In reaction to the Trump administration’s increasingly cruel policies on immigration, critics have called for a reinstatement of constitutional guarantees of “due process.” This was a major demand, for instance, of the No Kings march, which was possibly the largest single-day action in United States history. The call for the restoration of due process is urgent, as Trump and his acolytes like Indiana Lieutenant Governor Micah Beckwith claim that immigrants have “no right to see a judge” if they are “here illegally.”

Demanding due process for immigrants facing deportation is necessary, especially given the Trump administration’s many violations of this right. But it is also woefully insufficient.

In reality, even before Trump’s current assault on the American immigration system, the treatment of immigrants facing deportation fell short of notions of fairness or justice. Even compared with the standards of the “broken” criminal legal system, which is marked by overcriminalization and mass incarceration, immigration law fails to protect people facing deprivation of “life, liberty, and property”–the fundamental rights protected by the Fourteenth Amendment’s Due Process Clause.

Unlike in the criminal legal system, immigrants apprehended for potential deportation need not be mirandized or read their constitutional rights to not self-incriminate. They are not guaranteed a speedy trial and cannot protest their arrest on the basis of “cruel and unusual punishment.” They do not even have a right to counsel if they cannot afford one.

In fact, over seventy percent of immigrants face a judge without representation, a travesty given the complexity of immigration law. Meanwhile, people with representation are 10.5 times more likely to have a positive outcome.

In US immigration law, deportation is not understood as a “punishment.” Since the nation’s founding, access to citizenship and other legal status for immigrants has been understood as a public benefit given at the discretion of courts as a matter of civil law. Crucially, from 1790, this was confined to “free white people” of “good moral character.”

In defining immigration status as a form of public benefit, the law sees deportation as a simple rescinding of that benefit. As a 1984 Supreme Court Decision put it, deportation is a “purely civil action to determine eligibility to remain in this country… while it may be burdensome for the alien, [deportation] is not a punishment.”

But for those subject to deportation, it is, of course, experienced as punishment, and even, as some scholars have put it, a form of torture – characterized by cruel, degrading and inhumane treatment.

People facing deportation can spend years in horrific and dehumanizing conditions that they describe as “hell on earth.” They endure verbal, physical, and sexual abuse.

Importantly, rules governing ICE detention are not codified into law. Detention facilities are subject to their own individual contracts with the state. Organizations such as Amnesty International have reported the over-zealous use of solitary confinement, inadequate medical care, and expired and inedible food.

This is all before we get to the actual removal, which separates people from loved ones, their homes, their work. The system deports people who may have come as children and have no recollection of having lived in any other country. Others have been deported to their countries of persecution, and therefore their death.

None of this is new. The American approach to deportation has perpetuated what the American Immigration Council called, over a decade ago, “two systems of justice” in which immigration law “falls short of American ideals of justice.” This was true for the five million people deported under the Obama administration, earning him the moniker “Deporter-in-Chief.”

It was also true under Biden, who put in policies that effectively amount to what activists called an “asylum ban”—ones that would drastically restrict who could apply for asylum by putting daily quotas and denying the many who passed through other countries on their way to the United States.

Much of the violence that the Trump administration is committing is by supercharging this legal deportation apparatus, more than doubling rates of arrest, and targeting all non-citizens. In January, a bipartisan vote in Congress passed the Laken Riley, which makes it so that immigrants can now be apprehended and deported based on the mere accusation of a crime. And in July, Congress increased ICE’s budget three-fold, to $29.9 billion.