Can Undocumented Immigrants Be Deported Without Due Process?

The bottom line: Undocumented immigrants who cannot prove that they have been in this country for at least two years will have hardly any legal protections and cannot hope to avoid deportation if President Donald Trump and his Border Czar Tom Homan come after them in what they are calling Operation Aurora.

During his campaign, Trump promised to deport 15-20 million people, but the best estimate of the number of undocumented immigrants in the country is closer to 12 million. Trump has already expressed frustration that it isn’t happening fast enough: “It’s driving him nuts they’re not deporting more people.” A comparison to President Barak Obama is appropriate here. Some called Obama the Deporter in Chief. He deported about 3 million in 8 years. He focused on criminals and recent arrivals, placing a much lower priority on those who had established roots in American communities and had no criminal records. Moreover, Obama created DACA (Deferred Action for Childhood Arrivals) to protect those who came to be called “Dreamers.” Operation Aurora so far has also started by targeting criminals (“the worst ones first”) but won’t reach 12 million unless it also goes after other groups. Trump tried to end DACA during his first term, and is expected to do so again this year.

One of the reasons Trump may be in a hurry is that the Republicans could well lose control of the House of Representatives in the 2026 mid-term elections, in which case Democrats would gain some leverage to impede him. Some of his allies have pitched a proposal to help achieve deportation of 12 million immigrants before the mid-terms using a “small army” of private citizens empowered to make arrests. According to the proposal, deporting 12 million people in two years “would require the government to eject nearly 500,000 illegal aliens per month. To keep pace with the Trump deportations, it would require a 600% increase in activity. It is unlikely that the government could swell its internal ranks to keep pace with this demand. In order to process this enormous number of deportations, the government should enlist outside assistance.”

You may be surprised to learn that the Due Process Clauses in the Fifth and Fourteenth Amendments to the Constitution apply not just to citizens but to all “persons” within the United States, including aliens, whether their presence here is lawful or unlawful. The Supreme Court has so ruled. This would ordinarily mean that those apprehended would be entitled to a hearing before an immigration judge, and if they had the resources, they could appeal any unfavorable decision, first to the Board of Immigration Appeals and then through the federal court system. Few immigrants could afford the legal fees, but the Sixth Amendment has been interpreted to require appointment of a public defender if necessary in criminal proceedings, and the official policy of the Trump Administration is that unlawful entry into the country is a criminal offense. Obviously, such hearings would make it impossible for Trump to deport 12 million in two years.

However, Congress in 1996 (during the Bill Clinton Presidency) created a procedure called “expedited removal” that dispenses with the need for hearings if undocumented immigrants cannot prove to the satisfaction of the immigration officers arresting them that they have been physically present in the United States continuously for the two-year period immediately prior to their arrest. The Department of Homeland Security in 2004 (during the George W. Bush Presidency) promulgated regulations limiting use of expedited removal to cases in which the immigrants were picked up within 14 days and within 100 miles of our land border. On January 21, 2025, the first day after Trump’s inauguration, DHS issued new regulations reversing the 2004 limits and reverting to the full powers in the statute: two years instead of two weeks, and no 100 mile limit.

“Under expedited removal processes, noncitizens are deported in a single day without an immigration court hearing or other appearance before a judge. CBP [Customs and Border Protection] officers exclusively conduct the process, which is usually completed within a couple of hours, affording little or no opportunity for the noncitizen to collect evidence or consult with an attorney. In most circumstances, the noncitizen does not have a right to appeal. Those who have been subjected to expedited removal are detained until they are formally removed. This provides the immigration officer with broad authority in the removal of a noncitizen, which critics argue allows the officer to operate as both prosecutor and judge.”

Because the process can move this fast, it would be prudent for those immigrants who can satisfy the two-year residency test to carry documentary proof with them at all times.

There are special rules for those who have applied for asylum (“credible fear of persecution” if they are returned to their home countries) within the one-year statutory deadline, but I won’t get into those here, except to suggest that they too should probably carry documentary proof of their application status.

(Footnotes available upon request to aauck@comcast.net)