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Written By Katelyn Bennett L’27<\/strong><\/p>\n Introduction<\/b><\/p>\n The United States is home to the highest number of immigrants in the world.[1]<\/sup><\/span> Coined as the \u201cMelting Pot,\u201d the nation houses over 46 million foreign-born residents and counting as of 2022.[2]<\/sup><\/span> Nevertheless, immigrants in the United States face extreme prejudice due to a broken immigration system.[3]<\/sup><\/span> 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]<\/sup><\/span> Today, foreign-born residents in the American criminal justice system endure even greater challenges amidst the Trump administration\u2019s increased scrutiny towards immigration.[5]<\/sup><\/span>\u00a0 In particular, President Trump\u2019s 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]<\/sup><\/span> 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\u2019s population.<\/span><\/p>\n Background<\/b><\/p>\n Removal is the process by which the government removes a noncitizen from the United States for violating an immigration law.[7]<\/sup><\/span> Criminal convictions often constitute violations of immigration law.[8]<\/sup><\/span> Though once considered a \u201cdrastic measure\u201d warranted by only a few serious violations, the Supreme Court acknowledged that removal is \u201cnow virtually inevitable for a vast number of noncitizens convicted of crimes\u201d in 2010.[9]<\/sup><\/span> Consequently, the Court held in <\/span>Padilla v. Kentucky<\/span><\/i> that competent lawyers must inform immigrant criminal defendants of the consequences, such as removal, that may arise when at the plea bargaining stage.[10]<\/sup><\/span> Sixteen years later, the use of removal as an immigration consequence has only increased, signaling a need for immigrant defendants to be informed at <\/span>every <\/span><\/i>stage of their criminal proceedings.[11]<\/sup><\/span> 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]<\/sup><\/span> Particularly, it calls upon the court to advise immigrant defendants of potential federal immigration consequences at \u201cthe defendant\u2019s first physical appearance for any misdemeanor or felony.\u201d[13]<\/sup><\/span>\u00a0<\/span><\/p>\n Ultimately, Donald Trump\u2019s 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]<\/sup><\/span> 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]<\/sup><\/span> 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]<\/sup><\/span><\/p>\n 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]<\/sup><\/span> This leaves many clients to decipher their own complex plea agreements, which often come loaded with legal jargon and hidden post-trial obligations.<\/span>[18] <\/sup>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\u2019s reliance on removal as an immigration consequence.[19]<\/sup><\/span> 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]<\/sup><\/span> Immigrants thus face a fear of removal that has only been exacerbated since President Trump\u2019s return to the White House.<\/span><\/p>\n Trump\u2019s Expansion of Expedited Removal<\/b><\/p>\n The Fifth and Fourteenth Amendments of the United States Constitution guarantee that no person shall be \u201cdeprived of life, liberty, or property without due process of law.\u201d[21]<\/sup><\/span> In 1982, the Supreme Court expressly recognized that these rights apply to <\/span>any <\/span><\/i>individual within the nation\u2019s border, holding that \u201c[a]liens, even aliens whose presence in this country is unlawful, have long been recognized as \u2018persons\u2019 guaranteed due process of law.\u201d[22]<\/sup><\/span> In practice, however, how due process rights are applied to each individual depends on that individual\u2019s citizenship status.[23]<\/sup><\/span> 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]<\/sup><\/span> Instead, the government must simply ensure fairness and safety, a standard lower than that accorded to citizens in legal proceedings.[25]<\/sup><\/span>\u00a0<\/span><\/p>\n This minimal application of due process rights has allowed the Trump administration to remove foreign-born residents regularly, relying on expedited removal proceedings.[26]<\/sup><\/span> As the National Immigration Forum describes, expedited removal occurs when \u201cimmigration officers, rather than judges, make the final determination regarding removability, often after only a brief interview with the individual in custody.\u201d[27]<\/sup><\/span> During this brief interview, immigrants generally have \u201clittle to no opportunity to consult with an attorney, gather evidence, or challenge the government\u2019s assertions.\u201d[28]<\/sup><\/span> 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]<\/sup><\/span>\u00a0 As a result, the Trump Administration is increasingly threatening what little due process rights foreign-born residents already enjoy.<\/span><\/p>\n ICE\u2019s Increased Presence in Courthouses<\/b><\/p>\n 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]<\/sup><\/span> \u201cUnder this strategy,\u201d the National Immigration Forum explains, \u201c[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.\u201d[31]<\/sup><\/span> 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]<\/sup><\/span><\/p>\n Studies show that ICE enforcement in courthouses negatively impacts court operations. For example, once aware of ICE\u2019s presence, immigrants may be \u201cchilled\u201d from coming to court for their proceedings or serving as critical witnesses in other proceedings.[33]<\/sup><\/span> Historically, foreign-born residents have always been hesitant of the court system because of its frequent resort to removal.[34]<\/sup><\/span> Thus, the Trump administration\u2019s increased patrol in courthouses has only exacerbated immigrants\u2019 fear of reporting and reluctance to employ their due process rights. Moreover, not only are immigrants\u2019 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]<\/sup><\/span> In a recent executive order, President Trump declared those leaders who did not cooperate with federal enforcement to be engaging in \u201clawless insurrection,\u201d calling for their immediate arrests.[36]<\/sup><\/span> Consequently, the Trump Administration\u2019s desire to dismantle the immigrant criminal justice system compromises the rights of all individuals within America\u2019s borders, citizen and noncitizen alike.<\/span><\/p>\n Recent Executive Orders<\/b><\/p>\n 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\u2019s growing habit of detaining foreign-born residents before removing them, President Trump recently issued the executive order \u201cSecuring Our Borders.\u201d[37]<\/sup><\/span> 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]<\/sup><\/span> As the Congressional Research Services notes, \u201c[t]he order, among other things, directs the Secretary of DHS to \u2018take 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\u2019 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.\u201d[39]<\/sup><\/span> In accordance with these policies, ICE has recorded a number of over 59,000 immigrants in custody as of June 2025 \u2013 a record high in American history.[40]<\/sup><\/span> Second, in another executive order titled \u201cRestoring the Death Penalty and Protecting Public Safety,\u201d the Trump administration called for the Attorney General to pursue the death penalty for \u201cevery federal capital crime committed by an unlawfully present alien.\u201d[41]<\/sup><\/span>\u00a0<\/span><\/p>\n Both of these actions were taken in January of 2025 \u2013 just moments after President Trump was inaugurated for his second term.[42]<\/sup><\/span> Since then, the Trump Administration\u2019s opposition to immigration has only worsened, threatening immigrant due process rights and calling for immediate reform within the criminal justice system.<\/span><\/p>\n Conclusion<\/b><\/p>\n 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]<\/sup><\/span> 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.<\/span><\/p>\n <\/p>\n \u2014<\/p>\n Photo Citation: Lynn Scurfield, Photograph Depicting Sharp Cuts in Immigr. (2019), https:\/\/www.nytimes.com\/2019\/10\/11\/business\/immigration-cuts-economy.html.<\/span><\/p>\n [1]\u00a0 <\/sup>Fei Luo & John C. Kilburn Jr., <\/span>Migrant Perceptions of Crim. Just. Sys.: A Compar. Study of U.S. and Home Countries<\/span><\/i>, <\/span>MDPI<\/span> (May 28, 2025), https:\/\/www.mdpi.com\/2076-0760\/14\/6\/341. <\/span><\/p>\n [2]<\/sup><\/span>\u00a0Id.<\/em><\/p>\n [3]<\/sup><\/span>\u00a0See <\/span><\/i>Bob Glaves, <\/span>Immigr. and Access to Just.: A Much Bigger Problem Than It Needs to Be<\/span><\/i>, <\/span>Chi. Bar Found.<\/span>, https:\/\/chicagobarfoundation.org\/bobservations\/immigration-access-justice-much-bigger-problem-needs\/. (last visited Jan. 26, 2026). <\/span><\/p>\n [4]<\/sup><\/span>\u00a0See<\/span><\/i> Walter A. Ewing, et al., The Criminalization of Immigr. in the U.S. <\/span>27 (2015), https:\/\/www.americanimmigrationcouncil.org\/report\/criminalization-immigration-united-states\/.<\/span><\/p>\n [5]<\/sup><\/span>\u00a0See<\/span><\/i> Alejandra Aromayo & Hillel R. Smith, Recent Exec. Branch Actions on Immigr. (Pt. 1)<\/span> (2025); <\/span>See also <\/span><\/i>Alejandra Aromayo & Hillel R. Smith, Recent Exec. Branch Actions on Immigr. (Pt. 2)<\/span> (2025). <\/span><\/p>\n [6]<\/sup><\/span>\u00a0See<\/span><\/i> Exec Order No. 14165, 90 Fed. Reg. 8467 (Jan. 20, 2025); <\/span>See also<\/span><\/i> Exec. Order No. 14164, 90 Fed. Reg. 8463 (Jan. 30, 2025).<\/span><\/p>\n [7] <\/sup><\/span>See<\/span><\/i> 8 U.S.C. \u00a71231<\/span><\/p>\n [8]<\/sup><\/span>\u00a0See Id<\/span><\/i>.<\/span><\/p>\n [9]<\/sup><\/span>\u00a0Padilla v. Kentucky<\/span><\/i>, 559 U.S. 356, 360 (2010).<\/span><\/p>\n [10]<\/sup><\/span>\u00a0Id.<\/em><\/p>\n [11] <\/sup><\/span>See <\/span><\/i>Va. Code Ann.<\/span> \u00a7 1.92-271.7 (2025).<\/span><\/p>\n [12] <\/sup><\/span>Id.<\/em><\/p>\n [13]<\/sup><\/span>\u00a0Id.<\/em><\/p>\n [14]<\/sup><\/span>\u00a0Every Day, the Trump Admin. is Getting Violent Crim. Illegals Off Our Streets<\/span><\/i>, <\/span>The White House <\/span>(June 20, 2025), https:\/\/www.whitehouse.gov\/articles\/2025\/06\/every-day-the-trump-administration-is-getting-violent-criminal-illegals-off-our-streets\/.<\/span><\/p>\n [15] <\/sup>Walter A. Ewing, et al., The Criminalization of Immigr. in the U.S. <\/span>1 (2015), https:\/\/www.americanimmigrationcouncil.org\/report\/criminalization-immigration-united-states\/.<\/span><\/p>\n [16]<\/sup><\/span>\u00a0Expanded Expedited Removal and Challenges to Due Process<\/span><\/i>, <\/span>Nat\u2019l Immigr. F.<\/span> (June 23, 2025), https:\/\/forumtogether.org\/article\/expanded-expedited-removal-and-challenges-to-due-process\/.<\/span><\/p>\n [17] <\/sup>Bob Glaves, <\/span>Immigr. and Access to Just.: A Much Bigger Problem Than It Needs to Be<\/span><\/i>, <\/span>Chi. Bar Found.<\/span>, https:\/\/chicagobarfoundation.org\/bobservations\/immigration-access-justice-much-bigger-problem-needs\/. (last visited Jan. 26, 2026). <\/span><\/p>\n [18]<\/sup><\/span>\u00a0See Id<\/span><\/i>. <\/span><\/p>\n [19]<\/sup>\u00a0<\/span>See Id<\/span><\/i>. <\/span><\/p>\n [20]<\/sup><\/span>\u00a0Id.<\/em><\/p>\n [21] <\/sup>U.S. Const.<\/span> amend. V; <\/span>