Dismantling the Due Process Dichotomy in Crimmigration Cases

45 Pages Posted: 10 Nov 2023

See all articles by Josh Roth

Josh Roth

Cornell Law School

Stephen Yale-Loehr

Cornell University - Law School

Date Written: September 21, 2023


The U.S. Constitution entitles every person to due process. But nearly fifty years ago, the Supreme Court distinguished the due process entitlement of noncitizens from that of citizens. This Article takes a novel approach to due process for noncitizens in certain so-called “crimmigration” cases by further distinguishing the citizen-noncitizen dichotomy. The Article argues that, as applied to lawful permanent residents, certain provisions of the Immigration and Nationality Act are unconstitutional. The article proceeds in three parts.
Part I summarizes the existing caselaw regarding due process for noncitizens. Part II explores two aspects of crimmigration law: immigration fraud and terrorism. This Part conducts a comparative analysis of the various statutes that penalize fraud and terrorism in the immigration and criminal codes. Part III employs the Mathews v. Eldridge balancing test and argues that in immigration fraud and terrorism cases, lawful permanent residents are entitled to additional procedural safeguards to remedy identified due process violations. This Part then formulates distinct procedural safeguards for lawful permanent residents in crimmigration cases involving fraud and terrorism.

Keywords: crimmigration, immigration, due process, asylum, lawful, permanent, resident, noncitizen, terrorism, fraud

Suggested Citation

Roth, Josh and Yale-Loehr, Stephen, Dismantling the Due Process Dichotomy in Crimmigration Cases (September 21, 2023). 56 Cornell Int'l L.J. (forthcoming 2024), Available at SSRN: https://ssrn.com/abstract=4602401

Josh Roth (Contact Author)

Cornell Law School ( email )

Stephen Yale-Loehr

Cornell University - Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

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