In many cases, no trial is required to deport them

by John Banzhaf

WASHINGTON, D.C. (May 5, 2025) – President Donald Trump is being sharply criticized for saying “I don’t know” when asked by NBC’s Kristen Welker whether “everyone who’s here, citizens and non-citizens, deserve due process.” When pressed, Trump added by way of explanation that “then we’d have to have a million or 2 million or 3 million trials” to deport those in the U.S. illegally.

But, contrary to what many pundits are claiming, aliens are not necessarily entitled to full due process protections in all situations. 

Due process is not a guarantee of certain fixed trial-type procedural protections (such as to be able to cross examine witnesses), but rather only to the process (procedural protections) which is due under the particular circumstances – which in some situations may be very little, says public interest law professor John Banzhaf, who helped to successfully attack the earlier separation of families by ICE, and proposed a simple way – meeting the demands of both sides – out of the Abrego Garcia quagmire.

Therefore Trump is also correct, at least in a lay sense, that in most cases – and certainly not in the cases of many millions of deportable aliens – they are not entitled to a trial, explains the law professor.

As one judge explained, “[A]n alien in civil removal proceedings is not entitled to the same bundle of constitutional rights afforded defendants in criminal proceedings . . . various protections that apply in the context of a criminal trial do not apply in a deportation hearing.”

For example, as the Congressional Research Service has noted, under INA § 235(b)(1), the “Department of Homeland Security (DHS) [may] summarily remove aliens arriving at a designated U.S. port of entry . . . ‘without further hearing or review’ if they are inadmissible for various reasons (e.g. “lack valid entry documents”) . . . Most aliens subject to expedited removal have thus been apprehended either at a designated port of entry or near the international border when trying to enter, or shortly after entering, the United States unlawfully between ports of entry. . . . INA § 242(a)(2) generally bars judicial review of an expedited removal order.” [emphasis added]

While there are exceptions to some of what is set forth above, it is certainly clear that, at least in some situations, aliens illegally in the U.S. do not receive due process procedural protections, says Banzhaf, who notes that he is explaining – but not necessarily endorsing – such procedures.

When Trump complained that it would take millions of trials to deport millions of illegal aliens eligible to be deported, he was probably using “trial” in the lay sense of something equivalent to what occurs in a courtroom, but that is not necessarily the case. 

For example, in the famous Goss case, the Supreme Court held that, at least in certain circumstances, all that due process requires is that the respondent be told why he is about to be deprived of a protected legal interest (commonly called a right), and few minutes to tell his side of the issue. Thus the constitutional requirement of due process can in some situations be met by only a brief conversation; with no hearing, formal or even informal, no witnesses, no independent decision maker, and certainly no lawyers.

Also, due process does not always require a trial or other hearing, even with formal legal proceedings in courtrooms with federal or state judges. For example, immigration agencies can take “administrative notice,” the counterpart of judicial notice in formal court trial proceedings, to establish facts which might otherwise require an evidentiary hearing – e.g., changed circumstances in petitioner’s country. This might apply, for example, in the case of Abrego Garcia.

Another way to avoid – or at least severely limit – an immigration or other administrative proceeding is to use the technique of summary judgment. For example, in situations in which due process would ordinarily require a trial in a courtroom, judges routinely dismiss cases without any trial if there are no serious dispute as to the relevant facts; in other words, where there is no purpose in having a trial. 

This summary judgment proceeding is also applied in immigration proceedings. As the Administrative Office for Immigration Review explains: “The ALJ [administrative law judge] will enter a summary decision for either party if the pleadings, affidavits, material obtained by discovery or otherwise, or matters officially noticed show that there is no genuine issue of material fact and that a party is entitled to summary decision.” [emphasis added]

In summary, whether we like to think so or not, illegal aliens may be entitled under the Constitution to few if any procedural protections. If that were not the case, it would have been impossible to remove over 270,000 during the last fiscal year, notes Banzhaf.