BY: MASSIMO LAGAZZI
Image Credits: Yuriy T on stock.adobe.com.
Introduction
On March 31st, 2025, the Trump administration and immigration enforcement officials admitted that the deportation of U.S. resident Kilmar Abrego Garcia two weeks prior was an “administrative error.” Kilmar Abrego Garcia sued the Trump administration a day later, citing that a U.S. immigration judge granted him an order of protection in 2019, which should have blocked his deportation to his home country of El Salvador. After the Supreme Court ordered his return to the United States, it took two months for him to return to his family. This case has garnered backlash among the public and legal officials. His experience highlights several concerns over the lack of due process for immigrants under the Trump administration.
Due process, rooted in the Fifth and Fourteenth Amendments, guarantees that the government cannot deprive someone of life, liberty, or property without fair procedures. Courts have repeatedly held that due process protections extend to all people, including undocumented migrants. But immigration is a civil system, not a criminal one, and since civil cases are not meant to punish, rights are not as protected as they would be in a criminal case. For example, people facing deportation are not entitled to a court-appointed attorney if they cannot afford one, which differs from criminal courts, where the Sixth Amendment of the Constitution guarantees all people the right to an attorney, whether or not they can afford one. Other structural issues have also been described to have limited due process for decades. Immigration judges are employees of the Department of Justice, and the Attorney General has broad authority to reinterpret immigration law through different precedent decisions. These weaknesses in the immigration system have been routine since long before the Trump administration.
Within this already fragile system, the Trump administration has introduced more policies that immigration rights organizations have seen as intensifying existing due process shortcomings.
Trump-era Policies Affecting Due Process
Two days after Abrego Garcia was detained by ICE, Trump activated the Alien Enemies Act through an executive order. He did so by proclamation, arguing that the Venezuelan gang Tren de Aragua was “perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States.” The Alien Enemies Act is a wartime authority that allows the president to deport citizens of an enemy nation, permitting him to target immigrants without a hearing based on their country of birth, which has raised serious criticism from immigration rights groups against what they describe as interfering with the due process of immigrants.
As another way to facilitate the deportation and detention of illegal immigrants, the Department of Homeland Security expanded expedited removal, a procedure established by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which allows officers working under the department to deport an individual without a hearing before an immigration judge. Expedited removal proceedings effectively reduce protections for noncitizens to present evidence, call witnesses, and challenge their case before a judge, which is all allowed under standard removal. Under expedited removal, noncitizens have to prove, to the satisfaction of an immigration officer, that they have been present in the U.S. for two years. This move has been met by a lawsuit filed by immigrant rights non-profit organization Make the Road New York, where they argue that the policy deprives noncitizens of procedural protections.
Trump also cut funding for legal services that have aided immigrants facing detention and deportation. The Department of Justice ordered legal services to stop their work on these programs, which include but are not limited to the Legal Orientation Program, the Counsel for Children Initiative, and the Unaccompanied Children Program. Multiple non-profits have criticized the cuts to fund these programs, deeming them necessary for noncitizens to have fair trials.
Consequences and Criticisms
Many of the Trump administration’s moves to facilitate the detention and deportation of illegal immigrants have been recently contested in courts. ACLU and Democracy Forward filed a suit against the president for invoking the Alien Enemies Act, stating that the invocation of a wartime act during peacetime is unlawful.
The administration’s decision to expand expedited removal is also being challenged by non-profit organization Make the Road New York, ACLU, and the New York Civil Liberties Union in the D.C. District Court. The organizations argue that the expansion limits procedural protections of noncitizens, which is a violation of the Fifth Amendment. They say that current procedures “fail to provide time or a meaningful opportunity” for noncitizens to prove their innocence. The case is still ongoing.
Organizations that provide legal services to noncitizens are also suing the Trump administration for terminating the National Qualified Representative Program, which provided counsel to people in detention who have been found to be unable to represent themselves in proceedings due to mental incompetence. The director of litigation of the National Immigrant Justice Center, Keren Zwick, stated that this lawsuit seeks to “stop the Trump administration from eliminating the right to due process for immigrants in our country.”
Counterarguments: The Administration’s Reasons
The Trump administration frames its policies as necessary for national security, border control, and restoring legal order. The Trump administration defends its use of the Alien Enemies Act by framing it as a national-security necessity in response to what officials describe as the growing threat of the transnational gang Tren de Aragua. The administration argues that this statutory authority allowed the president to take swift action against citizens of hostile nations during a security emergency, including removal without a full hearing, if doing so protected the country.
The White House also claims plans for full use of expedited removal was to maximize the speed of deportation, and asserts that this power is legally authorized by Congress and essential to deter what officials describe as a lawless “invasion.” In addition, the administration frames the cuts to legal services, like the termination of the National Qualified Representative Program, as part of a broader effort to reallocate resources to frontline enforcement. By redirecting funding away from legal aid, the government argues it is prioritizing efficient removals and maximizing the impact of its deportation goals.
The administration also leans on longstanding legal precedent and executive authority to justify these measures. The argument is that the president has a broad discretion to enforce immigration laws, and that expanding expedited removal and detention operations is a legitimate exercise of power granted by Congress and affirmed in prior legal frameworks.
Implications
The policies introduced under the Trump administration carry several legal implications for how due process is interpreted and applied in immigration proceedings. Expansions of expedited removal, for example, have raised questions about the scope of administrative authority. Federal courts have noted that reducing access to hearings and eliminating opportunities to present evidence may increase the risk of imprecise deprivation of rights, which is a key concern under the Fifth Amendment’s due process clause. In Make the Road New York v. McAleenan, plaintiffs argued that a prior expansion during the first administration failed to provide adequate legal procedures and therefore conflicted with constitutional due process standards. These challenges point to a legal question of how far the executive branch can go in simplifying the removal process without violating procedural requirements that courts have said apply to all people in the United States, including noncitizens.
The invocation of the Alien Enemies Act also introduces longer-term legal considerations. Historically, courts have permitted the use of this statute only in contexts involving officially designated wartime enemies. Applying it during peacetime and toward nationals of a country with which the U.S. is not at war has resulted in cases questioning whether the president’s authority under this statute can extend beyond traditional wartime circumstances. Lawsuits filed by organizations such as the ACLU argue that expanding the Act’s use may conflict with statutory limits and established interpretations of executive power. Collectively, these developments highlight a series of ongoing legal debates about statutory interpretation, the boundaries of executive authority, and the minimum procedural standards required in civil immigration enforcement.
What’s Next?
The Trump administration’s reform of immigration policy, from invoking the Alien Enemies Act to expanding expedited removal and cutting legal support programs, has reshaped immigration law by shifting away from protections in legal procedures and towards enforcement. While long-standing weaknesses in due process for immigrants existed before Trump, his policies have largely amplified them. As ongoing court challenges continue to test the scope of the executive’s power, future administrations face a choice between maintaining the status quo created by Trump or reshaping the system toward fairness. Ultimately, the recent system reshaping and legal events leave questions on how the constitutional promise of due process can be upheld for all people within the United States’ borders.
This article was edited by Aileen Moseley and Alana Khona.