Undue Process of Law

Kilmar Abrego Garcia was sentenced to jail without due process of law. You cannot look at it any other way. It is one thing to deport an illegal immigrant, it is another thing to put him in jail without a trial. It does not matter that the government outsourced the jail. 

The issue is one of the Rule of Law, one of the most powerful forces that guarantees our freedoms. We may not like the end result of certain laws, but we cannot ignore the U.S. Constitution, the greatest document in human history that preserves our individual rights and liberties against history’s greatest violators of rights – governments. Like it or not, our laws have given immigrants, legal and illegal, certain rights.

There are three important legal issues here that demonstrate the unconstitutionality of the Trump Administration’s acts. One is that Abrego Garcia was here with some legal status and has rights. Another is that someone who is sentenced to jail is entitled to due process of law. Lastly is that the Alien Enemies Act is being used unconstitutionally by the Trump Administration. 

This is a case of significance. It’s one of those “end justifies the means” issues. The “end” is that illegal immigrants who have committed serious felonies here should be shoved out the door. Fine: they don’t deserve U.S. residency or citizenship. But jailing immigrants like Abrego Garcia without due process is an unlawful act by the government. If they get away with it, they can use illegal means to carry out anything they see as a desired “end.” (See below, WWII, Roosevelt’s order to incarcerate American citizens of Japanese ancestry.) If the government can ignore the Constitution, they can do to us what they did to Japanese American citizens or Abrego Garcia. 

Abrego Garcia did have legal status here. In October 2019, an immigration judge granted him “withholding of removal” status. This form of legal protection prohibits deportation to a specific country – in this case, El Salvador – due to a demonstrated risk of persecution or torture upon return. He adhered to all of the conditions imposed by his status. Thus he was entitled to legal protection under the Constitution. The rule of law allows Abrego Garcia to present his case in a court of law where a judge (or jury) can make that decision based on provable facts. The government asserts that he is an MS-13 gang member but they have not presented credible evidence that he is. 

Perhaps the worst part of the Trump Administration’s argument is the use of the Alien Enemies Act of 1798. This is one of the laws used to justify the mass incarceration of Japanese immigrants during WWII.

The Alien Enemies Act requires an armed invasion by foreign nations or governments. It was seen as something to use during a wartime emergency. The use of this Act to jail any immigrant who is not a U.S. citizen is a clear violation of the Fifth Amendment of the Constitution which guarantees all persons, not just citizens, due process of law. Abrego Garcia was deprived of those rights.

If we allow the government’s actions to stand, then any immigrant with legal status can be jailed without the benefit of legal process. Assume the cook at your favorite restaurant has similar status as Abrego Garcia or is just illegal and he has a tattoo of a popular soccer team which the government has determined is an MS-13 gang symbol. Assume he has never been convicted of a crime and has a wife and family here. The government could deport him to El Salvador to be imprisoned for an undetermined period of time. Since El Salvador is a dictatorship with no rule of law, maybe he would rot there for the rest of his life. 

Maybe you would say that that is extreme, that the government wouldn’t do that. Maybe not, but they could. 

The Administration has a blasé attitude toward this issue. Trump rests his case on expediency – giving Abrego Garcia a right to a trial would take years and if we give him his rights “we’re going to have a very dangerous country.” Trump’s border czar waved the “bloody shirt” by accusing Abrego Garcia and other immigrants of being public safety threats like the guy who killed Laken Riley. This is blatant racism. 

This flagrant disregard of the rule of law by the Administration is the most dangerous threat to our liberties in modern times. Trump must bend the knee to the Supreme Court and the Constitution, or we are lost.