On Thursday, attorneys purporting to represent six Honduran nationals and their minor children filed suit against President Donald Trump and the agencies charged with protecting our borders and enforcing immigration laws. The plaintiffs, all of whom are part of the current caravan making its way to the U.S. border, claim in their lawsuit that the Trump administration is violating their due process rights under the Fifth Amendment to the Constitution.
The lawsuit is frivolous and the complaint—which reads more like a transcript from a late-night MSNBC segment than a legal document—served only one purpose: to focus media attention on Trump’s statements about the caravan and the administration’s detention of illegal aliens.
“Trump’s professed and enacted policy towards thousands of caravanners seeking asylum in the United States is shockingly unconstitutional,” the lawsuit begins, before adding that “President Trump continues to abuse the law, including constitutional rights, to deter Central Americans from exercising their lawful right to seek asylum in the United States, and the fact that innocent children are involved matters none to President Trump.”
The vast majority of the 32-page complaint similarly seeks to castigate the commander-in-chief instead of laying out a legal basis for Honduran citizens to sue our government under the U.S. Constitution. There is no legal basis.
These People Aren’t Even On U.S. Soil
In their lawsuit, the plaintiffs readily admit they are Honduran citizens “travelling by foot” to the U.S. border. They ask the court to allow them to pursue a class-action lawsuit and represent all persons who are “Mexican, Central American, or South American citizens who are travelling to the United States or have attempted entry into the United States.” Paradoxically, the plaintiffs then allege the “Due Process Clause of the Fifth Amendment applies to all ‘persons’ on United States soil.”
That proposition is debatable, as explained below, but even under the plaintiffs’ view of the Fifth Amendment, the parents and their minor children attempting to sue the president and the border-control agencies are not on American soil. These Honduran citizens, who are supposedly walking to America right now, have absolutely no rights under the U.S. Constitution.
The plaintiffs also have yet to suffer any injury. While their lawsuit complains that the Trump administration is violating a settlement agreement the Clinton administration entered in 1997 by detaining aliens in tent cities, the plaintiffs are not being held in those temporary shelters: again, they are not even physically in the United States yet.
Similarly, while the lawsuit charges that the Trump administration has violated various provisions of the Immigration and Naturalization Act, especially those related to the granting of asylum and detention of aliens, the plaintiffs have not been denied asylum, detained, or otherwise affected by Trump’s promised protection of the border. For all the claims that Trump’s response to the caravan has been an exercise in political theater, this meritless lawsuit, steeped in hyperbole, instead provides the perfect example of politicizing immigration.
In short, the plaintiffs have no basis to sue at this point. They are not physically present in the United States, have not been denied asylum—or the ability to file an asylum claim—and have not been detained. Also, should the Honduran plaintiffs and other members of the caravan eventually reach U.S. soil, they will still face difficulties in bringing their claims.
Even If They Get Here Their Case Is Weak
First, while the plaintiffs assert that the “Due Process Clause of the Fifth Amendment applies to all ‘persons’ on United States soil,” the Supreme Court has yet to resolve that question. Rather, in United States v. Verdugo-Urquidez, the Supreme Court held that “aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country” (emphasis added to both quotes). An individual detained immediately upon crossing the border, or soon thereafter, has not “developed substantial connections with this country.”
In the future, the courts may expand this precedent to cover illegal aliens arrested upon crossing to the American side of the border. But such an extension of the law is far from assured. To explain: Common sense would say that all human beings physically present in the United States are “persons” for constitutional purposes—notwithstanding abortion activists’ claims to the contrary.
Immigration law, though, adopts a fiction necessitated by the reality of borders and border inspections. Under U.S. immigration law, an illegal alien detained at the border has not “entered the United States,” even if physically present in the United States. Case law further teaches that aliens who have not “entered the United States” lack rights under our national Constitution.
The logical conclusion stemming from these precepts is that illegal aliens who are physically present in the United States, but who have not “entered” the United States, lack constitutional rights. Whether the Supreme Court will reach that conclusion is yet to be seen, but if the justices do so hold, the plaintiffs will be unable to pursue a Fifth Amendment claim even if they eventually reach U.S. soil.
A second problem facing asylum-seeking members of the caravan stems from the nature of the violence they claim to be fleeing. In their complaint, the plaintiffs speak of the human rights crisis citizens of Guatemala, Honduras, and El Salvador face in their home countries. But, as the sources the plaintiffs cite in support of this proposition establish, the violence threatening the asylum-seekers stems mainly from gang violence. As horrible as those conditions are—and as understandable as it is that a mother would seek to flee from the gang-torn streets that could devour her young—Congress has not authorized the federal government to provide victims of gang violence asylum.
Most Americans are ignorant of this reality, so merely restating the law subjects the messenger to vitriol. After all, we are a kind and compassionate people, and saying gang violence doesn’t count for asylum is a hard sell to people seeped in images of women and children fleeing their homelands, each with a horror story. But that is the law. Also, with more than 30 million people living in just those three countries, America cannot possibly absorb everyone seeking to escape gang violence.
Those realities, though, don’t push people to the polls or further political ends, so instead we will have more footage of the caravan and more frivolous lawsuits. And no border solutions.