The Trump administration’s push for swift deportations of noncitizens living illegally in the U.S. has faced repeated judicial setbacks, prompting concerns from the Heritage Foundation about potential overreach by the judiciary.
In a new memorandum, Hans von Spakovsky, a senior legal fellow at the conservative think tank and former Department of Justice official, argues that noncitizens’ due process rights in immigration proceedings are limited.
He writes, “As provided by Congress and by some court decisions interpreting the Constitution, aliens have only limited due process rights in immigration proceedings.”
Limited Due Process for Noncitizens
Von Spakovsky’s memorandum clarifies that while noncitizens share the same rights as citizens in criminal proceedings, such as access to a lawyer, their rights in deportation cases are more restricted and vary by circumstance.
He notes, “Those rights differ depending on the status of the aliens and whether they are outside the United States and trying to enter this country or are already in the country, either legally or illegally, as well as their visa or other status.”
Immigration law permits near-immediate deportations for migrants apprehended within two years of illegal entry, with von Spakovsky stating, “That alien can be removed without a hearing or any other proceeding,” unless they claim asylum or fear persecution.
Asylum claims trigger a complex process involving immigration officers, judges, and potentially federal courts, which critics argue is often exploited through frivolous claims, allowing migrants to remain in the U.S. undetected.
Judicial Rulings and Asylum Controversies
On July 2, Washington, D.C., federal judge Randolph Moss issued a 124-page order blocking Trump’s policy limiting asylum claims, calling it a “wholesale rewriting” of immigration laws.
Attorney General Pam Bondi, signaling an appeal, criticized the ruling as an overreach.
The Heritage memorandum highlights such judicial interventions as potential obstacles to Trump’s deportation agenda, with von Spakovsky warning that “federal courts that assume jurisdiction over banned, prohibited, or limited claims by aliens are violating federal law, and the Supreme Court should tell them so.”
Critics of the asylum system, including White House deputy chief of staff Stephen Miller, argue it enables abuse, with Miller stating in May, “The only process illegals are due is deportation.”
Supreme Court’s Role in Defining Limits
The Supreme Court has consistently recognized some due process rights for noncitizens, as Justice Antonin Scalia noted in Reno v. Flores (1993): “It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings.”
In April, the Court reinforced this in a ruling requiring “reasonable” notice and habeas corpus opportunities for alleged gang members facing deportation under the Alien Enemies Act.
Von Spakovsky’s memorandum suggests the Supreme Court will remain pivotal in clarifying when lower courts overstep, particularly in cases involving broad judicial interventions.
