Due Process: What it Means for South Asian Immigrants

This post was pre­vi­ous­ly pub­lished at the Asian Pacif­ic Amer­i­cans for Progress blog as part of the Asian Pacif­ic Amer­i­can Week of Action on immi­gra­tion reform.

Before I start­ed law school, I had def­i­nite­ly heard the term “due process.” I have to con­fess, though, I was­n’t real­ly sure what it meant. All I knew is that it sound­ed good, seemed to be a core Amer­i­can val­ue, and was root­ed in fair­ness. It was some­thing that this coun­try prid­ed itself on as a hall­mark prin­ci­ple that came down from our Found­ing Fathers.

When we talk about immi­gra­tion, there is often talk about due process vio­la­tions affect­ing the lives of immi­grants, but what does that real­ly mean? Of course, we could always turn to our trust­ed friend, the Web­ster’s Dic­tio­nary for some guid­ance: “legal pro­ceed­ings that are car­ried out fol­low­ing estab­lished rules and laws that result in unfair or arbi­trary treat­ment of indi­vid­u­als.” (The legal eagles among us can rely upon the defin­i­tive Black­’s Law Dic­tio­nary for some fanci­er and tech­ni­cal lan­guage, too.) But these lofty and abstract def­i­n­i­tions did not hold much trac­tion for me. It was­n’t until I encoun­tered the real life expe­ri­ences of immi­grants whose due process rights were vio­lat­ed that I under­stood why this val­ue is so dear and needs to be pro­tect­ed in our coun­try’s immi­gra­tion sys­tem.

Below are just a few exam­ples spot­light­ing South Asians seek­ing asy­lum that made clear to what due process (or the lack there­of) tru­ly means.

Due process means access to legal representation and legal information: Mon­isha, orig­i­nal­ly from Pak­istan, was an hon­ors grad­u­ate from UC Berke­ley who came from Mum­bai to Texas to seek asy­lum with her par­ents and broth­er when she was ten years old. While in India, her father was very involved in the local Mus­lim com­mu­ni­ty — as a result of his activ­i­ties, thi­er fam­i­ly became the tar­get of Hin­du fun­da­men­tal­ist groups. They were denied asy­lum because their attor­neys failed to meet nec­es­sary fil­ing dead­lines. Immi­gra­tion author­ites lat­er arrest­ed her par­ents and broth­er and placed them in depor­ta­tion pro­ceed­ings. Nav­i­ga­tion the com­plex world of immi­gra­tion law is often worse for those who do not have lawyers and have to rep­re­sent them­selves because immi­grants fac­ing depor­ta­tion are not guar­an­teed an attor­ney. Does it seem fair that accu­rate legal infor­ma­tion and com­pe­tent rep­re­sen­ta­tion is often unat­tain­able par­tic­u­lar­ly when the immi­gra­tion sys­tem is so com­pli­cat­ed?

Due process means ensuring that immigrants are not criminalized and placed in detention: Harpal, a Sikh man, chose to be deport­ed back to India where he had been tor­tured, rather than lan­guish in lim­bo in immi­gra­tion deten­tion. When he arrived in the U.S., he set­tled in the Bay Area, began work­ing as a truck dri­ver, and applied for asy­lum. He was lat­er arrest­ed by U.S. gov­ern­ment and immi­gra­tion offi­cials. After being detained for more than eight years in Cal­i­for­nia, much of it in soli­tary con­fine­ment, and tired of wait­ing for Con­ven­tion Against Tor­ture claim to be resolved in the courts, he decid­ed to return to a coun­try where offi­cials had pre­vi­ous­ly mis­treat­ed him severe­ly. Does it seem fair to lock up indi­vid­u­als for years who have com­mit­ted no crime and are wait­ing exces­sive peri­od of time for their immi­gra­tion cas­es to be resolved?

Due process means guaranteeing fairness of immigration court proceedings and case review on appeal: A Sri Lankan woman flee­ing per­se­cu­tion in Sri Lan­ka was denied asy­lum by an immi­gra­tion judge who did not believe her case sim­ply because she was “look­ing up at the ceil­ing” dur­ing tes­ti­mo­ny. The judge ignored detailed evi­dence of her fear of return and based denial on this minor point about her demeanor. Even worse, the appel­late body, the Board of Immi­gra­tion Appeals, did not dis­agree with the judge’s rul­ing. It was not until a fed­er­al court reviewed her case that the ini­tial judge was ordered to con­sid­er her case more thor­ough­ly. Does it seem fair that the safe­ty and lives of immi­grants depend upon often arbi­trary and unfair deci­sions that can occur in Immi­gra­tion Courts and are giv­en lim­it­ed review?

These are just a few sto­ries that you find repli­cat­ing them­selves with­in the South Asian com­mu­ni­ty that con­vey in real terms what the lack of due process looks like. As immi­gra­tion reform moves for­ward, it is cru­cial that due process and fun­da­men­tal fair­ness be restored to poli­cies and pro­ce­dures that affect the lives of so many immi­grants in this coun­try.