Due Process, Habeas Corpus, and Immigration Right Now

This episode applies the due process framework and the Mathews balancing test to one of the most urgent legal crises in the country right now: immigration enforcement and the constitutional rights of noncitizens facing removal.

The previous two episodes built the framework — what due process requires, what counts as a property or liberty interest, and how the Mathews test determines how much process the government owes you. This episode puts that framework to work on the questions dominating headlines right now. When the government detains someone for deportation, what process are they owed? When someone is removed from the country under the Alien Enemies Act, can they challenge it? What is habeas corpus, and why is it the last line of defense when every other procedural protection has been stripped away?

These aren't abstract questions. They're playing out in federal courts right now, in cases involving real people who have been detained or deported under expedited procedures with minimal opportunity to be heard. The constitutional doctrines we've been building all season — due process, the right to a hearing, the balancing of government interests against individual rights — are being tested in the most consequential way possible. The 2025 cases J.G.G. v. Trump and Abrego Garcia — both of which this episode originally covered — set the stage. J.G.G. established unanimously that noncitizens deported under the Alien Enemies Act must receive notice and a meaningful opportunity to seek habeas relief. Abrego Garcia showed what happens when the checkpoint fails: a man with a court order specifically prohibiting his deportation to El Salvador was deported to El Salvador anyway, and the Justice Department called it "just an administrative error." Together, the two cases established both what constitutional minimum survives in immigration enforcement and how easily that minimum can be bypassed in practice.

Mullin v. Doe, decided in June 2026, is the next chapter in this story — and it moves the analysis in a different direction. Where J.G.G. was about the constitutional floor for people already detained, Mullin is about statutory procedural protections and whether courts can enforce them at all. The case involves the Secretary of Homeland Security's terminations of Temporary Protected Status for Haiti and Syria — programs that had let hundreds of thousands of Haitian and Syrian immigrants live and work in the United States lawfully after their home countries became too dangerous to return to. The TPS statute lays out four mandatory steps the Secretary "shall" follow before ending a country's designation, including consultation with the State Department about country conditions. Fritz Miot and Dahlia Doe — one Haitian, one Syrian — argued that the consultation Congress required didn't actually happen: the "consultation" was a two-line email exchange between staff members that never addressed country conditions at all, at a time when the State Department's own travel advisories described both countries as unsafe due to "kidnapping, crime, terrorist activity, [and] civil unrest." All nine justices agreed the statute makes the consultation mandatory. Six voted that no federal court is allowed to check whether it happened. The judicial review bar for TPS terminations, they held, foreclosed the challenge.

Read together, J.G.G. and Mullin describe how the doctrine cuts both ways. There's a constitutional minimum that survives even in immigration — the Thuraissigiam line, the plenary power doctrine, and the political-branches tradition can only compress due process so far before nine justices push back, as they did unanimously in J.G.G. But where Congress has spelled out procedural obligations by statute, courts can be barred from checking whether the executive followed them. The floor exists. It's just much lower than the framework we build in the earlier episodes would suggest. Mullin also puts a new question on the table that reaches beyond immigration — Justice Thomas's solo concurrence argued that Congress can bar constitutional claims from federal court entirely and that Bolling v. Sharpe, the 1954 decision holding that the federal government owes equal protection, was wrong. That's one justice. But it is a flag planted for future fights, and it lands directly on the framework the earlier episodes assumed.

This episode covers the 2025 wave. The 2026 Mullin decision, which extends and complicates the analysis here, gets its own Learn page. If you want the full picture of where immigration due process stands right now, both pages are worth reading. Both are recommended for readers following the ongoing constitutional fights over expedited removal, habeas access, and the statutory checks Congress put in place to constrain executive immigration authority.

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What We Cover

• How the Mathews balancing test applies to immigration proceedings — what process noncitizens are constitutionally owed before removal
• What habeas corpus is, why it exists, and why it becomes the last available remedy when other procedural protections are unavailable
• The Alien Enemies Act and current legal challenges to its use in immigration enforcement
• The difference between removal proceedings with full hearings and expedited removal with minimal process
• Why due process applies to noncitizens on U.S. soil — and the legal debate over how much process they're owed
• How courts are handling challenges to detention and deportation right now
• Why the doctrines covered in earlier episodes — due process, property interests, and the Mathews test — are directly relevant to understanding what's happening in immigration law today

Rough Transcript

Gwen: Hello, and welcome to Administrative Remedies, because you can’t fix what you don’t understand. Brought to you in part by the University of Tulsa College of Law. I’m Gwendolyn Savitz, an associate professor here at TU and the associate dean of research and intellectual life.

Marc: And I’m Marc Roark. I’m the dean of the College of Law.

Gwen: We’ll be breaking down complex doctrines with real-life analogies and examples to demystify the world of administrative law for everyone trying to understand how government actually works.

Marc: Agencies are the main way the federal government gets things done. It’s not through Congress for reasons we’ll be addressing over the course of this series.

Gwen: Marc, this is going to be a companion episode to the Mathews v. Eldridge episode. We normally try and keep those main episodes pretty timeless. We want them to hold up years from now. But what’s happening right now in immigration is probably the most vivid illustration of the due process framework that we could use. And it would also just be irresponsible to not talk about it.

Marc: Yeah, everything we’ve discussed, what’s at stake, how likely mistakes are, what the additional processes cost, it’s really playing out right before us in real time.

Gwen: And I want to be clear about what this episode is and isn’t. This is not about whether the government should deport people. It’s not about whether borders should be secure. It’s also not about whether gangs are dangerous.

Marc: Yeah, those are policy questions that the government takes up in different forms and different ways that impact administrative law, but they are not the things that we are dealing with today.

Gwen: Right. And reasonable people disagree on them. So what we’re talking about today is something different, something that really shouldn’t be controversial at all. Can the government lock you up or send you to a foreign prison without giving you any way to say you’ve got the wrong person? That’s not a left-right political question.

Marc: It really isn’t.

Gwen: The right to challenge your detention is one of the oldest protections in the English-speaking world. It predates the Constitution. It predates the country. And when that right breaks down, it doesn’t just affect the people being detained. It threatens the structure that protects everyone.

Marc: Okay, let’s start with the basics. Why is the ability to challenge government detention so fundamental?

Gwen: Without that, every other right is meaningless.

Marc: Explain that.

Gwen: Okay, you have the right to free speech. You have the right to due process. You have the right to counsel. You have the right to not be deprived of liberty without due process of law. Great. But if the government can put you in a cell and there’s no mechanism at all for you to go before a neutral decision maker and say, this is wrong and here’s why, then all of those rights are just words.

Marc: Yeah. In the government speak, this is habeas corpus.

Gwen: Yes. This is the great writ. And it’s worth noting that the original version of the Constitution, without the Bill of Rights, just the plain Constitution itself, explicitly protected habeas corpus.

Marc: Article I, Section 9: The privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it.

Marc: Yeah, the founders thought it was so important they put it in the original document.

Marc: Right. They didn’t even leave it for the amendments. They didn’t leave it for Congress to create. They baked it into the structure.

Gwen: And the reason is simple, that the founders had direct experience with a government that could imprison people without judicial review. And that’s what they were rebelling against.

Marc: Yeah. So when we talk about the right to challenge detention, we’re not talking about some modern progressive invention.

Gwen: Right. We’re talking about something that the English courts had recognized in the 1600s, that the founders enshrined in the Constitution in 1787, and that the Supreme Court has explicitly applied to non-citizens since at least 1903.

Marc: Yeah, non-citizens as well, because the Fifth Amendment doesn’t just limit its application to citizens. It says persons.

Gwen: Right. No person shall be deprived of life, liberty, or property without due process of law. The Supreme Court has been completely consistent on this for over a century. Whatever your views on immigration policy, the constitutional text is clear. Non-citizens on U.S. soil are persons. They get due process.

Marc: OK, so why does this matter to someone who isn’t a non-citizen?

Gwen: All right, because the government doesn’t always know who somebody is when they act. The whole point of the right to challenge is that the government makes mistakes. It picks up the wrong person. It acts on bad information. It confuses one name for another. If the system has no checkpoint, there’s no moment when somebody can say, wait, you have the wrong person. Then the error becomes the outcome.

Marc: And citizens have been caught up in immigration enforcement actions repeatedly, as we’ve seen on the news.

Gwen: Right. They have. It’s been documented. And even setting that aside, the principle that the government must allow people to challenge their detention is what prevents every other kind of government overreach. If you accept that one category of people can be detained with no ability to contest it, you’ve accepted a principle that has no logical stopping point.

Marc: Because the limiting principle is the right to challenge itself.

Gwen: Right. Once that’s gone, the only thing standing between anyone and unchallengeable government detention is the government’s promise that it won’t happen to you. And that’s not how constitutional rights work.

Marc: So let’s talk about what’s actually happening.

Gwen: In March 2025, the administration invoked the Alien Enemies Act, a 1798 wartime statute, to deport Venezuelan nationals to El Salvador’s CECOT prison. The government alleged that these were members of the gang Tren de Aragua.

Marc: They alleged. But without any individualized hearings.

Gwen: Right. There was no notice that people were being removed under this specific statute. There was no opportunity to contest the factual basis that they weren’t actually a member of the gang before being put on a plane to a foreign prison.

Marc: OK, let’s run the Mathews factors. First, factor one, the private interest. Physical liberty is at stake. Not just deportation, but deportation to what a federal judge has described as one of the most dangerous prisons in the Western Hemisphere. That is the highest category of private interest that the framework recognizes.

Gwen: Right. And factor two.

Gwen: So risk of error. A Bloomberg investigation found that roughly 90 percent of the Venezuelans deported had absolutely no U.S. criminal record beyond potentially traffic or immigration violations.

Gwen: 90 percent.

Marc: Right. And if the justification for using a wartime statute is supposed gang membership, and 90% of the people subject to it have no criminal record, the error rate isn’t a marginal concern. It is a central feature of the system.

Marc: OK, factor three.

Gwen: So the government’s interest in removing dangerous gang members. Sure, that’s legitimate. Very few people are pro-dangerous gang members running rampant in the country. Tren de Aragua is a serious criminal organization. But the Mathews question isn’t whether the interest is real. It’s whether the cost of giving people a chance to contest their designation is too high relative to the risk of error.

Marc: And what was the process that was being requested? It wasn’t a full trial.

Gwen: No, it wasn’t. It’s just notice and an opportunity to be heard before being removed. The chance to say, I am not who you think I am.

Gwen: And that’s ultimately what the Supreme Court required.

Gwen: Yes, unanimously. In J.G.G. v. Trump, the court said that detainees must receive notice that they’re subject to removal under the Alien Enemies Act, and that notice has to come within a reasonable time and in a manner that lets them actually seek habeas relief before being deported.

Marc: So notice and an opportunity to be heard, that’s the most basic formulation of due process that there is.

Marc: Right. We saw that repeatedly in the Mathews episode with a bunch of different cases.

Gwen: And what’s remarkable is that this administration had to be told this by the Supreme Court. The principle that you have to tell someone why you’re detaining them and give them a chance to respond is so fundamental, even to non-citizens, that the court was citing it in 1903.

Marc: Yeah, and what’s remarkable about this case is that even the dissenters agreed on this point.

Gwen: Right. So all four dissenters wrote that if the government removes even one individual without affording notice and a meaningful opportunity to seek habeas relief, it violates the court’s order. Nine justices. Zero said the government can deport people to a foreign prison without any process at all.

Marc: But the process the court required was after detention.

Gwen: Right. So the court said you need a chance to challenge. But when we’re thinking about habeas corpus, by definition, that is after you’ve already been detained. That’s the whole point. Explain why you’ve detained this person.

Marc: What the administration actually provided, according to court filings, was a one-page form in English informing detainees that they had 12 hours to express an intent to challenge their detention by asking for a hearing.

Gwen: 12 hours.

Marc: 12 hours based on a one-page form in English for people, many of whom won’t speak English, who may not have a lawyer, who are currently in detention, and probably don’t have a way to contact a lawyer and file something with a court that they’ve never been to.

Gwen: That’s the tornado siren problem.

Marc: It is. So in that, the sirens cover such a wide area that they’re not really meaningful information. And in this case, technically, the system is providing notice. But the design of the notice makes it functionally useless for the people it’s supposed to protect.

Marc: So the question really isn’t just whether the process exists on paper.

Gwen: No, it’s whether the process is designed in a way that lets people actually use it. Due process that can’t be exercised isn’t due process.

Gwen: So then we also have the case that shows what happens when the system has no functional checkpoint at all.

Marc: Come on, Abrego Garcia.

Marc: Yeah, this is the case everyone heard about.

Marc: Yes, everybody.

Gwen: So Abrego Garcia came to the U.S. from El Salvador as a teenager in 2011. He was fleeing gang threats. In 2019, an immigration judge granted him a withholding of removal. This is legal protection that specifically prohibited the government from deporting him to El Salvador because he had already demonstrated that he was likely to face persecution there.

Marc: Yeah, the system had already worked. An immigration judge had heard the evidence. They had applied the law. They had issued a ruling protecting him. He had an entitlement to be in the country.

Gwen: Right. That’s the system working as it was designed to work. There’s an adversarial hearing. There’s evidence. There’s legal analysis. And we have a decision with the force of law.

Marc: Okay, so what then happened?

Gwen: All right, so March 2025, he’s driving home from work with his son when ICE arrested him. Three days later, he’s on a plane to CECOT, the El Salvadoran mega prison, the exact country that the immigration judge had ordered he not be deported to.

Marc: Okay, so how does this happen?

Gwen: We had an ICE official who said in a sworn affidavit that his protected status hadn’t appeared on the flight manifest. He was listed as an alternate and took another detainee’s place. So the Justice Department called it just an administrative error.

Marc: An administrative error that sent a man with a court order protecting him to a foreign prison.

Gwen: And this is the part that everybody needs to hear. This isn’t about whether he’s sympathetic or unsympathetic. It’s not about whether he should have been in the country in the first place. The government’s own legal system, an immigration judge applying immigration law through an adversarial process, had said this man cannot be sent to El Salvador. And then the government sent him to El Salvador because there was no checkpoint between the decision to deport and the plane taking off.

Marc: Yeah. And can we talk just for a second about this? In reality, what the state is doing is putting pressure on its own administrative system that it’s already worked out all of these questions in advance.

Gwen: Right. This is what we’ve seen repeatedly with this administration, which is ignoring every sort of procedural safeguard, ignoring everything that’s come before, doing what it wants and basically asking for forgiveness.

Marc: So let’s talk about factor two of the Mathews test and how factor two shapes this outcome.

Gwen: All right. So this is where it’s most concrete. When a system has no meaningful review before an irreversible action, errors can’t get caught. They become permanent. And when you’re moving fast, when speed is the top priority and the process is the obstacle to that, this is what you get.

Marc: What did the Supreme Court then say?

Gwen: So again, they’re unanimous. They said the lower court properly required the government to facilitate his return and ensure his case was handled as it would have been had he not been improperly sent to El Salvador.

Marc: And then the government argued that it could not comply.

Gwen: Right. So the administration’s position was that federal courts can’t order the executive to conduct foreign diplomacy, that requiring them to get him out of a foreign prison would exceed judicial authority.

Marc: Ah, so this is where they are now creating a separation of powers argument.

Gwen: Right. This is that asking for forgiveness and saying, this is no longer a place where you can even ask for forgiveness because you’re intruding on our area of authority.

Marc: If we look at what this actually means in practice, the government deports someone in violation of a court order. Then it argues that because the person is now abroad, courts can’t order the fix. So the violation becomes its own shield.

Marc: Yeah, the remedy disappears because the government moved fast enough to make it disappear.

Marc: Right. Justice Sotomayor put it plainly.

Gwen: The government’s argument implies it could deport and incarcerate any person, including U.S. citizens, without legal consequence, so long as it does so before a court can intervene.

Marc: Any person.

Gwen: Right. Any person, including citizens. This is not a hypothetical designed to scare people. It is the logical endpoint of a principle that says once someone is outside of the country, courts have no power. And that’s why the right to challenge detention before removal matters. And why it matters so much. It’s not as a favor to the detainee. It is a structural requirement of the system. If the only time you can challenge the government’s action is after it’s already irreversible, you don’t have a right at all.

Marc: Yeah. Habeas corpus does not work in retrospect.

Gwen: Right. It is supposed to work before the harm is done. That is the entire point.

Marc: So he was eventually brought back to the U.S., but only after the government indicted him on separate charges, not because it complied with the Supreme Court’s order to facilitate his return. But he’s since been released on bail and returned to Maryland.

Gwen: But for three months, a man with a court order protecting him sat in a foreign prison because the system had no mechanism to prevent the error and the government argued courts couldn’t fix it.

Gwen: What we’ve talked about so far is what happens when existing process gets bypassed. But there’s also something happening right now that’s about redesigning the process itself, making the system have less ability to catch errors by design.

Gwen: So you’re talking about the Board of Immigration Appeals?

Marc: Right. So in February of this year, the Department of Justice issued an interim final rule that fundamentally restructures how immigration appeals work. There are three big changes. First, it cut the time to file a notice of appeal from 30 days to 10.

Marc: Yeah. And for people who may be detained, who may not speak English, or may not have a lawyer.

Gwen: Right. And it made summary dismissal the default outcome. Unless a majority of the permanent board members vote within 10 days to accept a case for a merits review, the appeal is automatically dismissed.

Marc: So before transcripts are even created.

Marc: Right. This is before they exist, before the record is transmitted. The board would have to decide whether to hear your appeal before it can even read what happened in your case. That’s not appellate review. That’s appellate screening designed to reject cases.

Gwen: Right. Exactly. And third, they were requiring simultaneous briefing. Both sides had to file within 20 days. Reply briefs were essentially eliminated.

Marc: The government justified this by pointing to a backlog of over 200,000 pending appeals. And to be fair, that backlog is real.

Gwen: No, it definitely is. 200,000 pending cases is a system in crisis. But the Mathews question is whether the solution addresses the problem without creating a worse one.

Marc: Yes. Let’s run these factors.

Gwen: All right. Factor one, the people appealing immigration decisions are facing deportation. Many of them to countries where they’ve alleged that they would face persecution or death. The private interest is at the top of the scale.

Marc: Factor two. This is where it gets really damning. The BIA exists to catch errors immigration judges make. Every adjudication system is going to make errors. That’s why we have this appellate process in place. If you make meaningful review functionally impossible, you will lock in every mistake. In immigration, a locked-in mistake can mean sending someone back to a country where they’re killed.

Marc: And the government’s own numbers are interesting here. They have said that 123 out of over 55,000 appeals were sustained on the merits between 2023 and 2025.

Gwen: Yes. So they tried to use this to argue that appeals are pointless. But think about what that actually already means. If the system already sustains very few appeals, the backlog isn’t caused by extensive merits review. It’s caused by volume. And the solution to a volume problem is resources, not eliminating the ability to appeal.

Gwen: OK, factor three.

Marc: All right. This is the government’s interest. And here they have a legitimate interest in trying to manage the caseload. But the cost of maintaining it isn’t just being measured against the convenience of the government. It’s measured against the risk of deporting people who have a valid legal claim to stay.

Marc: OK, so then what happened with the rule?

Marc: A bunch of legal service organizations sued. And one day before the rule was supposed to take effect, a federal judge in D.C. blocked the key provisions. The court vacated the default summary dismissal framework and the reduction from 30 to 10 days. And the provision treating issues not raised in the notice of appeal as waived.

Gwen: What were the grounds the court looked to?

Gwen: So this rule was issued without notice and comment. The government invoked a foreign affairs exception to try and skip the normal rulemaking process. And the plaintiffs argued that this violated the Fifth Amendment’s due process protections. The litigation is ongoing, but at least for now, the most aggressive parts can’t be enforced.

Marc: So the system then caught it.

Marc: The system caught it this time, and a court intervened.

Gwen: Again, we have this pattern. The government designs a process to make it functionally impossible for people to challenge errors, and courts have to step in and say no. That’s the pattern with the Alien Enemies Act deportations. That’s the pattern with Abrego Garcia. That’s the pattern with the BIA rule. The government acts first, and courts have to clean it up.

Gwen: And that inversion is the problem. Due process is supposed to work the other way. Process first, then action. When the government consistently acts first and litigates later, people who can’t access the courts fast enough get no protection.

Marc: I want to come back to something you said at the top, that this isn’t a political question.

Marc: It isn’t. So I realize that saying this isn’t political about immigration right now sounds naive. Everything about immigration is politically charged right now. But the right to challenge your detention by the government is not a policy preference. It is the foundation the rest of the system is built on.

Marc: Yeah. The founders put habeas corpus in the original Constitution, not on accident.

Marc: Right. And this is before we have any amendments. Before anything in the Bill of Rights because, again, they understood that everything else is going to depend on this right. If the government can hold you without any process for contesting that, it doesn’t matter what other rights you have. You can’t exercise them.

Marc: And that principle doesn’t depend on who’s in the cell.

Marc: Right. And this is the hard part for people. It’s easy to support due process for people you sympathize with. It’s harder when the government says the person is a gang member or a terrorist. But that’s the whole reason that we need this process in place. Cases where the government says somebody is dangerous and wants to act without proving it.

Gwen: If the right only applies when the government’s claims aren’t serious, it doesn’t apply at all.

Marc: Yeah, because the government will always say the claims are serious.

Gwen: Yes, of course it will. That’s the nature of government power. Every detention is justified. Every deportation is necessary. The question is whether anyone gets to check. And when the answer is no, when the system is designed so that people are removed before they can challenge it, or the process for challenging is a one-page form in a language they don’t speak with a 12-hour deadline, then we’ve decided that the government’s word is enough.

Marc: And the government’s word was enough for Abrego Garcia. They said he was a gang member, an immigration judge had already found otherwise, and he ended up in a foreign prison anyway.

Gwen: Right. So the same framework that’s protecting a non-citizen facing deportation protects you. Due process isn’t a special right the government extends to people it likes. It’s the minimum the Constitution demands before the government acts against anyone.

Marc: Against a person.

Gwen: Right. Against any person, not any citizen. And the day we accept that some people can be detained and removed with no meaningful ability to challenge it is the day that protection starts to erode for everyone. The principle itself is the protection. Once you create the exception, the exception grows.

Marc: Yeah. I mean, it feels weird being an originalist here, but that’s what the founders understood. We can tell because they wrote it right into the original Constitution. Before anything else.

Marc: So that does it for today’s episode on Administrative Remedies. Thank you for joining us today. Please, if you enjoy this podcast and enjoy this episode, give us a like on Spotify, iTunes, or whatever platform you’re listening on. And be sure to tune in next time where we’ll continue to dive into the contours of administrative law, because remember, you can’t fix what you don’t understand.