Balancing Justice and Speed in Constitutional Immigration Enforcement by Clayton Mitchell

When I wrote recently about the case of Abrego Garcia and the appearance of due process shortcomings that surround modern immigration enforcement, a volume of well-meaning comments flooded in, I invited thoughtful comments and criticisms, as the article showed my understanding of this complicated case and the governing law.  Several readers had valid criticisms (see postscript below).  All the comments demonstrated that on every segment of the political spectrum, this is an important issue for all of us to discuss.

Many readers asked some version of this question: “How can the government deport someone without giving them their day in court?”   It is a fair question. 

In the American imagination, due process means a judge, a jury, and a fair fight. But that is not always how it works—especially if you are an undocumented immigrant. The reality is that under laws passed with bipartisan support, and used by both Democratic and Republican administrations, the federal government has the legal authority to deport many people without a hearing before an immigration judge.

The modern framework for immigration enforcement comes from a law signed by President Bill Clinton in 1996: the Illegal Immigration Reform and Immigrant Responsibility Act. This law created a process called “expedited removal”, which allows immigration officers—not judges—to summarily deport individuals caught entering the United States without proper documents.

Initially, this power applied only to people arriving at ports of entry or caught within fourteen days of illegal entry. But every president since has either expanded its scope or sustained its use. President George W. Bush broadened it to people found within one hundred miles of the border. President Barack Obama used it selectively while focusing on high priority matters. President Donald Trump has attempted to unleash its full potential, expanding it nationwide to include anyone who could not prove they had been in the United States for two years or more.

In other words, the ability of the executive branch to bypass the courts and deport people on the spot is not a new invention. It is the product of nearly three decades of bipartisan policy.

Critics often ask how this process can be legal under the Constitution’s guarantee of due process. The answer is that non-citizens who have not been lawfully admitted to the United States have fewer constitutional protections, particularly in immigration proceedings, which are civil, not criminal.

Still, expedited removal includes a narrow exception: asylum. If a migrant expresses a demonstrable fear of persecution or torture, they are entitled to (1) a screening by an asylum officer and, if they pass that screening, (2) a full hearing before an immigration judge. But if they do not assert asylum—or do not know to ask for asylum—they may be removed in a matter of hours, without a lawyer or even a phone call.

Some readers might be surprised to learn that this system has not only been used by multiple administrations but has also been upheld as lawful by the federal judiciary. In Make the Road New York v. Wolf, 962 F.3d 612 (D.C. Cir. 2020), the D.C. Circuit Court upheld the Trump administration’s expansion of expedited removal to apply to undocumented immigrants found anywhere in the country who could not prove they had been in the United States for two years. 

The court concluded that the Department of Homeland Security had lawful authority to expand expedited removal under the Immigration and Nationality Act, and that such expansion was not subject to judicial review under the Administrative Procedure Act. Importantly, the court also held that the plaintiffs lacked a valid constitutional claim because individuals who had not been lawfully admitted to the United States do not enjoy full due process rights under the Constitution.

The Supreme Court declined to hear the case, effectively allowing that decision to stand. Thus, the courts affirmed that immigration officers—not judges—may carry out removals in these circumstances, with limited procedural safeguards.

That ruling was consistent with the Supreme Court’s decision just weeks earlier in Department of Homeland Security v. Thuraissigiam, 591 U.S. ___, 140 S. Ct. 1959 (2020). In that case, the Court held that a Sri Lankan asylum seeker apprehended shortly after illegally crossing the border did not have a constitutional right to full habeas corpus review or a judicial hearing before expedited removal.  The Court reasoned that individuals who enter the country unlawfully and have not been admitted do not acquire the kind of legal standing that would entitle them to the full protections of due process. The expedited removal statute, the Court concluded, does not violate the Constitution’s Due Process Clause or Suspension Clause when applied to recent unlawful entrants who lack lawful admission or significant ties to the country.

Taken together, these decisions reinforce a legal reality that many Americans do not fully understand: the federal government may lawfully remove certain undocumented immigrants without a judicial hearing, especially if they have recently entered the country and lack strong legal or physical ties to it.

What we now have is a legal process that permits what most Americans would find antithetical to their values: a system where liberty can be taken without trial, if the person is here illegally and falls within certain enforcement categories.

Whether one believes this system is necessary for border security or an affront to American values, it deserves an honest debate. It is neither accurate nor helpful to throw around accusations of fascism or authoritarianism every time a migrant is deported without a courtroom drama.  At the same time, those who champion strong immigration enforcement must grapple with the moral weight of a due process procedure that operates under Constitutional authority and laws upheld by the courts, which sometimes sacrifice fairness for speed.

If we are to be a nation of laws, we must also be a nation that understands the laws we pass and how they are used.  

Postscript: In the prior article discussing the case of Kilmar Abrego Garcia, I included a paragraph that several readers rightly noted lacked appropriate attribution to accessible public documents. The paragraph read:

“However, this legal sanctuary was not absolute. In June 2020, Immigration Judge Jones apparently vacated the 2019 ruling based on newly submitted derogatory evidence. The court purportedly reinstated the final order of removal to El Salvador. The specifics of this reversal are not detailed in public sources, but the court reportedly held a hearing, considered the evidence, and issued another decision—hallmarks of procedural due process.” 

Mea culpa. This content should not have been included without appropriate references to publicly accessible sources. I regret the error in judgment, and I apologize.

Clayton A. Mitchell, Sr., is a lifelong Eastern Shoreman, an attorney, and former Chairman of the Maryland Department of Labor’s Board of Appeals.  He is co-host of the Gonzales/Mitchell Show podcast that discusses politics, business, and cultural issues.