As the Trump administration enforces the Immigration and Nationality Act, migrant advocates have repeatedly cried foul. Their most persistent claim has been that Team Trump is depriving aliens of due process before deporting them. According to the radical Vera Institute, “[T]he Trump administration is trampling firmly established constitutional principles that should protect all people, regardless of where they were born.”
Of course, neither the Vera Institute, nor any of its allies seem to be able to articulate exactly what constitutional principles Team Trump is trampling upon. The result is a delusional belief that aliens who have been given every opportunity to have their immigration claims reviewed, still have not received due process.
At its essence, “due process” simply means the government has to follow the rules set forth in the Constitution before it deprives you of life, liberty or property. But the term has been rendered meaningless through overuse. As one legal commentator has observed, “Everyone seems to be certain that everyone is entitled to it. Everyone seems pretty certain that it’s being denied. But does everyone clamoring for it actually know what ‘due process’ would look like?”
In reality, due process looks different depending upon the type of litigation. The greater the interest at stake, the greater the due process requirements. Thus, a litigant battling a citation for a traffic infraction – where no substantial life, liberty or property rights are at stake – can be fined after a perfunctory hearing before a non-lawyer bureaucrat. Criminal defendants, however, are entitled to free legal counsel and all charges must be proven beyond a reasonable doubt – because capital punishment and prison sentences constitute significant government interference with rights to life and liberty.
However, for due process protections to attach at all, an individual must have a constitutionally protected interest in whatever the government is trying to take away. If the government wishes to seize my neighbor’s sports car because he is a transnational drug trafficker, I can’t go to court and complain that I will be deprived of opportunities to borrow the little, red Corvette on date night – because, in that situation, I don’t have a constitutionally protected interest that triggers due process protections.
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Thus, we come to the key question: Do foreign nationals have a constitutionally protected interest in not being removed from the United States? While organizations like the Vera Institute might argue to the contrary, the correct answer to that question is an emphatic, “No.”
And this has been repeatedly affirmed by the Supreme Court. In 1892, in Ekiu v. United States, the Court stated, “It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty and essential to self-preservation, to forbid the entrance of foreigners within its dominions or to admit them only in such cases and upon such conditions as it may see fit to prescribe.” Fifty-eight years later, in U.S. ex rel. Knauff v. Shaughnessy, the Court reiterated this concept opining, “The admission of aliens to this country is not a right, but a privilege, which is granted only upon such terms as the United States prescribes.”
So, when the Trump administration deports illegal aliens without a hearing, pursuant to the expedited removal provisions of 8 U.S.C. § 1225(b)(1)(A)(III), is it engaging in a due process violation? Absolutely not! In Keindienst v. Mandel the Court unequivocally stated that “unadmitted, nonresident” aliens “have no right of entry to this country as nonimmigrants or otherwise.” And with regard to such aliens, due process of law is whatever Congress decides it is.
What about hearings before the Immigration Court? Vera and its allies would have Americans believe aliens are deprived of their liberty and property, without constitutional protections, in stripped-down versions of criminal proceedings. But such claims are far from the truth. As the Supreme Court noted in Fong Yue Ting, “'Deportation’ is the removal of an alien out of the country simply because his presence is deemed inconsistent with the public welfare, and without any punishment's being imposed or contemplated either under the laws of the country out of which he is sent or under those of the country to which he is taken.” Thus, civil, administrative removal proceedings pass constitutional muster with flying colors because the Immigration Court concerns itself only with alienage and removability, lacking any authority to impose punitive sentences or confiscate property.
But there is a strong argument that the Immigration Court actually goes too far, providing aliens with myriad protections to which they are not entitled. For most of the 20th century, DOJ attorneys conducted informal removal proceedings – without any Supreme Court decisions finding the process constitutionally deficient. Then in 1983, DOJ created the Immigration Court. Four decades later, it has become an $840 million per year bureaucratic mess that seems to run on the principle that no case is over until the alien wins. Therefore, Americans who care about border security should be asking their political leaders to abandon the due process delusion and stop providing an expensive forum for aliens to vindicate imaginary legal “rights” that they simply do not possess.
Dr. Matt O’Brien is the deputy executive director at the Federation for American Immigration Reform (FAIR). Matt has 30 years of experience in immigration law and policy. Immediately prior to joining FAIR, he was the Assistant Chief Immigration Judge, overseeing the U.S. Immigration Court at Annandale, Va.
Editor’s Note: We voted for mass deportations, not mass amnesty. Help us continue to fight back against those trying to go against the will of the American people.
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