Pathways to Citizenship and the Legal Limits of Deportation in the United States

The United States has long presented itself as a nation of immigrants, where opportunity and freedom are accessible to those who arrive seeking a better life. However, in recent years, the immigration system has become not only a political flashpoint but also a legal battleground. As federal deportation efforts have ramped up under expanded executive authority, legal scholars and civil rights groups argue that many of these actions violate both U.S. law and the Constitution.

Understanding this debate requires a clear understanding of how lawful immigration and citizenship are intended to function, as well as why the government’s current approach to deportation is raising concerns.

Learn more: Call for Submissions: Illegal Deportation Shatters Lives.

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The Legal Path to U.S. Citizenship

There are several pathways through which immigrants can become U.S. citizens, but all require lawful presence and a multi-step process that can take years. The most common route is naturalization.

Steps to Naturalization:

Lawful Permanent Residency (Green Card)

Most immigrants must first obtain a green card through family sponsorship, employment, refugee/asylee status, or the diversity lottery program.

Green card holders must typically live in the U.S. for 3–5 years before applying for citizenship.

Eligibility Requirements

To apply for naturalization, one must:

• Be at least 18 years old;

  
  

• Have been a lawful permanent resident for the required time;

  
  

• Demonstrate “good moral character”;

  
  

• Pass English language and U.S. civics tests;

  
  

• Swear allegiance to the United States; and

  
  

• Be physically present in the U.S. for a certain number of months before application.

  
  

Application and Interview (Form N-400)

The application process involves extensive background checks, fingerprinting, and an interview with a U.S. Citizenship and Immigration Services (USCIS) officer.

Oath of Allegiance

Successful applicants take an oath of allegiance and officially become U.S. citizens.

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What Makes a Deportation “Illegal”?

While immigration enforcement is within the scope of executive power, the Fifth and Fourteenth Amendments of the U.S. Constitution guarantee due process of law, which applies to all persons, not just citizens. That means even noncitizens have the right to a fair legal process before being removed from the country.

Here are some of the ways deportation efforts may become unlawful:

1. Lack of Due Process

Under both statutory and constitutional law, individuals, regardless of citizenship status, cannot be deported without notice and an opportunity to be heard. This protection is grounded in:

• The Fifth Amendment to the U.S. Constitution guarantees that “no person shall be deprived of life, liberty, or property without due process of law.”

  
  

• The Immigration and Nationality Act (INA), particularly 8 U.S.C. § 1229, requires that the government provide written notice of removal proceedings at least ten calendar days before the initial hearing (unless waived in writing by the individual).

  
  

This notice must include:

• The time and place of the hearing;

  
  

• The charges and statutory basis for removal;

  
  

• A statement regarding the right to legal representation (at the noncitizen’s own expense);

  
  

• The consequences of failing to appear, including the issuance of an in-absentia removal order (8 U.S.C. § 1229a(b)(5)).

  
  

Yet under expedited removal procedures—authorized by 8 U.S.C. § 1225(b)(1)—certain noncitizens may be deported without a hearing before an immigration judge, often within hours or days of apprehension. Limited initially to individuals apprehended within 100 miles of the border who had been in the country fewer than 14 days, recent policy changes have expanded its reach to anyone unable to prove continuous physical presence in the U.S. for two years or more.

In practice, this has led to:

• Summary deportations without access to legal counsel or the ability to present defenses;

  
  

• Warrantless ICE raids that result in the immediate detention and removal of long-term residents;

  
  

• Asylum seekers are being turned away or removed without a credible fear interview, in violation of U.S. obligations under the Refugee Act of 1980 and the 1951 Refugee Convention.

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Key Case Law Supporting Due Process Rights

Zadvydas v. Davis, 533 U.S. 678 (2001)

The Supreme Court held that the government cannot indefinitely detain immigrants who have been ordered removed but cannot be deported, reinforcing that the Due Process Clause protects noncitizens.

Padilla v. Kentucky, 559 U.S. 356 (2010)

The Court ruled that criminal defense attorneys must inform noncitizen clients about the immigration consequences of a guilty plea, recognizing the intertwined nature of criminal and immigration proceedings and affirming the need for informed legal representation.

Sessions v. Dimaya, 584 U.S. ___ (2018)

In a 5-4 decision, the Court struck down part of the INA as unconstitutionally vague, holding that vague immigration statutes violate the Fifth Amendment’s due process protections, especially when they lead to deportation.

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In sum, the expansion of expedited removal and the use of mass enforcement tactics raise serious constitutional concerns. When the government bypasses the courts, denies legal counsel, and ignores statutory notice periods, it not only violates the INA, it undermines the very foundation of due process in a nation governed by law.

2. Targeting Lawfully Present Immigrants

Not all noncitizens are subject to removal, and those who hold lawful status under U.S. immigration law are entitled to legal protections that the federal government cannot disregard. Green card holders (lawful permanent residents), asylum seekers, and DACA recipients all fall under protected categories. Targeting them for removal without due cause or proper legal procedure is not only unjust—it’s illegal.

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1. Green Card Holders (Lawful Permanent Residents)

Green card holders enjoy significant legal protections under the Immigration and Nationality Act (INA). Specifically:

• 8 U.S.C. § 1227(a) outlines the limited circumstances under which a lawful permanent resident (LPR) can be removed, including certain criminal convictions or immigration fraud.

  
  

• LPRs have a right to a full removal hearing before an immigration judge under 8 U.S.C. § 1229a, and they must be provided notice, counsel, and the ability to contest removal.

  
  

Deporting green card holders without specific statutory grounds and procedural safeguards violates both the INA and the Due Process Clause of the Fifth Amendment.

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2. Asylum Seekers

Under the Refugee Act of 1980, asylum seekers are entitled to:

• A credible fear interview (per 8 C.F.R. § 208.30);
  

• A full hearing before an immigration judge if fear is established;
  

• Protection from removal to a country where they face persecution under the 1951 Refugee Convention, to which the U.S. is a signatory.

Forcibly removing asylum seekers without these steps violates not only U.S. law but also binding international agreements. In Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019), while the Attorney General attempted to limit bond hearings for asylum seekers, courts have since clarified that detained asylum seekers retain certain procedural rights, and blanket denial of hearings may violate due process.

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3. DACA Recipients (Deferred Action for Childhood Arrivals)

While DACA does not confer legal immigration status, it does provide deferred action, meaning recipients cannot be removed while the deferral is in effect. According to 8 C.F.R. § 274a.12(c)(14):

• DACA recipients are considered lawfully present for the purposes of certain legal protections, including work authorization.

  
  

• Revocation of DACA must be justified, individualized, and procedurally valid.

  
  

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In Department of Homeland Security v. Regents of the University of California, 591 U.S. ___ (2020), the Supreme Court ruled that the Trump administration’s attempt to terminate DACA was arbitrary and capricious, violating the Administrative Procedure Act (APA). The decision reaffirmed that policy changes affecting protected immigrants must follow procedural norms and be legally justified.

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Legal Consequences of Unlawful Targeting

Efforts to detain or deport individuals who are:

• LPRs with no criminal basis for removal;
  

• Asylum seekers who have not received a fair hearing; and
  

• DACA recipients with active deferral status ...are likely to face successful legal challenges.

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Federal courts have consistently held that lawfully present immigrants are entitled to due process and protection from arbitrary government action. When immigration enforcement disregards these legal statuses, it not only breaks the law—it undermines public trust in the rule of law itself.

3. Violating Treaty Obligations

The United States is bound by a number of international treaties and legal frameworks that govern how it must treat noncitizens, particularly those seeking asylum or facing persecution in their home countries. Chief among these is the 1951 Refugee Convention and its 1967 Protocol, both of which the U.S. has committed to through its domestic enactment: the Refugee Act of 1980.

Together, these frameworks prohibit the U.S. from deporting individuals to countries where they are likely to face persecution, torture, or other serious harm—a principle known as non-refoulement.

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Legal Basis of Non-Refoulement

• Article 33(1) of the 1951 Refugee Convention states: “No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened.”

  
  

• The United States codified this principle into domestic law through the Refugee Act of 1980, specifically in 8 U.S.C. § 1231(b)(3), which prohibits the removal of an individual to a country where they are more likely than not to face persecution based on race, religion, nationality, political opinion, or membership in a particular social group.

  
  

• Additionally, under the Convention Against Torture (CAT)—which the U.S. ratified in 1994—deportation is forbidden if there are substantial grounds to believe that a person would be subjected to torture in the receiving country (8 C.F.R. § 208.16–18).
  

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Violations in Practice

Despite these obligations, current U.S. deportation practices frequently bypass the required safeguards:

Credible Fear Interviews Denied or Rushed

Under 8 U.S.C. § 1225(b)(1)(A)(ii), individuals who express a fear of return must be referred for a credible fear interview with a trained asylum officer. If credible fear is established, they are entitled to a full asylum hearing before an immigration judge. However, reports from the ACLU and Human Rights Watch document multiple instances where asylum seekers were deported before receiving interviews, or were pressured to withdraw claims under duress.

Safe Third Country Agreements and Border Turnbacks

The use of "safe third country" policies (e.g., with Guatemala or Mexico), which redirect asylum seekers without proper hearings, has been criticized for violating non-refoulement protections. These countries often lack the capacity or political stability to ensure safety, putting individuals at serious risk of persecution or violence, particularly LGBTQ+ individuals, political dissidents, and victims of cartel violence.

Expedited Removal and Family Separation

Policies under 8 U.S.C. § 1225(b)(1) have been used to justify expedited removal of families and unaccompanied minors, without legal counsel or court review. These removals have, in some cases, sent individuals back into environments where U.S. officials knew or should have known there was a substantial risk of harm, thereby violating both CAT and the Refugee Convention.

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Relevant Case Law and International Criticism

• Matter of G-G-S-, 26 I&N Dec. 339 (BIA 2014) reaffirmed that asylum eligibility cannot be arbitrarily denied based on perceived moral or medical status without individualized assessment.

  
  

• In Thuraissigiam v. DHS, 591 U.S. ___ (2020), the Supreme Court upheld restrictions on habeas review for asylum seekers in expedited removal—but dissenting justices and rights groups warned the decision threatens to erode due process protections and violate international obligations.

  
  

• The United Nations High Commissioner for Refugees (UNHCR) and the Inter-American Commission on Human Rights have repeatedly criticized the U.S. for practices that appear to violate international law and fail to uphold treaty obligations.

  
  

When the U.S. deports individuals without properly assessing claims of fear, persecution, or torture, it violates not only domestic statutes but also binding international agreements. These treaty obligations are not optional—they are part of the legal fabric the U.S. has committed to uphold.

Turning our backs on them doesn’t just place lives at risk. It erodes the United States' credibility as a defender of human rights and the rule of law on the global stage.

4. Racial or Religious Discrimination

Deportation enforcement actions that disproportionately target individuals based on race, religion, ethnicity, or national origin not only violate American values—they may also breach the Equal Protection Clause of the Fourteenth Amendment, and where federal action is involved, the Due Process Clause of the Fifth Amendment (as applied in Bolling v. Sharpe, 347 U.S. 497 (1954)).

The Constitution guarantees that all persons, regardless of citizenship status, are entitled to equal protection under the law. Discriminatory enforcement—whether through selective immigration raids, detention practices, or visa restrictions—raises significant constitutional and statutory concerns.

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Legal Foundations

• Fourteenth Amendment, Section 1: “No State shall...deny to any person within its jurisdiction the equal protection of the laws.”
  

• Fifth Amendment Due Process Clause (applicable to the federal government): Although the Fifth Amendment does not include an Equal Protection Clause, the Supreme Court has held that equal protection principles apply to the federal government through the Due Process Clause (Bolling v. Sharpe, 1954).
  

• Immigration and Nationality Act (INA), 8 U.S.C. § 1152(a)(1)(A): Explicitly prohibits immigration decisions based on a person’s “race, sex, nationality, place of birth, or place of residence.”

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Evidence of Discriminatory Practices

Numerous civil rights investigations, watchdog reports, and court cases have highlighted racial and religious profiling in immigration enforcement. Examples include:

Targeted ICE raids in specific ethnic neighborhoods

A 2023 report by the Migration Policy Institute found that Latino and Muslim-majority communities were disproportionately targeted in ICE raids, despite similar rates of visa overstays and undocumented presence in other communities.

Use of religious or national origin as proxy for enforcement

Policies under the Trump administration—including the so-called "Muslim Ban" (Presidential Proclamation 9645)—restricted entry from majority-Muslim nations. Although upheld in Trump v. Hawaii, 585 U.S. ___ (2018), the Court’s ruling did not grant blanket immunity to religious discrimination. The decision was sharply criticized in dissent and has limited application in removal contexts, where individual rights to due process and equal protection are more clearly at stake.

Selective enforcement and racial profiling

In Arar v. Ashcroft, although ultimately dismissed on procedural grounds, the case raised public concern over extraordinary rendition based on national origin and religion, further fueling calls for heightened judicial oversight in removal proceedings involving profiling.

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Legal Recourse and Civil Rights Litigation

When immigration enforcement is carried out in a way that systematically targets individuals based on protected characteristics, it can open the door to:

• Equal protection lawsuits under Bivens v. Six Unknown Named Agents (403 U.S. 388 (1971)), allowing civil suits against federal officials for constitutional violations;
  

• Title VI claims against agencies receiving federal funds that engage in discriminatory practices;
  

• Class action litigation (e.g., Rodriguez v. Robbins) challenging detention and removal policies that affect communities based on race or religion.
  

Civil rights groups, including the ACLU, NAACP, Muslim Advocates, and the National Immigration Law Center, have filed litigation in recent years to challenge profiling-based deportation tactics, with many resulting in preliminary injunctions, consent decrees, or settlements.

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When deportation enforcement is influenced more by who someone is than by what they’ve done, the government crosses a constitutional line. Equal protection under the law is not a suggestion—it is a mandate. Discriminatory targeting undermines both the legitimacy of the immigration system and the constitutional principles upon which the nation is built.

As courts have affirmed time and again: Immigrants are people. And all people are entitled to equal justice under the law.

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Recent Deportation Orders Under Scrutiny

In the last several years, a series of executive actions have dramatically reshaped immigration enforcement practices, many of which have triggered legal challenges and sparked widespread concern among constitutional scholars and civil rights organizations.

Under these recent executive orders, federal immigration authorities have conducted:

• Mass enforcement operations in sanctuary jurisdictions, despite state and local policies intended to limit cooperation with federal immigration enforcement. These actions have often led to the arrest of individuals with no prior criminal record, thereby violating the norms of proportionality and prioritization outlined in previous Department of Homeland Security (DHS) guidelines (e.g., the 2014 Priority Enforcement Program).

  
  

• Arrests during routine check-ins with ICE officers, particularly targeting DACA recipients, asylum seekers awaiting court decisions, and individuals complying with all procedural requirements. These arrests undermine the trust built between immigrants and federal agencies, and may violate due process rights when individuals are detained without notice of new proceedings or cause.

  
  

• Restrictions on asylum access at the southern border, including the use of Title 42 expulsions (initially justified under public health law), metering, and “Remain in Mexico” policies (Migrant Protection Protocols), have resulted in asylum seekers being returned to dangerous conditions without full hearings or legal representation.

  
  

In many of these cases:

• Detained individuals were denied access to legal counsel, in violation of 8 C.F.R. § 292.5(b), which guarantees the right to representation in removal proceedings (at the individual’s own expense).

  
  

• Immigration judges faced administrative pressure from the Executive Office for Immigration Review (EOIR) to accelerate case closures or deny continuances, raising concerns about judicial independence.

  
  

• Protections for vulnerable populations, including minors under the Flores Settlement Agreement and families entitled to due process under the Trafficking Victims Protection Reauthorization Act (TVPRA), were frequently disregarded.

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Legal Backlash and Ongoing Litigation

Civil rights groups, including the ACLU, National Immigration Law Center, Human Rights First, and American Immigration Council, have filed dozens of lawsuits challenging these enforcement actions on both constitutional and statutory grounds. The legal arguments often cite:

• The Administrative Procedure Act (APA), which prohibits arbitrary and capricious agency action;

  
  

• The Due Process Clause of the Fifth Amendment, for unlawful detention, denial of hearings, and coercive deportation tactics;

  
  

• The INA, for violating notice, hearing, and asylum eligibility provisions.

In Doe v. DHS (2024), the Ninth Circuit Court of Appeals ruled that the blanket deportation of DACA recipients without individualized review constituted a violation of both the APA and the Fifth Amendment’s guarantee of due process. The court held that DHS had failed to provide a lawful rationale for deviating from its own policies and had denied procedural fairness to individuals with active deferral status.

This and similar rulings affirm that even during periods of heightened enforcement, immigration policy must be grounded in legality, not expediency.

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Final Thoughts

Immigration law in the United States is undeniably complex, but the Constitution is not. It demands that all government action, especially those with life-altering consequences, follow the rule of law.

Citizenship is not something granted on a whim—it is earned through a long, often difficult process governed by statute, regulation, and human dignity. Deportation, on the other hand, is a use of state power that must be exercised with precision, transparency, and constitutional restraint.

When these standards are ignored—when people are arrested without cause, denied hearings, or deported without due process—it is not merely an immigration failure. It is a constitutional failure. And in a nation built on the rule of law, the cost of that failure reaches far beyond the border.

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Add Your Voice to the Record

If you’ve lived through the consequences of the policies taking place throughout America—whether as an immigrant, a business owner, a public servant, or someone who has lost a loved one to unjust enforcement—we want to hear from you.

For The Writers is now accepting nonfiction submissions for a series of truth-telling projects aimed at documenting the real human cost of this administration’s immigration and enforcement practices.

• Share your story.
  

• Reclaim your narrative.
  

• Become part of the historical record that cannot be erased.

  
  

Explore our current open calls—from immigrant journeys to leadership testimonies to stories of loss—and submit your piece today.

This moment in history is being written.

Make sure your voice is part of it.

Call for Submissions