The text of the Constitution is clear and so is the Supreme Court: all non -citizens in the American soil must have the “due process of law.”
“There are literally millions of foreigners within the jurisdiction of the United States. The fifth amendment, as well as the fourteenth amendment, protects each of these people from the deprivation of life, freedom or property without the due process of law,” wrote the late justice John Paul Stevens in a unanimous 1976 of 1976. opinion.
So what does that mean in practice? Not necessarily much.
President Trump professes that “he does not know” the details, but insists that “one million or 2 million or 3 million trials” cannot mean illegally.
Legal experts say that Trump is right that the Constitution does not guarantee a “trial” for each migrant arrested and tidy deported at the border or within the country. In fact, migrants in the country illegally do not have extensive protection of the elimination procedure. (If they did, it would not have been possible for ICE to deport more than 270,000 last year).
President Donald Trump during a meeting with the Norway Prime Minister, Jonas Gahr, at the Oval Office of the White House in Washington, on April 24, 2025.
To Drago/EPA-EFE/Shuttersock
But in all cases, the law requires that the government take certain measures to guarantee the equity and safety of vulnerable persons.
“The detainees are entitled to notification and the opportunity to be heard appropriate for the nature of the case,” the Supreme Court unanimously declared Last month in an opinion Per Curiam (without signing).
The details, however, remain disputed. Legal scholars say that the type of “notice” and “audition” historically offered depends on the State and the circumstances of an immigrant, as if they had been legally admitted in the country in the first place, they have deep links with the community or are looking for asylum.
Any person who claims refuge in the United States for fear of persecution in their country of origin must receive a hearing before an immigration judge and provide the opportunity to appeal an adverse decision.
The Supreme Court is seen in Washington, on January 10, 2025.
Mandel and/AFP
The Supreme Court also dictated last month that any person detained under the law of alien enemies of 1798 must have the opportunity to seek relief of habeas, or challenge their detention, “within a reasonable time and in such a way that it allows them … before the elimination occurs.”
Similarly, immigrants that the United States plans to deport third countries, instead of their countries of origin, must have a “significant opportunity” to generate concerns about their safety, including at least 15 days to reopen their immigration procedures, the judge of the United States District Court, Brian Murphy, designated by Trump, ruled last month.
The Administration revealed last month in a presentation of the Federal District Court that was providing the detainees with an English page that informed them about the right to make a phone call and that had “no less than 12 hours” to “express an intention” to challenge their arrest requesting a hearing. ACLU says it is a timeline too irrazonable.
The guards of the Salvadora Escort prison allege members of the Venezuelan Gang Train of Aragua and the MS-13 gang recently deported by the United States government to be imprisoned in the Cecot prison, in Tecoluca, El Salvador on April 12, 2025.
Secom through Reuters
In many cases, however, due process does not mean any opportunity to appear before a judge.
According to the “Elimination Expedition” program, which Congress created in 1996, the Government is authorized to quickly deport any migrant in the country illegally for less than two years and detained within the 100 miles of the border without an audience.
According to the Immigration and Nationality Law, any person who reaches a port of entry from the United States without valid legal documents (that is, a passport or visa) can be summarily eliminated without a hearing or review.
The guards of the Salvadora Escort prison allege members of the Venezuelan Gang Train of Aragua and the MS-13 gang recently deported by the United States government to be imprisoned in the Cecot prison, in Tecoluca, El Salvador on April 12, 2025.
Secom through Reuters
The Trump administration has not been invoking the accelerated elimination program in the recent high profile cases of Venezuelan migrants. Many of those deportations, including Kilmar Abrego García sent to a noticeable prison in El Salvador, occurred to more than 100 miles from the border and involved migrants who lived in the United States for two years or more.
Immigrants who receive a hearing before an administrative law judge generally do not enjoy the same procedural guarantees they could receive in the State or Federal Court.
“[A]n Alien in the civil removal procedures is not entitled to the same package of constitutional rights that offer the defendants in the criminal procedures, “said circuit judge Lawrence Van Dyke in a 2021 decision by the Court of Appeals for the Ninth Circuit.” Several protections that apply in the context of a criminal trial do not apply at a sport hearing. “
Constitutional right to advice, for example, does not apply to civil elimination procedures. Evidence standards are much more lax, and most of the final decisions of immigration judges cannot be reviewed in a federal court.
The final result: due process means a certain degree of notification and hearing in most cases, although the details vary widely and remain in debate. With a series of ongoing legal challenges, judges are very likely to intervene in greater detail. And President Trump says the administration lawyers “obviously will follow what the Supreme Court said.”
