More immigrants face deportation: What due process are they owed?
As the Trump administration claims broad authority to summarily deport 鈥渁lien enemies鈥� in an 鈥渋nvasion,鈥� efforts to control U.S. borders and immigration are running up against concerns for individual rights.
For immigrants, one of the most basic rights 鈥� the ability to have due process in a court of law 鈥� is in question.
The tension isn鈥檛 entirely new. Due process for immigrants has been litigated over for more than a century, says Nicole Hallett, director of the Immigrants鈥� Rights Clinic at the University of Chicago Law School. But the Trump administration is using executive powers 鈥渋n a new and unprecedented way.鈥� Courts may ultimately decide where the line around protections gets drawn.
Why We Wrote This
Immigrants may not have the same status as citizens, but they do have legal rights in the United States. Boundaries are being tested as the Trump administration claims broad authority to deport 鈥渁lien enemies鈥� and others.
鈥淚f you give one branch of government an extraordinary amount of power over a group of people, which is what we鈥檝e done with noncitizens in the United States, we are relying on that branch of government to use that power judiciously,鈥� Professor Hallett says. Meanwhile, the current White House 鈥渋ntends to stretch their power to the absolute limit.鈥�
What does due process mean?
Legal experts say due process boils down to providing notice of accusations and giving people the opportunity to be heard in their own defense. The Constitution鈥檚 14th Amendment against depriving 鈥渁ny person of life, liberty, or property, without due process of law.鈥�
Just as in the , lawyers note the use of 鈥減erson鈥� 鈥� not citizen.
鈥淓veryone has the right to the kind of basic procedural protections when the government is trying to take something away from you,鈥� says Professor Hallett. That said, the level of protection 鈥渕ight vary depending on your [immigration] status.鈥�
So are immigrants entitled to due process?
Yes. In the realm of immigration enforcement, though, the process to which they are entitled is generally dictated by Congress.
In criminal matters, noncitizens are afforded the same due process protections as citizens. Relatedly, they have a right to be protected from self-incrimination. Criminal defendants, no matter their immigration status, are also .
Immigrants don鈥檛 need to be convicted of a crime to be deported, though. Immigration courts, which decide whether people can stay or must leave, are separate from the federal court system. As immigration judges don鈥檛 hear criminal cases, noncitizens in that system are not entitled to free counsel. That has led, at times, to .
Defense of immigrants鈥� due process rights has transcended ideological lines. Late Supreme Court Justice Antonin Scalia, a conservative, wrote in a 1993 opinion: 鈥淚t is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings.鈥�
Location adds a layer of complexity. Constitutional rights don鈥檛 always fully apply at U.S. borders, including ports of entry like airports. Anyone, including U.S. citizens, can be searched in those places in ways that may not be deemed legal elsewhere, under the .
Different immigration pathways also have their own protocols. The State Department can revoke visas 鈥� tied to campus protests. Generally, it鈥檚 up to an immigration judge to decide whether a green card holder鈥檚 lawful permanent resident status should be taken away. But again, there may be exceptions, such as if the government, within the first five years, concludes the green card was issued in error.
How is immigrant access to due process being challenged now?
The most prominent case involves the president鈥檚 reliance on a rarely used wartime authority to deport immigrants whom the government accuses of being terrorists.
In a proclamation signed last month, President Donald Trump invoked the Alien Enemies Act of 1798 to direct the detention and removal of suspected members of Tren de Aragua, a Venezuelan gang the government has called a foreign terrorist organization. (The president has he 鈥渄idn鈥檛 sign鈥� the proclamation, despite his signature .)
The government began deporting immigrants to El Salvador under that authority last month; a federal appeals court has since upheld a temporary restraining order that bars deportations under the act. The government has asked the Supreme Court to intervene.
The American Civil Liberties Union and Democracy Forward, which are suing the government, say it whisked hundreds of people onto planes to El Salvador 鈥渨ithout providing advance notice, let alone an opportunity to contest their deportation.鈥� The proclamation also does not provide any process for immigrants to rebut claims of being gang members, they note in a court filing.
The Trump administration and its allies offer a different position. White House adviser Stephen Miller Tuesday: 鈥淚f you illegally invaded our country the only 鈥榩rocess鈥� you are entitled to is deportation.鈥�
America First Legal, which Mr. Miller helped found, on this argument. It underscored the president鈥檚 authority under the Alien Enemies Act and drew a parallel to the government鈥檚 rapid expulsion of border crossers during the pandemic.
鈥嬧�嬧�溾�楧ue process鈥� arguments are irrelevant,鈥� the group said in a post.
Immigrant advocates and liberals have expressed outrage, especially as new accounts have emerged disputing suspected gang ties of some of the men sent to El Salvador. For the government to claim that people are not entitled to any due process 鈥渧iolates the basic principle of what this country was founded on,鈥� says Aaron Reichlin-Melnick, senior fellow at the American Immigration Council.
But former immigration judge Andrew Arthur says it鈥檚 鈥渁n open question鈥� how much process is due to noncitizens in removal cases under the Alien Enemies Act. And looking at 鈥渢he way that Congress wrote the provision, it鈥檚 likely not much,鈥� Judge Arthur, a resident fellow at the Center for Immigration Studies, adds in an email.
As the president checks off campaign promises, that his base broadly approves of his border-security and deportation efforts. Still, some proponents of restricted immigration have raised concerns over tactics and the wartime authority鈥檚 use.
Mark Krikorian, a longtime advocate of immigration restrictions and executive director of the Center for Immigration Studies, says he鈥檚 not opposed to the 鈥渘ovel way鈥� the Trump administration is invoking wartime powers, as 鈥渨ar has changed.鈥�
Still, 鈥淧eople do have a right to go to court and say 鈥業鈥檓 not a Tren de Aragua member, and therefore this [proclamation] doesn鈥檛 apply to me,鈥欌�� says Mr. Krikorian. After all, 鈥淲hat if an American citizen got picked up?鈥�
The government has admitted at least one mistake so far.
In a court filing, Justice Department lawyers said the administration deported a Salvadoran man living in Maryland to El Salvador last month because of an 鈥渁dministrative error,鈥� the Atlantic . An immigration judge had previously granted the man a legal protection against deportation. Details , but the government claims that the federal court now lacks jurisdiction over the matter because the man is no longer in U.S. custody.
What is expedited removal?
Expedited removal is a fast-track deportation option the government can use.
Immigration lawyers generally see it as an exception, created by Congress, to immigrants鈥� typical access to due process. That鈥檚 because expedited removal allows for an immigrant to be deported without access to an immigration judge, unless they speak up about wanting to seek asylum.
This rapid deportation option in 1996 under President Bill Clinton. The provision, since its start, has allowed for the expedited removal of immigrants in the U.S. within two years of their arrival. In practice, however, it has typically been enforced along the borders, including for unauthorized immigrants apprehended within two weeks of their arrival.
Mr. Trump has signaled an expansion of enforcement. A published Jan. 24 in the Federal Register by the Department of Homeland Security says it is restoring 鈥渢he scope of expedited removal to the fullest extent authorized by Congress鈥� as a way to 鈥渆nhance national security and public safety.鈥�
So far, it鈥檚 unclear if there has been an increase in authorities using expedited removal, in part because the government hasn鈥檛 published since the inauguration.
Yet as the Trump administration for hundreds of thousands of immigrants previously granted temporary permission to live and work in the U.S., lawyers say those people could be exposed to expedited removal. And that could mean no immigration court hearing.
鈥淚t鈥檚 not intended as the general method of removal of people in the United States,鈥� says Deep Gulasekaram, immigration and constitutional law professor at the University of Colorado Boulder. But 鈥淭he more you expand it, the more it becomes the default regime.鈥�
