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Immigration And The Constitution
The 14th Amendment of the U.S. Constitution provides that no state shall deprive any person of life, liberty or property without due process of law and shall not deny any person within its jurisdiction the equal protection of the laws. Due process essentially means everyone has access to the same procedural rights. These procedural rights include, but are not limited to, the right to a fair hearing and representation by an attorney.
There has been a lot of debate as to whether the Due Process Clause applies to undocumented immigrants who have been found guilty of a crime, charged with a crime, or have not been charged but are believed to be engaged in violent criminal activity in the U.S. Undocumented immigrants, also known as illegal immigrants or unauthorized immigrants, have a right to a hearing before being deported. The debate around deportation and Due Process has recently come to the forefront because of the application of the immigration and deportation policies of the current administration to undocumented immigrants who have been accused of perpetrating violent crimes in the U.S.
The current legal debate centers around the issue of whether or not purported Venezuelan Tren de Aragua gang members who are in the U.S. illegally may be immediately deported without a hearing. A large group of alleged Venezuelan gang members were immediately deported and imprisoned in El Salvador without a hearing. The deportations were ordered by the president under an executive order entered on March 15, invoking the Alien Enemies Act of 1798. The President designated the Venezuelan gang members as members of a Foreign Terrorist Organization, by linking them to the Venezuelan president. This Act provides for immediate deportation of undocumented immigrants without a hearing if they are found to be “alien enemies” over the age of 14 and in case of war or incursion. A federal judge has since ordered the deportations stopped with an order to return the deportees in order to conduct a hearing as to whether the Alien Enemies Act was appropriately applied to deny the deportees a Due Process Hearing.
There has also been debate about documented detainees who the current administration is seeking to deport based upon national security concerns. These detainees have been identified by the administration to be “terrorist sympathizers.”
The right to free speech is provided by 1st Amendment of the Constitution, and the equal protection clause of the 14th Amendment allows documented immigrants to speak freely against the United States’ policies or conduct. Through executive order, the administration has ordered that speech purportedly supporting Hamas or pro-Palestinian issues threatens the security of the U.S. As the result, the administration has ordered the detention and deportation of these individuals. Particularly involved are not only those who are here temporarily through student visas, but also immigrants residing in the United States under Permanent Legal Resident Status (known as “green card” status). While these documented immigrants are essentially under the same rights as others to a Due Process hearing, their ability to remain in the U.S. will depend on whether their speech is afforded 5th Amendment protection or is determined to be dangerous to the national security of the United States.
All of these issues are actively playing out across the country and will eventually work themselves up to the U.S. Supreme Court. According to the latest data of the American Immigration Council, there were about 426,541 naturalized citizens and documented and undocumented immigrants residing in Indiana in 2022. The outcomes of pending court cases, including the cases described above, may have a significant impact not only on our state’s economy and in foreign relations, but also on how our U.S. Constitution is applied or not, depending on the goals of the government.
The League of Women Voters supports an immigration policy that promotes the reunification of immediate families, meets economic, business and employment needs and is responsive to those facing political persecution or humanitarian crises. The effect of the current immigration policies and the outcome of federal immigration legal proceedings and ultimately decisions by the U.S. Supreme Court on our state is yet to be determined, but the invocation of fairness in implementing these processes affects each and every one of us.
For more information about the League of Women Voters see www.lwv.org.
The League of Women Voters is a nonpartisan, multi-issue political organization which encourages informed and active participation in government. For information about the League, visit the website www.lwvmontcoin.org; or, visit the League of Women Voters of Montgomery County, Indiana Facebook page.