Immanuel Can wrote: ↑Sat Apr 26, 2025 3:58 pm
But which "process" is "due" in this case?
To “prove” what is due in US jurisprudence, one refers to
established case law:
Legal Rights for Undocumented Immigrants
A series of U.S. Supreme Court cases spanning over a century sequentially established due process rights for undocumented immigrants. Such rights should apply even more to the subgroup of undocumented immigrants who are residing in the United States because they are fleeing persecution. Many of these cases expanded upon the Equal Protection Clause of the Fourteenth Amendment, which initially guaranteed “equal protection of the laws” to “all persons born or naturalized in the United States,” but did not directly address the matter of undocumented immigrants or those meeting criteria for asylum.
Yick Wo v. Hopkins (1886) guaranteed due process rights not only to newly freed African Americans, but also legal immigrants such as Chinese immigrant Yick Wo.11 Here, Justice Matthews opined: The Fourteenth Amendment to the Constitution is not confined to the protection of citizens…. These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality, and the equal protection of the laws is a pledge of the protection of equal laws [Ref. 11, p 369]. Shortly thereafter in Wong Wing v. United States (1896) the Court ruled that, although Wong Wing was an undocumented immigrant detained for unauthorized entry into the country, due process rights applied to him.12 Here, Justice Field opined, “The majority of the Justices in this case hold that whatever might be true as to the power of the United States to exclude aliens … could only be lawfully exercised after a judicial trial” (Ref. 12, pp 238–9), and then goes on to add, “But I do not concur, but dissent entirely, from what seemed to me to be harsh and illegal assertions made … to deny the accused the full protection of the law and Constitution against every form of oppression and cruelty to them” (Ref. 12 p 239). Although peripherally related, United States v. Wong Kim Ark (1898) further expanded the reach of the Fourteenth Amendment by declaring that the children of “resident aliens,” or foreign nationals residing within the United States, are indeed to be considered full citizens and be granted the rights conferring therein (Ref. 1313, pp 693–4).
The turn of the 20th century was punctuated by one of the most crucial cases in undocumented immigrant law heard by the Supreme Court in Yamataya v. Fisher (1903).14 Although the court actually ruled against Kaoru Yamataya, a Japanese immigrant in this case, it did uphold and confirm that undocumented immigrants are guaranteed due process rights in deportation hearings, and specifically stated that such individuals could not be acted against without a fair hearing.
The modern definition of a fair hearing in removal proceedings for this population is found in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 under 8 U.S. Code § 1229a,15 which clearly states, “the alien shall have the privilege of being represented, at no expense to the Government,” and “the alien shall have a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien's own behalf, and to cross-examine the witnesses presented by the Government …” (Ref. 15 ¶(b)(4)).
The phrase “right to counsel at no cost to the government” is quite noteworthy. This suggests that, while legal counsel is considered a right for undocumented immigrants, the government will not absorb the cost of providing such counsel. Without dedicated nonprofit organizations, such clients would be responsible for representing themselves. This is in stark contrast to the U.S. criminal justice system in which all defendants are provided counsel, even if they cannot afford an attorney.
Given that deportation hearings are administrative rather than criminal proceedings, some have argued that due process rights need not apply. However, these arguments are directly countered by the Supreme Court's opinion in Bridges v. Wixon (1945), in which Justice Murphy opined that: Though deportation is not technically a criminal proceeding, it visits a great hardship on the individual and deprives him of the right to stay and live and work in this land of freedom…. That deportation is a penalty … cannot be doubted. Meticulous care must be exercised lest the procedure by which he is deprived of that liberty not meet the essential standards of fairness [Ref. 16, p 154]. These sentiments are further supported by the Court in Wong Yang Sung v. McGrath (1950) in which it defined aliens as a “voteless class of litigants who not only lack the influence of citizens, but who are strangers to the laws and customs in which they find themselves involved and who often do not even understand the tongue in which they are accused” (Ref. 17, p 46).
In Plyler v. Doe (1982), the Supreme Court reversed a Texas statute that barred illegal immigrants and their children born outside of the United States from obtaining a free public education.18 Here again, Justice Brennan cited the Equal Protection Clause of the Fourteenth Amendment, and went on to opine, “Whatever his status under the immigration laws, an alien is surely a ‘person’ in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments” (Ref. 18, p 210). The same year the court decided that those considered resident aliens who are not citizens but are given a foreign work permit are entitled to the same due process rights as citizens in Landon v. Plasencia.19
