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Jason Dzubow on Political Asylum

Magna Carta and the Rights of Refugees

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June 15, 2015 marks the 800th anniversary of the Magna Carta, a document signed by King John, which granted certain rights to English noblemen. Although the Magna Carta was executed under duress and was nullified by the Pope a month later (at John's request), it has become a foundational document of the American Constitutional system (our system, of course, derives from the English system).
The Magna Carta brought us Due Process of Law, and this lovely commemorative mug. Available wherever finer mugs are sold.

What is important about the Magna Carta is not so much the document itself, with its checkered history and its very limited application. Rather, it is the idea of the document that matters: The idea that even the king himself is subject to law and that the People can assert their rights against the sovereign. Indeed, the Magna Carta states--

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.

In other words, the sovereign will not act against the subject without due process of law.

While apparently the idea of due process did not gain much traction at the time, it was later elevated to importance in England and the United States, and it is now fundamental to our system of justice. We are all (theoretically) entitled to a fair procedure before the government can assert its power against us.

Of course, it was not always this way. When our country was founded, most people did not enjoy many basic legal rights: Women, minorities, slaves, Native Americans, foreigners, indentured servants, to name the most obvious. Over time, and with much struggle, such individuals gained more legal protections.

But one area where the State retains great power vis-à-vis the individual is in immigration law: The sovereign state determines who will be admitted into the country and who will be excluded. The United States government is allowed to discriminate against arriving aliens. If we don't want to admit people from China into our country, we don't have to. If we decide to exclude Muslims, we can do that too. There is no Equal Protection clause for foreigners seeking admission to the U.S.

There are more Constitutional protections available to aliens physically present in the U.S. and in removal (deportation) proceedings, but even these protections are far less than those accorded to criminal defendants. Aliens in removal proceedings do not have a right to an attorney (unless they can afford to hire one). They do not have Miranda rights. They have no right to a jury trial or to see all the evidence against them. They have more limited Fourth Amendment (search and seizure) and Fifth Amendment (self-incrimination) protections than criminal defendants.

But one Constitution right that applies to aliens in removal proceedings is the Due Process clause: Aliens are entitled to a fair procedure, and--if that procedure is violated--they can petition the federal courts for redress. As the Supreme Court has held:

[T]he Due Process Clause applies to all "persons" within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.

Because it is one of the few arrows in our quiver, immigration lawyers rely heavily on the Due Process clause, particularly in federal court litigation. The sovereign state has tremendous power to remove non-citizens from U.S. territory, but in doings so, it must comport with due process of law.

In some ways, modern-day immigration law mirrors the early days of domestic law in Great Britain. At the time of the Magna Carta, the king had great power compared to his subjects. Over the centuries, the power of the State has eroded in favor of granting more rights to the People. But this evolution has been far less dramatic in the area of international law and immigration law, where--in the United States--the Executive Branch largely retains plenary power. Perhaps in some more-civilized future, there will exist a system of international law that grants more power to individual immigrants and less power to sovereign nations. I can't help but think that that would be a good thing.

Originally posted on the Asylumist:

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  1. Retired INS's Avatar
    I am sure that when Christ comes to reign again your dreams will come true. Until then I don't trust international law. The United States may not have great immigration laws, but name another country that takes in more immigrants each year. Having worked as an immigration officer for nearly 40 years, I saw many desperate people come to America. I also encountered a smaller number of criminals and undesirables. How do we admit the good, keep out the bad, and protect American workers, all at the same time? I agree that most immigrants don't really take jobs away from Americans, but that is partially because our laws are strict.
  2. Nolan Rappaport's Avatar
    Due process is an important tool for immigration lawyers, but it is limited. An alien's right to due process can be violated with impunity if it doesn't effect the outcome of the case, and the burden of proof that the outcome would have been different if due process had been accorded is on the alien.
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