President Donald Trump escalated the debate over immigration this weekend in calling for the deportation of people who “invade our Country”, without hearings or judges.  The call would raise serious questions under both U.S. and international law.  It would be a denial of the most basic protections of due process for those with credible claims for asylum. The position is both extreme and untenable if he is referring to any and all cases. It also undermines otherwise strong arguments being asserted for expedited procedures for dealing with the influx of undocumented persons.

This weekend, Trump tweeted “We cannot allow all of these people to invade our Country. When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came.”

The shift of Trump from a civil to a criminal emphasis in enforcement is well within his authority. Moreover, it is true that the Obama Administration also separated families in this fashion, though the numbers were smaller.  Indeed this weekend Obama Homeland Secretary Jeh Johnson admitted that they did separate children from their families and that “catch and release” was not an option — a position ostensibly close to the current policy but one that did not produce the same protests from Democratic politicians.  He called for family detention centers to avoid the release of undocumented persons.

However, the refusal of any hearing or judge could raise some serious constitutional and international law concerns.  We are a party to the United Nations 1951 Convention and 1967 Protocol in dealing with refugees — obligating us to take in those with a well-founded fear of being persecuted in the future “on account of race, religion, nationality, membership in a particular social group, or political opinion.” There is also the Refugee Act of 1980.  Someone asserting asylum is entitled to a hearing to present their case and not simply a perfunctory dismissal.

There continues to be a good-faith debate over the procedures, that must be afforded at our borders.  Specifically, there has been a long debate over the full extent of constitutional claims that can be raised by undocumented individuals in our country unlawfully.  The due process protections under the Fifth Amendment and the 14th Amendment are often raised in support of basic hearings and reviews.  In Yick Wo v. Hopkins (1886) the Supreme Court held that legal immigrants such as Chinese immigrant Yick Wo afforded basic rights and stressed a territorial standard: “The Fourteenth Amendment to the Constitution is not confined to the protection of citizens…. These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality, and the equal protection of the laws is a pledge of the protection of equal laws.”

The Supreme Court in Yamataya v. Fisher (1903) considered a case involving an undocumented immigrant and, while ruling against him, did apply due process standards to his case.

Under current procedures, undocumented persons are dealt with under either  §1225(b)(1) or §1225(b)(2). Section 1225(b)(1) allows for deportations for those who enter through fraud, misrepresentation, or without valid documentation. Under the first provision, deportation can be ordered by ICE officials “without further hearing or review” under an expedited removal process. §1225(b)(1)(A)(i). If Trump were speaking of that group, he would be correct so long as there is not an asylum claim.  There can be a return without a hearing or judge.  Only about 15 percent of undocumented persons have hearings and the Obama Administration aggressively pursued expedited deportations without hearings.  However, if an alien “indicates either an intention to apply for asylum . . . or a fear of persecution,” the ICE officials must make a threshold determination if the claims is credible, and, if it is credible, “the alien shall be detained for further consideration of the application for asylum.” §1225(b)(1)(B)(ii).

Other federal law mandate specific protections.  Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 it is mandated that “the alien shall have the privilege of being represented, at no expense to the Government,” and “the alien shall have a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien’s own behalf, and to cross-examine the witnesses presented by the Government …”

The government recently won an important decision in Jennings v. Rodriguez in which the Supreme Court reversed a lower court that found that federal law barred the holding of immigrants indefinitely and requires bond hearings after six months to evaluate if detention remains justified. Moreover, the Supreme Court has previously “rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States.” United States v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990) (citing Johnson v. Eisentrager, 339 U.S. 763, 784 (1950)).  Whatever due process claims are viable for undocumented persons accrue only “within the territorial jurisdiction.” See Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886).

The case law in this area is still in flux as reflected in the Jennings case. There is clearly an ability for the Trump Administration to both shift to a criminal enforcement policy and to expedite deportations. To that end, Congress is moving to add judges and resources to the border. However, the blanket call for deportations without due process would be difficult to square with this prior authority.  It is also difficult to square with our values as a nation for those with a legitimate fear for their lives and a history of persecution in their nations of origin.