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What Rights Are Afforded To People Who Cross The U.S. Border Illegally


President Trump is continuing to press for quick deportation of those who enter the U.S. illegally.


PRESIDENT DONALD TRUMP: You know, Mexico holds people for four hours, for five hours, for two hours, and they're gone. We have people for four, five, six years, and they never leave.

KELLY: Yesterday, he tweeted, quote, "when somebody comes in, we must immediately, with no judges or court cases, bring them back from where they came." Well, he faced an immediate backlash to that with many pointing to the Fifth Amendment, which states that no person can be deprived of life, liberty or property without due process of law. For more on this, we called Cristina Rodriguez of Yale Law School. And I asked her, does the right to due process apply to people who enter the U.S. illegally?

CRISTINA RODRIGUEZ: Yes, the Constitution's due process clauses in both the Fifth and Fourteenth Amendments have been understood for at least a century to apply to persons. It's written that way in the Constitution. And so the question is not, does due process apply, but, what process is due?

KELLY: OK. So to be clear, it's - it applies as soon as you step onto U.S. soil, whatever your citizenship may be, whatever your passport may say.

RODRIGUEZ: That's right.

KELLY: Could the Trump administration turn people away at the border without detaining them? Would due process apply in that type case?

RODRIGUEZ: They certainly could. That happens on a regular basis. There is no entitlement for someone to enter the United States. And if - particularly if someone appears without documentation, the person can be voluntarily returned or excluded at the border, and no hearing is required under those circumstances.

KELLY: OK, but once somebody crosses in, they're supposed to be afforded due process. Is there precedent for suspending that or for a president openly calling for suspending due process?

RODRIGUEZ: Due process is a variable concept, and so it depends on what the liberty interest of the person at stake is and what the government's interests are. There in the law has been since 1996 a provision providing for expedited removal which applies to people who enter the United States illegally without documentation and permits the government to remove them in an expedited fashion.

KELLY: And what does that mean - an expedited fashion?

RODRIGUEZ: It means that they don't have to go before an immigration judge and certainly not a federal court judge. An immigration inspector can determine that someone has either fraudulent documents or no documents and simply order them removed.

KELLY: Does that qualify as due process? Have their constitutional rights been respected in that case?

RODRIGUEZ: The courts have rejected due process challenges to the use of expedited removal at the border for people who arrive or have arrived within the last two weeks, which has been the long-standing practice of various administrations.

KELLY: Right. The Trump administration is not the first to turn to expedited removal.

RODRIGUEZ: No. The Clinton administration only applied it at the ports of entry. The Bush administration extended it slightly to apply to people who are within 100 miles of the border, entered illegally and have been in the country for fewer than 14 days. But no administration has extended it to the full extent that Congress authorized it.

When the Trump administration came into office, John Kelly, when he was secretary of Homeland Security, issued a memo expressing the administration's intention to utilize the law to its maximum extent. And so if they were to follow through with that, they would be testing the limits of what Congress enacted. And we'll see if the courts respond.

KELLY: So it sounds like there is wiggle room within the limits of the law for them to...


KELLY: ...Use it in a different way than it's ever been used before.

RODRIGUEZ: Yes, there's considerable wiggle room, and it is concerning from the point of view of due process of law. But we'll see what they decide to do.

KELLY: Professor Rodriguez, thanks very much.

RODRIGUEZ: You're welcome. Thanks for having me.

KELLY: Cristina Rodriguez is a professor at Yale Law School. Transcript provided by NPR, Copyright NPR.