- President Donald Trump has now twice advocated bypassing immigrants’ and asylum-seekers’ due-process rights that have been long established in the US legal system.
- The US Constitution and Supreme Court decisions set the framework of these rights, afforded to anyone on US soil.
President Donald Trump has now twice advocated to strip immigrants and asylum-seekers of their due-process rights that have been long established in the US legal system.
Trump, first in a tweet on Sunday, then at a rally on Monday, said the US should send those who “invade our Country” away without affording them their previously established right to access “Judges or Court Cases” after they arrive at the US-Mexico border.
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. Most children come without parents…
— Donald J. Trump (@realDonaldTrump) June 24, 2018
But doing so would violate the long-held guarantee of a right to due process that multiple US laws and court rulings have decided immigrants and asylum-seekers have when they set foot on American soil.
The US Constitution’s Fifth Amendment guarantees in what’s known as the “Due Process Clause” that no one can be “deprived of life, liberty or property without due process of law.” In 1953, the Supreme Court clarified this right extended to non-US citizens.
In 2001, the Supreme Court doubled down in Zadvydas v. Davis, concluding: “the Due Process Clause applies to all persons within the United States, including aliens, whether their presence is lawful, unlawful, temporary, or permanent.”
Due process is generally the guarantee of an individual’s right to exercise their granted access to a court and stated legal rights to seek a judge’s opinion. Without due process, there’s no way to determine if an immigrant is being rightfully deported.
How the due process system for immigrants and asylum seekers works
Due process for immigrants is a pared-down version of the framework of rights in place for a US citizen to defend their rights against the US legal system.
When border patrol arrests a migrant after they cross the border illegally, past Supreme Court decisions have decided that they are afforded the right to due process once they enter the US legal system as they’re being considered for deportation.
Immigrants who are apprehended can fight deportation by presenting their cases in hearings before Justice Department-affiliated immigration judges and courts, including when they are seeking to claim asylum.
Asylum is a protected status and a foundation for eventual legal citizenship for those who can’t return to their home country because it’s unsafe. International law recognises asylum, and US law further defines it.
Though immigrants do not have the right to a state-provided lawyer, they can hire representation or seek pro-bono legal service to present their testimony and evidence to an immigration judge.
If they lose their case and are given deportation orders, they have the option to appeal to the Board of Immigration Appeals, an arm of the Justice Department. If the appeals board agrees with the original decision to deport, defendants can challenge those rulings in front of a federal court.
But significant backlog makes this a very long process – there were more than 700,000 backlogged cases as of May 2018. Of these cases, the average wait time to have a judge hear it was more than 700 days.
If immigrants are not “refugees, asylees, or asylum seekers“, a 1996 case allows the government to skip this process and instead pursue expedited removal. In these cases, the immigration officer has broad authority and basically serves as the prosecutor and the judge.
The Trump administration’s thoughts
The Trump administration has recently issued several statements that conflict with the longstanding rights, rules, and systems that are in place specifically for immigrants.
Trump doubled down on his tweet condemning “Judges and Court Cases” on Monday night when he again called for overhauling the immigration system at a rally in South Carolina.
Despite saying “we want people to come in through the legal process“, Trump said he balked at proposals to install judges at the border.
In a claim that seems to be exaggerated based on previous reports, Trump said someone came to him “three days ago” requesting an additional 5,000 judges “on the border.” Sen. Ted Cruz and Rep. Dave Brat, both Republicans, proposed adding 374 immigration judges to the Department of Justice’s current 335 immigration judges, RollCall reported.
At the rally Monday night, Trump then asked, “What other country has judges?”
The Washington Post fact-checked Trump’s claim and found comparable officers exist in 13 other countries.
“I don’t want judges,” he continued. “I want ICE and border patrol agents.”
The White House Press Secretary Sarah Huckabee Sanders addressed three separate questions about Trump’s remarks in Monday’s press briefing.
“It makes no sense that an illegal alien sets one foot on American soil and then they would go through a 3-5 year judicial process,” Sanders said, adding, “Just because you don’t see a judge doesn’t mean you aren’t receiving due process.”
A second reporter pushed her on the “no judges” tweet and she doubled down, dodging to instead point out the president would like to wholly fix immigration.
“Nothing is actually going to change; he’s just complaining about the process as it stands now?” a reporter asked.
Sanders replied, “Things that we have the ability to do that administratively we are working to do, but again Congress is the only one that has the ability to write law, and we hope they will do that.”
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