President Donald Trump recently suggested that illegal aliens should be sent back to their countries of origin without hearings and the years of litigation that often follow.
He branded the current process, which permits illegal aliens to repeatedly contest orders of removal, as “a mockery to good immigration policy and law and order.”
The mainstream media wasted no time in characterizing his suggestion as a “push to end due process for illegal immigrants.” And multiple news outlets made all manner of wild claims about the so-called rights of illegal aliens. But once again, in an effort to portray the chief executive as a xenophobe, the open borders lobby has gotten its facts backward.
Trump is actually right on the mark. Much of the current legal framework for removing illegal aliens from the United States consists of badly reasoned federal district court decisions, ridiculous settlement agreements, and politically motivated policy decisions.
The open borders lobby and its handmaidens in the mainstream media have consistently represented this hodgepodge as a clear articulation of “affirmative rights.”
But that representation is misleading.
Illegal aliens are entitled to considerably less immigration due process than their advocates would have us believe.
And the Supreme Court has been remarkably consistent on this point over the years:
- It is not within the province of the courts to order the admission of foreigners who have no formal, legal connection to the United States. “As to such persons, the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.” (Murray’s Lessee v. Hoboken Land and Improvement Co.; Hilton v. Merritt)
- “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.” (Ekiu v. United States)
- The United States need only provide an alien with a judicial trial when charging them with a crime and seeking a punitive sentence. (Wong Wing v. United States)
- “Whatever the rule may be concerning deportation of persons who have gained entry into the United States, it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the government to exclude a given alien.” (Knauff v. Shaughnessy)
- Unadmitted, nonresident aliens have no right of entry to the United States as nonimmigrants, or otherwise. (Kleindienst v. Mandel)
What does this all mean? That foreign nationals outside our borders are not owed any due process whatsoever. The United States may exclude them at will. It also means that illegal aliens apprehended within the United States are entitled only to such due process as Congress accords them.
Congress could act to streamline their removal and provide the type of no-hearing framework that the president has suggested. In fact, it has already done so for certain classes of aliens:
- Using a process called administrative removal, the government may, without any hearing, remove illegal aliens who have been convicted of an aggravated felony.
- Similarly, aliens found inadmissible to the United States upon arriving at the border may be repatriated without a hearing, employing a process called expedited removal.
- Aliens who re-enter the U.S. after having been previously deported may also be removed without a hearing, utilizing a process called reinstatement of removal.
What about all of those asylum applications that illegal aliens supposedly have a right to file? As the Supreme Court made clear in INS v. Cardoza Fonseca, asylum is a discretionary form of relief. The United States is not obligated to grant asylum to anyone, even those who clearly qualify for it.
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Because of this, Congress could pass legislation prohibiting those unlawfully present in the U.S. from filing asylum applications.
Far from “pushing to abolish due process for illegal aliens,” Trump is posing a legitimate question. It’s time for Americans to start asking just how many of our precious tax dollars should be spent providing illegal aliens with expensive immigration hearings to which they are clearly not entitled.
Matt O’Brien is the former chief of the national security division within the fraud-detection and national-security directorate at the U.S. Citizenship and Immigration Services (CIS). He has also served as U.S. Immigration and Customs Enforcement’s assistant chief counsel in the New York District. He is currently director of research at the Federation for American Immigration Reform (FAIR).
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