WASHINGTON – Families of illegal aliens are suing the federal government in Arizona federal district court over their treatment after they crossed the border illegally. The families claim that the separation of the parents from their children when the parents were in jail for a criminal offense violated their constitutional rights, and seek monetary damages. Yesterday, the Immigration Reform Law Institute (IRLI) filed a friend-of-the-court brief in support of the government’s motion to dismiss.
In its brief, IRLI makes the key point that plaintiffs had never even entered the country in a legal sense when their separations occurred, and thus they had no rights under our Constitution to be deprived of.
In immigration law, “entry” is a term of art, generally defined as presence in this country and freedom from official restraint. For example, a traveler at an American airport waiting to go through customs has not “entered” the United States. And a basic principle of constitutional law is that it is the American people—not aliens who have never entered the country in a legal sense, and have no substantial connection to it—who have rights under our Constitution.
Here, the alien families sought out border patrol agents as soon as they crossed the border, intending to seek asylum. Thus, according to the leading legal definition of “entry,” the families had never effected entry into the U.S.—and thus had not come under the protection of our Constitution.
“This audacious lawsuit richly deserves to be dismissed,” commented Dale L. Wilcox, executive director and general counsel of IRLI. “These parents could have avoided detention and separation from their children altogether by voluntarily leaving the country. But that didn’t suit their purposes. Then, after the separation they caused was over, they turned around and sued the government over it, hoping for a windfall for themselves and their attorneys.”
The case is M.S.E. v. United States, No. 2:22-cv-1242 (D. Ariz.).
