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The Due Process Rights of Illegal Entrants to the United States

The Due Process Rights of Illegal Entrants to the United States


President Donald Trump’s tweet from June 24, 2018 reads: “We cannot allow all of these people to invade our Country. When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came. Our system is a mockery to good immigration policy and Law and Order…[1]

This, paired with the Trump administration’s “zero-tolerance” immigration policy, suggested that President Trump would strip immigrants and asylum seekers of due process rights.[2] In the tweet’s aftermath, constitutional law scholar Carl Tobias said, “Congressional legislation and the Constitution mandate due process for the people Trump mentions. Congress would need to legislate what Trump says he wants, and this seems unlikely. Even were Congress to pass legislation, federal courts would probably find that it violates the Constitution.[3]

The phrase “due process” appears in two places in the Constitution. The first reference to it is in the Fifth Amendment which reads “No person shall be…deprived of life, liberty, or property, without due process of law…”[4] The second reference is in the Fourteenth Amendment, which provides that “…nor shall any State deprive any person of life, liberty, or property, without due process of law…”[5]

The due process clauses guarantee fair procedures in government adjudications, such as trials.[6] They also limit government regulation that deprives people of rights, such as the rights guaranteed in the Bill of Rights and those that can affect the ability to participate in the political process.[7]

Two Supreme Court cases dating back to the late nineteenth century have established that non-citizens, even those who are in the United States illegally, are also guaranteed due process of the law by the Fifth and Fourteenth Amendments.[8]

The first is Yick Wo v. Hopkins, where the Supreme Court had to analyze the constitutionality of a San Francisco ordinance that required all laundries in wooden buildings to obtain permits from the city to operate.[9] At the time, 89 percent of the city’s laundries were owned by people of Chinese descent and the board didn’t grant a single Chinese owner a permit to operate. The city’s sheriff arrested the petitioner, a Chinese immigrant who had lived in the United States for 22 years, when he refused to pay the fine for operating his laundry without a permit. The Court struck down the city ordinance, stating:

“The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says: ‘Nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’ These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality…”

            Thus, the entirety of the Fourteenth Amendment applies to all people in the United States, not just US citizens.

            Ten years later, in Wong Wing v. United States, a Chinese immigrant who had illegally entered the U.S. was found to have violated the Chinese Exclusion Act. A commissioner sentenced him to imprisonment by hard labor and deportation as punishment. After his conviction, the petitioner sought a writ of habeas corpus to argue against his detention but was denied a hearing. The Court ruled that while government can forbid non-citizens from entering and can deport legal and illegal aliens, it was unconstitutional for the government to impose punishment without “a judicial trial to establish the guilt of the accused”[10] under the Fifth Amendment’s guarantee of procedural due process prior to a deprivation of life, liberty or property. As used in the Fifth Amendment, “the term ‘person’…is broad enough to include any and every human being with the jurisdiction of the republic.”

Due process is determined by the three-part test laid out in Mathews v. Eldridge.[11] Under that case, there must be an opportunity to be heard “at a meaningful time and in a meaningful manner,” and a three-part test requires a court to consider:

·         the person’s interest that will be affected by the official action;

·         the risk of an erroneous deprivation of that interest through established procedures and the gain to decision-making accuracy of additional or substitute procedural safeguards; and

·         the government’s interest, including administrative and fiscal costs, in avoiding the burdens of the proposed safeguards.

            The first immigration law case to address this Fifth Amendment due process analysis is Landon v. Plasencia. Here a permanent resident in the US of El Salvadorian descent left the United States for Mexico and was detained upon return. When the Immigration and Naturalization Service detained her, it found that she had attempted to smuggle six aliens into the United States. After she was to be deported, she filed a writ of habeas corpus, asking for an exclusion hearing. A court provided one, but with less than 11 hours’ notice of the impending hearing.[12]

Writing for the Supreme Court majority, Justice Sandra Day O’Connor wrote that a resident alien who leaves the United States briefly and tries to return may be barred from entry without full procedural protections to which a lawful resident is normally entitled. However, the government’s exclusion procedure must comply with the constitutional requirements of due process. While the applicant stands to lose the right to stay, live and work in the United States and may lose the right to rejoin family, the government’s interest in efficient administration of immigration laws at the border is also important. The Court decided that there wasn’t enough evidence to determine whether Plasencia was provided enough due process, and it remanded the case so that the lower court could implement the Eldridge balancing test.

Moving back to President Trump’s tweet, it is accurate that undocumented immigrants need not necessarily be afforded “court cases” to argue against deportation. They can fight deportation through civil proceedings, which don’t have the same range of constitutional protections as trials.[13] Still, the deportation officer must provide a deportable non-citizen an opportunity to be heard in a full and fair hearing.[14]

To comport with Fifth Amendment’s due process requirements, a notice to appear at a removal proceeding must provide the nature of the proceeding, the legal authority under which the proceeding is conducted, the acts or conduct alleged to be in violation of the law and the statutory provisions alleged to have been violated.[15] The notice must also be reasonably calculated to reach the alien, as holding a hearing in absentia without reasonable notice would be a due process violation.[16] The alien also has the right to a neutral fact-finder and a reasonable opportunity to present evidence on his behalf.[17]

The Federal Rules of Evidence don’t apply in an immigration hearing and hearsay is admissible in an immigration proceeding, but evidence must be probative and its admission fundamentally fair. The exclusionary rule, which excludes evidence obtained in violation of a defendant’s Fourth Amendment rights in a criminal proceeding, also does not apply in this proceeding. However, evidence can be excluded in the case of an “egregious” violation, which occurs when the government deliberately violates the subject’s Fourth Amendment rights.[18]

Thus, despite the President’s tweet, a robust system exists to protect the due process rights of people, even non-citizens, in the United States, and federal courts, under a long line of Supreme Court cases, are tasked with the job of making sure it will always be so.