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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?
Discussion (116)
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It's a tricky one.
Do any non-citizen alleged criminals have a right to due process?
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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.
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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.
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If you are here legally, I have no problem with "due process."
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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.
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