Error Correction

Mea culpa, mea culpa, mea maxima culpa.

Yesterday I posted this on the Book of Face:

“As to due process, people have seen so many police and legal procedural dramas on TV, what they see on TV is what they think it looks like - but immigration “judges” are not part of the judiciary, they work for the DOJ and the process is necessarily shorter because they are already deportable by virtue of the fact they entered illegally.

Democrats are trying desperately to convince the populace that a commission of a crime is a necessary precursor to deportation - it is not. Just being in America without permission is enough to deport every ‘Maryland Dad’.”

The first part is true – and I have noted many times that the Constitution, in the Fifth amendment guarantees “due process of law”. The 5th (federal) or 14th (state) Amendments require an attempt to deprive a preexisting life, liberty, or property interest for due process to apply. Illegal aliens lack such an interest in remaining unlawfully present, so due process is whatever law or regulation Congress provides. That is why there is such a thing as “expedited removal” rather than an endless process of hearings, delays, depositions, pleadings and other gymnastics that could take decades – rendering deportation virtually impossible.

I never want to steer people wrong, so when I miss the target, I want to be the first to recognize that and get you the right information.

As it turns out the last sentence of my statement was imprecise to the point of being wrong – “just being here” has more nuance than I provided. My buddy David Jaroslav, Esq. (someone who has worked on the pro-enforcement side of immigration policy for almost eight years), points out a few things regarding the difference between the act of crossing into the country illegally and simply being here illegally (slightly paraphrased by me) and there is a real difference:

“Unlawful PRESENCE is a status, civil, grounds for removal Unlawful ENTRY is an act, criminal. Not everyone unlawfully present entered unlawfully. Millions of people entered lawfully on visas and overstayed.”

It is a distinction WITH a difference.

He goes on to lawsplain that:

“The idea that deportation is punishment analogous to criminal prosecution is the LEFT'S narrative. The immigration bar and all their friends have been pushing this as much as possible for decades People on our side desperately WANT "illegals have no rights" (which is incorrect) rather than what we should want is that they have "due process” but by immigration law, due process doesn't require a lot.”

When David and I were talking about this, I used the term “Perry Mason” (or for the younger kids, “Law and Order”) to describe how people view due process and that isn’t the kind of due process illegal aliens vs. citizens have – but David also provided nuance that I did not. He noted:

“They have Perry Mason level rights in criminal court, where a defendant's immigration status is irrelevant. They don't in immigration proceedings. Deportation isn't punishment.”

The big difference in people on our side saying they're committing a crime just by being here is that they are not, and legally that is not what we should want, because that is saying we WANT deportation to have all the hurdles and safeguards of criminal prosecution – and I have noted there are significant differences in the process and the burden of proof in each situation – i.e. preponderance of evidence in civil matters vs. beyond a reasonable doubt in criminal matters.

Hope that straightens things out.