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All Immigrants Deserve a Court Hearing. Period.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Do undocumented mothers and children who are caught just after they’ve entered the country illegally deserve judicial review after immigration officials have decided they don’t qualify for asylum?

If you’re a foreigner denied access to the U.S., you have no right to a court hearing. If you’ve been in the country for a while, even illegally, you’re entitled to face a federal judge before being deported. But there's a constitutional gray area that applies to undocumented immigrants who are caught within two weeks of entering the country or within 100 miles of the border.

Federal law grants them a hearing before an immigration judge, but denies further review before a federal district court. This week an appeals court has held that this denial doesn’t amount to an unconstitutional suspension of the writ of habeas corpus -- because these immigrants are most closely analogous to foreigners trying to gain access, not to people already present within the U.S. The decision is wrong, and the U.S. Supreme Court should review it.

This test case for the constitutionality of the federal immigration rules involves 28 mothers and their young children, all of whom were ordered deported after hearings before an immigration judge. The women are sympathetic parties. They are from El Salvador, Guatemala and Honduras, and all claimed asylum on the ground that they would be subject to domestic violence and/or gang-related harm if returned to their home countries.

A federal statute creates an expedited removal process for undocumented immigrants caught within 14 days of their arrival or within 100 miles of the border. What makes this case particularly tricky is that the women and their children were all caught a lot quicker than that -- and a lot closer to the border. The U.S. Court of Appeals for the 3rd Circuit found that “the vast majority were apprehended within an hour or less of entering the country, and at distances of less than one mile from the border.” All were caught within six hours, and none got more than 4 miles from the border.

A separate statute makes it pretty clear that someone subject to the expedited review process can’t get a federal court to review the immigration judge’s denial of asylum. Seeking to be legally clever, the women’s lawyers argued that the statute was ambiguous, and should be interpreted to allow for the review. But the 3rd Circuit rejected the ambiguity claim.

That was almost certainly correct: Congress wanted the expedited review process to be, well, expedited. For better or worse, denial of habeas corpus is part of the statute.

That left the fundamental constitutional question of whether the women can be deported without habeas corpus. The court acknowledged that undocumented people apprehended within the U.S. would ordinarily be entitled to judicial review of an immigration judge’s decision. But it held that the women weren’t covered by that right, because they had just entered the country.

Given that you don’t have the right to judicial review if you’re caught in the process of trying to cross the border, it does make a certain amount of common sense to extend that denial to people who have just made it over. Superficially, at least, it seems a bit absurd to think that you’re entitled to greater judicial process if you manage to make it a few hundred feet farther than someone caught at the border itself.

But on closer reflection, that distinction is actually defensible. The Constitution applies differently outside the U.S. than it does inside. A person trying to enter the country but who hasn’t yet made it is still definitively on the outside. A person who has crossed the border should therefore be automatically entitled to the protections of the Constitution.

That may seem somehow arbitrary -- but it’s no more arbitrary than the idea of borders in the first place. If we don’t want our borders to be permeable or flexible in the literal sense, we should be willing to accept that they must also be impermeable and inflexible in the legal sense.

A further problem with the decision is that the court seems to have been too influenced by the specific facts of the women’s capture by customs and border patrol officials. The key sentence of the opinion said that the women “were each apprehended within hours of surreptitiously entering the U.S. so we think it appropriate to treat them as ‘alien[s] seeking initial admission to the United States.’”

Although that was true of the particular women, federal law extends the expedited deportation process to 100 miles and 14 days. That’s a long way and a long time. There’s no good constitutional reason to treat an undocumented person who has been in the country for 14 days differently from someone who’s been here for 15.  If we are drawing lines, the logical constitutional line is the border itself.

As the court admitted, there’s a tension between the idea that everyone in the country is entitled to the “great writ” of habeas corpus and the competing idea that Congress and the president have near complete power to decide who can enter the country. But that tension can be resolved with a bright line rule that creates constitutional rights once you cross the border.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

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Noah Feldman at

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Stacey Shick at