I spent some time on Wednesday asking Professors Erwin Chemerinsky amd John Eatsman about the proposed immigration bill. We covered many far-out questions posed by e-mailers who want to somehow change the status of “anchor babies” without amending the Constitution and some other points as well. But the most interesting exchange came over the impact of the probationary status which would be granted to the vast majority of currently illegal aliens a day after they turn in their application for a Z Visa under Section 601(h):
HH: Now what I want to get to is what due process rights are going to attach to Z visa holders? Because this is the rub. We were talking earlier with Senator Kyl and Michael Chertoff on this program, and they both agreed that the triggers might be long in being pulled, and they’re going to be walking around with [the] probationary… sort of precursor [to the] visas. Under what circumstances can those [probationary papers] be pulled once they are given, Erwin, and someone has status in this country? Do they have any rights to due process with that probationary [precursor to the] visa?
EC: The simple answer is no. They would have the right to due process that the statute gives them. Now I’ve oversimplified a little bit, because if somebody has an expectation once they’re here, then there is a liberty interest, and there has to be some due process given. It can’t be a summary deportation, but it’s not a full in-court hearing, either.
HH: John, did you hear that trap door just opening?
JE: I did…
HH: Yeah, oh boy did I hear that.
JE: Oh, boy, and this is the problem with what Senator Kyl and others have signed onto, that this was a hot issue fifteen, twenty years ago. When I give a property interest, or something that looks like a property interest, an entitlement, and I define the scope of this entitlement by a statute that includes certain limited due process protections, not the full set of protections that we would give to traditional property before I take it away from you, the Court said, severed the property interest that was granted by the statute from the procedures that went along with it, and now created a property interest standing alone, and said all of the due process protections of the 5th Amendment or the 14th Amendment apply. And that means that once you gave an interest to these people, the limited Z visa or what have you, the Court would determine what process was due, not the statute.
HH: And Erwin, is that an appropriate statement of the law?
EC: Yes, except I don’t understand why you’re afraid of due process. We’re not talking about, all of us agree we’re not talking about a court trial. We’re talking about a deportation hearing.
HH: Erwin, because there are 20 million of them. [# More #]
EC: But we’re not needing to deport 20 million of them.
HH: No, but if the triggers never get pulled, and people start saying okay, it didn’t work, we don’t have border patrol, we don’t have the fence, we can’t stop it, it is the magnet, we’re going to have to send people home, if that day ever comes, I don’t think we can send anyone with a probationary visa home, absent a procedure.
EC: But what you’re saying is that the procedure would be so onerous as this is undesirable. And I’m saying I don’t understand why you can’t have what’s usually a very simple procedure in these instances. We’re not talking about an elaborate, in-court trial.
HH: Right now, all you have to do if you find an illegal alien, if they’re from Mexico, is drive them to the border and put them on the other side, right?
EC: Well, if you’ve established that they’re undocumented, sure.
HH: Yeah. And so, with a Z visa, you can’t do that anymore. Again, I’ll ask you both to hang on. I think this is very important, because the day this bill passes, the day it passes, probationary precursor visas go out to up to 20 million people. And the impact on those people’s status is it makes them instantly employable, and they cannot be deported in the terms of the law.
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HH: And now we get down to brass tacks. What happens the day after the bill passes? And gentlemen, the triggers are in the bill, but section 601, treatment of applicants, reads this way. I want to make sure you hear it. “An alien who files application for Z non-immigrant status shall upon submission of any evidence required under paragraphs F and G, and after the Secretary has conducted appropriate background checks to include name and fingerprint checks, that have not by the end of the next business day produced information rendering the applicant ineligible, shall be A) granted probationary benefits in the form of employment authorization pending final adjudication of the alien’s application, B) may, in the Secretary’s discretion receive advance permission to reenter the United States, C) may not be detained for immigration purposes determined inadmissible or deportable, or removed pending final adjudication of the alien’s application, unless the alien is determined to be ineligible for Z non-immigration status.” Erwin, what rights does that endow upon, give to the Z applicant?
EC: I think it gives them exactly the rights that you’ve described, and I think it would require some form of due process before taking that status away.
HH: And what would that look like to you? What would you argue under a Matthews V. Eldridge test? That’s a huge entitlement. That’s a big deal, Erwin. You can’t just say we don’t think you’re here.
EC: Well, you’re right. You can’t just say it arbitrarily, and I think that’s a good thing. And you’re also right in terms of what you referred to as the leading Supreme Court case, Matthews V. Eldridge, says that in deciding what procedures are requires, a court’s to balance the importance of the interest of the individual, the ability of hearings to lead to more accurate decisions, and also the government’s interest, including administrative efficiency. I think courts would approve some form of deportation hearing that is relatively minimal in terms of procedure, but there has to be some procedure, and I think that’s a good thing, not a bad thing.
HH: So John Eastman, am I write in concluding that today, millions of illegal aliens in this country who are not owed a hearing, simply not owed a hearing, if we want to pick them up, and we drive them back, we catch them at the border, we take them back over the border, would after this be owed a hearing?
JE: Yes, and the scope of the hearing would not need to be a full-fledged trial that we have for other kind of loss of interest under the Constitution. But it would not be defined by what the statute sets out with minimal things. It will be defined by the courts, and it will be balanced, as Erwin has said, by the relative weight to be given to the interest, and the government’s need in efficiency. And the courts have opened the door for things like well, immigration law and eligibility is a very complicated thing. Will the courts require that in order for there to be fair due process, then in fact every one of these Z visa holders be afforded an attorney paid for by taxpayers before they can be deported? That’s certainly within the realm of possibility. Will there be a right to an appeal? And a stay of the lower court’s judgment before the appeal, or the hearing officer’s judgment before the appeal runs, given how significant the weight is if they’re going to be returned to a home country that is poor, and may be lots of claims of political persecution for having come here in the first place, or what have you. All of these things will now be decided by the courts for everyone, and it will be decided the day after this legislation takes effect. And you’re absolutely right, Hugh, to focus on it. It won’t wait until those so-called trigger events happen. This begins prior to the triggers, and will stay in place whether the triggers ever materialize or not.
HH: And I’m not trying to be alarmist, Erwin. I just think as expecting good lawyers, as the community of lawyers are on behalf of people not in the country legally over the years have become, they will seize on 601H, subparagraphs 1C, and say they have to be determined to be ineligible for Z non-immigrant status. We can’t even make that conclusion until the regulations for Z non-immigrant status are produced and ratified by a court. And so I think the entire illegal population becomes non-deportable the day after the law passes for a long period of time.
EC: I don’t think that’s right at all. In fact, courts have always said for non-citizens, there is the ability to deport without the need for full trial procedures. At the very least, you could use deportation procedures already in existence. I think what you’re doing is trying to use a procedural argument to hide the substantive disagreement. Where we really disagree is substantively. Is it a good thing to give some form of amnesty to those who are illegally in the United States? I would say yes, you would say no. If one believes yes, then it’s easy to create procedures that aren’t burdensome to do so. I don’t think our disagreement is really over procedures. It’s over substance.
HH: John Eastman?
JE: You know, at bottom, that’s right. This is a fundamental disagreement about the substance. But it’s the procedure that is going to decide the substantive question, that it’s going to so color the substantive question that we will have, in fact, granted amnesty on what’s supposed to be a compromise bill where that remains an open question, depending on whether the triggers get hit.