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By Karen Musalo, clinical professor of law and director of the Center for Gender and Refugee Studies at the University of California, Hastings College of Law.

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On August 4, 2010, in a closely watched case, an immigration judge granted asylum to Ms. L.R., a woman from Mexico. The grant in Ms. L.R.'s case came on the heels of a grant of asylum in another high-profile case, that of the Guatemalan asylum seeker, Rody Alvarado. What both cases had in common is that the women asylum seekers had fled brutal violence and abuse at the hands of their male partners in a situation where neither the police nor the courts responded to repeated calls for protection. Taken together the cases send a message loud and clear that domestic violence can be the basis for a successful claim to asylum. They also stand for the broader principle that women who suffer a range of violations of their fundamental human rights - from female genital cutting (FGC), to honor killings, to forced marriage or sexual slavery - are also entitled to protection as refugees.

Although the protection of women whose human rights are violated should not be a controversial proposition, it has been - and continues to be - and women have had to struggle for the recognition that "women's rights are human rights." Their activism over the years has resulted in the promulgation of a number of international human rights instruments, including the Declaration on the Elimination of Violence against Women that specifically address the human rights of women.

In the United States, these advances began to bear fruit in the refugee protection area with the 1996 grant of asylum to Fauziya Kassindja, a woman who fled female genital cutting [FGC]. The decision in Fauziya Kassindja's case (known as Matter of Kasinga) was issued by the Board of Immigration Appeals (BIA), the highest immigration tribunal in the U.S., and was the first precedent decision in U.S. law granting asylum to a woman who fled a gender-based form of persecution. Women's rights and refugee rights advocates celebrated the grant in Ms. Kassindja's case, seeing it as the opening of the door to protection for women fleeing gender-based violations.

However, the celebration was short-lived. Three years later the BIA denied asylum to Rody Alvarado, who sought asylum from more than a decade from what can only be characterized as torture at the hands of her husband, an ex-soldier in the Guatemalan military. Over the ten years of their marriage, her husband pummeled her with his fists, broke windows and mirrors with her head, woke her in the middle of the night with a knife to her throat, and threw machetes across the room at her. The police never answered her desperate calls for help, and a judge told her he wouldn't get involved in a "private" matter.

The denial of asylum in Ms. Alvarado's case was the opening shot in a 14-year-long battle to vindicate the principle that women's rights are human rights, and to hold the courts to the precedent exemplified by the grant of asylum in Matter of Kasinga. Ms. Alvarado was finally granted asylum in December 2009. To understand how this came about, it's necessary to return to where we began - the L.R. case, which the Obama Administration chose to be the vehicle by which it would articulate its position on the issue of asylum in cases such as these. Although one can only speculate, it is a good assumption that the Administration chose the L.R. case because its facts were not only compelling, but also representative of cases involving gender-based violence.

When Ms. L.R. was a 19-year-old student at a teacher training school in Mexico, the school's sports coach - who was 33 years old at the time - raped her at gunpoint. For the next two decades he kept her in virtual captivity, using physical force, beatings and threats of death to her and her family members, to prevent her from leaving him. On occasions she tried to escape him, and his retaliation was swift and brutal - in one instance he locked her in a room and set a fire, trying to burn her alive. Ms. L.R.'s pleas to the police to assist not only went unanswered, but they put her at greater risk because the police told her common-law husband that she had complained, which resulted in even more serious beatings. The response of the judiciary was - for the most part - equally atrocious. When her common law husband prevented L.R. from seeing their three children (all of whom were the result of being raped by him) and she sought assistance from a judge, he told her he would help only if she had sex with him, and when she refused, he told her she was a bad mother, because a good mother would do anything for her children.

Ms. L.R. had been denied asylum at the first two tiers of decision-making (asylum office and immigration court). During the Bush Administration, the Department of Homeland Security (DHS) had filed a brief to the BIA defending the denial of asylum to Ms. L.R. Once the Obama Administration came in, the DHS position changed, and they filed a brief in April 2009 stating that women such as Ms. L.R., who have suffered domestic violence, could qualify for asylum. The brief laid out the elements for a successful claim, stating that a woman would have to show that in her country: 1) the society and legal norms tolerate and accept violence against women; 2) the home government is unable or unwilling to protect; and 3) there is no place within the home country that the woman could move to in order to escape her persecutor.

Both Rody Alvarado and Ms. L.R. submitted briefs and extensive evidence demonstrating that the conditions, respectively, in Guatemala and Mexico met these requirements. The DHS agreed, and the immigration judges handling the cases granted asylum to Rody Alvarado in December 2009, and to Ms. L.R. on August 4.

The victories in these cases are significant - for the two women who now have the protection they so desperately sought - as well as for the message they send. However, neither of these grants of asylum are legally binding on other adjudicators because decisions by immigration judges do not have precedential value. Therefore advocates on the issue continue to argue for clear national guidance - in the form of regulations or legislation, to prevent retrenching or backtracking on this issue.

Although it might seem like an easy next step to translate the progress exemplified by the grants of asylum to Ms. Alvarado and Ms. L.R., into regulations or legislation, continued hostility to the protection of women refugees continues from some quarters. For example, the grant to Rody Alvarado prompted the Center for Immigration Studies, which is generally perceived as being restrictionist in its position on immigration policies, to issue a harsh - and for the most part, distorted - critique of the policy of granting protection in cases such as these.

It would require a longer, and much more technical article than this to respond one by one to the distortions and inaccuracies in the CIS piece. However, in concluding, it is worth noting that the policy of granting asylum in gender-based claims - including claims of domestic violence - is nothing novel or revolutionary. To the contrary, it is well-accepted under international norms, as well as pursuant to the domestic law of many refugee-receiving countries. The United Nations High Commissioner for Refugees (UNHCR) has made recommendations for such acceptance beginning in the 1980s, and the high courts of the United Kingdom, Australia, and New Zealand - to name a few - have landmark decisions recognizing the validity of such claims. Many other countries have addressed the issue of protection in these cases through formal guidelines for their adjudicators, or through legislation or regulations. In that light, the move towards acceptance in U.S. law - although welcome - is a bit late in coming for a country that likes to see itself as a leader in championing the human rights of women.

 

Alberto Gonzales is not making news when he calls the nation's immigration system broken. The current administration and other individuals and entities say the same thing about the nation's system of handling undocumented workers and families.

But, the former Attorney General, who left his post during the George W. Bush administration because of increasing tensions with Congress and some outrageously poor legal advice, such as maintaining that the Geneva Conventions' restrictions on interrogating military detainees do not apply to America's war efforts in Iraq and Afghanistan, has offered more opposition to talk of undoing the Constitution's 14th Amendment.

In a column for The Washington Post, Gonzales adds his voice to other conservatives who have come out against Sen. Lindsey Graham's argument that the 14th Amendment's citizenship clause should be repealed. That clause guarantees citizenship to anyone born in the country regardless of race, color or status of one's parents or ancestors. As noted by Professor Garrett Epps in a piece for The Atlantic, Graham's call for trashing the 14th Amendment, which was joined by a gaggle of other conservative senators, is all about riling voters during the midterm elections, noting that talk of constitutional amendments often crops up during election time (think Bush I's promotion of an amendment to ban flag burning, and Bush II's use of the federal marriage amendment).

Gonzales says he opposes amending the constitution because such action "should be reserved for extraordinary circumstances that we cannot address effectively through legislation or regulation. Because most undocumented workers come here to provide for themselves and their families, a constitutional amendment will not solve our immigration crisis."

He continues that an immigration policy, among other things, should "promote commerce and strengthen our economy."

For more discussion on immigration reform watch video of a discussion between Labor Secretary Hilda L. Solis and the AFL-CIO's Richard Trumka here. Video of a plenary panel discussion at the 2010 ACS National Convention, "Immigration Reform: Congress and the States," is here.

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By Billy Corriher. Mr. Corriher is a 2010 ACS Public Interest Fellow and 2009 graduate of Georgia State University College of Law.

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A recent study from the nonpartisan Pew Hispanic Center found that, in 2008, eight percent of the children born in the U.S. had at least one parent who was an undocumented immigrant. If some Republican senators would have their way, however, those children would be forced to live in the shadows of our society, like their undocumented parents.

The 14th Amendment guarantees that anyone born in the United States is a citizen entitled to all of the rights and privileges associated with citizenship. Senator Lindsey Graham recently made headlines for calling this first clause of the 14th Amendment "a mistake." In a Fox News interview, Graham said, "We can't just have people swimming across the river having children here - that's chaos." Graham and other Republicans have proposed that we repeal the "birthright citizenship" clause.

After the Civil War, Congress passed the 13th Amendment to eradicate slavery, and the 14th Amendment guaranteed that children of freed slaves would be considered citizens. The 14th amendment also overruled the Supreme Court's iniquitous Dred Scott decision, which held that black persons could never be citizens of the United States. For the past 150 years, all persons born in the United States, regardless of color or ancestry, have been considered citizens. Now, Graham says he wants to change this because illegal immigrants "come here to drop a child."

The idea that the 14th Amendment serves as an incentive for illegal immigration is preposterous. The Pew Hispanic Center study found that over 80 percent of the mothers had been in the United States for more than a year, and over half have been here for over five years. The only incentive that immigrants need is the opportunity to build a better future. For 150 years, hard working immigrants have viewed America as the Promised Land, and they came here to build this country with their hands.

Of course, there have been times in our history when Americans reacted very harshly to immigration. Chinese immigrants, for example, were sometimes persecuted in the American West, and Congress passed discriminatory legislation, like the Chinese Exclusion Act of 1882. These periods of anti-immigrant sentiment often corresponded with economic crises, when immigrants were viewed as competition for jobs. When times are tough, immigrants are easy targets for opportunistic politicians. Senator Graham and others are now scapegoating immigrants, and this effort to exploit fear of immigrants during this economic crisis harkens back to dark periods in our nation's history.

Fortunately, Republicans face an uphill battle to repeal the birthright citizenship clause. Constitutional amendments require the approval of a supermajority in Congress and ratification by three fourths of the state legislatures. A recent poll by a group affiliated with the Pew Hispanic Center found that 56 percent of Americans oppose repealing this provision of the 14th Amendment.

Our country has struggled to come to grips with racial and ethnic diversity throughout its history. The 14th Amendment played a crucial role in creating the tolerant society that we live in today. It is the foundation of Brown v. Board of Education and Roe v. Wade. Republicans now want to roll back the clock. This appeal to nativism is politics at its worst.

Instead of stoking xenophobia, our leaders should propose constructive ways to fix our country's broken immigration system. Republicans like Graham and Senator John McCain were once leading the way in this effort. Americans must push for comprehensive immigration reform that includes a path to citizenship for the millions of undocumented immigrants living here. The federal government allowed the current situation to develop in recent decades by failing to address the immigration issue. Millions of children have been born to parents who fear the law, and now, heartless politicians want to punish these children for the mistakes of their mothers. We cannot relegate these children to living in the shadows with their parents.

Congressional conservatives' call for repealing or examining the possibility of undoing the citizenship clause of the 14th Amendment continues to draw sharp scrutiny and even some befuddlement.

In a column for The Washington Post, Harold Meyerson tags the "Republican war on the 14th Amendment" as one against Latino voters who may pose a threat to the GOP.

Meyerson writes:

By proposing to revoke the citizenship of the estimated 4 million U.S.-born children of undocumented immigrants - and, presumably, the children's children and so on down the line - Republicans are calling for more than the creation of a permanent noncitizen caste. They are endeavoring to solve what is probably their most crippling long-term political dilemma: the racial diversification of the electorate. Not to put too fine a point on it, they are trying to preserve their political prospects as a white folks' party in an increasingly multicolored land.

As noted by Meyerson, recently Post columnist E.J. Dionne wondered whether Republicans leading the attacking on the Constitution's clause that guarantees citizenship to all born here "really want to endanger your party's greatest political legacy by turning the 14th Amendment to our Constitution into an excuse of election-year ugliness?"

In a follow-up to his stinging critique of leading Republicans' attacks on the citizenship clause, University of Baltimore School of Law Professor Garrett Epps, notes in another piece for the Atlantic "a powerful movement urging Congress and the courts simply to ignore the Citizenship Clause and pass laws purporting to strip citizenship from American children because of their parents' immigration status."

Epps writes:

When (as even its supposed proponents know will happen) the constitutional amendment proposal is dropped after the election, there will remain demand that the courts simply re-interpret the Clause.

As a matter of constitutional interpretation, it ought to be a tough sell. The language of the Clause is pretty sweeping: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." But the nativist right has begun to explain that the "original intent" of the Clause is different from what it says.

"Originalism" in this context means the use of clever arguments and partial quotations to eradicate the actual text of an argument. I mean no disrespect to the many fine scholars who work hard to recover the "original public understanding" of the Constitution's language. Their work is often provocative and valuable, even if rarely conclusive. But the rhetoric of "original intent" is sometimes misused by very unscholarly figures as a tool to silence questions about far-right constitutional theories.

A clear text, like the Citizenship Clause, can slowly be covered over by barnacles of quibble and questionable historical assertion, until legislators and even judges are convinced that it can't mean what it says. This stealth technique of legal change illustrates a saying of that wise old psychologist, Samuel Johnson: "Reason by degrees submits to absurdity, as the eye is in time accommodated to darkness.''

For additional analysis of the 14th Amendment and the Reconstruction era, see Stanford Law School Professor Pamela Karlan's comments at a 2010 ACS National Convention plenary panel discussion here.

[image via commons.wikimedia.org]

Following a tired and cynical election-year tactic politicians are openly talking about amending the Constitution, writes University of Baltimore School of Law Professor Garrett Epps for the Atlantic.

Like amendments promoted to ban flag burning and restrict marriage, senators, such as Lindsey Graham of South Carolina of have garnered national attention for disparaging the citizenship clause of the 14th Amendment, suggesting its repeal or hearings to consider altering it. The clause guarantees citizenship to all people born in the United States.

Epps writes that these lawmakers are showing "contempt for the document American office holders are sworn to uphold," and that too many citizens and "even some judges, seem not to understand the function of this amendment. It is, not to put too fine a point on it, the part of the Constitution that makes America a democracy. We meddle with it at our peril."

Epps continues:

The Fourteenth Amendment is the only place in the Constitution where the idea of human equality is recognized. Certainly the Framers of 1787 never endorsed it: they constructed a government with classes of people carefully defined in a hierarchy, beginning with "free persons" and descending through "Indians not taxed" to "other persons," the noxious euphemism they used for "slaves." They put in place a Bill of Rights that limited the federal government but placed no bar in the path of oppressive state laws restricting free speech, voting rights, or due process.

At the end of the Civil War, the victorious Union Congress created an amendment (by far the longest and most important in the Constitution) to ensure democratic politics and human rights wherever the American flag flies. Section One of the Amendment does the following. First, it makes every person born in the U.S. a citizen of the nation and of the state in which he or she lives. (This reversed the Supreme Court's Dred Scott decision that citizenship was a gift of the majority to favored groups or races.) Second, it applies the Bill of Rights to all persons in the states; and third, it bars any state from denying any person "the equal protection of the laws."

The professor notes that if the nation were to support yanking citizenship from "children born here, we create a new class of untouchables, born to suffer and serve."

He continues, "The children of immigrants are, whether their parents are ‘legal' or ‘illegal,' our fellow Americans. They've violated no law, and committed no crime."

During a panel discussion at the 2010 ACS National Convention on the roles of Congress and the Courts, Pamela Karlan, a Stanford Law School professor, noted that the Reconstruction Amendments - the 13th, 14th and 15th Amendments - provided "Congress special power to enforce by appropriate legislation the guarantees that go into the rights of citizenship, the guarantees of the privileges or immunities clause, the equal protection, and the due process clause." The framers of the Reconstruction Amendments, Karlan continued, "gave Congress that power in part because they distrusted the Supreme Court. I mean today the Supreme Court is living off the fumes of Brown against Board of Education, that's why it has such power in country." But Karlan noted, during the middle of Reconstruction, the high court, was "living off the fumes of Dred Scott," and the high court "was not the place you went to get equality, you went to the legislature." See here for video of the entire panel discussion.

[image via commonswikimedia.org]

Editor's Note: The following essay was originally published as a "Perspective," in the June 9 edition of the Los Angeles Daily Journal and is reprinted with the permission of Daily Journal Corp. (2010). Following the post is an addendum for ACSblog, in which Professor Bryan H. Wildenthal offers additional thoughts on the recent Republican proposals to amend, or consider amending, the 14th Amendment Citizenship Clause.

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By Bryan H. Wildenthal, Professor of Law, Thomas Jefferson School of Law in San Diego, Calif. Professor Wildenthal has published several major articles on the history and meaning of the 14th Amendment, one of which was cited five times by the U.S. Supreme Court in McDonald v. Chicago, 130 S.Ct. 3020 (2010); id. at 3033 n. 10 (Opinion of the Court by Alito, J.) (two citations); id at 3072 n. 10, 3073 n.12, and 3079 (Thomas, J., concurring in part and concurring in judgment).

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Should children born on American soil obtain "birthright" U.S. citizenship, even if their parents are not legal immigrants? Rep. Duncan D. Hunter, (R-CA), and "Tea Party" Republican Rand Paul, the Kentucky U.S. Senate candidate, are among many who say no. Hunter is co-sponsor of a bill seeking to strip citizenship from all future children born to non-citizens (even those legally residing here on student or work visas), unless at least one parent has legal permanent residence or serves in the U.S. armed forces. The bill is perversely numbered H.R. 1868, for the year the 14th Amendment to our Constitution was ratified. That great amendment, which built upon our Bill of Rights, defines citizenship and guarantees the basic rights of both citizens and all "persons" (including non-citizens). It declares, in part: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

So-called "conservative" politicians, and especially "Tea Party" activists, claim to respect the "original meaning" of our Constitution, and criticize liberals and progressives for allegedly failing to do so. But it is right-wing radicals like Paul and Hunter who should pay closer attention to the text and history of the Constitution, which stand flatly opposed to their views. H.R. 1868 would betray and violate the core meaning of the 14th Amendment.

This issue was settled more than a century ago. The Supreme Court, in U.S. v. Wong Kim Ark (1898), rejected the idea that the status of parents (in that case, Chinese immigrants ineligible for U.S. citizenship and allegedly "subject" to a "foreign power") barred citizenship for their children born under American jurisdiction. The 19th century cases, like the original debates over the 14th Amendment in 1866-1868, make clear that only a handful of narrow exceptions apply to the concept of "jurisdiction" -- mainly children born to foreigners with diplomatic immunity or within America's Indian Nations as they existed at that time. (Tribal member Native Americans, while generally subject to federal jurisdiction today, were mostly not considered U.S. citizens in the 19th century; they were fully naturalized only in 1924.)

No one can seriously dispute that an illegal immigrant is "subject to [U.S.] jurisdiction." How else would this country have jurisdiction to arrest and deport such immigrants, or prosecute them for immigration or other crimes they may commit, as the federal and state governments routinely do?

This rule of birthright citizenship was precisely what was intended and understood by the supporters of the 14th Amendment -- ironically, Republicans of the "Party of Lincoln" that fought to end slavery and advance racial equality. Paul and Hunter would betray not only the Constitution, but the greatest legacy of their own party! The Republicans of the 1860s sought to ensure that America would forever be a land of equality, free of caste or hierarchy based on race, nationality, or the status of one's parents. The legal status of a human being, born breathing American air within U.S. jurisdiction, should not be inherited or dependent on the status or conduct of parents over which the child has no control. That would harken back to the era of slavery and feudalism ended by the Civil War.

The racist opponents of the 14th Amendment tried to defeat it by raising a ruckus over the fact that it would grant citizenship, not just to African American former slaves and their children, but also to the children of Chinese immigrants and the nomadic Roma (so-called "Gypsy") people. California, in fact, refused to ratify the Amendment due mainly to hysteria over Chinese immigration. Hunter should pay heed to the courage of his California Republican forebear, Sen. John Conness (an Irish immigrant himself; Mount Conness in the Sierra Nevada is named in his honor). In 1866, Conness scornfully dismissed the immigrant-bashing of his day; he supported the 14th Amendment precisely in order "to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights...."

The United States did not regulate most immigration in the late 19th century, so there was no precise legal analogy then to today's "illegal alien." But the Roma people were viewed then as an outlaw population. "Legal" immigration at that time was mostly undocumented and effectively uncontrolled, much like illegal immigration today. The waves of migrants seeking economic opportunities aroused great fear and prejudice, just like today. Chinese and other Asian immigrants (those not born on U.S. soil) were prohibited at that time from ever obtaining citizenship, even as their work was exploited to build America's railroads and develop the country.

Yet the citizenship of their children was rightly respected. Who today would deny that was the right choice for America's future? The children of today's migrants born on U.S. soil are also part of America's future, and their birthright includes the 14th Amendment that guarantees freedom for us all. We should honor that birthright.

ADDENDUM for ACSblog:

It is sad and interesting, but not very surprising, that extremist rightwing attacks on birthright citizenship have recently broken through into the top leadership of the Republican Party, including Senate Minority Leader Mitch McConnell (R-KY), Sen. Lindsey Graham (R-SC), and Sen. John McCain (R-AZ), the 2008 presidential nominee.

The latter two were previously viewed as "moderates" on immigration and other issues (Graham, just a few days ago, was one of only five Republicans voting to confirm Justice Elena Kagan). About half the Republican members of the House are now co-sponsoring H.R. 1868. This is fast becoming an orthodox and dominant position within the Republican Party (pushed by its angry "Tea Party" faction), a truly sickening historical irony as noted above. Graham has voiced outright support for amending the 14th Amendment to repeal birthright citizenship for children of illegal immigrants. McCain, McConnell, and others say the idea deserves a hearing.

But the issue causes great discomfort for Republican strategists with a grip on long-term reality. They know this noxious proposal (deeply offensive to most Latino Americans, as it is to many other Americans) poses extreme electoral danger to Republicans. McCain may find this issue (like his betrayal on fighting global warming) helps him win a contested Republican primary in Arizona, and perhaps even a general election (this year). But as Latinos form a steadily growing part of the voting population in much of the country, especially southwestern GOP strongholds like Texas and Arizona, Republicans face a devastating political hangover from this particular cup of tea.

The justifiably angry Latino reaction to Republican immigrant-bashing in California in the 1990s played a huge role in that state's dramatic shift from proud supporter of native sons Nixon and Reagan, to swing state, to the Democratic stronghold we know today. Many political observers think the same thing could already be happening in Texas, which explains why most Texas Republicans, including former President George W. Bush and even current far-right Gov. Rick Perry, have tried to tread far more carefully on the subject.

But apparently Senators Graham, McCain, McConnell, and an increasing number of other top Republicans just don't care. In order to appease the Mad Hatters of the Tea Party, and their own rightwing constituencies in states like Arizona and South Carolina, they are willing not only to betray the greatest historical legacy of their own party, but also to endanger its very future. To which I would say (echoing a certain former Republican president), "Bring it on!"

 

 

Leaders of the Tea Party have already drawn some notice for their calls for repealing constitutional amendments, now some leading Republican senators appear interested in joining the movement - at least in the context of debate over immigration reform.

Sen. Lindsey Graham (R-S.C.) told Fox News that the 14th Amendment's guarantee of birthright citizenship - anyone born in the country regardless of race, color or status of one's parents or ancestors - ought to be fundamentally altered. "We should change our Constitution and say if you come illegally and you have a child, that child is automatically not a citizen," Graham told the cable network.

Senate Minority Leader Mitch McConnell (R-Ky.) and Minority Whip Jon Kyl (R-Ariz.) are also considering placing the 14th Amendment's birthright citizenship clause in the crosshairs, The Hill reports.

McConnell told The Hill that Congress "ought to take a look at" changing the 14th Amendment. "I think we ought to take a look at it - hold hearings, listen to the experts on it," he said. "I haven't made a final decision about it, but that's something that we clearly need to look at. Regardless of how you feel about the various aspects of immigration reform, I don't think anybody thinks that's something they're comfortable with."

The Hill also notes that during an interview with CBS's "Face the Nation," Kyl also expressed discomfort with the provision, saying "we should hold hearings and hear first from the constitutional experts to at least tell us what the state of the law on that proposition is."

Kyl and the other senators should take a look at work from the Constitutional Accountability Center's (CAC) Elizabeth Wydra.

In an ACS Issue Brief, "Birthright Citizenship: A Constitutional Guarantee," Wydra wrote:

A close study of the text of the Citizenship Clause and Reconstruction history demonstrates that the Citizenship Clause provokes birthright citizenship to all those born on U.S. soil, regardless of the immigration status of their parents. Perhaps more importantly, the principles motivating the Framers of the Reconstructions Amendments, of which the Citizenship Clause is a part, suggest that we amend the Constitution to reject automatic citizenship at the peril of our constitutional values. To revoke birthright citizenship based on the status and national origin of a child's ancestors goes against the purpose of the Citizenship Clause and the text and context of the Fourteenth Amendment.

See Wydra's entire ACS Issue Brief here (pdf).

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By Pratheepan Gulasekaram, Assistant Professor, Santa Clara University School of Law. Professor Gulasekaram teaches Constitutional Law, Immigration, and Citizenship.

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As most are aware by now, a federal district court preliminarily enjoined key parts of Arizona's controversial anti-illegal immigrant law, SB 1070, ruling for the federal government in its suit against the State of Arizona. The law's opponents heralded the decision as a carefully crafted one that deals a blow to anti-immigrant forces. Here, I will briefly explain that while I believe the decision stands on firm constitutional ground, and immigrants and immigrant-advocates are justified in celebrating this preliminary outcome, it is not a complete victory.

As an initial matter, I think Judge Bolton's opinion is constitutionally sound. It does not rest on new-fangled legal theories or the acceptance of previously unrecognized suspect classes under the constitution. Instead, the decision analyzes the Arizona law under well-worn principles of federalism. It relies on decades-old Supreme Court precedent like Hines v. Davidowitz and DeCanas v. Bica, both cases addressing state lawmaking directed at non-citizens, with the former striking down an alien registration requirement similar in spirit to parts of the Arizona law. Applying this federalism framework to SB 1070, the court correctly predicted that Arizona's law is highly likely to impermissibly affect citizens and legal residents of the United States even if they are not its target, require the redirection of some federal resources, and create penalties and liabilities for undocumented persons that are not contemplated by federal law.

In addition, from the perspective of someone who teaches this area of law, I fully endorse the court's conclusion that the section of SB 1070 allowing police officers to conduct a warrant-less arrest of a person, when the officer has probable cause to believe that person has committed an offense that makes that him or her removable, is well-beyond the bailiwick of local law enforcement. Such a provision might make sense if determinations of legal status and deportability were a simple matter. However, as Judge Bolton accurately noted, determinations of removability require the careful analysis of several complex and interrelated portions of the immigration code, and are dedicated by federal law to the expertise of immigration judges and federal appellate courts. If such determinations were as lucid as the Arizona law would suggest, immigration professors could save several classes each semester attempting to decipher imprecise terms such as "crimes of moral turpitude" and "aggravated felonies," along with the various exceptions and waiver possibilities that accompany those designations.

Yet, despite the federal government's prevailing on key provisions of the law, it is also worth noting a few aspects of the decisions that render it an incomplete victory for immigrants and immigrant-advocates. First, Judge Bolton expressly noted that she was not enjoining sections 1 or 2 of SB 1070. Section 1 clarifies that the law's intent is to "make attrition through enforcement" a state-wide public policy, and to "discourage and deter" the unlawful entry, presence, and economic activity of unlawfully present persons. In preserving this section, Judge Bolton stated "the Court cannot enjoin a purpose; the Arizona Legislature is free to express its viewpoint and intention as it wishes." By leaving intact the law's expressly severe intent, the court saved a symbolically meaningful portion of the law, implicitly suggesting that immigration deterrence can be a legitimate pursuit of state lawmaking. Section 2 effectively prevents localities within Arizona from enacting "sanctuary" type ordinances. In declining to enjoin section 2, the court allowed the state to suppress dissent from localities within Arizona that might employ sanctuary-type ordinances to signal their acceptance of undocumented immigrants. Together, these surviving sections serve important expressive functions. Despite suffering a critical setback on several operative sections of the law, Arizona public officials likely have already been successful in creating an inhospitable atmosphere for immigrants, whether lawfully present or not.

Second, the opinion is also notable for what it does not include - namely, it contains no mention of the law's potential infirmities under the constitution's equal protection and due process guarantees. The avoidance of these constitutional standards, and sole reliance on federalism principles, probably helps insulate Judge Bolton's decision from reversal on appeal. However, in the long run, for immigrants and immigrant advocates, I worry about continued use of a structural norm to evaluate the problems caused by the unequal treatment of a class of persons. While federal power and preemption rationales, in this instance, led to the invalidation of several odious portions of a sub-federal law, the opinion's singular reliance on them further entrenches federal immigration regulation as a subject beyond the scope of searching judicial scrutiny. Perhaps the federal government will not be as restrictive or as punitive towards undocumented persons as Arizona's current legislature and executive officers are. But, this uncertainty is part of the long-term cost of court decisions, like the one at hand, that mask the important ways in which immigration regulation can create second-class forms of membership in American society and circumvent personhood standards that would apply to other politically vulnerable and unpopular groups singled out by law.

 

 

U.S. District Judge Susan Bolton has issued a preliminary injunction blocking key portions of the Arizona immigration law scheduled to take effect tomorrow.

The Associated Press reports that the law will take effect, "but without many of the provisions that angered opponents -- including sections that required officers to check a person's immigration status while enforcing other laws. The judge also put on hold a part of the law that required immigrants to carry their papers at all times, and made it illegal for undocumented workers to solicit employment in public places." 

Before the judge's ruling, The Arizona Republic reported that uniformity among police authorities on enforcement was lacking.

Supporters of the law, SB 1070, the newspaper reports had hoped it would help uniformity among the various counties on enforcement. "But a survey of Arizona police agencies indicates there is anything but a uniform approach," The Republic reports. The law requires police officers, during the enforcement of other laws, to question a person's immigration status if the officers have a reasonable suspicion that the person is in the country illegally. The law also makes it a crime for immigrants not to carry immigration documents. But Judge Bolton's ruling, which came after hearings on three of the seven federal lawsuits challenging the law, puts a halt, for now, on those portions of the law, The Republic reported. In her ruling, Judge Bolton said the Department of Justice "was likely, but not certain, to prevail on those points [that it is better to place a preliminary injunction on a law likely to be judged later as pre-empted by federal law, among others] at a later trial in federal court, The New York Times reported. It also noted that the judge had made "no ruling on the six other suits that also challenged the law."  

Beyond the legal challenges, the law has attracted widespread criticism. The Times recently editorialized, that the law is constitutionally suspect because "Only the federal government can set or enforce immigration policy."

Beyond watching a video of training standards, The Republic noted that police departments across the states are taking varying approaches. The Washington Post reported that "the hardest-line approach is expected in the Phoenix area, where Maricopa County Sheriff Joe Arpaio plans his 17th crime and immigration sweep."

The Republic, after citing some of the varying enforcement tactics, concluded that the approaches "are a reflection of the confusion that persists among agencies tasked with enforcing the law ...."

Mark Spencer, president of the Phoenix Law Enforcement Association, blasted the law, noting that it would add to the burden of the U.S. Immigration and Customs Enforcement (ICE).

"In light of the state statute, you have policy that appears to be designed to be costly, invasive or intrusive to citizens and burdensome to ICE," he said. "You take those three ingredients, and you have a policy that appears designed to undermine the rule of law."

The newspapers also noted that opponents of the law are planning protests within the state. Liz Hourican of CodePink told The Post that the group plans to "block the driveway for immigration officers in downtown Phoenix."

Recently Labor Secretary Hilda L. Solis and AFL-CIO President Richard Trumka discussed the immigration system and how it affects the economy and needs to be reformed. Secretary Solis and Trumka agreed that a path for immigrants to become documented needs to be found. Video of that discussion is available here.

For additional analysis of the Arizona law, see video here of a panel discussion on the topic from the 2010 ACS National Convention. Following that panel discussion, MALDEF leader Thomas A. Saenz talked with ACSblog about immigration reform. His interview is available here.

The immigration system is broken and the situation urgently calls out for lawmakers on both sides of the aisle to come together and find a way to fix the system, said Labor Secretary Hilda L. Solis in a recent discussion with Richard Trumka, president of the AFL-CIO. The discussion, led by Jaime Zapata, senior managing director of the Labor Department's Office of Public Affairs (OPA), touched upon why the immigration system currently undercuts the nation's economy and ways to reach reform.

Secretary Solis said the immigration system "isn't helping those legitimate businesses and those employees right now that are getting shortchanged because there's an employer who doesn't want to play by the rules, is not paying back taxes or is not paying into the system," which ultimately "robs our economy of those revenues." Solis added, "Yes, we have to crack down on the border and make sure the criminals are taken out of this country, but at the same time we have to protect all workers." The Secretary said a pathway must be created for those immigrants willing to follow the rules to become documented. She said that it is simply impossible to deport 11 million people, destroying families and depriving the economy of many people who provide it great innovations.

Trumka urged immigration reform, maintaining that the current system negatively affects all workers. "If we're going to create an economy that really does work for all workers, immigration has to be fixed because it is a terribly broken system that is being exploited and creating a permanent underclass of citizens that is being used to drive down wages, so we have to eliminate that," he said.

Trumka added, "This nation was built on the notion that we embrace immigration."

Watch video of the entire discussion here or by clicking on the picture. For additional discussion of immigration reform, watch video of a plenary panel from the 2010 ACS National Convention called "Immigration Reform: Congress and the States." In addition, following that panel discussion, Thomas A. Saenz, president and general counsel of MALDEF, talked with ACSblog about the need for greater public education surrounding immigration reform. Video of the interview, which can be downloaded as a podcast, is available here.