No Due Process for Who?

"Emigrants coming up the board-walk from the barge, which has taken them off the steamship company's docks, and transported them to Ellis Island." 1902. Photograph from the Library of Congress.

President Trump both in tweet form and speech form has suggested that Illegal Aliens aka Undocumented Workers aka Illegal Immigrates should just been turned away without any legal process.

His demands for ending any kind of legal process for illegal aliens has sparked an old debate, “Do illegals have rights under our Constitution?” Most specifically, “Do they have a right to Due Process, under the Fifth and Fourteenth amendment under the United States Constitution?”

The very short answer is yes. Illegal Aliens, Alien equals person, who is present on American soil, is granted some basic rights under the Constitution.

James Madison wrote in January 1800, via Founders Online, “If aliens had no rights under the constitution, they might not only be banished, but even capitally punished, without a jury or the other incidents to a fair trial. But so far has a contrary principle been carried, in every part of the United States, that except on charges of treason, an alien has, besides all the common privileges, the special one of being tried by a jury, of which one half may be also aliens.”

The Supreme Court ruled in each case, Yick Wo v. Hopkins (1886), Wong Wing v. United States (1896), Yamataya v. Fisher (1903), that the aliens were entitled to both the fifth and fourteenth amendments.  In 1992 Justice Scalia wrote in Flores that, “It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings. See The Japanese Immigrant Case, 189 U. S. 86, 100–101 (1903).” In 2001 Zadvydas v Davis the court concluded, “fifth Amendment’s protections do not extend to aliens outside the territorial boundaries. But once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all “persons” within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.”

In 1996, Congress created “expedited removal,” which allows for removal, without a right to counsel or a hearing before an immigration judge. Most of those cases involve a type of fraud at the border or within a hundred miles of the border or illegal aliens that voluntarily agree to return to their country of origin. Expedited removal does not typical apply to those seeking asylum. (Cornell Law)

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About Tiff 1949 Articles
Member of the Free Press who is politically homeless and a political junkie.