It’s three in the morning and Donald is lying asleep in the comfort of the home he shares with his wife, Hilary, and their two children. Donald hears three loud bangs followed by someone identifying themselves as a police officer. Before opening the door, Donald asks the officer what their business is, and if they have a warrant to enter his home. The officer remains silent but bangs on the door again with harsher authority. The officer then breaks open the door and places Donald under arrest. The officer elicits the information that Donald is in the country illegally and uses it to commence deportation proceedings.
Before a Judge, Donald argues that the proceedings were commenced after his rights were violated. The Judge agrees that Donald’s constitutional rights were indeed violated, but orders him deported in the next sentence.
There is no doubt about it, crossing the border into the United States without authorization is a crime. See 8 USCS § 1325. Prosecutors have the option of filing criminal charges and/or commence deportation proceedings against a person in Donald’s position. In a criminal trial he would be exposed to losing his freedom in the form of incarceration, however, he would have a chance to successfully defend himself because his fourth amendment constitutional rights were violated. In a deportation proceeding, Donald faces being exiled from the country and cannot use the constitutional violations to defend himself.
The reason for this is that a deportation proceeding is:
A purely civil action to determine eligibility to remain in this country, not to punish an unlawful entry.
Immigration & Naturalization Service v. Lopez-Mendoza, 468 U.S. 1032, 1038 (U.S. 1984) (internal citations omitted)
For immigration purposes, the courts have held that a person charged in a civil action usually does not enjoy the same fourth amendment constitutional protections as a person in a criminal matter. So the question is: How is it that a civil compliment to a possible criminal prosecution has much less protections than the criminal prosecution where the punishment in the civil proceeding includes breaking families apart, decimating communities and exiling people?
This might be difficult for some to believe now, but there was once a time in this country’s history where people were afraid that foreigners were not assimilating and consequently changing the fabric of their society. Accordingly, Congress passed the Chinese Exclusion Act, which suspended the ability of Chinese nationals from entering the country for ten years. In upholding the constitutionality of this act, the court did not rely on a Constitutional provision. Rather, the court articulated an inherent powers theory which said that the power to exclude is a power stemming from the nature of the sovereignty and thus not subject to the Constitution’s limits relevant to criminal proceedings.
In a subsequent case, the Supreme Court used the legal logic in the exclusion case and expanded it into the realm of deportation. In so doing, the court once again did not rely on a constitutional power but relied on the inherent powers of the sovereign theory and said that Constitutional protections afforded in criminal proceedings also did not apply in deportation proceedings. It was under this legal framework that the court labeled deportation hearings as “civil.” Under the civil label, deportation hearings did not have to provide the same level of protections that are afforded in a criminal proceeding.
This civil label and the accompanying low levels of constitutional protections in deportation proceedings remain to this date despite the court firmly rejecting the inherent powers theory. The logic to reject the theory was that the US is “entirely a creature of the constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the constitution.” Reid v. Covert, 354 U.S. 1, 5-6, (U.S. 1957).
Despite the legal rationale for denying constitutional protections in deportation hearings being soundly repudiated, the court never removed the civil proceedings label. Moreover, the court has not provided an alternative rationale for why the proceedings have to be civil without fourth amendment constitutional protections. The rationale for continuing to deny constitutional protections to civil deportation proceedings is the equivalent to the second floor of a home remaining suspended in the air despite the first floor being completely removed.
It merits conversation why a highly questionable legal theory that has been discredited still remains as the foundation for denying people in deportation proceedings fourth amendment constitutional protections.
 See Fong Yue Ting v. United States, 149 U.S. 698, 13 S. Ct. 1016, 37 L. Ed. 905, 1893 U.S. LEXIS 2340 (U.S. 1893) holding that requiring a Chinese national to have at least one credible white witness to rebut a presumption was acceptable under the constitution.