Recently, I was handed a series of cards by a cultural association to give to individuals instructing them on what to do if they are confronted with an immigration official or officer. This is what is on the card:
I do not wish to speak with you, answer your questions, or sign or hand you any documents based on my 5th Amendment rights under the United States Constitution.
I do not give you permission to enter my home based on my 4th Amendment rights under the United States Constitution unless you have a warrant to enter, signed by a judge or magistrate with my name on it that you slide under the door.
I do not give you permission to search any of my belongings based on my 4th Amendment rights.
I choose to exercise my constitutional rights.
I also checked with The National Immigrants Justice Center to see what they are telling immigrants. This is their advice if an officer knocks on the door.
Do not open the door. Teach your children not to open the door. Officers must have a warrant signed by a judge to enter your home. ICE “warrants” are not signed by judges; they are ICE forms signed by ICE officers and they do not grant authority to enter a home without consent of the occupant(s).
It may surprise you to know that aliens, individuals who are not U.S. citizens and are not U.S. nationals, have these rights. Assuming you do not have them memorized, these are the 4th and 5th Amendments to the U.S. Constitution.
Fourth Amendment
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Fifth Amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The 4th Amendment protects against arbitrary arrests, unreasonable searches and seizures, and requires that warrants be supported by probable cause. The 5th Amendment states that no one is deprived of life, liberty or property without “due process.” The 14th Amendment, added in 1868, extends the Bill of Rights to the states, with Section 1 specifying that no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The Supreme Court ruled in Shaughnessy v. United States ex rel. Mezei (1953), that the Constitution protects all aliens within the United States, even if they have entered unlawfully. They reasoned that aliens are recognized as “persons,” (the term used in the amendments) and thus are guaranteed the process of law.
This sounds clear and straightforward, but in reality, it is much more complicated than this. These rights for aliens are not absolute. Under certain conditions, they can be restricted, and this is happening right now
A couple of institutional realities allow this to happen.
The Plenary Power Doctrine
Courts are the arbiters of rights. If they decide to defer on these matters or allow the political branches discretionary power, restrictions on rights can happen.
In the late 19th century, the Supreme Court developed the “plenary power” doctrine. This doctrine mandates judicial deference on matters of jurisdiction specifically assigned in the Constitution. Both immigration policy and its usual justification, national security, are plenary powers reserved for the legislative and executive branches.
In Shaughnessy v. United States ex rel. Mezei (1953), the Court ruled that noncitizens seeking entry into the United States do not possess constitutional rights. In this case, an alien resident of the United States traveled abroad and remained in Hungary for 19 months. On his return, the Attorney General ordered him permanently excluded without a hearing.
The Supreme Court ruled this was not unlawful detention. “{T]he action of the executive officer under such authority is final and conclusive, the Attorney General cannot be compelled to disclose the evidence underlying his determinations…” The Court was quite clear in stating: “it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government.”
Court Decisions Evolve and are Political
It is also important to realize that this distinction between the political branches (executive and legislative) and the nonpolitical (the courts) is, in large part, fiction. Courts are more than happy to play the role of policymaker.
Let’s look at another landmark immigration case, Pfyler v. Doe 1982. A 1975 law in Texas allowed the state to withhold from local school districts state funds for educating children of illegal aliens.
The Supreme Court ruled against the state with a majority finding “that any resources which might be saved from excluding undocumented children from public schools were far outweighed by the harms imposed on society at large from denying them an education.” The majority ruled that unlawfully present aliens were entitled to both due process and equal protection under the Fourteenth Amendment.
Pfyler v. Doe was a 5-4 decision. Not surprisingly, the majority consisted of 5 of the 6 most liberal justices (Brennan, Powell, Blackmun, Marshall, Stevens); and the minority 4 of the 5 most conservative justices (Rehnquist, Burger, White, O’Connor).
That majority is no longer present and the political right dominates. The Heritage Foundation has Pfyler v, Doe front and center on their chopping block, and have “urged states to pass legislation requiring public schools to charge tuition to families living in the country illegally.” Doing so will provoke a lawsuit that “likely would ‘lead the Supreme Court to reconsider its ill-considered Plyler v. Doe decision.” Pfyler doesn’t strand a chance with the current court.
Look at the most recent Supreme Court ruling on due process and immigration policy, Department of State v. Muñoz (2024).
A U.S. citizen. Sandra Muñoz, challenged the denial of a visa for her husband. The Consular general had cited “unlawful activity,” with no additional information. The ACLU suspects they made the decision based on the fact he had some suspicious tattoos that made it look like he was a member of the MS-13 criminal gang.
Muñoz and the ACLU asked for a review, and were denied. They filed a lawsuit in federal district court claiming that this decision “violated Muñoz’s constitutional right to due process by infringing on her liberty interest in her husband’s visa application and her right to live with him in the United States.”
The district court ruled that while Muñoz had a constitutionally protected liberty interest, the State Department had a good and valid reason for the denial. On appeal, the Ninth Circuit reversed the district court, again ruling that Muñoz possessed a liberty interest in her husband’s visa application, and that the “cumulative effect” of denying an alien spouse’s visa “is a direct restraint on the citizen’s liberty interests protected under the Due Process Clause.”
The current Supreme Court got ahold of it, and they made a 6-3 decision to overturn the Ninth Circuit Court. The opinion was authored by Justice Barrett (joined by Roberts, Thomas, Alito, and Kavanaugh; Gorsuch concurred but wrote a separate opinion.)
They ruled the right to live with your husband is not a fundamental right or liberty, and thus Muñoz did not demonstrate enough protected liberty interest under the Due Process Clause to warrant judicial review.
The dissenters were Justice Sotomayor (joined by Kagan and Jackson). They claimed that Muñoz did possess a constitutionally protected liberty interest because the visa denial burdened her fundamental right to marriage and therefore was entitled to due process protections. Justice Sotomayor claimed that “by leaving U.S. citizens without even a factual basis for their spouses’ exclusion, the majority paves the way for arbitrary denials of a right this Court has repeatedly held among the most important to our Nation.”
Expedited Removal and Due Process
To no surprise, President Trump is flexing his plenary powers and has declared illegal immigration a national emergency. The plan is to massively expand fast-track deportations by eliminating due process rights and bypassing immigration courts.
The legal foundation for “expedited removal” was established in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA). In this Clinton administration law, immigration officials were given additional power to remove noncitizens in the U.S. who lacked valid entry documents and had been in the country for less than two years. The law established that these noncitizens had no right to an attorney, no right of administrative appeal, and no right of judicial review.
Expedited removal was used sparingly until 2004, when it was changed and to justify the removal of all immigrants caught within 100 miles of U.S. borders. The Trump administration has expanded this it to be used nationally.
In January of this year, the American Civil Liberties Union, ACLU of the District of Columbia, and the New York Civil Liberties Union sued the Trump administration. The lawsuit cites. among other things, violations of the 5th Amendment’s due process clause. That lawsuit was filed in the U.S. District Court in Washington, D.C.
We will see what happens.
