DO ILLEGAL IMMIGRANTS HAVE DUE PROCESS RIGHTS?

An argument is being made that the deportation of illegal aliens without due process is illegal. And it turns out, this is correct. Over the years, the Supreme Court has shaped their interpretation of the 5^th and 14^th Amendment to include those in the country illegally saying they are entitled to due process. An interesting point is that SCOTUS also said that the “extent of due process protection may depend on the alien’s status and circumstances.” In a number of opinions, they stated that this entitlement might depend on “whether the alien has been admitted into the United States or developed substantial ties to this country.”

That brings up the question of what it means to be “admitted” to the country. Given the approach of the Biden administration in granting asylum to almost everyone, regardless of whether they followed any process or not, it could be said that they were “admitted.” However, the substantial ties question might be a factor, as we are speaking mostly about recent immigration and people whose purpose in coming here is to commit crimes. Thus far, these are the people Trump is targeting.

Obama – Deporter in Chief

I had to dig around to discover this, but it turns out that Obama detained and deported around 4 million illegal immigrants. The news media gave him this title, obviously applauding the actions of a Democrat president. It isn’t clear that any standard was used, including determining if they had ties to gangs or cartels. Still, it was an effective process, BUT, he did use due process to get rid of them. This is where Trump has made a mistake. I couldn’t find the information on whether Obama had an abbreviated process for those who were not just criminal due to their illegal status, but because of other criminal actions they committed in the US.

What Are Their Rights?

As noted, illegal aliens do have certain rights, such as: the right to a fair hearing, the opportunity to present evidence in their defense before the government can take away their life, liberty, or property, the right to be informed of the charges against them, the right to an attorney, and the right to present evidence in their defense.

The Alien Enemies Act

The Alien Enemies Act of 1798 was passed as part of the infamous Alien and Sedition Acts, a series of laws passed by the Federalist-led Congress over fears of an impending war with France. It is still on the books exactly as written, though it hasn’t been used. It permits the president to apprehend, restrain, and remove noncitizens during a “declared war” or if the U.S. faces an “invasion or predatory incursion” by another country or foreign government.

Given the huge numbers of people who have breached the border, it isn’t hard to see where this could be considered an invasion, and, for the criminal gangs, it is definitely a predatory incursion. There is evidence that the CCP and the Mexican government is “helping” people to get in, which would definitely qualify. However, it would be a better and less legally challenged process if Trump would give them at least some of their rights, while asking SCOTUS to clarify which of the Constitutional due process rights would not apply given the status of the criminal illegal alien, as noted above.

What’s Next?

The deportations are widely popular, but they also need to be legal. Trump needs to get a process in place to ensure that even the Left cannot complain. The Democrats insistence on making it easy for people to come needs to be continually referenced. Many of the non-criminal people probably felt they had been “invited” in. While that doesn’t give them rights ahead of those who followed our law, we do need to prioritize the criminals. Not a single person I saw in the many videos of the Tren de Aragua perps looked like someone we wanted to keep in our country; even should they have had their cases examined, while held in detention, I doubt they would have an argument to stay in the US>

Stepping a bit more carefully would ensure that courts cannot reverse getting our borders closed. As well, by eliminating any welfare or assistance, and with Trump’s offer to consider them without prejudice, should they self-deport, we might have a winning and more sane approach.