President Donald Trump has made it clear that he wants all illegal immigrants with violent criminal records immediately removed from the country.
Critics and many Democrats have steadfastly maintained that such aliens have a right to due process before they are deported, even though they have entered the country in violation of U.S. law. The president has responded by claiming that it would take many years to successfully remove illegal criminals if they all had a right to lengthy court hearings and appeals that essentially tracked the requirements of our civilian court system.
As is often the case, the talking points of both sides in the argument are, to some extent, correct.
It is well known that the U.S. judicial system can be quite slow; even the Department of Justice-administered Immigration Courts are burdened with so many technical procedures and regulations that they have a backlog of over three million cases. Further, its basic Immigration Court Practice Manual is well over a hundred pages long, with virtually every page containing citations of additional provisions in the Code of Federal Regulations.
Nonetheless, despite the claims of the president and some in his party, illegal immigrants are legally entitled to due process.
It’s true that in U.S. v. Verdugo-Urquidez, Chief Justice Rehnquist seriously questioned whether the Fourth Amendment enshrines the right for illegal aliens to challenge an illegal search on the grounds that they are not part of the “people” that the amendment was written to protect. On this view, this fundamental constitutional right applied only to citizens and those with substantial or legitimate connections to the U.S. because that was what the founding fathers meant when they began the amendment with the phrase: “The right of the people to be secure.”
But the due process clause in the Fifth Amendment actually states that “no person shall be deprived of life, liberty or property without due process of law,” and the 14th Amendment guarantees the same right to all persons.
Accordingly, the Supreme Court applied the due process clause to non-citizen Chinese immigrants three times in the 20th century, and on April 7 of this year in Trump v. J.G.G. et al, the Court stated that illegal aliens have “some” due process rights during formal removal proceedings.
However, the Court did not define the exact nature of those rights.
Then, on May 16, in an Alien Enemies Act case, the Supreme Court reiterated that some due process was necessary for illegal aliens and stated that 24 hours’ notice before deportation was not enough. Once again, it declined to clarify exactly which elements of due process were required or how they should be implemented in potential alien removal cases. Maintaining its obscure position on the issue, the Court remanded the case to the Fifth Circuit Court of Appeals in New Orleans to get its opinion on the matter.
So, what due process rights do illegal immigrants have before they are deported?
We have been down this path in a similar situation just a few years ago, and Justice Sandra Day O’Connor provided a clear road map to the answer in 2004 Hamdi v. Rumsfeld — written during the midst of the war on terror — provides the answer to the current conundrum on how to handle deporting illegal aliens without giving them the full criminal trial, with which Trump is rightly concerned.
Yaser Esam Hamdi was an American citizen who allegedly assisted the Taliban in Afghanistan and was accordingly detained as an enemy combatant. This occurred against the backdrop of individuals being picked up as enemy combatants in Afghanistan, while simultaneously asserting that they were innocent and sold to U.S. Special Forces as enemy combatants by a village chief who did not like them. Hamdi demanded a full trial before he could be detained, and the U.S. District Court agreed. The government asserted that sworn affidavits supplied to the court should be sufficient.
O’Connor referred back to the 1976 case of Mathews v. Eldridge, in which the Court held that “due process is flexible and calls for the procedural protections the particular situation demands,” in order to make a decision on this contentious and highly public issue. A court should thus follow flexible procedures that balance the government’s and individual’s interests with an analysis of whether the procedures employed would pose any substantial risk of error.
In Hamdi’s case, a full trial was not required, but rather “the Constitution would not be offended” if he was given notice of the government’s reasons for his classification as a combatant — an opportunity to rebut the allegations at a hearing before a neutral decision maker; hearsay would be admissible, and there would be a presumption in favor of the government’s evidence.
It’s this application of the Mathews and Hamdi standards that can fairly, easily and quickly be applied by immigration judges in a hearing to determine whether an individual is eligible for deportation. Public and political outcry would be muted, and any governmental action conducted pursuant to these standards would clearly meet the requirements of the Constitution.
The Department of Justice should consider establishing these procedures, and Congress could outline them in a statute as it did with the Detainee Treatment Act after the Hamdi decision. However, if Congress acts, it must ensure that endless appeals of the Immigration Courts’ decisions to politically appointed civilian U.S. District Judges do not follow, as that would negate the efficiency of the process.
In the 5-4, Boumediene v. Bush decision, the Supreme Court allowed such habeas appeals, although, the habeas courts eventually applied the standards set by O’Connor in Hamdi.
The roadmap has been established to deal with the exigencies of the situation we have created by our previous political decisions.
Ron Sievert is a Texas A&M national security law professor and guest contributor to The Battalion.
