President Donald Trump has been carrying out his deportation plans forcefully and rapidly, pleasing his base while alarming some advocates who say the administration is ignoring due process rights of deportees. Recent high-profile deportation cases that have attracted the legal services of well-funded liberal immigration groups have put a spotlight on due process and how much a person living in the country illegally should receive.
The Supreme Court has repeatedly affirmed that the Constitution extends due process to anyone on U.S. soil, but illegal immigrants do not have the same rights as citizens to it.
Trump aide Stephen Miller declared on Monday that an “illegal alien facing deportation” is not guaranteed due process, a remark that followed the president himself conveying uncertainty about the matter in a television interview.
Asked by the interviewer if he believed citizens and noncitizens alike deserve due process, Trump replied, “I don’t know. I’m not a lawyer. I don’t know.”
The Constitution “might say that, but if you’re talking about that, then we’d have to have a million or 2 million or 3 million trials,” Trump said, later adding that he would follow Supreme Court orders.
What have the courts said?
In Reno vs. Flores, a Supreme Court decision about detaining migrant children, the late Justice Antonin Scalia was unequivocal.
“It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings,” Scalia wrote in 1993.
The Supreme Court reiterated Scalia’s words in April in an order directing the Trump administration to give “reasonable” notice to alleged transnational gang members the government planned to deport under the Alien Enemies Act.
They must have the opportunity to “seek habeas [corpus] relief” before they are deported, the high court said, referencing the legal recourse available to those who believe they have been wrongly detained.
What are illegal immigrants not entitled to?
Attorney Neama Rahmani, a California-based former federal prosecutor, highlighted how illegal immigrants appearing in courts, including immigration courts, are not entitled to a lawyer. Many groups, such as the American Civil Liberties Union or the National Immigration Project, have made it their mission to volunteer their legal services to help illegal border crossers navigate the U.S. legal system, but recipients of those services are in the minority.
“The vast majority of migrants don’t have lawyers in these proceedings,” Rahmani told the Washington Examiner.
Rahmani also said that in criminal proceedings, citizens are entitled to bail, and the burden is on prosecutors to present factors supporting their detention, such as that they are a flight risk or danger to the community. Migrants do not get the presumption of bail, he said, so if they are apprehended, they typically remain detained unless they are granted parole or otherwise successfully seek out their release.
The Biden administration notoriously paroled around one million migrants into the country. The Trump administration, by contrast, has sought to revoke their parole status or entice them to self-deport by offering to pay for their travel and write them a $1,000 check.
When do illegal immigrants get court hearings?
Migrants who have recently entered the country can be fast-tracked right back out of it by a border official without ever appearing before an immigration judge under a set of immigration laws known as Title 8.
Migrants can avoid this form of removal by claiming asylum, a protection built into the immigration laws that they can receive if they present a credible fear for their safety in their home country. At that point, they have a right to make their claim to an asylum officer, who does the initial vetting of the claim.
From there, an asylum seeker has a right to appear before an immigration judge, which is an administrative judge employed by the Department of Justice, and that judge can review their claim. Immigration judges’ discretion during these proceedings can shift with the change in a presidential administration.
Cases before an immigration judge can be appealed to the Board of Immigration Appeals, and then reviewed by the circuit court, and then reviewed by the Supreme Court.
Andrew “Art” Arthur, a Center for Immigration Studies legal expert who previously served as an immigration judge, told the Washington Examiner he only saw a small percentage of appeals in his cases and his rejection of an asylum claim was never overturned on appeal.
Rahmani, meanwhile, said that while federal law does allow these individualized proceedings for asylum seekers, Congress could further streamline this process if it wanted. He also said that for all of the perceived process in place, the end result is often going to be that an illegal border crosser is deportable.
“As far as a legal leg to stand on, almost all of these migrants have none. They have no legal basis to be here,” Rahmani said.
Alien Enemies Act
In his most controversial deportation operation, Trump expanded the use of the Alien Enemies Act, a rarely employed wartime law, in an effort to deport dozens of alleged Tren de Aragua members to a Salvadoran prison on March 15.
The move has led to a web of court cases across the country because Trump bypassed routine immigration proceedings to carry out the deportations that day. The Supreme Court is currently weighing one of the cases, while two lower court judges have ruled that Trump improperly interpreted the law to mean the alleged Tren de Aragua members were invading the country at the behest of the Venezuelan government.
Arthur said those cases were receiving outsize attention and not representative of the Trump administration’s broader deportation efforts.
Outside of the March 15 deportations, the administration “isn’t sacking up random people on the street, tossing them in the back of a van, driving them in the dead of night to an airport, flying them to El Salvador, and releasing them to the Salvadoran authorities,” Arthur said.
He said he believed other deportees all have final orders of removal. In the case of Kilmar Abrego Garcia, the Trump administration told the court it deported him to the Salvadoran prison on March 15 in error. An immigration judge found in 2019 that he could be deported, just not to El Salvador because of a “withholding of removal” protection the judge granted him.
While Abrego Garcia has been heroized by some on the Left, details from his past have leaked out since his deportation that support the administration’s allegation that he is an MS-13 gang member with a checkered past.
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“There’s always more to the stories that you hear,” Arthur said, noting how the government likely has nonpublic intelligence, outside of mere tattoos associated with gang membership, to support its determinations.
In the case of Abrego Garcia, the Supreme Court ordered the administration to “facilitate” his return so that he could be afforded the due process any other alleged criminal illegal immigrant would receive.