SPECIAL DUE PROCESS FOR IMMIGRANTS

Introduction

Immigration policy is intrinsically linked to the rule of law, which inherently includes due process – a principle evident throughout American jurisprudence. However, immigration law remains a notable exception to the general assumption that whenever the law threatens a subject’s freedom, the subject is entitled to due process of law before losing that freedom.

It is wishful thinking to distinguish immigrants from citizens and deny immigrants due process, believing that doing so does not affect our values. The lesson from the Second World War is that we blurred the line we believe exists between citizens and immigrants, including 80,000 citizens among the 120,000 people of Japanese descent we locked up in internment camps.

Right vs. Privilege

Congress recognizes the importance of an immigrant in deportation proceedings having legal assistance. However, the text of the statute expressing that congressional intent states that the immigrant has “the privilege of being represented (at no expense to the Government) by such counsel…he shall choose.”

Congress seems afraid of two things. First, the expense, because, as in the criminal law context, the right to counsel is at government expense if the defendant cannot afford counsel, under the Sixth Amendment. The right to a jury would also attach, which would complicate the system of quick deportations.

Plenary Power Doctrine

The Sixth Amendment rights remain unimaginable in immigration due to the U.S. Supreme Court’s ‘plenary power’ doctrine, first announced in the Chinese Exclusion Case. This doctrine allows the court to abstain from intervening in immigration policy.

The theory, at least in 1889, was that the U.S. government engaged other nations on immigration as a subset of trade and foreign policy. Because the Constitution assigned foreign policy to the political branches, immigration was committed to the unfettered discretion of the political branches.

This rationale made sense when foreign trade and customs were intertwined, and immigration happened mostly via ships. Once security and labor took center stage in immigration policy, and air travel became ubiquitous, the nation-to-nation engagement in immigration policy ceased.

Where the U.S. and other governments deputized ships’ captains for customs and immigration control, governments now deal directly with intending immigrants and issue visas pre-embarkment. This makes the ‘foreign policy’ rationale for the ‘plenary power’ doctrine an anachronism.

It is unusual for the court to resist reining in its sister branches in the checks-and-balances design. One explanation for the court’s reluctance to intervene unless invidious discrimination is blatant, is that immigrants who are non-citizens are foreign nationals not entitled to full constitutional protections.

However, immigrants can incur liability and get hauled into our courts in a forum with specific jurisdiction conferred by their activities within that forum. An immigrant would be laughed out of court if they defended against such a suit by citing their foreign nationality.

Furthermore, nowhere in American jurisprudence do we deny due process based on immutable characteristics such as race or national origin. Essentially, when we separate immigrants from everyone else regarding due process, we are citing national origin.

We compartmentalize our views for convenience. This enables us to avoid worrying about what it does to our system when we create two tiers of rights to due process of law, which undermines our belief that all men are equal.

Conclusion

Were a presidential candidate to threaten that if elected, they would transfer people of certain races from one state to another based purely on race, that politician would face recrimination.

As bizarre as that sounds, we, Americans, did not rise in defense of people of Japanese descent during the Second World War. We stood by as they languished simply because we had declared war against Japan. However, we had not declared war against ourselves to justify interning 80,000 U.S. citizens.