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.
Illegal Immigration: How Much Process is Due?
In comments discussing due process in deportation cases (see, Due Process and Immigration?), there was a lively debate about how much process is due.
In this piece on the indispensable Powerlineblog.com, we get this stunning statistic about the backlog of immigration cases:
You may have seen headlines about the amazing number of cases pending, some 3.7 million, nationwide. That works out to something north of more than 1 percent of the nation’s population is currently in official deportation proceedings. More, in that some cases involve more than a single individual.
The blog author makes this observation about the numbers in his home state of Minnesota:
Following the national trend, the backlog at the Minnesota office has dropped slightly in 2025, but still stands above 41,000 cases. I previously calculated that, at the current rate cases were being closed in Minnesota, it would take nearly 18 years to clear the accumulated local backlog, assuming no new cases were added. In other words, some cases active today would still be around on the cusp of the first Barron Trump Administration.
My home state of Maryland has reduced the local backlog from 59,000 in 2024 to 53,000 so we are merely ten years away from clearing the backlog. Take that, Minnesota.
A sobering statistic is that the 3.7 million are only those who have applied for (or were caught and required to show up for) a hearing at the DOJ’s Executive Office for Immigration Review. What process is due for the estimated 8 to 20 million additional illegals not currently awaiting process in immigration courts?
The logistics of implementing some acceptable process, made exponentially worse by the criminal malfeasance of Biden and Mayorkis, raises the issue as to whether there is a breaking point such that the American people and its government must either surrender to lawlessness or else betray fundamental commitments to due process.
By way of some historical comparisons and insights, the estimable Judge Harold Greene wrote about the experience of handling the overwhelming surge of criminal cases in the wake of the MLK riots in DC in April 1968:
Especially during periods of stress and strain on the system, let it be said that the courts continued to operate a system of justice which conforms to American standards. Let us not play into the hands of those who believe that they can overwhelm the judicial process as perhaps they may overwhelm other institutions in our public or political life. During 1967 and 1968, there were civil disorders in hundreds of major cities and smaller population centers. For the courts in all of these places to have abandoned judicial procedures for the sake of expediency would have been a major stain on our American system of justice and of law.
* * *
If we permit them to goad us into abandoning justice and liberty because we are exasperated, they will have won and America will have lost. We must not, and we should not, permit this to happen.
Judge Greene was writing about 6,000 arrestees in custody who needed to be arraigned in a timely fashion (one or two days, not weeks). None of the 3.7 million cases pending in the DOJ Immigration courts are in custody such that the clock would start ticking on the right to a speedy trial—as it does for any person in custody who was not a participant in J6.
Do we need a tenfold increase in immigration court facilities? Does the failure to make use of the existing process, either by remaining unreported or blowing off a hearing, establish a presumption of guilt rebuttable only by a clear and immediate demonstration of legal status at the time of arrest? Can frivolous misuse of process result in an automatic, permanent bar to re-entry? Does the USA have to provide legal counsel to 20 million illegals prior to deportation? What if the lawyers for pro-illegal immigration NGOs persuade the bulk of the other 20 million to apply for hearings followed by appellate delaying tactics and class actions for alleged procedural wrongs?
Obviously, other policy changes, such as enforcement of hiring rules, no more driver’s licenses without proof of some form of legal status, etc., could result in more self-deportation. But the task of creating some faster, far more efficient process that can withstand the inevitable assault of leftist lawfare by providing sufficient notice and opportunity still needs to be accomplished.
Published in General
I have personal recollections of the events that Judge Greene wrote about. The entire DC Bar (including my father) was drafted to come to the courthouse represent arrestees at 24-7 arraignment sessions.
On our way to the courthouse downtown, the soldiers in charge in the curfew-enforcing checkpoints (huge barriers, heavily armed men, fiercely bright lights all like what I always pictured it would be like to leave East Berlin) scolded my dad for bringing his teenage son (always education, he thought I should witness this historic event).
I sat in a courtroom and got to watch how a legal triage evolved with lawyers and judges not used to criminal matters were guided into a functional process. My father’s first client was a 50-something year old belated looter whose only criminal record was manslaughter in Mississippi. Dad got him personal recognizance in lieu of bail or confinement which was much easier to do given the sheer volume of prisoners. (He joked later that because his client had killed another black man in 1950s Mississippi, he could have argued that was probably only a misdemeanor at that time.)
The holding cells below were so packed that no one could sit and the yelling was deafening. It was quite a sight. Cops and bailiffs were yelling right back. It really seemed like the system and the whole city was dissolving right in front of me.
This, above all, needs to be done. Otherwise we are prisoners to our own system.
The problem today isn’t like the one Judge Greene faced. When the garbage children rioted in the ’60’s, they were citizens. Further, an individual’s participation in a riot seems like a thing that would have to be proven in each case.
Every illegal alien is prima facie in violation of U.S. law. It seems to me that all we need is one ruling from one backwater judge that any illegal, once identified, may be removed from our borders with no further process. If little judgy wants to assert himself, he can say “must” instead of “may.”
The trick is how to ascertain when illegal status is incontrovertible such that there is no need for or entitlement to additional process.
What about a demand for further process despite a complete absence of any evidence to contradict the finding of illegality? My suggestion is that after deportation, the US embassy provide a form in which the litigant states the grounds for a appeal/hearing/additional process to be reviewed by the appropriate tribunal. If the immigration court or other tribunal set up for this purpose finds no reason to issue such a ruling or finding, then there is no more process nor a return to the US to prosecute the claim. The goal being that (a) nobody gets to stay indefinitely with an unqualified claim or application because the process is overwhelmed and slow; and (b) there is still enough process in place to survive challenge.
I am unpersuaded that to much discretionary power for ICE will mean deportation of the homeless and naturalized citizens. At a minimum, protocol would necessarily involve determining a name and a country of origin to determine if and where to ship the arrestee. It is not complete data vacuum.
Illegal immigrants deserve as much process I get at the DMV. Somebody checks your papers and sends away, if they are not perfect. If your papers are good you go to a clerk that serves you, if you have fee money and all your record is clear and tests are passed and …. The DMV deals with millions of people every year, no problem.
Let’s streamline the process:
“Are you here illegally?”
“No.”
“Goodbye.”
*Illegal invader shipped out.*
How much more does one really need in this process?
Without some statutory cover and requisite judicial restraint:
Is “are you here illegally” a custodial interrogation requiring a Miranda warning? Is it a civil rights issue if illegals with one ethnic profile get grabbed more than others? Will a creative federal judge find that every deportation order by every administrative court was defective requiring everybody ordered back in the country for a zillion individual hearings? Will Chief Justice Roberts author some middling opinion that fails to provide the clarity needed, keeping the chaos going?.
Clarification needed: Are you saying that the court is to presume guilt instead of presuming innocence?
Second point of clarification requested (and not directed specifically to you but to the larger membership): I’ve been told again and again that the J6ers were innocent because members of the Capitol Hill Police let them into the building. Did not the federal government under Biden do the same thing? Did they not actively waive these people into the country?
There is a presumption of guilt because if the matter goes to some federal tribunal, it is in the form and nature of an appeal of the administrative decision, not an original trial from scratch. As such, the courts should have substantial discretion about whether to take on the matter at all, something that could be screened routinely and quickly.
It should not be a matter for courts unless there is a substantive reason to challenge an administrative finding of status that passes screening. Or, if the illegal is subject to a term in prison or fines (rather than just free trip home), then full criminal process and all attendant rights would apply.
The argument for J6 innocence (and the new administration has yet to document any such alleged FBI role) is entrapment.
In contrast, Biden had no intention of suckering millions of foreigners into a prosecution trap. Also, non-enforcement is not the same thing as affirming legal immigration status.
Entrapment v Predisposition. In the case of J6 there is more than a smidgen of willingness.
Non-enforcement is one thing. Flying people into the country is another.
When Judge Green was writing, the protestors were the ones trying to overwhelm the judicial system. In the current immigration mess, it was THE GOVERNMENT ITSELF THAT WAS INTENTIONALLY TRYING TO OVERWHELM THE JUDICIAL SYSTEM FOR MALIGN POLITICAL PURPOSES.
What do you do when it is the federal government that is trying to swamp the judicial system? And in fact has vastly succeeded in doing so. It is not us who has put the strain on the system. It is our overlords who have done it with intent to harm us. This is, indeed, unprecedented, and what Judge Green wrote is not even remotely applicable (not just in terms of numbers, but in principle) to what we are experiencing now.
Trump is, again, the middle finger that us peons give to the entire system. Which is rotten to the core. And why we despise the pontificating of our overlords on the question of due process. No one today even knows from whence came the whole idea of due process. And, no, it wasn’t simply the Magna Carta: IT WAS THE INQUISITION! Wherein very careful scrutiny of the writings and activities of those accused of heresy that was employed before turning a suspect over to the State for burning at the stake. Even the inquisitors feared the wrath of God. Today, no one in the federal government fears anything, certainly not God, and will do everything they can get away with, at the expense of the citizenry, which they despise.
You are far too gracious, old Bathos, toward the powers that be.
Apply the same due process (none) which allowed entry to vast numbers of criminal aliens.
When Andy Jackson faced the British in New Orleans, he put marshall law in place until he had defeated the British and finally got on their ships and left. In that interim, he was harassed by a local journalist whom he put on a wagon and shipped out of the city. A local judge over rode his action, and Jackson ignored him. The judge declared him in contempt of court, hauled him before the court, and fined him $100 dollars. Jackson wrote a promissory note to the court and was carried back to his hotel on the shoulders of the citizens to great acclaim and cheering. 25 years later, after a very popular presidency, Jackson was invited back to New Orleans for the anniversary of the battle of New Orleans. He had not paid the note, and declined to come. To get him there, the city forgave the judgement and Jackson attended the festivities.
Can Trump do likewise?
Pray God you never need due process for yourself lest your overlords give you the middle finger.
They already have, many times over, with no due process whatsoever. Did Laken Riley receive any due process? Of course not. Unless you call getting beaten to death ‘due process’. Her killer? He got much more process than due. Including no death penalty because an idiot Bryan Kemp didn’t appoint a prosecutor on a timely basis which resulted in leftist activists getting a court order from a leftist judge for a snap election in which a leftist prosecutor won the position by default. (Now thankfully voted out of office).That is the system you are so fond of. Our overlords have been giving us no due process for a very long time, and they have been giving it to us good and hard. Joe Biden calls that “our democracy. “
My then fiancé came to visit me in Feb of 2003. Her Visa Waiver Program participation would allow her to stay in the US for 90 days. She was coming to look after my 11 year old son, because I was on a warning order to deploy in 30 days in support of what would become Operation Iraqi Freedom.
The immigration officer in Detroit refused her entry and demanded that she be sent home immediately because he feared that she and I would marry (in violation of the Visa Waiver Program) before I departed.
Honestly, that was not our plan but He had the authority and she had to pony up a $7K ticket to return to Singapore solely on his say so.
So any illegal in the US should be afforded the exact same due process. A single individual should adjudicate their entry conditions and disposition and removal should be carried out immediately. Just like it is for anyone arriving at a legal point of entry.
PS. My son had to stay with a friend of mine, until my Stepmom was able to show up to look after him until he went to visit his mom later in the summer. I came home at the beginning of August and he started school on time. My wife and I were married at the end of my deployment in July of 2003 and I returned home at the beginning of Aug 2003. It took until Jun of 2004 for my wife to join me in the US after completing all of the paperwork.
How about: You have 48 hours from time of apprehension to demonstrate your right to stay in the country. Otherwise, out you go.
If you can subsequently demonstrate [from outside the country] that you were erroneously deported, you are welcome back.
Did Laken Riley die at the hands of the state? No, of course not.
How many of your constitutional rights will you surrender so that never happens?
If you’re not “fond” of the Constitution and its guarantees of due process I suppose you’re free to find a system you’ll like better. I hear Tucker Carlson says Russia is pretty great.
Accessories before the fact.
Then so are parents for home grown murderers. Or maybe the doctors that delivered them?
Laken Riley’s murderer should not have been in the country. He shouldn’t have been here if he was law abiding. But we’re back the plain wording of the 14th Amendment and the meaning of the term “any person,” aren’t we? And there’s a way to change that.
Are you nuts? She died at the hands of a Tren de Aragua gang member, completely unvetted, in the country illegally courtesy of Myorkis and Biden and released and coddled by the State of New York and flown around the country at taxpayer expense and housed courtesy of a public university. Everyone of those government officials might as well have been involved in her stoning. Raining down blows on her themselves. None of them were upholding the law as written. Laken Riley indeed died at the hands of the State that ignored law and with malice afore thought endangered its citizens. Were it not for the utter malfeasance of the State, she would be alive today.
But you are a lawyer and have a vested interest in defending a corrupt judiciary. Boasberg is pouring salt on the wounds of a murdered young woman.
And spare us the allusion to Thomas More. This great champion of humanism condemned many to death, including some whom he considered very worthy of being burned at the stake, for…possessing or distributing English translations of the Bible.
What is the 14th Amendment issue?
He got a trial and sentenced to life.
Before that, when caught by ICE, was he entitled to an en bank hearing before the US Court of Appeals and brunch with SCOTUS after he was caught and it was established that he was illegal and a known criminal?
If he were booted out of US back then, he would not have been made a felon nor lost any existing rights or property by being tossed solely on the basis of illegal status. The government had the option of criminal charges for entering illegally. Because they chose not to do so, immediate deportation would have been an administrative action.
Once booted, he could have demanded a pro se appeal hearing by serving process on the US embassy for a suit against ICE/HHS/State and obtaining jurisdiction under The Hague Convention. The claim could be forwarded to the rightful tribunal in the US and laughed off pursuant to the process due that filing.
The 14th Amendment issue is the one brought up in the original post. The Laken Riley murder has nothing to do with that and is not a question of constitutional law.
The only due process due someone at entry is to speak to an immigration officer and then abide by their decision. The due process does not allow one to go before a judge. As I have shown in my own comment above.
Any of these people are free to show their passport and their stamp of legal entry. Showing that they have been allowed in by a immigration officer. They require no further due process than that. Without the stamp of legal entry they are permitted to be deported without further adjudication. That’s the way the legal system works for everyone who follows it.
Why do you insist that they should have additional rights before those of everyone else?
We are beyond the point of entry, are we not?
If they are beyond the point of entry and they have in their passport a stamp saying that they have been allowed into the country then yes they are due further due process rights. Otherwise no.
Again, he could have been given the death penalty under Georgia law, but the prosecutor, a far left liberal elected in a court ordered election after overturning a Georgia statute, when she assumed office, announced that there would be no death penalty prosecutions under her tenure, and so the death penalty was taken off the table completely long before this murder occurred.
As I said in the other thread, if a person who successfully evades border control has more rights and a better chance of staying in the country (court hearing, lawyer help, process delays or even avoiding deportation) than he would have had if he had checked with border control before entry (perfunctory decision by one officer at the border with immediate eviction), then we have created a perverse incentive for people to evade border control and NOT to try to enter the country properly.
The reason why we citizens in border states have allowed for illegal aliens to obtain driver licenses relates to who the victims would be when someone here illegally causes a car crash. That crash invariably destroys our vehicle and mutilates us with serious injuries or even death.
Without a valid driver’s license, the illegal alien cannot obtain car insurance. Then the victim of the car crash has no way to receive maximum coverage for their car repair, hospital bills and loss of time away from work.
I hate that this is the way it is, but that’s what has gone on.
That may be true, but it still doesn’t change the wording of the Constitution. One can be angry that such a situation exists while still acknowledging that it exists and also admitting that until it is resolved in the prescribed manner we’re pretty much going to have to follow the wording of the 14th as it is.
It’s off topic, but as a Catholic, I only heard reverent remarks about “Saint” Thomas Moore.
Only in the last ten years have I discovered who this man really was. I’ll also add that the award wining “A Man for All Seasons” play and movie had helped to cement my positive ideas about this henchman.
I don’t think “guilt” is the correct question, since the action is not to incarcerate but to deport. Anyone who is not a citizen better have authorization to visit or they have to go.