Right to Due Process and Legal Protection
The idea that states protect their members is central to citizenship. Nation-states protect citizens through a domestic police force, an international military force, and diplomacy. National governments also protect citizens at home by setting up a constitution and access to the courts in order to secure civil rights. While this kind of protection is often provided to those with “legal status,” we expand the concept into a broader dimension of “due process and legal protection” that is applicable to national, state, and local governments. In the immigration context, legal status become especially important for understanding state and local citizenship. Not only can states pass policies that limit their cooperation with federal immigration enforcement: they can also expand access to constitutional and legal protections to residents who lack legal status at the federal level.
For undocumented immigrants today, expansions in the right to legal protections are achieved through laws that make undocumented residents less vulnerable to immigration enforcement. These include laws that prevent cooperation in immigration enforcement (commonly called “sanctuary” policies), prevent the use of federal legal status in civil and criminal cases, protect immigrant confidentiality, and decoupling federal immigration law and criminal law by changing state sentencing practices and use of gang databases. States can further expand due process rights of undocumented immigrants by limiting detentions to forty-eight hours, providing full disclosure of immigration detainer requests, and providing legal resources to aid immigrants in court. Beyond enforcement consequences for their undocumented residents, states and localities expand the due process rights of immigrants by offering legal resources for DACA applications, visa applications, or petitions for naturalization.
Immigrant Due Process and Legal Protection: Top 5 States
5 states limit local law enforcement’s ability to transfer undocumented immigrants to federal custody through TRUST Acts (passed in Connecticut, California, Illinois and Oregon) and through executive order (in New Jersey).
2 states ban state and local immigration detention (California and Illinois).
1 state requires local law enforcement to inform persons under their custody of a federal detainer being issued and of their right to decline being interviewed by federal officials (California).