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    Senior Member JohnDoe2's Avatar
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    Does The Constitution Protect Non-Citizens? Judges Say Yes

    Does The Constitution Protect Non-Citizens? Judges Say Yes

    Daniel Fisher , FORBES STAFF

    I cover finance, the law, and how the two interact.

    Belgian protesters: Does the Constitution cover them, too? (THIERRY ROGE/AFP/Getty Images)

    Four federal judges so far have issued injunctions blocking the enforcement of President Donald Trump’s executive order on immigration, and the reasons include one that might surprise some Trump supporters: The U.S. Constitution.

    How does the Constitution apply to a non-citizen blocked from entering at JFK International Airport?


    The same way it applied to enemy combatants held at the U.S. base in Guantanamo Bay in a 2008 U.S. Supreme Court decision, Boumediene v. Bush, which held that the basic right of habeas corpus to challenge illegal detentions extends even to non-citizens on foreign territory. The American Civil Liberties Union and many legal scholars also believe Trump’s order violates the First Amendment freedom of religion by singling out Muslim immigrants for discriminatory treatment.


    “I’m not arguing the Constitution gives each person a right to enter,” said Jennifer Gordon, a professor of immigration law at Fordham University Law School. But “when the U.S. government establishes a preferred religion, it violates the Constitution.”


    Non-citizens don’t share all the rights of citizens under the U.S. Constitution. They’re subject to immigration law, under which the executive branch has broad authority to determine whether it wants them in the country or not. And until they’ve passed through immigration control, they aren’t technically on U.S. soil, thanks to a “legal fiction” or counterintuitive legal understanding that carves out an exception to the normal rule, said Gordon.

    “When you’re standing at JFK, you stand outside the borders until you are inspected and admitted,” she said.


    Trump supporters might be surprised at how far the Constitution extends toward non-citizens once they’re inside the country, however. Cases extending back to the 1800s, including ones brought by Chinese immigrants challenging the arbitrary seizure of their property, have established the rights of non-citizens under the Fourth and Fifth

    Amendments including due process and the right to a jury.


    In U.S. v. Wong Kim Ark, an 1898 decision, the Supreme Court ruled that the term “person” under the Fifth Amendment applied to aliens living in the U.S. In Fong Yue Ting v. U.S.,the court held that Chinese laborers, “like all other aliens residing in the United States,” are entitled to protection of the laws.

    “There’s no dispute at the absolute core,” said Andrew Kent, a constitutional scholar at Fordham Law. “If somebody is picked up by police they the have same Miranda and due process rights in all contexts except immigration law.”


    The ACLU and other opponents of Trump’s immigration order say it also violates both U.S. statutes and international law, specifically the Refugeee Act of 1980, which Congress passed to comply with an international treaty.

    That law increased the annual quota for refugees to 50,000 and adopted the U.N. definition of a refugee as “any person” who legitimately fears persecution in their home country.


    “The parts of this order that discriminate against people based on national origin are in violation of the 1980 Refugee Act,” said Gordon. “That’s a clear statutory violation.”


    The Trump administration will point to the broad discretion given the executive branch and the Attorney General to determine which refugees to allow in and which to reject.

    And it is true U.S. law is less than consistent on how to treat foreign nationals. A line of Supreme Court decisions extending from the 1890s into the Red Scare years of the 1950s held that “whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned,” Gordon said.


    The ACLU and immigration advocates will argue that non-citizens who have already received the required papers have the right to due process and entry. And the Constitution even extends to refugees with no papers to at least have their cases considered before they are returned to the countries they are fleeing, the ACLU argues.


    Will they succeed? The judges who issued injunctions against enforcement of the order certainly believe the plaintiffs stand a substantial chance of winning their arguments. The question is how hard the Trump administration will fight to defeat them. The Obama administration was blocked when it tried to grant temporary residency to millions of illegal immigrants, in a ruling the Supreme Court left standing this year after deadlocking 4-4. Trump’s unlikely to revive that case, but administration lawyers may well find themselves before the Supreme Court themselves arguing about executive authority over immigration.


    http://www.forbes.com/sites/danielfi...udges-say-yes/
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    Dana Boente, US attorney for the Eastern District of Virginia, the White House said, and was sworn in at 9 p.m. ET, per an administration official.
    NO AMNESTY

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