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  • Article: Another Approach to Discussing Anti-immigration Legislation and Policy. By Frank Gould

    Another Approach to Discussing Anti-immigration Legislation and Policy

    by


    Most people who vehemently oppose immigration fancy themselves as knowledgeable of the constitution.  They see no problem with plenary power, it doesn’t matter if it circumvents the constitutional rights of the non-citizen.  For such people, the non-citizen has no constitutional rights because they are not a citizen.  Regardless of how gross the violation of rights, the point is moot because the rights are simply non-applicable.  Going back and forth on whether the constitution applies to immigrants usually results in a quagmire, where the parties are entrenched in their long held beliefs.

    However, there may be an alternative and more persuasive way to combat those who support draconian immigration laws.  Focus on how the rights of American citizens suffer as a result of such legislation/policy and the history of anti-immigration legislation/policy infringing on the rights of American citizens.

    The case of Arizona v. United States is a prime example.  While most of SB 1070 was struck down, the case is illustrative of how in an effort to exclude one group of people the proponents could be hurting themselves.  The legislation at issue in Arizona was expansive in granting powers to the local authorities.  Under Section 6 one can be arrested if an officer has probable cause that one is an undocumented immigrant.  Discretion is left up to the local authorities, meaning one could be arrested for “looking like an illegal” even if one is actually a citizen.  The same person arrested can be held pending status determination.  This means that a citizen, subject to broad probable cause, based on appearance or race (violations of the 4th and 14th Amendments) could be stopped, arrested and detained until their status is determined, without a warrant.

    The case of Kliendeinst v Mandell (92 S. Ct. 2576 (1972)) and American Academy of Religion v.  Chertoff (463 F. Supp. 2d 400 (2006) show how immigration laws and policy can be used to suppress the free flow of ideas.  Both of the non-citizens in question were academics whose expertise was in the beliefs of the “enemy” of their time period.  In Mandell the forbidden belief was Marxism, and the non-citizen was denied entry right around the time the Vietnam War was wrapping up.  Just a refresher--that war did not go well for the United States. In Chertoff it was the teachings of Islam that were at issue; the visa was denied a few years after 9/11.  Both parties were denied their visas; thus they were not permitted to enter the United States.  While it was possible to communicate in ways other than face to face, the people (American citizens) who had invited these guests, were denied an expression of their free speech as they were not free to associate or express their opinions.

    Pointing out that anti-immigration policies hurt United States citizen’s rights is not a new legal argument.  Where this issue needs to be brought up is in discussion between United States citizens.  One must not ignore or omit the plight of non-citizens trying to enter the country; this has a place in all discussions regarding immigration.  However, this road is well worn and if it is the only road taken it leads us to a familiar place--both sides dug in refusing to give an inch.  By steering the discussion toward the rights of the citizens affected, some will be forced to look inward.  The picture is painted in a new light; one may see the victims no longer as a faceless mass, with which one has no connection.  Instead they may see themselves affected by the injustice of such policies and become outraged and indignant.  This outrage will not turn to empathy in all or even most.  However, it will engender empathy in some, which is a step in the right direction. 

    This post originally appeared on Law Professor Blogs. © Copyright 2004-2016 by Law Professor Blogs, LLC. All rights reserved. Reprinted with permission.


    About The Author

    Frank Gouldr is a first-year law student, University of San Francisco.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

    Comments 6 Comments
    1. ImmigrationLawBlogs's Avatar
      ImmigrationLawBlogs -
      The author of this article makes a very important point that denying basic rights to immigrants also endangers the rights of American citizens. Examples of this are too numerous to mention. One example, in addition to those mentioned in this excellent introductory article to a vast and complex subject, is in the calls by both the Republican presidential front-runners for surveillance of neighborhoods where Muslim US citizens live, as well as their mosques, as a follow-up to Donald Trump's bigoted proposal to ban all Muslim immigration.

      Another example is the breakup of mixed American citizen/immigrant families caused by deporting one or more family members who do not have legal status in the US. Donald Trump has actually called for deporting the American citizen children in such families where one or both of the parents are unauthorized immigrants. Even if there are no children, his proposal for mass ethnic cleansing of 12 million people without legal status, something on a scale that Hitler, Stalin, Mao or Pol Pot would have understood but is unheard of in US history, would break up the marriages of millions of US citizens, as well as depriving millions of American children of one or both of their parents.

      But the above examples are only the beginning of the danger to American citizens that could result from the spread of anti-immigrant hate of the kind that Donald Trump has been peddling, and to only a slightly lesser extent, Ted Cruz and some other leading Republicans have been promoting as well. The biggest danger of all is that many Americans, especially less educated working class white men, are so easily taken in by appeals to anti-immigrant propaganda that they may be willing to give up their own freedoms in order to place a strong man in power who promises to get rid of unpopular immigrants through dictatorial means.

      It happened in Nazi Germany, fascist Italy and elsewhere. It could happen in America. It will happen in America unless the American people come to their senses and realize that the rights of immigrants and the rights of American citizens are inseparable.

      Roger Algase
      Attorney at Law
      New York NY
    1. Unregistered222's Avatar
      Unregistered222 -
      Just some more illegal alien news which needed to be spread far and wide to the future victims

      Drunk-driving illegal alien kills firefighter and his two children. Hopefully, Roger, you can console their relatives with whatever you wrote. However you will be probably be too afraid to do that. Hopefully American people will come to their senses and realize that they are under full-scale invasion right now.

      http://dfw.cbslocal.com/2016/04/05/d...sjtQ3w.twitter
    1. Retired INS's Avatar
      Retired INS -
      In 1875 the Supreme Court ruled that immigration is a federal responsibility and states cannot make immigration decisions. Therefore, states cannot make immigration related arrests unless Congress gives that authority to them. Unfortunately, democrats and republicans are more interested in destroying each other than in passing sensible laws. We need a farm work bill because Americans won't work in agriculture in enough numbers to harvest our crops. This is now done by aliens with counterfeit documents. If we deport these workers before providing farmers with a legal labor source, many farmers will stop farming and food will have to be imported in much larger quantities. We don't have jail space for 11 million illegal aliens, so we shouldn't pretend we can deport all illegal aliens. In the 1950s many illegal aliens returned home on their own. My experience as a 39 year veteran of immigration benefits and enforcement is that will not happen in large numbers now.
    1. ImmigrationLawBlogs's Avatar
      ImmigrationLawBlogs -
      In response to Retired INS' comment, all hate and prejudice against a group or groups of people based on ethnicity, religion or national origin is irrational, regardless of whether the targets are immigrants or US citizens. Therefore, pointing out that attacking a targeted group or groups of people can hurt the interests of the people doing the attacking, whether by making access to food more difficult in the case of farm workers, requiring untold billions of dollars for border walls or immigration jails that our country can't afford, or turning America into an immigration "enforcement" police state in which American citizens also lose their rights and their freedom, is not likely to make much impression on the haters and bigots in our midst.

      That should not stop us from speaking out against prejudice against immigrants and other minorities in order to preserve our democracy and uphold the values of equality and justice for all on which our nation was founded.

      Roger Algase
      Attorney at Law
    1. ImmigrationLawBlogs's Avatar
      ImmigrationLawBlogs -
      Suppose that every single one of the 12 million unauthorized immigrants whom Donald Trump is so anxious to deport decided to pack up and leave the US tomorrow, taking their consumer purchasing power and tax payments with them, and leaving their jobs vacant. Would that not be the best way to cause the "huge recession" that Trump recently predicted for the US economy, in what could become a self-fulfilling prophecy if he, or some other Republican immigration opponent (such as Ted Cruz) becomes president? This is just one more example among many others that there is a price to be paid for irrational hatred and prejudice against immigrants and other minorities in America - in dollars, billions of them, as well as in the loss of our democracy.

      Roger Algase
      Attorney at Law


    1. Unregistered222's Avatar
      Unregistered222 -
      That will lead to much less kids being killed by drunk drivers and will reduce the number of gang rapes dramatically Why don't you calculate that Roger? I wonder how much does it cost for US taxpayers when a bunch of illegal aliens gang-rape someone? Medical treatments, incarceration costs, court fees, lawyer fees etc etc - all paid by US taxpayers.

      Quote Originally Posted by ImmigrationLawBlogs View Post
      Suppose that every single one of the 12 million unauthorized immigrants whom Donald Trump is so anxious to deport decided to pack up and leave the US tomorrow, taking their consumer purchasing power and tax payments with them, and leaving their jobs vacant. Would that not be the best way to cause the "huge recession" that Trump recently predicted for the US economy, in what could become a self-fulfilling prophecy if he, or some other Republican immigration opponent (such as Ted Cruz) becomes president? This is just one more example among many others that there is a price to be paid for irrational hatred and prejudice against immigrants and other minorities in America - in dollars, billions of them, as well as in the loss of our democracy.

      Roger Algase
      Attorney at Law


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