Michael Benefiel

Professor Alan Drew

Immigration Law, Spring 2012

What Constitutional rights do immigrants seeking admission to the U.S. have in relation to those immigrants who have already been admitted to the U.S.? Simply stated, and based on precedents in U.S. Supreme Court decisions, foreign nationals have no U.S. Constitutional rights when seeking admission to the U.S. Once admitted, a foreign national becomes a resident and begins a process of assimilation of rights as a resident of the United States. Though the essay topic distinguished between two classes of persons, as we know, there is another class as well. There is a category of persons who are here and residing in the U.S., but who have avoided inspection at the border or who have decided to adjust their status without official approval of their action. Whether they crossed the U.S. border clandestinely or simply arrived with valid visas and chose to stay, these people are estimated to number between 11-12 million in 2012.1 One issue this political cycle is how our elected political leaders and their challengers, as well as voters, will deal with this large population, variously named illegals, or undocumented immigrants. One solution proposed and apparently popular with many is to make continued residence in the U.S. so difficult as to become a worse alternative to departing and trying to live somewhere else. This seems to be part of the motivation for legislation passed in 2010 in Arizona (SB1070) and later in Georgia, Alabama, and elsewhere. Former Massachusetts Governor Mitt Romney, who employed undocumented workers as his landscapers during this term of office, now proposes a new policy to win the Republican nomination and victory on Nov. 6th: Self-Deportation. Making living conditions difficult for people seemed to be popular with activist Republicans who participated in the nominating contest. These people have come into the U.S. have overstayed our welcome as determined by the inspector who permitted their entry. They are suspected of a variety of socially undesirable activities and some of them may even be guilty as charged. Another approach might be to provide to some law-abiding immigrants with working skills they can match to the needs of U.S. labor markets, an opportunity for selfadjustment of their immigration status. Comprehensive immigration reform may be too large a task for our deeply divided electorate. We might find a way to provide an earned
1

JULIA PRESTON, The New York Times, Feb. 1, 2011,

About 11.2 million illegal immigrants were living in the United States in 2010, a number essentially unchanged from the previous year, according to a report published Tuesday [Feb. 1] by the Pew Hispanic Center, a nonpartisan research organization in Washington.

Michael Benefiel

Professor Alan Drew

Immigration Law, Spring 2012

path to citizenship for those who merit our generosity and welcome. We will see an indicator of public sentiment among Maryland voters later this year. If voters repudiate the 2011 action by elected state legislators and Governor Martin OMalley to sign the Maryland Dream Act, we will have to conclude that voters will not reward illegal actions. If voters affirm the legislation in the Referendum on Nov. 6th, we will have to infer that they favor allowing children who achieved a high school graduation with hard work and focus to stay. The children who are here without status will either be punished for coming as minors to our state, or they will obtain popular (and legal) authorization to stay, continue their education, and find jobs and start families here. With the voters support, it may become more difficult for the Immigration and Customs Enforcement (ICE) to issue NTAs (Notice to Appear) and begin removal proceedings against them. For the purposes of discussing the acquisition of rights recognized by the Supreme Court, I am particularly interested in this category of undocumented immigrants. From my perspective as a former consular officer of the U.S., they may have rights not explicitly named in the U.S. Constitution but instead acquired by the voluntary and sovereign decision by the U.S. to adhere to an international treaty or convention. These persons may also have acquired some rights under international treaties or conventions which the Government of the United States of America has chosen to join. Since few U.S. politicians are soliciting votes from these people (who do not vote) and are not soliciting money from them (since they have little enough of their own), a small and noisy minority of people who find current U.S. immigration law unjust seem to be their only advocates. The American Immigration Lawyers Association (AILA) may also be advocates, since their clients include people in this category. Whether the Supreme Court will ever see the merits of recognizing these people have due process rights is an open question. I, for one, am not optimistic. Along with the outspoken dissenters to pivotal U.S. Supreme Court decisions about the rights of the Attorney General to make decisions without judicial review, I believe liberty has been sacrificed to obtain an illusion of more security against dangers that are rarely rigorously analyzed and debated in public conversations. Because law enforcement authorities, assisted by passengers and flight crew members, caught a terrorist who had explosive shoes, air passengers now remove shoes to enter the boarding areas of our airports. Though expensive, inconvenient, and largely beside the point, such practices encourage us in the ungrounded hope that this system represents a dramatically higher level of safety for passengers. In my opinion, most of our current activity to legislate against immigrants comes from an often unexamined belief that they and not we ourselves are responsible for our economic failures and disappointments and also for our increasing sense of endangerment and uncertainty. As Chancellor of Germany, Adolf Hitler and his propaganda wizards gave Germans half-truths and fed their prejudices, with

Michael Benefiel

Professor Alan Drew

Immigration Law, Spring 2012

consequences that continue to resonate with each new atrocity, genocide, or scapegoating claim. I do not say that those who scapegoat immigrants as the source of all thats wrong with the U.S. are minor league Hitlers or Goebbels, just that the process of blaming someone weaker and smaller is a successful tactic of every bully in the world. If we stand by and let the rights of immigrants be taken away in the name of national security and public order, we start down a slippery slope and jeopardize our own civil rights and liberties, in my opinion. During the course of the Spring 2012 semester, we read four U.S. Supreme Court cases which provided authoritative decisions pertinent to the topic of this essay: 1. U.S. ex rel. Knauff v. Shaughnessy 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317 (1950) 2. Kwong Hai Chew v. Colding 344 U.S. 590, 73 S.Ct. 472, 1953 A.M.C. 250, 97 L.Ed. 576 (1953) 3. Shaughnessy v. United States ex rel. Mezei 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953) 4. Landon v. Plasencia 459 U.S. 21, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982) In the first case, Ellen Knauff, a German citizen, attempted on Aug. 14, 1948, to enter the U.S. under provisions of the War Brides Act of Dec. 28, 1945. The U.S. denied her admission on the grounds that her admission would be prejudicial to the national interest. Ms. Knauff sued the U.S. to obtain admission. The legal issue was framed as May the U.S. exclude [Ellen Knauff] without hearing, solely upon a finding by the Attorney General that her admission would be prejudicial to the interests of the U.S.? A divided court held that the U.S. could do so. The Court majority found that under provisions of the June 21, 1941, amendment to provide the President with additional powers during the national emergency proclaimed on May 27, 1941, the Attorney General had the power to impose restrictions on the entry into and departure from the U.S. of persons on the basis of information known to the AG. The Court reasoned that: An alien who seeks admission to this country may not do so under any claim of right. Admission of aliens to the United States is a privilege granted by the sovereign United States Government. Such privilege is granted to an alien only upon such terms as the United States shall prescribe. 338 U.S. 542. The Court went even further in recognizing the power of the Executive Branch to make determinations of entry into and departure from the U.S., stating:

Michael Benefiel

Professor Alan Drew

Immigration Law, Spring 2012

Whatever the rule may be concerning deportation of persons who have gained entry into the United States, 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 to exclude a given alien. 338 U.S. 543 In a dissent that quickens the pulse of every citizen who cares about due process and civil rights, Justice Frankfurter expresses his frustration with the majority decision. He is particularly acidic about the claim that no hearing is required to challenge the information held by the AG which is the basis of the decision to deny admission. In Justice Frankfurters words: [War brides] incur the greater hazards of an informers tale without any opportunity for its refutation, especially since considerations of national security, insofar as they are pertinent, can be amply protected by a hearing in camera. 338 U.S. 548 The plea that evidence of guilt must be secret is abhorrent to free men, because it provides a cloak for the malevolent, the misinformed, the meddlesome, and the corrupt to play the role of informer undetected and uncorrected. 338 U.S. 551 In the second case, one involving a Chinese citizen who had previously been admitted and was holding an Alien Registration Receipt Card (Green Card) as a permanent resident alien, the U.S. Supreme Court made a distinction between a foreign citizen whose entry was a privilege and a permanent resident alien, lawfully admitted to the U.S. The majority held that: Once an alien lawfully enters and resides in this country, he becomes invested with the rights guaranteed by the Constitution to all people within our borders, including the rights protected by the First and Fifth Amendments, and by the due process clause of the Fourteenth Amendment. The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society. Mere lawful presence in the country creates an implied assurance of safe conduct and gives him certain rights; they become more extensive and secure when he makes preliminary declaration of intention to become a citizen, and they expand to those of full citizenship upon naturalization. 344 U.S. 598

Michael Benefiel

Professor Alan Drew

Immigration Law, Spring 2012

The Court had long held that before an alien could be deported, the Government must provide a hearing at least for aliens who had not entered clandestinely and who had been here some time, even if illegally. Wong Yang Sung v. McGrath, 339 U.S. 33, 49-50. Despite the precedent, a 1953 Supreme Court decision came to a different conclusion in the case of an alien who had departed the U.S. and lived for over a year behind the Iron Curtain.. The majority, in a closely divided Court decision, held that the U.S. could exclude an alien, without a hearing, as a bad security risk. The Courts majority found that this Government decision did not deprive Mezei of any statutory or Constitutional right. Again, in a strongly worded dissent, Justice Black pointed out that Mezei had lived a life of unrelieved insignificance near Buffalo, NY, from 1923 until he departed from the U.S. to visit his mother in 1948. She lived in Eastern Europe and the disturbed conditions there, as well as her health, delayed Mezeis return to the U.S. until 1950. Though the Court majority held that this long period of absence from the U.S. had broken Mezeis residence and the rights associated with his increasing identity as a member of U.S. society, the Justices in dissent asserted this was an error of jurisprudence and a flawed understanding of the consequences of allowing any official of the U.S. to make decisions not subject to judicial review. Justice Black wrote: The Founders abhorred arbitrary one-man imprisonments. Their belief was-our constitutional principles are-that no person of any faith, rich or poor, high or low, native or foreigner, white or colored, can have his life, liberty or property taken without due process of law. This means to me that neither the federal police nor federal prosecutors nor any other governmental official, whatever his title, can put or keep people in prison without accountability to courts of justice. It means that Mezei should not be deprived of his liberty indefinitely except as the result of a fair open court hearing in which evidence is appraised by the court, not by the prosecutor. 345 U.S. 218 Both the factual circumstances and the claims and counter-claims in the fourth case, Landon v. Plascencia 459 U.S. 21, make the decision complex and challenging to draw many clear inferences from. Even Justice OConnor, writing for the majority, seemed to hesitate before asserting too broad a decision. Because the U.S. Government had conceded that Plasencia had a right to due process, Justice OConnor wrote: The constitutional sufficiency of procedures provided in any situation, of course, varies with the circumstances. In evaluating the procedures in any case, the courts must consider the interest at stake for the individual, the risk of an erroneous

Michael Benefiel

Professor Alan Drew

Immigration Law, Spring 2012

deprivation of the interest through the procedures used as well as the probable value of additional or different procedural safeguards, and the interest of the government in using the current procedures rather than additional or different procedures. 459 U.S. 34 She asserted a modest role for the judiciary, and wrote, The role of the judiciary is limited to determining whether the procedures meet the essential standard of fairness under the Due Process Clause and does not extend to imposing procedures that merely displace congressional choices of policy. 459 U.S. 34-35 In dissent, Justice Marshall did not hesitate to express his view that the hearing provided to Plascencia denied her due process because she was not given adequate and timely notice of the charges against her and of her right to retain counsel and to present a defense. 459 U.S. 38. Following this analysis and discussion, I come to the complex question of a class of immigrants who are residing in the U.S. without authorization. Are they more like the class of aliens seeking admission to the U.S. from homes located overseas, and without any expectation of rights to enter and join the U.S. society? Or are they more like the class of aliens who are residing in the U.S., becoming assimilated into U.S. society, and gradually acquiring rights as residents and members of our societys labor market, our faith communities, and our civic and educational and philanthropic institutions? My argument is that unauthorized immigrants are more like resident aliens. They are, at a minimum, entitled to procedural fairness during the course of their removal hearings. They deserve adequate and timely notice of charges, as well as opportunities to seek legal counsel and prepare a defense. These people may also have a legitimate fear of violence if they are forced to return to their country of origin. In a recent hearing at the Arlington Immigration Court, the respondent, a citizen of Honduras who I will name Mr. Juan Moreno [not his real name], received a formal NTA Notice to Appear last October. Represented by Ms. Lisa Johnson-Firth, Mr. Moreno has filed form I-589, an Application for Asylum and for Withholding of Removal. During the Master Calendar hearing on May 8, 2012, Immigration Judge Thomas Snow set a hearing on the merits of Mr. Morenos case for March 26, 2014, at 1:00 p.m. The U.S. Department of Homeland Security, represented by Ms. Sylvia Wang, intends to deny the I-589 application and will dispute the merit of Mr. Morenos claim that he is in danger of injury, discrimination, or death due to his membership in an association of Hondurans.

Michael Benefiel

Professor Alan Drew

Immigration Law, Spring 2012

The 21 month backlog in pending cases at the Arlington Immigration Court means that Mr. Morenos status in the U.S. will continue to be unresolved. Is he acquiring rights as he remains and enjoys the benefits of U.S. society, or is he simply postponing the day of his departure through administrative procedures which delay the inevitable? For Mr. Morenos asylum application to be successful, he must meet the burden of proof. According to Ms. Johnson-Firth, the standard for withholding of removal is that he must succeed in showing that it is more likely than not that he will face persecution on account of his race, membership in social group, political opinion or nationality. Following the reports of violence, instability, and assassination from Honduras over the next 21 months will be part of the case. A quick check of the advice to U.S. citizen travelers to Honduras provides the following: Political demonstrations occur frequently in the major cities of Honduras. During demonstrations, protestors frequently block public roads to press their political views or to seek concessions from the Honduran government. Police may use tear gas, water cannons, or rubber bullets to disperse demonstrators. Travelers should avoid areas where demonstrations are taking place and never try to pass roadblocks.2 While the U.S. has a sovereign right to determine the rules and procedures for entry into and removal from the territory of the U.S., it also has the sovereign right to make and enter into international treaties and conventions. Among these obligations, voluntarily undertaken by the Government of the U.S., are a variety of agreements which make commitments about the treatment of refugees and others threatened with violence. While this discussion takes me well beyond the topic of this essay, I will content myself with saying that the U.S. has obligations under international agreements that the U.S. Supreme Court may or may not be aware of. For an eye-opening review of the U.S. record on refugees and trafficked persons, for example, and our compliance with our international treaty obligations, I will close by citing the work of our former Legal Advisor to the U.S. Department of State, Harold Hongju Koh a distinguished Yale Law School professor. Professor Koh should never be confused with Professor Yoo, of the University of California Law School, whose name may be familiar to human rights activists in and out of the U.S. Government for a memo he authored concerning interrogation of prisoners in war zones. This August 3, 2002, memo provided guidance on the use of such interrogation techniques as sleep deprivation, waterboarding, and binding in stress positions, concluding these might not be torture in all cases.
2

Downloaded on May 10, 2012 from http://travel.state.gov/travel/cis_pa_tw/cis/cis_1135.html

Michael Benefiel

Professor Alan Drew

Immigration Law, Spring 2012

In contrast to the work of the Legal Advisor to the U.S. State Department during the Presidency of George W. Bush, the Legal Advisor appointed by President Obama has made a dramatic difference. An excerpt from the report to the U.N. High Commissioner for Refugees, concerning national compliance with the U.S. obligations under the International Covenant on Civil and Political Rights (ICCPR), which the U.S. signed in 1966, has the following updated report: With the creation of the Department of Homeland Security (DHS) in 2003, Congress established an Officer for Civil Rights and Civil Liberties. The Officer is charged with reviewing and assessing information concerning abuses of civil rights, civil liberties, and discrimination on the basis of race, ethnicity and religion, by employees or officials of the Department of Homeland Security. The Officer has a unique internal function of assisting the senior leadership to develop policies and initiatives in ways that protect civil rights and civil liberties. The Officer conducts outreach activities to non-governmental organizations and others to communicate the Office's role and the Department's commitment to the protection of individual liberties. The DHS Office for Civil Rights and Civil Liberties has been actively working to develop relationships with the ArabAmerican and Muslim-American communities. Reaching out to immigrant communities is an important part of a dialogue to address concerns regarding racial, ethnic, and religious discrimination.3 I can imagine a case of abusive prosecutorial practices which moves through the U.S. judicial system might someday be featured in an international court to examine exactly how well the U.S. has complied with our treaty obligations under ICCPR, for instance. If an activist human rights lawyer wanted to take on the case of some wealthy, casinooperating Native American tribe, for example, I wonder what the outcome of that litigation might be for the U.S. Government and the native American tribe with an old abrogated treaty guaranteeing it land in perpetuity, for example. The perspective of Native Americans can best be summarized as the motto on a T-shirt I saw in Arizona. A photo of Geronimo, Sitting Bull, and the words Fighting for Homeland Security Since 1492 in high relief. The decisions about whose homeland merits protection, and who has earned the right of residence and citizenship, is and will remain a profoundly political decision. We have an elaborate system of justice, and our 1787 Constitution works pretty well for most of the European-Americans who were overrepresented at the time of its writing in Philadelphia during that summer. I will leave it to
3

The passage is paragraph 45 in the report to UNHCR and can be found at: http://www.state.gov/j/drl/rls/55504.htm

Michael Benefiel

Professor Alan Drew

Immigration Law, Spring 2012

another time and essay to discuss whether the intent of the founders is, in all cases, sufficient to determine a future course of nation-building for the 21st century and the global challenges we now face.