Due Process Behind Bars: How ICE Detention Facilities Systematically Obstruct the Access to Fair Trials

With President Donald J. Trump taking office in January 2025, America was subjected to many political changes. One of Trump’s defining legacies may be the transformation of the United States Immigration and Customs Enforcement (ICE). While ICE existed under previous presidents as a law enforcement body, the Trump administration repurposed it in ways that spread terror and fear, as critics argue.

There was a total number of 39,703 people detained by ICE under President Biden. Today, under the new administration, this number has surged, reaching roughly 73,000 people held in ICE detention centres as of January 2026.

While the anti-immigrant agenda is often portrayed as a legitimate policy objective, the means used to pursue it seem questionable. In particular, ICE employs various techniques that obstruct detainees’ access to fair trials, contributing to an all-time high of so-called voluntary deportations. In the following, I will elicit these questionable techniques with a special focus on how detainees are coerced into leaving the country and relinquishing their constitutional rights.

In America, the Fifth and Fourteenth Amendment of the Constitution guarantee citizens the right to due process. This essentially means that every citizen is entitled to fair treatment before the courts of law. The right encompasses the duty of the government to provide persecuted persons with a notice and the possibility for them to prepare for their trial accordingly.

However, these trial guarantees, at least the Fifth Amendment are not only granted to American citizens. While full constitutional protection is not applicable in immigrant removal proceedings, the right to due process is. Precisely, it is applicable to every person within the borders of the United States. In Gutierrez v. Holders the Supreme Court explicitly stated, “A full and fair hearing is one of the due process rights afforded to aliens in deportation proceedings.”

The US courts have also held that immigrants in removal proceedings may be represented by an attorney at their own expense, but they have yet to enshrine the right to government-provided counsel in their law statute. Despite this discrepancy, the courts have acknowledged that proceedings in which immigrants are not provided with legal representation tend to have significantly more negative outcomes and may therefore interfere with the right to due process.

All of this to say that, while in theory this system may appear just and unbiased, the reality unfortunately looks very different. Not only have there been numerous cases in which United States residents have been unlawfully detained, but ICE also does everything in its power to prevent detainees from exercising their right to a fair trial.

If detainees are lucky enough to afford legal counsel or to be provided with a pro-bono lawyer, their chances of obtaining a beneficial verdict in their removal proceedings increase significantly. However, empirical evidence suggests that even these supposedly lucky detainees face significant hardship. The main reason for this is that ICE facilities purposefully obstruct any form of attorney-client communication by intercepting phone calls, charging additional fees, or significantly delaying important legal information. Consequently, individuals awaiting trial are unable to discuss legal specificities beforehand, miss important deadlines, or are forced to remain in detention centres much longer than necessary.

According to a report issued by the American Civil Liberties Union, 40 of the 173 examined ICE detention facilities provided insufficient telephone access. In many of these facilities, not a single attorney-client call was ever answered. About 68% of the detention centres established unnecessary bureaucratic barriers for attorneys to reach their clients, and over one-third of the ICE facilities did not allow in-person visits at all. Where in-person visits were permitted, they often took place in non-confidential settings.

By hindering the access to proper legal counsel, ICE tries to intimidate its detainees. These employed techniques contribute to making detainees feel insecure and overwhelmed—often coercing them into giving up their granted rights and agreeing to a “voluntary” departure.

Voluntary departure is a mechanism used to avoid a “removal” order on one’s record. It allows immigrants to leave the country voluntarily and, therefore, technically, increases their chances of re-entering the United States in the future. It is often used when a person does not wish to remain in detention until their case is decided in court. By accepting voluntary departure, a person waives their constitutional right to a fair process as well as the right to appeal.

Under the Trump Administration however, the use of “voluntary” departure has led to many miscarriages of justice. ICE detention facilities systematically exploit language barriers as well as the detainees’ lack of legal awareness, coercing them to give up their rights. Once deported, they have no legal remedies left and, realistically, no chance to re-enter the country.

By employing this technique, ICE detention facilities circumvent consent or informed approval, making the term “voluntary departure” a juxtaposition itself.

These outlined strategies merely represent a minority of those utilised to systematically target detainees trying to comply with the law. Most immigrants held in detention facilities are doing their best to follow the rules, appear in court, and simply wish to invoke their constitutional rights. However, ICE uses fearmongering, hard and prolonged detention, as well as blatant disregard to portray a completely different image—the image of dangerous insurgents that pose a threat to American society.

The Trump administration claims that promoting an anti-immigrant agenda, as well as establishing a strong national identity are among its primary goals—however, the reality looks very different. While Trump may be trying to deport as many immigrants as possible, he is now also detaining American citizens—over 170 to date.

Even though these recent developments do not come as a surprise to many of us, they are a crucial reminder that, where leadership is built on fear and selective justice, only the influential elite can count on fair treatment before the law.

Written by Katharina Hetzendorfer, Edited by Esther Flannery Linton-Kubelka

Photo Credit: “Amerikanische Flagge hängt an einem Gebäude in Kansas” by Greg Peters (2014, September 14) on Pexels.