Washington, DC., 18 March 2025 ——
The concept of due process is deeply embedded in the legal systems of democratic societies, especially in the United States, where it serves as a fundamental principle of justice. The Fifth and Fourteenth Amendments to the US Constitution guarantee that no person shall be deprived of life, liberty, or property without due process of law. This provision is central to the protection of individual rights, including the rights of immigrants. The deportation of immigrants without due process is not only a violation of these constitutional protections but also undermines the principles of fairness and justice that the US legal system strives to uphold.
The Legal Foundation
Due process ensures that individuals are treated fairly by the government, especially when their freedoms or rights are at stake. The US Constitution, under the Fifth Amendment, prohibits the federal government from depriving any person of life, liberty, or property without due process. The Fourteenth Amendment extends this protection to all persons within the jurisdiction of the United States, regardless of their citizenship status.
So, if you are wondering whether or not it is illegal for the government to seize people off the street and deport them to a gulag in El Salvador, maybe forever, with no due process, and no accountability, and without revealing the identities of the people they seized – Yes! That would be illegal – on many levels.
Immigrants – whether they are lawful permanent residents, asylum seekers, or undocumented individuals – are entitled to these due process protections.
Asserting that they are “illegal” immigrants or that they do not have rights simply because they are not citizens is a fundamental misunderstanding of Constitutional law. The Supreme Court has repeatedly enforced that the Constitution’s protections extend to all individuals, not just US citizens. For example, in Zadvyadas v. David (2001), the court ruled that even individuals facing deportation are entitled to protections under the Constitution.
Deportation and Due Process
Deportation, or the removal of an individual from the country, is a significant government action that directly impacts a person’s liberty and right to remain in the US. A person facing deportation is often forced to leave their home, family, and community, and may face persecution or unsafe conditions in their home country. Because of the severity of this action, deportation cannot be carried out arbitrarily or without due legal procedures.
Due process in the context of deportation means that individuals must be afforded certain legal rights and protections including:
The Right to a Hearing – Immigrants facing deportation must have the right to a hearing before an impartial judge or immigration court. This ensures that their case is heard fairly, and they have the opportunity to present their defense and challenge the charges against them.
The Right to Legal Representation – Although there is no guaranteed right to government-appointed counsel, in immigration proceedings (unlike criminal cases), immigrants should have access to legal counsel to ensure that they can adequately present their cases and understand the complexities of immigration law.
The Right to Challenge Deportation – Due process also allows immigrants to challenge deportation orders. They may argue that deportation would violate their rights under international law, including asylum protections, or that they would face harm upon return to their home country.
Protection Against Arbitrary Detention – Immigrants cannot be detained indefinitely without legal justification. So no, they cannot be seized off the street, held without representation, without due process, without being formally charged (and no, labeling someone a “gang member” or “terrorist” does not count without proof, in a court procedure) – and then sent off to an El Salvadore gulag, forever.
Due process requires that detention related to deportation be reasonable and not overly prolonged, and individuals must be allowed to contest their detention in a court of law.
Violations of Due Process
Deportation without due process occurs when immigrants are expelled without the opportunity for a hearing or without being given a chance to present their case in front of a judge. This practice can take various forms:
Summary Deportations – In some cases, immigrants may be deported without being allowed to appear before a judge. This is most common for individuals who are detained at the border or those who are caught by immigration enforcement agents. Summary deportation is particularly troubling because it deprives individuals of the ability to challenge their removal or present evidence that may allow them to remain in the country.
Fast-Tracking Deportation – Under certain policies, individuals can be deported under expedited removal procedures, which limit the opportunity for legal review and reduce the protections afforded to the individual. These procedures are often criticized for not providing enough time for individuals to present their claims or to secure legal representation.
Removal Order Based on Flawed or Incomplete Information – Sometimes deportation can occur based on incorrect or incomplete information about an individual’s immigration status or circumstances. In such cases, the lack of proper due process can result in wrongful deportation.
Deportation Without Due Process
Deporting individuals without due process can have far-reaching consequences. Not only does it undermine the legal principles of fairness and justice, but it also exposes individuals to grave risks. Many immigrants face violence, persecution, or even death upon being returned to their home countries. These risks are especially high for individuals fleeing war, human trafficking, or political persecution. Without a chance to present their cases, they are often denied the right to seek asylum or protection under international law.
Moreover, deportation without due process can also harm families, communities, and society as a whole. Families can be torn apart when one member is deported without an opportunity to challenge the decision. Communities lose valuable members who may contribute to the economy, education, and social fabric of the nation. Additionally, when deportation is carried out without transparency or oversight, it can lead to abuse of power, lack of accountability, and violations of human rights.
Upholding the Rule of Law
The deportation of immigrants without due process is not only illegal, but it is also contrary to the values of justice and fairness that underpin the American legal system. The US Constitution guarantees that no person, regardless of immigration status, shall be deprived of liberty without due process of law. Deportation, as a severe governmental action, must be carried out following established legal procedures that ensure fairness, transparency, and the opportunity for individuals to challenge their removal.
Protecting due process rights for immigrants is essential not only to safeguard the rules of law but also to affirm the United States’ commitment to human rights and the fair treatment of all individuals within its borders. Any attempt to deport individuals without this essential legal process undermines these principles and has long-lasting negative consequences for both the individuals involved and the society at large.
Photo credit: “4N3A9489” by Working Families Party. Licensed under CC By NC 2.0
Lara Kajs is the founder and executive director of The Genocide Report, an NGO nonprofit in Washington DC. She is the author of Assad’s Syria, and Stories from Yemen: A Diary from the Field, available in e-books, paperback, and hardcover at Amazon, Barnes and Noble, Apple Books, and independent booksellers worldwide. Distributed by Ingram Publishing. Ms. Kajs frequently speaks about atrocity crimes, forced displacement, state terrorism, and International Humanitarian Law (IHL). Follow and connect with Lara Kajs on Facebook, Instagram, X, and LinkedIn.