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Op-Ed: Do Illegal Aliens Have a Constitutional Right to 'Family Integrity'? Judges to Decide Soon

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Activist lawyers are mounting a major assault on American sovereignty in a surprisingly underreported court case due to be decided soon.

M.S.E. et al. v. United States involves four pairs of illegal alien parents and their children, all apparently still in the country, who are seeking money damages from the U.S. government for having their supposed constitutional right to “family integrity” violated when they were caught sneaking across the border and separated from each other in 2018.

Represented pro bono by legal giant Hogan Lovells, among others, the case follows continued efforts over the years from the left to grant illegal aliens the kind of rights enjoyed by citizens and legal residents, including the rights to free speech, bear arms and vote.

Constitutional rights don’t apply equally to everyone inside the country. Permanent residents, for instance, do not have the right to vote like citizens do, and can be deported back to their home country if convicted of certain crimes.

And for some living in the U.S., constitutional rights don’t apply at all. The only rights illegal aliens enjoy, for instance, are those given to them by Congress under the Immigration and Nationality Act — which are all narrow and procedure-based, such as the right to a deportation hearing, etc.

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As courts have stated in multiple cases over the years, there are no constitutional rights (to “family integrity” or otherwise) enjoyed by those who have not made a lawful entry into the country. This is what the M.S.E. activist lawyers are trying to change, erasing the distinction between illegal aliens and legal aliens/citizens in the process.

When an illegal alien circumvents a land port and sneaks across our border, he or she is not said to have officially “entered” the country according to immigration law. The same goes for those caught and detained by immigration authorities. Once a proper entry has happened, however — say, by a Mexican citizen who’s secured a day pass to go shopping in San Diego — courts have stated aliens are allowed certain protections under the Constitution.

But whether legal or illegal, the Constitution does not provide what the aliens are demanding here; that is, the right for criminal parents to receive special treatment just because they have minor children.

In America, like Mexico and everywhere else, when a single mother, for instance, gets caught robbing a bank, authorities either place her child(ren) with vetted relatives or with social services. Technically, the same goes for illegal aliens who have unlawfully entered the country — which is a federal crime under the INA, despite attempts by Democrats to decriminalize it.

Do illegal aliens have a constitutional right to "family integrity"?

The George W. Bush and Obama administrations pursued similar prosecution/separation policies during their tenures. Obama generally stuck to doing it with fathers with children only, while Bush pursued it more equally, most notably in Operation Streamline — but such instances were rare and, in any case, the Department of Homeland Security did not collect the relevant data at the time.

Instead of treating the criminal act of unlawful entry like a civil violation and merely giving the violator a notice to appear in immigration court, both administrations correctly thought, to varying degrees, that ensuring the violator got a week or two in prison and a criminal mark on his record would help deter future violations — and they were right; it did.

The Trump administration invigorated the policy in 2018 because it was especially needed. Due to Obama’s unconstitutional amnesty of child/young adult (and older adult) illegal aliens in late 2012 (implemented in 2013), Border Patrol was hit with a flood of unaccompanied alien minors crossing the border in early 2014 (hitting its peak that summer). In the face of weak deterrence efforts by Obama’s DHS, the flow of children, most of whom were coming on foot from Central America, never truly receded.

Despite the fact that, again, we separate criminal parents from kids on a daily basis, the “ripping children from their parents” controversy lay partly in the fact that illegal alien separations were not done enough and, thus, never became normalized in the minds of the public.

The problem is resources. There are only so many judges, district attorneys and prison cells available to prosecute the sheer number of illegal aliens pouring across the border. Due to Congress’ refusal to pass eminently reasonable measures like mandatory e-verify, which would require employers to do a 10-second online SSN verification of job applicants in order to screen out the illegal from the legal, this will continue to be a huge problem.

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Again, like criminal parents who rob a bank, foreigners who use their kids to try to gain a foothold in the country should be condemned as the awful, irresponsible parents that they are. They should be deterred from endangering their children by threatening such behavior with criminal punishment, not awarded the rights our Founders fought so hard for.

Hopefully, more commentators sound the alarm on this case and give it the time and attention it deserves.

The views expressed in this opinion article are those of their author and are not necessarily either shared or endorsed by the owners of this website. If you are interested in contributing an Op-Ed to The Western Journal, you can learn about our submission guidelines and process here.

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John Kline is a lawyer whose writing has appeared in American Spectator, the Heterodox Academy blog, Chronicles magazine, American Greatness, Areo magazine, Russia Today, the Libertarian Institute, CNS News and Law & Liberty. You can follow him on Twitter @JohnJKline99.




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