Due Process Isn't Optional, Even for Illegal Immigrants
The Constitution protects all people on U.S. soil, not just citizens. Attempts to sidestep that principle in the name of immigration enforcement aren’t just unlawful — they’re un-American.
Someone I’ve known for a long time – and consider intelligent and rational – recently posted an image on Facebook of a restraining order filed against Kilmar Abrego Garcia, the undocumented immigrant mistakenly deported to El Salvador by the Trump administration. The restraining order, filed by Garcia’s then-girlfriend in 2020, alleged threats of violence. It was one of several documents released by the Trump administration to justify Garcia’s deportation, executed without a hearing.
I replied, sarcastically: “Amazing. Too bad he didn't have a hearing where this could have been presented before a judge, who could then formally determine his criminal standing. Meh... due process is so overrated.”
That sparked a wave of responses.
One friend wrote: “He crossed the border illegally and has been a criminal for much of his time here. He is a violent threat, and yes, MEH on ‘due process,’ as he has no process due other than to be deported. Bypass the courts – just as Obama did millions of times.”
Others echoed the sentiment: if someone enters the country illegally, they don’t deserve constitutional protections. They pointed to President Obama’s record-setting deportation numbers – many without court hearings – as justification for Trump’s actions.
Let’s take a closer look.
First, I agree that illegal immigration is a serious issue and the system needs reform. Legal pathways are overly complicated, time-consuming, and expensive. While asylum is meant for those fleeing political persecution, many who arrive are economic migrants. The entire framework needs modernization.
But here’s the reality: the U.S. Constitution guarantees due process to all persons, not just citizens. That language appears in both the Fifth and Fourteenth Amendments. Anyone on U.S. soil is entitled to certain rights, including a fair hearing before the government deprives them of liberty.
One Facebook commenter said, “Go to Mexico, go to El Salvador, get arrested and demand your rights. See how that works for you.” Fair enough. Their county, their laws.
When I served in the Army in Germany, we were reminded constantly that we were subject to German law off-base. Traveling abroad, I know I’m subject to foreign laws. But that doesn’t justify ignoring our laws here at home. American constitutional principles, due process chief among them, govern American soil.
Was Garcia a criminal? Possibly, but not conclusively. The Trump administration labeled all deportees in his cohort as gang members. But investigative reporting by The New York Times and 60 Minutes found criminal records for only a couple of dozen. Even El Salvador has questioned the claims, requesting evidence to verify that true criminals are being held in its prisons.
Even if Garcia had committed a crime, he was still entitled to a hearing. He was already adjusting his status under a court order protecting him from deportation. The Trump administration later admitted it erred – but only after removing him without judicial review.
Garcia is not alone. Neri Alvarado, an undocumented immigrant from Venezuela, was picked up by ICE outside his Dallas apartment and deported to El Salvador based on unproven allegations of gang affiliation. He missed his immigration hearing and was removed from the system entirely. He has since said he’s given up on the U.S. and plans to return to Venezuela.
So yes, the Obama administration did deport millions – more than 5.3 million over eight years. But most of those cases followed established legal procedures:
Expedited Removal, for those caught within 14 days of entry and still near the border
Reinstatement of Removal, for those previously deported who re-entered illegally
Stipulated Removal, where individuals waived their right to a hearing
These mechanisms, while controversial, were rooted in immigration law passed by Congress. They were not based on executive reinterpretation of obscure wartime statutes.
In contrast, under Stephen Miller’s direction, the Trump administration invoked the Alien Enemies Act of 1798, a law used only thrice in history and only during declared wars. It allows the government to deport nationals of hostile nations during wartime. The U.S. is not at war. But Trump labeled illegal immigration an “invasion” and tried to link MS-13 to the Venezuelan government to trigger the statute’s provisions.
There are problems with that logic:
U.S. intelligence agencies found no link between MS-13 and Venezuela.
Law enforcement considers known Venezuelan gang activity negligible.
A federal judge ruled the administration’s use of the Alien Enemies Act for summary deportations unconstitutional.
Before taking office, Trump acknowledged the challenge. When asked about due process in a Meet the Press interview, he said, “It might say that, but if you’re talking about that, then we’d have to have a million or two million or three million trials.” (Listen for yourself.)
Exactly. That’s what due process requires: evidence, a hearing, and a judge. It’s not efficient, but it’s the law.
Miller’s plan was more than a shortcut – a legal provocation. He bet that the courts, especially the conservative-leaning Supreme Court, would uphold an expanded interpretation of executive power. Even if they didn’t, Trump now enjoys immunity for “official acts,” thanks to a recent Supreme Court ruling.
The result? A presidency that feels entitled to act without oversight, and a public conditioned to see due process as a technicality rather than a cornerstone of justice.
One thing still puzzles me: why deport dangerous criminals? If someone is truly a threat, shouldn’t we prosecute them here? If they’re deported to countries where they haven’t committed crimes, they likely won’t be punished and might return. One reason the U.S. is paying El Salvador to house these individuals in the CECOT supermax prison is precisely to keep them detained indefinitely.
Most of the men there aren’t even Salvadoran – they’re Venezuelan. They haven’t been convicted of crimes in the U.S. or El Salvador. How is that not cruel and unusual punishment?
Again, I support immigration reform. I believe in lawful entry and smart enforcement. But I also think the United States is better for welcoming immigrants who work hard, innovate, and contribute to our society. Most aren’t criminals. They’re people seeking opportunity.
That doesn’t mean we accept everyone. But it does mean we follow the rules – even when inconvenient. If the Trump administration – or its supporters – want different laws, they should change them. With Republican control of the federal government, that shouldn’t be difficult. But they won’t. It’s easier to govern by force than by consensus.
We’re a nation of laws. We may not always like them. I certainly don’t want all of them. But we don’t get to ignore them, especially when those laws are meant to protect us from the very abuses we’re now watching in plain sight.