Mother-Daughter Deportation: Do Alien Immigrants Have Due Process Rights?

This is a photo from an ICE detention center taken on August 9, 2018. It might be a picture of the mother and daughter who were put on a plane for El Salvador while their deportation hearing was pending.

U.S. District Judge Emmet G. Sullivan grew furious after being told by lawyers for the American Civil Liberties Union during a hearing on Thursday that the mother, known in court documents as “Carmen,” and her daughter had been removed from their detention facility in South Texas and might be in the process of being deported from the country. He ordered the ICE plane to return the mother and daughter immediately.

The case reminds us of an awful Supreme Court decision, Shaughnessy v. U.S. (1953).

Mezei came to America in 1923 from Gibraltar. He lived an uneventful life in Buffalo until 1948. Receiving word that his mother was dying, he left for Romania to be with her. Romania refused his entry. 

He was held in Hungary for 19 months. 

He was then put on a ship bound for the U.S.

The U.S. refused to admit him, stating that he posed a national security threat. He was put back on a ship for Europe. 

Twice more, he went back and forth, but was denied entry everywhere he landed.

Finally, Mezei was deposited back at Ellis Island. He was refused entry again. This time, he refused to leave the immigration facility. He sued for an order of entry to the U.S. The Supreme Court, voting 5-4, denied his request.

Justice Robert Jackson lost the vote, but many courts since then have adopted his reasoning. 

They have worked around Shaughnessy on technical grounds, ruling that in certain circumstances even illegal aliens have due process rights.

Many Americans are moved by the mother-daughter case from last week. Here, then, is Justice Jackson’s memorable dissenting opinion. Again, he lost—but the point he made prevailed last week in Judge Sullivan’s court.

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Our law may, and rightly does, place more restrictions on the alien than on the citizen. But basic fairness in hearing procedures does not vary with the status of the accused. If the procedures used to judge this alien are fair and just, no good reason can be given why they should not be extended to simplify the condemnation of citizens. If they would be unfair to citizens, we cannot defend the fairness of them when applied to the more helpless and handicapped alien. This is at the root of our holdings that the resident alien must be given a fair hearing to test an official claim that he is one of a deportable class.

The most scrupulous observance of due process, including the right to know a charge, to be confronted with the accuser, to cross-examine informers and to produce evidence in one's behalf, is especially necessary where the occasion of detention is fear of future misconduct, rather than crimes committed. Both the old proceeding by which one may be bound to keep the peace and the newer British ‘preventive detention’ are safeguarded with full rights to judicial hearings for the accused.

On the contrary, the Nazi regime in Germany installed a system of ‘protective custody’ by which the arrested could claim no judicial or other hearing process, and as a result the concentration camps were populated with victims of summary executive detention for secret reasons. That is what renders Communist justice such a travesty. There are other differences, to be sure, between authoritarian procedure and common law, but differences in the process of administration make all the difference between a reign of terror and one of law.

Because the respondent has no right of entry, does it follow that he has no rights at all? Does the power to exclude mean that exclusion may be continued or effectuated by any means which happen to seem appropriate to the authorities? It would effectuate his exclusion to eject him bodily into the sea or to set him adrift in a rowboat. Would not such measures be condemned judicially as a deprivation of life without due process of law? Suppose the authorities decide to disable an alien from entry by confiscating his valuables and money. Would we not hold this a taking of property without due process of law? Here we have a case that lies between the taking of life and the taking of property; it is the taking of liberty. It seems to me that this, occurring within the United States or its territorial waters, may be done only by proceedings which meet the test of due process of law.