Noncitizens get ‘only limited’ due process rights: Conservative legal expert

FIRST ON FOX: Courts have repeatedly stymied President Donald Trump’s efforts to quickly remove noncitizens living illegally in the country, but a conservative think tank is warning that the judiciary branch could, at times, be overstepping.

The Heritage Foundation’s Hans von Spakovsky, a senior legal fellow at the organization and a former Department of Justice official, detailed in a new memorandum how noncitizens’ due process rights are minimal when they are facing deportation.

“As provided by Congress and by some court decisions interpreting the Constitution, aliens have only limited due process rights in immigration proceedings,” von Spakovsky wrote in the document, reviewed by Fox News Digital in advance of its publishing.

The document makes clear that noncitizens, including illegal immigrants, have the same rights as citizens when it comes to criminal proceedings. If a noncitizen has been charged with a crime, that person is entitled to a lawyer, just like a citizen would be, for example.

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Demonstrators gather to protest against the deportation of immigrants to El Salvador outside the Permanent Mission of El Salvador to the United Nations on April 24, 2025 in New York City. (Michael M. Santiago/Getty Images)

Outside of that, the legal processes for noncitizens facing deportation vary widely depending on their circumstances. These cases are often handled in immigration courts rather than federal courts.

Heritage’s document suggests how due process, a contentious topic at the heart of many of the Trump administration’s immigration-related court cases, should apply to noncitizens in various scenarios.

“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,” von Spakovsky wrote.

Immigration law allows for near-immediate deportations in cases when a migrant has crossed into the country illegally but is apprehended within two years. 

“That alien can be removed without a hearing or any other proceeding,” von Spakovsky said. However, he added a caveat that has become a major source of frustration among border control advocates: “unless the alien requests asylum or asserts a credible fear of persecution if returned to his or her native country.”

If a migrant requests asylum, a form of protection for a person who fears they will be persecuted if sent back to their home country, an immigration officer, immigration judge, the Board of Immigration Appeals, and even the federal circuits and Supreme Court could all end up having a say in that migrant’s case before their asylum claim is fully vetted.

Critics of the asylum system say it has been roundly abused and that migrants making bogus asylum claims is common practice. They say such claims allow migrants to be released into the country and fall off the government’s radar.”

That concern came to a head on Wednesday, when a federal judge in Washington, D.C., issued a 124-page order blocking the administration from severely limiting asylum claims. The judge said Trump attempted a “wholesale rewriting” of immigration laws. Attorney General Pam Bondi has signaled an appeal is imminent.

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White House deputy chief of staff for policy and U.S. homeland security advisor Stephen Miller, right, speaks as President Donald Trump delivers a speech in Warren, Michigan, on April 29, 2025. (JEFF KOWALSKY/AFP via Getty Images)

The Heritage Foundation has been a presence in Republican politics for decades and has significant influence over government policy. The organization creates playbooks for presidential administrations, called the “Mandate for Leadership” series, and its most recent one, Project 2025, became a source of controversy during Trump’s campaign.

Heritage’s new memorandum comes as due process has become the bane of the administration as it attempts to deliver on Trump’s vows to deport all illegal immigrants.

Stephen Miller, Trump’s immigration adviser and White House deputy chief of staff, has been railing against the courts and immigration rights groups, who he claims have overplayed their hand and are illegally derailing Trump’s agenda.

“The only process illegals are due is deportation,” Miller wrote online in May.

The topic has cropped up in numerous heated, high-profile court cases, many of which remain pending.

Kilmar Abrego Garcia alleged he was wrongly deported to El Salvador despite an immigration judge forbidding it. A group of deportees bound for Sudan, but held up in inhumane conditions in Djibouti, argued in court that they got no due process. Additionally, numerous men deported under the Alien Enemies Act to a Salvadoran megaprison have claimed in courts that they were not afforded a chance to contest their removal.

Von Spakovsky indicated that the Supreme Court would ultimately continue to decide where lower courts were, or were not, overstepping.

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A prison guard transfers deportees from the U.S. to the Terrorism Confinement Center in Tecoluca, El Salvador, on Sunday. (El Salvador presidential press office via AP)

“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,” he wrote.

The Supreme Court has repeatedly affirmed noncitizens are entitled to some form of due process.

“It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings,” Justice Antonin Scalia wrote in Reno v. Flores in 1993.

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In an order in April, the Supreme Court cited Scalia’s words when it directed the Trump administration to give “reasonable” notice to the alleged transnational gang members at risk of being deported under the Alien Enemies Act.

The high court said those who are subject to the Alien Enemies Act must be given a chance to “seek habeas relief” before they are deported. Habeas corpus petitions are a form of legal recourse for those who believe they have been wrongly detained.