What is Due Process?

This thought of the week is inspired by a conversation that I recently had with a close friend and the current ongoing case of Kilmar Abrego Garcia. Garcia is an immigrant from El Salvador who came to the United States illegally in 2012 and was later granted a “withholding of removal” in 2019 by a judge based on credible grounds that he would face persecution if he was returned to El Salvador. The court order prevents the U.S. government from removing him based on said threats. On March 15th, 2025, Garcia was deported to El Salvador illegally on the basis that he had not been charged or convicted of a crime either in the U.S. or in El Salvador.[1] In addition to his deportation, he was not given a trial prior to deportation. As a result, this case was taken to the Supreme Court who ruled 9-0 in favor of  a lower-level Maryland court who ruled that the current administration must have Garcia returned to the United States so that he can have his due process under the law.[2] 

This may spark a question for those unfamiliar “what is due process and why is an illegal immigrant allowed to have due process if he is not a United States citizen?” To answer this question, we look at the United States Constitution, more specifically the Bill of Rights. There are two instances where the Bills of Rights articulates due process, which can be found in the fifth and fourteenth amendments.

·      Amendment V: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury… nor be deprived of life, liberty, or property, without due process of law…” [3]

·      Amendment XIV: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” [4]

If you are like me, an untrained lawyer, the meaning of this is still vague. Cornell law school defines due process as the promise of legality and of fair procedure, stating that our due process clause has historical roots that stem from Great Britain’s Magna Carta. The King promised he would act only in accordance with the law (legality) and that everyone would receive the ordinary process (processes) of the law.[5] In addition to the historical aspect, the due process clauses promises persons that before being deprived of life, liberty, or property, the government must follow fair procedures, such as a judicial trial, and to deny a person said “due” process that would be unconstitutional. [6] 

There have been numerous cases where the due process clause has been argued and its interpretation has been nuanced and changed overtime. Three cases provide better clarity as to what due process can or should entail, Mullane v. Central Hanover Bank (1950), Goldberg v. Kelly (1970) and Matthew v. Eldridge (1976).

The Court in the Mullane case determined that due process requires at minimum:

·      (1) notice, (2) an opportunity to be heard; and (3) an impartial tribunal (court) [7]

 The Goldberg court opinioned that due process requires the state to provide a hearing before an impartial judicial officer, the right to an attorney’s help, and the right to present evidence amongst other items.[8] It also expanded parts regarding property beyond real or personal property such as welfare benefits that amount to “property” with due process protections. [9]

The Matthews court, which is the Supreme Court’s main approach at present, resolved questions over what process is due by analyzing three prompts:

• Nature of the property right – or the private interest affected by official action

• Adequacy of the procedure compared to other procedures – or the risk of an erroneous deprivation of such interest through procedures used

• The burdens that other procedures would impose on the states – or the government’s interest to include fiscal or administrative burdens

Returning to the current case of Abrego Garcia with a better understanding of due process a secondary question may be prompted which is whether due process applies to illegal immigrants. To answer directly whether Garcia and other illegal immigrants are entitled to due process citing Reno v. Flores (1993) provides a clear answer. Justice Antonin Scalia, who delivered the opinion of the Court, stated, “it is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings. See The Japanese Immigrant Case, 189 U. S. 86,100-101 (1903).” [10] It is important to understand that whether we agree or disagree with how the U.S. government handled Garcia’s deportation we must understand that he, along with every other illegal or legal immigrant along with naturalized and born citizens are required due process under the law. 

[1] Sardarizadeh, S., Thomas, M., Horton, J., & Wendling, J. (2025, April 30). Kilmar Abrego Garcia and MS-13: What is alleged and what we know. BBC. https://www.bbc.com/news/articles/c1k4072e3nno

[2] 604 U. S. ____ (2025)

[3] United States Bill of Rights. (1789)

[4] United States Bill of Rights. (1789)

[5] Due process. (2022). LII / Legal Information Institute. Retrieved April 17, 2025, from https://www.law.cornell.edu/wex/due_process

[6] Due process. (2022)

[7] Interpretation: The fourteenth amendment due process clause | constitution center. (n.d.). National Constitution Center – Constitutioncenter.Org. Retrieved April 17, 2025, from https://constitutioncenter.org/the-constitution/articles/amendment-xiv/clauses/701

[8] Due Process. (2022)

[9] Interpretation: Fourteenth amendment.

[10] Reno v. Flores, 507 U.S. 292 (1993)