New York Times
July 1, 2001
A Legal Breakthrough for Immigrants
By David Cole
WASHINGTON -- Despite the promise of the Statue of Liberty, noncitizens have rarely been treated as constitutional equals in this country. Yet in two surprising decisions handed down last week, the Supreme Court has come close to recognizing that immigrants are persons entitled to the same basic constitutional protections that apply to citizens. In doing so, the court broke from its own ignoble history of slighting immigrants' interests and may well have embarked on a new era in immigrants' rights.
In the first case, Immigration and Naturalization Service v. St. Cyr, the government claimed it could expel immigrants who had committed a wide range of crimes without any court review, even where the deportation violated federal law. In the second case, Zadvydas v. Davis, the government argued that it could lock up immigrants who were ordered deported for indefinite terms if their home countries would not take them back.
In both cases, the government maintained that because its power over immigration is virtually absolute, immigrants' rights are left to the discretion of Congress and I.N.S administrators. That position was not unprecedented. The Supreme Court has often upheld actions taken against immigrants that would not pass muster if taken against citizens. In the late 1800's, the court affirmed laws that prohibited Chinese immigration and presumptively treated Chinese aliens as unreliable witnesses. During the 1950's, the court upheld the deportation of noncitizen Communist Party members, including individuals who had left the party long before membership became grounds for deportation. And just two years ago, the court ruled that immigrants could raise no constitutional objection to being selectively targeted for deportation based on their political associations.
But apparently the government can go too far. In 1996, Congress enacted the harshest immigration reforms of our generation. It made a wide range of relatively minor criminal offenses grounds for automatic deportation, mandated detention for some aliens, appeared to authorize indefinite detention for others, and stripped federal courts of power to review many immigration decisions.
The court wisely interpreted those 1996 statutes to preserve basic constitutional protections for immigrants. In the St. Cyr case, the court said that judicial review of deportation decisions "is unquestionably required by the Constitution," even though the statute appeared to bar judicial review. Without the right to go to court, all other rights are meaningless. This is especially so for immigrants, who, lacking a political voice, cannot expect to find protection from the political branches, and doubly so for those with criminal records, a particularly unpopular bunch.
In the Zadvydas case, the court said that the Constitution protects the liberty of "all `persons' in the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent." Indefinite detention of a person who is not likely to be deported in the near future, the court ruled, would likely violate due process. To avoid that problem, the court limited the I.N.S.'s power to detain aliens to six months if prompt removal is not reasonably foreseeable.
Underlying both decisions is the court's fundamental recognition that, as "persons" living here, noncitizens are entitled to the protections of the Bill of Rights not explicitly limited to citizens. Last week, the court was at last willing to say that those protections limit the power of Congress and the executive branch to do as they please with the lives and liberty of the millions of immigrants who live among us.
David Cole is a professor at Georgetown University Law
Center
Copyright © 2001. New York Times . All rights reserved.
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