Illegal Aliens Go for a Windfall

Article subtitle: 
Claim constitutional rights were violated before they entered the U.S.
Article publisher: 
Immigration Reform Law Institute
Article date: 
Friday, April 5, 2019
Article category: 
National Issues
Article Body: 

WASHINGTON  Two families of illegal aliens from Central America are suing Trump administration officials in a Massachusetts federal district court over their treatment after they crossed the border illegally. The families claim that the month-long separation of the parents from their children when the parents were in jail for a criminal offense violated their constitutional rights. They seek monetary damages from the defendants, who are being sued as individuals, not in their official capacities. The Immigration Reform Law Institute (IRLI) this week filed a friend-of-the-court brief in support of the Trump officials.

The government’s brief on its motion to dismiss does an excellent job of showing that the court lacks personal jurisdiction over the defendants (none of whom has substantial personal contacts with Massachusetts), and that a damages action of this kind is unwarranted here. IRLI adds to these persuasive arguments a further point: plaintiffs had never even entered the country in a legal sense when their separations occurred, and thus they had no rights under our Constitution to be deprived of.

In immigration law, “entry” is a term of art, generally defined as presence in this country and freedom from official restraint. For example, a traveler at an American airport waiting to go through customs has not “entered” the United States. And a basic principle of constitutional law is that it is the American people" not aliens who have never entered the country in a legal sense, and have no substantial connection to it "who have rights under our Constituution.

Here, the alien families sought out border patrol agents as soon as they crossed the border, intending to claim asylum. When the parents were taken into custody for the crime of unlawful entry, pursuant to the administration’s zero tolerance policy, their children, who could not accompany them into jail, were placed with caregivers for about a month, after which the families were reunited. Thus, according to the leading legal definition of “entry,” the families had never effected entry into the U.S. - and thus had not come under the protection of ouur Constitution.

“This audacious lawsuit richly deserves to be dismissed,” commented Dale L. Wilcox, executive director and general counsel of IRLI. “These parents could have avoided detention and separation from their children altogether by voluntarily leaving the country. But that didn’t suit their purposes. Then, after the separation they caused was over, they turned around and sued government officials over it, hoping for a windfall for themselves and their attorneys.”

The case is K.O. v. Sessions, No. 4:18-cv-40149 (D. Mass.).

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