The Due Process Clause of the Fifth Amendment to the U.S. Constitution is certainly in the news with the Trump Administration claiming it can send certain aliens to a notorious El Salvadoran prison without due process. Even the conservative Supreme Court (without dissent) smacked down this outrageous argument. To their everlasting shame, however, several conservative politicos have doubled down with the suggestion that "illegal immigrants" deserve no due process. Probably, the most prominent example was J.D. Vance's tweet claiming that concerns about due process are nothing more than a subterfuge for a desire to prevent deportations altogether: "When the media and the far left obsess over an MS-13 gang member and demand that he be returned to the United States for a *third* deportation hearing, what they're really saying is they want the vast majority of illegal aliens to stay here permanently." (Apparently, either Yale Law School needs to up its game in teaching constitutional law or Vance wasn't paying attention.)
As I noted in a previous post, however, even if you are a huge fan of rapid mass deportation, there are good reasons to still insist on robust due process. Why? Government officials make mistakes. Huge mistakes. Every day. And in its zeal to reach high deportation numbers, it is clear that Trump officials are making mistakes--lots of them. And U.S. citizens and immigrants with lawful status to be here are caught up in the resulting dragnet.
This week, the Department of Homeland Security sent an email informing migrants that their temporary protective status was terminated, and that the recipient of the letter had seven days to leave the country. The email said: "If you do not depart the United States immediately you will be subject to potential law enforcement actions that will result in your removal from the United States. . . Do not attempt to remain in the United States — the federal government will find you,” it added. “Please depart the United States immediately.”
The problem is that several U.S. citizens received this email. These include a retired Wisconsin university administrator, a Massachusetts immigration attorney, a physician in Connecticut, and an accredited immigration representative in San Diego. These are just the examples of press coverage I could find in doing a quick Google Search--there are likely many more.
In addition, as even the Department of Homeland Security now admits, the email also went to many immigrants in error. The email went to Ukrainians in the United States under the Uniting for Ukraine program – "only for the government to acknowledge those letters were all sent by mistake." The email also apparently went to all immigrants who came to the U.S. using the CBP One App despite the fact that many had been successful in getting a different immigration status--or were in the process of applying for a different status. And in Florida, "some green card holders – Cubans eligible for an expedited path to citizenship under the Cuban Adjustment Act – got the letters."
And ICE is apparently also erroneously placing immigration holds on U.S. citizens--one Georgia-born man (with an Hispanic name) was detained on such a hold in a Florida prison even after his mother showed a Judge his birth certificate. And the stories of U.S. Citizens (Puerto Ricans and--oddly--Native Americans seem to be especially vulnerable) being arrested and detained by ICE has gotten so numerous that Congress has started asking questions.
In other words, this is a hot mess, and suggests that the Trump Administration is using a deeply flawed data base in determining who they can remove. Imagine if you received such an email or were detained by ICE. Wouldn't you be concerned? Wouldn't you want to make sure that you had a right to be heard before being deported (or worse, being sent to an El Salvadoran gulag). As the retired university administrator who received the email noted, the fear of bad things happening are real:
He said he was worried about the possibility of immigration officials showing up at his home, arresting him and ultimately deporting him. As a retiree, he said he was also worried about a reference in the letter to losing benefits because he spent years paying into Social Security and Medicare.
“I was not naive enough to believe that the government never makes a mistake,” he said. “But my fear was that it could compound. And if it compounded, then what were the consequences for me?”
There are lots of reasons why due process is important, some of which I explained in my previous post. One important reason to support due process is to guard against boneheaded governmental mistakes. If only citizens get due process, none of us are protected from being mistakenly listed as non-citizens. Unless you think government officials are infallible--and no conservative I know believes that--all of us benefit from due process. And due process can only protect us if there are no categorical exclusions.
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