When Do Undocumented Immigrants Have the Right to a Hearing?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 4, 2018

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ImmigrationImmigration is an area of law that makes daily headlines, from Congress’ inability to agree on immigration reform to the president’s recent executive order ending the separation of children from their parents when immigrants are arrested at the border. While the executive order purports to detain children and their families together indefinitely, the concept of indefinite detention without a chance to be heard in court (or in the administrative equivalent of a court) is generally viewed as being at odds with the Constitution — at least after an alien has entered the United States.

The president’s executive order may also be at odds with a 1997 court order that prohibits the detention of children, even with their parents, for more than 20 days. The government agreed to the terms in that order in settlement of a lawsuit. The White House initially claimed to be in compliance with the order after separating children from parents because it moved children from their initial detention in locked cages to locked shelters before placing them with a sponsor.

Whether the distinction between cages and shelters is meaningful may be a moot point if the administration makes good on its promise to stop separating children from their parents — a promise that could result in the prolonged detention of children if the administration detains their parents. The administration has asked the court that entered the 1997 order to change its terms by allowing the detention of families with children in “an appropriate residential facility,” a polite euphemism for jail.

Some lawyers involved in the case believe that the existing order allows children to stay with their parents in a humane environment, even if the parents are detained, provided that the children are free to leave. Yet it isn’t realistic to believe that infants have a meaningful opportunity to avoid detention because children have nowhere to go, even if they would willingly leave the presence of their parents.

Deportations Without Hearings

Just as controversial is the president’s recent tweet about the rights of undocumented aliens:  

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.

Setting the Constitution aside (as the president does in his tweet), the risk to American citizens and lawful residents is that immigration officers will expel them from the country without being granted an opportunity to prove their legal entitlement to remain on American soil.

The fear that Americans and lawful residents will be forced out of the country is not fanciful. An analysis of Immigration and Customs Enforcement (ICE) records by the Transactional Records Access Clearinghouse at Syracuse University found that ICE “has wrongly identified at least 2,840 United States citizens as possibly eligible for deportation.” In response to that revelation, ICE stopped making its records available to the public.

Records disclosed in litigation nevertheless reveal that substantial numbers of American citizens and legal residents have been mistakenly detained on immigration charges. Some have been unlawfully deported or refused readmission after visiting another country. The president’s suggestion that individuals should have no right to contest a deportation therefore has the potential to harm American citizens, not just illegal aliens.

Constitutional Rights of Aliens

The controversy is fueled by the mistaken belief that the Constitution only protects American citizens. The truth is more nuanced. Some rights, such as the right to vote, belong exclusively to citizens. The Fourteenth Amendment, on the other hand, prohibits the government from depriving “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.” When the Framers of the Constitution made rights available to “persons” rather than citizens, they generally intended those rights to apply to all persons within the borders of the United States.

Gray areas nevertheless exist in immigration law. Travelers who enter the United States on a visa waiver (a program that permits travelers from certain countries to stay in the U.S. for up to 90 days without a visa) are deported without a hearing when they remain in the country beyond 90 days. Those travelers, however, agree to give up their due process rights as a condition of entering the country without a visa. The government contends that the waiver remains in effect forever, even when a person who overstayed a visa has been in the country for 15 years.

In addition, due process protections do not apply to immigrants who are denied entry to the country. A foreign traveler who enters the United States at an airport is not regarded as being within the nation’s borders until the traveler has been admitted by immigration authorities. Travelers who are not admitted can usually be sent home without a hearing on the theory that they are being denied entry, not deported.

Expedited Removal

A process known as “expedited removal” extends the concept of denying entry to certain individuals who have made it past a port of entry. The Obama administration used expedited removal to remove undocumented immigrants without a hearing, provided they were apprehended within 100 miles of the border and had been in the country for less than two weeks. The Trump administration has proposed to remove the territorial limit (making anyone eligible for removal after apprehension anywhere within the nation’s borders) and to apply expedited removal rules to anyone who had been in the country for less than two years.

The concept of expedited removal rests on the fiction that immigrants who are within 100 miles of the border are, like immigrants in airports, not really in the country. Whether that fiction can overcome the right to due process is unclear. Jettisoning the fiction, as the administration proposes to do, might make the law more honest, but it also makes due process violations more obvious. Expedited removal gives immigration officers unchecked authority to kick people out of the country. Expanding that authority is likely to multiply the number of citizens and lawful residents who are booted from the country without being given the chance to challenge an immigration officer’s arbitrary and unlawful action.

While Congress authorized expedited removal of people who are detained at the border, the expansion of expedited removal by the Obama administration, like the proposed expansion by the Trump administration, raises serious due process concerns. Congress has no authority to abridge the right to due process. While the Supreme Court has concluded that noncitizens enjoy lesser constitutional protections when they have not “passed through the gates,” denying due process to someone who is comfortably within the nation’s borders does violence to the text of the Constitution, which gives the right of due process to everyone, regardless of how they entered the country or how long they have stayed.

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