海角大神

When Clete Samson was a government prosecutor at the Department of Homeland Security鈥檚 special immigration court, he says that respecting the constitutional rights of immigrants accused of breaking US laws was part of the job.

鈥淚t鈥檚 a myth that noncitizens don鈥檛 have constitutional rights because they are non citizens,鈥� says Mr. Samson, who for eight years prosecuted cases for Immigration and Customs Enforcement (ICE). 鈥淚 hear it a lot now in all these immigration debates, that these individuals don鈥檛 even have due-process rights.鈥�

A lot of his job entailed fending off constitutional habeas corpus challenges from immigrants detained by ICE, says Samson, who now听 at Kutak Rock鈥檚 Omaha, Neb., office. But their right to have the opportunity to contest the government, he and other legal experts note, remains one of democracy鈥檚 most fundamental values: No government can deprive a person of liberty without a giving valid reason ruled by law.

And beyond such rights granted to individuals by the United States Constitution, this value in many ways also governs the restrictions that Congress placed upon the actions of executive agencies in the 1940s. In general, that legislation barred federal agencies from creating or changing administrative procedures in an 鈥渁rbitrary or capricious鈥� way. One senator at the time called the law "a bill of rights for the hundreds of thousands of Americans whose affairs are controlled or regulated" by federal government agencies.

But amid the nation鈥檚 stormy debates over immigration the past year, a number of federal courts have been taking a closer look at the rights that immigrants hold as their lives become enmeshed in the decisions of federal agencies 鈥� especially the due-process rights of those being detained by ICE and the future status of the Deferred Action for Childhood Arrival (DACA) recipients.

Six months ago, President Trump said he would wind down the DACA program by Monday, giving Congress time to come up with a legislative solution. But federal courts to the president鈥檚 decision to wind down the program, ruling in part that his action most likely violated the administrative procedures requirements.听

鈥楢s ancient and important a right as any 鈥︹��

Last week a divided Supreme Court听 of detained immigrants, and whether it was proper for a federal court to order ICE to provide bail hearings every six months. The conservative majority concluded that the federal law did not require such bail hearings, and that the court exceeded its authority by adding this requirement.

But the majority in the 5-to-3 decision sent the case back to the lower court to determine whether the indefinite detention of certain immigrants, who were not granted regular bail hearings, would violate the Constitution.

In a dissent he read from the bench, Justice Stephen Breyer objected to what he saw as a narrow, technical ruling of the majority and argued that constitutional due-process protections should have been presumed: 鈥淭he Constitution does not authorize arbitrary detention,鈥� he said. 鈥淎nd the reason that is so is simple: Freedom from arbitrary detention is as ancient and important a right as any found within the Constitution鈥檚 boundaries.鈥�

Immigration a gray area

Still, the president and agencies such as the Department of Homeland Security have a lot of discretion in how they choose to administer their legal authority over immigration.

鈥淚mmigration is a weird space in that the government is given a little more latitude to exercise [the process] how it wants to,鈥� says Sarah Pierce, an immigration policy analyst at the Migration Policy Institute in Washington. 鈥淚t鈥檚 considered kind of a foreign policy right on the part of the federal government.鈥�

That means 鈥渢here鈥檚 confusion in the legal field as well鈥� about the rights of DACA recipients and 听noncitizen detainees, she adds. 鈥淚t鈥檚 a legal gray area.鈥�

In fact, Samson served in a special immigration court run by the Department of Homeland Security 鈥� an executive agency rather than the separate and co-equal federal judiciary. Congress gave the executive branch the authority to set up immigration courts as part of its responsibilities to protect the nation鈥檚 borders.

Despite the injunctions that two federal courts placed on the president鈥檚 decision to wind down DACA by Monday, 鈥渂oth courts have flat out said that there鈥檚 no dispute that the Department of Homeland Security has the authority to end this DACA program,鈥� says Mr. Samson. 鈥淏ut they just didn鈥檛 pass the 鈥榓rbitrary and capricious鈥� test, in the courts鈥� view.鈥�

The Trump administration sought to appeal those injunctions directly to the Supreme Court, but last week to bypass the appeals court, the usual next stage of judicial review.

鈥婸rotections for all people鈥�

The federal court rulings agreed that there is no 鈥渞ight鈥� to DACA and the government need not accept new applicants. Existing DACA holders may continue to re-apply for two-year extensions, the courts said.

But despite the gray areas 鈥� all the details of immigration laws and the discretion federal agencies have to enforce them 鈥� the values of due process and fairness remain firmly established for immigrants and noncitizens, experts say.

鈥淭he Constitution for the most part uses the language 鈥榩eople,鈥� so when you鈥檙e talking about 5th Amendment rights, 14th Amendment equal protection rights, or in all the Bill of Rights, everywhere you see 鈥榩eople,鈥� the Supreme Court has established that 鈥榩eople鈥� does mean people. It does not attach to and is not limited by citizenship status, but rather by presence here in the United States,鈥� says Elissa Steglich, professor at the University of Texas, Austin, Law School and head of its immigration clinic.

Beyond the Constitution, these rights are 鈥渁lso important guideposts for how our institutions work,鈥� Professor Steglich says, 鈥渁nd making sure every court, every immigration court, views every immigrant before it equally, and provides the same level of diligent review and consideration regardless of race, or language they speak, or where they hail from in the world.鈥�

鈥婻ole for Congress

Questions still exist about how much leeway the Supreme Court may allow Mr. Trump, or any president, to make discretionary decisions about immigration policy, including those affecting the rights granted to immigrant detainees now being held indefinitely.

But the fate of the DACA recipients and their future status, most all experts agree, should come from Congress rather than presidential discretion 鈥� which the Trump administration argues was already abused in former President Barack Obama鈥檚 creation of the program.

鈥淎t the end the end of the day, DACA has to go through Congress, one way or the other,鈥� says Patricia Gannon, partner in the immigration practice group at Greenspoon Marder in New York. 鈥淜ill the dream or don鈥檛 kill the dream, but do your job.鈥�

Staff writer Henry Gass contributed to this article from San Antonio.