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Due Process And Immigration?
To what extent should people who have entered the country in violation of the country’s laws (i.e., illegally) be entitled to “due process” before being removed from the country?
Ricochetti, please help me process the concept or principle. As a lawyer I have no doubt that there are details in statutes, the Constitution, and prior court decisions that lawyers and others can argue ad infinitum, but I’m trying to think through the principles, mostly so I can discuss it with non-lawyers.
Several commentators have expressed concerns about the lack of formal processes (“due process”) prior to the recent removal of some people who had entered the United States illegally, to a prison in El Salvador.
But why does the country owe these people “due process”? Had those people presented themselves to immigration border control authorities at the border before entry, the country would not owe them “due process” before deciding whether to let them in. Or would they? Why does the country owe more to these individuals just because they avoided an initial encounter with immigration border control at the border, and for some amount of time successfully avoided doing what they were legally obligated to do (ask permission to enter the country)? Why should it make a difference in “due process” obligations whether the first time the person encounters immigration border control is at the border or somewhere inside the country?
By the way, as I see it, the people being removed are being removed because they entered the country illegally. That they supposedly have violent criminal backgrounds or are members of violent gangs is the reason for prioritizing their removal, but not the sole reason for their removal. Some of the “due process” concerns I have read or heard pertain to whether or not these people are actually gang members. But I don’t see that distinction as relevant to the question of whether they can be removed because they entered the country illegally.
And I understand that the reason these people were removed to El Salvador rather than to their home country of Venezuela is that Venezuela refused to allow them back in.
I can kinda understand having a little more process when revoking previously granted permission to enter the country (i.e., revoking a “green card” or a visa) because the person violated the terms of the permission. But I still don’t see that those processes need to be as stringent as the full criminal due process requirements. Being sent back to your home country is categorically different from being sentenced to prison or to death.
What is a principled reason that a country should be required to provide a person with the right to extensive processes before the country decides whether to let that person into the country? Or if the person avoided entry barriers, before the country decides to remove that person from the country once immigration border control finally encounters the person? What am I missing?
Published in Law
It’s a tricky one.
Do any non-citizen alleged criminals have a right to due process?
IfWhen I, for example, visit the United States for a Ricochet meet-up, and Judge Mental (inevitably) files a complaint to police that I harassed him sexually, am I entitled to due process?To the extent that we should first be certain they are among the category of people who have entered the country illegally. I would not like it if Trump deported me because he claims that I entered the country illegally, and if there was no process for contesting that claim.
The root of the mischief is Plyer v. Doe (1982). SCOTUS ruled 5-4 that Texas cannot require citizenship to be eligible for public schools and that the equal protection clause of the fourteenth amendment applies to persons in the US even if here illegally. That is why governments forbid agencies from (or cops) from asking about citizenship lest it be found a rights violation. It is also why there can be tiresome, creative claims for process even for those that are reducible to the ludicrous claim that enforcing immigration against those who break law might be a civil rights violation.
The other gapingly large loophole is asylum. We do not have the resources to adjudicate these overwhelmingly bogus claims so there is a court date in the future assigned which most applicants blow off. Oddly enough, failure to show up for the hearing does not establish an automatic deportation status and a warrant for arrest and deportation. People who blow off the process offered should not be allowed to demand more process. But they can and do.
The reality is that the system is designed as if there is some manageable number of good faith claims by cooperative applicants with matters handled and prepared by counsel with careful attention to whatever procedures are required to protect fourth, fifth, sixth and fourteenth amendment rights. The reality is chaos, cynical manipulation and overwhelmed resources which makes a mockery of any process.
The only process that should be required is to show ID (proof of US citizenship, visa, or evidence of legal residence) to authorities if requested or, once in custody, to ask for a chance to offer highly plausible reasons why there is no such documentation to a magistrate or judge. Additionally, student visas and other guest status should be expressly subject to the whims of the Secretary of State. If the US developed adversarial relations with a foreign entity, any such foreigners here should be subject to ejection even if personally innocent. Also, there is no First Amendment Right for guests to insult the values and interests of the USA or for whatever reason the Secretary otherwise deems your presence undesirable. Under the Constitution, Executive controls foreign policy and Congress and the courts don’t get to second guess. This should be under that rubric.
I hate the emergence of a “your papers, please” state but it is becoming necessary.
Asylum has to be limited. International law does not allow forum-shopping. You are supposed to request asylum in the first country you cross into. And declaring escape from a bad economy, chaos and bad government cannot be sufficient grounds because that would make 2-4 billion people eligible for asylum.
SCOTUS and/or Congress needs to get rid of Plyer v. Doe and remove the remaining obstacles to fixing the problem.
If you are here legally, I have no problem with “due process.”
Same process we have, show your ID/passport. If they entered legally, there will be a record of entry and a Visa, if required. If they entered illegally and we intercepted them and should have tossed them out, toss them out. If they entered illegally, requested asylum and missed the court date, toss them out. If the process makes mistakes because there are too many illegals to process, tough luck. That is an unintended consequence of all this Biden Administration lawlessness.
But what if there is no process for determining whether I’m here legally or not? Keep in mind that Trump/Biden tell lies all the time. If one of them says I’m here illegally so therefore he deported me, what recourse do I have when I’m dumped off the plane in Caracas.
Nobody is entitled to be here. They enter and remain at our pleasure. Trump has offered a period where they can identify themselves and be deported but may apply to return. Illegals who refuse to comply will be evicted and banned from returning. It is simple enough. If they commit a crime, bye bye. If the protest against the country, bye bye. Let them find a country more appealing. To me, immigration control isn’t an Article 3 power.
What if Trump tells Venezuela: These people are yours. Their documents are forgeries. If you don’t accept those people, we take military action in 24 hours.
He’s done crazier things than that to Ukraine, so why not here if he wants to get rid of me badly enough, and can get his fans to generate a few “Are we tired of winning yet?” memes with my photo on them?
Glad you’re asking these questions, I’m surprised at the rights non-citizens seem to have. Evidently, an illegal can lead protests against the US, commit violent crime, overstay, become a financial burden on the US, make a phony asylum claim (after jurisdiction shopping) and fail to appear at a hearing concerning your residency – and still have a shot at remaining.
Considering that there are millions of such characters currently resident here, that could turn into a lot of litigation. That’s also a lot of expense that the US should not have to bear, even for individuals who were tacitly and temporarily invited via visa. What country would do that for Americans?
We need some clear rules.
Section 1 of the 14th Amendment:
After the amendment lays down the law about abridging “the privileges or immunities of citizens,” it then talks about due process and twice says “any person,” not “any citizen.”
And when one of our citizens finds themselves afoul of another country’s laws we like to point out how we treat their citizens. One could consider it the Golden Rule writ large on human rights. SCOTUS dealt with this in Yamataya v Fisher, 189 U.S. 86 (1903).
I assume the claim would be that they must have “due process” to determine that they didn’t follow “due process” the first time.
Both Gutfeld and The Five yesterday made the point that much of the left is all about “process” rather than results.
And it sure wouldn’t surprise me if the millions of illegals were let in largely because they knew the “due process” to remove them might take decades.
But they insist “due process” is required to determine IF YOU ARE here legally, or not.
But they require “due process” to determine that someone DID miss the court date, etc. And then probably “due process” to show that the previous “due process” was followed…
But the thing is, the “due process” stuff can be extended indefinitely, if they want to push it. Capital punishment should have taught us that, if nothing else has.
Ultimately the resolution might require a determination of how much “due process” an illegal alien IS actually “due.” People use the term “due process” a lot, but how about determining just how much is actually “due?”
Does “due process” for each illegal require a vote of the entire US population? Why, or why not?
That’s interesting. How did they square that with Obama and the leftists who criticize procedural democracy in contrast to substantive democracy (i.e. “results,” i.e. the left’s priority)?
I think they only criticize conservative procedure.
And I notice that they never claim there should be “due process” before letting people IN.
But due process requires that you prove that I am in the country illegally.
So, the argument is that no person ever has the right to refuse to present identification whenever demanded by the state?
Due process is required to fine, jail or otherwise impose a sanction. An illegal cannot be denied that which he never had in the first place–the right to be here. That is not a loss of property or a sanction any more than would be forcing a thief to yield the bag of jewels he was just caught stealing. The only process required is an administrative determination of status. There is absolutely no reason why that determination cannot be streamlined and with limited appeal of that determination.
A licensed driver who refuses alcohol testing automatically loses his license. He can take the bus or a cab to court for a trial date if he wants one–he cannot use that license and drive to the hearing. By analogy, an alien deported for ostensibly illegal status should be able to file a claim through the US Embassy once back in his home country if he thinks he had a good reason sufficient to warrant his return but he should not get to remain illegally and indefinitely to pursue that claim in an overwhelmed system.
The main civil rights concern is mistaken deportation (see, Born in East LA (1987) Cheech Marin’s character is wrongfully swept up in an ICE raid and through a series of Catch-22s implausibly cannot acquire papers to get back across the border). That should be addressed by the nature of the criteria used to identify and determine status and the use of technology and RealID.
We’re obliged to spend hundreds of billions of dollars to adjudicate the exact status of millions of line jumping illegals over concerns for their due process? We didn’t invite them, we don’t have to pretend they have a right to be here. If we did issue a visa or green card, we have to spend a fortune to get them expelled when they rebel against our values (antisemitism, for instance), perpetrate violence or disrespect property laws?
What we cannot abide the endless appeals of millions of foreigners gaming our system. What a bonanza for court appointed attorneys!
My home country is the United States. How do I contest the claim if Trump has deported me to Venezuela?
With counsel and the ability to present evidence. Or is there something about “any” that is not clear?
There is no comparison between driving and enumerated rights. On any level.
Silly me. I’ve been citing SCOTUS instead of Cheech and Chong.
This is really the question and the question has already been answered by all 3 branches of the government. Everyone gets due process unless the president decides it is too risky, because the president thinks you are an enemy/terrorist and dangerous. Congress could change the law or the president could refuse to enforce use it or SCOTUS could reverse previous decisions, but today it is old law.
Asylum claims could be fixed by requiring proof of applicants: your identity, your reason for asylum, the reason the USA is closest safe country, why the USA is the best country for you. Nearly all people could be turned away at the port of entry.
I gave up on trying to pen law review articles around the time of the Model T, but if I can pass the buck:
Try to wade through (at least a good summary of) Department of Homeland Security v. Thuraissigiam (1920). It doesn’t really speak directly to due process as it involves the Suspension Clause of the Constitution, but Alito’s opinion does provide some fodder for limiting due process rights.
That’s what I’m afraid of.
How difficult is it to present your United States passport or birth certificate?
In Venezuela? Could be tricky.
I (don’t really) hate to do it, but I gotta make a pedantic grammar quibble.
I think the correct phrase would be, “how much process is a person due?”, not “how much due process is a person due”.
The whole point of the amendment appears to me that everybody an equal amount of process is due to every person, but the amendment does not specify the nominal amount of process that is due. It’s basically saying that congress cannot prescribe differing amounts of process for different groups of people.
So, how much process does a US citizen get when they cross the border somewhere other than an official border station? A non-citizen should get the same amount of process.
Or something…
I like this argument, but it still doesn’t seem to absolve the state of the need to prove that the individual has no right to be in the United States.