Immigrations and Customs Enforcement (ICE) is still trying to deport Francisco Galicia, a 19-year-old Texan, despite his having a valid U.S. birth certificate and recently acquiring a U.S. passport.

ICE detained Francisco for nearly a month last summer, arguing he wasn’t a citizen after discovering a Mexican birth certificate his mother claims she forged so her son could attend school when they returned to Mexico some years ago. Given that his U.S. birth certificate predates the Mexican one by three years, it seems likely his mother is telling the truth. And if she is, this would not be the first time ICE has detained or even deported a U.S. citizen.

In fact, since 2002, the agency has wrongly identified at least 2,840 American citizens as eligible for deportation, and at least 214 of those individuals were taken into custody for some time. But it gets worse. Astoundingly, estimates suggest that between 2003 and 2010, the government detained or deported over 20,000 American citizens.

How could such an extreme mistake happen so regularly? The answer lies in the almost complete lack of constitutional protections, like due process of law, afforded to individuals in the immigrant detention system. And the Trump administration’s “zero tolerance policy” has only worsened the problem. Many people mistakenly believe that the administration ended zero tolerance after the child separation disaster, but the policy has continued virtually uninterrupted.

Due process—a concept the framers of the Constitution held dear—allows people to contest government infringements of their liberty in front of a neutral arbiter. It also recognizes the people’s right to legal representation, to be advised of their rights when arrested and to have their case heard in a timely manner. These rights are necessary safeguards against the whims of a powerful government. They are so necessary, in fact, that the Supreme Court has repeatedly ruled that noncitizens are entitled to due process—and the founders would have agreed.

Sadly, this administration’s policy choices have decimated due process for migrants. Zero tolerance mandates that all apprehended border crossers face criminal prosecution rather than civil deportation proceedings, in which violators are deported and potentially fined but not incarcerated and charged with a felony or misdemeanor.

Traditionally, federal prosecutors have reserved criminal illegal entry and reentry charges for dangerous defendants with extensive criminal backgrounds. But in 2005, then-President George W. Bush’s “Operation Streamline” instituted mandatory criminal prosecutions for certain districts along the border. Trump’s zero tolerance is a reinvigoration and expansion of Operation Streamline.

Because federal courts are ill-suited to handle a flood of low-level immigration cases, “streamline” hearings have emerged as a sort of due-process shortcut. In these hearings, as many as 70 defendants are tried at a time, with some judges taking an average of 25 seconds per defendant to issue charges, elicit a plea and hand down a sentence.

Under zero tolerance, the government has been herding immigrants into these assembly-line legal hearings and forcing them to navigate a complex legal system, often without proper legal assistance. This has resulted in disturbing spectacles, such as toddlers “representing” themselves in deportation proceedings.

Even more troublingly, the administration plans to clear the immigration case backlog by expanding eligibility for “expedited removal,” which allows immigration officers to deny judicial hearings to migrants altogether. Such a decision could unintentionally sweep up legitimate green-card holders who are picked up without their papers. Empirical data corroborating reports of American citizens wrongly detained and deported shows that this is not at all outside the realm of possibility.

Zero tolerance is an imprudent approach to dealing with illegal immigration. When we corral migrants through legal proceedings like cattle, with scant due-process protections, we not only undermine their human dignity, we misuse large sums of taxpayer dollars. After all, zero tolerance has failed in its principal aim of deterring illegal border-crossings.

Texans and Americans of all ideological stripes, particularly conservatives, should oppose zero tolerance and the stripping of due process at the border. The Constitution demands it.

Image credit:  zimmytws

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