Due Process for Undocumented Immigrants

General Legal Standing

• The Fifth and Fourteenth Amendments protect “all persons,” not just citizens—this includes undocumented immigrants.
• Undocumented immigrants have constitutional rights when on U.S. soil, including the right to due process.

Due Process in Removal Proceedings

• Undocumented individuals facing deportation must receive:
  • Notice of proceedings
  • A neutral decision-maker
  • An opportunity to be heard
• Deportation is civil, not criminal, so there’s no right to a jury—but procedural fairness still applies.

Asylum Protections

• Even in expedited removal, asylum seekers are entitled to:
  • A credible fear interview
  • Limited review by an immigration judge
• Denials of asylum must allow for at least minimal procedural protections.

Criminal Punishments

• In Wong Wing v. United States (1896):
  • Non-citizens cannot be subjected to criminal penalties without a jury trial.
  • Criminal charges = full constitutional protections.

Recent Applications

• Courts blocked deportations under wartime statutes (e.g. Alien Enemies Act) for lack of process.
• Due process must include:
  • Time to prepare
  • Clear explanation of removal grounds
  • Access to challenge deportation, even for recent arrivals