Due Process: Can Millions of Asylum Seekers All Have Their Day in Court?

And a word about the DC murders

This week Shalzed asks a question about Due Process of Law. It’s both a U.S. Constitutional right and a human right, but now Trump wants to deny it to asylum seekers and others that he wants to remove from the country. Even for those who disagree with Trump’s plans, he raises important points about the problematic nature of due process which I try to flesh out below.

From now on I plan to alternate weeks, sending one of Shalzed’s fictional encounters one week and a question the next.

First a brief word about the Wednesday night double murder in D.C. I knew Sarah Milgrim, the woman who was shot, from my time in Costa Rica studying at Upeace. She was in the Sustainable Development program, and I remember among other things organizing with her a trip to Chabad for Rosh Hashanah.

I feel bitter. All those who contribute to demonizing and dehumanizing Israel, unfortunately including many human rights activists, contributed to this murder. The over the top accusations, along with sensationalized, contextless descriptions of Palestinian suffering created the self-righteous rage and hate that fueled this crime. Hatred and violence against Israel only bring more suffering to everyone, including now Sarah, Yaron, and their families. Now we can only wish that their memories be for blessing.

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Due Process for Millions

Lack of due process figures prominently in many lawsuits asking the courts to stop the Trump administration from carrying out deportations. Due process is enshrined in the U.S. Constitution, as the Fifth Amendment states:

No person shall. . . be deprived of life, liberty, or property without due process of law.

U.S. courts have made clear that the language ‘no person’ means that everyone is entitled to due process, including non-citizens.

There is something similar in the Universal Declaration of Human Rights. Article 10 states:

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

This is intended as a check on government. Governments have the authority to take away our rights. They can put citizens in prison, and in this case deny claims of asylum and send applicants back home. Due process means that this cannot be done arbitrarily, based on the hunch or personal opinion of a government official. Governments can only deny people’s rights after a fair hearing before an impartial judge.

While due process is a bedrock requirement in most areas of law, with regard to asylum and immigration it becomes much more of a problem. There are millions of foreigners in the U.S. that Donald Trump wants to remove. Granting every one a hearing would require vast time and expense.

One legal solution sometimes suggested is to use what is called a class action. This is when a large number of individuals with similar or identical claims have their cases combined. And this may be viable in some immigration matters, such as alleged gang members Trump wants to deport using special authority in times of invasion. They all raise the same issue regarding whether Trump can properly apply that rule, so this can be handled for all of them at once.

But class action won’t work for regular asylum claims because they turn on facts unique to each case. Asylum hearings can actually be particularly detailed and time consuming, as each applicant must be given the opportunity to explain and demonstrate the persecution they are fleeing at home.

One could say that due process is a right, so the government is obligated to hire as many judges and lawyers as needed to hear them all in a timely manner. After all, if there was an uptick in crime that wouldn’t be an excuse to deny suspects arrested by police their right to a trial. So why should an increase in asylum seekers mean that each one has any less rights?

But Trump would say the numbers are so vastly different there is no comparison. To give every asylum seeker a full hearing with counsel and translators would likely require a whole new legal system larger than the one we already have. And why should U.S. taxpayers bear that great expense, which would only benefit foreigners? Furthermore, Trump claims that due to the impossibility of providing everyone due process in a timely way, previous administrations just let many asylum applicants settle in the U.S. while they wait. This incentivized people with weak or no asylum claim to enter the country, as they knew they’d have many years before their claim was even heard.

So what happens when the shear volume of cases means due process is too slow and burdensome for a government to be reasonably expected to carry out? Can we allow this right to be set aside, realizing that means many people will have life-altering decisions made about them unfairly? And accept the risk of a slippery slope, that once due process is compromised in this circumstance that will likely happen in other situations as well?

Or do we continue to insist on due process for everyone, even when it’s not reasonably possible to achieve? Just like we build protections into the criminal justice system, saying it’s better for some guilty people to go free than to wrongly sentence an innocent person to prison, is it better to allow many people with non-valid asylum claims to stay rather than risk deporting someone wrongfully due to lack of due process?

I’m interested to hear your thoughts.