Protecting immigrants against discrimination.

Immigration is America's great paradox. Since its inception, the country has for the most part maintained an ideological commitment to openness and has often relied on immigrant labor to meet its economic needs. Yet, there have been federal laws that have excluded immigrants from entering the country based on race, national origin, and political opinion.(1)

Immigrants living in the United States have enjoyed fewer rights than citizens, and laws have restricted immigrants' rights to own property, obtain employment, receive public benefits, and participate in political life.(2) We are a nation of immigrants, but our laws have not always reflected the values of tolerance and equality that are implied by that popular adage.

California's Proposition 187 is a recent example of anti-immigrant legislation.(3) Although enjoined from implementation by the courts, it would eliminate access to public education, social services, and nonemergency medical care for undocumented immigrants in the state. In addition, all individuals - including citizens - who seek to obtain these services would be required to provide proof of lawful immigration status.

As of this writing, proposed federal welfare reform legislation goes even further, seeking to deny public benefits such as Supplemental Security Income and food stamps to lawful permanent resident immigrants.(4)

Laws targeting particular classes of immigrants illuminate a serious weakness in our civil rights jurisprudence. Civil rights are typically defined in terms of citizenship: A basic goal of antidiscrimination law is to ensure rights of citizenship to groups that historically have been denied full citizenship - racial and ethnic minorities, religious minorities, women, lesbians and gay men, the disabled.

Immigrants, however, can be denied full rights of citizenship precisely because they are not citizens. Until they obtain citizenship through naturalization, they do not - and should not, according to accepted political theory - have all the rights that citizens have. Noncitizens are not allowed to vote, serve on juries, or run for elected office; national self-definition mandates at least some differentiation between the country's citizenry and its noncitizenry.

Nevertheless, immigrants do enjoy basic civil rights protections. Immigrants, including undocumented ones, are persons under the law and enjoy constitutional rights of due process and equal protection.(5) Federal laws provide rights and remedies for immigrants who face discrimination based on race, national origin, religion, sex, and other traditional grounds.(6) The immigration laws include specific prohibitions against citizenship discrimination and national origin discrimination in employment.(7)

The problem of anti-immigrant discrimination is complicated because of the blurring between immigration status and race. The reality of discrimination against Asian Americans and Latinos is that race and national origin are equated with foreignness. Although many people can trace their families in the United States for several generations, they remain outsiders because they are perceived to be foreign-born immigrants and not fully American. U.S. Senator Alphonse D'Amato's Japanese-accented caricature of California Judge Lance Ito, a third-generation Japanese American, is one recent example.(8)

Remedying discrimination against immigrants and people perceived to be immigrants therefore requires an understanding that some forms of government discrimination against immigrants are constitutionally permissible, that most forms of private employment discrimination are impermissible, and that the civil rights laws do not consistently address the intersection between race and immigration status.

Definition

An "immigrant" can be formally defined fined as anyone who is born outside the United States and is not a U.S. citizen at birth. Immigrants fall into an array of categories under federal laws, including naturalized U.S. citizen, lawful permanent resident (a "green card" holder), refugee, and political asylee.(9) Even the "undocumented immigrant" - or "illegal alien" - subsumes several categories: those who have entered without inspection (e.g., crossing surreptitiously across a border); those who have remained after entering with a valid visa (e.g., staying past the expiration date of a temporary visa); and those who have violated the terms of a visa (e.g., working without authorization on a nonemployment visa such as a student visa).

Categories are fluid, because people can change from one status to another: an undocumented immigrant can become a political asylee, a refugee can become a lawful permanent resident, a permanent resident can become a naturalized citizen.

Rights also vary across categories. Lawful permanent residents have the same rights as citizens except political rights such as voting or jury service and, increasingly, access to government benefits. Undocumented immigrants are not authorized to work in the United States and have only basic constitutional and legal rights, including equal access to public education.

As a practical matter, though, the term "immigrant" carries popular meanings and implications both broader and less precise than those defined in the immigration laws. First, most people are unaware of the different categories of immigrants and tend to lump anyone who appears to be foreign-born into one broad category. Laws such as Proposition 187 that target undocumented immigrants can lead to discrimination against lawful permanent residents believed to be undocumented.

Second, certain attributes may attach to being an immigrant, such as speaking English as a second language or possessing a non-American accent. These attributes often continue even after an immigrant becomes a naturalized citizen and can lead to discrimination based on national origin.

Third, as noted earlier, many U.S.-born citizens are perceived to be immigrants and may suffer discrimination when laws mandate inquiries into immigration status. For example, even though implementation is currently blocked by court order, Proposition 187's mandates have caused significant discrimination against Latino and Asian American citizens who are likely to be suspected of being undocumented. A recent study in Los Angeles found extensive discrimination by businesses, anti-immigrant hate crimes, and abuse by law enforcement officers following the passage of Proposition 187.(10)

Forms of Discrimination

Anti-immigrant discrimination can take different forms: direct discrimination, in which immigrants are treated differentially, and indirect discrimination, in which attributes such as race, national origin, and language ability are the basis for differential treatment.

The federal government has the greatest power to discriminate formally against immigrants. Because courts have held that the federal government has plenary power to regulate migration into the United States, they have also upheld broad federal powers to abridge the lights of immigrants already living here.

In Mathews P. Diaz, the U.S. Supreme Court held that Congress's extensive powers allowed it to limit eligibility for Medicare to lawful permanent residents based on the number of years they had been living in the United States, even though no similar limitation was applied against citizens.(11) Because, at this writing, it was unlikely there would be significant changes in the laws regarding the availability of federal public benefits to immigrants, the courts will be invoking this case to determine the constitutionality of the new federal legislation targeting lawful permanent residents, refugees, and undocumented immigrants.

State and local governments possess more limited power than the federal government to discriminate against immigrants. The Supreme Court has held that alienage is a suspect classification under the Equal Protection Clause because noncitizens arc a discrete and insular minority who have suffered discrimination the past, lack political power, and deserve special protection under the law.(12)

State and local governments must meet a strict scrutiny standard when discriminating against lawful permanent-resident immigrants. The Supreme Court has struck down limitations on access to welfare benefits, state civil service employment, and state licensure for attorneys and notaries public.(13) Except for jobs such as law enforcement or public school teaching, which are closely related to the political life of the community, state and local governments may not restrict government employment to citizens only.(14)

In Plyler v. Doe, the Supreme Court further held that state and local governments may not discriminate against undocumented-immigrant children in providing access to public education.(15) The Court held that undocumented immigrants are not a suspect class but found that a higher level of scrutiny is necessary when a basic government function such as education is involved and discrimination would create an underclass.(16) Proposition 187's education provisions directly challenge Plyler, and the Court may revisit its decision in that case.

Private employers have even less power to discriminate against immigrants and except for refusing to hire undocumented ones are prohibited under federal law from discriminating on the basis of immigration status.(17) Under the Immigration Reform and Control Act of 1986 (IRCA), employers play the role of immigration officer, since they are required to verify the status of newly hired employees. An employer can lawfully refuse to hire anyone, particularly undocumented immigrants, unable to provide proof of valid work authorization.

Challenging Anti-Immigrant

Practices

Recognizing that employment verification would lead to discrimination, Congress created S274B within IRCA to establish new claims to challenge anti-immigrant practices in hiring, discharge, recruitment, referral, and retaliation.(18)

First, the section creates an administrative claim for discrimination based on citizenship status. Other than employment involving (1) government-mandated citizenship requirements such as defense contracting and (2) instances in which an employer prefers a citizen over a noncitizen when the two are equally qualified, private employers cannot use citizenship status to discriminate against an immigrant authorized to work.(19) A U.S.-citizens-only hiring policy, for example, would violate S274B.

Second, IRCA expanded protections against national-origin discrimination to include smaller employers not covered under Title VII of the Civil Rights Act of 1964.(20) Employers with between 4 and 14 employees are covered by [sections] 274B; employers with 15 or more employees are covered by Title VII.(21) The Justice Department's Office of Special Counsel for Immigration-Related Unfair Employment Practices, which oversees the enforcement of IRCA's antidiscrimination provisions, and the Equal Employment Opportunity Commission, which oversees the enforcement of Title VII, have a memorandum of understanding to exchange cases under both sets of laws.

Third, under the Immigration Act of 1990, Congress amended [sections] 274B, adding prohibitions against document abuse. This makes it unlawful to refuse to accept documents or to request more or specific documents to comply with IRCA's employment verification requirements.(22)

Under the antidiscrimination sections of 274B, employees must file an administrative charge with the Office of Special Counsel (OSC) within 180 days of the discriminatory act. After an OSC investigation, a complaint is filed or the employee can file a complaint within 90 days of receiving notice. The case is then heard by an administrative law judge, and it may later be appealed to the federal court of appeals. Remedies under [sections] 274B include hiring, reinstating, awarding back pay, and paving attorney fees, as well as fining the employer.(23)

Unlike Title VII claims, the IRCA antidiscrimination claims require proof of intentional discrimination.(24) Employees cannot rely on a "disparate impact" theory by challenging a facially neutral policy that has an adverse impact on a protected class. Neither civil actions nor jury trials are available under IRCA. Moreover, under the law's citizenship discrimination provisions, lawful permanent residents who fail to apply for naturalization within six months of first becoming eligible (usually five years after first entering the country) are not protected under [sections] 274B.(25)

IRCA's antidiscrimination provisions reflect, in part, the fact that verification requirements cause "spillover" discrimination against lawful permanent residents and U.S. citizens perceived to be immigrants. For example, in 1990 the U.S. General Accounting Office released the results of a nationwide survey that found that nearly 20 percent of U.S. employers discriminated against Asian American and Latino workers after the passage of IRCA.(26) A survey conducted in San Francisco, a city in which Asian Americans and Latinos together constitute 40 percent of the population, found that 39 percent of employers believed it was "riskier" to hire Asians after the passage of IRCA, and 40 percent believed it was "riskier" to hire Latinos.(27)

Another example of indirect discrimination involves hate violence. In many instances of anti-Asian and anti-Latino violence, epithets such as "Get out!" or "Why don't you go back to your own country?" are common, even when the victim is actually a U.S. citizen.

A 1994 study by the Los Angeles County, Commission on Human Relations found that half the hate crimes committed in Los Angeles County against Asian Americans and Latinos contained anti-immigrant sentiment.(28) A recent study published by the National Asian Pacific American Legal Consortium found that increases of anti-Asian violence in Northern California corresponded with the anti-immigrant rhetoric surrounding Proposition 187.(29)

Expanding Civil Rights

Inquiries into immigration status required by laws such as IRCA are not the sole cause of anti-immigrant discrimination. But they contribute to an environment in which immigrants arc discriminated against and citizens perceived to be immigrants arc placed at risk of discrimination and violence. To better protect the civil rights of these people, several judicial and legislative proposals should be put into place.

Constitutional standards for reviewing federal discrimination against immigrants should be reexamined in light of contemporary developments in civil rights and human rights law. Given the courts' strengthening of the Due Process and Equal Protection clauses in recent decades, congressional plenary power in immigration should be balanced against the protection of individual rights when determining the specific rights of immigrants.

An intermediate level of scrutiny, like the standard applied in Plyler, could be applied to federal legislation affecting lawful permanent residents and other immigrants who may otherwise be denied important government services.

As an answer to laws that require verifying immigration status, antidiscrimination laws should be amended to recognize status as a basis for stating a claim of discrimination. IRCA's citizenship discrimination provisions provide a useful example, but even that act's coverage could be expanded so that (1) applicable employment practices include promotions and conditions of employment, not only Wring, referral, and discharges; and (2) the law covers a broader range of protected immigrant categories, including all lawful permanent residents regardless of when they become eligible for naturalization.

Focus on Perceived Status

Finally, perceived immigration status should be included as an explicit category in antidiscrimination legislation. Although perceived immigration status overlap's with race and national origin, use of this status better reflects the current realities of discrimination against Asian Americans, Latinos, and others for whom race and immigration status are blurred as a practical matter. Use of perceived status also provides a more manageable standard for proving liability, particularly when anti-immigrant remarks and epithets arc part of the evidentiary record.

Anti-immigrant sentiment is likely to remain a significant problem here in the United States, even with revisions to the civil rights laws. At a time when government discrimination contributes to public animosity toward immigrants, the laws must also ensure that everyone - immigrant and citizen alike - enjoys basic civil rights and is free from unlawful discrimination.

Notes

(1) See, e.g., Chinese Exclusion Act, Ch. 126, 22 Stat. 58 (1882); Immigration Act of 1917, 39 Stat. 874 (creating "Asiatic Barred Zone'); Immigration Act of 1918, 40 Stat. 1012 (providing for deportation of noncitizens who were members of or affiliated with "radical" groups). (2) See generally U.S. COMM'N ON CIVIL RIGHTS, THE TARNISHED GOLDEN DOOR. CIVIL RIGHTS ISSUES IN IMMIGRATION 1-11 (1980). (3) Calif. Prop. 187 approved Nov. 8, 1994). (4) H.R. 4,104th Cong., 1st Sess. (1995). (5) Plyler v. Doc, 457 U.S. 202 (1982). (6) See EEOC v. Tortilleria La Mejor, 758 F. Supp. 585 (E.D. Cal. 1991) (undocumented immigrants covered by Title VII of Civil Rights Act of 1964). (7) 8 U.S.C. [sections] 1324b (1994). (8) See generally Sen. D'Amato Apolo Japanese Acccent/Remarks on Radio Were Aimed at Judge Ito, SAN FRANCISCO CHRON., Apr. 6,1995, at A2. (9) 8 U.S.C. [sections] 1101(15). (10) COALITION FOR HUMANE IMMIGRANT RIGHTS OF LOS ANGELES, HATE UNLEASHED: LOS ANGELES IN THE AFTERMATH OF 187 (1995). (11) 426 U.S. 67 (1976). (12) Graham v. Richardson, 403 U.S. 365, 372 (1971). (13) See generally id. at 365 (welfare benefits); Sugarman v. Dougall, 413 U.S. 634 (1973) (civil service employment)., In re Griffiths, 413 U.S. 717 (1973) (bar admissions); Bernal v. Fainter, 467 U.S. 216 (1984) (notaries public). (14) See generally Foley v. Connelie, 435 U.S. 291 (1978) (state troopers); Cabell v. Chavez-Salido, 454 U.S. 432 (1982) (probation officers); Ambach v. Norwick, 441 U.S. 68 (1979) (public school teachers). (15) 457 U.S. 202. (16) Id. at 223-24. (17) 8 U.S.C. [sections] 1324b(a)(1). (18) 8 U.S.C. [sections] 1324b. (19) Id. [sections] 1324b(a). (20) 42 U.S.C. [sections] 2000e. (21) 8 U.S.C. [sections] 1324b(a)(2). (22) Id. [sections] 1324b(a)(5). (23) Id. [sections] 1324b(g)(2). (24) 28 C.F.R. [sections] 44.200(a)(1)(1995). (25) 8 U.S.C. [sections] 1324b(a)(3)(b). (26) U.S. GEN. ACCOUNTING OFFICE, IMMIGRATION REFORM: EMPLOYER SANCTIONS AND THE QUESTION OF DISCRIMINATION (1990). (27) LINA M. AVIDAN, EMPLOYMENT AND HIRING PRACTICES UNDER THE IMMIGRATION REFORM AND CONTROL ACT OF 1986: A SURVEY OF SAN FRANCISCO BUSINESSES 7 (1989). (28) LOS ANGELES COUNTY COMM'N ON HUMAN RELATIONS, HATE CRIMES IN LOS ANGELES COUNTY, 1993,4 (1994). (29) NATIONAL ASIAN PACIFIC AMERICAN LEGAL CONSORTIUM, 1994 AUDIT OF VIOLENCE AGAINST ASIAN PACIFIC AMERICANS 13 (1995).

Angelo N. Ancheta is the executive director of the Asian Law Caucus in San Francisco.