Two Supreme Court Victories for Immigrants

The Supreme Court last week issued two important immigration-related

decisions that will have a huge impact on thousands of people who are

detained and who plead guilty to crimes before the passage of the 1996

immigration laws.   The decisions involved the Illegal Immigration and

Immigrant Responsibility Act (IIRIRA) and the Antiterrorism and

Effective Death Penalty Act (AEDPA) which had stripped immigrants who

had committed crimes many of their rights.

AEDPA made immigrants convicted of crimes ineligible for certain kinds

of relief such as waiver of deportation, a discretionary form of

administrative relief that had frequently been granted to deportable

aliens with family ties in this country or with a minor offense.  The

law also restricted judicial review for aliens in custody for various

reasons.  IIRIRA made detention mandatory and required the retroactive

deportation of non-citizens convicted of certain criminal offenses.

However, this law failed to take into account those deportees who are

stateless because they have no country to which they can return.  Thus,

when a stateless person is confined to mandatory detention pending a

deportation, the result is a potential life sentence because the

deportation cannot take place.  Both laws stripped the courts of

jurisdiction to hear legal challenges to the Immigration and

Naturalization’s Service (INS) enforcement of the new laws.

In the first immigration-related cased decided on June 25, 2001, the

Supreme Court stated that the 1996 laws should be interpreted to retain

the jurisdiction of the federal district courts to issue writs of habeas

corpus which had always been available to review the legality of the

“executive detention.”   The Court ruled that legal residents are

entitled to have their cases reviewed by a court before facing

deportation and that new deportation laws could not be applied

retroactively.  By a vote of 5-4 decision, Justice John Paul Stevens,

in the majority opinion, said that aliens who pleaded guilty under the

old law “almost certainly relied” on their right to court review “in

deciding whether to forgo their right to a trial.”  The “elimination of

any possibility of…relief has an obvious and severe retroactive

effect.” Petitioners in this case were lawful permanent United States

residents subject to administratively final removal orders because they

were convicted of aggravated felonies.  Immigration and Naturalization

Service v. St. Cyr, No.00-767.

On June 28, 2001, the Supreme Court issued yet another

immigration-related ruling pertaining to immigrants who committed crimes

and were being held indefinitely by the INS pending deportation.   In

its 5-4 decision, the Court ruled that the government cannot detain

immigrants who are seeking deportation indefinitely. Zadvydas v. Davis

38. Kim Ho Ma, Nos. 99-7791 and 0038. The Court considered two cases,

one from the Fifth Circuit Court of Appeals and one from the Ninth

Circuit.  The Court ruled that aliens are entitled to due process

protections and that government detention violates the Due Process

Clause of the Constitution “unless it is ordered in a criminal

proceeding with adequate procedural safeguards or a special

justification outweighs the individual’s liberty interest.” In regards

to the issue of detention, the Court stated that the Immigration and

Nationality Act’s (INA) post-removal-detention provision contains

implicit reasonableness limitation.    The Court added that federal

habeas corpus statutes are available as a forum for statutory and

constitutional challenges to post-removal detention of an alien.

Furthermore, “for the sake of uniform administration in the federal

courts,” the Court recognized that the presumptive limit to reasonable

duration of post-removal period is six months.  The Court stated, “After

a six-month period, once the alien provides good reason to believe that

there is no significant likelihood of removal in the reasonably

foreseeable future, the Government must respond with sufficient evidence

to rebut that showing.”  The Court also said that Congress’ plenary

power to create immigration law and the administration’s power to

implement it is subject to constitutional limits.

Carol F.Khawly. J.D.

Kareem W. Shora, J.D.

ADC Legal Advisors

Does the Constitution apply to immigrants? 

On February 24, 1999, the United States Supreme Court seemed to say that it did not.  Whether wholly, or only in certain circumstances remains to be seen.  In its most immediate impact, Reno v. American Arab Anti Discrimination Committee concludes twelve years of onerous litigation for the L.A. Eight–seven Palestinians and a Kenyan living in the Los Angeles area–and returns them to the threshold of deportation. 

            Their case began in 1987, when they were charged under the now repealed McCarran Act with possessing literature advocating worldwide communism.  Since then, charges against them have been dropped and added repeatedly by the government, all aimed at First Amendment protected activity, most recently under new legislation which prohibits support to a terrorist organization.  The government contends the eight immigrants are members of the Popular Front for the Liberation of Palestine, a charge they have always denied, despite the shorthand in the media and the courts that assumes such membership. 

            The eight in earlier proceedings offered convincing evidence that the government had singled them out because of their advocacy of Palestinian rights.  Ultimately, officials conceded as much, and that the immigrants were not involved in any criminal conduct.  The Ninth Circuit Court of Appeal twice ruled in ADC v. Meese that the selective enforcement of the law against them, and the threat of deportation, impermissibly chilled their First Amendment rights, and the deportation proceedings were enjoined.  That injunction was vacated by Reno v. ADC, clearing the way for deportation trials to resume.

            At issue in the Supreme Court was the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.  Justice Scalia, writing for an 8-1 majority, construed the act to limit or eliminate–depending on interpretation–federal jurisdiction over constitutional claims in deportation cases.  The abolition of federal jurisdiction would mean any immigrant group could be subjected to unconstitutional speech limitations without redress in the courts.

            But the Scalia majority went further.  After specifically advising the parties that the issue of selective enforcement would not be addressed, the Court held nonetheless: “As a general matter–and assuredly in the context of claims such as those put forward in the present case–an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation.” 

            The Court made no distinction between the six visa holders with minor technical violations, and therefore “unlawfully in this country”, and the two lawful resident aliens, who are most assuredly asserting a selective enforcement defense.  As applied to resident aliens, the Court’s ruling makes no sense, as there has been no finding that they are unlawfully in this country, they are merely accused of being so.  Nor did the Court fairly address the six vias holders, accused of taking too few credits in school and other minuscule infractions.  Deportations are rarely initiated on such charges, and in this case, were done so, by the government’s admission, only because the respondents are alleged to support the PFLP.          

            Moreover, this fait accompli simply preempted previous Supreme Court rulings that the First Amendment applies to aliens living here the same as it does to citizens, and without briefs or argument on the issue.  Such unabashed disregard for due process and fundamental fairness undermine the credibility of the Court; it is also unfortunately consistent with the government’s twelve-year campaign of vilification and misconduct against the L.A. Eight.

            In its rationale for rejecting the selective enforcement defense, the Court seemed to confer an almost unlimited discretion to the INS in targeting aliens for deportation: “The Executive should not have to disclose its ‘real’ reasons for deeming nationals of a particular country a special threat–or indeed for simply wishing to antagonize a particular foreign country by focusing on that country’s nationals–and even if it did disclose them a court would be ill equipped to determine their authenticity and utterly unable to assess their adequacy.”

            So far afield has the Scalia majority gone with this declaration of guilt by association as constitutional principle, that Justice Souter, in his thoughtful dissent, considered the selective enforcement part of the ruling dictum–a line of argument unnecessary to the decision.  He voted aginst the majority on the jurisdictional question as well, to maintain the immigrants’ constitutional rights.

            The case is in some ways confusing and illogical, and legal scholars differ on the scope of harm it encompasses.  At its worst, it effectively strips immigrants of constitutional protections, and combined with the hands-off approach to enforcement, renders unfettered discretion to the INS to target unpopular nationalities as “special threats”, and find reasons to deport them.  The doors of the federal district courts would thus be closed to immigrants facing deportation, thereby eliminating the forum and fact-finding process essential to showing a constitutional deprivation.  At its best, Reno may limit immigrants’ constitutional protections only in the INS’ discretion to commence proceedings, but not in obtaining an order of deportation, and immigrants may still have access to federal courts to protect their constitutional rights.  As Justice Souter observed, the “complete preclusion of judicial review of any kind for claims brought by aliens subject to proceedings for removal would raise the serious constitutional question whether Congress may block every remedy for enforcing a constitutional right.”  To avoid such a result, Souter invoked the doctrine of constitutional doubt, which holds that when a statute is susceptible to two meanings, one raising grave and doubtful constitutional questions, and one in which such questions are avoided, the latter should be adopted.

            But the Scalia led Court rejected this approach and concluded that “[w]hen an alien’s continuing presence in this country is in violation of the immigration laws, the Government does not offend the Constitution by deporting him for the additional reason that it believes him to be a member of an organization that supports terrorist activity.”

            The Court again failed to distinguish between the six technically illegal visa holders, and the two lawful resident aliens for whom the “additional reason” is the only reason.  Does Justice Scalia mean that otherwise lawful resident aliens may be considered illegal aliens for “supporting terrorist activity” (by First Amendment protected speech and associations), and deported by the INS, because they are illegal aliens?  And without recourse to judicial review?   

            Whether some variation of this interpretation will prevail, or one less offensive to civil liberties and good sense, will be fought out in the courts over coming months and years.  For the L.A. Eight, with their homes and families and roots here, the outcome will determine if they stay or go.  In the interim, Reno v. ADC provides them, and all immigrants, ample reason to doubt that the Constitution still applies to them. 

Bullet:  “Complete preclusion of judicial review of any kind for claims brought by aliens subject to proceedings for removal would raise the serious constitutional question whether Congress may block every remedy for enforcing a constitutional right.” 

Under Siege:   Secret Evidence and Guilt by Association

            The L.A. Eight were in many ways the subjects of an experiment by the government that ultimately led to harsh new anti-immigrant legislation and enforcement policies.  Currently, there are some 25 cases that involve secret government evidence, denial of bail based on national security, years of pretrial detention, invasive grand jury and FBI investigations, and civil forfeitures–all under charges aimed at First Amendment activities, and all against immigrants from the Arab world. 

            From their arrest in January 1987, it was clear the L.A. Eight were targeted for high profile treatment.  With a hundred agents deployed across the Los Angeles area to bring them in, FBI and INS officials claimed the seven Palestinians and a Kenyan were affiliated with the Popular Front for the Liberation of Palestine and held them without bond as threats to the national security.  To circumvent constitutional review, the government changed charges against them throughout the case, under different advocacy prohibiting sections of the now repealed McCarran Act, and later under new antiterrorist legislation.  Even though acknowledging the immigrants were involved in no criminal activity, the INS continued to depict them as somehow linked to terrorism–not by allegations of specific conduct, but by allegations the government said could only be made in secret, without the eight respondents or their counsel present.  At the bond hearing three weeks after their arrest, the INS, rather than provide its evidence in open court, offered to whisper it to the judge.  The judge declined, and the detainees were released.  An important victory for the L.A. Eight, and one the government wouldn’t forget.

            At the same time, previously secret memoranda were leaked to the defense team that outlined efforts taken in 1986 to establish a mass internment camp for Arab and other Middle Eastern immigrants.  “Alien Terrorists and Undesirables: A Contingency Plan”, created by the Alien Border Control Committee (ABC), including the INS, FBI, CIA and other federal law enforcement groups, also delineated, step by step, the actions taken in the L.A. Eight case, including the use of charges under the McCarran Act and the reliance on secret evidence.  Though immigration officials denied any correlation, a camp site was prepared in Oakdale, Louisiana, complete with fences, cots and tents enough for five thousand detainees, as specified in the ABC document.

            The public outcry at the time was sufficient, it seemed, to curtail such a plan.  But still intent on doing its business in secret, the government adapted.  Though rarely used in the past, “classified information” has been introduced in about 50 immigration cases since 1992, according to the Justice Department.  Learning from its mistakes, the INS no longer has to ask the immigration court if it may whisper its secret evidence to the judge.  Instead, Congress, with President Clinton’s blessings, passed the Antiterrorism and Effective Death Penalty Act of 1996.  The act established “special removal courts” that allow for secret evidence to prove an alien has provided material support to a designated terrorist organization, or solicited funds for, or solicited persons for membership in such an organization.  The law also criminalizes for citizen and alien alike, support of even the lawful activities of any group the Secretary of State designates as terrorist, with a ten-year maximum sentence.  Most of the thirty groups targeted are Arab or Muslim.

            This is a bad idea.  In the first place, anyone in the United States who takes part in planning or committing a terrorist crime is subject to criminal statutes, such as those used in the World Trade Center and Oklahoma City bombings.  The antiterrorism law is not concerned with criminal acts, but rather with otherwise lawful associations with groups deemed criminal.  But whether we like it or not, organizations we call terrorist can be complex social structures like the PLO, which was the government in exile of the Palestinians, with all the responsibilities of any other government to its citizenry, including humanitarian relief.  In effect, anyone can now be penalized for donating to hospitals or hunger relief campaigns if the intermediary is officially disapproved of.  Moreover, “material support” is a vague catchall that could reach far beyond such donations.  With this in mind, the Humanitarian Law Project in Los Angeles is challenging the law as it applies to the project’s efforts to provide human rights training to the Kurdistan Workers Party, one of the terrorist designees. 

            While the act vests an overly broad discretion in what the government may consider support by immigrants here, the process of allotting terrorist status to particular groups is fraught with all the instability of international relations.  We have seen repeatedly that persons and organizations, such as Nelson Mandela and the African National Congress, who are considered terrorist on one day, can on the next be recognized as respected leaders and governments.  The law accordingly shifts in and out of effect with the changing tides of political alignments in the world.  In 1997 for example, six Irish Republican activists had their deportation proceedings stayed as a direct result of a peace agreement for Northern Ireland.  At the stroke of a pen, they no longer threatened the national security.

            As with the L.A. Eight, national security is the proffered rationale in all the secret evidence cases.  But from what few disclosures there have been, it appears the INS is trying cases in secret in which the bulk of the evidence had no reason to be.  Why subject your case to confrontation and cross examination when you can sit down in chambers alone with the judge and recite hearsay?  What lawyer wouldn’t exercise such an advantage?  In the case of six Iraqis, recruited by the CIA in a failed coup against Saddam Hussein and detained here now as national security risks, 90% of the evidence initially claimed to be secret was ultimately released once former CIA Director, James Woolsey took their case public–and without in any way harming the national security.

            Civil asset seizures and jail sentences for contempt of grand jury proceedings have targeted both Arab immigrants and U.S. citizens of Arab descent for their First Amendment activities, generally involving allegations of fund raising for groups deemed terrorist.  Civil forfeiture procedures put the burden on the person whose assets have been seized to prove the funds weren’t involved in criminal activity; grand jury proceedings give prosecutors broad latitude, including indefinite jail terms, in coercing witnesses, who must appear without benefit of counsel.  Through such means, the government is foreclosing First Amendment associational and speech rights, especially in the Arab American community, and without having to subject its own evidence to cross examination, or even disclosure. 

            In the deportation cases, the INS has the further advantage of being able to litigate interminably.  Imad Hamad, another Palestinian, may hold the record.  In 1985, Hamad sought to adjust his status to permanent resident.  The INS denied his request and instead began deportation proceedings based on secret evidence alleging that he belonged to the Popular Front for the Liberation of Palestine.  The judge allowed the evidence which neither Hamad nor his counsel had access to but held that it failed to establish any link between him and the PFLP.  Fourteen years later, the Board of Immigration Appeals affirmed, and Hamad can now adjust his status.    

            The point of his and the other cases, one might reasonably conclude, is not so much to enforce the law, which, as we have seen, is infinitely mutable, but to enforce a political viewpoint in which Arabs are presumed terrorists until proven innocent.  The propagation of this view against the L.A. Eight and others has created a pervasive chilling effect on free speech in the Arab American community for more than a decade.  The new law, like the McCarran Act and those in between, provided the government a means to appear to be doing something, anything, about terrorism, while inhibiting dissent on its underlying anti-Arab assumptions, and scaling back immigrants’ rights generally.  Like outright wars, these repressive campaigns have a way of creating their own momentum.  Since the Reagan 80s, Arab bashing has become a growth industry, consuming millions of tax dollars and thousands of work hours, whittling away at civil liberties, while reinforcing the stereotyping against people from the Arab world, in an atmosphere all too conducive to violence against them.  Just how bad things have gotten can be viewed through the warped lens of Hollywood, where the maniacal Arab terrorist of the 1980s has become a maniacal community in The Siege and is locked up accordingly.  Simple as ABC.

            With Reno v. ADC (see Constitutional Doubt, p.) to reassure the government in its anti-Arab zeal, deportation proceedings against the L.A. Eight will resume, and the myriad other repressive efforts outlined here continue.  And we should probably expect worse, until proponents of civil liberties and people of good will, and especially Arab immigrants and Arab Americans, can be heard above the baying of the pack.  

The New Yorker

In America, Naturalized Citizens No Longer Have an Assumption of Permanence

By Masha Gessen

June 18, 2018

The conceit of naturalization is that it makes an immigrant not only equal to natural-born citizens but indistinguishable from them.

Photograph by David Paul Morris / Bloomberg / Getty

Last week, it emerged that the U.S. Citizenship and Immigration Service (U.S.C.I.S.) had formed a task force in order to identify people who lied on their citizenship applications and to denaturalize them. Amid the overwhelming flow of reports of families being separated at the border and children being warehoused, this bit of bureaucratic news went largely unnoticed. But it adds an important piece to our understanding of how American politics and culture are changing.

Like many of the Trump Administration’s sadistic immigration innovations, the new task force doesn’t reflect a change in the law. In fact, like a number of practices, including mass deportations, it builds on the legacy of the Obama Administration, which set in motion the process of reëxamining old naturalization files. L. Francis Cissna, the director of U.S.C.I.S., told the Associated Press that his agency is looking for people who “should not have been naturalized in the first place”—for example, those who had been ordered to be deported earlier and obtained citizenship under a different name—and this sounds reasonable enough. It’s the apparent underlying premise that makes this new effort so troublesome: the idea that America is under attack by malevolent immigrants who cause dangerous harm by finding ways to live here.

Historically, denaturalization has been an exceedingly rare occurrence, for good reason: by the time a person is naturalized, she has lived in this country for a number of years and has passed the hurdles of obtaining entry, legal permanent residency, and, finally, citizenship. The conceit of naturalization is that it makes an immigrant not only equal to natural-born citizens but indistinguishable from them. So denaturalization, much like the process of stripping a natural-born American of citizenship, has been an extraordinary procedure reserved for very serious cases, mostly those of war criminals.

Earlier this year, I wrote about a very different case, that of a forty-three-year-old man named Baljinder Singh, who was denaturalized after living in this country for twenty-six years. Singh was not a war criminal, or any other kind of criminal, but his immigration process had been a mess, and may have involved the intentional fudging of his first name. What was exceptional about Singh, though, was that he was ordinary, both as a one-time asylum seeker and as a resident of New Jersey. But he was clearly no ordinary citizen, for no one would call into question an ordinary, native-born citizen’s right to reside permanently in the United States, or to work, vote, and receive benefits. In effect, Singh’s naturalization was undone long before he was actually denaturalized.

The new task force will produce many more such cases. Indeed, the creation of the task force itself is undoing the naturalization of the more than twenty million naturalized citizens in the American population by taking away their assumption of permanence. All of them—all of us—are second-class citizens now. The President calls immigrants “animals.” The Attorney General presumes that everyone crossing the border—or at least the southern border—is a criminal.

Michael Bars, the U.S.C.I.S. spokesman, told the Washington Examiner that the agency is hiring dozens of lawyers for the new task force. The mandate, according to both Cissna and Bars, is to find people who deliberately lied on their citizenship applications, not those who made innocent mistakes. The distinction is fuzzier than one might assume.

Back in 1989, I had to make a decision about whether to lie on my citizenship application. At the time, immigration law banned “aliens afflicted with sexual deviation,” among others suffering from “psychopathic personality,” from entry to the United States. I had come to this country as a fourteen-year-old, in 1981, but I had been aware of my “sexual deviation” at the time, and this technically meant that I should not have entered the country. I decided to append a letter to my citizenship application, informing the Immigration and Naturalization Service that I was homosexual but that I disagreed with the exclusion and would be willing to discuss the matter in court. I was young, ambitious, and pragmatically cocky: I had entered the country as a stateless person, not to mention a minor, so I figured that I couldn’t be deported. The rational thing to do, however, would have been to obfuscate on my citizenship application.

My application was granted without my having to fight for it in court. I hadn’t thought about my naturalization for years, but I find myself thinking about it now, thankful for the near-accident of not having lied on my application. Over the years, the applications for both citizenship and permanent residence have grown ever longer, filling with questions that seem to be designed to be used against the applicant. Question 26 on the green-card application, for example, reads, “Have you EVER committed a crime of any kind (even if you were not arrested, cited, charged with, or tried for that crime)?” (Emphasis in the original.) The question does not specify whether it refers to a crime under current U.S. law or the laws of the country in which the crime might have been committed. In the Soviet Union of my youth, it was illegal to possess foreign currency or to spend the night anywhere you were not registered to live. In more than seventy countries, same-sex sexual activity is still illegal. On closer inspection, just about every naturalized citizen might look like an outlaw, or a liar.

• Masha Gessen, a staff writer, has written several books, including, most recently, “The Future Is History: How Totalitarianism Reclaimed Russia,” which won the National Book Award in 2017.