Expediting ‘Due Process’ in Removal Cases
3 simple changes that would have a big impact
By Andrew R. Arthur on May 13, 2025
I recently offered a quick tutorial on “due process” in the immigration context, that is the steps the government must take to remove inadmissible and deportable aliens from the United States, consistent with constitutional requirements. Congress and the administration could make several changes to expedite that process, while ensuring aliens receive full and fair adjudications. Here are a few.
The Baselines
The best synopsis of what due process requires in removal proceedings comes courtesy of the Ninth Circuit: “Where an alien is given a full and fair opportunity to be represented by counsel, prepare an application for ... relief, and to present testimony and other evidence in support of the application, he or she has been provided with due process.”
Under section 240 of the Immigration and Nationality Act (INA), removal proceedings usually involve two separate determinations: (1) is the alien (deemed a “respondent”) removable as charged; and (2) if the respondent’s removable, is that respondent eligible for some waiver or immigration benefit that would allow him or her to remain?
Those waivers and benefits are the “relief” to which the circuit court referred, and usually eligibility for relief is the only real issue in the case. Most aliens concede they are removable — because they entered illegally, committed a specified crime, overstayed a nonimmigrant visa, etc. — and the real issues come at the next stage, where they seek relief.
There are a handful of benefits an alien can seek in removal proceedings, but most common is “asylum”, a benefit and protection under section 208 of the INA.
https://cis.org/Arthur/Expediting-Due-Process-Removal-Cases
