Do illegal immigrants have the right to due process?

Donald Trump and his administration are in the process of scooping up whoever they can off the streets, inventing flimsy pretexts to paint them as criminals, then booting them out of the country. Those affected include passport-holding Americans, students midway through degree programs, people whose removal has been stayed by judicial order and yes, undocumented people not in the country legally.

There’s mounting criticism that all of the above are being denied due process, i.e., the right to be heard before a judge with a case put for and against you, and all your other legal rights enshrined in the US Constitution respected. MAGA devotees are attempting to defend Trump and ICE’s actions by saying that “illegal” immigrants are not U.S. citizens and therefore, due process does not need to be followed. Is this right?

Due process and non-Americans

Whether illegal immigrants in the United States have a constitutional right to due process is grounded in constitutional law, judicial precedent, and the interpretation of the Fifth and Fourteenth Amendments.

These two amendments guarantee that no person shall be deprived of life, liberty, or property without due process of law, with the Fourteenth Amendment explicitly applying this protection to any “person” within U.S. jurisdiction, not just citizens. This language forms the basis for extending due process rights to illegal immigrants, but the scope and application remain debated.

The Supreme Court has consistently affirmed that non-citizens, including those unlawfully present, are entitled to due process. In Zadvydas v. Davis (2001), the Court ruled that indefinite detention of deportable aliens without adequate procedural safeguards violated due process, emphasizing that the protections apply to “persons” regardless of immigration status.

In Plyler v. Doe (1982), the Court held that undocumented children have a right to public education, reinforcing that constitutional protections extend to all individuals within U.S. borders. These rulings underscore that due process applies to illegal immigrants in deportation proceedings or detention.

However, the extent of these rights is not absolute. The government has broad authority over immigration policy, and due process for non-citizens is usually narrower than for citizens. For instance, expedited removal processes allow limited judicial review, and immigration hearings may not afford the same procedural rigor as criminal trials. Critics argue this creates a tiered justice system, where illegal immigrants face significant barriers to fully exercising their rights, such as access to legal counsel.

Opponents of extending robust due process rights argue that illegal immigrants, by violating entry laws, forfeit certain protections and that prioritizing their rights strains public resources. They are wrong. Denying due process erodes constitutional principles everyone, as the “person” clause explicitly does not discriminate.

In conclusion, illegal immigrants objectively possess a constitutional right to due process under the Fifth and Fourteenth Amendments, as repeatedly affirmed by judicial precedent.