Q&A: Do migrants who enter illegally get “due process”?

WASHINGTON» President Donald Trump claimed on Twitter that America’s immigration problems could be solved by “simply” stopping migrants at the border and denying their access to a judge after entering the country illegally.

But it’s nowhere near that simple — or legal.

Can people be turned away at the border?

Not necessarily. After people enter the U.S., they fall under its jurisdiction and laws.

If they are from Mexico, they can be sent back over the border. But Mexico can’t be forced to accept people who come from other countries, and many of the migrants illegally crossing the southern U.S. border are traveling from countries in Central America such as Honduras and El Salvador where extreme poverty and a spike in violence triggered a wave of migration north.

So the first question after a person winds up in U.S. custody for illegally crossing the border is whether they can even be returned to their home country or if they have a legitimate claim to be inside the United States.

Does the Constitution apply?

The Fifth Amendment of the Constitution provides “due process of law,” meaning that a person has certain rights when it comes to being prosecuted for a crime. And the 14th Amendment says no state can “deny to any person within its jurisdiction the equal protection of the laws.”

The courts have generally interpreted that to mean that once a person has crossed the U.S. border, that person has the right to present his or her case, including any claim of political asylum.

Conservative commentators often criticize these rulings, or ignore them. But access to the U.S. court system by non-citizens was in part why President George W. Bush opted to detain terror suspects at Guantanamo Bay, an area leased to the U.S. military by Cuba. Keeping terror suspects off U.S. soil kept them outside the reach of civilian judges who might object to their treatment or lengthy detentions.

What does “due process” look like?

Due process can look different for each case. Rules for refugees, for example, differ from those seeking political asylum. A person’s criminal record can play a role too, as can the location of entry, such as a designated port of arrival versus other parts of the border.

Under current rules, a person detained within 100 miles of the border and who has been in the country for less than 14 days can be deported immediately, without being processed through immigration courts.

But the person can also claim asylum, triggering a series of screenings by the federal government to determine if they are eligible. To qualify, they must demonstrate that they fear persecution as a result of their race, religion, political opinion or other factors.

What about the border wall?

It’s true that Trump’s desire for a border wall could lesson some of the legal complications of immigration. If no one can physically enter the United States, the pressure on U.S. immigration courts would ease somewhat.

But that wouldn’t account for people who enter the country legally and overstay their visa. Other drawbacks include the cost and logistics of what it would take to build an imposing structure spanning 2,000 miles across the southern border.