Q&A: Do migrants who enter illegally get ‘due process’?

Donald Trump
The Associated Press

WASHINGTON (AP) — President Donald Trump claims this week on Twitter that America’s immigration problems could be solved by “simply” stopping migrants at the border and denying their access to a judge after entering the country illegally.

But it’s nowhere near that simple — or legal.

Here’s a look at how Trump’s immigration talk squares with reality:

CAN PEOPLE BE TURNED AWAY AT THE BORDER?

Not necessarily. After people enter the U.S., they fall under its jurisdiction and laws.

If they are from Mexico, they can be sent back over the border. But Mexico can’t be forced to accept people who come from other countries, and many of the migrants illegally crossing the southern U.S. border are traveling from countries in Central America such as Honduras and El Salvador where extreme poverty and a spike in violence triggered a wave of migration north.

So the first question after a person winds up in U.S. custody for illegally crossing the border is whether they can even be returned to their home country or if they have a legitimate claim to be inside the United States.

DOES THE CONSTITUTION APPLY?

The Fifth Amendment of the Constitution provides “due process of law,” meaning that a person has certain rights when it comes to being prosecuted for a crime. And the 14th Amendment says no state can “deny to any person within its jurisdiction the equal protection of the laws.”

The courts have generally interpreted that to mean that once a person has crossed the U.S. border, that person has the right to present his or her case, including any claim of political asylum.

Conservative commentators often criticize these rulings, or ignore them. But access to the U.S. court system by non-citizens was in part why President George W. Bush opted to detain terror suspects at Guantanamo Bay, an area leased to the U.S. military by Cuba. Keeping terror suspects off U.S. soil kept them outside the reach of civilian judges who might object to their treatment or lengthy detentions.

(Trump during the 2016 campaign suggested he liked this approach of a U.S. prison outside the scope of America’s legal system, promising to “load it up with some bad dudes.”)

WHAT DOES ‘DUE PROCESS’ LOOK LIKE?

Due process can look different for each case. Rules for refugees, for example, differ from those seeking political asylum. A person’s criminal record can play a role too, as can the location of entry, such as a designated port of arrival versus other parts of the border.

Under current rules, a person detained within 100 miles of the border and who has been in the country for less than 14 days can be deported immediately, without being processed through immigration courts.

But the person can also claim asylum, triggering a series of screenings by the federal government to determine if they are eligible. To qualify, they must demonstrate that they fear persecution as a result of their race, religion, political opinion or other factors.

According to the nonpartisan Migration Policy Institute, about 76 percent of people receiving this “credible fear” interview are approved and their case is referred to an immigration judge.

Some people are released during the process, while others are required to wait in detention, depending upon the details of their case.

SO WHAT’S THE HOLDUP?

The process of determining a person’s claim to stay inside the United States can takes months or years to render a decision, in part because of the large number of cases and a shortage of immigration judges.

The Justice Department immigration courts division has about 335 judges currently on staff nationwide, with a budget for 150 additional judges. But that’s not nearly enough to manage the backlog of some 700,000 immigration cases and counting.

Attorney General Jeff Sessions, who oversees immigration courts, has sought major changes to unclog the court, including hiring more judges and prosecutors, imposing quotas on judges to try to get them to work through cases quickly, and trying to condense what is typically a monthslong prosecution process into a single day.

But critics say there are serious drawbacks to his approach. They say quotas interfere with a judge’s ability to remain impartial and that jamming cases through an already overwhelmed system violates a person’s due process.

The National Association of Immigration Judges, which has taken particular exception to the quotas for immigration judges, says politics in general has created an “impending implosion ” of the system and wants to pull immigration judges out from under the Justice Department’s purview.

WHAT ABOUT THE BORDER WALL?

It’s true that Trump’s desire for a border wall could lesson some of the legal complications of immigration. If no one can physically enter the United States, the pressure on U.S. immigration courts would ease somewhat.

But that wouldn’t account for people who enter the country legally and overstay their visa. Other drawbacks include the cost and logistics of what it would take to build an imposing structure spanning 2,000 miles (3,200 kilometers) across the southern border.

Mexican officials have flatly rejected paying for the wall, as Trump insisted during his presidential campaign would happen. And Congress has balked at giving him the $25 billion he wants and provided only $1.6 billion, much of which will be used to replace existing structures.

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See AP’s complete coverage of the debate over the Trump administration’s policy of family separation at the border: https://apnews.com/tag/Immigration

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