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    Debating the big questions on immigration, part 2: How Bill Clinton paved the way for

    Debating the big questions on immigration, part 2: How Bill Clinton paved the way for Donald Trump’s deportation policy

    Part 2: The pernicious legacy of Clinton's 1996 immigration reform — and how progressives can begin to fight back



    Sunday, Apr 2, 2017 09:00 AM PST

    In the second part of our attempt to add nuance to the immigration debate, we hear more from three of the nation’s foremost experts on immigration, criminal justice and constitutional law, taking on not only what we already know about President Donald Trump’s travel ban and deportation policy but also expected future initiatives from this administration.

    These scholars address the thorniest issues in immigration, the ones at the root of our present crisis, with all the ballast we need to oppose simplistic talking points: Should immigrants, regardless of status, have constitutional rights? How solid in law and morality is Trump’s reliance on the plenary power doctrine to implement far-reaching changes? Is Trump’s deportation policy an anomaly, or does it have roots in recent bipartisan legislation? And what can the states, as a last resort, do to counter federal anti-immigration initiatives? (You can read the first part of this debate here.)

    John S.W. Park
    is chair and professor of Asian American Studies at the University of California at Santa Barbara. He is a specialist in race theory, immigration law and policy, and Anglo-American legal and political theory. His books include “Elusive Citizenship: Immigration, Asian Americans, and the Paradox of Civil Rights,” “Probationary Americans: Contemporary Immigration Policies and the Shaping of Asian American Communities,” with Edward J.W. Park, and “Illegal Migrations and the Huckleberry Finn Problem.”

    Kevin R. Johnson
    is Mabie-Apallas professor of Public Interest Law, professor of Chicana/o Studies, and dean at the University of California at Davis School of Law. His books include “How Did You Get to Be Mexican? A White/Brown Man’s Search for Identity“ and “Immigration Law and the U.S.-Mexico Border.” He is president of the board of directors of Legal Services of Northern California and has served on the board of the Mexican American Legal Defense and Education Fund (MALDEF). He blogs at ImmigrationProf and SCOTUSblog.

    David Brotherton
    is professor of sociology at the John Jay College of Criminal Justice at the City University of New York (CUNY). His recent books include “Keeping Out the Other: A Critical Introduction to Immigration Control,” edited with Philip Kretsedemas, and “The Almighty Latin King and Queen Nation: Street Politics and the Transformation of a New York City Gang,” with Luis Barrios. His current research projects include a performance-based sociological study of immigration removal hearings in New York.

    What are some of the most pernicious effects of the 1996 immigration legislation that you have experienced as a scholar or practitioner? Will the Trump administration be able to count on the “expedited removals” provision of the 1996 law, or even expand it, as it targets specific racial groups? How do you feel about retroactive punishment for minor transgressions, or any transgressions?


    John S.W. Park:
    Indeed, Congress and President Bill Clinton passed a set of rules in 1996 that expanded the category of persons eligible for “removal,” that limited common forms of relief for people facing removal and that made removal based on criminal convictions more “expedited.” These rules said that judges could not consider relief in removal proceedings when the person facing removal had a criminal record.

    These rules governing “criminal aliens” were part of a broader set of legislative rules designed to reduce the “cost” of immigrants in general — new legal immigrants, for example, were ineligible for public assistance, and poorer American citizens and legal residents could no longer sponsor immigrants under family reunification provisions. By removing a much larger share of “criminal aliens,” Congress thought that it could reduce financial burdens on the states and the federal government, in light of how they were spending money on law enforcement, criminal prosecution and incarceration for non-citizens.

    Many Americans still embrace the idea that non-citizens who misbehave must go.

    Presidents Bush and Obama executed these rules throughout their presidencies, and so now, we remove more people in a single year than we used to in 10-year periods. Obama was removing more than 400,000 persons per year, until it dawned on him that the Republicans in Congress were never going to approve comprehensive immigration reform, as they’d once promised earlier in his presidency. “You enforce the law, and then we’ll talk comprehensive reform,” they said. They never got to that second clause, and so Obama felt emboldened to do “reform” anyway, through DACA and then DAPA. He retained an emphasis on criminal deportations, however, and so the United States still deports hundreds of thousands of people each year, even for nonviolent crimes.

    This mass deportation system has resulted in strange American diasporas: In Mexico, Guatemala and El Salvador, the arrival of so many deportees from the United States has exacerbated social and economic problems that were already terrible. What happens to a society, any society, let alone those torn apart by civil war, when tens of thousands of people with criminal records arrive every year?

    What if a small fraction really are violent and quite horrible, and what if they are members of criminal gangs that, thanks to American deportation policy, are now transnational?

    Daniel Kanstroom, Tanya Golash-Boza and several other scholars have given thick accounts of how American deportation policy has undermined fragile societies, even as it’s not obvious how these policies have “helped” the United States. In one area, namely drug trafficking, we seem to have provided an unusual labor force for international criminal organizations interested in selling and distributing drugs into the United States.

    Deportation policy is one area of immigration law where a straight nationalist approach doesn’t work, while also being immoral. We still spend billions on our criminal justice systems, but Americans also consume illicit drugs at a clip, and small planes, sophisticated submarines and tunnels can simply bypass a “big, beautiful wall,” even if we do spend billions to build such a thing. By destabilizing societies to the south of us, we almost guarantee that more people will also attempt to cross here, if just to avoid the chaos and violence in San Salvador or in Guatemala City.

    And in the last two decades, as we remove more immigrants, many of whom have deep family and community connections, we’ve caused untold misery to people who aren’t so different from American citizens. Many people have been removed for drug offenses, for instance, and yet how many college students and professors do I know, all of them American citizens, who use drugs or even have minor drug offenses? When the law treats people with similar offenses in radically different ways, based solely on status, the present law evokes the worst of laws past.

    Many scholars and practitioners and even law enforcement officials have criticized federal deportation policy. They’ve called for restoring common forms of relief, as when the removal of an immigrant will have a clear negative impact on his family and community, or when it seems disproportionate to his offense. Some law enforcement officials and prosecutors have changed their practices to drop or reduce criminal charges in cases where a defendant might also face deportation, thus behaving as though mindful of federal immigration consequences that can arise from local criminal prosecutions. And in many instances, jurisdictions have said that they will not cooperate with federal authorities as they pursue deportations. Proponents of “sanctuary cities” tend to agree that deportation policies have gone too far, and they’ve moved to protect their residents from that system.

    Kevin R. Johnson:
    In 1996, Congress passed immigration reform legislation that has had dramatic impacts. Among other things, the reforms expanded crime-based removals and created a new system of “expedited removal,” which might better be described as summary deportation with few protections for non-citizens. The Trump administration proposes to use both tools in pursuit of its aggressive immigration enforcement agenda and the impacts will be pernicious.


    1. a) The racial impacts of expanded crime-based removals


    Crime-based removals, as expanded in 1996, are the centerpiece of contemporary immigration enforcement. The Obama administration prioritized the removal of “criminal aliens.” Ramping up immigration enforcement by focusing on the criminal justice pipeline for removals proved to be an efficient strategy. Immigrants in jail are not hard to find. Moreover, removing criminals raises far fewer civil rights concerns than, for example, locating and removing undocumented workers through the use of workplace raids, with employers as well as workers protesting Importantly, immigrants with criminal histories have few political defenders. Opposition to their removal is not nearly as great as popular resistance to removing other groups of immigrants, such as undocumented college students.

    With the 1996 immigration reforms expanding crime-based removals, the Obama administration refined programs that allowed state criminal justice systems to directly feed immigrants into the federal immigration removal system. Such refinements made it possible for President Obama to set a series of removal records. Some years saw the removal of as many as 400,000 noncitizens, including lawful permanent residents, from the United States. During the eight years of his presidency, more than 2.5 million noncitizens were deported—more than during any other U.S. presidency. Immigration and Customs Enforcement data show that, in fiscal year 2016, crime-based removals represented more than 90 percent of the noncitizens removed from the interior of the United States.

    The U.S. criminal justice system is notorious for producing racially disparate results. African Americans and Latinos continue to be disproportionately arrested and incarcerated as they have been throughout U.S. history, as described in Michelle Alexander’s influential book “The New Jim Crow.” As a result of focusing removal efforts on “criminal aliens,” the U.S. immigrant removal system has yielded similarly unequal results.

    Consequently, increases in crime-based removals under President Obama resulted in the removal of a disproportionate number of Latino immigrants. Today, more than 95 percent of removals in the United States are of Latino noncitizens, despite the fact that the total immigrant population in the United States is much more diverse. Latino immigrants comprise only about 50 percent of lawful immigrants, and around 70 percent of undocumented ones.

    Donald Trump began his presidential campaign by claiming that Mexico was sending its criminals to the United States, and promised to deport Mexican immigrants en masse. Two executive orders issued on Jan. 25, 2017, demonstrate that the Trump administration plans to expand on the Obama administration’s focus on removing “criminal aliens.” President Trump’s executive orders will likely have devastating impacts in terms of crime-based immigrant removals. They expand the noncitizens who will be the targets of immigration enforcement efforts and will likely continue to have disparate racial impacts on Latinos.


    1. b) Expanded expedited removals


    The 1996 immigration reforms created what is referred to as “expedited removal.” Under that procedure, an Immigration and Customs Enforcement (ICE) officer may order an individual removed from the United States without a hearing or further review, if the officer determines that the individual is inadmissible to the United States for fraud or misrepresentation or does not have a valid visa/entry document.

    Since being created in 1996, expedited removal — and its abbreviated procedures and unreviewable decisions — had been limited to noncitizens (1) apprehended within 100 miles of the U.S. border; and (2) in the country for less than 14 days. Persons close to the border for such a short period of time are likely to have fewer ties to the United States than longer term residents. One of President Trump’s immigration executive orders expands expedited removal. It eliminated the geographic limits to expedited removal and made the summary procedures applicable to noncitizens in the country for as long as two years. Summary deportations of persons, including those with ties to the United States and family (including U.S. citizen children), friends, community and a job, raise glaring due-process red flags. Once the Trump administration seeks to implement the executive order, we are likely to see lawsuits challenging the constitutionality of the expanded expedited removal procedures.

    President Trump will not likely focus expedited removal on particular racial or religious groups or nationalities. However, such removals almost certainly will have disparate impacts on noncitizens from Mexico and Central America, who often are profiled as undocumented immigrants and comprise a large portion of the undocumented population.

    David Brotherton;
    In 1997, the first year this legislation was in effect, there were nearly 115,000 removals and the next year this increased to around 175,000. By the end of Clinton’s presidency, the man who pledged to end welfare as we knew it also ended immigration as we knew it and banished to their homelands nearly 900,000 persons. Bush went further still, forcibly removing more than 2 million immigrant residents during his two terms. By the time President Obama finished his fifth year in office he had taken the art of banishment to the next level, equaling Bush’s achievement in three fewer years.

    Aided and abetted by the Patriot Act of 2001 and the Anti-Terrorism and Effective Death Penalty Act (AEDPA) of 1996, that legislation has created a deportation juggernaut with Congress further burnishing its anti-immigrant credentials by mandating the Department of Homeland Security through its Immigration apparatus (i.e., the Department of Immigration and Customs Enforcement) to fill the detention camps with 34,000 detainees daily. It is the only federal department to have such human quotas placed upon it.

    Thus, these laws are incredibly punitive, vindictive and irrational. For example, people can be placed in removal proceedings based on crimes they committed in the past and for which they were duly sentenced. Hence deportation can be viewed as a form of double jeopardy in many cases. Also, since deportation is considered an administrative action rather than an act of punishment, the law does not require that “deportable aliens” be provided with legal representation. Further, the crimes for which someone is deported, often referred to as “aggravated felonies,” vary from the passing of bad checks to homicide.

    Clearly the extreme consequence of permanent removal for crimes which are, in many cases, quite minor, is wildly disproportionate with levels of social, psychological and economic harm both to the deportee and to his or her family of unimaginable proportions. Finally, we need to think of the broader repercussions to entire societies created by these mass expulsions, particular those countries with few resources and weak state structures, e.g. the countries of Central America that currently boast the highest rates of homicide in the world, in part caused by the floods of deportees who brought with them their gang subcultures learned in the U.S.

    Certainly, Trump will be able to process more cases of expedited removals as his executive order changes the priorities for ICE and its agents and makes any offense in the past committed by a non-citizen a reason for deportation rather than the so-called “violent criminals” that Obama had said should be the main focus of the country’s deportation regime.

    Can the states counter some of the existing anti-immigrant federal legislation on the books, or potentially stall or prevent implementation of further restrictionist executive orders by the Trump administration? If Arizona and other states can pass anti-immigrant legislation, why can’t individual states go in the other direction and pass legislation favorable to immigrants, granting them full rights?


    Park:
    Several scholars have studied state and local responses to federal immigration law over the past two decades, and they say that most of the states and local jurisdictions have moved to support federal rules, not so much to limit them. Virginia, Georgia and South Carolina do not allow students who are out of status to matriculate at the public colleges and universities, for example, and cities like Escondido, California, and Hazleton, Pennsylvania, have passed rules prohibiting landlords from renting to anyone who cannot prove lawful immigration status.

    Costa Mesa, a city in Orange County, California, declared itself as a “rule of law” community in 2010 — in a resolution, the city suggested that local law enforcement officials should “check for papers” even in routine stops, and then remand persons suspected of being out of status to the proper immigration authorities. Federal policies approved by President Bush in 2008 encouraged local police cooperation: Under the Secure Communities program, local jurisdictions could receive federal resources and training if they agreed to participate in immigration enforcement. Costa Mesa was among several dozen cities that were participating by 2010.

    But Santa Ana is maybe 20 minutes away from Costa Mesa by car, and Santa Ana has moved in the opposite direction. The city’s police force tended only to collaborate with federal immigration authorities in cases of violent crime—in other respects, public officials tended to be deliberately inattentive to immigration status when considering requests for city services, police protection and even public employment for the city. Many residents of the city did not have legal status, and yet they attended and participated in city council meetings, on school boards and in other public settings. After the 2016 election, Santa Ana passed a resolution calling itself a “sanctuary city,” as if to defy the new president.

    Santa Ana was part of a larger statewide trend, perhaps exemplified best in California’s Trust Act, signed by Gov. Jerry Brown in 2013. That state rule directed state and local officials not to hold immigrants facing deportation in state and local facilities, unless federal officials offered proof that the person being held was already convicted of a deportable crime. Democrats controlled the state, and they were more sympathetic to the Santa Anas than the Costa Mesas. President Trump, though, spoke in Costa Mesa during his campaign, vowing to crack down on illegal immigration, to build that wall and to withhold federal funds from cities that did not help federal immigration officials, or that otherwise provided “sanctuary” to illegal immigrants.

    In other contexts, I’ve argued that the last time that some states and local jurisdictions were so at odds with the federal government about a “removal” policy was during the 19th century. This was when fugitive slaves were running north, when some Northern jurisdictions moved to protect them, and when Southerners passed stringent rules designed to help them “recover their property.”

    I’ve reminded my own students that the Underground Railroad was a form of resistance to slavery during a time when slavery was legal, when black people were property, and when the Constitution and several federal laws protected white property owners to recover “their people.” George Washington, Thomas Jefferson and Andrew Jackson had all posted ads in popular newspapers that described their fugitive slaves, and as president, they signed or supported rules favoring white slave owners. Andrew Jackson and Roger Taney both owned many slaves. Levi Coffin, Harriet Tubman, the students and faculty at Oberlin College — they assisted runaway slaves, however, and they encouraged others to break the law, even if that meant jail or murder for them, or a civil war to purge the nation of slavery.

    It’s hard to say whether President Trump will pass his own version of the Fugitive Slave Act of 1850, that infamous rule that punished state and local officials for failing to detain runaway slaves and to assist slave owners. The act insisted that “all good citizens” had an obligation to help masters locate their slaves. Citizens who helped runaway slaves could be punished, too; they were not “good citizens.” One can imagine a President Trump and his Republican Congress passing a set of rules that require us to assist in the removal of undocumented persons, no matter the length of their residency here or the depth of their connections. Before we comply, we should study our own history, to give us clues as to how best to consider our own dilemmas.

    The past is not even past: President Trump has re-hung, in the Oval Office, just to the left of his desk, a portrait of Andrew Jackson. And yet even during his presidency, the $20 bill will have a new face

    — Harriet Tubman’s — a change approved under President Obama’s administration. I’d recommend that Americans take a good long look at the new face of the $20 bill, then also consider President Trump’s own heroes, and then think hard about which side of history seems most pleasing and inspiring for our own future.

    Johnson;
    On one hand, the U.S government decides which noncitizens to admit to, and deport from, the United States. Congress has passed a comprehensive immigration law, the Immigration and Nationality Act, which regulates immigration. On the other hand, the states are the primary enforcers of the criminal laws and otherwise are responsible for integrating noncitizen residents into the community. The legitimacy of the conventional demarcation of sovereign powers between the federal and state governments can be seen in Supreme Court decisions, such as Arizona v. United States (2012) in which the Court struck down central provisions of an Arizona law that intruded on the federal powers to enforce the immigration laws.

    Room exists for state and local governments to work with the U.S government in federal immigration enforcement. However, the U.S. government must consent to state and local assistance. In addition, state governments have sovereign powers that cannot be infringed upon by the U.S. government in efforts to compel cooperation with immigration enforcement efforts. In the exercise of their police powers, some states have exercised their lawmaking power to improve the access of undocumented immigrants to public higher education, foster immigrant trust in local law enforcement offices and otherwise seek to integrate immigrants into the community.

    In recent times, the lines between the state, local and federal governments in immigration enforcement have become blurred. Under a program called Secure Communities, which President Obama dismantled, state and local law enforcement agencies shared arrest information with federal immigration authorities, and detained immigrant criminal offenders. Criminal offenders were then taken into custody by federal immigration authorities.

    Complaints had been registered that Secure Communities was overbroad and subjected minor criminal offenders to removal. In November 2014, the Obama administration responded to the criticism and replaced Secure Communities with the Priority Enforcement Program (PEP), which was narrower in scope. In bringing back SeCURE Communities in one of his Executive Orders, President Trump dismantled PEP and expanded the scope of crime-based removals.

    In addition, the Trump administration in a Jan. 25 executive order has sought to mandate state and local assistance in federal immigration enforcement by threatening to eliminate federal funding to “sanctuary cities.” Trump’s threat to defund such cities would seem to require congressional authorization. In addition, the Executive Order fails to define “sanctuary cities.” If Congress were to pass legislation defunding “sanctuary cities,” state and local governments could challenge the law as infringing on the sovereign powers of the states.

    Efforts by the U.S. government to compel cities to cooperate in federal immigration enforcement efforts are already encountering formidable resistance. The California legislature is preparing a game plan, including the retention of former Attorney General Eric Holder, for a showdown with the Trump administration on immigration enforcement. Legislators have proposed legislation, for example, which would limit state information sharing about immigrants with the federal government.

    It is important to recognize the important state and local criminal law enforcement concerns at stake in their cooperation with federal immigration enforcement. Some state and local law enforcement leaders worry that immigrants lose trust in local police when they are perceived to be deeply involved in federal immigration enforcement. Loss of trust, in turn, can reduce the willingness of immigrants to help authorities combat crime and undermine state and local law enforcement efforts.

    Local police need the cooperation of all people in the community, including lawful and undocumented immigrants, in reporting crime and aiding criminal prosecutions. To that end, the Los Angeles Police Department’s Special Order 40 limits police inquiry into the immigration status of crime victims, witnesses, and suspects. The separation of criminal law enforcement from federal immigration enforcement is consistent with the Supreme Court’s finding in Arizona v. United States (2012) that the federal government has the authority to admit and remove immigrants, with ordinary law enforcement primarily in the hands of local law enforcement agencies.

    To foster state and local cooperation with federal immigration enforcement, one of President Trump’s Jan. 25 executive orders brings back “287 agreements” — authorized by Immigration and Nationality Act 287(g) — between state and local governments and the federal government to enforce the immigration laws. Such agreements had been largely abandoned by the Obama administration.

    The civil rights impacts of local police involvement in immigration enforcement impacts are an issue of concern. A federal court in 2015 found that the Maricopa County Sheriff’s Office in Arizona, in the guise of assisting federal immigration enforcement, had engaged in a pattern and practice of racial discrimination against Latinos, U.S. citizens as well as immigrants. These civil rights abuses show the potential costs of state and local law enforcement assistance in federal immigration enforcement efforts. The same risks will exist for the Trump administration as it enlists state and local law enforcement cooperation in immigration enforcement.

    Brotherton:
    It’s very difficult for states to do anything other than establish sanctuary cities that will prevent local police collaborating with ICE. ICE is an extremely powerful national police force and can operate anywhere with few restrictions. Essentially, we have allowed ICE to develop with few constraints and little oversight and this has happened under both Bush and Obama and has been given even more legal powers and budgetary increases under Trump.

    For the past two decades the deportation-industrial complex has been allowed to grow almost unhindered and now we are paying an enormous price both socially and politically. If the states refuse to work with ICE, particularly over the application of 287g, which seeks to have local police forces partner with ICE agents, then it sets up a conflict between the powers of the federal government and those of the states and certainly under the Trump administration it is difficult to see how the states could mount a successful defense of their residents. However, this is not to say that they should not try or that immigrant’s rights advocates should not do everything possible to expose the invasive and destructive practices of this agency and its threat to democracy and human rights.

    What are the failures of our immigration system that most worry you? What anomalies in recent court decisions toward the rights of immigrants are least understood by the general public? Should we do away with detention for immigrants altogether? Where in this country have you seen signs of movement in a pro-human rights direction that people need to be more aware of?


    Park:
    In a forthcoming book and in other venues, I’ve argued that immigration law and national sovereignty have shown symptoms of much deeper problems, problems rooted in modernity itself. We’re living through two ongoing revolutions, in communications technologies and in transportation technologies. The first allows us to see one another across vast distances much more than ever before; the second allows people to fling themselves here and there much faster and further, too. Imagine the United States in 1800 — no Panama Canal, no telephone or telegraph, no steam engines and certainly no airports.

    I once had to persuade my own children that there was once no internet or cell phones when I was a bitty kid, that Instagram is a really new thing.

    These changes have become a part of our lives, they’re a part of the world now, even in some of the most poor, most desperate and most chaotic places on the planet. When people there “see,” through their own televisions and mobile devices, that they can maybe go to Europe or parts of Asia or the United States, and then live decent, relatively comfortable lives, they’re going to want to leave.

    Their arrival in large numbers is the result of very, very large numbers: nearly a third of the world’s population lives in places that are food-insecure, politically dysfunctional or otherwise falling apart, and so even when a small fraction of those folks migrate, they’re soon very visible in countries that don’t want them. No wall, fence or other heinous barrier will likely change the underlying math that causes so much unwanted movement and human suffering. Unless we tend to conditions outside our boundaries — to work with others to create just, stable societies — we will feel overwhelmed, and we will fall prey to those who offer easy answers and empty promises.

    Thinking beyond ourselves and our boundaries — this has precedence, too, and we should learn from that history. In the ashes of World War II, for its own strategic interests and for humanitarian reasons, the United States did not punish the “losers,” Italy, Japan and Nazi Germany. Instead, the United States worked with allies there, floated giant loans and grants for reconstruction, and developed thick ties to these former adversaries. Now, we don’t have large populations of illegal Japanese or illegal Germans living in the United States, people who are fleeing their own countries, because the United States itself helped to make Japan and Germany more livable.

    Thus, instead of criticizing Mexico or other sending countries, the United States ought to work with its partners and other wealthier nations to develop decent, just societies in these places, and to create circumstances where the people there will not see a need to leave their homes. Americans should fess up to policies that may have made things worse. Americans should quit taking drugs, or they should at least consider how a single line of cocaine, multiplied millions of times, can cause misery far away from where they’re getting high. Instead of making conditions worse, through our foreign policy or through thousands of acts of carelessness, Americans should try harder to make things better for everyone, everywhere. That is when we are best, when we show, through our own example, a willingness to sacrifice and to assist people who aren’t just like us.

    We should acknowledge and cope with a much smaller world, where we can see and be with one another ever more easily than before. Many other problems reflect this new reality: Pollution in one country, for instance, can become a problem for every country. Despite the skeptics, I and you and everyone really should be concerned about coal plants outside Beijing, because their contribution to carbon levels will screw up the climate in Santa Barbara. The weather in Santa Barbara is spectacular, and so if I love it, I should care about pollution in China and in India and in the United States, too, as this is part of my own enlightened self-interest.

    And aside from just self-interest, seeing children, much like my own children, suffering from more direct forms of pollution in Beijing and in Delhi is simply heartbreaking, so much so that we should wish and work for another world where no kid is trapped indoors because the air is toxic. My child is not somehow more entitled to clean air than another child.

    That whole cliché about injustice anywhere being a threat to justice everywhere — that’s actually profound and wise and right. To put your own nation and your own people first, to build walls and to cut off and to disengage — it’s self-defeating, it simply isn’t going to work, and it’s ill-suited to our interconnected world.

    Johnson:
    As discussed above, crime-based removals, and their disparate racial impacts, are a problem that should be addressed. The use of detention in immigration enforcement implicates similar concerns. President Trump has set in motion efforts to ramp up immigrant detention. His executive order on border security and immigration promises to increase the use of the detention of immigrants while they await removal hearings and removal from the United States. Trump’s order announces the end of “catch and release” of undocumented immigrants after their apprehension. Historically, unless found to pose a public safety or flight risk, noncitizens have been allowed to post a bond and be released from custody while their removal proceedings moved forward.

    Detention has long been a tool in the arsenal of the U.S. government in immigration enforcement. It goes at least as far back as the detention of Chinese immigrants on Angel Island in San Francisco Bay, which began processing immigrants in the late 1800s. Detention of immigrants as a method of immigration enforcement saw an upswing at the tail-end of the 20th century. In the 1980s, for example, the Reagan administration employed detention to discourage Central Americans, thousands of whom were fleeing civil wars, from migrating to the United States. Several U.S. presidents responded to mass migrations of Cubans in the 1980s, who came in the Mariel boat-lift, and Haitians fleeing political violence in the 1980s and 1990s, with detention.

    The Obama administration generally allowed for noncitizens to bond out of custody while their removal proceedings were pending. But it also employed immigrant detention liberally in some instances, including the mass detention of Central American families.

    Just as old as immigrant detention are legal challenges to immigrant detention. One of those suits, Orantes-Hernandez v. Thornburgh (1990), was a class action brought against the U.S. government by asylum applicants from El Salvador. The asylum applicants challenged the mass detention of Salvadoran asylum seekers and various policies that violated their right to counsel. The court found that the U.S. government had been transferring asylum seekers from major urban areas where they could readily secure counsel to detention in remote locations where they could not. The U.S. Court of Appeals for the Ninth Circuit affirmed an injunction barring the U.S. government from restricting access to counsel.

    Despite many successful challenges, the use of detention in immigration enforcement increased with the immigration reforms of 1996. Immigrant detention continues to be criticized — and litigated. In Jennings v. Rodriguez, the Supreme Court currently has before it a class action raising the question whether immigrants, like virtually all U.S. citizens placed in criminal and civil detention, must be guaranteed a bond hearing and possible release from custody. Similarly, in response to an increase in women and children fleeing widespread violence in Central America, the Obama administration began detaining thousands of unaccompanied minors and entire families. In Flores v. Lynch in 2016, the Ninth Circuit found that the detention of Central American minors violated a settlement agreement.

    The long history of detention has an equally long history of legal challenges. These challenges will likely continue during the Trump years, with the president making detention a cornerstone of his immigration enforcement plans.

    Brotherton:
    There are numerous threats to immigrants which are probably some of the most severe since World War II. The vast majority of undocumented immigrants are not engaged in criminal activities and should not be penalized for wanting to reside in this country. In fact, first-generation immigrants, be they legal or undocumented, are the population with the least connection to criminal activity of anyone. But this doesn’t stop Trump from saying the exact opposite and, of course, this is in line with his basic philosophy that objective reality and “facts” should not be taken seriously if they conflict with his ideological goals. Yes, the detention camps should be shut down, the raft of anti-immigrant laws should be abandoned and a whole new set of laws should be developed that give undocumented immigrants a pathway to legality.

    Right now we have allowed the development of a vast population of American children who grow up without one or both parents lost to the deportation process. Further, around the world we now have a new diaspora of millions of displaced people all of whom were in some way socialized by the United States, many of them with permanent family links to this country that can never be restored. The U.S. has become the world’s No. 1 deportation nation, responsible for massive levels of family fragmentation and global destabilization. These policies have no place in a so-called civilized society that boasts of its adherence to democratic principles.

    Consequently, we have to ask ourselves: What kind of society have we become? Given that we were one of the major signatories to the U.N. Declaration of Human Rights in 1948, following the genocidal crimes of fascism and the extraordinary social destruction associated with World War II, it is both tragic and ironic that we are now one of the biggest transgressors of this historic agreement as we turn refugees and immigrants into the despised and unwanted Other.

    We must hope that the U.S. can get beyond this present dark phase of its development. The next couple of years will see to what extent we prize democracy and social solidarity over the reactionary impulses that have been unleashed by years of punishing neoliberal policies meted out to the majority of U.S. residents.

    http://www.salon.com/2017/04/02/deba...tation-policy/
    Last edited by lorrie; 04-03-2017 at 05:29 PM.


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    Debating the big questions on immigration: What rights do immigrants have — and is the president free to bar them?

    Part one: A panel of experts debates immigrant rights, presidential powers and the dark lessons of history



    Saturday, Mar 25, 2017 09:00 AM PST

    Big changes are afoot on immigration policy as the right continues to deploy its familiar talking points, feeding into the Trump punitive juggernaut. Unfortunately, the current public discourse — whether around the Muslim ban or the expulsion of “criminal aliens” — remains mostly free of historical, legal and philosophical nuance. We are lurching from one dramatic executive order to another without much sense of how we got here and what realistic remedies we can pursue. If we are going to move forward on immigration, we need to immerse ourselves in the historical and constitutional dilemmas that have led to the current crisis.

    Here to add nuance to the immigration debate are three of the nation’s foremost experts on immigration, criminal justice and constitutional law, taking on not only what we already know about Trump’s travel ban and deportation policy but also expected future initiatives from this administration. These scholars address the thorniest issues in immigration, the ones at the root of our present crisis, with all the ballast we need to oppose simplistic talking points: Should immigrants, regardless of status, have constitutional rights? How solid in law and morality is Trump’s reliance on the plenary power doctrine to implement far-reaching changes? Is Trump’s deportation policy an anomaly, or does it have roots in recent bipartisan legislation? And what can the states, as a last resort, do to counter federal anti-immigration initiatives?

    John S.W. Park
    is chair and professor of Asian American Studies at the University of California at Santa Barbara. He is a specialist in race theory, immigration law and policy, and Anglo-American legal and political theory. His books include “Elusive Citizenship: Immigration, Asian Americans, and the Paradox of Civil Rights,” “Probationary Americans: Contemporary Immigration Policies and the Shaping of Asian American Communities,” with Edward J. W. Park, and “Illegal Migrations and the Huckleberry Finn Problem.”

    Kevin R. Johnson
    is Mabie-Apallas professor of Public Interest Law, professor of Chicana/o Studies, and dean at the University of California at Davis School of Law. His books include “How Did You Get to Be Mexican? A White/Brown Man’s Search for Identity“ and “Immigration Law and the U.S.-Mexico Border.” He is president of the board of directors of Legal Services of Northern California and has served on the board of the Mexican American Legal Defense and Education Fund (MALDEF). He blogs at ImmigrationProf and SCOTUSblog.

    David Brotherton
    is professor of sociology at the John Jay College of Criminal Justice at the City University of New York (CUNY). His recent books include “Keeping Out the Other: A Critical Introduction to Immigration Control,” edited with Philip Kretsedemas, and “The Almighty Latin King and Queen Nation: Street Politics and the Transformation of a New York City Gang,” with Luis Barrios. His current research projects include a performance-based sociological study of immigration removal hearings in New York City.

    The constitutional rights of immigrants


    Do constitutional rights depend on citizenship or personhood? In other words, should immigrants, regardless of status, have full constitutional rights? Why, or why not? Should such rights commence as soon as a person sets foot on U.S. soil? If you wish to grant immigrants some but not all constitutional rights, which ones do you exclude, and why?


    John S.W. Park:
    Until the 14th Amendment, the United States Supreme Court and other federal institutions did not behave as though the Constitution should apply to non-citizens. For example, President John Adams supported the Alien and Sedition Acts in 1798, a rule that, among other things, gave the president the authority to deport foreigners whom he considered hostile to the United States, and then lengthened the number of years of residency required for new immigrants to petition for American citizenship, from five years to 14. Adams did not think that new immigrants (especially French radicals fresh from their own bloody revolution) should be able to vote after just five years here, and he felt that all “radicals” should be deported. He was appalled that Thomas Jefferson, his political rival, had praised the French Revolution, and Adams thought the rules in 1798 necessary to protect the republic from foreigners.

    Not two decades later, President Andrew Jackson insisted that Native Americans were not American citizens, and thus also not eligible for constitutional protections. He and his supporters noted that the phrase “Indians not taxed” appeared in the original constitution, in that portion where they were expressly excluded from congressional representation. Moreover, Congress had passed the Naturalization Act of 1790 less than two years after the Constitution’s ratification, and under the Act of 1790 only “free white persons” could pass into American citizenship. “Indians not taxed” and persons of African ancestry, including slaves, were not “white” or “free” and so, in the words of Justice Taney in Dred Scott (1857), persons of African ancestry also had “no rights which the white man [was] bound to respect.” Andrew Jackson had appointed Roger Taney to the United States Supreme Court, and both men interpreted the Constitution to exclude Native Americans and persons of African ancestry from American citizenship.

    After the Civil War, the framers of the 13th, 14th and 15th Amendments attempted to resolve these problems in favor of more expansive definitions for constitutional rights. The 13th abolished slavery, and the 15th guaranteed the right to vote, but the 14th Amendment said that anyone born on American territory should be regarded as an American citizen. In addition, the radical Republicans insisted that personhood, not citizenship, should be enough to trigger constitutional protections: “… nor shall any state deprive any person of life, liberty, or property, without due process of law … nor deny to any person within its jurisdiction the equal protection of the laws.”

    Chinese immigrants in California would force the federal courts to clarify the meaning and scope of these passages. In Yick Wo (1886), for example, the United States Supreme Court struck down San Francisco rules that were meant to harass Chinese residents of that city, under the theory that they were “persons” within the protections of the 14th Amendment. However, just three years later (and over the next 50 years), this same court said the United States could exclude all immigrants, including former Chinese migrants, if Congress chose to do so. Justice Stephen Field said that the 14th circumscribed the “states,” not so much the federal government, and with respect to foreigners, the United States should have broad powers to exclude persons it didn’t want.

    In Wong Kim Ark (189, the court said that Chinese persons born in the United States were American citizens not subject to exclusion, but this proved a rare victory. In most other cases, the court upheld the right of the United States to exclude prospective immigrants, and it gave the president broad discretion to determine how best to do that, under the idea that newcomers were persons, but not yet members of the United States. In cases where the federal government had behaved perhaps too severely toward newcomers, the Court offered immigrants procedural protections designed to curb zealous immigration enforcement. People who claimed citizenship, for example, should have the right to present evidence of their citizenship before being summarily deported.

    Over the years, the federal courts have said that persons who’ve resided in the United States, and even persons who’ve had longer-term relationships with the American government, should have similar procedural rights under the Constitution, and in some rough proportion to the length of their stay or their relationship. This is why deporting a longtime resident, even someone without legal immigration status, tends to be more complicated than deporting someone who just arrived. This is also why, when the United States holds someone in Guantanamo Bay for a longer (indefinite?) period of time, the federal courts have demanded some procedural protections for these inmates, even though they’re not citizens and they’re not in the United States, as in Hamdan (2006).

    Does the Constitution protect citizens or all persons? The fundamental problem might rest in a basic philosophical disagreement about the Constitution itself. Is the Constitution a kind of contract that primarily benefits and binds American citizens to one another? Or is it a broader statement of principles — perhaps reflecting commitments to fairness and justice and other important values — that are distinctive of a classical Enlightenment moment? We still debate these questions: The late Justice Scalia was a strong proponent of the former view, while many leading scholars and jurists — Justice Ruth
    Bader Ginsburg, or Bruce Ackerman of Yale or Mark Tushnet of Harvard — have argued the other side.

    Imagine a case where our officials go to a foreign country and suppress its press and media organs, maybe assassinate a journalist or two — does this kind of behavior raise a “constitutional” problem? Scalia might say that such things are illegal in those countries, but it’s not an American constitutional violation because it took place abroad, where the Constitution isn’t binding, and to victims who did not have American constitutional rights.

    Progressive scholars might say, however, that the Constitution represents collective commitments to certain basic values — protections for a free and vibrant press, and free speech rights in general — and that Americans violate those principles when they suppress those rights wherever they are, even when the victims are not fellow Americans. Because of these fundamentally different perspectives, people in constitutional debates often speak past each other, one side thinking that the status of the victim, the status of the perpetrator and location of the purported violation are all important, while the other side considers these things not as relevant.

    Consider how the Constitution might be similar to a set of “house rules.” In my house, for example, we take our shoes off, we don’t believe children should talk back to their parents and we observe excellent table manners. If my kid goes to someone else’s house, however, and then traipses around with her shoes on, shoves her face with food and curses like a sailor, what to do? Should I punish her when she gets home, and is it my responsibility that she not behave like a brat in anyone’s house? Is she a representative of my family, constrained by the expectations of her parents wherever she goes?

    And what can I reasonably expect of other children who come over to my house? Can I say, for example, “Take your shoes off (you little white barbarian),” and then kick out the ones who don’t obey? Do I have the right not to invite ill-mannered, dangerous children, say, pyromaniac kids or kids with full-blown influenza?

    What if my wife and I adopt a child, and what if the kid lives with us for several years, utterly mindful of our rules — would we be heartless to chuck her out for a minor infraction? What if we didn’t legally adopt the kid, but she’s lived with us nonetheless, and we didn’t remove her either, because our house is gigantic and we’ve noticed that she does the dishes and takes out the trash, year after year. Are we wrong if, one day, we tell her to leave, either because she didn’t observe the no-shoe policy or we’re just tired of her?

    Kevin R. Johnson:
    a) Due process rights of noncitizens physically present in the United States: The protections of the U.S. Constitution extend to all persons, including all immigrants, physically present in the United States. The Fifth and Fourth Amendments prevent both federal and state governments from depriving any person of “life, liberty, or property without due process of law.” “Liberty” includes, but is not limited to, freedom from detention and freedom from removal from the United States.

    The U.S. Supreme Court has held that, before they can be removed from the United States, noncitizens — no matter their immigration status (i.e., undocumented immigrants have due process rights) — are entitled to a hearing that complies with due process; see Yamataya v. Fisher (The Japanese Immigrant Case, 1903). Because of the weighty interests of the noncitizen at stake, a removal hearing is constitutionally required. As the court wrote in Fong Haw Tan v. Phelan (194, “Deportation is a drastic measure and at times the equivalent of banishment or exile.”

    Today, an immigration court, an administrative tribunal housed in the U.S. Department of Justice, holds a hearing in which the U.S. government seeks to remove a noncitizen from the United States. Removal hearings allow the government and the noncitizen to present witnesses and to submit documentary evidence. The immigration court’s decision is reviewed by an administrative Board of Immigration Appeals (BIA). The BIA ruling can be appealed to a U.S. court of appeals. The Supreme Court has consistently held that, even when Congress appears to have eliminated judicial review of a removal order, the Constitution requires some kind of judicial review.

    The precise due process rights of a noncitizen may vary by type of immigration status and length of time in the United States. In Landon v. Plasencia (1982), the Supreme Court addressed the constitutionality of the denial of entry into the United States of a long-term lawful permanent resident, Maria Plasencia, who had left the country for a weekend in Mexico. The Court acknowledged that “once an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly. Our cases have frequently suggested that a continuously present resident alien is entitled to a fair hearing when threatened with deportation.” The Court added that, in the case before it, “Plasencia was absent from the country only a few days, and the United States has conceded that she has a right to due process” (emphasis added).

    The Supreme Court directed that the Mathews v. Eldridge (1976) balancing test be used to determine the specific procedures that due process required in Plasencia’s case: “[T]he courts must consider the interest at stake for the individual, the risk of an erroneous 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.”

    The courts have read Landon v. Plasencia as requiring the application of the balancing test to determine whether immigration procedures are consistent with due process.

    In sketching how the interests might be balanced in the case before it, the court noted that Maria Plasencia, a lawful permanent resident, had a “weighty” interest at stake and “[stood] to lose the right ‘to stay and live and work in this land of freedom,’ with the possible loss of the right to rejoin her immediate family, a right that ranks high among the interests of the individual.”The Court also acknowledged the government’s “weighty” interest in the efficient administration of the immigration laws. The Court instructed the lower court on remand to determine “whether the procedures [applied to Plasencia] meet the essential standard of fairness under the Due Process Clause” (emphasis added).

    b) Noncitizens’ right to counsel: Unlike the defendant in a criminal case, a noncitizen in removal proceedings is not guaranteed counsel by the U.S. Constitution. However, the Immigration and Nationality Act provides that “[i]n any removal proceedings before an immigration judge and in any appeal …, the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose” (emphasis added). Counsel is essential because of the complexity of the immigration laws, which in a 1977 circuit court opinion were compared to “King Minos’ labyrinth in ancient Crete.” Not surprisingly, noncitizens represented by counsel in removal proceedings are much more likely to prevail than those who are unrepresented.

    Strong arguments have been made that due process requires that noncitizens be guaranteed counsel in removal proceedings. Some local jurisdictions with large immigrant populations, including Los Angeles and New York, have taken steps to increase access of immigrant residents to legal representation in removal proceedings. The California legislature is considering measures that would provide funding to increase access to counsel for immigrants.

    This discussion has focused on constitutional rights of persons, including noncitizens, physically present in the United States. Prospective immigrants outside the United States have more limited constitutional protections, as will be discussed below.

    David Brotherton:
    My position on this is that anyone who steps on U.S. soil should be protected by the Constitution. Of course, this does not include the right to vote or the right to run for elected office; these rights should remain those of citizens only. However, all other rights, such as those that relate to the protections of individuals and groups provided under the U.S. legal code, are applicable to anyone residing in the nation, regardless of how long or short their stay. Some of the most important rights that should be enjoyed by all, such as due process, protections against search and seizure and the right to freedom of speech are critical democratic rights and should be understood not just as U.S. rights but as universal rights.

    Since the U.S. is fond of declaring itself to be a paragon and exemplar of a functioning democracy it should set an example of ensuring that the rights that it holds so dear and which in its eyes make it such an exceptional nation should be available to all who pass through its borders. Of course, it would be wonderful if those constitutional rights of the U.S. could be extended in furtherance of establishing a more functioning and less contradictory participatory democracy, since it is clear that the extraordinary economic power of certain individuals and social classes has greatly thwarted the promise of the democratic project so many residents of the U.S., be they citizens or noncitizens, believe in and long for.

    The plenary power doctrine

    Do you think that the plenary power doctrine, as it has been applied to federal immigration law for the last 125 years, is too broad? In what ways would you restrict it, or would you do away with it altogether? What would be your basis in law for supporting abolition of the plenary power doctrine when it comes to immigration, if that is a position you support?

    Park:
    Public officials suggested the idea of “plenary power” prior to immigration law, and the idea originates in the relationship between the United States and Native American tribes. Native American tribes and Native American people were not citizens of the United States, even though they lived within the boundaries of the states. They were “domestic dependent nations,” apart from the United States, and yet under the authority of the United States government as conquered people. For them, Congress and the president had “plenary power,” and the federal courts had limited power to check these branches, even when the federal courts could acknowledge, as they did in Cherokee Nation v. Georgia (1831), that Congress and the president were not living up to their treaty obligations. Because Native Americans were not American citizens, and because the federal courts only protected the rights of American citizens under the Constitution, injured Native Americans had to seek remedies from Congress and the president, not the federal courts, according to Chief Justice John Marshall. This line of thinking lasted well into the first half of the 20th century.


    In the immigration context, the federal courts were highly influenced by these precedents — in cases concerning immigrants and noncitizens, they’ve held that the federal courts should not interfere with laws and policies established in Congress and by the president for noncitizens. Again, for people who believe that the Constitution was a kind of contract, designed primarily or exclusively for the benefit of American citizens, there is no moral or legal problem with this position. Congress should have the right to limit immigrants who seem harmful, to encourage those who might help the United States and otherwise set the procedures and policies that govern entry, exclusion and removal.

    For those of us who feel that the Constitution represents statements of broad principles, however, the plenary powers doctrine has always been highly problematic. We note that the United States

    Supreme Court created this doctrine to justify doing nothing as Native Americans were driven off of their ancestral lands. Then the Court used the same doctrine again when Congress moved to exclude Chinese immigrants in the late 19th century, as it also endorsed notions that the Chinese were a threat to white working-class people and that they were “unassimilable.” Thus, the Court allowed Congress and president to be stone-cold racist, in spite of the 14th Amendment and the Civil War and lofty (re-)commitments to the equality of all people irrespective of race. It’s very disturbing to think that these precedents are still “good law”: the principle of Chinese exclusion still survives, in the sense that if Congress and the president agree to exclude Muslims or Koreans or any group by race or nationality, many justices would likely not interfere.


    Indeed, does the president now have the right to exclude people from Muslim nations, simply because they’re Muslim? He will say that they are not citizens, that they are not yet in the United States, that precedents support this exercise of his executive power; others will say that such policies undermine commitments to religious liberty, in addition to other fundamental commitments implied within the equal protection and due process clauses. Again, these differences stem from inherent disagreements about the Constitution, the scope of national sovereignty and then our commitment to broader principles reflected in the Constitution.


    Several scholars have argued that when individual nations pursue their own interests unchecked by international norms or standards (or even their own norms and standards), all kinds of bad things can happen. Especially when they’ve assessed the behavior of “criminal states,” some scholars and officials have argued the need for international treaties and organizations that can hold government officials accountable when they violate basic human rights or behave in racist or genocidal ways. Samantha Power, the former U.S. ambassador to the UN, has noted that state-sanctioned genocidal actions should never be lawful, and that robust international treaties and conventions are necessary to prevent these actions and to hold officials accountable. Such treaties would, by necessity, curb doctrines like the plenary powers doctrine, in cases where states may abuse or murder their own citizens or noncitizens.


    Others say that such moves could tend toward “international tyranny” and “world government.” Members of the Trump administration, including the president himself, have chafed against international organizations, including the UN, EU, NATO, WTO, the European Court of Human Rights and so on. They’ve favored an “America First” that would allow all nation-states to pursue their own ends without international interference. The proponents of this “America First” idea say that in the postwar world, the United States has shouldered a disproportionate burden for the haphazard, imperfect international system that we have now — Trump has suggested scrapping the system, or making American allies pay more for American participation. He and many of his key advisors do not seem to think of themselves, or this nation, as bound to international law or international organizations.



    I and many other scholars believe that this approach could lead to disaster. To varying degrees, many of us believe that basic human equality within nation-states is a core value applicable not just in the U.S., but in all states. Conversely, state-sanctioned discriminations based on race, nationality, gender, political opinion, religion and other similar characteristics are simply unjust — no state should harm or persecute anyone based on these grounds. Free speech and a free press, due process of law, political participation and representative government, rule of law, prohibitions against cruel and unusual punishment — these are all really good ideas that should bind all nations, too. I don’t think it’s a good idea to promote the right to bear arms (as an individual right), but I do think that many other provisions of the Constitution embody excellent ideas that already curtail all government actors in the United States.


    Thus I and many others would support international and national efforts to bring our own national sovereignty in line with those values — we should not admit or exclude immigrants on the basis of religion, gender, race, nationality and so on. That is, faced with choices between plenary powers on the one hand and basic human rights norms on the other, I believe that Americans should always choose human rights norms, even if that means that we give up or circumscribe our own sovereignty. In this view, I am fine with handing over my own government officials if they’ve been accused of torture or mass incarceration of their own citizens or any other serious violation of international human rights norms. Yet of course, public officials who’ve entertained race-based exclusions and religious bars and torture aren’t thrilled by that possibility.


    These insights work forwards and backwards: I think the Nuremberg Trials after World War II were imperfect in many ways, but one of the deepest flaws may have lain in an unwillingness to subject American public officials to some harsh questions — did they commit crimes against humanity? Was it necessary to drop two atomic weapons? Should it ever be lawful to carpet-bomb and incinerate whole cities? Was the incarceration of Japanese persons and Japanese-Americans a state-level criminal act tinged with racism?


    Johnson:
    In The Chinese Exclusion Case (1889), the Supreme Court upheld the Chinese Exclusion Act, which largely banned immigration from China to the United States. In so doing, the Court held that Congress had “plenary power” over immigration and its substantive immigration decisions were not subject to judicial review. The Chinese Exclusion Act was one of many racially discriminatory laws passed by Congress in the late 1800s, almost all of which were upheld by the courts.


    Over the last 125 years, “cracks” have emerged in the plenary power doctrine. Namely, the Supreme Court at times has exercised minimal judicial review over immigration decisions. In recent years, the Court has rarely invoked the plenary power doctrine and, indeed, on a number of occasions strived to avoid invoking it. The reason: The antiquated Chinese Exclusion Case is out of synch with the Supreme Court’s modern constitutional jurisprudence. One would think that minimal rationality review of U.S. government action with respect to immigration would be more consistent with modern constitutional sensibilities than the immunity from judicial review bestowed by the plenary power doctrine.


    Another factor militates in favor of judicial review of decisions of noncitizens seeking admission into the United States. In the average immigrant admission case, the rights of U.S. citizens and lawful permanent residents in the United States, such as family members and employers, are adversely affected by the denial of the admission of a person into the United States. In Kerry v. Din (2015), six justices of the Supreme Court agreed that, when rights of a person in the United States are affected by a visa denial, as in cases such as Kleindienst v. Mandel (1972), judicial review of the decision is justified.


    Brotherton:
    The plenary power doctrine places the regulation of immigration and deportation firmly in the hands of the legislative and executive branches of the government. To some degree this makes sense since (as is often argued) it is preferable for elected officials rather than appointed judges to hold sway over such important policy matters and practices relating to changes in national sovereignty and the application of human rights. Certainly during the 1960s, when the country was moving in a more liberal direction, we can see how progressive changes to the immigration laws allowed a much more diverse population to enter the United States and end the privileging of Europe as the source of immigrant population flows, which had largely been the case hitherto.


    When Congress moves to the right or there is a surge in anti-immigrant feeling among the populace we can get the opposite, as happened in 1996 with the racist and highly punitive Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). In this particular case we also see what happens when democratic decision-making is not in evidence and the much heralded checks and balances characteristic of U.S. legislative practice is not apparent. For example, as the renowned immigration lawyer Ira Kurzban wrote of the flawed process that led to the bill’s passing:

    Lamar Smith, who was the Chairman of the House Immigration Subcommittee at the time, rewrote the immigration laws by hiring lawyers from FAIR (Federation for Immigration Reform), an anti-immigration group. He knew he could not simply eliminate all waivers so he and his staff rewrote the waivers to make them far less useful to most people. The Republican members of Congress deferred to Smith and the Democrats were only provided the IIRIRA legislation less than 72 hours before there was a vote.

    Kurzban went on to remind us that, other than Smith, almost no legislator actually read the 300-plus page tome. Nonetheless, the acceptance of this critical piece of legislation has resulted in changes to the regulation of the country’s borders, both internally and externally, with some of the most devastating effects on immigrant families ever recorded in the nation’s history. I am referring here to the deportation of millions of U.S. residents, many of whom lived and worked here legally, and the collateral damage this has caused.

    Consequently, when one sees this type of reactionary political shift in immigration policy due to the plenary power provision and how it has paved the way for the present insular, xenophobic and anti-Muslim conception of border control, the current process cries out for modification and far greater democratic accountability. It should be remembered that President Bill Clinton called this particular legislation one of the worst he ever signed and assured the nation that it would be revised at a later stage. Alas, the only revisions made to the bill pushed the provisions therein further to the restrictionist and punitive right and nothing has been done since to alleviate its dire results.

    http://www.salon.com/2017/03/25/deba...e-to-bar-them/


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  3. #3
    Senior Member grandmasmad's Avatar
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    Illegals here should have the same rights as an American would have if they snuck into their country.....NONE!!!!!!!!!!!!!!!!!!!!!!!!!!!ll
    The difference between an immigrant and an illegal alien is the equivalent of the difference between a burglar and a houseguest. Join our efforts to Secure America's Borders and End Illegal Immigration by Joining ALIPAC's E-Mail Alerts network (CLICK HERE)

  4. #4
    Senior Member Captainron's Avatar
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    Someone hand picked these "experts" to present their particular point of view.
    "Men of low degree are vanity, Men of high degree are a lie. " David
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