President Donald Trump on Sunday proposed violating U.S. and international law by deporting “people [who] invade our Country,” presumably referring to undocumented immigrants and asylum-seekers, without affording them their Due Process rights.
“The right to Due Process of law is enshrined in the Constitution and extends to every person in the United States, irrespective of immigration status,” Jeremy McKinney, an immigration attorney and secretary of the American Immigration Lawyers Association, told TPM in an email responding to Trump’s tweet.
“The Supreme Court, for well over a century has expressly recognized a person cannot be deported without Due Process. Due Process at its core means notice and a full and fair opportunity to be heard.”
“I hate that we (as attorneys and media) have to spend any time on this stupidity,” he added.
Trump has attacked immigrants’ legal rights before: In a speech earlier this month, he called some immigration lawyers “bad people” because they advise their clients with asylum claims on what to say in court.
And he attacked lawmakers who’ve called for more immigration judges to help lighten the burdened system’s caseload, lying by saying the government was “hiring thousands and thousands” of new immigration judges. (It’s not.)
“We don’t want judges, we want security on the border,” he said in the same speech. “We don’t want people coming in, we want them to come in through a legal process like everybody else who’s waiting to come into our country.”
Some undocumented people are in fact eligible to be deported without having their case heard by an immigration judge, due to what’s known as “expedited removal,” a part of the Immigration and Nationality Act the use of which has dramatically expanded in recent decades.
However — even aside from many immigrant advocates’ claims that the process has been vastly overused, and that many immigrants are not made fully aware of their full legal rights during expedited removal proceedings — the law still requires immigration judges hear out the claims of asylum-seekers and those who fear persecution if they are ejected from the country.
“If, during the expedited removal process before a DHS officer, an individual indicates either an intention to apply for asylum or any fear of return to his or her home country, the officer must refer the individual for an interview with an asylum officer,” read a 2017 practice advisory from the American Immigration Council, National Immigration Project of the National Lawyers Guild and ACLU Immigrants’ Rights Project.
If an asylum officer rejects an asylum-seekers claim of “credible fear,” the asylum-seeker can appeal to an immigration judge.
“That’s not a loophole,” McKinney told TPM. “That’s Due Process and consistent not only with federal law but our international obligations to protect refugees and asylees.”
Trump’s tweet made no such distinctions.
“What President Trump suggested here is both illegal and unconstitutional,” the ACLU responded in a tweet. “Any official who has sworn an oath to uphold the Constitution and laws should disavow it unequivocally.”
“First immigrants don’t get due process,” Rep. Ruben Gallego (D-AZ) wrote in response to Trump’s tweet. “Then it will be criminals. Then the poor. Then anyone that disagrees with Trump.”
U.S. and international law prohibit the United States from turning away or otherwise penalizing asylum-seekers, the former of which many advocates allege is evident in the now-frequent line to asylum-seekers at ports of entry that they are “at capacity.”
“We are not absolutely saying that they cannot (make an asylum claim), we are just saying that we cannot process them at this time,” a border official protested to one advocate who’d accompanied asylum-seekers to a port of entry, as recorded by the Texas Monthly. The same report described border agents standing directly on the U.S.-Mexico border line, so as to prevent asylum-seekers from completing the necessary step of being on American soil before declaring asylum.
The American Immigration Council, the Center for Constitutional Rights and Latham and Watkins, LLP, have a pending lawsuit against CBP over what they’ve described as systematic unlawful behavior, the outlet noted.
A separate lawsuit filed recently by three asylum seekers alleges Trump’s “zero tolerance” policy violated the law by punishing them, via detaining them and separating their families, despite their asylum-seeking status.
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