When Trump said no no judges or court cases, the President doesn’t necessarily seek to deprive immigrants of Due Process, says legal scholar
Major media outlets, including the New York Times and the Boston Globe, are mistakenly reporting that President Trump’s call to deport illegal immigrants “with no judges or court cases” would deprive them of due process since many such deportations have already occurred without court challenge under several administrations.
These misleading headlines seems to have been written based upon the common misunderstanding that due process always requires a trial-type proceeding with a judge, says public interest law professor John Banzhaf, who lectures on this topic. Due process of law, as the courts have said many times, requires only the process which is due in a particular situation, he reminds his law students.
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In many situations in which the Supreme Court and lower courts have held that due process clearly applies, it has gone on to say that it did not require a trial-type hearing before a judge. On the contrary, in some situations, under the Goss principle, the constitutional requirement of due process may be satisfied if the individual is simply given a brief opportunity to reply to the charges against him.
So when the New York Times reports “Trump Calls for Depriving Immigrants Who Illegally Cross Border of Due Process Rights,” and the Boston Globe proclaims that “Trump Calls for Immediate Deportation Without Due Process of People Who ‘Invade,'” they are incorrect as a matter of law, even if the errors are inadvertent, says Banzhaf. Here’s how he explains it.
President Trump’s tweet this morning that “we must immediately, with no Judges or Court Cases, bring them back from where they came,” is being criticized by some who argue that such a procedure would violate due process, and that everyone in the U.S., legally or otherwise, is entitled to due process.
But while even immigrants illegally in the country are entitled to that constitutional protection, due process often does not require a trial-type proceeding presided over by a judge, but rather can be provided by a very brief decision made by a government official.
Indeed, more than 20 years ago, Congress authorized the use of expedited deportations – with “no judges or court cases” – for illegal immigrants apprehended anywhere in the country who could not prove they had been physically present in the country 2 years before their apprehension.
Since then its use has risen considerably, from about 50,000 immigrants in 2004 to 193,000 in 2013; the latter figure representing about 44% of all deportations that year, according to the American Immigration Council.
As the Congressional Research Service has explained, “INA § 235(b)(1) provides that an alien arriving at the U.S. border or a port of entry may be removed from the United States without a hearing or further review if he lacks valid entry documents . . . The expedited removal statute also authorizes . . . DHS to apply this process to aliens inadmissible on the same grounds who have not been admitted or paroled into the United States by immigration authorities, and who have been physically present in the United States for less than two years.”
Currently, this expedited removal process is used primarily with regard to “arriving aliens seeking entry into the United States,” and to “aliens apprehended within 100 miles of the United States border within 14 days of entering the country, and who have not been admitted or paroled.”
Furthermore, as the Washington Post has reported, “the Trump administration is weighing a new policy to dramatically expand the Department of Homeland Security’s powers to expedite the deportations of some illegal immigrants. . . . Under the proposal, the agency would be empowered to seek the expedited removal of illegal immigrants apprehended anywhere in the United States who cannot prove they have lived in the country continuously for more than 90 days.”
Moreover, as the Post reported, even such a dramatic expansion of this statutorily authorized expedited removal power “would not require congressional approval.”
Even under the expedited deportation process, immigrants could still be able to claim a credible fear of persecution or torture. But they would be entitled to appear before a judge on that claim only if an asylum officer determined that the fear was credible.
Needless to say, immigration advocates are critical of the expedited removal process, claiming that many people may have problems providing the proof needed under its guidelines, and that it can easily be abused.
Nevertheless, Trump’s suggestion about deporting illegal aliens “with no judges or court cases” is already a reality, and it appears that he has the power to expand it without any additional congressional approval to include illegal immigrants apprehended anywhere in the United States who cannot prove they have lived in the country continuously for more than 90 days.
Thus, unless and until a judge holds that the expansion of the existing program results in a violation of due process, or Congress intervenes, it appears that the president can have his way.