Is Trump right that immigrants in U.S. illegally have different due process standards? That’s False

President Donald Trump has twice sworn to "support and defend the Constitution of the United States." But about three months after repeating that pledge during his second presidential inauguration, Trump said "I don’t know" when asked whether he needed to uphold the Constitution.

Trump was answering a question about whether immigrants in the U.S. illegally are entitled to due process.

"They talk about due process, but do you get due process when you’re here illegally?" Trump asked interviewer Kristen Welker, NBC News’ "Meet the Press" moderator.

"The Constitution says every person, citizens and noncitizens, deserve due process," Welker responded.

She then asked Trump whether he agreed with U.S. Secretary of State Marco Rubio, who said noncitizens are entitled to due process.

Trump: "I don’t know. I’m not a lawyer. I don’t know."

Welker: "Well, the Fifth Amendment says as much."

Trump: "I don’t know. It might say that, but if you’re talking about that, then we’d have to have a million or 2 million or 3 million trials."

Welker: "But even given those numbers that you’re talking about, don’t you need to uphold the Constitution of the United States as president?"

Trump: "I don’t know. I have to respond by saying, again, I have brilliant lawyers that work for me, and they are going to obviously follow what the Supreme Court said. What you said is not what I heard the Supreme Court said. They have a different interpretation."

That wasn’t the first time Trump has brushed aside immigrants' due process rights.

In an ABC News interview marking Trump’s first 100 days in office, correspondent Terry Moran asked Trump, "But in our country even bad guys get due process, right?"

Trump answered, "If people come into our country illegally, there's a different standard."

During a May 1 speech at the University of Alabama’s commencement ceremony, Trump said, "Judges are interfering supposedly based on due process, but how can you give due process to people who came into our country illegally? They want to give them due process. I don’t know."

Days later, while announcing that the 2027 NFL draft will be in Washington, D.C., Trump said "The courts have, all of a sudden, out of nowhere, they said, maybe you have to have trials. Trials. We're gonna have 5 million trials? Doesn't work. … Past presidents took out hundreds of thousands of people when needed. … They didn't go through any of this."

Despite Trump’s dismissal of and questions about due process for immigrants, the U.S. Constitution, legal experts and decades of court decisions agree: Immigrants in the U.S., regardless of how they entered the U.S., legally or illegally, have due process rights.

What those rights look like vary depending on how long a person has been in the U.S. and what their legal status is.

What are due process rights? 

Due process generally refers to the government's requirement to follow fair procedures and laws. The Constitution’s Fifth and 14th amendments protect "any person" against being deprived by the U.S. government of "life, liberty, or property, without due process of law."

"People have a right to be heard, and there are certain steps that need to be taken before someone can, say, be jailed," Kathleen Bush-Joseph, a lawyer and policy analyst at the nonpartisan Migration Policy Institute, said.

Several court rulings have determined that due process rights are extended to all people in the U.S., not just U.S. citizens or immigrants in the country legally. The U.S. Constitution and the Immigration and Nationality Act dictate the process the government must use to afford immigrants due process rights.

In immigration, due process generally refers to "appropriate notice (of government action), the opportunity to have a hearing or some sort of screening interview to figure out, are you actually a person who falls within the law that says that you can be deported," Katherine Yon Ebright, a lawyer at the Brennan Center for Justice’s Liberty and National Security program, said.

For example, if the government seeks to deport people who are illegally in the U.S., the government generally must give them a charging document known as "notice to appear." Eventually, immigrants go before an immigration judge to present evidence and make a case that they qualify for some form of relief against deportation, such as asylum.

Without due process, legal experts say U.S. citizens also could be deported.

"The whole point of due process is to determine whether you're the kind of person who can be subject to deportation," Ilya Somin, a George Mason University constitutional law professor, said. "If there is no due process, then the government can simply deport people or punish them at will. … Because how can you show that you're actually a U.S. citizen if you're not getting any due process?"

Light illuminates part of the Supreme Court building on Capitol Hill in Washington, Nov. 16, 2022. (AP)

How do due process rights differ for noncitizens compared with U.S. citizens?

Even though all people in the U.S. have due process rights, for noncitizens, the specifics of the process and the extent of protections vary. The term noncitizen applies to people legally and illegally in the U.S., including people here on visas, with lawful permanent status or without a legal immigration status.

There’s a "sliding scale of different protections that people can have depending on what their (immigration) status is," Yon Ebright said.

Noncitizens are not entitled to government-appointed lawyers during immigration proceedings, for example. And some immigrants who recently entered the U.S. illegally don’t have to appear before a judge before being deported; these cases are subject to what’s called the expedited removal process.

Under expedited removal, certain people can be quickly deported without a court case. However, people who express fear of persecution if they return to their home countries are referred to immigration officers who determine whether the immigrant is eligible for asylum or other deportation protections. Immigrants who pass the "credible fear" screening are referred to an immigration court where they can make their case.

In the past, people were placed in expedited removal if they’re within 100 miles of the border and within two weeks of their entry. In January, Trump expanded expedited removal for  anyone who can’t prove they’ve been in the U.S. for more than two years. 

The Alien Enemies Act of 1798, a wartime power that Trump invoked in March, allows the government to deport "alien enemies." Trump has used that law to deport people his administration says are members of the Venezuelan prison gang Tren de Aragua, without immigration court hearings. The Trump administration has deported hundreds of people under the law.

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stated on April 30, 2025 in a Facebook post

“In 1996, Congress specifically authorized the executive branch to conduct non-judicial deportations NOT SUBJECT TO DUE PROCESS.”

However, the U.S. Supreme Court ruled against the administration April 7, saying it must give immigrants notice that they will be deported under the Alien Enemies Act, and give them "reasonable time" to challenge the deportation in court.

Although expedited removal and the Alien Enemies Act limit people’s due process protections, they do not eliminate them. "There are no exceptions to due process," Bush-Joseph said.

Additionally, noncitizens who are charged with crimes receive the same due process protections as U.S. citizens in criminal court, Somin said.

"All of the protections of the Bill of Rights apply (in criminal court)," Somin said. "There has to be proof beyond a reasonable doubt. He or she is entitled to a jury trial, rights against self incrimination, right to counsel and so on."

Law officials load a man into a utility vehicle during a raid of an apartment complex, Feb. 5, 2025, in east Denver. (AP)

Why are immigrants’ due process rights making headlines during the Trump administration?

The Trump administration faces several court cases dealing with deportations and immigrants’ due process rights. They include challenges over Trump’s use of the Alien Enemies Act and the government’s mistaken deportation of a Salvadoran man.

Administration officials have criticized judges and rejected immigrants’ due process protections.

"Due process guarantees the rights of a criminal defendant facing prosecution, not an illegal alien facing deportation," White House adviser Stephen Miller posted May 5 on X.

The Trump administration's comments about due process are centered on Trump’s promise to carry out the largest deportation operation in U.S. history. The administration’s current deportation pace is below its goal of 1 million people each year, the Migration Policy Institute said in an April 24 analysis.  

Nayna Gupta, policy director of the immigrant rights advocacy group American Immigration Council, said the Trump administration is attempting to"get around those obstacles and those requirements" of due process "just to meet some target (deportation) number."

To reach Trump’s goal of deporting 1 million people a year, the administration would need to deport people who have lived in the U.S. for years and have no criminal convictions (whom past administrations haven’t prioritized for deportation).

Past presidents were also required to uphold noncitizens’ due process rights, but deportation processes moved more quickly under administrations that focused on people who had recently crossed the border illegally, Bush-Joseph said. That option is more limited for the Trump administration because illegal immigration has reached historic lows under Trump. 

Trump is correct that deporting millions of the people who are illegally in the U.S. would require millions of court cases, Tara Watson, director of the Center for Economic Security and Opportunity at the Brookings Institution, said. That has long been the case.

Millions of immigration court cases are backlogged. And the Trump administration has fired several immigration judges who would hear these cases.

The administration’s goal for mass deportation doesn’t change due process rules and standards.

"It is true that due process slows down the machinery of deportation, but due process is also what separates democracies from dictatorships," Watson said.

Our ruling

Trump said, "If people come into our country illegally, there’s a different standard" for due process.

All people in the U.S. regardless of their immigration status have due process rights, based on the U.S. Constitution and decades of court decisions. That applies whether they entered the U.S. legally or illegally.

For noncitizens, people’s due process protections vary based on their legal status or how long they’ve been in the U.S. Legal experts say despite due process variations, there are no exceptions to due process requirements for immigrants. 

We rate Trump’s statement False.