I am asking this because president Trump is calling for sending immigrants who approach the border from Mexico to be sent back without due process. I strongly suspect that it is illegal but a lot of googling and watching cable TV has not pinned down a possible loophole.

While it is completely uncontroversial that any person on US soil has the right to due process, I have not seen anything that gives these rights to people who approach the border but are prevented from crossing it. Specifically, what allows them to be granted admission, activating their right to due process.

The fourteenth amendment does explicitly protect “...life, liberty, or property, without due process...within its jurisdiction...”.

questions: - does interaction with a US border guard, even if one isn’t yet in the country, count as “within its(USA) jurisdiction”? - does refusal of admittance violate any of life, liberty or property? - is the proposal of the president legal?

I had expected that this question would be answered here alreadynbut I was unable to find anything.

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    Keep in mind that this isn't an all or nothing matter. You can have due process rights re criminal prosecutions brought by the US, and due process rights re property or paternity that US authorities influence, even if you don't at a given moment have a due process right in your immigration status or right to enter the US. There is case law on when a due process right in immigration status attaches which I'll provide an answer on if I get a chance. But, the fact that you have due process rights with respect to one thing does not answer the question as to other things. – ohwilleke Jun 26 '18 at 0:04
  • According to guest27.., a border guard denying entry would be a legal means to exclude immigrants, as long as he did not taken the immigrant into custody. That would seem to validate the President’s proposal, especially if his “wall” were built and was effective. – abby yorker Jun 26 '18 at 1:07
  • I have found a reference on this - the Madison lecture from June 2013 in the NYU law review(easily googleable). One relevant sentence: “...the supreme court has held that exclusion at the border is free from due process constraints...”. Seems to indicate that the proposal is legal although there is some mention of problems with the 8th amendment.I still have trouble believing this so I am still looking. – abby yorker Jun 26 '18 at 1:11
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    The rule is basically that you can be refused when crossing the border. But, this excludes people who have certain kinds of visas, people who claim U.S. citizenship and people who claim asylum. – ohwilleke Jun 26 '18 at 1:49
  • @ohwilleke we are talking about people without visas or citzenship but they will generally be claiming asylum. I assume that the latter is not mentioned in the constitution but that it is covered by subsequent precedent. On what basis were these cases judged. Do you have a reference? – abby yorker Jun 26 '18 at 7:50

An individual obtains due process rights upon entering into the United States. For a recent write-up on this question, see this piece at Reason.

The people Trump is talking about generally aren't being denied admission at an established, legal border crossing; they're coming across wherever they can get through, and only being discovered by federal agents thereafter. Because they're already in the United States, they have due process rights.

As for cross-border interactions with ICE or CBP, the extent of due process protections is still an open question. SCOTUS took it up last year, but it kicked the case back to a lower court rather than deciding it.

  • I read the reason piece, but it applies to immigrants on US soil and I do not see any controversy there. They get due process. The tweet they quote does imply that, so fair enough. However, the President has a later tweet: “Hiring manythousands of judges, and going through a long and complicated legal process, is not the way to go - will always be disfunctional. People must simply be stopped at the Border and told they cannot come into the U.S. illegally. Children brought back to their country......”, which implies no entry... – abby yorker Jun 26 '18 at 7:33
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    I have never understood the administration’s infatuation with the wall but it might serve to funnel immigrants to bona fide entry points, at which they can be turned away without entering the US. Seems unlikely to work as a 3000 mile wall can be gamed, but maybe this is a clue to what they are thinking. – abby yorker Jun 26 '18 at 7:38
  • I've always understood that these (and other) rights are applicable once a person is admitted to the US - which is not the same thing as entering the US. – brhans Jun 26 '18 at 11:24
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    @brhans that is incorrect. A person who is suspected of unlawful entry has a due process right to have that suspicion tried before a judge. If the person did in fact enter unlawfully, then the person was never admitted to the US, but still has a due process right to require the government to establish that fact in court. – phoog Jun 26 '18 at 14:17
  • @phoog - yeah, that makes more sense. – brhans Jun 26 '18 at 14:18

I think that I now have enough information to answer my question thanks to the discussion here. I change the wording somewhat due to new info in the discussion.

Do new immigrants presenting themselves at entry points have a right to due process (regarding the civil matter of immigration application, similar to the due process rights of deportables)? No, as they are not yet legally admitted to the USA although they may be detained on US soil. Importantly, the courts look very strongly to congress to decide on immigration policies. The law is clearly explained in:


Can the immigration force refuse them admission, returning them to their home country or to Mexico? Yes, after the an officer has decided that their asylum claim has no merit. At present, they do have an option of presenting their case to an impartial judge but the DOJ is right now revoking that option, which was never a guaranteed right. If the judges are removed, it’ll be hard to see the process as anything but a sham, where admission becomes harder and harder according to the directives from above.


Does international law provide any requirement of due process or admission criteria? I do not think so. It seems very difficult to do even in principle as countries have diverse principles and politics. I could not find any binding laws. After some more search, I found: “Under both U.S. law and international treaties that came after the Holocaust, border officials must allow people who say they’re afraid to return home to submit their claims in the asylum process”. I am still looking at what the treaties say.

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    "They are not yet on US soil" is only correct if they are at a pre-clearance port of entry. Ports of entry at land borders are physically in the US. The no-man's land analysis is incorrect. The lack of due process rights flows from other factors. – phoog Jun 27 '18 at 20:55
  • @phoog: You may be right about the US soil - I got my statement from nytimes.com/2018/06/25/us/… – abby yorker Jun 27 '18 at 22:52
  • The wording in the very first sentence was where I got “no man’s land”. A clearer treatment indicates that their documentation is checked physically outside the US but the asylum interview is held within the country. Prior to a successful interview, they have not officially entered the country and are indeed labeled as inadmissables sandiegouniontribune.com/news/immigration/… – abby yorker Jun 27 '18 at 22:56
  • I do maintain that their lack of rights is based on their not having been admitted. They are physically in the country but not legally. This is stated on page 824 of the reference I provided "Aliens who have neither been inspected nor admitted and are not entitled to be in the country are inadmissible". And, further in the same paragraph: "...initially arriving aliens...fall in the inadmissible category because they stand at the border waiting to be inspected and admitted." This is despite the fact that they are physically in the country. – abby yorker Jun 27 '18 at 23:15
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    The first sentence of what is where you got "no-man's land"? I don't see it. Anyway the fact of having not yet been admitted does limit their rights for the purpose of immigration law, but it would not, for example, allow the government to imprison them for the.commission of a (non-immigration) crime without a trial. In other words, they are on US soil and they do have certain rights, even if they do not include a right to judicial review of a decision to refuse admission. – phoog Jun 28 '18 at 2:56

At what point do immigrants acquire the right to due process

When an individual is taken into the custody of the United States.

  • "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." Constitution of the United States, Article VI – guest271314 Jun 26 '18 at 0:28
  • This doesn't sound accurate. For example, if an immigrant owned land in the US the government can't take it via eminent domain without due process, nobody ever is taken into custody regarding eminent domain cases, due process is still needed. You might be right about dealing with illegal immigration at the border, but as it stands your answer is too general to be correct. – Matt Jun 26 '18 at 1:32
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    I don't know why you think I'm arguing that the constitution doesn't apply to the agent of the state or the individuals, my statement is based on precisely the opposite. Your answer is not specific at all, its incredibly general. To make it specific you need to add some words limiting your statement's scope. As it stands you are literally saying immigrants acquire the right to due process when they are taken into the custody of the United States. However, there are plenty of immigrants that have never been taken into the custody of the United States that have due process rights. – Matt Jun 26 '18 at 1:59
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    What? The individual must stand on the Supreme Law of the Land and Compel the Government to assert that the Constitution does not apply Those statements are nonsensical. – Matt Jun 26 '18 at 2:02
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    Those statements are nonsensical regardless of how much experience I have litigating in federal court. You might want to read them again if you think they make sense. Anyway, you are getting wayyyy off track here. All I'm saying is that your answer is incredibly general and because of that is clearly wrong. – Matt Jun 26 '18 at 2:06

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