Written By Katelyn Bennett L’27

Introduction

The United States is home to the highest number of immigrants in the world.^[1] Coined as the “Melting Pot,” the nation houses over 46 million foreign-born residents and counting as of 2022.^[2] Nevertheless, immigrants in the United States face extreme prejudice due to a broken immigration system.^[3] Historically, immigrant criminal defendants have been particularly impacted by this faulty system, facing severe consequences such as removal regardless of how minor or severe their legal matters turned out to be.^[4] Today, foreign-born residents in the American criminal justice system endure even greater challenges amidst the Trump administration’s increased scrutiny towards immigration.^[5]  In particular, President Trump’s second term has led to an expansion of immigrants eligible for expedited removal, an increase in the presence of Immigration and Customs Enforcement (ICE) in courthouses, and a plethora of executive orders meant to impede immigrant defendants in their criminal proceedings.^[6] These actions deprive foreign-born residents of the due process rights they are owed, advancing the harmful narrative that immigrants do not have a right to be in America though they greatly contribute to the nation’s population.

Background

Removal is the process by which the government removes a noncitizen from the United States for violating an immigration law.^[7] Criminal convictions often constitute violations of immigration law.^[8] Though once considered a “drastic measure” warranted by only a few serious violations, the Supreme Court acknowledged that removal is “now virtually inevitable for a vast number of noncitizens convicted of crimes” in 2010.^[9] Consequently, the Court held in Padilla v. Kentucky that competent lawyers must inform immigrant criminal defendants of the consequences, such as removal, that may arise when at the plea bargaining stage.^[10] Sixteen years later, the use of removal as an immigration consequence has only increased, signaling a need for immigrant defendants to be informed at every stage of their criminal proceedings.^[11] In response, Virginia passed a law in 2025 requiring courts to notify immigrant defendants of the consequences that criminal proceedings, misdemeanors and felonies alike, can have on immigration.^[12] Particularly, it calls upon the court to advise immigrant defendants of potential federal immigration consequences at “the defendant’s first physical appearance for any misdemeanor or felony.”^[13] 

Ultimately, Donald Trump’s agenda of curtailing immigration and ridding the country of so-called criminals and illegals has fueled a willingness by the American government to rely on removal.^[14] Yet, studies have consistently shown that foreign-born residents are not primary contributors to the criminal justice system. In fact, a study conducted by the National Immigration Council demonstrated two powerful truths: (1) immigrants are less likely to be criminals than native-born residents; and (2) high rates of immigration lead to low rates of criminal activity overall.^[15] The American government nevertheless insists on distorting the narrative, targeting immigrants and forcing them to endure a criminal justice system that deprives them of their due process rights.^[16]

As if this scrutiny were not enough, immigrants are made to endure a number of other obstacles throughout the criminal justice system. Oftentimes, courts lack adequate staffing of interpreters that can help translate proceedings for non-native-english-speaking clients.^[17] This leaves many clients to decipher their own complex plea agreements, which often come loaded with legal jargon and hidden post-trial obligations.^[18] Unfortunately, many noncitizens fail to even make it this far into a criminal proceeding because they fear showing up to a government building to report their circumstances, knowing the government’s reliance on removal as an immigration consequence.^[19] Moreover, where native-born residents enjoy alternative sentencing options such as community service, drug and alcohol rehabilitation, or house arrest, the only option available to immigrant criminal defendants once they have been convicted is removal.^[20] Immigrants thus face a fear of removal that has only been exacerbated since President Trump’s return to the White House.

Trump’s Expansion of Expedited Removal

The Fifth and Fourteenth Amendments of the United States Constitution guarantee that no person shall be “deprived of life, liberty, or property without due process of law.”^[21] In 1982, the Supreme Court expressly recognized that these rights apply to any individual within the nation’s border, holding that “[a]liens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law.”^[22] In practice, however, how due process rights are applied to each individual depends on that individual’s citizenship status.^[23] For example, though immigrant criminal defendants do have access to criminal trials, the government is not required to provide the same full-blown trials for immigrants in removal proceedings.^[24] Instead, the government must simply ensure fairness and safety, a standard lower than that accorded to citizens in legal proceedings.^[25] 

This minimal application of due process rights has allowed the Trump administration to remove foreign-born residents regularly, relying on expedited removal proceedings.^[26] As the National Immigration Forum describes, expedited removal occurs when “immigration officers, rather than judges, make the final determination regarding removability, often after only a brief interview with the individual in custody.”^[27] During this brief interview, immigrants generally have “little to no opportunity to consult with an attorney, gather evidence, or challenge the government’s assertions.”^[28] Though not a new concept, President Trump has drastically expanded the number of individuals eligible for expedited removal by targeting undocumented criminal defendants in courthouses.^[29]  As a result, the Trump Administration is increasingly threatening what little due process rights foreign-born residents already enjoy.

ICE’s Increased Presence in Courthouses

To expand the number of individuals eligible for expedited removal, the Trump Administration has taken to dismissing active removal cases and conducting both courthouse arrests of immigrant criminal defendants and detainments of immigrants in removal proceedings.^[30] “Under this strategy,” the National Immigration Forum explains, “[Department of Homeland Security (DHS)] attorneys request that immigration judges dismiss active immigration cases, including claims for asylum and other humanitarian protections, to move them directly into expedited removal proceedings.”^[31] Federal agents strategically target noncitizens in courthouses because they are guaranteed access to their locations at scheduled times and assured that any individual is unarmed after passing through courthouse security screening.^[32]

Studies show that ICE enforcement in courthouses negatively impacts court operations. For example, once aware of ICE’s presence, immigrants may be “chilled” from coming to court for their proceedings or serving as critical witnesses in other proceedings.^[33] Historically, foreign-born residents have always been hesitant of the court system because of its frequent resort to removal.^[34] Thus, the Trump administration’s increased patrol in courthouses has only exacerbated immigrants’ fear of reporting and reluctance to employ their due process rights. Moreover, not only are immigrants’ due process rights threatened, but also the due process rights of local and state officials who refuse to comply with ICE enforcement in their courts.^[35] In a recent executive order, President Trump declared those leaders who did not cooperate with federal enforcement to be engaging in “lawless insurrection,” calling for their immediate arrests.^[36] Consequently, the Trump Administration’s desire to dismantle the immigrant criminal justice system compromises the rights of all individuals within America’s borders, citizen and noncitizen alike.

Recent Executive Orders

Apart from the measures explained above, the Executive branch has taken two other major actions to challenge the due process rights of immigrants in its transition to the Trump administration. First, to support the branch’s growing habit of detaining foreign-born residents before removing them, President Trump recently issued the executive order “Securing Our Borders.”^[37] This order expanded detention facilities and ensured that immigrants accused of violating criminal and immigration laws stay in said detention facilities while they await their criminal and removal proceedings.^[38] As the Congressional Research Services notes, “[t]he order, among other things, directs the Secretary of DHS to ‘take all appropriate actions to detain, to the fullest extent permitted by law, aliens apprehended for violations of immigration law until their successful removal from the United States’ and to terminate a long-standing policy of releasing into the country certain aliens who are found by immigration authorities to pose no security threat or flight risk and whose continued detention is determined not to be in the public interest.”^[39] In accordance with these policies, ICE has recorded a number of over 59,000 immigrants in custody as of June 2025 – a record high in American history.^[40] Second, in another executive order titled “Restoring the Death Penalty and Protecting Public Safety,” the Trump administration called for the Attorney General to pursue the death penalty for “every federal capital crime committed by an unlawfully present alien.”^[41] 

Both of these actions were taken in January of 2025 – just moments after President Trump was inaugurated for his second term.^[42] Since then, the Trump Administration’s opposition to immigration has only worsened, threatening immigrant due process rights and calling for immediate reform within the criminal justice system.

Conclusion

Ultimately, the Trump Administration has persisted in scrutinizing foreign-born residents since its first term in 2016. Since entering his second term, however, this scrutiny has rapidly and radically altered the criminal justice system, which has disadvantaged immigrant criminal defendants in ways America has never seen before. To resolve this, Congress should consider legislating to expand or limit certain provisions the Trump Administration is using to their advantage, considering Congress controls aspects of immigrant criminality under the Immigration and Nationality Act.^[43] For now, unfortunately, immigrants in the criminal justice system are being deprived of their due process rights because the Trump Administration is expanding the eligibility for expedited removal, increasing ICE enforcement in courthouses, and issuing radical executive orders that advance a harmful narrative regarding foreign-born residents in the United States.

 

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Photo Citation: Lynn Scurfield, Photograph Depicting Sharp Cuts in Immigr. (2019), https://www.nytimes.com/2019/10/11/business/immigration-cuts-economy.html.

^[1]  Fei Luo & John C. Kilburn Jr., Migrant Perceptions of Crim. Just. Sys.: A Compar. Study of U.S. and Home Countries, MDPI (May 28, 2025), https://www.mdpi.com/2076-0760/14/6/341.

^[2] Id.

^[3] See Bob Glaves, Immigr. and Access to Just.: A Much Bigger Problem Than It Needs to Be, Chi. Bar Found., https://chicagobarfoundation.org/bobservations/immigration-access-justice-much-bigger-problem-needs/. (last visited Jan. 26, 2026).

^[4] See Walter A. Ewing, et al., The Criminalization of Immigr. in the U.S. 27 (2015), https://www.americanimmigrationcouncil.org/report/criminalization-immigration-united-states/.

^[5] See Alejandra Aromayo & Hillel R. Smith, Recent Exec. Branch Actions on Immigr. (Pt. 1) (2025); See also Alejandra Aromayo & Hillel R. Smith, Recent Exec. Branch Actions on Immigr. (Pt. 2) (2025).

^[6] See Exec Order No. 14165, 90 Fed. Reg. 8467 (Jan. 20, 2025); See also Exec. Order No. 14164, 90 Fed. Reg. 8463 (Jan. 30, 2025).

^[7] See 8 U.S.C. §1231

^[8] See Id.

^[9] Padilla v. Kentucky, 559 U.S. 356, 360 (2010).

^[10] Id.

^[11] See Va. Code Ann. § 1.92-271.7 (2025).

^[12] Id.

^[13] Id.

^[14] Every Day, the Trump Admin. is Getting Violent Crim. Illegals Off Our Streets, The White House (June 20, 2025), https://www.whitehouse.gov/articles/2025/06/every-day-the-trump-administration-is-getting-violent-criminal-illegals-off-our-streets/.

^[15] Walter A. Ewing, et al., The Criminalization of Immigr. in the U.S. 1 (2015), https://www.americanimmigrationcouncil.org/report/criminalization-immigration-united-states/.

^[16] Expanded Expedited Removal and Challenges to Due Process, Nat’l Immigr. F. (June 23, 2025), https://forumtogether.org/article/expanded-expedited-removal-and-challenges-to-due-process/.

^[17] Bob Glaves, Immigr. and Access to Just.: A Much Bigger Problem Than It Needs to Be, Chi. Bar Found., https://chicagobarfoundation.org/bobservations/immigration-access-justice-much-bigger-problem-needs/. (last visited Jan. 26, 2026).

^[18] See Id.

^[19] See Id.

^[20] Id.

^[21] U.S. Const. amend. V; U.S. Const. amend. XIV, § 1.

^[22] Plyler v. Doe, 457 U.S. 202, 210 (1982).

^[23] See Expanded Expedited Removal and Challenges to Due Process, Nat’l Immigr. F. (June 23, 2025), https://forumtogether.org/article/expanded-expedited-removal-and-challenges-to-due-process/.

^[24] See Id.

^[25] Id.

^[26] See Id.

^[27] Id.

^[28] Id.

^[29] See Id.

^[30] Id.

^[31] Id.

^[32] See Id.

^[33] See Jennifer M. Chacon, State Courthouses in the ICE Age, State Ct. Rep. (May 22, 2025), https://statecourtreport.org/our-work/analysis-opinion/state-courthouses-ice-age.

^[34] Padilla v. Kentucky, 559 U.S. 356, 360 (2010).

^[35] See Jennifer M. Chacon, State Courthouses in the ICE Age, State Ct. Rep. (May 22, 2025), https://statecourtreport.org/our-work/analysis-opinion/state-courthouses-ice-age.

^[36] Id.

^[37] Alejandra Aromayo & Hillel R. Smith, Recent Exec. Branch Actions on Immigr. (Pt. 2), 2 (2025).

^[38] Id.

^[39] Alejandra Aromayo & Hillel R. Smith, Recent Exec. Branch Actions on Immigr. (Pt. 1), 3 (2025).

^[40] Expanded Expedited Removal and Challenges to Due Process, Nat’l Immigr. F. (June 23, 2025), https://forumtogether.org/article/expanded-expedited-removal-and-challenges-to-due-process/.

^[41] Id. at 3.

^[42] Alejandra Aromayo & Hillel R. Smith, Recent Exec. Branch Actions on Immigr. (Pt. 1), 3 (2025); Alejandra Aromayo & Hillel R. Smith, Recent Exec. Branch Actions on Immigr. (Pt. 2), 2 (2025).

^[43] See Hillel R. Smith, Immigr. Consequences of Crim. Activity 33 (2021).