntarily provides information to a law enforcement official that indicates they are in the United States without lawful status, DHS must have an arrest warrant, issued by a Court and signed by a judge, to arrest and detain that person. 

Probable cause to believe that a person is in the United States without lawful immigration status cannot established by the color of a person’s skin, their accent, or the neighborhood in which they live.

Notice to Appear (NTA) in Immigration Removal Proceedings

If DHS has probable cause, it can start immigration removal (“deportation”) proceedings against that person. Importantly, immigration removal proceedings are civil, not criminal, proceedings. That is because being present in the United States without status is a civil violation, not a crime.

If DHS has probable cause, it can start removal proceedings against a person by issuing them a Notice to Appear (NTA) in immigration court.  During this process, DHS can decide whether they believe the person is a danger to the community or a flight risk and, if so, arrest or detain that individual while immigration removal proceedings occur before an Immigration Judge. The person may or may not have the right to request release on a bond.

Alternatively, DHS can personally serve or mail an NTA to the noncitizen. The person will then receive a notice with a court date at the local Immigration Court and attend that hearing. If they don’t show up to the hearing, they will receive a removal/deportation order in their absence. The vast majority of people receiving an NTA appear in Immigration Court as instructed. From there, some win relief from deportation and others are ordered removed from the United States.

Right to Defense Against Removal

All noncitizens have the right to defend themselves against removal. Regardless of whether someone is detained by DHS and in immigration custody or they are issued NTAs without detention, that person has the right to defend themselves against removal/deportation in Immigration Court before an Immigration Judge.

Whether or not someone will be able to successfully defend themselves against removal will depend on a variety of factors, including when and how they entered the United States, the length of time they have been in the United States, whether they have U.S. citizen or Lawful Permanent Resident family members, whether they have previously misrepresented information or presented false documents to the United States government, and whether they have a criminal record.

Mounting a defense against deportation can take place whether or not the noncitizen is detained by DHS. Due process guarantees the right to a lawyer in these proceedings, though the government does not have to pay for an attorney.

Who Makes Decisions About Immigration Enforcement Priorities?

Our immigration laws are enforced by the executive branch. For the past 24 years, immigration enforcement has been the purview of DHS, ICE and, along our borders, CBP. Whoever is President has broad authority and discretion to guide how we enforce our immigration laws – but the President and the executive branch are not outside of the law.

Regardless of who is in the White House and what their articulated enforcement priorities are, DHS must follow our fundamental constitutional principles and must afford all people – regardless of immigration status – basic due process.

Our country is built on a system of laws and the understanding that everyone, especially law enforcement agencies, will respect and follow the law. When a federal agency is blatantly ignoring our fundamental principles, racially profiling people, and killing people in the street, it is essential that we continue to remind ourselves and our government that it is not above the law.

Here Is What Immigration Enforcement Is Never Supposed to Look Like:

• Profiling people based on race, accent, or where they live.
• Arresting and detaining people without probable cause or a judicial warrant.
• Arresting and detaining U.S. citizens or people with lawful immigration status.
• Depriving people of the right to defend themselves against removal.
• Intimidating or threatening people.
• Killing people.

The Unnecessary Tragedies in Minnesota

As an immigration law firm, we mourn the tragic killings of two U.S. citizens at the hands of ICE agents. These deaths are horrifying, inexcusable, and emblematic of a broader pattern of unlawful, violent immigration enforcement under the current administration – one that routinely disregards constitutional rights, human dignity, and basic standards of accountability. At the same time, we recognize that not every person working within DHS is responsible for, or supportive of, these abuses. Many are long-time civil servants who entered public service with a genuine desire to uphold the law fairly, and who themselves are deeply troubled by the direction and tactics of current immigration enforcement.

Our commitment is to stand firmly with our clients and their communities against illegal and violent practices. For information on how to help those in need of immigration counsel in Minnesota:

Immigrant Law Center of Minnesota

Minnesota Immigrant Rights Action Committee

 

Written in solidarity and with hope,

Jennifer Casey

 

 

Disclaimer: This blog is for informational purposes only and does not constitute legal advice. Immigration law and policy change rapidly. Always consult an attorney or accredited representative for advice about your specific situation.