Immigrant Nation and Mass Deportations: Legal Arguments For and Against

In the past year, Immigration and Customs Enforcement (ICE) has made headlines as deportations have drastically increased. ICE is now aiming to arrest three thousand immigrants a day. Current data shows that ICE has at least fifty thousand immigrants being held in detention, with thirty thousand of those detainees having no criminal record at all. Additionally, ICE has been scrutinized for denying many detainees due process. Recent reporting has found that ICE is giving detainees only six hours to find a lawyer before deportation proceedings continue. Despite the outcry about the constitutionality of ICE’s enforcement tactics, the U.S.'s right as a sovereign country to control its immigration proceedings has been reaffirmed by the 2018 Supreme Court case Trump v. Hawaii. The Court found that the president and federal government have the right to suspend and control the entry of aliens into the country under Section 1182(f) of the Immigration and Nationality Act. This issue highlights a growing tension between the government’s right to enforce immigration law to ensure national security as it sees fit, and the constitutional right to due process, which has been integral to the American legal system since its inception. 

Ideally, immigrants facing deportations would be given due process throughout their court proceedings, but the logistical challenges make this difficult to achieve, especially as over one million people seek asylum in the United States, causing a bigger backlog to get through every day. The Fifth Amendment sets an ideal that no person be deprived of “life, liberty, or property, without due process of law”. The Supreme Court case Wong Wing v. United States (1896) clarified that non-citizen immigrants, even those who unlawfully entered the U.S., like Wong Wing, were protected under the Fifth Amendment. In 1998, the U.S. also agreed to the P.L. 105-277: Torture Convention Provision, a crucial policy that expands on the safety America provides all people from deportation, in order to uphold its obligations under the United Nations Convention Against Torture. This provision also states that no person can be sent to a country involuntarily where they may be in danger, regardless of if the person is “physically present” in the U.S. or not. America’s past and present policies exemplify the obligation that the U.S. government has to provide all people in the U.S. with due process, regardless of their citizenship status.

Despite the case law and government provisions that ensure due process for immigrants entering the country or being detained, the reality of putting this into practice is a major logistical challenge. The process for attaining asylum is an arduous one that can take years to conclude. Asylum seekers must file and wait for a decision on an I-589 Application to gain legal protection. This application can take the United States Citizenship and Immigration Services (USCIS) half a year to process and make a decision on, assuming there are no “exceptional circumstances” within a case. With over one million affirmative asylum applications pending with USCIS in 2024 and almost 3.5 million active cases currently pending in immigration courts, there are an insurmountable amount of cases needing to be processed and adjudicated on. This problem is exacerbated by the amount of new asylum applications filed every day. 

In March 2025, Trump reinvoked the Alien Enemies Act (AEA), a law passed in 1798. The AEA was initially created when America was thought to go to war against France, and it gives the president the authority to deport any immigrant of a “hostile government” without a hearing, given they are at least fourteen years old. President Trump’s recent use of the AEA against the Tren de Aragua (TdA), a Venezuelan crime organization formed in 2014, has been the cause of many Venezuelan deportations. In March 2025, 137 Venezuelans were deported under the AEA and are being held in a maximum security prison in El Salvador without the ability to communicate with anyone. 

Trump’s invocation of the AEA has also caused the hasty deportation of many legal immigrants without due process. For example, Andry Hernandez Romero, a gay makeup artist who came to the U.S. legally searching for asylum after being targeted for his sexual orientation and political views, was deported by the Trump Administration while awaiting an asylum hearing. In accordance with the AEA, Romero was sent to a maximum security prison in Venezuela and was only recently released and reunited with his Venezuelan family. Romero’s lawyers were not notified of his deportation; instead, reporting that Romero “just disappeared” on the day he was supposed to appear in court. Although the TdA is a legitimate national security threat, Romero’s case shows the danger behind denying due process to political asylum seekers, especially those like Romero, who are in dangerous situations due to their identity. 

Romero’s case is not an isolated incident, as other Venezuelans have been targeted using the AEA. In the landmark case Trump v. J.G.G. (2025), a group of Venezuelans believed to be TdA members were deported by President Trump using a presidential proclamation invoking the power of the AEA. These detainees issued two temporary restraining orders (TROs) to block the deportation. After the government attempted to vacate the orders, the Supreme Court then ruled that the TROs could be waived, given that they were filed in the wrong district. However, the Court determined the detainees were still “entitled to notice and an opportunity to challenge their removal.” Though the detainees were eventually deported, this case demonstrates that due process remains a crucial aspect of  any law, including the AEA. 

The U.S. has already determined that due process for non-citizens is a constitutional right, but the reality of that idealistic law is logistically difficult to achieve. With the current presidential administration using justifiable laws to further circumvent due process and discriminate against certain nationalities, the U.S. takes a further step away from providing people with this constitutional boundary. Although the U.S. has been adhering to the Constitution in its recent mass deportations, the way the U.S. has been handling immigration proceedings with a lack of care for immigrants’ and non-citizens’ rights strays from the American ideals that have shaped American immigration law throughout history.

Edited by Gabi Fabozzi and Lukas Roybal