Khalil Ruling Triggers Outdated "Privilege" Debate

WASHINGTON - April 12, 2025 - PRLog -- The decision by an immigration judge clearing the way for the deportation of Mahmoud Khalil, is being defended by labeling his presence in the U.S. as a "privilege" which can be revoked arbitrarily, but that type of legal analysis is outdated, suggests public interest law professor John Banzhaf.

The argument that Khalil is not entitled to due process because remaining in the U.S. as a legal permanent resident is only a "privilege" and not a right, is based upon two long outdated legal beliefs:
* That because being in the U.S. is only a privilege, permanent residents have no right to due process AND
* That due process always requires a formal hearing with evidence and many other procedural protections

Those who rely upon that distinction overlook which is known as the "Due Process Revolution." . .

Indeed, in one famous case, the Supreme Court held that due process might involve nothing more than a simple statement to the accused of the reason for the denial, and an opportunity for him to make a brief response in defense.

In other words, as law professors have taught for years, due process means only the process (procedural protections) which is due under the particular circumstances. . .

Once this flexibility regarding procedural protections was recognized, the Supreme Court and lower courts jettisoned analysis based upon privileges vs rights, and instead simply relied on the words of the Fourteenth Amendment: "nor shall any State deprive any person of life, liberty, or property, without due process of law." . .

Thus, since arresting and deporting an alien, much a person who has legally received permanent resident status, obviously involves depriving a person of liberty, due process applies, and Khalil is entitled to advance notice and some opportunity to defend himself appropriate to the circumstances.

That's why, in the deportation case of Trump v. J.G.G., which involves deporting aliens who clearly enjoy far fewer legal protections than permanent residents such as Khalil, the majority of the Supreme Court said that:

"'It is well established that the Fifth Amendment entitles aliens to due process of law' in the context of removal proceedings. [citation]  So, the detainees are entitled to notice and opportunity to be heard 'appropriate to the nature of the case.' . .  For all the rhetoric of the dissents, today's order and per curiam confirm that the detainees subject to removal orders under the AEA are entitled to notice and an opportunity to challenge their removal."

But whether the denial involves deportation of a legal resident or an illegal alien, grants to universities, the ability of lawyers to appear in a court, etc., due process applies, says Banzhaf.

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