The Costs of Illegal Immigration and the Limits of Due Process

For our Federalist Society Chapter at the University of North Dakota School of Law, we brought in Hans A. von Spakovsky of the Heritage Foundation to speak about the costs of illegal immigration and due process.

Von Spakovsky opened his lecture by detailing the data and legal burdens that illegal immigration imposes on the United States.

Crime statistics

“Federal law prohibits most welfare payments from going to people who are in the United States illegally,” he said. “But there are still all kinds of benefits (such as welfare programs) and public costs that arise.”

He pointed to Texas as an example.

“Texas is estimated to incur enormous expenses - not just in welfare but also in law enforcement,” he noted, citing state data. “The Texas Department of Public Safety is the only state agency that keeps detailed statistics on crimes committed by illegal immigrants.”

According to von Spakvosky and the Texas Department of Public Safety, from 2011 through September 2024, 459,000 criminal aliens were booked into Texas jails. The Department of Homeland Security confirmed 330,000 of them were in the country unlawfully. Those individuals were charged with 585,000 total crimes, including 1,086 homicides, 76,293 assaults, and 68,401 drug charges, in addition to burglaries, thefts, and sex crimes. He described these as hidden costs that strain state budgets and public safety systems.

Due Process & Constitutional Rights

Von Spakovsky said a common misconception is that all immigrants - lawful or not - enjoy the full set of constitutional due-process protections.

“People often claim that illegal aliens have the full panoply of constitutional due process rights,” he said. “That’s simply incorrect.”

He explained that immigration cases are civil, not criminal, proceedings, a distinction recognized in Fong Yue Ting v. United States and reaffirmed in Dep’t of Homeland Sec. v. Thuraissigiam.

“When ICE detains an alien, they don’t have to read Miranda rights - there are no Miranda rights in a civil proceeding,” he said. “The government also doesn’t have to provide an attorney if one can’t be afforded.”

The Supreme Court has repeatedly upheld the government’s broad authority over admission and exclusion (see Knauff v. Shaughnessy and Kleindienst v. Mandel)

Clarifying the Legal Framework for Due Process

While those limits exist, immigration law still guarantees baseline procedural protections: notice and an opportunity to be heard. Non-citizens who fail to appear after notice may be ordered removed in absentia, and that missed hearing is deemed a waiver of further due process.

A prior hearing satisfies due process and no new hearing is required simply because time has passed. (See INS v. Abudu). DOJ data show that during FY 2023, 231,095 removal orders were ordered in absentia. In 2025 (the third quarter), there have been 218,773 in absentia removals.

A critic claimed the Trump administration “falsely” labeled certain categories as illegal aliens. Federal law, however, defines an “alien” as “any person not a citizen or national of the United States, and those “present without admission or parole” are inadmissible.

Entry without inspection remains a misdemeanor. Administrative measures such as parole or temporary protected status may defer removal but do not retroactively legalize unlawful entry.

Free-Speech Rights & Democratic Self-Government

Von Spakovsky also addressed First Amendment limitations for noncitizens. He referenced a Massachusetts case in which a judge ruled that foreign students on visas had the same free-speech rights as U.S. citizens.

“That decision will not stand,” he said. “The Supreme Court has long said that aliens can be excluded entirely from activities that are part of democratic self-government.”

He cited Bluman v. Federal Election Commission, which upheld the federal ban on foreign nationals making political contributions.

Asylum

Von Spakovsky distinguished temporary protected status (TPS) from asylum, noting that the two are often conflated.

“Asylum law was created during the Cold War for those persecuted for specific reasons - race, religion, or political opinion,” he said. “But it’s been stretched far beyond that.”

He cited data from the Department of Homeland Security indicating that about 90% of asylum claims are not granted.

TPS, codified at 8 U.S.C § 1254a, is “entirely discretionary,” and federal law bars courts from reviewing those determinations. Nevertheless, von Spakvosky noted that some judges have issued injunctions despite this prohibition.

“That’s why the Supreme Court recently had to step in,” he said, referring to the Court’s emergency stay of lower-court rulings that blocked the Trump administration’s TPS terminations.

Fiscal Impact & Enforcement

Turning back to economics, von Spakovsky warned that granting amnesty or citizenship to the existing illegal-immigrant population would impose substantial fiscal burdens.

“When we looked at the cost of granting amnesty and citizenship to all current illegal immigrants,” he said, “the net cost to taxpayers was estimated at $6.3 trillion.”

Since January 2025, about 1.6 million illegal immigrants have self-deported.

“The more money we spend handling illegal entries,” he said, “the less there is for lawful immigration processing.”

Closing Thoughts

Von Spakovsky concluded with an analogy:

“The aliens we allow into the country are like guests in your home,” he said. “You can invite them in, but you also have a right to ask them to leave.”

He closed with a quotation from the late Barbara Jordan, former chair of the U.S. Commission on Immigration Reform:

“Credibility in immigration policy can be summed up in one sentence: Those who should get in, get in - and those who should be kept out, are kept out.”

More information about Hans A. von Spakovsky - also here is his podcast!