Due Process Protections for Non-Citizens on U.S. Soil

The question of due process protections for non-citizens on American soil stands at the intersection of constitutional principles, national sovereignty, and individual rights. As immigration enforcement has intensified under the Trump administration in 2025, fundamental questions have emerged about the extent to which constitutional guarantees apply to those who are physically present in the United States but lack citizenship status. These questions are not merely academic—they affect millions of individuals and touch upon core values of our constitutional republic.

The Constitution’s text offers a starting point for this analysis. The Fifth and Fourteenth Amendments both use the word “person” rather than “citizen” in their due process clauses, suggesting a deliberate choice by the Framers to extend these protections beyond the citizenry. This textual distinction has formed the foundation for a series of Supreme Court decisions recognizing that non-citizens physically present on American soil possess certain constitutional protections, including due process rights.

Recent controversies surrounding the Kilmar Abrego Garcia case and the Trump administration’s invocation of the Alien Enemies Act have brought these issues to the forefront of public debate. President Trump’s recent statement that “we cannot give everyone a trial” has generated significant constitutional discussion about the proper scope of due process for non-citizens facing deportation. These developments demand careful examination of the historical understanding, judicial precedents, and practical implications of due process protections for non-citizens in America.

Historical Understanding of Due Process for Non-Citizens

The concept of due process rights traces its lineage to Magna Carta and English common law, which established that even the sovereign must follow established legal procedures. When the Framers incorporated due process protections into the Fifth Amendment, they chose language that extended these protections to “persons” rather than limiting them to citizens. This choice reflected an understanding that certain fundamental rights attach to all individuals subject to American jurisdiction, regardless of citizenship status.

Early Supreme Court decisions reinforced this understanding. In Yick Wo v. Hopkins (1886), the Court declared that the Fourteenth Amendment’s protections extend to “all persons within the territorial jurisdiction” of the United States. This principle was reaffirmed in Wong Wing v. United States (1896), where the Court held that non-citizens could not be subjected to punishment without a judicial trial. These early cases established the foundational principle that physical presence on American soil confers certain constitutional protections.

The Court’s approach recognized that while Congress possesses broad authority over immigration policy, this power must be exercised within constitutional constraints. As the Court explained in The Japanese Immigrant Case (1903), deportation proceedings must conform to “the fundamental principles that inhere in due process of law.” This balance between congressional authority and constitutional limitations has shaped the development of immigration law throughout American history.

The Supreme Court’s Evolving Jurisprudence

The Supreme Court’s treatment of non-citizen due process has evolved significantly over time. In the early 20th century, the Court developed what became known as the “plenary power doctrine,” which granted Congress and the executive branch substantial deference in immigration matters. This doctrine, established in cases like Chae Chan Ping v. United States (1889) and Fong Yue Ting v. United States (1893), limited judicial review of immigration decisions.

Despite this deference, the Court has consistently recognized that non-citizens physically present in the United States possess due process rights. In Mathews v. Diaz (1976), the Court explained that the Fifth Amendment “protects aliens who are within the jurisdiction of the United States from deprivation of life, liberty, or property without due process of law.” This protection applies regardless of whether the non-citizen’s presence is “lawful, unlawful, temporary, or permanent.”

More recently, in Zadvydas v. Davis (2001), the Court reaffirmed that “the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” This decision imposed constitutional limitations on the government’s authority to detain non-citizens indefinitely, recognizing that physical presence on American soil triggers constitutional protections.

Due Process in Removal Proceedings

Removal proceedings represent the primary context in which non-citizens’ due process rights are tested. These administrative proceedings determine whether a non-citizen may remain in the United States or must be deported. While the Supreme Court has recognized that these proceedings must satisfy due process requirements, it has also acknowledged that the specific protections may differ from those required in criminal trials.

In Landon v. Plasencia (1982), the Court explained that “the constitutional sufficiency of procedures provided in any situation varies with the circumstances.” This flexible approach allows courts to consider factors such as the individual’s interest at stake, the risk of erroneous deprivation through existing procedures, and the government’s interest in maintaining current procedures. This balancing approach, established in Mathews v. Eldridge (1976), guides courts in determining what process is due in specific contexts.

Under current law, non-citizens in removal proceedings are entitled to notice of the charges against them, a hearing before an immigration judge, representation by counsel (though not at government expense), presentation of evidence, cross-examination of witnesses, and appeal to the Board of Immigration Appeals. These protections, while less extensive than those afforded criminal defendants, reflect the recognition that deportation represents a severe deprivation that requires meaningful procedural safeguards.

Expedited Removal and Its Constitutional Implications

The expedited removal process, established by Congress in 1996, allows for the rapid deportation of certain non-citizens without a hearing before an immigration judge. This streamlined procedure applies to individuals apprehended at or near the border who cannot establish that they have been continuously present in the United States for at least two years. The process has generated significant constitutional debate, particularly regarding whether it provides adequate due process protections.

Proponents of expedited removal argue that non-citizens who have recently entered the country illegally have limited due process rights, pointing to the Supreme Court’s statement in United States v. Verdugo-Urquidez (1990) that “aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.” Under this view, recent entrants lack the “substantial connections” that would trigger robust constitutional protections.

Critics contend that expedited removal creates an unacceptable risk of erroneous deportations, particularly for asylum seekers who may be returned to countries where they face persecution. They argue that the Constitution’s text makes no distinction between recent arrivals and long-term residents, extending due process protections to all “persons” on American soil. This debate highlights the tension between efficient immigration enforcement and constitutional principles of fundamental fairness.

The Alien Enemies Act and Current Controversies

The Trump administration’s recent invocation of the Alien Enemies Act has brought renewed attention to non-citizen due process rights. This statute, enacted in 1798 as part of the Alien and Sedition Acts, authorizes the president to detain, relocate, or deport non-citizens from countries with which the United States is at war. The administration has argued that this authority allows for streamlined removal of certain non-citizens without the procedural protections typically required in immigration proceedings.

Constitutional scholars have questioned whether the Alien Enemies Act remains valid under modern due process jurisprudence. As one legal commentator observed, “The Act was passed before the Fourteenth Amendment and the development of modern due process doctrine. Its constitutionality under contemporary standards is highly questionable.” This debate reflects broader tensions between historical practices and evolving constitutional understandings.

The Kilmar Abrego Garcia case exemplifies these tensions. According to recent news reports, Abrego Garcia was deported to El Salvador despite having previously been granted protection against return to that country. Critics argue that this case demonstrates the dangers of prioritizing speed over procedural protections in immigration enforcement, as errors can have life-or-death consequences for those wrongly deported to dangerous situations.

Distinctions Between Criminal and Civil Proceedings

A crucial aspect of understanding due process for non-citizens involves recognizing the distinction between criminal and civil proceedings. Deportation, though potentially severe in its consequences, has been consistently classified as a civil rather than criminal sanction. This classification has significant implications for the scope of due process protections available to non-citizens facing removal.

In Fong Yue Ting v. United States, the Supreme Court established that “deportation is not a punishment for crime” but rather “a method of enforcing the return to his own country of an alien who has not complied with the conditions” of his entry or residence. This characterization has allowed courts to approve procedures in immigration proceedings that would not satisfy due process requirements in criminal cases.

Critics argue that this distinction has become increasingly artificial as immigration enforcement has taken on punitive characteristics. As one scholar notes, “Modern deportation often follows criminal conviction and functions as an additional penalty. The civil-criminal distinction allows the government to impose what amounts to punishment without providing the procedural protections the Constitution requires in criminal cases.” This critique suggests that the traditional categorization may require reconsideration in light of contemporary realities.

The Role of International Law and Human Rights Standards

International law provides another framework for analyzing due process protections for non-citizens. The United States has ratified several treaties that establish minimum standards for the treatment of non-citizens, including the International Covenant on Civil and Political Rights and the Convention Against Torture. These agreements prohibit arbitrary detention and require fair procedures before individuals can be returned to countries where they face persecution or torture.

While these treaty obligations do not automatically create enforceable rights in domestic courts, they inform the interpretation of constitutional provisions and statutory requirements. As the Supreme Court has recognized, “The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.”

Human rights advocates argue that international standards require more robust procedural protections than current U.S. immigration law provides. They point to decisions by international bodies criticizing aspects of American immigration enforcement, particularly expedited removal and prolonged detention. These international perspectives offer a comparative lens for evaluating domestic practices and considering potential reforms.

Administrative Due Process and Agency Discretion

Immigration enforcement involves significant administrative discretion, raising questions about how administrative law principles interact with constitutional due process requirements. Administrative agencies like the Department of Homeland Security must follow their own regulations and provide consistent application of immigration laws, as required by the Administrative Procedure Act and constitutional due process principles.

The Supreme Court has recognized that agencies must adhere to their own rules and procedures, even when those rules provide more protection than the Constitution requires. This principle, established in United States ex rel. Accardi v. Shaughnessy, provides an important check against arbitrary enforcement actions. When agencies fail to follow their own procedures, affected individuals may challenge these actions through administrative appeals and judicial review.

However, the scope of judicial review in immigration cases remains limited by principles of deference to agency expertise and executive discretion in foreign affairs. Courts have been reluctant to second-guess immigration officials’ factual determinations or policy judgments, particularly in cases involving national security concerns. This deference creates tension with the judiciary’s constitutional responsibility to ensure that administrative actions comply with due process requirements.

Digital Evidence and Due Process in Immigration Proceedings

The proliferation of digital evidence presents new challenges for due process in immigration proceedings. Immigration officials increasingly rely on electronic communications, social media posts, and other digital information to make enforcement decisions. This trend raises important questions about authentication, reliability, and privacy that traditional procedural frameworks struggle to address.

Digital evidence may be particularly difficult for non-citizens to challenge effectively. Many lack the technical expertise or resources to evaluate electronic evidence presented against them. Language barriers and limited access to counsel further complicate their ability to contest potentially misleading or inaccurate digital information. These practical obstacles can undermine the meaningful opportunity to be heard that due process requires.

As Attorneys.Media has noted in its coverage of digital evidence issues, “The authentication and reliability of digital evidence present unique challenges that our legal system is still adapting to address.” These challenges are magnified in immigration proceedings, where streamlined procedures and limited resources may prevent thorough examination of complex digital information.

Conservative Perspectives on Due Process for Non-Citizens

Conservative legal scholars and jurists have offered various perspectives on due process protections for non-citizens. Some emphasize the original understanding of constitutional provisions, arguing that the Framers intended to extend basic procedural protections to all persons subject to American jurisdiction, regardless of citizenship status. This textualist approach focuses on the Constitution’s use of “person” rather than “citizen” in the due process clauses.

Others emphasize the government’s sovereign authority to control immigration, arguing that this power necessarily includes the ability to establish streamlined procedures for removing non-citizens who enter or remain in the country unlawfully. Under this view, due process requirements must be balanced against national security interests and the practical challenges of enforcing immigration laws effectively.

Justice Clarence Thomas has articulated a nuanced position on these issues. While recognizing that the Constitution extends certain protections to all persons physically present in the United States, he has emphasized that the specific requirements of due process may vary based on factors such as legal status and length of residence. This approach seeks to balance constitutional principles with practical governance concerns.

Practical Implications for Legal Practitioners

For attorneys representing non-citizens, understanding the scope and limitations of due process protections is essential for effective advocacy. Legal representatives must be prepared to navigate complex procedural rules while asserting their clients’ constitutional rights in administrative proceedings and federal courts.

Key strategies include challenging procedural defects in removal proceedings, seeking administrative closure or prosecutorial discretion in appropriate cases, and pursuing judicial review of constitutional violations. Attorneys must also stay informed about rapidly changing policies and precedents that affect non-citizens’ procedural rights.

As the legal landscape continues to evolve, practitioners must balance zealous advocacy with realistic client counseling. While constitutional arguments may provide powerful tools in some cases, practical considerations—including agency discretion and limited judicial review—often shape outcomes in immigration matters. Effective representation requires both principled advocacy and strategic pragmatism.

Conclusion

The question of due process protections for non-citizens on U.S. soil involves complex constitutional principles, historical precedents, and practical governance considerations. While the Supreme Court has consistently recognized that non-citizens physically present in the United States possess due process rights, the specific content of these protections remains subject to ongoing debate and development.

Recent controversies surrounding immigration enforcement highlight the continuing tension between efficient border control and constitutional principles of fairness and individual dignity. As our society grapples with these challenges, we must remember that how we treat non-citizens reflects fundamental values embedded in our constitutional tradition—values that transcend partisan divisions and speak to our national identity.

The Constitution’s text, with its deliberate extension of due process protections to “persons” rather than merely “citizens,” suggests an inclusive vision of fundamental rights that applies to all individuals subject to American jurisdiction. While the specific implementation of these protections may vary based on context and circumstance, the core principle remains: government action that affects life, liberty, or property must adhere to fair procedures that respect human dignity and prevent arbitrary deprivations.

As we navigate these complex issues, we would do well to remember Justice Harlan’s observation that “due process is not a technical conception with a fixed content unrelated to time, place and circumstances.” This flexible approach allows our legal system to adapt to changing conditions while maintaining fidelity to enduring constitutional principles that define our system of ordered liberty.

Citations:

• Constitutional Implications of Denying Due Process Rights
• Did Obama Deny Due Process During His Deportation Policies?
• Understanding the Kilmar Abrego Case and Legal Implications
• Public Support for Denying Due Process to Certain Groups
• Libertarians Discuss Erosion of Due Process Rights
• Due Process Clause: Fifth and Fourteenth Amendments Explained
• Due Process Rights in Trump’s Deportation Policies Explained
• Trump Administration’s Growing Opposition to Due Process Protections
• Historical Background of Due Process in American Law
• Steve Vladeck on Due Process and Rule of Law