By: Yitzchak Fried  | 

Deporting Our Illegals: Facts, Rhetoric and Our Constitutional Principles

President Trump is cracking down on illegal immigrants. This isn’t a surprise, given his strident campaign promises to rid the country of illegals and, famously, to build a wall on the Mexican border. By all accounts, the crackdown has been vigorous, with over 600 suspected immigrants arrested in a single week.

This should give us pause. The United States has the right to deport illegal immigrants. But it is also true that even illegal immigrants have Constitutional rights. This point may be surprising, and so bears emphasis. Most of the fundamental liberties enshrined in the Constitution are equally applicable to non-citizens, legal and non-legal, including equal protection under the law, due process, and freedom of speech, assembly and religion. In the words of Georgetown professor David Cole, the presumption that noncitizens have less Constitutional protection than citizens “is wrong in many more respects than it is right.” (For more on this, see Cole’s article, “Are Foreign Nationals Entitled to the Same Constitutional Rights As Citizens?” in the 2003 edition of The Thomas Jefferson Law Review.)

Although the Supreme Court has given Congress a wide berth to decide how to deal with immigrants, it has upheld that the “due process” protected by the Fourth, Fifth and Fourteenth Amendments equally applies to illegal aliens. This means that illegal immigrants are entitled to due process before being deported – in other words, to a hearing in which they are presented with the reasons for their deportation and in which they have access to legal counsel. It means that illegal immigrants cannot be detained unduly without trial. And it also means that, without a warrant from a judge, members of Immigration and Customs Enforcement cannot enter an illegal immigrant’s home in order to arrest them.

But it doesn’t seem like the Trump administration cares about preserving these protections. As the NYT reported, Trump seems to be bent on using a procedure known as “expedited removal,” which allows the government to bypass due process rules in some deportation cases. But while the Obama administration limited this policy to immigrants within 100 miles of the border and who had been in the country for less than 14 days, John Kelley, the director of Homeland security, has directed it towards immigrants who have been in the country for up to two years.  The due process protections of these illegal immigrants have essentially become a dead letter. As Greg Siskind, a lawyer for the American Immigration Lawyer’s Association put it, “I see now what the plan is; their plan is basically to have everyone thrown out of the country without ever going to court.”

Even ICE veterans of previous Republican administrations find the current policy disquieting. Julie Myers Wood, head of ICE under George W. Bush, said that expedited removal “[has] never been used that way. The administration is really testing the boundaries of what’s acceptable, [and] [t]here’s some litigation risk here.” Far from being a standard matter of executive discretion, Trump’s current policy is a historic challenge to basic Constitutional liberties.

This is scary. Whatever your feelings about illegal immigrants, their fundamental rights should be protected, because their rights are our own. Probably to dispel fears, the government has erected a careful smokescreen to hide the fact that Constitutional liberties are being eroded. The Department of Homeland Security has termed the removal of illegal immigrants a matter of national security. Illegal immigrants, they claim, “routinely victimize Americans,” “[ignore] the rule of law” and “pose a [danger]” to the American people. Indeed, the current administration has gone out of its way to characterize illegal immigrants as a unique category of threat. It plans to open a separate department in Immigration and Customs Enforcement to help families victimized by undocumented immigrants. Government action primes our perceptions, and we are being primed to see illegal immigrants as an ominous class of outsiders.

By using the rhetoric of national security, the government fosters a judgement-addling panic and claims that its curtailment of civil rights is necessary in the face of public danger. As Trump proclaimed in a Twitter message on February 11, “the crackdown on illegal criminals is merely the keeping of my campaign promise. Gang members, drug dealers & others are being removed!” But this rhetoric is both dangerous and untrue. As the NYT reported, research shows that lower levels of crime exist among immigrants than among native born Americans. And the Trump administration’s raids are hardly directed at drug lords and gang members exclusively, or even predominantly. Rather, Trump’s executive order prioritized all illegal immigrants for deportation – even those without a criminal record.

A case in point is the recent, well publicized arrest of Guadalupe García de Rayos, a mother of two who has lived in the U.S. since she was fourteen. Her children are legal American citizens, and she is neither drug lord nor gang member. If de Rayos is deported using expedited removal (watch for it in the news), it will be chilling evidence of how a narrative of fear is being used to deprive people living in the United States of their civil rights.

Americans must unite around the fundamental liberties guaranteed by our society. The Constitution enshrines the basic goods that all persons living on American soil deserve – legal or non-legal. Let us not lose them in an orgy of fear.