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Molly Butler / Media Matters


 

Research/Study Research/Study

Right-wing media have decided undocumented migrants don't have the right to due process under the law

Fox News host Brian Kilmeade: “Really? They deserve due process? We have to give all these guys due process?”

Written by Jack Wheatley

Published

In recent weeks, the Trump administration has come under criticism for its decision to deport more than 200 Venezuelan migrants, who the White House alleged are undocumented gang members, to a prison in El Salvador. Controversy ensued when the Trump administration allegedly refused to return planes carrying the deportees after Washington, D.C., District Court Judge James Boasberg issued an order temporarily blocking the deportations after he verbally ordered the flights to turn around. 

Right-wing influencers and pundits quickly came to the administration’s defense, falsely claiming undocumented migrants don’t have or deserve the right to due process. They also attempted to justify the elimination of due process rights, falsely claiming these rights “did not matter” for January 6 defendants and President Donald Trump.

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  • The Trump administration deported a number of Venezuelan migrants to El Salvador, potentially infringing on their rights to due process

    • The Trump administration arrested and subsequently deported more than 200 alleged gang members. Trump invoked the Alien Enemies Act of 1798 for the “expedited removal” of Venezuelan migrants the administration suspects of involvement with the criminal gang, Tren de Aragua, which the State Department designated as a terrorist organization in February. According to Reuters, some experts have raised the alarm about the potential illegality of such deportations, with one law professor saying, “They are just making stuff up.” Notably, the American Civil Liberties Union, which filed a lawsuit to halt the deportations, questioned the Trump administration’s invocation of the Alien Enemies Act on due process grounds, as Reuters reports, “because they would not be able to challenge the determination that they are ‘alien enemies.’” [NPR, 3/18/25; Reuters, 3/18/25]
    • After the ACLU filed a lawsuit alleging that the migrants were being deprived of their rights to due process, Judge Boasberg issued a temporary restraining order blocking the Trump administration from carrying out the deportations and ordered the flights already in progress to be turned around. Despite Boasberg’s order, the White House “still deported some 250 people to El Salvador,” according to reporting by NPR. Following the White House’s alleged refusal to return deportation flights already underway, the Guardian reports that Boasberg “instructed the Trump administration … to explain why its failure to turn around flights carrying deportees to El Salvador did not violate his court order.” Right-wing and far-right media figures then attacked Boasberg for his order, calling the judge a “lawless clown,” urging the administration to “impeach and prosecute” him, baselessly claiming his order “risked putting American lives in danger,” and targeting the judge’s family. [ABC News, 3/15/25; NPR, 3/18/25; The Guardian, 3/20/25; Media Matters, 3/18/25]
    • On March 23, Trump's border czar Tom Homan told ABC News, “I don't care what that judges think, as far as this case,” seemingly contradicting other statements made by the administration that it would abide by court orders. When asked about due process rights, Homan answered, “Due process? Where was Laken Riley's due process?” [ABC News, This Week, 3/23/25, 3/23/25]
    • Due process rights for noncitizens are protected under the Constitution and supported by longstanding legal interpretation. The Fifth Amendment of the U.S. Constitution states, “No person shall be … deprived of life, liberty, or property, without due process of law.” Conservative Supreme Court Justice Antonin Scalia reaffirmed this right in the 1993 ruling on Reno v. Flores, in which Scalia wrote: “It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings.” [PBS, 6/25/18; U.S. Constitution, accessed 3/28/25]

  • Right-wing figures questioned whether noncitizens have due process rights, even asserting that they “don’t deserve” them and have “exploited” the country’s judicial system

    • Newsmax host Rob Schmitt claimed undocumented immigrants “have exploited the good nature of this country” and that “due process … allows illegals to break into the country, rape and kill an American, and then be given a free attorney to defend themselves.” Schmitt continued, “Those are vulnerabilities that are now being exploited every day in this country.” [Newsmax, Rob Schmitt Tonight, 3/17/25]
    • On the right-wing social media platform GETTR, podcast host and former Trump aide Steve Bannon posted: “Alien Criminal Invaders DON’T Get ‘Due Process’—They Get the Boot.” [GETTR, 3/17/25]
    • On Fox & Friends, host Brian Kilmeade questioned whether migrants have the right to due process, saying, “Really? They deserve due process? We have to give all these guys due process?” Later, co-host Lawrence Jones mocked questions about the process, saying, “So we're going to do vetting when we deport, but we're not going to do any vetting when they come across the border?” [Fox News, Fox & Friends, 3/21/25, 3/21/25]
    • Kilmeade also claimed, without evidence, “It's not practical to think that we can do due process on 8 million people.” Shortly after, he continued: “We cannot give every illegal immigrant due process, because we’ve got 22 million minimum. Eight million that came over the last four years.” [Fox News, Fox & Friends, 3/24/25, 3/24/25]
    • Jones said we should “revisit” due process for alleged undocumented migrants. Jones: “The president is saying under the act that you don't have to show, you don't have to do this due process. So you have a constitutional right that is actually — they are afforded to illegals in this country. We should revisit that. But then you have a competing act that is saying, hey, if someone is a part of a foreign terrorist organization that you don't have to give them due process and they can be deported.” [Fox News, Fox & Friends, 3/24/25]
    • On Fox News’ America Reports, principal deputy Drug Enforcement Administration administrator Rob Murphy suggested to anchor John Roberts that alleged gang members don’t deserve due process, saying, “Let's get them out instead of doing the long-term cases, developing probable cause and prosecution that we normally do on this.” He continued, “This gives us an unbelievable opportunity to stop it before it metastasizes anymore than it has.” [Fox News, America Reports, 3/18/25]
    • Buzz Patterson, a columnist for the right-wing website Red State, falsely claimed, “Illegal alien criminals have no due process or rights under our Constitution. None.” He also alleged, “They aren’t citizens, they aren’t ‘residents,’ they’re here illegally, and they’re breaking immigration laws consistently. Adios, MFer!” [Twitter/X, 3/17/25]
    • The Blaze’s Logan Hall wrote: “You don’t get to deliberately flood our country with tens of millions of illegal immigrants and then whine about ‘due process’ and ‘the rule of law.’ sorry those days are over.” [Twitter/X, 3/18/25]
    • RealClearInvestigations’ Mark Hemingway wrote: “If you weren’t outraged that the law and due process weren’t followed when Biden let 10+ million people into the country, don’t expect voters to be outraged by accusations Trump isn’t following due process when he deports them.” [Twitter/X, 3/18/25]
    • The Blaze’s Auron MacIntyre wrote: “It wasn’t a violation of due process to allow millions of illegals, including murders and rapists, across the border in the hopes of rigging elections. But it is a violation of due process to send them home and protect the American people and the integrity of their elections.” [Twitter/X, 3/18/25]
    • Right-wing pundit Tomi Lahren posted, “Isn’t it amazing that these activist district court judges didn’t have one shred of an issue when Joe Biden allowed 15 million illegals to invade our nation, but now are really concerned that illegal alien gang members are not being given their ‘rights.’” [Twitter/X, 3/18/25]

  • Right-wing media figures attempted to justify denying due process rights because they “did not matter” for January 6 defendants and Trump

    • Fox host Emily Compagno criticized those who have called for due process for the deportees, saying, “I think it’s rich that all of a sudden we have some kind of, you know, voiced protection of due process and questioning of making sure all of the work is shown.” Compagno then questioned, “Where was that when, for example, President Trump was being prosecuted, ridiculously, right here in this very city? Where was that commitment to due process for those peaceful abortion activists and the elderly being put in jail?” [Fox News, Outnumbered, 3/19/25]
    • Right-wing personality Mike Cernovich posted: “J6 is my litmus test for sincerity on matters of due process. Even if you believed them to be guilty, the defendants were denied ordinary norms such as changing venue when there’s too much a case back log. Speedy trial is a constitutional right.” He added, “Show me receipts or GTFO.” [Twitter/X, 3/10/25]
    • Townhall’s Kurt Schlichter responded to criticisms that the Trump administration was not following legal due process for deported individuals, writing: “Except when it comes to illegal aliens being allowed into the country and college students being accused of things and the prosecution of Trump, supporters and the prosecution of Trump himself. But other than that, due process is great.” He added: “I’m not going to bother, but I expect if you search through her timeline, you would find not a single complaint about any of the issues above. Not one. In fact, I suspect she was an enthusiastic supporter of those abuses. So guess what you can do with your due process for terrorists?” [Twitter/X, 3/19/25]
    • Schlichter also wrote: “Due process did not matter for Trump or his supporters, so get bent.” [Twitter/X, 3/20/25]
    • Right-wing radio host Buck Sexton mocked those questioning whether alleged criminals should be sent to a Salvadoran prison and said, “Democrats are going to the mat to make sure they have maximum due process rights,” but “had no problem with nonviolent J-6 Americans rotting away.” According to Sexton, “The same Democrats — and I mean the same individuals in some cases in the media and the Democrat party — who had no problem with nonviolent J-6 Americans rotting away in a DC gulag for a year without trial are now really concerned about Tren de Aragua members.” [Premiere Radio Networks, The Clay Travis and Buck Sexton Show, 3/21/25]