Due Process Gone Wild

The National Catholic Reporter (NCR) recently ran an article titled “Without a Lawyer, Immigrants Lost in a System Stacked Against Them.” It claims that thousands of immigrants are being denied due process because they don’t get a free lawyer at taxpayer expense.

To hear the “experts” consulted by NCR, you’d think the American immigration system was set up to play dirty tricks on foreigners. They claim:

• Aliens don’t have full due process rights.
• There’s a presumption of “guilt” in immigration proceedings.
• U.S. citizens are regularly deported by the immigration court.
• Immigrants have no right to counsel.

But these assertions are utterly spurious:

The 14^th Amendment to the Constitution clearly states that all persons within the United States are entitled to both due process and the equal protection of the laws. And the Supreme Court has repeatedly affirmed this fact in Yick Wo v. Hopkins, Wong Win v. United States, Yamataya v. Fisher and Alameida-Sanchez v. U.S.

There is no presumption of “guilt” in immigration proceedings, because they are civil, not criminal. The U.S. Immigration Court has no authority to adjudicate guilt for any criminal offense. It may only determine whether an alien is subject to removal from the U.S. Deportation isn’t a form of punishment, it’s returning people to the country where they hold citizenship and are legally entitled to live.

There’s no evidence that the immigration court has a habit of deporting U.S. citizens. Northwestern University’s partisan Deportation Research Clinic (DRC) estimates that 0.005 percent of “people deported are citizens who were unable to prove their claims.” In plain English, that means some people in immigration proceedings claimed citizenship as a defense against removal but couldn’t provide evidence to substantiate their claims, so they were deported. That’s how courtroom proceedings are supposed to work. And it hardly establishes an epidemic of inappropriate deportations.

In an ideal world no U.S. citizens would ever be accidentally deported. However, the fact that it happens is not a reflection on the quality of justice that immigrants receive in U.S. courts. It is a reflection of the fact that the U.S. has no central index of citizens and no easy way of proving citizenship, unless one applies for a passport.

And immigrants do have a right to a lawyer – just not a free one. 8 U.S. Code § 1362 explicitly states that anyone in removal proceedings is entitled to counsel at his/her own expense. Free, court appointed attorneys are available to anyone in criminal proceedings. But no one is entitled to counsel at government expense in a civil proceeding, not even U.S. citizens.

American justice is based on fundamental notions of fairness. Far from being stacked against immigrants, our system even protects the rights of illegal alien felons. Expecting those who violate our borders to pay for their own immigration lawyer is neither unfair nor unreasonable. But it would be  inexcusable if American taxpayers were forced to bear the cost of a lawyer for every foreigner in deportation proceedings