Ricochet is the best place on the internet to discuss the issues of the day, either through commenting on posts or writing your own for our active and dynamic community in a fully moderated environment. In addition, the Ricochet Audio Network offers over 40 original podcasts with new episodes released every day.
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
Illegals should be sent home. If they want due process in a court, charge them with illegal entry, convict them, jail them, then send them home with a permanent ban once their time has been served.
I’m all for jailing any illegals that are here illegally – if they demand due process which means a likely guilty verdict for illegal entry.
Going “full Gestapo” asking for papers will be the likely outcome of this insane defense people are making for illegals.
Their choice if here illegally= go home or demand due process. Due process = charge them with the crime of illegally entering, they will be found guilty if they didn’t enter legally or they overstayed their visa, jail them. Anyone found guilty—-permanent ban.
Actually, most states you have to have been in the act of committing a crime or something. There’s all kinds of examples. Even driving laws usually say that you must present identification upon commission of a crime or infraction, leading to a LAWFUL stop. It’s actually illegal just to stop someone and demand ID, without a valid reason. Unfortunately cops very rarely get punished for violating ANY law, including that one.
P.S. Any contrary experience you may have had in the military, is irrelevant. Civilian law is different. As it always has been, and must remain.
An aspect that still confuses me is, why should the review process for someone who avoided or evaded border control and entered the country be different (more involved) than the review process for someone who presents themselves to border control at the border? The review process at the border is quite perfunctory.
We seem to be rewarding those who successfully evade border control by letting them have greater rights because they broke the law than they would have had for following the law.
So right, Tabby. I am not getting why there are suggestions that all these status questions require a courtroom to resolve. Verifying that the identity given when questioned matches a birth certificate or passport or drivers license doesn’t even require a high school degree. Like at the border. Or an airport or drugstore or bank or paying by check in a grocery store.
Why create such an elaborate and costly mechanism?
It’s not a “Trump issue”. You don’t think the Biden/Obama administrations wouldn’t use ICE to screw with their enemies if the opportunity presented itself?
I wouldn’t be so paranoid if there wasn’t so much evidence from the past 15 years of Democrats weaponizing the executive branch.
People at Ellis Island were screened before entry. That’s the whole point. Illegal immigrants evade official border crossings for this very reason. Once they are in the country they are (arguably, maybe) entitled to due process precisely because the state must first prove whether or not they are in the country legally.
That means every US citizen is required to present proof of citizenship at any time, no?
Sounds like a great way to deport homeless people that have no identification.
Indeed, one argument against amnesty is that it discriminates against wannabe immigrants from countries other than those in Central America. Why should Central Americans get to cut in line?
Does “due process” require a courtroom?
That’s a huge problem. I had hoped that in “draining the swamp” Trump would take on that problem and provide protections against an agency that acts as lawmaker, enforcer, and jury all-in-one, instead of making the problem worse.
People at Ellis Island are not “here” in the same sense that people who got through the procedure at Ellis Island are “here.” People at Ellis Island are at the gate where the administration gets to decide whether they can come in or not. And at that point it’s completely an administrative decision, as far as I know. I don’t know that people at that point have any recourse to additional “due process.”
What makes you think Trump’s people would ask? A Trump who picks a number out of his fecal orifice and claims that’s the amount of money we spent on Ukraine is not a Trump who is into asking questions before taking action.
I don’t normally carry my passport with me unless I’m traveling someplace where I might cross the U.S. border. I do carry other ID most of the time, but my surname is sometimes mistaken for a Hispanic name. It’s not a common mistake, but it does happen now and then. As sloppy as Trump and Musk are with data, that might be enough for them to assume I’m here illegally.
Which makes it an advantage to the “immigrant” to come in illegally instead of following the correct process. How nuts is that?
No, it doesn’t.
Administrative enforcement is not some novel overreach. State and local health inspectors don’t need a judge to shut down a restaurant. It is all only a problem if elected officials, the news media and judges tasked with hearing appeals blow off the need for honest, lawful, transparent enforcement.
Accountability can and should take many forms and exist on several levels. But elaborate, costly, time-consuming litigation should be not be a required or routinely expected element.
I am unsympathetic to the argument that some requirement to produce ID would result in deportation of the homeless. I am similarly unpersuaded that an ID requirement is a voter suppression tactic. Deportation typically requires a determination of country of origin anyway.
If someone attempts to cross in regular order at an actual point of entry and he forgets his documentation, they send him back to get it.
If someone attempts to cross illegally wherever he so choses, what should the authorities do?
Exactly. It shouldn’t be made so expensive that it’s beyond the reach of an innocent, home-owning born-in-the-USA citizen of the United States who doesn’t want to be deported.
It’s a good argument for better border control.
Then how does law enforcement know from which people it’s allowed to demand identification?
That’s the problem though, when they’re not apprehended AT THAT TIME.
Shifting some onus of responsibility and accountability could help in many areas.
Jail cops who make false arrests.
Jail immigration people who wrongfully deport a legal resident or citizen.
We’re told they’re held to a higher standard, it’s long past time for them to prove it.
I think part of the problem is that Trump and the DOJ are in a hurry, and that can be understood when you consider that there may be 20 million illegals in the country and only so much time to deport them. I have at times been tempted to favor reforms such as you suggest, and probably will continue to be interested. But getting something like that is going to slow down the process even more.
Over at NR Andrew McCarthy suggests that Trump can expedite matters by telling the truth and letting the DOJ maintain its credibility:
Here are his closing paragraphs:
Why the Trump DOJ Must Be Forthright in Its Deportation Court Clash
In many cases the law already exists, such as federal law against violation of rights under color of law, which came about in large part due to bad cops, prosecutors, and judges, in the South, and could do the same again.
This brings up again the issue of some of the mental midgets inhabiting the federal courts.
Which gets me to this again:
Your “what ifs” are a waste of my time. I could play the same game. What if Trump misses ~10% of illegals and criminals in that 10% kill 500 Americans, sell enough fentanyl to kill 1000 people, and run 100 young women as sex slaves?
It isn’t that the Constitution has always allowed this but that lefty Democrats, including Marxists and bleeding hearts, want this now even if it drains the country financially, increases crime, and turns us into the countries the illegals left.
We are entitled to be prosecuted if we break our laws. So can they. They aren’t entitled to be here. They aren’t entitled to healthcare at our expense.