The text of the Constitution is clear and so is the Supreme Court: All non-citizens on U.S. soil must be afforded “due process of law.”
“There are literally millions of aliens within the jurisdiction of the United States. The Fifth Amendment, as well as the Fourteenth Amendment, protects every one of these persons from deprivation of life, liberty, or property without due process of law,” the late Justice John Paul Stevens wrote in a unanimous 1976 opinion.
So, what does that mean in practice? Not necessarily a lot.
President Trump professes that he “does not know” the specifics but insists that it cannot mean “a million or 2 million or 3 million trials” for each person in the country unlawfully.
Legal experts say Trump is right that the Constitution does not guarantee a “trial” for every migrant detained and ordered deported at the border or inside the country. In fact, migrants in the country illegally do not have extensive procedural protections from removal. (If they did, it wouldn’t have been possible for ICE to deport more than 270,000 last year.)
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But in every case, the law does require that the government take certain steps to ensure fairness and the safety of vulnerable individuals.
“Detainees are entitled to notice and opportunity to be heard appropriate to the nature of the case,” the Supreme Court unanimously stated last month in a per curiam (unsigned) opinion.
The specifics, however, remain contested. Legal scholars say the type of “notice” and “hearing” historically afforded depends on an immigrant’s status and circumstance, such as whether they had been lawfully admitted to the country in the first place, have deep ties to the community, or are seeking asylum.
Anyone claiming refuge in the U.S. out of fear of persecution in their home country must be given a hearing before an Immigration judge and provided a chance to appeal an adverse decision.
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The Supreme Court also ruled last month that anyone detained under the Alien Enemies Act of 1798 must be given a chance to seek habeas relief — or, to challenge their detention — “within a reasonable time and in such a manner as will allow them to … before removal occurs.”
Similarly, immigrants that the U.S. plans to deport to third countries — rather than their home countries — must be given a “meaningful opportunity” to raise concerns about their safety, including at least 15 days to reopen their immigration proceedings, U.S. District Court Judge Brian Murphy, a Trump appointee, ruled last month.
The administration revealed last month in a federal district court filing that it was providing detainees a one-page form in English that informed them of a right to make a phone call and that they had “no less than 12 hours” to “express an intent” to challenge their detention by asking for a hearing. The ACLU says that’s far too unreasonable a timeline.
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In many cases, however, due process does not mean any opportunity to appear before a judge.
Under the “expedited removal” program, which Congress created in 1996, the government is authorized to swiftly deport any migrants in the country illegally for less than two years and detained within 100 miles of the border without a hearing.
Under the Immigration and Nationality Act, anyone arriving at a U.S. port of entry without valid legal documents (i.e. a passport or visa) may be summarily removed without a hearing or review.
The Trump administration has not been invoking the expedited removal program in the recent high-profile cases of Venezuelan migrants. Many of those deportations, including that of Kilmar Abrego Garcia sent to a notorious prison in El Salvador, occurred much farther than 100 miles from the border and involved migrants living in the U.S. for two years or longer.
Immigrants who are afforded a hearing before an administrative law judge typically do not enjoy the same procedural guarantees as they might receive in state or federal court.
“[A]n alien in civil removal proceedings is not entitled to the same bundle of constitutional rights afforded defendants in criminal proceedings,” explained Circuit Judge Lawrence Van Dyke in a 2021 decision by the Court of Appeals for the Ninth Circuit. “Various protections that apply in the context of a criminal trial do not apply in a deportation hearing.”
The constitutional right to counsel, for example, does not apply to civil removal proceedings. The standards of evidence are much more lax, and most final rulings by immigration judges cannot be reviewed in federal court.
The bottom line: Due process means some degree of notice and hearing in most cases, though the specifics vary widely and remain up for debate. With a number of legal challenges underway, the justices will very likely be weighing in in greater detail. And President Trump says administration lawyers are “going to obviously follow what the Supreme Court said.”
What the Constitution, Supreme Court say about ‘due process’ for Trump deportees: ANALYSIS originally appeared on abcnews.go.com
