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Recently, I made the mistake of responding on social media to a post about immigration. It is an important topic to me because it’s an important part of what my organization does.
The Center for Victim and Human Rights (CVHR), which I founded almost 18 years ago, provides legal services to victims of crime—some of whom are immigrants.
I use the term ‘mistake’ because, if you’ve ever read an online thread on immigration, you already know how it went. It looked something like this:
Comment: “Get rid of these illegals!”
Me: “They are entitled to due process.”
Response: “[Insert pejorative here]. Due process is for citizens, and besides—they’re illegal.”
I couldn’t help but go down the proverbial ‘rabbit hole.’ What does it mean to label someone ‘illegal’ and ‘who is entitled to due process in an immigration case?’
I want to examine whether it really does apply in immigration cases.
‘They’re illegal.’ Prove it—process matters.
The framers of the Constitution did not invent due process; they inherited it from centuries of English law, most notably the Magna Carta’s promise that no person could be deprived of liberty except by the “law of the land.”
Even in immigration law, the term “illegal” obscures more than it explains. The Immigration and Nationality Act defines “aliens” and specifies offenses like unlawful entry (8 U.S.C. §1325) and reentry after removal (8 U.S.C. §1326), but nowhere does it label a person as “illegal.”
Most immigration violations are civil, not criminal. Overstaying a visa, working without authorization or entering without inspection have been historically addressed through removal proceedings—not crimes. In those proceedings, the government—not the person—bears the burden to prove removability. That is what due process demands.
To reach the decision that someone should not be here, however, requires due process. Similar to a criminal case, the government has the burden of proving that a person has committed specific violations and is subject to deportation.
This has been the law of the land for at least 122 years.
More than a century ago, the Supreme Court affirmed this principle. In Yamataya v. Fisher (1903), the court held that “the liberty of an individual, even though he be an alien, is protected by the Fifth Amendment” and that “no deportation proceeding…shall be taken unless there be an opportunity, appropriate to the case, to be heard.”
The ruling established that before the government may remove someone, it must first provide notice and a fair hearing.
Process comes before punishment.
Half a century later, in Kwong Hai Chew v. Colding (1953), the Court reaffirmed that a lawful permanent resident could not be denied reentry without notice of the charges and a hearing. Justice Frankfurter wrote that a person’s status as a lawful resident “has not been lost by his absence” and that “before his expulsion, he is entitled to notice of the nature of the charge and a hearing at least before an executive or administrative tribunal.”
In other words, once the Constitution calls someone a person, the government must treat them as one.
‘They’re not citizens.’ It does not matter.
The opening phrases of the Fifth and 14th Amendments both begin with the same word: person. The Fifth Amendment states, “No person shall be held…,” and the 14th begins, “All persons…”
This may seem like “lawyer parsing” but it is more than mere semantics. In fact, it may be the most important word in the entire concept of due process.
The idea that due process protections are afforded to persons, not just citizens, has echoed across generations: Yick Wo v. Hopkins (1886) held that the 14th Amendment’s protections apply to “all persons within the territorial jurisdiction”; Wong Wing v. United States (1896) struck down imprisonment of Chinese laborers without trial; Plyler v. Doe (1982) invalidated a Texas law denying education to undocumented children; and Zadvydas v. Davis (2001) ruled that even those ordered removed cannot be detained indefinitely. Across more than a century of conflict and change, the Supreme Court has said the same thing: due process is not a reward for citizenship, it is a restraint on government. Its strength lies in its universality.
Your politics, not mine.
This discussion as political rhetoric may easily be dismissed as ideological rhetoric. But that is precisely the point; across time and political swings, the concept of due process has not changed.
Due process must always be apolitical because it ensures that the government may never overreach, especially when our identities and politics don’t align.
Consider an important modern test of the same principle: the January 6th prosecutions.
For many of us—including me—our first reaction was outrage. The images of shattered glass, battered officers, and a mob storming the seat of our democracy were seared into the national memory.
As a lawyer, and as someone who has spent much of my career on the side of law and order, I would have volunteered to be on the front lines prosecuting those cases. But outrage does not suspend due process.
Some defendants were charged with serious violent crimes; others faced misdemeanors such as trespass or disorderly conduct. A few spent months in pretrial detention awaiting hearings delayed again and again.
None of that excuses the conduct of that day. But it reminds us that due process does not hinge on our approval of the accused, it depends on whether the government honors the rights of persons, all persons.
We may disagree with immigration policy or the boundaries of enforcement, but the Constitution’s language does not waver. No one can be labeled without due process, and due process applies to every person.
The moment we let fear, politics or prejudice decide who falls outside that circle, we abandon not just others but the rule of law itself.
Due process protects the best of us by ensuring it protects the whole of us. It demands that before liberty or life is taken, the government must answer to law, not impulse. And one day, it may be all that stands between us and the arbitrary exercise of power.•
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Attorney Raio Krishnayya is executive and legal director of the Center for Victim and Human Rights.
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