What role does the Immigration and Nationality Act play in due process for illegal immigrants?

1. INA sets the basic division: full removal hearings vs. expedited removal

Congress put two different removal tracks into the INA. Section 240 establishes the standard removal proceeding before immigration judges — with authority to take testimony, cross‑examine witnesses, and consider applications for relief — and serves as the principal mechanism by which immigration judges “ensure the due process rights of all other aliens” facing removal ^[1]. By contrast, section 235 authorizes expedited removal at the border and, in some circumstances, for people encountered shortly after entry; those subject to expedited removal often have limited administrative review and no right to federal-court review of the initial removal decision ^{[1] [2]}.

2. Supreme Court precedent and the “threshold” distinction

Judicial decisions have long treated entrants at or very near the border differently from noncitizens who have established longer ties in the United States. The Supreme Court and federal courts have accepted that an individual “at the threshold of initial entry” may receive only the procedural protections Congress provides, a point the Court reiterated when upholding certain expedited removal schemes as satisfying constitutional due process for recent entrants ^{[5] [1]}. The Constitution’s Due Process Clause, however, applies to “persons” on U.S. soil, so case law draws lines about how much process is “due” depending on the person’s connection to the country ^{[6] [5]}.

3. Practical limits: how statutory procedures affect access to hearings and counsel

Although the INA and courts guarantee procedural protections on paper, multiple sources document gaps in practice. Advocates and watchdogs argue that expansions of expedited removal and aggressive enforcement measures make it harder for many noncitizens — including those who could show eligibility to remain — to access full immigration court proceedings or counsel, because expedited administrative channels are faster and offer limited review ^{[3] [4] [7]}. The system also lacks a right to government‑appointed counsel in immigration court, which advocacy organizations say undermines meaningful due process for vulnerable populations ^{[8] [7]}.

4. Recent policy fights: expansion of expedited removal and legal pushback

The INA contains optional language that allows DHS to apply expedited removal beyond ports of entry — for example to people encountered in the interior who cannot show continuous two‑year presence — and administrations have used that authority variably. Policy expansions have triggered litigation and renewed debate over whether the truncated procedures the INA permits genuinely satisfy constitutional due process when applied more broadly ^{[1] [3]}. Some legal challenges remain unresolved or have been mooted by subsequent policy changes, reflecting ongoing disagreement about statutory scope and constitutional limits ^[3].

5. Competing perspectives: statutory authority vs. due‑process concerns

Supporters of the INA’s expedited‑removal provisions emphasize congressional authority over admission and the need for tools to process large numbers of recent entrants efficiently; the statutory text and certain Supreme Court rulings provide support for such limited procedures at the border ^{[2] [5]}. Critics — including the National Immigration Forum, Vera Institute, and public‑interest litigants — argue that expanding expedited removal and aggressive enforcement practices risk stripping people of meaningful access to hearings and counsel, producing de facto denials of due process even if the statute purports to authorize the regime ^{[3] [7] [4]}.

6. What reporting does not resolve

Available sources do not mention definitive, new Supreme Court rulings after June 2020 that change the basic proposition that Congress can provide limited procedures for very recent entrants; they also do not provide empirical nationwide data in these items quantifying how many people lose access to full hearings because of policy changes ^{[1] [3] [4]}. For specific case outcomes or a complete legislative history of each INA amendment, consult primary statutes and case law beyond these summaries ^{[2] [5]}.

Bottom line: The INA structures due process for noncitizens by authorizing full removal hearings for most but also carving out expedited removal pathways for recent entrants; legal precedent and policy disputes turn on where to locate the boundary between administratively limited procedures Congress enabled and the constitutionally adequate process owed to people inside the United States ^{[1] [5] [3]}.