Detained Immigrants 'Not Entitled' To First Amendment Protections, Argue Obama Justic
Immigration Reform News: Detained Immigrants 'Not Entitled' To First Amendment Protections, Argue Obama Justice Department Lawyers in Little-known Court Case
By Robert Schoon (staff@latinpost.com)
First Posted: May 17, 2015 05:00 PM EDT
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Activists protest for the release of families held in detention centers in Texas and for the closing of the family detention centers on March 24, 2015 in New York City. The protesters rallied outside the Jacob K Javits Federal building, where immigration offices are located. (Photo : Andrew Burton/Getty Images)
While the Obama administration is famously fighting in court to use executive authority to shield millions of undocumented immigrants from being deported, in a lesser-known Texas immigration court case, the Department of Justice's lawyers have argued those same immigrants have no First Amendment rights.
The Texas immigration case in question, Pineda-Cruz v. Thompson, hasn't gotten nearly as much attention as that other Texas immigration case, where 26 states are challenging President Obama's authority to implement reform through executive action. But, judging from the fundamental principles at stake and the arguments being made, maybe it should.
The Pineda-Cruz case concerns a petition created by detained mothers in an immigration detention center that alleges that authorities placed them in isolation and threatened to take their children away from them in retaliation for protesting against conditions at the lockup, according to Slate's Michael Kagan.
The Department of Justice's lawyers, rather than making a narrow defense of practices in the detention center, have instead gone for the nuclear option, arguing that the undocumented immigrants in detention have no rights under the First Amendment. Or as the DOJ's briefing officially states:
"As non-resident aliens who have not gained admission or entry to the United States -- and have not established any connections to the United States -- Plaintiffs are not entitled to prevail in a lawsuit challenging violations of the Constitutional protections of the First Amendment."
Kagan, who teaches immigration law, extrapolated that argument from Obama's justice department lawyers into a shocking example of what its implications could mean.
"To state the government's position in another way," Kagan wrote, "when immigrants protest for comprehensive immigration reform," a position the Obama administration favors, "or anything else on which they might have an opinion, federal authorities may censor them, and possibly punish them for their dissent."
Department of Justice lawyers cited precedents from U.S. case law -- including a Supreme Court case reaching back to 1904 (via Lexis Nexis) involving an English immigrant anarchist imprisoned on Ellis Island -- in making their case.
For context, that case was heard back when anarchism was considered a real threat and not just a way for disaffected teenagers to express that they're going through a rebellious phase: The Supreme Court decided the case just three years after the president of the United States was assassinated by an anarchist.
Compare those circumstances to the current case where immigrant mothers are just protesting against conditions at their detention facilities and the DOJ's foundation for arguing that the government has the right to censor any undocumented immigrants that have not "established any connections to the United States" sounds a little shaky.
And a mute point as well. As Kagan explained, since 2001, the Supreme Court has been clear that federal immigration enforcement is subject to "important Constitutional limitations."
As for the confounding contradiction between the Obama administration's actions in the Pineda-Cruz case, compared to President Obama's own stated immigration policies, it's likely Obama, himself, is unaware of the details of his DOJ lawyers' arguments -- though that doesn't absolve him from taking responsibility for them.
As Kagan put it, "By allowing its lawyers to operate on autopilot, the Obama administration has missed a golden opportunity to change the culture of immigration enforcement in this country." As for the DOJ lawyers arguing the case, Kagan had some advice:
"Before you tell any court that free speech ... somehow does not apply to a group of people in the United States, please check with your boss."
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