Posted on 05/06/2025 9:38:50 AM PDT by Red Badger
Everyone is talking "Due Process" with these removals--but how much is actually "Due"?
A series of legal challenges are mounting against the Trump administration’s aggressive efforts to remove noncitizens, many of which allege violations of constitutional due process protections. Attorneys for the noncitizens in these cases argue that removals have been carried out without “due process.”
But what exactly is “due process” in this context? Everyone seems to be certain that everyone is entitled to it. Everyone seems pretty certain that it’s being denied. But does everyone clamoring for it actually know what “due process” would look like?
It turns out, not much.
For example, it seems really unfair that these detainees are removed from the country so quickly. But the time the government is giving them to file “habeas” petitions might be constitutionally adequate (a habeas petition is a legal means for these noncitizens to challenge their detention). Courts have upheld even shorter windows to file legal challenges under immigration statutes without finding a due process violation. For example, 8 U.S.C. § 1225 outlines the procedures for the inspection of aliens and includes provisions for the expedited removal of inadmissible aliens. Specifically, 8 U.S.C. § 1225(b)(1)(A)(i) permits certain noncitizens to be removed in as little as 24 hours after arrival. Under this law, immigration officers may summarily remove individuals who are inadmissible due to fraud or lack of valid documents, unless, of course, they seek asylum or express a fear of persecution. But the point is: § 1225 removals can occur with minimal process and within a single day, and the courts have upheld this timeline as constitutionally adequate. The government argues that if removal within 24 hours under § 1225 passes due process tests, then removal without a hearing under the AEA must pass the same tests too.
If people expect that folks like Kilmar Abrego Garcia, if returned to the U.S., will be entitled to a televised jury trial and a court-appointed defense team, then they will be similarly disappointed. There is no express statutory right to counsel under the AEA. There is no statutory right to a hearing under the AEA.
The government argues that the Alien Enemies Act explicitly authorizes the removal of enemy aliens without individualized hearings or procedures, especially during wartime or national security contexts.
According to the government, the Supreme Court in Ludecke v. Watkins, 335 U.S. 160 (1948), upheld this framework, finding that enemy aliens may be removed solely on the basis of executive determination under the AEA.
I’ve heard the argument that the few times in history the AEA was used was during an actual declared war. That’s a very good point. But is it a good enough point for the courts to intrude upon the executive branch’s determination that someone is an (1) Alien (2) Enemy? Maybe. Probably. We’ll know when that issue is resolved—probably at the Supreme Court.
Meanwhile, arguing that the AEA is old, or rarely used, is not a strong argument. The constitution is old. The 14th amendment is old. There’s nothing wrong with “old” legislation. Nor is the fact that the AEA is rarely used a strong argument. Seditious Conspiracy (18 U.S.C. § 2384) is a very rarely-charged crime, and yet, that statute was used in the prosecutions of members of the Oath Keepers and Proud Boys for their roles in the January 6 Capitol attack. Statutes cannot be suspect just because they are old, or rarely used.
The AEA is not an immigration statute. According to the government, the constitutional protections for noncitizens in immigration proceedings (like due process hearings) do not apply under the AEA. Therefore, if no individual assessment or hearing is required before removal under the AEA, the government argues that there is no due process violation in not providing one.
Criminal defense attorneys will tell you that habeas petitions are rarely granted; they are often denied without a hearing. According to statistics, federal habeas petitions have about a 1-2% success rate. If due process required a hearing in every habeas petition, the federal courts would probably come to a grinding halt; one thing prisoners do is file a lot of (pro se) habeas petitions. The point is this: the promise of habeas relief isn’t much of a relief, at least not to criminal defense attorneys and their clients.
It seems that the only thing that a person removed under the AEA can challenge is his determination as an (1) Alien (2) Enemy. That’s not nothing. But it’s probably not much.
You are Due to be deported, and you are eligible for that Process.
Is that good enough ?
To many liberals just putting your illegal toe across the Rio Grande means you get due process for your eviction. Also ICE and or the Border Patrol need a warrant for their arrest. That is how the liberal mind works.
Zero in - zero out
SF eh? OK. Drop them off on the judges street, piglousy’s porch, pier 39, foot tower, Lombard street and the golden state bridge. I’d add Oakland but the local
canibels may just overwhelm them.
‘Due process’ to be incarcerated here or elsewhere at our determination and expense - sure. ‘Due process’ to return someone here illegally to his homeland - not at all.
Let’s address ‘worst of the worst’ and include those who were here illegally, deported then reentered illegally. They are Felons. Automatic deportation.
But the USSC is going to rule that the AEA does not apply to these cases, 8-1 or 9-0.
People have this fantasy about due process. For an illegal alien that hasn’t committed another crime or violation, it’s an identity verification before deportation. For an asylum seeker, they have to submit to federal border authorities before they enter the country, otherwise any asylum claim is usually forfeited.
Anyone associated with a FTO, gang, other illegals, or there is a credible informant that a person is here illegally gives border agents probable cause to detain and ask for ID.
Due process also varies for civil and criminal cases. And a de facto difference in due process exists for defendants right to legal counsel. A public defender is appointed for impoverished criminal cases, none for civil. A wealthy defendant can hire the best lawyers and it does make a difference in outcome- like jury selection.
Prosecutors have tremendous discretion in pursuing cases. So things aren’t always equal right there.
Life isn’t “fair” people need to deal with it.
As you note, it all depends on the situation and circumstances.
You are due to be told that you are being deported and why i.e. you crossed the border illegally.
Actually, this is related:
Department of Homeland Security v. Thuraissigiam, 591 U.S. ___ (2020)
In this case, even getting 25 yards north of the US/Mexico border still resulted in expedited removal proceedings.
Just depends on the law in question.
https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/19-161.html
“It seems that the only thing that a person removed under the AEA can challenge is his determination as an (1) Alien (2) Enemy. That’s not nothing. But it’s probably not much.”
Overly simplistic, if not incorrect. In order to be an “enemy” under the Alien Enemies Act, the alien must be a native, citizen, denizen, or subject of a foreign nation or government that is either (a) in a declared war with the United States (not applicable in the current situation); or (2) has engaged, attempted, or threatened an invasion or predatory incursion against the territory of the United States.
The primary issue is whether Tren de Aragua is acting on behalf of the Venezuelan government. In other words, is the Venezuelan government using Tren de Aragua to invade the United States.
Quite frankly, I am skeptical. From what I have read, the current Venezuelan government and leadership has accused the opposition party and Columbia of using Tren de Aragua to destabilize the Maduro government.
It was Bill Clinton who signed into law the 1996 immigration reform act.
It provided for expedited deportations while removing judicial review
If you do not have a U.S. birth certificate or green card or naturalization papers, you are here illegally.
People can come here with their countries passport and a entry visa and they are here legally.
Why should illegal aliens be entitled to due process when US citizens aren’t? (I’m thinking of the Jan. 6 defendants in particular.)
My grandparents came to the US legally in 1914 without a green card. But that was before colors were invented. I’ve seen photos from that era—everything was black and white.
Another question, are these illegals being provided lawyer representation on the taxpayer dime? I hope not and don’t believe it’s Constitutionally required.
Yes................
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