Due process for illegal aliens: how far does it go?
This is a huge question and I’m not going to be dealing with it in great depth at the moment. I do plan to write more on it in the future, but for now I’ll alert you to an article Jonathan Turley wrote on the subject in 2018 during Trump’s first term.
I suggest you read the whole thing, but here are some excerpts:
Under current procedures, undocumented persons are dealt with under either §1225(b)(1) or §1225(b)(2). Section 1225(b)(1) allows for deportations for those who enter through fraud, misrepresentation, or without valid documentation. Under the first provision, deportation can be ordered by ICE officials “without further hearing or review” under an expedited removal process. §1225(b)(1)(A)(i). If Trump were speaking of that group, he would be correct so long as there is not an asylum claim. There can be a return without a hearing or judge. Only about 15 percent of undocumented persons have hearings and the Obama Administration aggressively pursued expedited deportations without hearings. However, if an alien “indicates either an intention to apply for asylum . . . or a fear of persecution,” the ICE officials must make a threshold determination if the claims is credible, and, if it is credible, “the alien shall be detained for further consideration of the application for asylum.” §1225(b)(1)(B)(ii).
Other federal law mandate specific protections. Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 it is mandated that “the alien shall have the privilege of being represented, at no expense to the Government,” and “the alien shall have a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien’s own behalf, and to cross-examine the witnesses presented by the Government …” …
There is clearly an ability for the Trump Administration to both shift to a criminal enforcement policy and to expedite deportations. To that end, Congress is moving to add judges and resources to the border. However, the blanket call for deportations without due process would be difficult to square with this prior authority. It is also difficult to square with our values as a nation for those with a legitimate fear for their lives and a history of persecution in their nations of origin.
That’s why, this time, Trump invoked the Alien Enemies Act.
The problem is clear. In recent years the left got very clever, and illegal aliens availed themselves of the information the left provided: it became common knowledge that if an illegal alien claimed he or she needed asylum, that claim must be heard and there were so many illegal aliens coming over that effectively it would mean it would take many years for the claim to be heard. In the meantime, there were plenty of benefits to be had here.
The Trump administration is dealing with a situation now that I don’t think these laws ever envisioned. I think the time is ripe for a new approach that is more in line with the reality that enforcing these laws means the US effectively has no borders.
Were there two million deportation hearings under obama i doubt it the only decision the boasberg determination noted was about uighurs to a third country (it makes you think they have little to argue)
Again, they don’t need asylum. All asylum claims from the Americas should be summarily rejected.
Prof. Turley, “However, the blanket call for deportations without due process would be difficult to square with this prior authority. It is also difficult to square with our values as a nation for those with a legitimate fear for their lives and a history of persecution in their nations of origin.”
Neo is onto something with the Alien Enemies Act. But let me take it one step further. President Trump, by Executive Order, should suspend the writ of habeas corpus as to members of MS-13 and TdA for purposes of deporting them under the Alien Enemies Act.
The Constitution provides that in the event of an invasion and a threat to public safety, the writ of habeas corpus can be suspended.
Lincoln did it. Why not Trump? It’s not like the Left can impeach him, jail him, bankrupt him or kill him. They tried all of that and they failed.
This also changes the conversation and narrative.
I suspect that the WH has gamed this out on super computers.
How many MS-13 and TdA people are in the US? 10,000? I don’t know. But get them out now!
Added benefit is that the average criminal illegal alien might self deport.
How far does due process go? On the Alien Enemies Act issue, the Trump administration is making courts decide whether it goes at all.
I still do not think anyone who knows anything at all about the matter actually believes, or ever believed, that “no process, pull them off the street and put them on a plane to El Salvador” deportations were going to fly with the courts, especially when the inevitable mistakes started rolling in.
A lot of this is political theater. Anytime you can goad your political opponents into taking photo ops with an accused domestic abuser who is also a member of a murderous foreign gang, you’re winning the news cycle.
I also think a lot of this is equal and opposite rule breaking to counteract Biden’s immigration lawlessness. Maybe there’s a creative solution, but I don’t think there’s a good way to accelerate deportation process without Congress, which isn’t happening given the filibuster and the occupant of the White House.
But it’s not going to stand up. Maybe the folks that they actually get out to El Salvador won’t come back, but this is not a long term solution.
Asylum seeker:
“My primo in the Estados Unidos told he’s living large, new car, flat screen TV from Costco, plenty of dinero from the gringo government. I want a piece of that!”
Immigration lawyer/DNC coach:
“No no no! I mean, everybody knows that’s true, but you can’t SAY that. You gotta tell them you’re afraid because back home they beat up homosexuals.”
Asylum seeker:
“But senor I’m not a maricon. I just want to keep up with the Garcias.”
Immigration lawyer/DNC coach:
“I get that. Everybody gets that. Even those stupid gringos understand that practically none of you have anything to be afraid of if you stay home. They’re not buying the crops-rotting-in-the-fields argument anymore and they’re beginning to suspect that the sob stories we’ve planted in the media aren’t true either. C’mon, you gotta help me out! Don’t you know these people are Nazis and racists?!”
Asylum seeker:
“Nazis? Racists? That’s not what my primo told me.”
The judiciary is stampeding straight to the Buffalo Jump. Trump has the complete upper hand here. Right now he is in the don’t interrupt your enemy while he is making a mistake mode.
https://shipwreckedcrew.substack.com/p/dancing-on-the-head-of-a-pin-for?utm_campaign=post&triedRedirect=true
Why do they get ANY due process? They are not citizens, they entered the county illegally. We live so comfortably in this country we engage in fantasy forgetting the stakes are real.
“Why do they get ANY due process?”
That’s the essence of what I was asking in the open thread. The Constitution doesn’t say citizen, but person. But as the Turley quote shows, the situation is much more gray. Whew….the legalities may sink the Trump attempt at getting rid of these criminals.
Physicsguy
If we cannot get rid of non citizens that enter the country illegally we will go the way of every country that thought they were special. Look at Ireland, England Sweden, Germany, et.al. We will suffer the fate of countries that are so comfortable that they confuse fantasy with reality. The results are usually fatal.
Close off the gravy train spigots to SNAP, Social Security, Medicaid, and all other benefits. Ring-fence the criminals and get them out under terrorist-group affiliations. Make decisions on asylum claims by nationality, because very, very few asylum claims are justifiable. They are almost always provably on self-interest grounds for ‘better-opportunity’s’ sake.
@physicsguy:The Constitution doesn’t say citizen, but person.
It does literally say that, but would that imply that (say) Japanese soldiers invading the Aleutians should have had all due process of law in order to be removed? Had any women among them given birth, would they be American citizens?
The words of the Constitution do not stand in isolation; they have to be understood in the context of how American law works.
Cloward–Piven strategy: flood the courts (jails, etc) until our society/civilization falls under the weight of the “due process.”
Aside from ending all taxpayer support from the illegals, employers must also have sanctions assessed. No free money, no free health care and no jobs will at least encourage the non-violent types to self deport.
Miguel @ 5:32 had it right. Hasn’t the protocol for deportation hearings been established by Obama, as well as Clinton and Bush II? Actually all those since Eisenhower (I wasn’t paying attention those prior.) There were no hearings. They rounded them up and headed them out…
As to where we are now: ICE should start with those thousands who failed to appear in court as instructed when given “parole” at the border. Their opportunity to avail themselves of judicial relief was waived by their failure to appear.
Trump and his fans are gearing up for a suspension of the rule of law to those who don’t deserve it. A category that will soon be expanded.
Rule of law left the station sometime ago when leftist trash judges engaged in sedition.
@David Clayton
So you’re claiming Trump is following the track of Starmer and Cameron? Curious choice but hey.
‘not that there is anything wrong with that’ sarc, of course we know the labour plan
which they confessed to Rod Liddle of the Spectator, which echoes the socialists, but also the gaullists in their own way, as the series Marseilles noted, where Depardieu plays a heftier version of Sarkozy, and he relies on the Banlieus, to keep the National Party out, this is the subtext of that sudsy melodrama, in the 90s, when Al Queda was still a shadow of itself, the new Gaullists had pushed for mass deportation, yet it failed for various reasons, probably as much the pouvier occult,the deep state, and events like Bataclan and Charlie Hebdo, were the inevitable result, of course the likes of Zemmour as well as Le Pen noted this, and were ostracized,
across the pond we find a similar dynamic, almost 15 years of tory rule, left very little imprint on the nation, mass immigration, that was enabled by priti patel, their version of miss haley, to cite one example, continued even after the pledges by the tories, hence the collapse of the latter and the rise of the reform party,
https://lpeproject.org/blog/how-anti-trans-attacks-forge-the-anti-social-state/
this is the bigger picture, yes they are still flogging that dead horse,
“Rule of law” does not mean “rule by lawyers” or indeed “rule by judges”. Due process has to be performed in good faith in order to actually be a good thing. The vast majority of those demanding “due process” in this instance are not doing so in good faith.
In any event, deportation is not a punishment–a negative consequence of an illegal action, sure, but it’s not something you are sentenced to.
An excellent example of due process in bad faith to frustrate justice is presented in
Mark Twain’s Roughing It. For people who don’t click links, Captain Blakely intends to execute the murderer of his mate, but the other captains insist there should be a jury trial. Blakely doesn’t understand why, as the identity of the murderer and fact of the murder are open, notorious, and undisputed–indeed witnessed by the very captains demanding “due process”. Twain skillfully depicts the other captains using “due process” to attempt to help the murderer escape punishment (possibly because his victim was black, but this isn’t explicitly given as the motive). Blakely goes along, but eventually sees what the other captains are up to, and justice is served in the end despite them.
This:
https://babylonbee.com/news/people-who-bypassed-legal-process-in-migrating-to-usa-demand-due-process-before-being-kicked-out
Clayton didn’t care about “rule of law” when Biden was letting millions of illegals go not the country. As you would expect from a paid troll working out of a boiler room.
When the illegal immigrants came, they got a court date years in the future for their asylum hearing and were then released. Fairness demands that they be deported but be given a date years in the future for an asylum hearing at some American consulate outside the U.S. If they prevail at the hearing, then and only then should they be allowed to enter the U.S.
Immigration judges are just DOJ employees, which means they fall under the AG’s control and POTUS’s control. In essence, POTUS is the highest level immigration judge.
The immigration courts don’t have juries because they are not criminal courts.
I’m not seeing why Trump ordering deportations isn’t all the needed “due process”. Otherwise what this amounts to is low level employees of the DOJ being able to constrain the power of the President (the actual elected official).
@ Don: so just to confirm, you are saying they are subject to administrative processing but not legal (judicial) processing?
Not sure why – just presumed it I guess – but I thought the asylum hearings were to be held by Article III judges. And part of the delay was that there were not really very many of them. If they were only Executive Branch employees, then Biden’s malfeasance (and essentially traitorous intent) is even worse, as he could easily have asked for more funding for more review staffers, etc.
Right, immigration judges are just DOJ employees. Their power derives from the President.
POTUS and DOJ were within their rights to overturn a subordinate decision on deportation to El Salvador.
Neo, you are spot on:
“The problem is clear. In recent years the left got very clever, and illegal aliens availed themselves of the information the left provided: it became common knowledge that if an illegal alien claimed he or she needed asylum, that claim must be heard and there were so many illegal aliens coming over that effectively it would mean it would take many years for the claim to be heard. In the meantime, there were plenty of benefits to be had here.”
I remember well the anti US intervention movement in the 80’s and early 90’s during which time the sanctuary movement was born. Those refugees, mostly Salvadoran and Guatemalan peasants, were fleeing brutal civil wars and atrocities being committed by governments against their own indigenous peoples. Churches in Tucson and LA began taking them in and the sanctuary movement was born. The difference then was that the US had a direct hand supporting and even training the regimes.Even going so far as to sell weapons to Iran when funding was cut off (not a time to be proud of IMHO)
The people the left have been encouraging to come are indeed refugees, but they are economic refugees coming for a better life.
Seems to me if you did not follow due process coming in, then you get no due process going out.
Due Process: “Sir, may I see your ID and visa or greencard?”
That’s all the Due Process required.
Those Central American refugees of the 80s were later the ones doing most of the looting in the Rodney King riots.
And they are the people who created MS13 in the first place.
Winking at the immigration laws for people who were just looking for a better life, and were mostly NOT gangsters and criminals, opened the door to what we have now, because the Democrats try to cast said criminals in the same role.
But the Martha’s Vineyard residents don’t even want their maids and gardeners living near them.
“Sir, may I see your ID and visa or greencard?”
Biden Inc. gave many, many of the otherwise-illegal entrants Social Security numbers and green cards, which are now their ID. They didn’t bother with visas, which actually do involve some degree of vetting (modest or non-existent in some cases).
“Biden Inc. gave many, many of the otherwise-illegal entrants Social Security numbers and green cards, which are now their ID. They didn’t bother with visas, which actually do involve some degree of vetting (modest or non-existent in some cases).”
Good point AesopFan. Now more ‘due process’ is required. How do we throw out ‘documentation’ forged by our own government?