No. of Recommendations: 7
That is the position of this administration, but is that really correct? The Constitution doesn't specify "citizens" in the 5th or 14th. It -as I understand it- applies to the Federal with respect to the individual, wherever that individual is or who he/she is. Is that not correct?
I know "due process" is a little squishier, as it isn't really defined (to my knowledge). But it does require some sort of process that includes review. Yes?
No.
You're correct that the due process you're entitled to in many cases not a person vs. citizen question, or an issue of where the person is. For example, before the government can convict someone of a crime and put them in jail, they have to be given a trial. It doesn't matter whether the accused is a citizen, legal visa-holder, or undocumented. The nature of the dispute - in this case, the government trying to convict you of a crime and put you in jail - means you're entitled to the process that is due to that proceeding.
In the case of immigration, though, the question is one that doesn't give rise to much due process - and arguably none at all. Because the issue is whether a person should be admitted to the country. And the Court's precedent is that Congress has absolute and plenary authority to answer that question however they want. They can just say "no" - they don't have to give a reason, they don't have to set up criteria, they don't have to give you a hearing. Unlike being imprisoned for a crime, no one is entitled to a hearing over whether they should be granted permission to enter the country. Ever.
And the Court has said that doesn't change whether the person is has already physically entered the country in advance of getting permission to enter the country. If you haven't been granted entry to come in, that question remains utterly at the discretion of the federal government - and they are under no obligation to give you any level of process for resolving disputes over it.
They can choose to - and most past Administrations did give hearings to folks to challenge a lot of claims that weren't required to be adjudicated. But they don't have to. Not because of who the person is, but because of the nature of the privilege at issue.
