No Person: The Expansion of Expedited Removal and Noncitizens’ Due Process Rights
By Sharon Chou ’28
The Trump administration has eroded the already limited due process afforded to noncitizens in pursuit of its aggressive deportation goals. (1) Various groups are challenging its immigration policies in courts across the country, arguing that noncitizens have a right to the protections in jeopardy. (2) One such legal battle pertains to the process of expedited removal, which the Trump administration has broadened to apply to more noncitizens. (3) The courts should strike down the Trump administration’s unconstitutional expansion of expedited removal, which violates noncitizens’ due process rights.
Due Process Rights and Noncitizens
The Fifth Amendment establishes our right to due process in relation to the federal government, stating that “no person” shall “be deprived of life, liberty, or property, without due process of law.” (4)(5) Procedural due process defends people against arbitrary government judgment. (6) The federal government must provide certain procedural protections before depriving a person of a protected life, liberty, or property interest. (7) Common protections include fair notice and the opportunity to be heard (8) although the specific procedures required depend on the circumstances. (9)
Even noncitizens have due process rights. In Wong Wing v. United States (1896), the Supreme Court ruled that the Fifth Amendment’s Due Process Clause applies to “all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality” and that “even aliens shall not be…deprived of life, liberty, or property without due process of law.” (10) The Supreme Court reaffirmed this principle twice in 2025. Citing its Flores v. Reno (1993) decision, the Court noted in Trump v. J. G. G. (2025), “‘It is well established that the Fifth Amendment entitles aliens to due process of law’ in the context of removal proceedings.” (11) A. A. R. P. v. Trump (2025) reiterated this stance. (12)
However, the specific due process protections afforded to noncitizens vary depending on their entrance into America and their ties to the country. The Supreme Court has established that “aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country” (13) and “[t]he alien…has been accorded a generous and ascending scale of rights as he increases his identity with our society.” (14) Noncitizens who have not entered the U.S. and are seeking admission at ports of entry have only the due process rights Congress provides them by statute, with those detained shortly after an illegal entry being in the same situation. The Court declared in Nishimura Ekiu v. United States (1892) that for “foreigners who have never…acquired any domicil or residence within the United States, nor even been admitted into the country pursuant to law,” “the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.” (15) In DHS v. Thuraissigiam (2020), the Supreme Court decided a noncitizen “detained shortly after unlawful entry cannot be said to have ‘effected an entry.’” (16) Critically, the Court distinguishes between noncitizens like the respondent, who was detained 25 yards into the U.S., and “aliens who have established connections in this country” and thus “have due process rights in deportation proceedings.” (17)
Expedited Removal
Expedited removal is a process, created by the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), (18) that allows the Department of Homeland Security (DHS) to quickly detain and deport certain noncitizens without a hearing before an immigration judge. (19) Following a short interview, an immigration officer has the authority to issue an expedited removal order, (20) which usually carries a five-year reentry bar. (21) Issuing this removal order sometimes takes only a few hours. (22) DHS deports people as soon as travel arrangements can be made, often within hours or days. (23)
Once approved by a supervisor, expedited removal orders cannot be appealed. Jurisdiction-stripping provisions in the IIRIRA mean that, unlike other removal orders, expedited removal orders cannot be challenged in federal court. Only those who claim they are U.S. citizens, lawful permanent residents, admitted asylees, or admitted refugees and thus were wrongly subjected to expedited removal may seek habeas review. (24)
Narrow protections exist in the expedited removal process for those who express a fear of persecution or torture if they return to their home country and those who intend to apply for asylum. They must pass a credible fear interview with an asylum officer, often conducted over the phone. If the asylum officer determines their fear to be credible, the immigration officer rescinds the expedited removal order. The person can then apply for protection before an immigration judge in normal removal proceedings. If the asylum officer determines their fear not to be credible, however, the person may challenge this determination by requesting a hearing. The judge’s review is limited to evaluating the credibility of their fear. If the judge overturns the asylum officer’s judgment, the person is placed into normal removal proceedings instead of expedited removal. If the judge affirms the judgment, individuals do not have the right to challenge the decision in federal court. (25)
The Expansion of Expedited Removal
Before 2019, the government only applied the expedited removal process to noncitizens detained within 100 miles of the border and within two weeks of their arrival. The first Trump administration expanded expedited removal to apply to undocumented immigrants anywhere in the U.S. who cannot prove they have been in the country for more than two years. President Biden rolled this change back, but President Trump reinstated it upon his return to office. (26) In January 2025, an executive order on interior enforcement and a subsequent Federal Register notice from the Department of Homeland Security (DHS) expanded the application of expedited removal to the maximum extent permitted under law. (27)
Additionally, DHS guidance released January 23rd, 2025 directed ICE officials to use expedited removal for people with humanitarian parole protection. During the Biden administration, people were lawfully paroled into the U.S. using the now-defunct CBP One app and the Cuba, Haiti, Nicaragua, and Venezuela program. (28) Immigration officers could now terminate parole and begin expedited removal, which the Trump administration argues is legal regardless of when the parolees entered the country. (29)
The Trump administration’s expansion of expedited removal violates noncitizens’ Fifth Amendment due process rights. Undocumented immigrants detained within 100 miles of the border and within two weeks of arrival, whom the process originally applied to, align with the Supreme Court’s definition in DHS v. Thuraissigiam (2020) of people who are “detained shortly after unlawful entry” and thus have effectively not entered the country. They are not afforded due process rights under the Constitution and only have those provided by Congressional statute, the IIRIRA in this case. On the other hand, undocumented immigrants detained anywhere in the U.S. within two years of arrival are distanced from this category. Some have resided in the country for a considerable amount of time and cannot be said to have effectively not entered. They have likely developed connections to the country. Therefore, they have a constitutional right to due process based on Supreme Court precedent.
The expedited removal process fails to provide this due process. It does not allow individuals to present evidence and explain their situation in front of a judge during a fair hearing, a critical element of due process and a part of normal removal proceedings. (30) Instead, an immigration officer essentially serves as both a prosecutor enforcing the law and a judge making the final decision. (31)
Those placed into expedited removal generally have no opportunity to even collect evidence or consult with a lawyer. (32) A lack of interpretation services for those with limited English proficiency also poses challenges. In expedited removal, the burden is on the individual rather than DHS to prove that they have lawful status, have an asylum or refugee claim, or have been continuously present in the country for the required timeframe. (33) Limited judicial review available for those in expedited removal removes guardrails. The lack of a hearing, the burden of proof, the rapidness of the process, and limited judicial review can lead to serious errors. (34)
Moreover, the protections built into the expedited removal process for those eligible to seek asylum or other relief remain inadequate. In practice, not all individuals who express fear are given credible fear interviews. The U.S. Commission on International Religious Freedom (USCIRF) has found cases where immigration officers ignored expressions of fear or pressured individuals into withdrawing their applications for admission and thus their asylum requests, despite DHS policies against such pressure. There are insufficient quality assurance mechanisms to ensure asylum seekers are not improperly turned away. (35)
One might argue that two years is too little time for a noncitizen to develop substantial ties to the country and qualify for significant due process protections. Even if this were true, the expansion of expedited removal exacerbates the risk of mistakenly deporting those who have been in the U.S. for longer than two years and definitely have substantial connections to the country. As discussed, the burden is on the individual to prove they have resided in the country for more than two years, a heavier burden than the original two-week requirement. Given that the quick expedited removal process generally does not give people the opportunity to collect evidence or provide interpretation services, the higher threshold considerably increases the likelihood of subjecting individuals who do not meet the criteria to expedited removal. There have already been reports of undocumented immigrants who have lived in the United States for much longer than two years being deported. After a traffic stop in Phoenix, a Guatemalan woman who had lived in the country for 30 years was put into expedited removal. A Mexican mother and her son, who had both been in America for 10 years, were deported 24 hours after a traffic stop in Texas. (36) In addition, the Trump administration is attempting to terminate humanitarian parole protection and place former parolees into expedited removal, even if they have been in the U.S. for longer than two years. In multiple ways, the expansion of expedited removal violates noncitizens’ constitutional due process rights.
Looking Forward
Make the Road New York, a non-profit that serves immigrant communities in the state of New York, the American Civil Liberties Union, and the New York Civil Liberties Union are challenging the January 2025 expansion of expedited removal to the U.S. interior and to those who have been in the U.S. for less than two years. In a lawsuit titled Make the Road New York v. Mullin, the plaintiffs allege the expansion violates Fifth Amendment due process rights. (37) In August 2025, federal judge Jia Cobb granted the plaintiffs’ request to put the expansion on hold. Judge Cobb also blocked the expansion of expedited removal to parolees in a separate August 2025 ruling for Coalition for Humane Immigrant Rights v. Mullin. (38) The Justice Department appealed both decisions, and the cases are ongoing. (39)(40)
The expansion of expedited removal is one policy among many that make up a troubling push by the Trump administration to erode due process rights for noncitizens. Weakening due process protections for noncitizens weakens them for the nation as a whole. It makes it more difficult for those with protected status, those with lawful status, and even U.S. citizens to prove their status in a system with fewer and fewer checks. Undermining due process is also a slippery slope. If some on American soil do not have the right to due process, how long before more and more have that right stripped away? A conditional right risks not being a right at all. As the legal battles that will determine the future of expedited removal’s expansion play out, all eyes should be on the courts. The fate of expedited removal will have implications for the civil liberty of all Americans.
Endnotes
(1) Ximena Bustillo, “Trump Wants to Bypass Immigration Courts. Experts Warn It’s a ‘Slippery Slope,’” NPR, April 29, 2025, https://www.npr.org/2025/04/29/g-s1-63187/trump-courts-immigration-judges-due-process.
(2) Muzaffar Chishti and Colleen Putzel-Kavanaugh, “The Trump Administration’s Immigration Policies Encounter Resistance in the Courts,” Migration Policy Institute, March 25, 2026, https://www.migrationpolicy.org/article/trump-courts-immigration.
(3) Josh Gerstein, “Federal Judge Blocks Trump Effort to Expand Fast-Track Deportations,” Politico, August 29, 2025, https://www.politico.com/news/2025/08/29/trump-deportation-expedited-judge-00538077.
(4) U.S. Constitution, amend. 5.
(5) The Fourteenth Amendment’s Due Process Clause imposes identical due process restrictions on state governments. Because immigration is a federal responsibility, this article focuses on the Fifth Amendment.
(6) Michael Tan, “What Is Due Process?,” American Civil Liberties Union, May 28, 2025, https://www.aclu.org/news/civil-liberties/what-is-due-process.
(7) “Amdt5.5.1 Overview of Due Process,” Constitution Annotated, accessed January 26, 2026, https://constitution.congress.gov/browse/essay/amdt5-5-1/ALDE_00013721/.
(8) Roger A. Fairfax and John C. Harrison, “The Fifth Amendment Due Process Clause,” National Constitution Center, accessed January 17, 2026, https://constitutioncenter.org/the-constitution/amendments/amendment-v/clauses/633.
(9) “Amdt14.S1.5.1 Overview of Procedural Due Process,” Constitution Annotated, accessed January 26, 2026, https://constitution.congress.gov/browse/essay/amdt14-S1-5-1/ALDE_00013747/.
(10) Wong Wing v. United States, 163 U.S. 228, 238 (1896).
(11) Trump v. J. G. G., 604 U. S. ____, 3 (2025).
(12) A. A. R. P. v. Trump, 605 U.S. ___ (2025).
(13) United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990).
(14) Johnson v. Eisentrager, 339 U.S. 763, 770 (1950).
(15) Nishimura Ekiu v. United States, 142 U.S. 651, 660 (1892).
(16) Department of Homeland Security v. Thuraissigiam, 591 U.S. ___, 35 (2020).
(17) Id. at 2.
(18) Muzaffar Chishti and Kathleen Bush-Joseph, “Trump Administration’s Expansion of Fast-Track Deportation Powers Is Transforming Immigration Enforcement,” Migration Policy Institute, September 25, 2025, https://www.migrationpolicy.org/article/trump-expedited-removal.
(19) Erica Bryant, “What Does ‘Due Process’ Mean for Immigrants and Why Is It Important?,” Vera Institute of Justice, June 4, 2025, https://www.vera.org/news/what-does-due-process-mean-for-immigrants-and-why-is-it-important.
(20) Margy O’Herron, “The Immigration Court System, Explained,” Brennan Center for Justice, June 24, 2025, https://www.brennancenter.org/our-work/research-reports/immigration-court-system-explained.
(21) “Expedited Removal Explainer,” American Immigration Council, February 20, 2025, https://www.americanimmigrationcouncil.org/fact-sheet/expedited-removal/.
(22) Chishti and Bush-Joseph, “Trump Expansion Fast-Track Deportation.”
(23) O’Herron, “Immigration Court System, Explained.”
(24) “Expedited Removal Explainer.”
(25) Id.
(26) Gerstein, “Judge Blocks Fast-Track Deportations.”
(27) Bryant, “‘Due Process’ for Immigrants.”
(28) Id.
(29) Chishti and Bush-Joseph, “Trump Expansion Fast-Track Deportation.”
(30) “Why Due Process Matters for Every American, Including Non-Citizens,” International Rescue Committee, April 4, 2025, https://www.rescue.org/article/due-process-rights-america.
(31) “Expedited Removal Explainer.”
(32) O’Herron, “Immigration Court System, Explained.”
(33) Chishti and Bush-Joseph, “Trump Expansion Fast-Track Deportation.”
(34) “Expedited Removal Explainer.”
(35) Id.
(36) Chishti and Bush-Joseph, “Trump Expansion Fast-Track Deportation.”
(37) “Expanded Expedited Removal and Challenges to Due Process,” National Immigration Forum, June 23, 2025, https://forumtogether.org/article/expanded-expedited-removal-and-challenges-to-due-process/.
(38) Gerstein, “Judge Blocks Fast-Track Deportations.”
(39) “Court Rules Trump Can’t Expand Fast-Track Deportation Process,” The Guardian, November 22, 2025, https://www.theguardian.com/us-news/2025/nov/22/trump-administration-fast-track-deportation-process.
(40) “CHIRLA v. Mullin (Expedited Removal),” Justice Action Center, April 2, 2026, https://justiceactioncenter.org/case/chirla-v-noem-expedited-removal/.
