Due Process and the Constitution: Clearing Up Misconceptions About Legal Protections for Illegal Immigrants

Ethan Justice
Jun 30
4 min read

In today’s heated debates over immigration, protests, and the role of government, few concepts are more misunderstood than due process. Many Americans—including political leaders and media commentators—erroneously assert that illegal immigrants have the same constitutional rights as U.S. citizens. This misconception has fueled legal confusion, policy debates, and public unrest. But what does the Constitution actually say about due process, and who is entitled to it?

What is Due Process?

The concept of due process originates in two critical parts of the U.S. Constitution:

The Fifth Amendment (ratified 1791):“No person shall... be deprived of life, liberty, or property, without due process of law...”
The Fourteenth Amendment (ratified 1868):“...nor shall any State deprive any person of life, liberty, or property, without due process of law...”

Note: The language in both Amendments refers to “persons”, not “citizens.” This distinction is crucial.

Who Is Entitled to Due Process?

Under current U.S. law and precedent, every person within the jurisdiction of the United States is entitled to some level of due process—including non-citizens, visa holders, and even those who entered the country illegally.

This legal interpretation has been repeatedly upheld by the U.S. Supreme Court:

Yick Wo v. Hopkins (1886):The Court ruled that the protections of the 14th Amendment apply to all persons, regardless of citizenship.
Zadvydas v. Davis (2001):The Court held that non-citizens who had been ordered removed still had due process rights that restricted indefinite detention.
Plyler v. Doe (1982):The Court extended due process protections to undocumented children attending public schools, ruling that states could not deny education based on immigration status.

These rulings emphasize that while illegal immigrants are not entitled to all the rights of citizenship (like voting or public benefits), they are entitled to some constitutional protections, including due process in immigration proceedings.

So Why the Confusion?

There are several key reasons this issue is misunderstood:

Media and Political Rhetoric The media often misrepresents immigration enforcement as a violation of rights when in fact, many due process protections are still being followed—albeit under strict administrative law rather than criminal law. Terms like “family separation,” “detention without trial,” or “deportation without a hearing” are frequently used without legal nuance.
Misunderstanding the Type of Due Process There are two types of due process:
- Substantive Due Process: Protects fundamental rights (like marriage, privacy).
- Procedural Due Process: Ensures fair legal procedures (notice, a hearing, the chance to respond).
In immigration cases, non-citizens receive procedural due process, which often includes notice to appear before a judge, the right to an attorney (at their own expense), and the ability to appeal.
Conflating Constitutional Rights with Citizenship Rights Many people assume “constitutional rights” = “citizen rights,” but that’s not always the case. The Constitution protects people, and in many cases, illegal immigrants fall under that umbrella—but not equally in all contexts.

What Rights Do Illegal Immigrants Actually Have?

Right	U.S. Citizens	Legal Immigrants	Illegal Immigrants
Right to due process	✅	✅	✅
Right to legal representation (not paid)	✅	✅	✅
Right to a speedy trial	✅	✅	❌ (Immigration court = civil, not criminal)
Right to vote in elections	✅	❌	❌
Right to public benefits	✅	Limited	❌

The Limits of Due Process for Illegal Immigrants

It’s important to clarify: while due process exists, it does not guarantee a favorable outcome. Due process simply means that:

A hearing is held.
An impartial judge presides.
The person can present evidence or arguments.

In practice, this means illegal immigrants are entitled to:

An immigration hearing (though backlogged).
Notice of charges (notice to appear).
Right to contest removal under asylum or other legal claims.

However, they are not entitled to avoid deportation simply by being present in the U.S.

Recent Examples of Confusion

Texas Border Prosecutions (2024-2025):As Texas ramped up its Operation Lone Star efforts to enforce state-level immigration crimes, legal challenges flooded in claiming violation of due process. Yet most rulings acknowledged that procedural due process was being followed—though it could be improved by speeding up hearings or reducing overcrowding.
“Sanctuary City” Conflicts: In cities like New York and Chicago, local leaders frequently use rhetoric claiming illegal immigrants are being denied their rights. But the federal courts have consistently ruled that detention, removal, or even deportation do not violate due process when the law is followed.
Media Misreporting During Family Detention Cases (2023-2024): Headlines often implied that the government was violating rights by detaining immigrant families. In reality, courts upheld that temporary detention with hearings met due process standards, even though advocates pushed for broader rights or faster release.

Conclusion: What Due Process Is — and What It Is Not

Due process is one of the foundational principles of the Constitution, protecting everyone under U.S. jurisdiction from arbitrary government action. But due process is not a shield against enforcement of immigration law, and it does not imply equal access to all benefits or rights of citizenship.

At The 917 Society, our mission is to educate youth—and all Americans—on the Constitution’s original meaning and its ongoing relevance. Misunderstanding core principles like due process leads to misplaced outrage, poor policy, and deeper national division.

The Constitution protects persons, but it also defends the rule of law.