President Trump is chipping away at the right to due process within the immigration court system, immigration lawyers and former judges say, in an effort to fast-track deportations.
Over the course of his first few months in office, the administration has removed some protections from deportation, cancelled grants that provided legal representation to children, fired dozens of the judges responsible for hearing cases, and moved individuals to far-flung locations — including to prisons out of U.S. jurisdiction.
The onslaught of explicit policy changes and messaging show a rapid effort to make it easier to remove certain migrants from the country.
"I hope we get cooperation from the courts, because we have thousands of people that are ready to go out and you can't have a trial for all of these people," Trump told reporters in the Oval Office last week.
Experts argue the administration's actions are weakening the limited due process immigrants in the U.S. are entitled to, and could lead to similar erosion for lawful permanent residents and U.S. citizens.
"This is a slippery slope towards sending residents of the country … to a place where the U.S. courts have no reach," said Muzaffar Chishti, a senior fellow at the Migration Policy Institute. "That's the heart of the matter."
At its core, these due process rights center on a key factor: having access to an impartial judge. Those placed in immigration proceedings in immigration courts within the Department of Justice don't have the right to a lawyer — and most people don't have one to argue their case, which lowers their chances of success.
But they may have a right to their day in court.
Those courts are already an imperfect system. The success of asylum claims varies widely among each individual immigration judge, according to the Transactional Records Access Clearinghouse, and people face various barriers to access legal services.
But any sliver of due process is significant because it's an opportunity to prevent erroneous removals, give people a chance to argue why they should stay, or sign off on the government's removal orders.
Most recently, the case of Kilmar Abrego Garcia raised the specter of due process being ignored, after the Trump administration admitted to sending him to a mega prison in El Salvador by mistake.
White House questions due process for immigrants
Trump and his advisers have taken to social media to cast doubt on the ability to provide due process for the thousands of people they are aiming to arrest and remove.
"I'm doing what I was elected to do, remove criminals from our Country, but the Courts don't seem to want me to do that," Trump wrote on social media. "We cannot give everyone a trial, because to do so would take, without exaggeration, 200 years."
Proceedings in administrative court have been known to take months and even years, with courts facing a backlog of millions of cases.
Vice President JD Vance went as far as to call it a "fake legal process" that is the "ratification of Biden's illegal migrant invasion."
"The judicial process is for Americans. Immediate deportation is for illegal aliens," echoed deputy chief of staff Stephen Miller.
And the right-leaning Heritage Foundation, on social media, sought to paint due process as a partisan issue: "When the Left says 'due process,' they mean, 'no deportations.'"
To justify due process, legal experts broadly point to the Fifth Amendment of the U.S. Constitution, which states that no person "be deprived of life, liberty, or property, without due process of law," and the Fourteenth Amendment, which applies to states.
Democrats and immigration advocates say that if due process is scrapped at any level, it hurts everyone in the system — including U.S. citizens.
"What the administration is relying on is that unauthorized immigrants are not popular in the country, and therefore people say, 'They're not entitled to the same due process as U.S. citizens," Chishti said.
"That may be politically a good slogan. Unfortunately, the Constitution does not make any distinction between citizens and noncitizens for the application of the protections of due process and judicial review," he said.
Still, due process is considered a "spectrum of rights," with different people being allotted different levels of protection, according to multiple lawyers contacted for this article.
The fewest rights are offered to more recent arrivals to the U.S. without legal status. Lawful permanent residents and naturalized citizens traditionally have the most protections.
"It's the position of the Trump administration that they can't do much process at all," said Andrew Arthur, a former immigration judge now at the Center for Immigration Studies, which favors lower levels of U.S. immigration.
"At the end of the day, the question is going to be for the courts whether and what process is due, and how that process should be afforded," he said.
Opportunity for impartial arbiter
The immigration court system is unique. The judges and courtrooms are within the Department of Justice, under the executive branch as opposed to the judiciary.
The Executive Office for Immigration Review, or EOIR, was created in 1983 explicitly to pull immigration judges out of what was formerly known as the Immigration and Naturalization Service.
"There was a lot of criticism that when the government was bringing charges to try to remove people, that the people who were making those decisions were just too closely intertwined with the enforcement agency," said Ashley Tabaddor, a former immigration judge and former president of the National Association of Immigration Judges.
People who are subject to removal proceedings have a right to go through the immigration court process. The immigration court system offers a neutral setting for people to make their case, including for protection from prosecution, said Tabaddor, now an immigration law consultant.
"What is at stake is oftentimes a life and death situation," she said.
Court backlogs and less legal aid
Previously, nonprofits relied on grants and other federal funds to offer support to those least likely to be able to make their own case in immigration courts, including children.
That money is drying up, and pro bono work from big law firms is also at risk after Trump targeted some law firms for work on causes unpopular with him.
The South Texas Pro Bono Asylum Representation Project has over 700 cases representing children; cuts in their funding means they cannot take on more.
"We're in this situation of trying to go through how we can meet our ethical duties as attorneys and represent people, but also not having the ability to pay for those services," said Aimee Korolev, the deputy director.
In addition to cutting off grants that facilitate legal aid, the administration has directed the Justice and Homeland Security departments to take disciplinary action against immigration attorneys and law firms accused of committing fraud and "mass illegal immigration."
"What we've seen is just this unprecedented attack on immigrants and access to counsel, including attacks on immigration lawyers, the pro bono attorneys, and on immigrants themselves," said Mary Meg McCarthy, executive director of the National Immigrant Justice Center. Her group is one of those that's lost federal funding to provide legal aid to unaccompanied minors.
She said the group's recent wins point to the importance of due process.
Its clients include U.S. citizens or others with legal status who were questioned or wrongly arrested or detained, as well as lawful permanent residents who have prior convictions, such as Robert Panton, 59, who is facing removal proceedings for a single nonviolent drug offense.
The Department of Homeland Security says it abides by the Constitution but that it has the right to revoke visas.
"We have said time and time again that if you are in this country on a visa or green card and have committed a crime then you may be subject to visa revocation," Tricia McLaughlin, the department's assistant secretary for public affairs, said in an email to NPR. "We are absolutely following due process under the US Constitution."
However, the department disputed that U.S. citizens were getting arrested.
"DHS enforcement operations are highly targeted and are not resulting in the arrest of U.S. citizens. We do our due diligence," a senior DHS official said. "If and when we do encounter individuals subject to arrest, our law enforcement are trained to ask a series of well-determined questions to determine status and removability."
Issues with U.S. citizens getting accidentally swept up in immigration arrests stretch back several administrations. A 2021 Government Accountability Office report found that in the five years prior, potential citizens did have encounters with immigration officers that could lead to their arrest and even deportation.
Bypassing the process
Immigration lawyers say the administration is also trying to skip the often lengthy immigration court process as much as possible.
The Trump administration has sought to boost deportations of those eligible for "expedited removal," which allows the government to immediately remove someone without a court hearing. Trump also invoked the Alien Enemies Act of 1798, which also allows the administration to speed up deportations of certain gang members with more limited due process.
Several lawsuits are challenging the president's proclamation, and the Supreme Court temporarily blocked deportations under the act.
Using a combination of laws allowing for quick removal, the administration sent more than 200 men to a mega prison in El Salvador. In court filings, attorneys for some of the men allege they scrambled to find clients who had been removed while in the midst of their immigration court processes.
Trump has also moved to lay off and encourage the resignations of hundreds of court staff, including the judges who are supposed to approve deportations.
This included judges who sit on the Board of Immigration Appeals, which hears appeals from immigration judges.
"We are already hearing that cases are piling up in the queue because there aren't enough board members to review those appeal cases," said Greg Chen, senior director of government relations at the American Immigration Lawyers Association.
Those cases include recent arrests and detentions of people on student visas or without criminal records.
"The dramatic changes that the administration has made in just less than three months now are overwhelming the overall legal system structure, be it private attorneys or nonprofits," Chen said. "There's just an overwhelming amount, like a fire hydrant of demand for assistance."
Encouragement to self-deport
And there's some evidence the Department of Homeland Security is more actively trying to encourage people to skip going to court.
Across different court waiting rooms in Texas and Chicago, the Homeland Security Department has put up signs that read: "Message to illegal aliens: a warning to self-deport."
Photos of signs were shared with NPR on the condition of anonymity out of fear of retaliation from the government against attorneys or their clients. In Spanish and English, the signs warn of consequences if people do not "self-deport," including the risk of hefty fines.
DHS, in a statement to NPR, didn't deny putting these signs up in immigration court waiting rooms.
"President Trump and Secretary Noem have a clear message to illegal aliens: leave now," McLaughlin said in response to questions about the signs. She said people should use the CBP Home App to self-deport and show they're following the law.
Tabaddor, the former immigration judge, said leaving people without legal counsel, or chipping away at the process, means more mistakes are possible.
"At our fundamental level, we have to recognize that errors are made. We're all human," Tabaddor said, reflecting on her 30 years in federal immigration work.
"You have to have a system in place for those people to be given notice and an opportunity to respond. Otherwise, it's absolute lawlessness."
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