Removal of Aliens Who Have Entered the United States

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 offence 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.

Despite the government’s broad power over immigration, the Supreme Court has recognized that aliens who have physically entered the United States generally come under the protective scope of the Due Process Clause, which applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent. Consequently, there are greater due process protections in formal removal proceedings brought against aliens already present within the United States. These due process protections generally include the right to a hearing and a meaningful opportunity to be heard before deprivation of a liberty interest.

The Supreme Court, however, has suggested that the extent of due process for aliens present in the United States may vary depending upon [the alien’s] status and circumstance.⁴ For instance, at times the Court has indicated that at least some of the constitutional protections to which an alien is entitled may turn upon whether the alien has been admitted into the United States or developed substantial ties to this country.⁵ Thus, there is some uncertainty regarding the extent to which due process considerations constrain Congress’s exercise of its immigration power with respect to aliens within the United States.

The Supreme Court has considered due process challenges raised by aliens within the United States who are detained and subject to removal. In Zadvydas v. Davis the Supreme Court in 2001 construed a statute authorizing the detention of aliens with final orders of removal as having implicit temporal limitations. According to the Court, construing the statute in a manner that would allow the indefinite detention of lawfully admitted aliens who had been ordered removed would raise serious constitutional concerns. In the Court’s view, because aliens within the United States are protected by due process, Congress must give clear indication of an intent to authorize the indefinite detention of removable aliens, and the Court indicated there must be some special justification for that detention (e.g., to protect the community from suspected terrorists).

In Demore v. Kim, however, the Supreme Court in 2003 held that the mandatory detention during the pendency of formal removal proceedings of certain aliens who had committed specified crimes was constitutionally permissible. The Court observed that Congress may make rules as to aliens that would be unacceptable if applied to citizens, while also citing its longstanding view that the Government may constitutionally detain deportable aliens during the limited period necessary for their removal proceedings . . . . While recognizing that, under Zadvydas, serious constitutional concerns were raised by the indefinite detention of lawfully admitted aliens who have been ordered removed, the Demore Court reasoned that mandatory detention during the pendency of formal removal proceedings was distinguishable because it served the purpose of preventing criminal aliens from absconding during those proceedings and generally lasted for relatively short periods of time.

Some lower courts construed Demore‘s holding as applying only to relatively brief periods of detention, rather than cases where the alien’s detention lasts for extended periods of time. To avoid constitutional concerns, some courts read federal statutes governing the detention of unlawfully present aliens during the pendency of their removal proceedings as containing implicit time limitations and requiring periodic bond hearings. In 2018, the Supreme Court in Jennings v. Rodriguez rejected that interpretation, holding that the statutes were textually clear in mandating or authorizing the detention of certain aliens during their removal proceedings, and that nothing in those provisions limited the length of detention or required periodic bond hearings. The Court held that the government has the statutory authority to detain aliens potentially indefinitely during their removal proceedings, but left open the question of whether such indefinite detention is unconstitutional.

Additionally, in Department of Homeland Security v. Thuraissigiam, the Supreme Court in 2020 held that an alien detained shortly after entering the United States could not constitutionally challenge a federal statute limiting judicial review of his expedited removal proceedings (a streamlined removal process applicable to aliens apprehended at or near the border). Although the alien had physically entered the United States, the Court determined that he could be ‘treated’ for due process purposes ‘as if stopped at the border’ because he was encountered only twenty-five yards inside the United States and essentially remained on the threshold of entry. According to the Court, the century-old rule that aliens seeking initial entry into the United States lack due process rights would be meaningless if it became inoperative as soon as an arriving alien set foot on U.S. soil. The Court observed, moreover, that only aliens who have established connections in this country have due process protections in their removal proceedings.

The Supreme Court’s jurisprudence indicates that, although aliens present within the United States generally have due process protections, the extent of those constitutional protections may depend on certain factors, including whether the alien has been lawfully admitted or developed ties to the United States, and whether the alien has engaged in specified criminal activity. Therefore, even with regard to aliens present within the United States, the Court has sometimes deferred to Congress’s policy judgments that limit the ability of some classes of aliens to contest their detention or removal.

Why Are There Multiple “Opinions” About Allowing Illegals To Stay Or For Them To Be Immediately Returned To Their Homes?

Crossing a border without proper authorization carries significant legal and personal consequences. Immigration authorities enforce laws governing such crossings, leading to immediate actions against individuals caught in the process. Understanding these encounters is crucial for clarity on rights and potential outcomes.

Initial Apprehension

When caught crossing the border without authorization, U.S. Customs and Border Protection (CBP) agents typically conduct the initial apprehension. Under the Immigration and Nationality Act (INA), agents are authorized to detain individuals suspected of immigration law violations. A preliminary interview is conducted to determine identity, nationality, and entry circumstances, which inform the next steps.

The process varies based on factors like location and the individual’s background. Those with prior immigration violations or criminal records may face different procedures than first-time offenders. CBP agents use databases such as the Automated Biometric Identification System (IDENT) to verify identities and check for existing warrants, facilitating decisions about detention and further action.

Detention and Processing

After apprehension, individuals are usually taken to a U.S. Immigration and Customs Enforcement (ICE) detention facility for processing. During this stage, biometric data collection confirms identity and checks for prior immigration or criminal records, which play a key role in determining eligibility for relief or release.

Detention conditions and duration vary based on individual circumstances and facility capacity. Facilities are required to meet Department of Homeland Security (DHS) standards for living conditions, medical care, and communication with legal representatives. However, reports of subpar conditions have raised concerns and prompted calls for reform. Prolonged detention without timely hearings has also sparked legal challenges, raising constitutional questions about due process.

Expedited Removal

Expedited removal allows immigration authorities to quickly deport certain individuals caught crossing the border without authorization. Established under Section 235(b) of the INA, it is primarily applied to individuals apprehended within 100 miles of the border who cannot demonstrate continuous presence in the U.S. for at least 14 days. This process bypasses immigration court proceedings unless individuals express fear of persecution or torture, which triggers a credible fear interview by an asylum officer.

This procedure aims to enhance border security by enabling rapid deportations and deterring unauthorized entries. CBP officers determine eligibility for expedited removal and must inform individuals of their rights, including requesting protection if they fear returning to their home country. If fear is expressed, a credible fear assessment evaluates eligibility for asylum or other protections.

Possible Criminal Charges

Individuals caught crossing the border without authorization may face criminal charges under U.S. federal law. Illegal entry, defined under 8 U.S.C. 1325, criminalizes entering or attempting to enter the U.S. at unauthorized times or places. First-time offenders may face fines and up to six months of imprisonment. Repeat offenders can face felony charges for illegal re-entry, with penalties of up to two years in prison, or longer for those with prior aggravated felony convictions.

The decision to pursue criminal charges is made by U.S. Attorneys, who consider each case’s circumstances and the individual’s history. Factors such as prior deportations, criminal backgrounds, or smuggling involvement influence prosecutorial discretion. Enforcement priorities vary by administration, with some emphasizing criminal prosecution for border crossings and others focusing on civil immigration processes.

Immigration Court Hearings

Detained individuals may go through immigration court hearings, overseen by judges within the Executive Office for Immigration Review (EOIR), to determine whether they can remain in the U.S. or must be removed. These proceedings involve DHS attorneys advocating for removal.

During hearings, individuals can present evidence and testimony to support claims for relief, such as asylum, cancellation of removal, or adjustment of status. The burden of proof lies with the individual, making legal representation critical. Judges consider factors like family ties, residence duration, and humanitarian circumstances when making decisions. Outcomes vary, with some individuals granted relief and others ordered removed.

Future Entry Restrictions

Individuals removed or who voluntarily depart after crossing the border unlawfully often face future entry restrictions. These restrictions, based on the INA, significantly impact the ability to return to the U.S. legally. The most common consequence is a re-entry bar, ranging from five to 20 years depending on the circumstances of removal and prior immigration violations.

Re-entry bars are strictly enforced and deter unauthorized re-entry. Some individuals may apply for a waiver, requiring proof of extreme hardship to a U.S. citizen or lawful permanent resident family member. The waiver process is complex and typically requires legal assistance. Violating re-entry restrictions can lead to severe penalties, including criminal prosecution and permanent inadmissibility.

Voluntary Departure

In some cases, individuals caught crossing the border may qualify for voluntary departure, allowing them to leave the U.S. at their own expense without a formal removal order. Governed by Section 240B of the INA, this option avoids the re-entry bars that accompany deportation orders.

Voluntary departure can be granted before or after immigration court proceedings. Before proceedings, individuals may have up to 120 days to leave, while those granted departure afterward often have a shorter timeframe, such as 60 days. Eligibility requires good moral character, financial means to leave, and compliance with the departure order. Certain criminal convictions, like aggravated felonies, disqualify individuals.

While voluntary departure spares individuals from harsher consequences, failure to leave within the specified timeframe can result in fines, a 10-year re-entry bar, and the conversion of the voluntary departure order into a removal order. Legal counsel is often essential in navigating this process and ensuring compliance with immigration laws.

Summary

Please excuse the length of this piece. I’ve studied every piece of illegal alien lawbreaking exhaustively. After many hours of reading documents, I reached a consensus without seeking the opinions of so-called “experts” on the matter. 

Why would I do that?

Justice Neil Gorsuch, in his confirmation hearing before the Senate Judiciary Committee, was continuously excoriated by Democrats regarding how he crafts his answers to cases that came before him. I watched as he professionally responded to the committee’s members, who were all attorneys. He finally had had enough and angrily replied to one lawmaker, taking a shot at Justice Gorsuch for his then “Judge” Gorsuch’s finding on several cases. I’ll paraphrase his response:

“THE problem with political law is NOT the facts of any case that appears before a court. The problem is YOU!”

Gorsuch explained what that meant. He said almost all cases that are appealed to multiple courts today are because “lawmakers are too lazy to completely explain the meanings and purposes of the laws they pass!”

I’ll end by stating the obvious: Politics and politicians are fallible, but they never believe their decisions are often incorrect. And they do NOT have to make it that way!

I’ll end this diatribe with this one statement: the gross actions of the U.S. Congress and all those in law enforcement charged with protecting the United States Constitution, the Rule of Law, and the citizens of the United States are flying by the seat of their pants!

This dilemma will live in perpetuity unless and until lawmakers start crafting laws that include the purposes of all legislation and the specific intentions of the authors when written and passed. Without this being instituted, U.S. law enforcement will continually find themselves under attack when trying to do their one job: enforce the laws of the United States!