You have given us a summary of the law but you have failed to make your case by applying it to the facts (many law students do this including myself).
How does the U.S. government violate due process by deporting people who are in the United States illegally?
Under our current immigration law a person who is in the country illegally can be deported without a hearing (expedited removal) if they: Enter the U.S. without inspection (e.g., illegally entering the country).
Arrive at a port of entry but do not have the necessary documents or are attempting to enter through fraud or misrepresentation.
May also apply to paroled individuals whose parole status is revoked—U.S. Code § 1225; INA § 235(b)(1).
Under expedited removal, individuals are generally not allowed a full immigration court hearing where they can present evidence and have legal representation. Instead, they may have a brief interview to determine if they have a credible fear of persecution.
There are of course exceptions. There have been legal challenges to removing parole violators without a formal hearing. This is not at issue in our case.
So again, I ask you to make your case by applying the law to a set of facts. Otherwise, Trump’s administration is lawfully removing individuals who have entered the U.S. without inspection, without permission, or by misrepresentation and fraud. The government rests its case.
I should have made this clearer (or clear if the point was not made at all). I was not accusing the government of failing to apply due process, I was responding to the many comments I'd seen online that due process shouldn't apply to illegal immigrants.
I have nothing but respect for your work. But I also have a low opinion of most people who like to editorialize on politics and economics (not you of course). I have found that most socialists haven’t read Marx and most U.S. voters haven’t read the Declaration of Independence or the Constitution. And yet, they can’t wait to share their opinions on matters for which they have nothing of value to offer. Don’t even get me started on economics.
Due process of law is a fundamental legal principle that requires the government to adhere to established legal rules and procedures when taking actions that affect someone's life, liberty, or property.
If you are in the U.S. illegally and law enforcement asks for proof of status and you have no proof because you’re here illegally that is sufficient due process.
I certainly appreciate your work and I agree with your premise: “If we allow the government to ignore the laws they don't like we cease to be a nation of laws”. However, all laws are not lawful or constitutional. Much common law and case law are plainly wrong.
Miranda vs. Arizona (1966) is a perfect example. I’m sure you have watched plenty of police shows and movies so I won’t here list the four “Miranda warnings”. This is perhaps the clearest example of judicial activism. You can’t find any support for this court’s decision in the Constitution.
Almost any federal or state regulation is unconstitutional by definition. My kids (when they were still young) couldn’t sell lemonade because they needed the “proper” licensing and our neighborhood wasn’t zoned for merchants.
Just because you can point to some bad immigration laws and court rulings that aren’t being followed doesn’t make the current administration’s policies illegal or tyrannical. Otherwise the United States of America would have been an illegal regime from its founding.
Some of the worst acts of tyranny have come from judicial system:
I'm getting a lot of pushback on this article so it's possible that I should have been clearer. I am not arguing that every illegal alien is entitled to a jury by his peers before being deported, I am responding to the numerous people out there who are arguing that "if we give illegals due process, we'll never get them out of the country."
I'm going to add a lot of what I think are important details after this so I'll put my main point here: we have laws that the government must obey. If we don't like the laws, we can vote to change them. If we allow the government to ignore the laws, they don't like we cease to be a nation of laws.
Government abuse aside there’s another good reason why we don’t round people up and deport them without due process; mistakes happen. I typically walk around Vancouver without ID. I don't need it since I don't have a car and I'm clearly old enough to drink (and am willing to take the very small risk of being carded). How do the police know I'm in the country legally? Should the police be allowed to detain and deport me because I left my ID at home?
What follows are some important details (that yes, I got from Grok):
The authorities are required by law to follow certain processes when dealing with suspected illegals:
State and Local Police Powers:
Police can detain someone suspected of illegal presence if they have reasonable suspicion of a crime, including immigration violations, but this is limited. For example, during a lawful stop (e.g., traffic violation), officers may inquire about immigration status if suspicion arises, but they cannot detain solely for immigration status without federal coordination.
The Supreme Court’s 2012 ruling in Arizona v. United States clarified that states cannot enact laws allowing police to arrest based solely on suspected illegal presence, as this encroaches on federal authority. However, police can check immigration status during lawful stops if state law permits (e.g., Arizona’s SB 1070, partially upheld).
Detention Process:
If police suspect someone is undocumented, they typically contact ICE to verify status. ICE may issue a detainer request, asking local authorities to hold the individual for up to 48 hours (excluding weekends/holidays) for federal pickup.
Detentions must comply with the Fourth Amendment, requiring reasonable suspicion for stops and probable cause for arrests. Detaining someone solely for suspected illegal presence without evidence of a crime risks violating constitutional rights.
Deportation Process:
Identification and Apprehension:
Individuals are identified through border apprehensions, interior enforcement (e.g., workplace raids), or local law enforcement referrals (e.g., via 287(g) agreements).
ICE or CBP can detain based on reasonable suspicion of removability. Detainees are held in ICE facilities, local jails, or private detention centers (housing ~510,000 annually as of 2022).
Notice to Appear (NTA):
DHS issues an NTA, initiating removal proceedings, outlining charges and court dates. Proceedings occur in immigration courts, not criminal courts.
Expedited Removal (INA § 235): Applies to those apprehended within 100 miles of the border and within 14 days of entry, or at ports of entry, with no court hearing unless claiming asylum. In 2022, ~40% of removals were expedited.
Immigration Court Proceedings:
Hearings: An immigration judge reviews the case. The individual can present defenses (e.g., asylum, family ties, hardship). No right to free counsel exists, though some access nonprofit legal aid.
Appeals: Decisions can be appealed to the Board of Immigration Appeals (BIA) within 30 days, and in rare cases to federal circuit courts. Appeals can delay removal but don’t guarantee a stay.
Relief from Removal: Options include:
Cancellation of Removal: For long-term residents (10+ years) showing “exceptional hardship” to U.S. citizen/permanent resident family.
Asylum or Withholding of Removal: For those fearing persecution, per the 1951 Refugee Convention.
Adjustment of Status: If eligible (e.g., through marriage to a U.S. citizen).
Only ~10% of cases result in relief due to strict criteria.
Execution of Removal:
If ordered removed, ICE arranges deportation to the country of origin or a third country. Voluntary departure may be offered (self-funded exit within 60-120 days), avoiding re-entry bans (3-10 years for unlawful presence).
Forced Removal: Involves commercial flights or charters, sometimes with escorts. In 2022, ICE conducted ~186,000 removals.
Non-Refoulement: U.S. law prohibits returning individuals to countries where they face persecution or torture, per international obligations.
Well stated. But how much due process is needed when you go to a baseball game and someone is sitting in your seats? Show the tickets or leave. Don't have a visa and came illegally? Out.
A colleague traveled to Portugal via Zurich with a Schengen visa. When he left the US the expiration date was interpreted as month/ date/ year. In Zurich, it was date/ month /year- EU STYLE.
He was put on the next plane back to NYC. No exceptions or discussions. RAUS
The purpose of due process (and the Constitution) is to protect people from abuses of power by the government. If someone is in your seat and won't leave you get an usher or security to assist. If that doesn't work you call the police who are legally allowed to charge people (likely for disturbance of the peace in this instance) at which point they go before a judge before receiving a penalty. This is due process.
Zurich isn't the United States. That said, your friend wasn't deported, he was denied entry. Had he snuck into Zurich with an expired passport and been caught he may have been entitled to a hearing. I'd hope so because due process is an important right in all Western societies but IDK because I wasn't writing about Switzerland.
The only problem I have with your article is that if you are here illegally the constitution doesn’t really apply. The laws that do apply are the immigration laws and precedents. Obama deported millions of illegals no talk about due process,Trump does it and the world is coming to an end the hypocrisy is amazing.
The Constitution always applies. It's purpose is to protect ALL people within the confines of the United States from abuses of power. We can tell by the use of "persons" and "citizens" which have different definitions.
Breaking the law does not mean due process no longer applies.
I am not attacking Trump and Defending Obama, I'm making the case for due process. In all instances. If the deportations that occurred under Obama took place without due process they were wrong.
Phil,
You have given us a summary of the law but you have failed to make your case by applying it to the facts (many law students do this including myself).
How does the U.S. government violate due process by deporting people who are in the United States illegally?
Under our current immigration law a person who is in the country illegally can be deported without a hearing (expedited removal) if they: Enter the U.S. without inspection (e.g., illegally entering the country).
Arrive at a port of entry but do not have the necessary documents or are attempting to enter through fraud or misrepresentation.
May also apply to paroled individuals whose parole status is revoked—U.S. Code § 1225; INA § 235(b)(1).
Under expedited removal, individuals are generally not allowed a full immigration court hearing where they can present evidence and have legal representation. Instead, they may have a brief interview to determine if they have a credible fear of persecution.
There are of course exceptions. There have been legal challenges to removing parole violators without a formal hearing. This is not at issue in our case.
So again, I ask you to make your case by applying the law to a set of facts. Otherwise, Trump’s administration is lawfully removing individuals who have entered the U.S. without inspection, without permission, or by misrepresentation and fraud. The government rests its case.
I should have made this clearer (or clear if the point was not made at all). I was not accusing the government of failing to apply due process, I was responding to the many comments I'd seen online that due process shouldn't apply to illegal immigrants.
Sorry for the confusion.
Phil,
I have nothing but respect for your work. But I also have a low opinion of most people who like to editorialize on politics and economics (not you of course). I have found that most socialists haven’t read Marx and most U.S. voters haven’t read the Declaration of Independence or the Constitution. And yet, they can’t wait to share their opinions on matters for which they have nothing of value to offer. Don’t even get me started on economics.
Sometimes I write to vent. This may have been one of those instances.
So do I.
Due process of law is a fundamental legal principle that requires the government to adhere to established legal rules and procedures when taking actions that affect someone's life, liberty, or property.
If you are in the U.S. illegally and law enforcement asks for proof of status and you have no proof because you’re here illegally that is sufficient due process.
It’s not brain surgery.
I certainly appreciate your work and I agree with your premise: “If we allow the government to ignore the laws they don't like we cease to be a nation of laws”. However, all laws are not lawful or constitutional. Much common law and case law are plainly wrong.
Miranda vs. Arizona (1966) is a perfect example. I’m sure you have watched plenty of police shows and movies so I won’t here list the four “Miranda warnings”. This is perhaps the clearest example of judicial activism. You can’t find any support for this court’s decision in the Constitution.
Almost any federal or state regulation is unconstitutional by definition. My kids (when they were still young) couldn’t sell lemonade because they needed the “proper” licensing and our neighborhood wasn’t zoned for merchants.
Just because you can point to some bad immigration laws and court rulings that aren’t being followed doesn’t make the current administration’s policies illegal or tyrannical. Otherwise the United States of America would have been an illegal regime from its founding.
Some of the worst acts of tyranny have come from judicial system:
Gibbons v. Ogden (1824)
Worcester v. Georgia (1832)
Charles River Bridge v. Warren Bridge (1837)
Dred Scott v. Sanford (1857)
Munn v. Illinois (1877)
Plessy v. Ferguson (1896)
Lochner v. New York (1905)
Abrams v. United States (1919)
Buck v. Bell (1927)
West Coast Hotel Co. v. Parrish (1937)
Korematsu v. United States (1944)
Bowers v. Hardwick (1986)
Bush v. Gore (2000)
First, thanks for reading and for the comment.
I'm getting a lot of pushback on this article so it's possible that I should have been clearer. I am not arguing that every illegal alien is entitled to a jury by his peers before being deported, I am responding to the numerous people out there who are arguing that "if we give illegals due process, we'll never get them out of the country."
I'm going to add a lot of what I think are important details after this so I'll put my main point here: we have laws that the government must obey. If we don't like the laws, we can vote to change them. If we allow the government to ignore the laws, they don't like we cease to be a nation of laws.
Government abuse aside there’s another good reason why we don’t round people up and deport them without due process; mistakes happen. I typically walk around Vancouver without ID. I don't need it since I don't have a car and I'm clearly old enough to drink (and am willing to take the very small risk of being carded). How do the police know I'm in the country legally? Should the police be allowed to detain and deport me because I left my ID at home?
What follows are some important details (that yes, I got from Grok):
The authorities are required by law to follow certain processes when dealing with suspected illegals:
State and Local Police Powers:
Police can detain someone suspected of illegal presence if they have reasonable suspicion of a crime, including immigration violations, but this is limited. For example, during a lawful stop (e.g., traffic violation), officers may inquire about immigration status if suspicion arises, but they cannot detain solely for immigration status without federal coordination.
The Supreme Court’s 2012 ruling in Arizona v. United States clarified that states cannot enact laws allowing police to arrest based solely on suspected illegal presence, as this encroaches on federal authority. However, police can check immigration status during lawful stops if state law permits (e.g., Arizona’s SB 1070, partially upheld).
Detention Process:
If police suspect someone is undocumented, they typically contact ICE to verify status. ICE may issue a detainer request, asking local authorities to hold the individual for up to 48 hours (excluding weekends/holidays) for federal pickup.
Detentions must comply with the Fourth Amendment, requiring reasonable suspicion for stops and probable cause for arrests. Detaining someone solely for suspected illegal presence without evidence of a crime risks violating constitutional rights.
Deportation Process:
Identification and Apprehension:
Individuals are identified through border apprehensions, interior enforcement (e.g., workplace raids), or local law enforcement referrals (e.g., via 287(g) agreements).
ICE or CBP can detain based on reasonable suspicion of removability. Detainees are held in ICE facilities, local jails, or private detention centers (housing ~510,000 annually as of 2022).
Notice to Appear (NTA):
DHS issues an NTA, initiating removal proceedings, outlining charges and court dates. Proceedings occur in immigration courts, not criminal courts.
Expedited Removal (INA § 235): Applies to those apprehended within 100 miles of the border and within 14 days of entry, or at ports of entry, with no court hearing unless claiming asylum. In 2022, ~40% of removals were expedited.
Immigration Court Proceedings:
Hearings: An immigration judge reviews the case. The individual can present defenses (e.g., asylum, family ties, hardship). No right to free counsel exists, though some access nonprofit legal aid.
Appeals: Decisions can be appealed to the Board of Immigration Appeals (BIA) within 30 days, and in rare cases to federal circuit courts. Appeals can delay removal but don’t guarantee a stay.
Relief from Removal: Options include:
Cancellation of Removal: For long-term residents (10+ years) showing “exceptional hardship” to U.S. citizen/permanent resident family.
Asylum or Withholding of Removal: For those fearing persecution, per the 1951 Refugee Convention.
Adjustment of Status: If eligible (e.g., through marriage to a U.S. citizen).
Only ~10% of cases result in relief due to strict criteria.
Execution of Removal:
If ordered removed, ICE arranges deportation to the country of origin or a third country. Voluntary departure may be offered (self-funded exit within 60-120 days), avoiding re-entry bans (3-10 years for unlawful presence).
Forced Removal: Involves commercial flights or charters, sometimes with escorts. In 2022, ICE conducted ~186,000 removals.
Non-Refoulement: U.S. law prohibits returning individuals to countries where they face persecution or torture, per international obligations.
Well stated. But how much due process is needed when you go to a baseball game and someone is sitting in your seats? Show the tickets or leave. Don't have a visa and came illegally? Out.
A colleague traveled to Portugal via Zurich with a Schengen visa. When he left the US the expiration date was interpreted as month/ date/ year. In Zurich, it was date/ month /year- EU STYLE.
He was put on the next plane back to NYC. No exceptions or discussions. RAUS
THE VISA WAS EXPIRED
The purpose of due process (and the Constitution) is to protect people from abuses of power by the government. If someone is in your seat and won't leave you get an usher or security to assist. If that doesn't work you call the police who are legally allowed to charge people (likely for disturbance of the peace in this instance) at which point they go before a judge before receiving a penalty. This is due process.
Zurich isn't the United States. That said, your friend wasn't deported, he was denied entry. Had he snuck into Zurich with an expired passport and been caught he may have been entitled to a hearing. I'd hope so because due process is an important right in all Western societies but IDK because I wasn't writing about Switzerland.
Thanks for the comment WR.
But Biden planned to intentionally not deny entry and set up a hearing in the distant future- never!
The only problem I have with your article is that if you are here illegally the constitution doesn’t really apply. The laws that do apply are the immigration laws and precedents. Obama deported millions of illegals no talk about due process,Trump does it and the world is coming to an end the hypocrisy is amazing.
The Constitution always applies. It's purpose is to protect ALL people within the confines of the United States from abuses of power. We can tell by the use of "persons" and "citizens" which have different definitions.
Breaking the law does not mean due process no longer applies.
I am not attacking Trump and Defending Obama, I'm making the case for due process. In all instances. If the deportations that occurred under Obama took place without due process they were wrong.
Thanks for reading.
Terrific article. How can the US quickly and legally remove millions of people who came to the country by thwarting the legal process?