Illegal Immigration and the Right to Due Process

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By Emma Hurst, Staff Writer


There are 11 million undocumented immigrants living in the United States.[1]Eleven million undocumented immigrants make up only 3% of the nation’s population, yet they are often the focal point of politics and legal debate. President Trump’s administration has made it a priority to enforce a “zero tolerance” immigration policy.[2]Although family separations at the border occurred under both the Obama and Bush presidencies, 2018 presented increased outrage at the Trump Administration regarding these separations. The political climate today is harsh in all aspects, and the treatment of illegal immigrants remains a highly debated topic. President Trump tweeted that illegal immigrants in America needed to be sent back “from where they came” with “no Judges or Court Cases.” President Trump’s tweet exposes a bigger issue. What legal rights do illegal immigrants have? Do they deserve more or fewer legal rights?

The fourteenth amendment to the United States Constitution states, “No person shall … be deprived of life, liberty, or property, without due process of law ….” The Constitution  utilizes the term person, not citizen. This raises the question, does the fourteenth amendment apply to non-citizens?

The Supreme Court confirms that the fourteenth amendment does apply to non-citizens. The majority opinion in the Supreme Court case, Zadvydas v. Davisholds that aliens, although not citizens are entitled to Due Process of law. In Zadvydas, the Court held potentially permanent detention of an illegal immigrant awaiting deportation unconstitutional, as the  illegal immigrant still had liberty rights. The Court held that an immigrant awaiting deportation could not be held for more than ninety days without a hearing providing, “freedom from imprisonment lies at the heart of the liberty protected by the Due Process Clause.”  However, more importantly, the Supreme Court confirmed that all persons are protected and entitled to due process under the United States Constitution. The Court confirmed, “[b]ut 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.”

But is this right? Does the situation matter? President Trump and his administration argue that those in the country illegally should not be entitled to the same rights as natural born and naturalized citizens[3]. This argument is often enforced by crimes committed by illegal immigrants. This viewpoint is not without some judicial merit as seen in the Zadvydas dissent.[4]In the Zadvydas dissent, Justice Antonin Scalia argues that the Due Process Clause should not protect illegal aliens against the deprivation of liberty. Scalia argued that those who have no constitutional right to remain in the United States, should have no right to be released back into the country. Thus, illegal immigrants have no liberty right protecting them from indefinite detention. Scalia quotes Justice Robert H. Jackson in his dissent stating, “Due process does not invest any alien with a right to enter the United States, nor confer on those admitted the right to remain against the national will.

President Trump’s ideology on the treatment of illegal aliens presents a potential judicial shift in the legal rights granted to illegal immigrants. President Trump’s negative viewpoint on the current immigration process could result in action that would change the rights illegal immigrants receive. However, unless action is taken by the President, precedent demands that, unless changed by law, any and all persons be recognized and protected under due process.

Nevertheless, President Trump’s Twitter declaration and thought process set the stage for a larger debate on the topic. Should illegal immigrant be afforded Due Process when they commit crimes or are detained, despite not having any legal right to be in the United States in the first place? President Trump says no, and so does an increasing number of angry American citizens. Yet, the law stays intact to enforce the opposite. With hostility towards illegal immigrants only gaining momentum, the legal rights of illegal immigrants certainly has potential to face drastic change.








[4]Zadvydas v. Davis, 533 U.S. 678

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