
Constitutional Rights
I listened to House of Representatives committee examine the Director of ICE yesterday. What struck me was this. Republicans consistently used the phrase “criminal aliens” to identify those who are in the United States without proper documentation. So here’s my question. If those folks are actual “criminals”, then shouldn’t they get the “criminal rights” that the United States Constitution requires?
The Fourth Amendment requires judicial warrants for searches and seizures based on probable cause. The Fifth Amendment requires indictment by Grand Jury, and due process of law. The Sixth Amendment guarantees a right to a public and speedy jury trial with witnesses, the right to confront the accusers and the right to legal counsel. And the Eighth Amendment guarantees a right to bail. And yet, these “criminal aliens” don’t get any of these rights when it comes to ICE.
Undocumented
The American Civil Liberties Union defines being “undocumented” this way:
The act of being present in the United States in violation of the immigration laws is not, standing alone, a crime. While federal immigration law does criminalize some actions that may be related to undocumented presence in the United States, undocumented presence alone is not a violation of federal criminal law. (ACLU)
A good example of this is someone who comes to the United States on a tourist visa. They enter the country legally, but if they fail to return home within the visa limitations, then they remain in the country without permission. They are undocumented, not criminal.
There ARE undocumented folks who commit “real” crimes. Many of them are in jail right now. (The conservative Cato Institute estimates that there are nearly 70,000 undocumented persons in US Prisons. There are 1.25 million total prisoners in the US, so around 5% are undocumented, about the same percentage as the total number of undocumented in the population). And, many of them are removed from the United States after serving their prison sentence, here.
ICE recognizes that “documentation” is not, in itself, a crime. It’s a “civil” offense, similar to traffic laws on a local level. And they take advantage of that fact, by using “administrative procedures”. Most of the time, if you get a traffic ticket, you pay the fine and go about your life. More serious offenses might require a court hearing, and perhaps suspension of driving privileges. But, unless you commit multiple serious offenses (driving under the influence, vehicular homicide) you aren’t in jeopardy of arrest and jail. A similar “civil law” status gives ICE the powers to hold and remove the undocumented from the United States with little judicial intervention.
Labels
The reality is that the vast majority of undocumented folks in the United States have NOT committed a crime. Labelling them “criminals” is legally incorrect. It’s a political gambit, to stoke fear and justify the draconian measures of Stephen Miller and his “private” army, ICE. But, let’s give them what they’re asking for. Let’s make being undocumented “criminal”.
That ends ICE “renditions” out of state to more “favorable” areas. Midnight flights to Louisiana and Texas violate due process rights. And, those “arrested” for being undocumented ought to have the same bail rights as any other “criminal”, and all those Sixth Amendment rights, including the right to counsel. None of those things are happening now.
The Supreme Court ruled in Yick Wo v Hopkins (US 118 356, 1886) that EVERYONE in the United States; citizens, documented non-citizens, and undocumented non-citizens, have the right to due process of law including Constitutional rights. It’s old, established, Constitutional law. Stephen Miller and ICE are circumventing those rights by treating the “undocumented” as “paperwork” issues. But the resulting penalties; seizure, imprisonment without bail in far away and remote locations, no counsel or judicial proceedings, and deportation from the country, are far beyond what even the real criminals are receiving for their crimes. It’s not just a ticket, and it’s not just “paperwork” when a five-year old with a bunny hat from Minneapolis ends up in Federal “custody” in Texas.
Let’s call it out. Either criminalize the undocumented, and give them their legal rights, or get ICE off the streets, and leave the undocumented alone. Maybe ICE could do what we actually pay them to do: find those dangerous criminals who happen to be undocumented, and use the “paperwork” to get them out of the country, fast.
They’re probably not the ones wearing bunny hats.

