from the ACLU Immigrants’ Rights Project
Non-citizens are among the most vulnerable members of our society. They are, by definition, politically disenfranchised. The United States is a nation of immigrants and, with the exception of Native Americans, all of us are in this country as voluntary or involuntary immigrants or as the descendents of immigrants. Immigration has built the political, economic and cultural strength of this county form colonial days to the present. Yet, virtually every group of newcomers has faced discrimination, hostility and stereotyping from those already here. Particularly in times of economic difficulty or fear about national security, immigrants are blamed for the problems of our society and are viewed with anger, suspicion and fear. Racial, religious and cultural prejudice, have fueled hostility toward each wave of new immigrants. For example, between the 1880’s and 1965, immigration laws targeted Chinese, Japanese, Jews, Catholics, Italians, Mexicans, Eastern Europeans and other non-English speaking non-northern Europeans for discrimination. In each wave the group or nationality was stereotyped as refusing to learn English, as not assimilating, or as bringing hostile values or cultures to America.
The ACLU has a long tradition of protecting the rights of immigrants. The American Civil Liberties Union was born during the “Red Scare,” a time when then U.S. Attorney General A. Mitchell Palmer was ordering immigrants summarily detained and deported because of their political views. The ACLU fought Palmer’s campaign of harassment and deportation against “politically radical immigrants” of the day during the 1920, and it did so again after September 11 when the government introduced a discriminatory measure known as “special registration.” This program targeted young men from 25 primarily Arab and Muslim countries and required them to report to immigration offices to be fingerprinted, photographed and interrogated.
The ACLU has been one of the nation’s leading advocates for the rights of non-citizens, challenging unconstitutional laws and practices by the government, and countering the myths upon which many of these laws are based. In 1987 the ACLU founded the Immigrants’ Rights Project (IRP) to protect the Constitutional rights of immigrants because the lack of citizenship makes immigrants among the most vulnerable members of our society. Every time that the government wants to expand its power and take away individual rights it begins by taking away the rights of immigrants as it did in 1996 and after 9/11. That is why the IRP works to expand and enforce the civil rights and civil liberties of non-citizens; to combat public and private discrimination against immigrants and to debunk the myths that are the basis for unfair immigration laws.
From offices in New York and California, Immigrants’ Rights Project attorneys litigate cases in federal courts throughout the country can provide legal support to advocacy organizations and community groups nationwide. We conduct the largest litigation program in the country dedicated to defending the civil and constitutional rights of immigrants through a comprehensive program of impact litigation and public education. Defending the rights of immigrants was one of the founding principles of the ACLU and IRP carries on that historic commitment. The Immigrants’ Rights Project has been at the forefront of major legal struggles securing immigrants’ rights. Currently it targets the following priority area: unconstitutional restrictions on the right to judicial review; indefinite and mandatory ordinances; and public and private discriminatory practices targeting immigrants and immigrant workers. The IRP also supports ACLU affiliates’ work to protect immigrants’ rights and conducts a program of public education and advocacy.
The ACLU recognizes that the United States, like very country, has the right to control who enters the country, to enforce the integrity of its internationally recognized borders and to deport person in the country who are not authorized to be here. However, the ACLU also believes that the authority to decided who may enter or remain as well as the power to exclude and deport those without authorization to be here must be exercised fairly, humanely, subject to our constitutional norms of due process and equal protection and consistent with U.S. obligations under international law.
Our immigration laws governing permanent immigration to the United States are designed to embody the fundamental values of family unification, U.S. labor needs and protection for those fleeing persecution. The precise number of people admitted each year under these provisions do not, in themselves, raise civil liberties concerns. However, permission to enter or remain in the United States-either as a permanent resident or a temporary visitor-must not be implemented in a manner that creates or perpetuates discrimination on the basis of race, ancestry, national origin, political opinion, gender, religions or sexual orientation.
Non-citizens who are in the United States should be entitled to the same protections of the Constitution, our civil rights statutes, and the laws governing worker’s rights as citizens. All immigrants-including those who are undocumented-should be protects against race, sex and religious discrimination and should be covered by labor, workplace safety and minimum wage laws.
The ACLU believes that governmental efforts to reduce unauthorized immigration should focus on the causes of such migration and not on punitive measures that do not correspond to the reasons why people come to the United States.
The fundamental civil liberties protections of the Bill of Rights and Constitution apply to all “persons,” not just citizens. For example, every person in the United States has the right to due process and equal protection; to criminal proceedings that afford a right to counsel, a jury trial and freedom from double jeopardy; to freedom from cruel and unusual punishment; to freedom from unreasonable searches and seizures; and to freedom of speech, religion and association. These basic principles generally apply regardless of an immigrant’s legal status, and the ACLU believes that immigration status should be irrelevant to the application of these essential constitutional safeguards.
Under the law, non-citizens do not have the same right as citizens to enter or remain in the United States, and the Supreme Court has ruled that constitutional guarantees sometimes offer less protection to non-citizen. In particular, the Supreme Court has allowed Congress wide-ranging power to set the rules governing admission of foreigners. For examples, the Court has permitted Congress to bar admission of persons based on their political beliefs, sexual orientation and economic status. In addition the Supreme Court has ruled that non-citizens outside the United States seeking initial entry to the country are requesting a privilege and have no constitutional status of a non-citizen increased in proportion to his or her ties to the United States. While persons in the country charge with being deportable have the right to a hearing that comports with due process, the law creates a legal fiction that persons stopped at the border can be treated as if they were still outside the United States even though they are physically present in the country.
The ACLU believes that the regulation of immigration can be achieved with respect for individual rights, equal protection and due process, and that the Constitution imposes limits on governmental action regardless of the citizenship status or physical location of the affected individual.
May the government discriminate against non-citizens in matters not related to their admissions to the United States?
Among the most important sources of legal protection against governmental discrimination or abuse are the Fifth and Fourteenth Amendments to the Constitution. They provide that no person shall be deprived of life, liberty or property without due process of law and that no person shall be deprived of the equal protection of the laws. Thus, the right to due process, equal protection and the other fundamental rights that are encompassed by these principles apply to all persons in the United States, including non-citizens.
The Supreme Court has held that state or local laws that discriminate on the basis of “alienage” – like those that discriminate against non-citizens on the basis of race, national origin or gender – are subject to “strict scrutiny” under the equal protection guarantee. The Supreme Court, therefore, has struck down state laws that discriminate against legal resident aliens in the provision of benefits (welfare, scholarships, tuition grants, student loans) and in eligibility for jobs (civil service positions, lawyer, notary publics). In declaring these state prohibitions unconstitutional, the Court stressed that immigrants “have contribute on an equal basis with residents of the State.”
However, the Court has permitted states to discriminate against resident aliens in certain respects, such as voting, elected office, policy-making positions in government, and certain jobs such as police officer or school teacher, under a “political function” exception. More significantly, the Supreme Court has held that the federal government, because of its exclusive responsibility for supervising immigration, has broad powers to discriminate on the basis of alienage, including in federal benefits programs.
On numerous occasions, the Supreme Court has stressed that: “aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of the law by the Fifth and Fourteenth Amendments” and the certain kinds of discrimination against undocumented immigrants by the state or federal government violate the Constitution. For example, criminal justice rights are equally applicable regardless of immigration status. However, as already noted, the federal government has broad power to discriminate on the basis of alienage, and the Supreme Court has addressed whether state may discriminate against undocumented immigrants in only one case, Plyler v. Doe. There the Court held that undocumented immigrants do not constitute a “suspect class” for equal protection purposes but ruled that states may not deny undocumented school-age children the same free public education that is provided to children education imposes costs on society, will not decrease unauthorized immigration and unjustifiably harms the children. Whether the Plyler decision prohibits other kinds of state discrimination against undocumented immigrants is uncertain.
Immigrants charged with being deportable are entitled to due process, including a hearing before an immigration judge and review by a federal court. Among the specific rights that apply in deportation proceeding are the right to be represented by counsel (at no expense to the government); to receive reasonable notice of the charges and of the time and place of the hearing; to have a reasonable opportunity to examine adverse evidence and witnesses; to present favorable evidence; to receive competent language interpretation; and to have the government prove its case by clear, convincing and unequivocal evidence.
A non-citizen charged with deportable may have numerous defenses that would allow him or her to remain legally in the country. These include ties in the United States, fear of persecution, marriage to a U.S. citizen and others. If an alien is found deportable, he or she has the right to an administrative appeal and to judicial review in federal court.
The legislative proposals, including the compromise “comprehensive immigration reform” bills contain significant and dangerous provisions that, if passed, will accelerate the erosion of basic civil rights and civil liberties for non-citizens, violate constitutional principles, and increase discrimination. This price of reform is easily overlooked-and sometimes carefully camouflaged-as the debate becomes increasingly acrimonious.
Advocates are now grappling with whether the anticipated benefits of legalization are worth the likely costs, whether abrogation of historic rights is an inevitable trade-off for enacting reform, and whether pressing for comprehensive reform is the best strategy for fending off even worse measures. These questions entail agonizing strategic judgments and priorities.
Legalization: Enforceable Oversight of Administrative Implementation
The last time Congress passed a legalization statute in 1986, the INS (former federal immigration agency) engaged in illegal practices to disqualify thousands of applicants. In fact, the law would have been dramatically undermined by the INS if immigrants had not had the right to go to court and challenge the policies and rules of the INS. Only major class-action lawsuits throughout the country compelled the agency to abandon its illegal policies. Today, that same oversight through litigation will not be possible unless effective judicial review is restored.
Due Process at Risk
In term of due process, two questions should inform the assessment of any comprehensive reform bill. First, what provisions are likely to be included, and what are their implications? Among the proposals that contradict fundamental norms of fairness and due process are measure such as:
Additional restrictions on federal court review
Broader imposition of mandatory and indefinite detention
Increased state and local police enforcement of federal immigration laws
A national computerized employment verification system
Application of “expedited” removal far from the border
Expansion of so-called “aggravated felony” offenses
Limitations on remedies for naturalization delays
New limits on discretionary relief
Deportation based on suspicion without proof
Preventing Further Erosions of Judicial Review
A fundamental lesson driven home with painful clarity since 9/11 is that a courageous and independent judiciary is an essential safeguard of individual rights and the rule of law. Immigrant rights are no exception. The Supreme Court’s landmark 2001 decision, INS v. St. Cyr, argued by the ACLU’s Immigrants’ Rights Project, preserved access to habeas corpus for immigrant and rebuffed the government’s efforts to subject immigrants to removal without judicial review. Preserving that crucial check must be the cornerstone of any immigration reform proposal.
New and Prolonged Detention
Two Supreme Court decisions in recent years have ruled that prolonged detention is constitutionally suspect. In one ruling, the Court imposed limits on indefinite detention of persons who cannot be removed from the country because their home country refuses to accept them. On a separate ruling it tolerated mandatory detention during removal proceedings only because it appeared to be short-term. Measures that would undermine these decisions by mandating lengthy detention or denying release to immigrants who demonstrably pose no danger or flight risk violate fundamental constitutional protection. And the consequences would be magnified exponentially by the already-enacted mandates to increase the number of immigration detention beds by at least 10,000 per year.Preserving the Wall between Local Policing and Immigration Enforcement
Attempts to steamroll local police into enforcing civil immigration violations are misguided, as are proposals to merge civil immigration data into the federal criminal database accessible to cops on the beat. These policies would undermine effective policing and national security as well as encourage ethnic profiling and discrimination. As opposition from innumerable police chiefs has emphasized, if immigrant communities view the police as immigration enforcement agents, immigrants will fear to report suspicious activity or criminal conduct, making our cities and communities less safe.
Employment Verification Systems
Some advocates believe that a universal, electronic, automated employment verification system is an inevitable and desirable trade-off for comprehensive reform. But in reality, the systems envisioned by proponents are likely to compromise privacy, engender discrimination and be rife with unacceptable errors. Even a tiny one percent error rate-far below that documented by the General Accounting Office in a model pilot program-would result in more than 500,000 false “not work authorized” hits per year. And even if some problems might be transitional, the database is predicated on a constant updating of name, immigration status, and residence changes. No bureaucracy or computer system is capable of that level sustained perfection.
In addition, discrimination on the basis of race and ethnicity is inevitable when employers are required to distinguish between “legal” and “illegal” workers and database verification errors become the norm. The impact of a computerized “hit” will be devastating for a worker who “looks” or “sounds” “foreign” but will no doubt be overlooked for the stereotypical “American” applicant. And all other shortcomings aside, establishing a new massive government computer data system asks us to suspend disbelief by assuming that the database will be inviolable, will be immune from unauthorized access, and will never be abused by rogue agencies or Administrations more concerned with monitoring domestic activity than protecting civil liberties.