Does Brian Krassenstein Really Believe The Constitution "Literally Does Not Allow For" Expedited Removal?
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America’s would-be pre-eminent Jewish public intellectual and one-time reply guy to Donald Trump’s Twitter account is opining on immigration law, again. And, as with the last time he commented on immigration law and enforcement, he was either lying or the most misinformed commentor on immigration ever, even more a disseminator of misinformation than the moppets at PolitiFact. 

Krassenstein continues to defend the Biden’s Open Borders as the solution to the problem that Biden created at the border. Of course, that is the very definition of chutzpah, create a problem, then claim to have the only solution to the problem, which is continue with the problem. In this case the problem is open borders, which at various points, Krassenstein claims is not a problem, or that the courts have created a problem by nixing the Biden Regime solution to the open borders.

Krassenstein denies the self-evident Biden Open Borders, but the fact is that a record number of illegal aliens crossed the border, illegally, 12,000, even as Krassenstein was churlishly denying it.

Any criticism, or even news, of the open borders policy is “politicization” and the only response of critics is to shoot the invaders.

According to Krassenstein, the only alternative to open borders is shooting the invaders. Krassenstein has apparently never heard of Expedited Removal or Remain-In-Mexico, both of which are part of immigration law.

According to the nation’s supposedly most prominent Jewish public intellectual and apparently expert on immigration law, you cannot just kick out illegal aliens.

However, illegal aliens, including those making baseless claims of asylum, can be just arrested and kicked out under the Expedited Removal provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

Apparently Krassenstein hasn’t read that law yet.

But, according to the noted immigration attorney and fraudster Krassenstein, the Sixth Amendment to the Constitution prohibits the summary removal of illegal aliens. They get a trial before being deported.

It Appears That Krassenstein Hasn’t Read The Sixth Amendment

Well, No, That Is Wrong

The Sixth Amendment to the Constitution does not address deportation proceedings, it addresses criminal trials.

There is, of course, no right to a trial in deportation proceedings, though Attorney Krassenstein thinks there is.

There Is No Such Thing As "Trials" In Deportation Hearings

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Sixth Amendment, Legal Information Institute

The key part of the Sixth Amendment is in the first four words, “In all criminal prosecutions…” Apparently chutzpah means not having read anything you cite. Deportations are not criminal prosecutions and are administrative in nature, involving no punishment, therefore, as the Supreme Court has determined, deportation is not punishment and no right to trial applies.

The theory of the draftsman of the petition for the writ and of the assignment of errors was that the same Page 264 U. S. 39 constitutional restrictions apply to an alien deportation act as to a law punishing crime. It is well settled that deportation, while it may be burdensome and severe for the alien, is not a punishment. Fong Yue Ting v. United States, 149 U. S. 698, 149 U. S. 730; Bugajewitz v. Adams, 228 U. S. 585, 228 U. S. 591. The right to expel aliens is a sovereign power, necessary to the safety of the country, and only limited by treaty obligations in respect thereto entered into with other governments. Fong Yue Ting v. United States, supra. The inhibition against the passage of an ex post facto law by Congress in § 9 of Art. I of the Constitution applies only to criminal laws, Calder v. Bull, 3 Dall. 386; Johannessen v. United States, 225 U. S. 227, 225 U. S. 242, and not to a deportation act like this, Bugajewitz v. Adams, 228 U. S. 585, 228 U. S. 591.

Mahler v. Eby, 264 U.S. 32 (1924)

Krassenstein rhetorically asks someone who disagrees with him if he has read the Constitution, well, Krassenstein clearly hasn’t.

And, no, there are no judicial proceedings in the Executive Office for Immigration Review (EOIR), only administrative hearings that illegal aliens get.

Krassenstein then goes on to claim that the Republicans have no solutions to Biden’s Open Borders. That is a lie, there’s a legislative solution, one that has been pointed out repeatedly to him, that has passed the House, but Krassenstein appears to either be ignorant of the Border Safety And Security Act of 2023 or just lying. Given that Krassenstein is the Democrat point-man on the Biden Border Crisis, my bet is that he is lying.

While Krassenstein is babbling on about the Sixth Amendment, what he is referring to, but does not know, is that aliens have a right to due process, guaranteed by the Fifth Amendment, which he conflates with a trial before a judge and jury, something he missed on the days his law school taught immigration law and due process. Non-lawyer Donald John Trump got it right when he Tweeted this:

But, sadly for Krassenstein, due process for illegal aliens can include immediate deportation and Remain-In-Mexico, as the Supreme Court has ruled that for aliens, due process is whatever Congress says it is.

Immigrants have the right to due process. But in reality, says, Andrew Arthur, a resident fellow in law and policy at the conservative Center for Immigration Studies, “courts of law run the gamut.”

In some cases, immigrants are not granted a hearing at all. When asked about the president’s tweet, White House Press Secretary Sarah Sanders pointed to the process of “expedited removal,” which was created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

“Just because you don’t see a judge doesn’t mean you aren’t receiving due process,” Sanders said…

The exception is asylum seekers, who must be granted a hearing.

Those who are not processed through expedited removal have the right to due process in an immigration court, where the main goal is to decide whether a person has a legal claim to remain in the U.S.

“In immigration court, you have very few rights,” said John Gihon, an immigration attorney who spent six years as a prosecutor for U.S. Immigration and Customs Enforcement before moving into private practice.


What Constitutional Rights Do Undocumented Immigrants Have?, by Gretchen Frazee, The NewsHour, June 25, 2018 

In fact, due process is not only a trial, it can include administrative hearings or reviews, and for the most part only applies to Lawful Permanent Residents (LPR), green card holders.

It is true that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law…But an alien on the threshold of initial entry stands on a different footing: “Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.” Knauff v. Shaughnessy, supra, at 338 U. S. 544; Nishimura Ekiu v. United States,142 U. S. 651, 142 U. S. 660 (1892). And because the action of the executive officer under such authority is final and conclusive, the Attorney General cannot be compelled to disclose the evidence underlying his determinations in an exclusion case; “it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government…”


Shaughnessy v. U.S. ex rel. Mezei, 345 U.S. 206, unattributed, Justia, undated

But even the due process is connected with status as an LPR, not aliens merely claiming a status, such as asylum.

To be sure, a lawful resident alien may not captiously be deprived of his constitutional rights to procedural due process.

The Supreme Court clearly gives greater rights to a LPRs rather than illegal aliens.

That being so, the Attorney General may lawfully exclude respondent without a hearing, as authorized by the emergency regulations promulgated pursuant to the Passport Act. Nor need he disclose the evidence upon which that determination rests.

While Krassenstein appears to be just dumb, apparently not understanding the difference between due process and the right to a trial, and conflating the criminal rights under the Sixth Amendment with the rights under the Fifth Amendment, his obvious dishonesty is apparent in ignoring various statutes, Supreme Court decisions, and claiming that those who disagree only have shooting illegal invaders as their policy preference.

It appears that when the nation’s lead Twitterreply guy is both ignorant and a liar, that becomes its own thing, chutzpah.

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