I saw the recent deportation of someone with status under DACA, which made me wonder how immigration law worked when it comes to proving/contesting immigration status. Specifically, who has the burden of proof - the individual or the state - when it comes to whether a person is an "alien." It also made me wonder whether it is Constitutional to deport someone brought to the United States as a child.
On the former issue, here is what appears to be a decent primer on the burden of proof issue. It appears on the question of whether someone is an alien, the US must show by "clear, unequivocal, and convincing evidence" that the person is an alien.* But in practice how does this work? It seems that often the person admits she/he is an alien, which ends the issue. But suppose you claim you're not an alien (or refuse to answer the question) - the government must then prove that you're an alien, which I believe means it must prove you are NOT a US citizen. How does that work? The government can't, I don't think, demand you provide evidence of citizenship and if you don't then use that as proof, can it (as that would mean the government does not have the burden of proof)? Even proving that you are a citizen of another country wouldn't work because you could still be a US citizen. Anyway, if anyone out their knows how this generally works in practice or can send me a link, I would appreciate it.
On the Constitutional issue, the person in the above link was brought to this country when he was 9 years old, he was picked up by ICE and deported without (it seems) access to either an attorney or a judge. Setting aside the rather dark (alleged, I guess) circumstances of his removal by ICE** - how is it Constitutional to do this to someone? That is, someone who entered the US as a child presumably can't have the mens rea to violate the immigration laws, and so is innocent of any such violation and therefore can't be removed, except, I guess being an alien is a "status" that has no mens rea requirement? Maybe there's an 8th Amendment violation there to deport someone to a country where they last lived as a minor? And no opportunity to see a judge or have a lawyer, at least in so called "expedited removal" cases?
That reminds me of the whole "he's a terrorist so he doesn't have any rights" argument dating back to the Bush Administration. But, without a trial, how do you know he's a terrorist? Similarly for immigration status, how can you just deport someone without a hearing on status? Upon further googling, it says here that if you swear under oath to a "border agent" that you have the right to be in the US then you are entitled to a hearing before a judge. So, there is at least some process provided here, but good luck with that and the border agents under President Trump - it's an awful lot of discretion placed in the hands of a border agent.
Anyway, the more I read, the more fncked up and outdated this whole area of law seems. Indeed, it seems perfect for Trump and the Steve Miller/Bannons of the world and their fellow travelers to use as a weapon against people they don't like, whether they are US citizens or not, or here legally or not. Here is a SCOTUS blog post on an immigration case pending before the Court on other immigration issues. It's all rather disturbing and frightening.
*this is higher than "preponderance of the evidence" but lower than "beyond a reasonable doubt" - which is, of course, eminently clear....
**which, AFAICT, anyone who lives here who is not white should be afraid of under Trump.