Our research has uncovered many ways that contemporary immigration enforcement raises concerns about due process—the idea that the government cannot arbitrarily deprive people of their lives, liberty, or property without ensuring a fair judicial process—in Washington state. Our ongoing work examines practices that skirt or subvert these core fairness protections inscribed in the U.S. Constitution and international human rights law.
Due process rights are associated with the Fifth and Fourteenth amendments to the Constitution, which courts have consistently applied to citizens and non-citizens alike. At the Center for Human Rights, we are examining the interlocking and frequently arbitrary processes by which immigrants can be accused of crimes and deported without the benefit of core protections such the presumption of innocence. Our work aims to shed light on these practices in Washington state.
We are examining how, within the immigration system, individuals can be deported and families separated without ever having recourse to the courts. Today, within one hundred miles of the border—a zone that includes most of Washington state—in many cases immigration authorities can subject a person to various forms of express deportation, without a chance to see a judge, to meet with a lawyer, or to appeal the decision. Some of these deportations occur within 24 hours—and sometimes they take place because an ICE agent’s suspicion that a person’s appearance suggests he has engaged in criminal activity, rather than because any court has found him to be guilty of a crime.
The criminalization of migrants
The Center for Human Rights is also investigating the interlocking due process concerns that arise in the context of “crimmigration”—the apparent melding of immigration enforcement with crime fighting. In some ways, U.S. immigration authorities have adopted the “zero tolerance” language of crimefighting while subjecting themselves to almost none of the safeguards imposed on other branches of law enforcement to ensure due process.
While unauthorized presence in the U.S. remains a civil misdemeanor, not a crime, many behaviors related to unauthorized presence have been turned into crimes following the passage of a 1996 federal law. Today, although immigrants are not committing more acts that endanger public safety, our government has chosen to designate more of their activities as crimes. This is important to understand, because some of the “sanctuary” policies crafted to protect immigrants in our state from the arbitrary practices of federal immigration enforcement carve out exceptions for those considered “criminal aliens,” with little understanding of how arbitrarily individuals can wind up with such designations.
Arbitrariness in asylum
The UW Center for Human Rights is examining ways that irregularities in the asylum process may limit the due process rights of asylum-seekers in Washington state. For decades, U.S. immigration law has upheld some built-in safeguards for people who express fear of returning to their home country. The process of seeking asylum begins with a credible fear interview; those who pass this test are afforded an opportunity to have their claims considered in immigration court. Yet in 2018, former Attorney General Jeff Sessions took steps to curtail these safeguards, instructing asylum officers to reject more credible fear claims and immigration judges to expedite their handling of cases.