Due Process and Non-Citizens: Constitutional Protections Under Scrutiny; The Kilmar Abrego Garcia Case

The principle that no person shall be deprived of liberty “without due process of law” is enshrined in the Fifth Amendment of the U.S. Constitution. While debates over immigration policy often dominate headlines, the case of Kilmar Abrego Garcia—a Salvadoran national deported from Maryland, despite a federal court order—raises critical questions about how these protections apply to non-citizens. Today, we will examine the legal precedents, factual details of the case, and its implications for the rule of law.

The Legal Foundation of Due Process for Non-Citizens

The U.S. legal system has long recognized that constitutional rights extend beyond citizens. Key Supreme Court rulings establish this framework:

1. Yick Wo v. Hopkins (1886): The Court ruled that non-citizens are entitled to equal protection under the Fourteenth Amendment, stating, “The Fourteenth Amendment’s protections are universal in their application.”
2. Wong Wing v. United States (1896): The Court affirmed that non-citizens facing deportation must be afforded basic procedural rights, including a fair hearing.
3. Zadvydas v. Davis (2001): The Court barred indefinite detention of non-citizens, requiring the government to justify prolonged custody.

These decisions reinforce that due process is not a privilege of citizenship, but a right afforded to all persons within U.S. jurisdiction.

The Abrego Garcia Case: A Timeline of Legal Conflict

Kilmar Abrego Garcia, a Salvadoran national married to a U.S. citizen, resided in Maryland after being granted an asylum-type benefit called “withholding of removal,” where a judge found that it was “more likely than not” that he would be persecuted if he returned to El Salvador. Key events include:

• Abrego Garcia files for asylum after fleeing El Salvador, where he reported receiving death threats from MS-13. He was granted withholding of removal by an Immigration Judge. 
• Nonetheless, Abrego Garcia was detained during a routine check-in with ICE and deported to El Salvador.
• A federal judge grants a stay of removal, citing credible evidence of persecution risk. The order explicitly prohibits Immigration and Customs Enforcement (ICE) from deporting him while his case is reviewed.
• The current administration acknowledges the deportation resulted from an “administrative error” but refuses to facilitate his return, claiming El Salvador’s government must approve repatriation.
• The Supreme Court orders the administration to “take all reasonable steps” to return Abrego Garcia, but officials argue they lack the authority to compel El Salvador’s cooperation. 

Government Claims vs. Court Findings:
The administration labeled Abrego Garcia a “terrorist” and MS-13 affiliate, but federal courts rejected these claims. The Fourth Circuit found the government’s evidence “insufficient to establish gang ties,” noting he had no criminal record in the U.S. or El Salvador.

Broader Implications for the Rule of Law

Judicial Authority vs. Executive Power

Federal courts have repeatedly rebuked the administration for ignoring orders. Judge J. Harvie Wilkinson III warned that defying judicial mandates risks “normalizing lawlessness” and eroding checks on executive power. Legal experts note parallels to Youngstown Sheet & Tube Co. v. Sawyer (1952), where the Supreme Court curbed presidential overreach during national emergencies.

Precedent for Citizen Rights: How Eroding Protections for Non-Citizens Threatens All

History demonstrates that weakening due process for marginalized groups often paves the way for broader violations:

1. Japanese-American Internment (1942-1946):
   Over 120,000 Japanese Americans—two-thirds of whom were U.S. citizens—were forcibly relocated to camps without charges or trials. The Supreme Court upheld this policy in Korematsu v. United States (1944), deferring to executive claims of military necessity. 
2. Post-9/11 Detentions:
   Non-citizens were indefinitely held at Guantánamo Bay without trial. In Boumediene v. Bush (2008), the Supreme Court ruled detainees had habeas corpus rights, but the precedent of bypassing courts endured. Today, expedited removals under current policies replicate this framework for migrants.
3. Modern Family Separations:
   The “Zero Tolerance” policy separated over 5,500 children from their parents at the border, many of whom had legal asylum claims.
4. Global Parallels: Bangladesh’s Erosion of Due Process
   In Bangladesh, Section 54 of the Criminal Procedure Code allows warrantless arrests, while the Special Powers Act permits detention based on suspicion alone.

Legal scholars warn that the Abrego Garcia case risks similar “rights drift.” Once exceptions are carved for non-citizens, citizens become vulnerable to executive overreach.

The Path Forward: Legal and Policy Questions

The Abrego Garcia case exposes flaws in U.S. immigration law. Three unresolved issues dominate debates:

Judicial Capacity vs. Plenary Power Doctrine

The Supreme Court’s Trump v. Hawaii (2018) reaffirmed the “plenary power doctrine,” which grants the executive broad authority over immigration with minimal judicial oversight. This framework complicates challenges to policies like expedited removal, as courts often defer to DHS discretion.

• Can habeas corpus petitions, now the primary recourse under the Alien Enemies Act, meaningfully check executive power when most of the detained migrants lack lawyers?
• Should the doctrine be revised given modern immigration realities, such as transnational gangs and economic displacement?

Legislative Gridlock and Executive Overreach

Congress has not passed major immigration reform since 1996, leaving gaps to be exploited. The expansion of expedited removal to include parolees exemplifies shifts enacted without legislative debate.

• No federal law requires DHS to disclose evidence used to label migrants as gang affiliates.
• No mechanism exists to compel foreign governments to accept erroneously deported individuals, leaving cases like Abrego Garcia’s in limbo.

Ethical Dilemmas in Enforcement

The Vera Institute reports that 83% of migrants subjected to expedited removal in 2024 had credible fears of persecution, yet only 12% secured legal counsel.

• Should the U.S. adopt a universal right to counsel in immigration courts, as proposed in the 2025 ACCESS Act?
• Can “streamlined” processes balance efficiency with fairness, or do they inherently violate Wong Wing v. United States (1896) protections?

Balancing Security and Liberty: Different Perspectives

The administration argues that immigration enforcement requires flexibility to address threats, particularly involving gangs like MS-13. However, civil liberties groups emphasize that due process ensures accountability.

• The Alien Enemies Act: The administration cited this 1798 law to start mass deportations, but critics argue it was intended for wartime use against nationals of hostile states.
• Evidence Standards: Courts require “clear and convincing evidence” for deportation claims. In Abrego Garcia’s case, judges found the government’s evidence failed to meet this threshold.

The Path Forward: Legal and Policy Questions

The Supreme Court may ultimately decide Abrego Garcia’s fate, but the case raises larger questions:

1. Enforcement of Court Orders: Can courts compel the executive branch to negotiate with foreign governments to repatriate individuals?
2. Transparency: Should the government be required to disclose evidence used to label non-citizens as threats?
3. Legislative Reform: Congress has not updated immigration laws since 1996, leaving gaps in oversight of detention and deportation practices.

The Abrego Garcia Case Might Be Just The Beginning

While immigration enforcement is a legitimate government function, the Constitution mandates that it operate within bounded legal guardrails. Whether the U.S. can uphold due process for non-citizens, a group with limited political voice, is a test for its commitment to justice for all.

Moreover, the Supreme Court is set to hear argument in Trump v. CASA, Inc., Trump v. Washington, and Trump v. New Jersey on May 15th, where the current administration will be arguing in a similar vein that those “persons” born in the United States are not subject to the jurisdiction therefore– echoing its arguments pertaining to due process protections, but applying them to birthright citizenship.