The Trump administration has rolled back the right of undocumented immigrants to challenge their detentions. For years, the right to go to court and ask why you are being detained was viewed as fundamental. The right goes by the Latin phrase “habeas corpus,” which literally means “bring the body forward,” but is regarded as a basic part of the due process of law.
As Justice John Paul Stevens wrote 50 years ago, “There are literally millions of aliens within the jurisdiction of the United States. The Fifth Amendment, as well as the Fourteenth Amendment, protects every one of these persons from deprivation of life, liberty, or property without due process of law” (Mathews v. Diaz, citing a case from 1896). His meaning was clear: All persons, not only citizens, must be afforded all constitutional protections once they step on U.S. soil. Habeas corpus applies to everyone on U.S. soil whether a citizen or not. Every administration and the vast majority of federal district court judges have accepted this principle, which allows a defendant to have a bond hearing to determine the limits of their release into the community.
But not the Trump administration.
Trump’s approach is that every noncitizen who entered the U.S. without legal documents is subject to arrest and mandatory detention. They have no right or opportunity to challenge their detention for the whole time they remain in detention. Unbelievably, these rules apply to anyone who now lives legally in the U.S. or has papers pending for citizenship or asylum. Even if they have not committed a crime, are a flight risk, or a threat to public safety! This position flies in the face of a federal law that Congress passed 30 years ago, the Illegal Immigration Reform and Immigration Responsibility Act.
As Politico reports, “At least 360 judges rejected the expanded detention strategy — in more than 3,000 cases — while just 27 backed it in about 130 cases.” And now, incredibly, on Feb. 6, the U.S. Court of Appeals for the Fifth Circuit has joined those 27 judges. In a panel consisting of three judges, the two most conservative judges approved the plan. Judge Edith Jones, a Reagan appointee, and Judge Kyle Duncan, a Trump nominee, joined together to endorse the change. This is the highest court to deal with the loss of due process rights of the detained.
In dissent, Judge Dana Douglas, a Biden appointee, noted that this may mean the unlawful detention of some two million people, “some of them the spouses, mothers, fathers, and grandparents of American citizens … The government’s proposed reading of the statute would mean that, for purposes of immigration detention, the border is now everywhere. That is not the law Congress passed, and if it had, it would have spoken much more clearly.”
So, here are some things that everyone on the Island should know about the change in immigration plaguing the U.S.
Let’s start with the basics: An immigrant or refugee living in the U.S. without official documents is not a criminal. Such a person may be subject to civil penalties such as a fine or even deportation. As the U.S. Immigration Law Counsel notes, “To be considered a criminal, an undocumented immigrant must first have committed a criminal act unrelated to their immigration status.” It is a misdemeanor for people to get caught illegally entering the U.S. It is not a felony.
Second, no one knows for certain how many people living on Martha’s Vineyard have an undocumented status. We know that of the 20,000 year-round Islanders, some 4,000 are Brazilian or Latin American. Nor does anyone know who among the 4,000 are documented immigrants, U.S. citizens, or without documents.
Third, while these are unknown figures, we do know that agents from Immigration and Customs Enforcement (ICE) have arrested and detained over 170 U.S. citizens, and not only foreigners. ProPublica tracked these numbers last fall, and today the total can only be higher still. And we are all familiar with the nonjudicial killing of Renee Good and Alex Pretti, two U.S. citizens whom ICE claims were “interfering” with their tasks. And now, the New York Times reports that several people in a wide range of cities have been shot by Border Control or ICE agents, including the deaths of two Americans, and thousands arrested.
Most importantly, more people should know their rights, especially their due process rights. Anyone residing in the U.S. possesses the rights encompassed in due process: They have the right to challenge their arrest, detention, and deportation in a court of law.
The Fifth Circuit decision will certainly be appealed to the U.S. Supreme Court. But given that Court’s record in mostly upholding whatever the Trump administration wants to do, the outcome now seems pretty dreary. It would be an eye-opening surprise if the justices started to challenge the president’s actions.
Jack Fruchtman, who lives in Aquinnah, taught constitutional law and politics for over 40 years.
The Supreme Court’s jurisprudence indicates that, although aliens present within the United States generally have due process protections, the extent of those constitutional protections may depend on certain factors, including whether the alien has been lawfully admitted or developed ties to the United States, and whether the alien has engaged in specified criminal activity. Therefore, even with regard to aliens present within the United States, the Court has sometimes deferred to Congress’s policy judgments that limit the ability of some classes of aliens to contest their detention or removal. I would simply ask Mr. Fruchtman. If Osama bin Laden had been caught in the US would he have given him habeas corpus? Mr. Fruchtman also seems to imply that just because someone committed a crime does not make them a criminal. Illegal immigrants are criminals. They broke the law. We might have 15million illegals here in the US, and some of them are visiting egregious acts of violence on our population
Criminals are people who have been convicted of a crime.
What crime has Osama bin Laden been convicted of?
Maduro?
Castro?
Trump?
I read the recent letter on immigration detention carefully, and it presents the law as far simpler — and far more settled — than it actually is.
Habeas corpus has never been applied identically to citizens and those who entered the country unlawfully. Congress addressed detention directly in the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, which authorizes mandatory detention in certain immigration cases. Federal courts have long recognized Congress’s broad authority over immigration policy, even when that authority is controversial.
The recent Fifth Circuit decision did not abolish habeas corpus. It interpreted a statute governing detention during removal proceedings — precisely the type of question courts routinely decide. Disagreeing with a ruling does not make it unconstitutional.
It is also inaccurate to describe unlawful entry as purely civil. Illegal entry under 8 U.S.C. §1325 is a federal misdemeanor, and unlawful re-entry can be a felony.
When sweeping claims are made about millions unlawfully detained or widespread killings by federal agents, readers should expect careful sourcing. Constitutional debate requires precision, not alarm.
We can debate immigration policy honestly, but presenting long-standing statutory enforcement authority as a collapse of constitutional rights overstates the case.