Due Process is Overdue for Detainees
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. – Preamble of the U.S. Constitution
The United States Constitution, as we all know, is the foundation of our great nation. It defines who we are as a collective people as well as articulates the rights and responsibilities that we all share. Our Constitution was and remains a masterpiece. Drafted by our forward-thinking forefathers, it has helped our Nation advance in ways no one could have imagined then, and has influenced the creation of constitutions of many other nations since. While we take for granted these freedoms generally, immigration lawyers have the unique privilege of being constantly reminded. Every client we help enter or remain in the United States has a story, and every story boils down to freedom.
In a casual conversation last week with a close friend (who happens to be an immigrant himself), he mentioned to me in passing that he believed the Constitution only applied to those individuals who are lawfully present in the United States. He stated that if the government wished to seize property, what would stop it from seizing property owned by undocumented individuals in the U.S.? When I questioned his statement he was surprised when I informed him that the undocumented were also included as “People” in “We the People…” and were afforded the same Constitutional rights as the rest of Americans.
As surprised as he was, I was astonished that he didn’t know this himself, especially given how frequently we discussed immigration issues. Upon further reflection I realized it was not so farfetched for my friend to reach this conclusion. After all, he must have been listening when I talked to him about my experiences defending immigrants. My stories translated in his mind as follows:
Translation #1: Locked doors = No Due Process
When my friend hears me complain about having to wait outside of Immigration Court because the doors are locked to visitors until my particular hearing is in session - he translated that to “closed hearings”.
Translation #2: Lengthy detentions = No Due Process
When I express my frustrations after winning a case for a detainee, only to learn that even though he is now a lawful permanent resident he has to remain in jail because the government attorney that prosecuted him opted to appeal his case (for the 2nd time), resulting in his detention for over one year – he translates this as “justice delayed is justice denied”. (This particular detainee has yet to meet his toddler son, born shortly before his father's detention)
Translation #3: No Bail = No Due Process
When I file two identical motions requesting bond be set for my clients with the same Judge, a week apart, and one gets granted and the other does not, and there is no explanation for the inconsistencies, he translates that as the actions of an “impartial arbitrator”.
On paper, the 14th Amendment to the U.S. Constitution safeguards us all from the arbitrary denial of life, liberty, or property without due process of law. It holds that no States shall deny anyone equal protection of the laws. While it was clear to me that our Constitution belongs to us all, I now understand why it was not clear to my friend. My experiences defending immigration detainees in the real world painted a completely different picture.
A reminder to my friend, and to the rest of us: The Constitution belongs to ALL of us, regardless of the color of your skin, the language you speak, the religion you follow, or whether you happen to carry a U.S. Passport. Any erosion of our Constitutional rights is an erosion of the essence of who we are as a Nation. We are all obligated to keep one another in check, to make sure that even when the winds of change blow, we hold strong to the core values that make America great.