Due Process for Illegal Aliens in US? – Feb 2016

Trump: Illegals Being Entitled to Due Process an Open Question

– Breitbart

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“Republican presidential candidate Donald Trump stated that people in the United States illegally “may or may not” be entitled to due process before being deported, and that while he doesn’t agree they are necessarily entitled to due process, it doesn’t mean he wouldn’t give them due process. He also said that while he supports medical marijuana, he’d have to see the health impacts of Colorado’s legalization of recreational marijuana are on Wednesday’s broadcast of the Fox News Channel’s “The O’Reilly Factor.”

Trump said, in response to host Bill O’Reilly arguing illegal immigrants would be entitled to due process before being deported, [relevant exchange begins around 2:30] “If they’re here illegally they may or they may not be [entitled to due process]. Just like the argument we had about the anchor babies. In my opinion, you don’t need –.”

After O’Reilly cut in to object, “I’m telling you all settled law says once you’re here, you are entitled to our constitutional protections, every single case.”

Trump countered, “I disagree. That doesn’t mean I wouldn’t do that.”

Read more here @ Breitbart.com

ICE: Illegal immigrants allowed due process

– StandardSpeaker.com

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“Just like United States citizens, illegal immigrants have due process rights.

And so when illegal immigrants are taken into custody, they’re not always automatically deported to their home countries, according to a spokesman for Immigrations and Custom’s Enforcement, the federal agency charged with enforcing customs and immigration laws.

Mark Medvesky, of ICE’s Philadelphia headquarters, wasn’t familiar with the case of Ambrosio Perez-Vasquez, Hazleton, the illegal immigrant recently released from ICE custody and who this week posted bail on charges he was using a fake driver’s license and Social Security number when he was stopped by Beaver Meadows police in July.

But Medvesky explained why an illegal immigrant might be released. Immigration law, specifically the Immigration and Nationality Act, allows illegal immigrants the right to due process, he said.

“There are certain processes and evaluations that happen” because of the law, Medvesky explained.

Most individuals charged by ICE with being in the United States illegally are issued a “charging document,” and then have the right to a removal proceeding before an immigration judge, he said.”

– It’s rather interesting and more complex than one would think. Read more @ Standardspeaker.com

 

Illegal Aliens entitled to Legal Law Review: 

 

Calcano-Martinez v. INS, INS v. St. Cyr

In the final week of its 2001 term, the United States Supreme Court handed down 5-4 rulings in a consolidated case that challenged provisions of the 1996 immigration law reforms. In Calcano-Martinez v. INS and INS v. St. Cyr, the Court reaffirmed the right of noncitizens to seek federal court review of legal interpretations made in deportation cases, and eliminated the ability of the INS to subject many legal residents to “mandatory” deportation for old criminal offenses.”

More here @ Civilrights.org

 Great Site for Constitutional Pro and Con

– Immigration.procon.org

Should Immigrants in the United States Illegally Have Constitutional Rights and Protections When on American Soil?

“Pro                                                  Con

The American Civil Liberties Union (ACLU), in a section entitled “Immigrants’ Rights” on its website (accessed Mar. 6, 2007), offered the following:
“It is true that the Constitution does not give foreigners the right to enter the U.S. But once here, it protects them from discrimination based on race and national origin and from arbitrary treatment by the government. Immigrants work and pay taxes; legal immigrants are subject to the military draft. Many immigrants have lived in this country for decades, married U.S. citizens, and raised their U.S.-citizen children. Laws that punish them violate their fundamental right to fair and equal treatment.”

Mar. 6, 2007 – American Civil Liberties Union (ACLU) 


 

In Almeida-Sanchez v. United States (1973), the U.S. Supreme Court, in a 6-3 decision written by Justice J. Stewart, held:

“It is undoubtedly within the power of the Federal Government to exclude aliens from the country. It is also without doubt that this power can be effectuated by routine inspections and searches of individuals or conveyances seeking to cross our borders.

Whatever the permissible scope of intrusiveness of a routine border search might be, searches of this kind may in certain circumstances take place not only at the border itself, but at its functional equivalents as well. But the search of the petitioner’s [foreign national] automobile by a roving patrol, on a California road that lies at all points at least 20 miles north of the Mexican border, was of a wholly different sort. In the absence of probable cause or consent, that search violated the petitioner’s Fourth Amendment right to be free of ‘unreasonable searches and seizures.’

The needs of law enforcement stand in constant tension with the Constitution’s protections of the individual against certain exercises of official power. It is precisely the predictability of these pressures that counsels a resolute loyalty to constitutional safeguards.”

1973 – Almeida-Sanchez v. United States (43 KB)  


 

Gerald L. Neuman, JD, PhD, Professor of International, Foreign, and Comparative Law at Harvard Law School, in his 1996 book entitled Strangers to the Constitution: Immigrants, Borders, and Fundamental Law, wrote the following:
“The Supreme Court has also held for more than a century that aliens within the United States are persons entitled to constitutional protection. That includes aliens who are unlawfully present, although recent Supreme Court dicta suggest that intensified concerns over both drugs and migrants penetrating the border may put pressure on that commitment. Moreover, the Court has further held that aliens not present in the United States are entitled to constitutional protection with regard to actions taken within the United States against their property rights.”

1996 – Gerald L. Neuman, JD, PhD 

Richard B. Freeman, PhD, Herbert Ascherman Chair in Economics at Harvard University, in an Oct./Nov. 1998Boston Review essay entitled “Let the People Decide. A response to ‘The Immigrant as Pariah’ by Owen Fiss,” stated:

“[Dr. Owen] Fiss wants the judiciary to draw a boundary in the gray area in favor of immigrants, on the principle that the Equal Protection Clause of the Constitution prohibits ‘the creation of a near caste-structure …of socially and economically disadvantaged groups …that live at the margin of society;’ and that immigrants are exceptionally likely to fall into this group…

I find his arguments strained, and reject as antidemocratic the notion that the judiciary should determine policy in this area. We may all oppose social exclusion, but to argue that the Constitution requires that courts regulate social policies to limit such exclusion seems to be an extraordinary reading of law. …in all instances, I would leave the decision in the hands of the electorate.”

Oct./Nov. 1998 – Richard B. Freeman, PhD 


Myron Weiner, PhD, late Professor of Political Science at the Massachusetts Institute of Technology, in an Oct./Nov. 1998 Boston Review essay entitled “Messy Realities,” made the following remarks:
“What we don’t need–at the expense of workers and taxpayers–is the kind of solution [where] everyone present within the boundaries of the United States ought to have the same rights and benefits. It would be politically irresponsible to turn these legislative issues over to the courts to decide on the basis of constitutional principles. Instead, we need reasoned analysis and public discussion of how we can balance diverse objectives to accomplish what is fiscally possible, what is humane, and what best serves the goals of incorporating migrants into citizenship, deterring illegals, maintaining public health, and protecting children.”

Oct./Nov. 1998 – Myron Weiner, PhD 


 

The University of South Alabama, in a Jan. 31, 2006 enrollment services website section entitled “Constitutional Rights of International Students and Scholars,” stated:
“People often speak about the Constitution and their ‘Constitutional Rights’ or ‘Civil Liberties.’ […] Very few people have taken the time to read the Constitution of the United States and to understand their rights and how they work. The Constitution refers to three kinds of people to whom the Constitution applies: citizens, persons, and the people. Those distinctions mean that aliens have some rights, but not all. In looking at Constitutional Rights, note first to whom the discussion applies…
If you are an alien who has been admitted to the U.S., then generally you have these rights. If you entered the U.S. illegally and were, therefore, not properly ‘admitted,’ then some of the protections do not apply to you… Under the basic rules of international law, every state (country) has the sovereign right to determine who may enter and remain within its borders and under what conditions. In general, a person who is not a citizen of a country has no ‘right’ to be in that country. As an alien, not a citizen, you do not have all of the rights or protections that a citizen has.”Jan. 31, 2006 – University of Southern Alabama 

Read more @ immigration.procon.org

 

United States Supreme Court

PLYLER v. DOE, (1982)

– FindLaw.com

 

– Burger’s Dissent

“Were it our business to set the Nation’s social policy, I would agree without hesitation that it is senseless for an enlightened society to deprive any children — including illegal aliens — of an elementary education. I fully agree that it would be folly — and wrong — to tolerate creation of a segment of society made up of illiterate persons, many having a limited or no command of our language.  However, the Constitution does not constitute us as “Platonic Guardians,” nor does it vest in this Court the authority to strike down laws because they do not meet our standards of desirable social policy, “wisdom,” or “common sense.” See TVA v. Hill,437 U.S. 153, 194-195 (1978). We trespass on the assigned function of the political branches under our structure of limited and separated powers when we assume a policymaking role as the Court does today….

In a sense, the Court’s opinion rests on such a unique confluence of theories and rationales that it will likely stand for little beyond the results in these particular cases. Yet the extent to which the Court departs from principled constitutional adjudication is nonetheless disturbing.

I have no quarrel with the conclusion that the Equal Protection Clause of the Fourteenth Amendmentapplies to aliens who, after their illegal entry into this country, are indeed physically “within the jurisdiction” of a state. However, as the Court concedes, this “only begins the inquiry.” Ante at 215. The Equal Protection Clause does not mandate identical treatment of different categories of persons.Jefferson v. Hackney, 406 U.S. 535, 549 (1972); Reed v. Reed, 404 U.S. 71, 75 (1971); Tigner v. Texas, 310 U.S. 141, 147-148 (1940).

The dispositive issue in these cases, simply put, is whether, for purposes of allocating its finite resources, a state has a legitimate reason to differentiate between persons who are lawfully within the state and those who are unlawfully there.”

Read the entire Plyler v. Doe Supreme Court 5-4 Decision here @ FindLaw.com