Due Process in Immigration Enforcement: Rights, Risks, and Precedents

by: seeker of truth

Due Process Rights of Non-Citizens under U.S. Law

The U.S. Constitution guarantees due process of law to all “persons” within the United States, not only to citizens. The Fifth Amendment (binding the federal government) and the Fourteenth Amendment (binding the states) both use the term “person,” which courts have long interpreted to include citizens and non-citizens alike. In fact, the Supreme Court has explicitly affirmed that “aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.”​ Similarly, once a non-citizen is physically on U.S. soil (even if unlawfully), “the Due Process Clause applies to all ‘persons’ within the United States, including aliens” regardless of legal status​. In short, non-citizens inside the U.S. have a constitutional right to due process of law.

In practical terms, due process for non-citizens means that immigration enforcement and deportation decisions must follow fair procedures. The Supreme Court has stated that “it is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings.”​

This entails at minimum the right to a fair hearing before an impartial adjudicator, the right to present evidence, and the right to challenge the government’s evidence before being expelled from the country. Most individuals facing removal are entitled to a proceeding in immigration court where a judge decides if the law permits their deportation or grants relief. As the International Rescue Committee notes, due process requires just and fair treatment of everyone, regardless of status, whenever life, liberty, or property is at stake – including the opportunity to defend their rights in court​. In the immigration context, this typically means having a chance to go before a judge to contest removal; indeed, “non-citizens facing deportation have a right to due process, which usually includes a hearing before a judge.”​

However, how these rights play out can be complex, and immigration proceedings do not always mirror the full procedural protections of criminal trials. Immigration law is civil, not criminal, so certain rights (like government-appointed counsel) do not automatically apply. Non-citizens have the right to legal counsel in deportation proceedings, but at their own expense, as courts have not recognized a right to free appointed counsel in immigration cases​. This lack of appointed counsel is significant because immigration law is complex and many immigrants speak limited English; one study found that having a lawyer makes an immigrant five times more likely to win the case than an unrepresented person​. Additionally, immigration courts allow evidence that would be excluded in criminal courts (such as hearsay),and many immigrants in detention proceed without representation, raising concerns about the robustness of their due process protections.

There are also statutory shortcuts in the immigration system that limit due process, such as expedited removal. Under laws first enacted in 1996, certain undocumented immigrants who are caught near the border or who recently entered can be deported quickly without seeing a judge​. In expedited removal, a single immigration officer can order removal unless the person expresses an intent to seek asylum or fear of persecution​. As a safeguard, asylum seekers subjected to expedited removal must be given a “credible fear” interview with an asylum officer and an opportunity for review by an immigration judge if they fail the screening​. But beyond that limited process, there is no routine court hearing for others in expedited removal​. This procedure has been criticized for its minimal process. Even so, the government defends it as legal, arguing (as a White House spokesperson did) that “just because you don’t see a judge doesn’t mean you aren’t receiving due process.”​ In essence, the legal baseline is that all non-citizens on U.S. soil have due process rights, but Congress and the executive have some leeway in structuring immigration procedures, as long as basic fairness is maintained. When truncated processes like expedited removal are used, they are often challenged as denying “full” due process, especially if they result in erroneous removals.

It’s important to note that even undocumented immigrants and asylum seekers have constitutional protections – although those who have never entered U.S. territory (for example, people stopped at airports or outside the border) are accorded more limited rights. Courts have drawn a distinction between non-citizens who have effected an entry into the U.S. (even if unlawfully) and those who are held at the border or in transit. Non-citizens “within the United States” are protected by due process,​ but someone seeking initial entry may only have whatever procedural rights Congress provides by statute. In recent cases, the Supreme Court has upheld some limits on court review of expedited removal for recent entrants, indicating that Congress can deny full judicial review in that narrow context (as in the 2020 case DHS v. Thuraissigiam, which found that an asylum seeker who was caught right after crossing had no constitutional right to a full habeas corpus hearing on his asylum claim). Nevertheless, once individuals are inside the country and living under U.S. jurisdiction, they are entitled to fundamental due process protections in any proceeding that could deprive them of liberty.

In summary, U.S. law recognizes that non-citizens have due process rights. Undocumented immigrants and asylum seekers have the right to fair proceedings and cannot be arbitrarily detained or deported without some legal process. The exact procedures can differ from criminal trials, and expedited methods exist, but the Constitution’s guarantee that no “person” shall be deprived of liberty without due process applies to all individuals on American soil​.

As the ACLU of Kentucky emphasizes, the fundamental protections of due process and equal protection are “not limited to citizens,” and the Framers understood the importance of shielding non-citizens from governmental abuse.​

Documented Instances of Denial of Due Process in Immigration

Despite these legal protections on paper, there have been numerous instances where individuals were detained, deported, or otherwise denied legal protections without full due process. These examples highlight how deviations from due process can lead to serious injustices:

• Wrongful Deportation of U.S. Citizens: Perhaps the most stark examples are cases of American citizens being mistakenly detained or deported by immigration authorities. By law, U.S. citizens should never be subject to deportation, yet immigration enforcement errors have occurred. For instance, Mark Lyttle, a North Carolina-born U.S. citizen with mental disabilities, was wrongfully detained by ICE and deported to Mexico in 2008 despite “ample evidence” of his U.S. citizenship​. Lyttle spoke no Spanish and had no ties to Mexico, but because of his disability and a breakdown in procedures, he was coerced into signing a statement conceding to being Mexican and was removed without access to a lawyer. He spent months wandering homeless in Central America until a U.S. embassy official helped him return; it took a lawsuit for this grievous mistake to be acknowledged. Tragically, Lyttle’s case is not isolated. A 2021 Government Accountability Office (GAO) report found that ICE may have unlawfully deported as many as 70 U.S. citizens from 2015 to 2020​. In that period, ICE agents “arrested 674 potential U.S. citizens, detained 121, and deported 70” of them before the errors were discovered​. These mistakes occurred in part due to inadequate procedures and database errors, and they underscore that when due process is rushed or absent, even citizens can be swept up and permanently expelled. Such cases vividly illustrate the claim that denying due process to some endangers everyone – if a U.S. citizen can be deported without a fair hearing, anyone’s rights can be called into question.
• Mass Deportations Without Hearings (Expulsions under Wartime Pretexts): In extraordinary situations, authorities have bypassed normal legal processes entirely. A recent example took place in March 2025, when the administration of President Trump (following his reelection) orchestrated a mass expulsion of nearly 300 immigrants to a foreign prison without standard legal proceedings. Under the pretext of invoking the 1798 Alien Enemies Act – a rarely used wartime law – officials rounded up Venezuelan and Salvadoran nationals in the U.S., accused them of gang affiliations without court adjudications, and put them on planes to El Salvador. Over **130 of the Venezuelans had pending immigration court cases and had never been ordered removed by a judge, yet they were suddenly deported en masse. None of these individuals were given any opportunity to challenge their removal in court or plead their case – according to reports, they “were not told what was happening nor given any opportunity to raise objections in a court of law” before being sent away​. They effectively had zero due process. Once in El Salvador, they were imprisoned in harsh conditions, and as of the report their fate remained unknown​. This incident, now under legal challenge​, demonstrates how easily normal legal safeguards can be cast aside. It is a dramatic illustration of due process being denied wholesale to a group, and civil liberties groups argue it was an “unprecedented and unlawful” abuse of power​. The fact that a law used to justify World War II internments was repurposed to deport people in peacetime, without hearings, underscores the dangers of loosening due process constraints.
• Detention Without Hearings or Access to Attorneys: There have also been patterns of immigrants being held in prolonged detention without adequate procedural safeguards. In the wake of the September 11, 2001 attacks, for example, hundreds of non-citizens (mostly Muslim or Middle Eastern men) were arrested and detained for months without charges or proper hearings under a sweeping dragnet, ostensibly for minor immigration violations while authorities investigated them for terrorism ties. Many of those individuals were cleared of any wrongdoing but only after enduring lengthy detention with limited access to counsel and secret hearings, a process the Department of Justice’s own Inspector General later criticized as violating basic due process. Another systemic issue is the lack of appointed counsel: studies in immigration detention centers (for instance, in California) have found that the majority of detainees go through deportation proceedings without legal representation, which advocates say results in people being deported without a meaningful chance to present a defense​. Especially vulnerable populations – such as asylum seekers, children, or people with mental disabilities – may be effectively denied due process if they cannot understand the legal proceedings. In fact, the ACLU has filed class action suits on behalf of detained immigrants with mental disabilities who were unable to represent themselves; in one such case, a federal judge noted that holding these individuals without providing counsel was tantamount to denying them due process, leading to court-ordered reforms. These instances show that even when the law formally affords due process, in practice people can be denied meaningful due process through lack of information, lack of legal help, or rushed and inaccessible proceedings.
• Historical Examples – Japanese American Internment: History provides a sobering example in the World War II internment of Japanese Americans. In 1942, about 120,000 people of Japanese ancestry on the West Coast – the majority of them U.S. citizens – were forcibly removed from their homes and incarcerated in camps without trial or individual review. This mass deprivation of liberty was done by executive order and upheld by the Supreme Court at the time (Korematsu v. United States, 1944), even though those affected were not accorded any hearings or due process to contest their loyalty. Decades later, this policy is widely recognized as a grave injustice and a denial of constitutional rights. It stands as a cautionary tale of how easily the rights of a minority group can be suspended, and how courts and the public may later regret such actions. The Korematsu case was formally repudiated by the Supreme Court in 2018, but its legacy fuels vigilance against repeating similar due process violations. Justice Robert Jackson’s famous dissent in Korematsu warned that approving such a racial exclusion “lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need”​. In other words, once a precedent is set that a certain group can be stripped of due process, that power can be used again in the future against others.

Each of these examples reinforces the idea that when legal protections are shortcut or ignored for some people, mistakes and abuses occur. Innocent people (including citizens) have been caught up in enforcement due to inadequate process, and disfavored groups have been targeted for harsh measures outside the normal judicial system. These real-life cases illustrate the concrete meaning of denying due process – prolonged detentions without hearing, deportations without a day in court, and entire groups being deprived of liberty based on blanket executive fiat. They also set the stage for why many jurists and advocates insist that upholding due process for non-citizens is essential to safeguarding everyone’s rights.

Warnings about Eroding Due Process for Some Groups

Legal experts, judges, and civil liberties organizations have frequently warned that if due process protections are eroded for one group, it creates a dangerous precedent that can erode the rights of all. This idea – that the denial of due process to anyone threatens everyone – is supported by historical experience and legal reasoning. A number of authoritative voices have articulated this warning:

• Civil Liberties Organizations: The American Civil Liberties Union (ACLU) has long emphasized that protecting the rights of “the most unpopular groups” is necessary if we want to preserve those rights for society as a whole. In a historical reflection, the ACLU noted its famous defense of a Nazi group’s free speech in the 1970s, explaining it as a commitment to the principle that constitutional rights must apply even to those we despise, otherwise those rights won’t endure for anyone. This principle applies equally to due process: the ACLU of Kentucky, for example, states plainly that “[w]hen the government has the power to deny legal rights and due process to one vulnerable group, everyone’s rights are at risk.”​ Non-citizens are often a vulnerable or politically unpopular group, and the ACLU warns that if we permit government agencies to bypass the Constitution in dealing with immigrants, that “power to deny legal rights” can expand to affect citizens as well​. In advocacy against certain immigration policies, civil rights groups argue that measures like indefinite detention without trial, expedited removal without hearing, or suspension of habeas corpus for certain categories can quickly metastasize. Today it might be “terror suspects” or “illegal immigrants,” but tomorrow it could be protesters, dissidents, or other marginalized citizens labeled as threats.
• Jurists and Judges: Members of the judiciary have also cautioned against creating carve-outs to due process. A vivid example is Justice Robert Jackson’s dissent in Korematsu (1944), mentioned above, where he warned that legitimizing the denial of rights based on ancestry would become a “loaded weapon” for future authorities to use in other contexts. His prediction proved prescient; although Korematsu was specific to wartime internment, its underlying logic (deference to executive claims of security over individual rights) could have been used to justify other mass deprivations. More recently, in the context of the War on Terror, Justice Sandra Day O’Connor wrote in Hamdi v. Rumsfeld (2004) (a case about a U.S. citizen detained as an “enemy combatant”) that a state of war is not a “blank check” for the President when it comes to the rights of citizens. This sentiment pushed back on the idea that certain individuals could be denied basic due process (like a fair hearing to contest their detention) even in the name of national security. Lower court judges have similarly sounded alarms. For instance, when the Supreme Court in 2020 (DHS v. Thuraissigiam) upheld limits on judicial review for an asylum seeker’s expedited removal, the dissenting justices argued that the decision undermined a cornerstone principle that even those on the margins are entitled to petition courts for relief. Justice Sotomayor’s dissent lamented that the ruling risked “leaving [individuals] without recourse to any judicial forum” and cautioned against “handing the keys to the Liberty Kingdom” entirely over to the political branches for certain groups – a scenario that could erode liberty for all in the long run (paraphrasing her argument).
• Legal Scholars and Commentators: Constitutional scholars often emphasize the slippery slope that comes with carving out exceptions to due process. The rule of law, they argue, functions only if it applies evenly. As one commentator put it, due process isn’t just about protecting the accused individual – it also gives the public confidence that the government can’t arbitrarily detain or punish someone. If we begin cheering the denial of due process for people we dislike (say, undocumented immigrants or those accused of terrorism), we set a precedent that weakens the universal shield of the law. This perspective is summed up by the maxim that “the Constitution isn’t a privilege for citizens only.” Indeed, Charles Kuck, a past president of the American Immigration Lawyers Association, remarked in response to attempts to strip immigration detainees of legal protections: “When a government begins to argue that due process and basic constitutional protections do NOT apply to a portion of the population living in the United States, … it could easily be extended to another portion of the populace.”​ In other words, once we accept that some people on U.S. soil have no right to a fair hearing or other constitutional safeguards, we open the door to the government applying the same logic to others. This warning was issued when certain 2000s-era policies attempted to deny effective counsel to immigrants; legal experts saw it as a harbinger of broader erosions if not corrected​.
• National Security Context: After 9/11, many experts warned that policies like the PATRIOT Act and detentions in Guantánamo Bay would set dangerous precedents. For example, when the government claimed the power to hold even U.S. citizens as enemy combatants without charges, scholars noted that this was a radical departure from due process. Organizations ranging from the ACLU to the Cato Institute cautioned that sacrificing due process in the name of security would normalize government overreach. The ACLU’s history highlights its opposition to “the indefinite detention of terrorism suspects without charge or trial”, arguing that such practices “expand the government’s power to … imprison people without due process” and thus threaten fundamental freedoms. The underlying concern is that once the public accepts that certain people can be locked up with no trial (whether they are non-citizens abroad or even citizens deemed enemies), the basic restraint on government power – the requirement of due process – is weakened for everyone. This concern materialized in debates over the NDAA of 2012, where a provision was criticized for potentially allowing military detention of American citizens on U.S. soil without trial if accused of terrorism. A bipartisan array of civil libertarians sounded alarms that such authority, once in law, could be misused in the future against political dissidents or others, far from the original context of Al Qaeda.

In sum, there is a broad consensus among civil liberties advocates and many jurists that eroding due process for any group of people sets a precedent that endangers all people’s rights. Today’s denial of due process to immigrants at the border, or to detainees at Guantánamo, can become tomorrow’s justification for denying due process to citizens in some domestic context. This is why court rulings often take the long view: for instance, when the Supreme Court in Boumediene v. Bush (2008) granted Guantánamo detainees (non-citizens) the right to file habeas corpus petitions, it was not out of sympathy for enemy fighters but out of recognition that denying judicial review entirely would gut a fundamental check on executive power. Justice Kennedy wrote that the laws and Constitution are designed to endure and protect liberty in both good and bad times; hence the judiciary must ensure that fundamental rights like habeas (and by extension due process) are not arbitrarily suspended for a subset of individuals. The common thread in these warnings is clear: a government that can dispense with due process for some can eventually dispense with it for anyone, unless firmly restrained by the Constitution and courts.

Constitutional and Legal Arguments for Universal Due Process

The claim that “due process must apply universally to protect everyone” is grounded in bedrock constitutional principles and has been supported by numerous legal arguments. Key points supporting this claim include:

• Text of the Constitution: Both the Fifth Amendment (“No person shall be … deprived of life, liberty, or property, without due process of law”) and the Fourteenth Amendment (“nor shall any State deprive any person of life, liberty, or property, without due process of law”) explicitly extend due process protections to “persons” – not just to “citizens.” The choice of wording was intentional. The framers of the post-Civil War amendments, in particular, ensured that basic rights would cover every person within U.S. jurisdiction​. This universality in text is a strong argument that due process is a general guarantee: the law must treat anyone subject to a deprivation fairly, whether or not they are a citizen. The Equal Protection Clause likewise protects any “person” within a state’s jurisdiction. Thus, the Constitution’s language itself supports the notion that due process is an inalienable right for all under U.S. authority, forming a bulwark against arbitrary government action. Denying due process to a subset of people would contradict this inclusive language and violate the principle of equality under the law.
• Supreme Court Precedent: As discussed, the Supreme Court over many decades has consistently affirmed that non-citizens are protected by due process. Cases from the 19th century to today (e.g., Yick Wo v. Hopkins (1886), Wong Wing v. U.S. (1896), Knauff (1950) in part, Plyler v. Doe (1982), Zadvydas v. Davis (2001)) have built a doctrinal foundation that the government cannot simply label someone an “alien” and strip away all legal rights. Even when upholding restrictive immigration laws, the Court has often inserted cautionary notes that “the Fifth Amendment protects every [alien] within the U.S. from deprivation of life, liberty or property without due process of law” (as Justice Scalia wrote in Reno v. Flores)​. Furthermore, when some justices have suggested limits (for instance, that unlawfully present immigrants might have lesser rights), the controlling opinions have reinforced that basic procedural fairness is required. The judiciary’s role in enforcing due process for non-citizens has also been justified as critical for maintaining the rule of law: if the courts do not ensure a baseline of fair procedure for non-citizens, they would effectively be sanctioning unchecked executive or legislative power, which the Constitution’s separation of powers is designed to prevent.
• Universal Application as a Check on Government Abuse: A core rationale for universal due process is that it checks government overreach and abuse of power. Due process is essentially about the how of government action – it demands notice, a chance to be heard, and an impartial decision-maker before the government can punish or detain an individual. If the government can exempt certain people from these requirements, it concentrates power in its own hands to target those people arbitrarily. Today it might be non-citizens, tomorrow some other group. Due process exists to protect everyone from abuse of power​. As an ACLU legal director stated in response to recent uses of the Alien Enemies Act, “No president is above the law. Due process exists to protect everyone from abuse of power.”​ This captures the idea that due process is a safeguard of liberty for all: even if you personally are not an immigrant or a suspect today, you rely on the constitutional guarantee that if you ever were accused or targeted, the law would require fair procedures. Selective denial of due process undermines that guarantee. It effectively places some government actions outside of judicial scrutiny, which is contrary to American constitutional design. The founders were wary of unchecked governmental authority – that is why rights like due process, jury trial, habeas corpus, etc., were enshrined. Those rights were meant to apply to anyone facing the wrath of the state, lest the government create classes of people who have no legal protections.
• Precedent and Slippery Slope Arguments: Legally, once a precedent is set that due process can be suspended for one category, it can be cited and expanded. Courts and scholars argue for a principled, not piecemeal, approach to constitutional rights. As one immigration judge turned attorney described immigration courts handling of deportation cases as “death penalty cases in a traffic court setting,” highlighting the high stakes and limited protections involved​. This disparity has led many to call for stronger due process in that realm precisely because the consequences (deportation, which can be life-altering or life-threatening) are so severe. The universal application of due process is seen as a moral and legal imperative: the justice system should not create a second-class procedure for certain people. If it does, it risks normalizing lower standards. For example, military tribunals for non-citizen terror suspects were initially justified as exceptions; now some politicians have floated using similar approaches for U.S. citizens labeled as gang members or drug kingpins. Each time due process is watered down for a group, it becomes easier to apply the same to others. Constitutional lawyers often invoke the famous quote (attributed to various sources) that “the Constitution is made for times when passions are high, as much as for calm times,” meaning we must enforce rights even when it’s hardest (e.g., when fear or anger at a group is strong). Otherwise, temporary exceptions tend to become permanent powers.
• Equal Justice and the Rule of Law: Another argument is rooted in the ideals of equal justice and the rule of law. The rule of law means the government must govern through known, consistent rules, not arbitrary decisions. If due process is denied to some people due to who they are rather than what they did, that starts to resemble arbitrary rule. It also violates basic fairness that like cases be handled alike. The universal application of due process is a statement that the law’s protections are for all who stand before it, preventing the government from hand-picking who must follow rules and who does not. In constitutional theory, rights like due process are sometimes called “structural” or “systemic” protections – they maintain the integrity of the legal system itself. If we allow exceptions, we undermine the credibility of our justice system. This is why even very unsympathetic defendants (terrorists, heinous criminals, etc.) are given fair trials in the U.S.; it’s as much about upholding our legal principles as it is about them. As Justice Hugo Black once suggested, the Constitution’s safeguards “are not watered down” for some individuals because of their status; doing so would betray the values the nation strives to uphold.

In conclusion, the claim that denying due process to anyone opens the door to denying it to everyone is supported by robust constitutional text, Supreme Court jurisprudence, and the considered warnings of judges and advocates. Non-citizens in the U.S. undeniably possess due process rights, and when those rights have been ignored or abridged, it has led to serious injustices that often proved the wisdom of the principle. History and contemporary events furnish painful examples of people who suffered because procedures were shortcut – from U.S. citizens exiled in error, to asylum seekers summarily expelled, to minority communities interned or surveilled without cause. Each of these deviations from due process has prompted backlash and lessons that such power cannot be unchecked. The universal application of due process is ultimately a protection for all members of society: it keeps the government accountable and ensures that no matter who you are – citizen or not, popular or marginalized – you cannot be deprived of freedom except through a fair and established process of law. As one immigration attorney aptly put it, “Due process for immigrants is due process for all Americans”​​. The Constitution’s promise is most secure when it is extended to the least powerful; by upholding due process for each person, we affirm the safeguard for ourselves.