Much Ado About Due Process

Why should ICE be spending hundreds of millions of dollars transporting and imprisoning people around the world? It’s illogical, but perhaps that’s what it means to be a racist in Trump’s America?

Much Ado About Due Process

by C. A. Matthews

The term due process has been in the news lately, but what does the US Constitution say about due process? According to Wikipedia:

The Fifth Amendment's Due Process Clause ensures that no person can be deprived of life, liberty, or property without fair legal procedures. It protects individuals from arbitrary government actions and guarantees certain legal rights in both criminal and civil cases.

A Due Process Clause is found in both the Fifth and Fourteenth Amendments to the US Constitution, which prohibit the deprivation of "life, liberty, or property" by the federal and state governments, respectively, without due process of law.

So, what does due process mean in the legal sense? According to Wikipedia:

Procedural due process requires government officials to follow fair procedures before depriving a person of life, liberty, or property. When the government seeks to deprive a person of one of those interests, procedural due process requires the government to afford the person, at minimum, notice, an opportunity to be heard, and a decision made by a neutral decision maker.

This protection extends to all government proceedings that can result in an individual's deprivation, whether civil or criminal in nature, from parole violation hearings to administrative hearings regarding government benefits and entitlements to full-blown criminal trials.

So, who is entitled to the right of due process—the right to have the opportunity to defend oneself when one is accused of a crime or misdemeanor by the government? The Constitution says a person is entitled to the right of due process. It’s not for citizens alone, in other words.

Who exactly is a “person” has been argued and decided before the Supreme Court in the past. The US Constitution once stated that an enslaved person of African ancestry was only “3/5 of a person” for population census purposes, and therefore, he or she was not a person, but we’ve moved past that (hopefully). The current take is that every person currently within the borders of the US, whether they’re a citizen, a permanent resident (green card holder), living here under a temporary status (TPS, DACA, etc.), a tourist, or an undocumented person (without status) is entitled to due process.

No exceptions.

Now, this is where some folks could argue that not everyone who looks like a person is qualified to be called a person. (Read my piece, Verify Your Humanity.) I know I have my doubt over the humanity of some persons, but the Constitution doesn’t say “a citizen” or “a moral individual who wouldn’t deny others their legal rights” is the only kind of sentient being who has the right of due process. It says simply “a person” has the right of due process under law.

So far, permanent residents (green card holders), those with a valid student visa, and US citizens of color have been kidnapped by agents of ICE (Immigration and Customs Enforcement), but the federal government isn’t saying those who have been kidnapped are not persons. The government isn’t arguing personhood. It’s just ignoring these persons’ rights to due process under the law as stated in the Fifth and Fourteenth Amendments.

That’s it.

Whatever the Fifth and Fourteenth Amendments say about the right of due process, the federal government as of today is choosing to ignore it. And by simply not following the rules, they are transporting people they don’t like (for whatever reason) far, far away—even as far away as an El Salvadoran prison known for its torture of inmates. What ICE is doing could be termed “unconstitutional,” whatever that term now means under the present administration.

Apparently, there’s nothing anyone can do to stop ICE from defying the Constitution. It’s not like Congress has rallied federal troops to stop them. It’s not like the Supreme Court has its own militia or judicial guard that can take on Homeland Security and shut down ICE operations. It’s only the Executive Branch, the president, who has been give the power under the Constitution to stop what ICE is presently doing.

“But, but, the president is causing all this to happen!” you cry. You’re right. But what are you going to do about it? It’s time to think seriously about this question because it’s doubtful this behavior is going away anytime soon.

There are some who argue that “illegals” have broken the law by entering the US in the first place and that’s why the don’t deserve due process as stated in the US Constitution. For the record, “illegals” or “illegal alien” is not a legal term. It’s a racist/elitist slang term. People without an immigration status are called “undocumented persons” in immigration courts.

The Due Process Clause states that all persons in the US have the right to be given “an opportunity to be heard, and a decision made by a neutral decision maker.” This means all persons in the US are entitled to a hearing before a judge whether or not they have proper documentation.

Another racist myth needs to be debunked here: People entering the US without the proper visa/paperwork are not in violation of criminal or civil law. US immigration matters fall under the heading of “administrative law,” which explains why there are separate immigration courts and immigration judges that aren’t connected to any other court system, local, state, or federal. Undocumented persons with a clean record are not considered “criminals” however much they have been painted as such by those pushing racist/elitist agendas.

I know all of this is difficult to wrap your head around, especially if you grew up watching Perry Mason or L.A. Law or any of a number of Hollywood TV shows or movies, but there are different types of law in the United States. It was a very challenging concept for me to grasp when I began studying immigration advocacy, but hang in there while I break it down for you.

Foreign persons entering the US are protected by the Constitution no matter how or when they physically entered the country. They are protected from “arbitrary government actions,” such as the denial of due process, whether or not they possessed the correct paperwork (a visa) when they entered or if their visa expires before they leave. And this is the most common way people become “undocumented” in the US—they simply overstay their visa by a day or a month or a year or more.

The vast number of immigrants enter the US via an international airport while in possession of proper documentation from the US government. That’s right—most immigrants aren’t crossing our southern border on foot or strolling into the US from Canada. The images of hordes of people of color wading across the Rio Grande, invading “the land of the free white man,” is yet another example of a racist/elitist myth told to engender race hatred.

Yet another racist myth is that all immigrants are illiterate and uneducated. However, statistics show that immigrants are far more likely to be college educated, and, on the whole, they hold more advanced degrees than most Americans.

Can you see how much racism and jealousy plays into this situation?

To recap, the only infraction of the law an immigrant without proper documentation is guilty of is an administrative one. They aren’t guilty of a “crime” in the criminal or civil law sense. They just didn’t file the right paperwork in time. That’s it. They may have overstayed their visa or didn’t understand that they needed one, but they aren’t “rapists,” “murderers,” “drug dealers,” or even “gang members.” They are people looking for a safe home. They cannot be termed a “criminal” under US law unless they were convicted of a serious civil or criminal offense within US borders.

If a person didn’t file the correct US Customs and Immigration Service (USCIS) forms, it can be corrected by following protocol—that is, by re-entering the country with the right forms submitted to USCIS and the appropriate fees paid. (And yes, the USCIS fees are unbelievably expensive and must be paid in full. And no, immigrants do not receive free legal advice on how to fill out these complicated forms, nor can they get a free lawyer from the state to represent them in court. They are obligated to find and pay for legal representation for themselves.)

So why all this hysteria by the Trumplings who say they’re deporting rapists and gang members if this isn’t a thing? You tell me! Statistics show that immigrants of all statuses are the least likely to commit serious crimes. If given the choice of whom I‘d want living in my neighborhood, I’d choose hard-working, honest immigrants any day.

Another cool fact I learned in my immigration advocacy studies is that even undocumented persons (those without a green card or temporary work permit) have to pay income taxes on their wages, and they do! Undocumented workers can and do file and pay their local, state, and federal taxes, by forming their own businesses and obtaining a business EIN number in lieu of a Social Security number. Immigrants are some of the most successful entrepreneurs in the US. Jealous much, Mr. Musk?

The taxes that undocumented persons pay through this method are never counted toward Social Security benefits even if they eventually become naturalized citizens. These taxes are 100% profit for the government. So, whenever someone spouts off nonsense like “illegals are taking our Social Security,” realize they’ve fallen for just another racist/elitist myth.

That’s why this sudden need to kidnap immigrants, deny them due process, and fly them out of the US makes zero sense. These people have been paying taxes and most never expect to receive any government benefits whatsoever. Plus, the costs of the plane trips to El Salvador or across the country to an “ICE detention center” (a euphemism for a prison) are exorbitant.

Think about it: These flights are being financed with your tax dollars. Wouldn’t you like tax dollars to go toward things that help people rather than hurt people?

Other than exercising their rights to be thugs, why should ICE be spending hundreds of millions of dollars transporting and imprisoning people around the world? We could use those tax dollars here at home. It’s illogical, but perhaps that’s what it means to be a racist in Trump’s America?

Or a zy-0h-nist. I don’t spell the z-word correctly because it means an automatic shadow-ban on most social media platforms. But z-word supporters are probably behind the Trump’s administration executive order to kidnap and detain foreign college students and others who have expressed sympathy with the plight of Palestinians in Gaza and the West Bank.

Think of this administration’s senseless terrorizing of students studying to be doctors, engineers, computer scientists, lawyers, teachers… Foreign students who are legally in the US, paying taxes on any wages they earn. Students learning more about life in America and teaching Americans what it’s like to live elsewhere on the globe. Why are Trump and his z-word cronies so scared of Americans knowing what’s life is like for other human beings?

Anyone with half a brain and a computing device has seen photos and videos of the genocide happening in Gaza these past 18+ months. Even the mainstream media has mentioned some of the horrors happening there. You might not care one way or the other about what happens to the Palestinian people, but you can’t deny that it’s happening.

Z-word sympathizers probably are thinking: “Let’s sic ICE goon squads on these pro-Palestine college students and lock them up in ICE prisons and don’t allow them to contact their family members or lawyers for weeks on end. Let’s deny them due process so they won’t know what exactly they’ve been accused of in the first place.”

“The Constitution might say all persons have the right of due process, but we’ll made sure they don’t. They’re no longer persons in our eyes, and we can do whatever we want to them. Ha ha! We win!”

Sadistic bastards, zy-0h-nists. No wonder they feel at home in Trump’s America.

To American citizens who are still scratching their heads about why the denial of due process matters to them, here’s a short scene demonstrating the seriousness of the administration’s recent actions.

Much Ado About Nothing?

It’s a sunny day. A white guy wearing a black hoodie is walking down a sidewalk in small town USA. Suddenly an unmarked van zooms around the corner and stops abruptly next to him. Several masked men without police identification of any kind jump out of the van and grab him, throwing him violently to the ground, and cuffing him.

White Guy: Hey! What’s up? I wasn’t doing anything. Who are you?

Masked Man: We’re ICE, and we’re taking you with us.

WG: What? Why? I’m an American. I ain’t no foreigner.

MM: That’s what they all say! Get in! (He pushes the White Guy into the unmarked van and the rest of the men follow suit.)

WG: I can prove I’m a citizen. I was born right here in this town. My birth certificate’s at the courthouse. Let me call my family, and they’ll get the proof.

MM: (Getting behind the wheel.) Sure, sure… You’re ours now. We’re going to ship your gangster ass to El Salvador.

WG: But, but, but… I’m an American. I voted for Trump!

MM: So you admit to breaking the law?

WG: No, I’m a citizen! I can prove it. I want to see a lawyer.

MM: No can do, gang member. The tats and hoodie say you are.

WG: Gang member? Hey, I’m wearing a hoodie because it’s cool outside. I’ve never been a gang member. Let me call the pastor of my church. He’ll vouch for me. And lots of people have tattoos nowadays. They don’t mean anything criminal. One’s a picture of my ex-girlfriend.

MM: You talk too much. Gag him, guys.

And off to ICE custody goes the White Guy who thought he was safe because he didn’t look “foreign” and had the right to due process under the Constitution.

Without due process, you don’t get a chance to back up your claims of citizenship. Without due process, you don’t get a chance to stand before a judge and provide evidence. Simply being there when ICE wants to arrest and detain you is good enough for them. If they want to kidnap you off the street or beat down your door, that’s what they’ll do. The Trump administration is even saying there’s no need for a warrant from a judge to do so now. And there’s nothing you can do about it.

Once the prisons fill up in El Salvador and at Gitmo, I wonder where ICE will be sending folks next? Greenland?

Let’s don’t find out. Let’s do something about it. Speak out and join groups who are working on doing something about it before it’s too late. The denial of due process is a serious matter. It affects every person in the US. Someday it could adversely affect you or someone you love.

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