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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
1920?
In the sense of “impossible to prove a negative” that could be a problem.
It doesn’t matter how difficult it is. Is it not a fundamental principle that the onus is on the state to prove guilt, not on the accused to prove innocence?
Indeed it is a problem.
If you want to quibble, it is “how much substantive due process is one afforded?” vs a more Canadian “how much procedural process is one afforded?”
?? See the plaintiff.
The difficulty depends on whether I had it with me when Trump had me pulled off the streets. And who do I present it to? Who is going to look at it?
You mock me, sir. Up with this I will not put!
Ultimately if they want to get you, they’ll get you. If it’s too difficult to deport you, they can just arrange for you to be killed by a cop or something.
But seriously, do you think that’s more likely with Trump, than with Biden?
Due Process is like Freedom of Speech. Once you limit it for one group there’s inevitable mission creep. If Due Process is used to serve dysfunctional ends, then the problem is the process- which can be fixed.
Are youze guys serious? You think clear rules open the door for American citizens to be deported? Maybe in the 1840s when records weren’t as complete or easily verifiable as they are today. So on the off chance that one guy can’t remember his name, where he lives, where he grew up, what schools he attended, what day he was born, what city he was born in – and is improperly deported – we need to give every one of the 30M illegals full protection?
Come on, this can’t be the reasoning for elaborate due process. I don’t need to have my birth certificate on me at all times to prove who I am. They took my fingerprints at the hospital that delivered me.
These hypothetical, extra long shot contingencies are not what should serve as the basis for immigration policy or law.
I want it to be as difficult as possible. It increases the odds of it not happening.
Yes, it’s just as likely with Trump as with Biden. Both are vindictive scofflaws.
Quite. And the people who are THAT paranoid about things, should be clear that IF they want to get rid of you, they CAN and WILL, and they won’t need to use deportation.
Cute.
There is a real issue as to what process is required. If we hold that all 10 or 30 million illegals are each entitled to a jury trial and federal appellate review prior to deportation then that is a de facto surrender and the end of the rule of law while pretending it is a celebration of civil rights.
You missed the point of the driver’s license analogy. The fact of exercising rights of due process does not undue the legal presumption of guilt pursuant to the statute nor restore privileges lost.
In the same way it was once the law to remain in Mexico while an asylum claim was processed, the appeal of a deportation done lawfully and subject to reviewable processes should be filed remotely. If a court accepts the case, the petitioner can return for the litigation. Wrongful deportation is grounds for civil damages if a suit is warranted.
We just can’t afford to pretend that the system can operate at its already rather leisurely pace to deal with this volume. There has to be streamlined processes that eliminate the incentive to delay and overwhelm the system.
Hypotheticals have taken on a whole new meaning after seeing what Trump has been doing with respect to Russia, Ukraine, Denmark, and Canada.
They don’t have to use deportation, but if the deportation route generates more, “Winning!” memes, that will be the option to choose.
But if you’re still alive, there can be questions, and media inquiry from places that want to stick it to Trump at every opportunity. If they kill you, you’re out of the way permanently and no longer a bother.
The American Embassy in your new country has procedures for document replacement. After your tearful reunion in front of the media at the airport with loved ones upon your return, your lawyer will step forward to announce your suit for damages against the USA for wrongful arrest and whatever else can be charged. The USA will likely settle because discovery involving incompetent enforcement personnel in a high profile case is invariably embarrassing.
Of course, if you punched the arresting ICE agents, actually did go before a immigration magistrate and said “bite me, you fascist pig” while refusing to give your name, the deportation would still be illegal but the settlement offer will be a lot lower.
I wonder which branch of government the American Embassy works for.
But before we get too caught up in all of this, it might be worthwhile to note that the question I responded to was the first paragraph of the OP:
I answered the question of “to what extent,” and that is: to the extent of determining who is here in this country legally or not. There is no way I would want the Trump administration or any other administration to be the sole arbiter of that determination. It doesn’t honor the Constitutional separation of powers. People who think the CIA can do terrible things all around the world but who don’t think the executive is capable of skullduggery in the exercise of unopposed power are weird people.
Prove to whom? An ICE official? An administrative law judge? A magistrate? If the United States government can find no record of your birth, a date of entry into the country and thus formally requests proof of legal status, is the failure or refusal to do so enough proof? Does there have to be some additional process? If so does that bar deportation until it is completed?
The objective here has to be to avoid extended process and to effectively shift the burden of proof where the illegal has not offered any substantive response to the request for proof. If you are caught driving without your license, that is a per se offense and a presumption of a crime of being unlicensed that must be disproved by some effort by you or the cop to prove legal status.
It seems annoying and vaguely un-American to make legal requirements to carry ID always and produce it on demand but something analogous is probably coming.
I don’t think we have to go full Gestapo (“your papers please”) given how much the government already knows about us ( for better or worse) and available methods to ascertain identity, it seems likely that determining non-citizen status is pretty doable.
The Executive branch does lots and lots of adjudicatiing all by itself. Taxpayers have a losing record in tax courts run by the IRS. The FTC and countless boards and agencies have original jurisdiction over rulebreaking violations. You can appeal their rulings to a federal district court if you can afford a lawyer skilled enough to overcome the judicial presumption of bureaucratic wisdom and expertise.
In other words, “Trump” (the Executive branch) will be adjudicating your complaint about injustice done by his minions. Checks and balances only works on a macro level on big issues. At the everyday level, there is no balances without checks to good lawyers.
Of course, the truly paranoid just believe that Trump will have their lawyers deported too.
Again, what part of the words “any person” is confusing to you? MAGA keeps telling me this is supposed to be the restoration of the Constitution and adherence to its clear meaning. Or is it just the parts we like or find convenient?
You want a justice system that operates on a “presumption of guilt?”
“So we kinda know what the Constitution says about your civil rights but we’re backlogged and kinda in a hurry here…” is an interesting legal theory.
Let’s expand the immigration courts. Congress has the power. Limit the expansion to two years and get the job done correctly.
How many immigration judges – and buildings, and support staff, etc – do you think would be required to deal with umpteen-million illegals in 2 years?
People are here either legally or illegally. If illegally, send them home immediately. We did it all the time for people at Ellis Island for far less than an illegal activity.
So what. If we make it hard to get a visa because we don’t want or need them, tough luck. Stay away.
They must produce proof. If a cop pulls you, is it up to him to prove you don’t have a license or you to peace you home one.
Can you think of when you don’t
Did you fail to produce on ID, birth certificate, passport, or visa when asked?
Require them to request asylum at our embassy in their country.