What Democrats and the media get wrong about due process

by Steve Levy

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Republicans must push back more against the Left and the legacy media conflating due process for an individual charged with a crime with due process to deport an illegal immigrant. The media have been perpetrating a myth that those here illegally have a constitutional right to the same due process as would someone who is charged with a crime that could lead to their incarceration.

The ramifications of getting this distinction wrong are enormous. The costs and delays in deporting illegal immigrants would basically shield the five million-plus illegal immigrants former President Joe Biden ushered into our nation.

Let’s be clear: Any individual, documented or not, who is charged with a crime that could result in his being imprisoned would be entitled to due process and the opportunity to receive a jury trial. That is a very different scenario from the government identifying a person here illegally and simply trying to remove him from United States territory. Since he is not being threatened with the loss of his freedom via incarceration, the degree of due process is, at least in some instances, significantly diminished.

Envision a scenario where a thousand illegal immigrants rush the southern border. Border agents corral 20 of them. Anyone with common sense and an understanding of the law would agree that the agents have the right to turn those border crashers around and send them back. It would be ridiculous to suggest that these 20 border rushers have the right to say that they should be entitled to a due process trial before being turned around.

Indeed, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 provides for “expedited removal.” It provides that illegal immigrants can be deported almost immediately without going through a court hearing if caught within two years of their crossing. Expedited removal would also pertain to those here beyond two years who were deported before and reentered illegally.

Yet, the Left would have taxpayers foot the bill for several months or years until a judge is freed up to engage in a long, costly trial before that person can be turned around.

Ironically, these claims were rarely made in previous administrations, such as former President Barack Obama’s, where thousands of such individuals were turned around on a daily basis without the so-called due process the Left is now demanding.

In fact, Obama got the highly misnamed title of “Deporter in Chief” by using this tactic. The ACLU noted how under Obama, there existed “a system … of nonjudicial removals, where 75 percent of people removed do not see a judge before being expelled from the U.S.”

There is one level of due process that any illegal immigrant should be entitled to, and that is to be able to prove that he or she is here legally. But that should not require a long, drawn-out, costly jury trial taking years to schedule and weeks to complete.

No, the due process required should simply be giving that immigrant an opportunity to provide to the Border Patrol agent or hearing officers proof of legal residency by presenting a valid Social Security number, work permit, or alien registration number. Without any of these items, the person is here illegally. And the government should have the ability to remove him from American soil immediately.

Some will try to game the system by making a bogus asylum claim to bide time. However, processing these cases is mitigated if an asylum claim has not been made within one year of arrival, if the applicant passed through a safe third country where protection could’ve been sought, or where other crimes have been committed by the individual.

Criminal hearings will attach greater rights than civil hearings. While a right to counsel may be relevant in a criminal matter under the Sixth Amendment, no such possible protection attaches to a civil matter or a mere misdemeanor.

Thus, the Trump administration should resist the temptation to deport through the criminal process, even though it would have every right to do so. The goal is not to imprison illegal immigrants, but rather to remove them quickly from the U.S.

The Democrats are deliberately conflating these issues to make it nearly impossible to deport any of the five million-plus illegal immigrants Biden welcomed in. That’s because they know these individuals will be included in census counts, thereby improving the Democrats’ lot in future elections. And, of course, their master plan was always to regain control of the presidency and Congress and thereafter grant amnesty, citizenship, and voting rights to the illegal immigrants, who will return the favor by voting for Democrats.

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It’s expected Democrats will perpetuate this lie, but it is disheartening to see Republicans often parrot these talking points. It’s not because the Republican pundits want to keep these people here. It is simply because they’re unaware of the difference between the due process requirements for an illegal immigrant facing deportation versus an illegal immigrant facing incarceration for assault, drunk driving, or other crimes.

We can win this battle to deport the millions Biden illegally brought over, but it must start with a clear understanding of what due process really means and to whom it applies.

Steve Levy is president of Common Sense Strategies, a political consulting firm. He served as Suffolk County executive, a New York state assemblyman, and host of “The Steve Levy Radio Show.”