Illegal aliens still have some basic rights

John L. Kyff, Jr. / Culpeper Star Exponent
Published: February 15, 2008

In reference to the Feb. 8 "Our View" titled "Feds need to take action on immigration,"  the writer made a number of fundamental errors of fact and questionable conclusions.

The first error is the view that "if someone has done something illegal, they must be punished in a way that fits the 'crime' (and that) if you enter this country illegally, the penalty is deportation."

The penalty for entering the country illegally is not deportation. Illegal entry is a "crime" that is punishable by a fine ($50 to $250) or imprisonment of not more than six months, or both, and for a subsequent violation, a fine ($100 to $500), or imprisonment of not more than two years, or both.

Deportation follows.

Most undocumented aliens here (over 60 percent) entered the U.S. legally but overstayed their visas. That is a civil - not criminal - offense.

In your view "the process has to be simplified (but) the rights of individuals should not be violated." How do you "simplify" due process of law without violating individual rights-

All accused of an offense are presumed innocent until proven guilty. In cases of alleged "unlawful presence" (a civil offense) the court of jurisdiction is a federal immigration court following civil court rules.

In cases of "illegal entry" (a crime) the court of jurisdiction is a federal criminal court following criminal court rules. Both courts must follow the same rules that apply to all citizens guaranteed by the Constitution.

You contend that if the process cannot be simplified, "the authority has to be given to people who can get the job done (but that) the rights of individuals should not be violated." That would require at least two fundamental constitutional amendments; one to the body of the Constitution and another to our Bill of Rights.

The first action would be to rescind Article 1, Section 8 clauses 4 and 18 of the Constitution: State and/or local courts would still be bound by the same law that federal courts are guaranteeing due process of law to all people within the United States.

Therefore, in order to "simplify" the deportation process, both the 5th and 14th amendments of our Bill of Rights would have to be amended to deprive undocumented aliens of their rights.

An amendment to the U.S. Constitution must be ratified by three-quarters of either the state legislatures, or of constitutional conventions specially elected in each state.

Since more than 60 percent of Americans currently oppose deporting most undocumented aliens and favor giving to most of them a path to citizenship, it is unlikely that the majority of Americans would favor such fundamental constitutional amendments. 

Rather than blame federal authorities for not rounding up 5 percent of our population and deporting them, pause to think that we elected an administration that promised lower taxes and less government. That is what we got. The federal government does not have the enormous resources necessary to even attempt to do it.

In my view, we got what we voted for.