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Equal justice for noncitizens.

The United States enters the 21st century burdened with an immigration system that is functionally obsolete and increasingly anti-immigrant, anti-business, and antifamily. Arising from 19th-century politics and social mores and based on formulistic legal doctrines, U.S. immigration law cannot cope with the realities of business and family life at the end of the millennium. While our nation is a world leader in international commerce and human rights, our immigration laws prevent us from addressing in a fair, humane, and rational manner the rights of noncitizens working and living here.

United States immigration law is still in thrall to a 19th-century legal concept, the "plenary power doctrine"--the idea that the Constitution does not apply to government decisions about admitting noncitizens to the United States and allowing them to remain in the country. The courts have little authority to review decisions rendered under the plenary power of Congress to regulate noncitizens.

In 1889, the U.S. Supreme Court affirmed Congress's plenary power over noncitizens,(1) and the doctrine remains the foundation of U.S. immigration law today. It allows Congress to change immigration laws in harsh and illogical ways, unchecked by the concepts of minimum due process or equal protection.

A case in point is the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), Congress's most recent comprehensive attempt to "reform" immigration laws.(2) Passed as part of a massive appropriations bill, it radically altered the existing immigration system. Among other changes, IIRAIRA did away with the system for providing discretionary relief to noncitizens who commit crimes. When a citizen commits a crime, completion of the sentence usually marks an end to the case and the payment of his or her debt to society. When a noncitizen commits a crime, however, the brave new world of IIRAIRA often leads to a legal and personal nightmare.

The following examples of cases this author has handled are unfortunately not rare.

* An 18-year-old lawful permanent resident drove a car filled with a group of his friends into a school parking lot. The police stopped the car and discovered that one of the group had a gun. The driver was ticketed for having a weapon in his car on school property. He thought little of the ticket and did not hire an attorney to defend the case. He pleaded guilty in municipal court, paid a fine, and did 80 hours of community service.

A year later, the Immigration and Naturalization Service (INS) showed up to deport him. Although his entire family lives in the United States, the young man had not been in the country long enough to qualify for any relief. The law says that noncitizens who commit firearms offenses are deportable. The man was ordered deported to a country where no one in his family still lives.

* A boy came to the United States as a refugee at the age of six. By the time he reached adulthood, he had been in trouble with the law for juvenile offenses. He was sentenced to a year in jail. When he finished his sentence, however, the INS was waiting for him.

Under the latest immigration laws, he is an aggravated felon and cannot be released from jail until deported to his native country. Unfortunately, his native country will not take him back, so he languishes in an INS detention center with no hope for release. He has effectively received a life sentence for his crimes.

It is doubtful that cases like these would pass minimum due process review and equal protection were it not for the survival of the plenary power doctrine. Hundreds of other noncitizens face similar nightmares, even if they have lived in the United States for years and consider America to be their home. While most Americans think that 20th-century law means due process, fairness, and equal treatment for all those who live here, noncitizens are deprived of these fundamental constitutional protections.

Family and business relationships

In the fields of environmental, tax, civil rights, and products liability law, the Constitution imposes minimum levels of due process and equal protection. The plenary power doctrine ensures no such guarantees apply to noncitizens, even though they may have extensive family and business ties to this country.

For example, take the case of an American man in love with a foreign woman. He asks her to visit him in the United States so they can get to know each other better. She gets on an airplane to come here. At the airport, INS agents question her and determine that she is romantically involved with an American but does not have a fiancee visa. Because any girlfriend of a U.S. citizen must have a fiancee visa to enter the country, they refuse to allow her admission, stamp "fraud" in her passport, and send her home.

Even more than family relationships, U.S. business relationships are often disrupted by unreviewable decisions made by low-level INS employees at airports and borders. INS agents have forced thousands of foreign business visitors to return home before they have even entered the United States to meet with their American colleagues. Such decisions are often made in good faith, but given the complex immigration system, laws are misunderstood or misapplied by INS employees.

In a series of columns in the New York Times, Anthony Lewis told the stories of several of these visitors. He wrote about a CNN correspondent who was summarily ejected from the United States and sent back to Greece because INS agents had "questions about his integrity," which they refused to disclose to anyone.(3)

Lewis wrote about a Chinese businesswoman on her third buying trip to the United States who was arrested, held in jail, and then expelled by INS agents for attempting to enter the United States on a valid visa after applying for a different type of visa that had not yet been approved.(4) He wrote about a Czech tourist who tried to enter the United States on a valid tourist visa and was threatened with three years in prison if he did not "confess" to having a plan to work in the U.S. illegally.(5)

The United States has some of the most complex and illogical immigration laws in the world. Convoluted categories and Byzantine exceptions are piled atop one another with no guiding policy or minimum level of fairness.

As an attorney practicing in the immigration law field, I find that my daily challenge is explaining the rationale of our immigration laws to my clients. Why, for example, does the United States not allow a Russian woman to visit an American man she's interested in marrying? Why must she commit to marrying him before she can visit? Russia has no similar law.

Why does the United States consider it objectionable for more than 65,000 temporary professional workers to enter the United States in any given year? If this number were tied to an economic indicator, it might make sense, but it is just a random number picked by Congress and enforced by the Departments of State, Labor, and Justice. For American businesses trying to cope with a booming economy, a shortage of high-tech workers, and Y2K problems, this arbitrary limit has been a tremendous burden as businesses struggle to bring in foreign computer professionals to fix the "millennium bug."

No limits on plenary power

The U.S. Supreme Court has not overturned or even limited the plenary power doctrine, despite the decline of formulistic legal reasoning in other areas of the law. Recently, in Reno v. American-Arab Discrimination Committee, the Court reiterated that immigrants do not enjoy the constitutional protections afforded citizens.(6) Brought by several legal immigrants who were targeted for deportation because they were members or supporters of a Palestinian group, the case dealt with whether immigrants in the United States have a right to ask federal courts to stop their removal on the basis of alleged selective enforcement of the law.

Justice Antonin Scalia wrote, "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."(7) Thus, with the blessing of Congress and the Supreme Court, the INS is now free to target politically unpopular groups for deportation.

Jimmy Wu, president of the American Immigration Lawyers Association, recently stated that the problems immigrants encounter "are not necessarily the result of bad lawmaking or rulemaking, but the result of arbitrary and capricious implementation of laws and rules, as well as gross incompetence."(8) respectfully disagree with Mr. Wu.

Continued reliance on the plenary power doctrine results in the denial of due process rights to noncitizens in the United States. Were the courts able to review immigration laws--and strike them down--as they review other laws, abuses of noncitizens would decrease dramatically.

As the next century approaches, it is time for the United States to rethink its immigration system. Do we want an immigration system that only a few highly skilled attorneys can understand? Do we want an immigration system that hinders, rather than helps, American businesses? Do we want an immigration system that destroys families and causes more human rights abuses than it resolves?

With any luck, the new millennium will bring pressure on Congress to swing its plenary power in a different direction. Many political commentators have noted that Hispanics are becoming a greater political force and increasing their demands for a fairer immigration system. American businesses are also protesting the bureaucratic abuses resulting from a system that seems designed to prevent international exchange rather than enhance it.

The fight thing

While I am loath to rest all my hopes on Congress's ability to do the right thing, congressional indifference to the human impact of IIRAIRA may finally provoke the courts to reexamine the use of formulistic labels to deny noncitizens minimum legal protections.

Indeed, my hope for the next century is that the Supreme Court will act--as it once did in Brown v. Board of Education --to overthrow an obsolete, judicially created doctrine. The Court should consider the role of immigration as it once considered public education, "in the light of its full development and its present place in American life throughout the nation."(9) Discarding the plenary power doctrine would allow immigration laws to provide due process and equal protection for all who live and work in America.


(1.) The Chinese Exclusion Case, 130 U.S. 581 (1889).

(2.) Pub. L. No. 104-208,110 Stat. 3009-546 (codified at 8 U.S.C. [subsections] 1101-1375).

(3.) Anthony Lewis, Abroad at Home: Is This America? N.Y. TIMES, Aug. 18, 1997, at A19.

(4.) Anthony Lewis, Abroad at Home: It Can Happen Here, N.Y. TIMES, Sept. 8, 1997, at A19.

(5.) Anthony Lewis, Abroad at Home: Bullies at the Border, N.Y. TIMES, June 15, 1998, at A23.

(6.) 119 S. Ct. 936, reh'g denied, 1999 U.S. LEXIS 2544 (Apr. 19, 1999).

(7.) Id. at 945.

(8.) Jimmy Wu, Going to Court... and to China, AM. IMMIG. LAW. ASS'N MONTHLY MAILING 3, at S-1 (Mar. 1999).

(9.) Brown v. Board of Educ., 347 U.S. 488, 492-93 (1954).

Margaret D. Stock practices law in Anchorage, Alaska.
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Author:Stock, Margaret D.
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Date:Jul 1, 1999
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