Immigration ‘Due Process’ in a Nutshell

In much the same way many in the public square have suddenly become experts on papal conclaves (and the media was crawling with amateur virologists five years ago during Covid), a similar trend is emerging with respect to “due process” and deportations. Here’s “due process” in the immigration context, in a nutshell.

“I Am Not Defending the Man”

This novel focus on due process in immigration proceedings stems from a case that should be familiar to all: the removal of Salvadoran national (and alleged MS-13 member) Kilmar Abrego Garcia from the United States to El Salvador, where he is currently being detained by the government there.

Over a week ago, “border czar” Tom Homan stated that about 139,000 aliens have been deported from the United States since Donald Trump assumed the presidency for the second time, and yet of all those tens of thousands of removals, Abrego’s case is the only one that has captured any real attention.

That’s because the Department of Justice (DOJ) admitted — perhaps precipitously — that Abrego was removed as a result of “administrative error”.

The president’s Democrat opponents have latched onto Abrego’s erroneous deportation to illustrate everything they don’t like about Trump’s immigration efforts — which nonetheless remain popular with voters.

In that vein, Sen. Chris Van Hollen (D-Md.) went to El Salvador and met with Abrego on April 18, at a point that the courts were hammering the White House over his inadvertent removal.

After that meeting, new information linking Abrego to MS-13, an alleged human trafficking operation between Texas to Maryland, and domestic violence began to emerge.

That all this triggered a round of punditry from gang tattoo “experts” was to be expected, but video of Abrego’s arrest in Tennessee with a car-full of alleged aliens and audio testimony of his wife detailing abuse have largely gone unchallenged.

Regardless, these disclosures prompted Van Hollen to change course and explain: “I am not defending the man, I am defending the rights of this man to due process.”

“Due Process”, in General

Of all of the clauses in the U.S. Constitution, “due process” is the only one to appear twice: once in the Fifth Amendment and again in the 14^th Amendment.

The Fifth Amendment provides that “no person shall be … deprived of life, liberty, or property, without due process of law”. Similarly, section 1 of the 14^th Amendment makes clear that no “State” can “deprive any person of life, liberty, or property, without due process of law”.

That 14^th Amendment reference bound the individual states to the rights enumerated elsewhere in the Constitution, but immigration is a fundamentally federal issue, and the Fifth Amendment has — since its passage — bound the federal government.

Note that the founders didn’t simply state that the Fifth Amendment required “process” before such a deprivation of “life, liberty, or property” occurred, only that the process required was what was “due” in the specific situation — an important modifier that expands or contracts the right depending on the situation.

Keep that in mind as I explain that in 2001, the Supreme Court recognized that “the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent”, but also held that “the nature of that protection may vary depending upon status and circumstance”.

Just how that process works has been developed though case law and precedent, with the Supreme Court holding at various times that: “aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country”; “once an alien gains admission to our country and begins to develop the ties that go with permanent residence his constitutional status changes accordingly”; and that “[t]he alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society”.

Due Process for Illegal Entrants and Aliens at the Ports

To ensure aliens receive the process they’re due, both Congress and the executive branch have crafted various procedures to determine whether aliens should be admitted, should be granted immigration benefits, and, alternatively, should be removed.

Up until 1996, the process due to illegal aliens largely hinged on whether they had entered the United States, regardless of whether they’d been admitted or not, or instead had been stopped at the ports and the borders seeking admission or attempting entry.

The former group had more expansive rights; the latter only received whatever process prior to expulsion that Congress had provided them.

That calculus largely proved unworkable and at the same time encouraged aliens to evade inspection on their way into the United States, so in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Congress scrapped it with respect to arriving aliens and recent illegal arrivals and started over.

Most crucially, IIRIRA created the “inspection protocol” in section 235 of the Immigration and Nationality Act (INA), which treats all “arriving aliens” — those at the ports and those attempting to enter illegally between the ports — equally, as “applicants for admission”.

Section 235 of the INA requires “immigration officers” — CBP officers at the ports of entry and Border Patrol agents between them — to “inspect” those aliens to determine whether they’re admissible, or more precisely, whether they’re inadmissible under any of the grounds of inadmissibility in section 212(a) of the INA.

Unless the alien “clearly and beyond a doubt [is] entitled to be admitted”, the immigration officer must detain the alien for a removal hearing before an immigration judge (IJ) under section 240 of the INA, with one crucial caveat.

Aliens who are inadmissible because they lack proper documents that would allow them to be admitted (section 212(a)(7)) or because they sought admission through fraud or misrepresentation (section 212(a)(6)(C)) are subject to “expedited removal”, under section 235(b)(1) of the INA.

Expedited removal allows immigration officers to bypass IJ removal proceedings and order such aliens removed. The only exception is where the alien subject to expedited removal claims a fear of harm if returned or requests asylum.

The immigration officer must send those aliens to be interviewed by USCIS asylum officers to determine whether they have a “credible fear of persecution”, defined as “a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum” under section 208 of the INA.

If the asylum officer finds the alien has a credible fear, the alien is taken out of expedited removal and referred to removal proceedings before an IJ. If the asylum officer finds that the alien doesn’t have a credible fear, the alien can have that decision reviewed by an IJ in a truncated process separate from removal proceedings.

If the IJ on review reverses the asylum officer’s negative credible fear determination, the alien is then placed into removal proceedings.

If, however, the alien doesn’t claim a fear of persecution or request an IJ review of the asylum officer’s negative credible fear determination, or if the IJ on review affirms the asylum officer’s negative credible fear determination, the alien will be expelled.

Under section 235, the aliens subject to expedited removal have no right to have any of those decisions reviewed in federal court, and in June 2020, the Supreme Court concluded that expedited removal without further review satisfied due process, even for aliens who had entered illegally.

Due Process for Other Aliens

The expedited removal provisions in section 235(b)(1) of the INA also allow — but don’t require — DHS to apply that limited-review process to aliens in the interior who haven’t “affirmatively shown, to the satisfaction of an immigration officer” that they’ve “been physically present in the United States continuously for the two-year period immediately prior to the date” they’re encountered by DHS.

As my colleague Elizabeth Jacobs has reported, DHS published a notice in January announcing it would be taking advantage of that offer by expanding expedited removal to all illegal entrants who are unable to show they have been here for at least two years.

That expansion is being challenged, though a similar expansion during the first Trump administration was allowed to proceed.

The real question, however, is whether the Court will find that the truncated expedited review procedures in section 235(b)(1) of the INA satisfy the constitutional due process rights of aliens who evaded apprehension and made their way into the interior before being detected, to the same degree they do for aliens stopped by DHS at the borders and the ports.

That decision could go either way, but Congress did permit the expansion and the justices may leave it to the political branches to settle the matter.

With those “expedited removal” exceptions, Congress has charged IJs as an initial matter with ensuring the due process rights of all other aliens in the course of removal proceedings.

As noted, section 240 of the INA governs removal hearings, and gives IJs authority to “administer oaths, receive evidence, and interrogate, examine, and cross-examine the alien and any witnesses” in determining whether aliens should be excluded, admitted, deported, or granted certain immigration benefits.

Under section 240(c) of the INA, aliens charged with inadmissibility bear the burden of proving “clearly and beyond doubt” they are “entitled to be admitted and” are “not inadmissible under” section 212(a) of the INA, whereas the government bears the burden of “establishing by clear and convincing evidence that, in the case of an alien who has been admitted to the United States, the alien is deportable” under section 237(a) of the INA.

In addition to the authorities and procedures governing removal hearings in section 240, DOJ has published implementing regulations (at 8 C.F.R. § 1240.1, et seq.) to ensure aliens understand the nature of those proceedings and their rights, allow them to be represented at no expense to the government, and provide for interpreters to be made available for the ones who don’t speak English, as well as to govern the submission of evidence and the IJ’s decision.

Moreover, 8 C.F.R. § 1240.15 allows aliens and the government to appeal IJ decisions to a different administrative DOJ tribunal, the Board of Immigration Appeals (BIA), as a matter of right.

And lest you worry that the due process rights of the American people are forgotten, 8 C.F.R. § 1240.2 provides for DHS counsel (from ICE) to be appointed in each case to present evidence on behalf of the United States and interrogate, examine, and cross-examine the alien respondent and all other witnesses.

In addition to their right to appeal adverse IJ decisions to the BIA, aliens can also file petitions for review with the federal circuit courts having jurisdiction over the places where their removal hearings were held, under section 242 of the INA, and can seek certiorari before the Supreme Court. Those courts, of course, can always deny such petitions.

Almost categorically, reviewing courts have held that the procedures in sections 240 and 242 of the INA and in 8 C.F.R. § 1240.1 et seq. satisfy due process.

As even the Ninth Circuit has held: “Where an alien is given a full and fair opportunity to be represented by counsel, prepare an application for … relief, and to present testimony and other evidence in support of the application, he or she has been provided with due process.”

That said, IJs have been found to have violated aliens’ due process rights when they were found to have prevented the full examination of aliens and pressured aliens to drop certain avenues of relief, and even when they have stood in “moral judgment” of aliens and denied repeated continuances.

If you’re wondering why removal cases drag on for years, it’s largely because IJs are afraid of being second-guessed by circuit court judges who are often all too quick to find due process violations.

Back to Abrego. While I suppose there’s some degree of due process violation in Abrego’s case, keep in mind he not only received a full opportunity to present his case in court (before two IJs, one on bond and a different one in his removal case), and was actually granted withholding of removal under section 241(b)(3) of the INA and ordered removed.

As I have explained in length elsewhere, my biggest issue with his case is that the second IJ issued a decision that was vague with respect to that withholding relief (it’s not clear that his removal wasn’t withheld to Guatemala, not El Salvador where he was sent), and that may have led to Abrego’s inadvertent removal.

It was the duty of Abrego’s attorney to clarify that order, not the government, but the proper course here would have been for ICE to move to reopen the withholding grant under 8 C.F.R. § 1208.24(b) due to “a fundamental change in circumstances relating to the original claim” (the gang he claimed to fear in El Salvador, Barrio 18, had been “decimated”), before he was removed.

That didn’t happen, apparently due to error, but nothing in his case suggests that there was an intent to deprive him of due process when he was removed. Mistakes happen, but the impact is rarely this significant.

The adjective “due” in “due process” is there for a reason. The constitutional rights citizens enjoy are broader than those accorded to aliens, and some aliens — green card holders in particular — are “due” more process than those here illegally, and many more than those stopped at the borders and ports. That’s basic constitutional law in the immigration context, in a nutshell.