The Odessa Record -

Letter to the Editor: Aliens have rights under Constitution

 

March 16, 2017



To the Editor:

Section 1 of the 14th Amendment guarantees due process and equal protection of the law to all persons in the United States. Numerous Supreme Court decisions have consistently defined “person” to be any person, citizen and alien (legally or illegally present) and thus provided due process and equal protection of the law.

1886 Yick Wo v. Hopkins stated that the 14th Amendment applies to all persons (legally or illegally present) in the United States.

1892 Nishimura Ekiu v. United States found that foreign nationals have the constitutional right to invoke habeas corpus.

1893 Fong Yue Ting v. United States declared that foreign nationals are entitled to all the safeguards of the Constitution and to the protection of the law.

1896 Wong Wing v. United States affirmed that non-citizens charged with a crime are protected by the 5th and 6th Amendments.

1898 United States v. Wong Kin Ark asserted that “person” under the 5th Amendment also applies to aliens living in the United States.

1903 Kaoru Yamataya v. Fisher said that the government cannot deport someone without a hearing that meets the Constitutional due process standards.

1973 Almeida-Sanchez v. United States maintained that the 1st, 4th, 5th, 6th, and 14th Amendments protect non-citizens who are legally or illegally in the United States.

1982 Plyler v. Doe found that aliens in the United States have the benefit of the Equal Protection Clause of the 14th Amendment.

2001 Zaduydas v. Davis asserted that due process of the 14th Amendment applies to all aliens in the United States.

It is true that Congress controls immigration as a matter of administrative law, not criminal or civil law, and can make rules for aliens that would be unacceptable if applied to citizens. When it comes to criminal and civil law in those cases where the Constitutionally protected rights of aliens are concerned, the Constitution rules in these cases.

Given the distinction between criminal/civil law and administrative law, immigrants facing deportation do have some rights: a hearing before an immigration judge, representation by a lawyer (but not one that’s paid for by the government), and interpretation for those who do not speak English. The government must provide “clear and convincing” evidence to deport someone (a lower administrative law standard than the criminal law standard of “beyond a reasonable doubt”).

Several criticisms of the Immigration Court system include these: 1) the lack of a sufficient number of judges to hear the huge number of cases resulting in little time for judges to hear each case adequately before rendering a decision; 2) the lack of uniform procedures across the system has led to inconsistent rulings; 3) the lack of transparency often times denies attorneys access to their clients in the deportation centers and judicial proceedings.

And it is the friction between the administrative law and the criminal/civil law that we see at play today when foreign aliens are labeled “criminals” and deported without their day in court, without their attorneys’ having access to them or to their proceedings, with judges having 15 minutes or less to decide each case, without due process, and without equal protection of the law. Any and all of these impediments begin to erode the Constitutional rights the immigrant aliens have.

Duane Pitts

Moses Lake

dpitts2009@hotmail.com

 

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