The Rights of Immigrants -ACLU Position Paper

September 8, 2000

"This country has grown and prospered in a climate of constant refreshment by the introduction into our midst of adventurous spirits willing to leave the security and predictability of what they knew in the lands and rulers they adjured for the hope of full equality of rights and opportunities within our borders." 

Since this nation's founding, more than 55 million immigrants from every continent have settled in the United States. In fact, with the exception of Native Americans, everyone living in this country is either an immigrant or the descendent of voluntary or involuntary immigrants. Yet every wave of immigration has faced fear and hostility, especially during times of economic hardship, political turmoil, or war: 

  • During the depression of the 1840s, mobs hostile to immigrant Irish Catholics burned down a convent in Boston and rioted in Philadelphia.   
  • In 1882, Congress passed the Chinese Exclusion Act, one of our nation's first immigration laws, to keep out all people of Chinese origin.   
  • During the "Red Scare" of the 1920s, thousands of foreign-born people suspected of political radicalism were arrested and brutalized. Many were deported without a hearing.   
  • In 1942, 120,000 Americans of Japanese descent had their homes and other property confiscated, and were interned in camps until the end of World War II. During the same period, many Jews fleeing Nazi Germany were excluded under regulations enacted in the 1920s.   
  • In the 1950s, a government program targeted Mexicans, exclusively, for deportation. 

The situation today differs little from that of years past. Fanned by anti-immigrant extremists, and based largely on myths about immigration's effects on the nation's economy, a virulent anti-immigrant movement has been seeking to curtail the rights of many individuals living in the United States. In 1994 California voters adopted "Proposition 187," which denied most basic services to anyone suspected of not being a citizen or legal resident Ð including education, health and social services. In 1996, President Clinton signed into law the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (the new welfare law), which took a wide range of federal benefits and services away from both undocumented and legal immigrants, including food stamps and Supplemental Security Income. (SSI benefits were later restored, but only for those immigrants who entered the country before August 22, 1996, the day the law went into effect). That same year the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) was adopted, foreclosing immigrants from challenging abusive practices and policies of the Immigration and Naturalization Service (INS) in court. 

It is true that the Constitution does not give foreigners the right to enter the U.S. But once here, it protects them from discrimination based on race and national origin and from arbitrary treatment by the government. Immigrants work and pay taxes; legal immigrants are subject to the military draft. Many immigrants have lived in this country for decades, married U.S. citizens, and raised their U.S.-citizen children. Laws that punish them violate their fundamental right to fair and equal treatment. The Immigrants' Rights Project of the ACLU was established in 1985 to challenge unconstitutional laws and practices, and to counter the myths upon which many of these laws are based. The Project has become one of the nation's leading advocates for the rights of immigrants, refugees and non-citizens. 

IMMIGRATION: MYTHS AND FACTS 

Myth: U.S. Borders are Out of Control 

Fact: Much of the anti-immigrant sentiment in this country is based on the unfounded fear that illegal immigrants are pouring over our borders in unprecedented numbers. In fact, the vast majority of immigrants in our country have entered legally under the strict standards imposed by the Immigration and Nationality Act. The Act allows approximately 800,000 people to settle here each year as permanent residents including about 480,000 who are admitted to reunite with their spouses, children, parents and/or siblings; about 140,000 who are admitted to fill jobs for which the U.S. Department of Labor has determined no American workers are available; about 110,000 refugees who have proven their claims of political or religious persecution in their homelands; and about 55,000 who are admitted under a "diversity" lottery, begun in 1990, that mainly benefits young European and African immigrants. 

It is impossible to determine with any precision how many immigrants take up residence in the U.S. each year without permission, but there is now evidence that the numbers used by anti -immigrant organizations and politicians have been greatly exaggerated. During his 1996 presidential bid, for example, Patrick Buchanan claimed that the undocumented Mexican population was growing by a million or more a year. But according to the 1997 report issued by the Binational Study on Migration and commissioned by the U.S. and Mexican governments, the annual average is closer to 105,000 Ð only one-tenth of Buchanan's figure. The total number of people from all countries who entered illegally or overstayed their visas in 1996 was estimated by the INS to be 275,000, again a fraction of Buchanan's claim, and less than one-tenth of one percent of the U.S. population. 

Myth: Immigrants take jobs away from American Workers

Fact: Most economic experts who have studied the relationship between immigration and U.S. employment report that immigrants create more jobs than they fill. They do this by forming new businesses, raising the productivity of already established businesses, investing capital and spending dollars on consumer goods. A 1994 study by Ohio University researchers, for example, found "no statistically meaningful relationship between immigration and unemployment....[I]f there is any correlation, it would appear to be negative: higher immigration is associated with lower unemployment." Studies by the Rand Corporation, the Council of Economic Advisors, the National Research Council and the Urban Institute all came to the conclusion that immigrants do not have a negative effect on the earnings and the employment opportunities of native-born Americans.

Myth: Immigrants Drain our Social Services

Fact: The Urban Institute has concluded that "immigrants actually generate significantly more in taxes paid than they cost in services." This is because undocumented workers, despite their ineligibility for most federal benefits, frequently have Social Security and income taxes withheld from their paychecks. In fact, immigrants pay substantially more in taxes every year than they receive in welfare benefits. 

As a result, one commentator has pointed out, "a senior citizen on Social Security who lives in rural Kentucky is indirectly being subsidized by an immigrant who washes dishes in a chic restaurant in Santa Monica." Another commentator recently proposed that the best solution to the Social Security crisis caused by the aging of the baby boomers is to encourage immigration in order to create "instant adults" who will begin working immediately and paying into the Social Security system. 

TROUBLE AT THE BORDER

The INS' broad and virtually unchecked power to turn people back at the border has led to a long and shameful history of unjustified government violence against men, women and children whose only crime is attempting to enter the U.S. from Mexico.

The violence is often unprovoked. Beatings, sexual assaults and even fatal shootings by U.S. Border Patrol agents against unarmed Mexican nationals are far too common. Juanita Gomez' experience was not unique. In 1993 this 22-year-old woman crossed the Mexico-Arizona border to shop on the U.S. side. She was stopped by a Border Patrol agent who abducted Gomez in his official vehicle and raped her. In 1994, 37-year-old Mario Fernandez was spotted by a Border Patrol agent near the Mexico-California border. He was handcuffed, thrown to the ground, kicked in the jaw, and then denied medical treatment for two days while in detention. He later required three operations to repair his badly damaged jaw which had become infected. These and many other incidents have prompted Human Rights Watch to call the border situation "one of the worst police abuse problems in the country."

The violence also usually goes unpunished. Abusive Border Patrol agents are rarely held accountable for their actions, and, fearing reprisals, few victims file complaints. When complaints are filed, they are often ignored, inadequately investigated, or simply abandoned.

The violence is inhumane. One recently adopted Border Patrol tactic, Operation Gatekeeper, seeks to deter migrants from traditional passage routes. Although some anti-immigration zealots extol Operation Gatekeeper's success at border control, the human toll has been very high: In the first ten months of 1997 alone, at least 72 people have died trying to traverse treacherous alternative passages over 5,000-foot Tecate mountains or through the 120-degree heat of the Imperial desert.

The ACLU and other human and immigrants' rights groups have long advocated greater government accountability as the only way to deter border violence and abuse.

THE RIGHTS OF IMMIGRANTS

In decisions spanning more than a century, the U.S. Supreme Court has ruled that the Constitution's guarantees apply to every person within U.S. borders, including "aliens whose presence in this country is unlawful." On the other hand, the Court has said that when the federal government uses its broad powers to supervise immigration into this country, it can exercise those powers in ways that discriminate on the basis of "alienage." In other words, the government has the power to decide who to let into the country and under what circumstances. But once here, even undocumented immigrants have the right to freedom of speech and religion, the right to be treated fairly, the right to privacy, and the other fundamental rights U.S. citizens enjoy. 

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Since immigrants don't have the right to enter the U.S., those who are not here legally are subject to deportation. The Immigration and Naturalization Service (INS) has the authority to question "any person believed to be an alien as to his right to be in the United States." But in a 1903 case called Yamataya v. Fisher, the U.S. Supreme Court ruled that the INS could not deport someone without a hearing that meets constitutional due process standards. Since then, procedural rights for undocumented immigrants have evolved so that today, in spite of Congress' attempts to curtail these rights, most people facing deportation are entitled to:

  • a hearing before an immigration judge and review, in most cases, by a federal court;   
  • representation by a lawyer (but not at government expense);   
  • reasonable notice of charges, and of a hearing's time and place;   
  • a reasonable opportunity to examine the evidence and the government's witnesses;   
  • competent interpretation for non-English speaking immigrants, and   
  • clear and convincing proof that the government's grounds for deportation are valid.

What's Wrong With "English Only" Laws?

"English Only" laws, which declare English to be the country's official language and bar government employees from providing non-English language assistance and services, are inconsistent with both the First Amendment right to communicate with or petition the government, and the right to equality. They are also unnecessary and sometimes even dangerous to both individuals and the public. Currently enforced in eighteen states, some "English Only" laws are written so broadly that they forbid non-English government services such as assistance to recipients of benefits, applications for drivers' licenses, and bilingual education.

Current "English Only" laws are based on the false premise that today's immigrants who come from Asian and Spanish-speaking countries will not learn English without government coercion. In fact, the vast majority of Asian and Latino immigrants are acquiring proficiency in English just as quickly, if not faster, than earlier generations of Italian, Russian and German immigrants. Moreover, only 4% of the U.S. population over the age of five does not speak English.

The problem is not that immigrants are unwilling to learn English, but that there are not enough available educational resources for them. Today, many thousands of immigrants throughout the country are on the waiting lists for adult English classes. English-only laws do nothing constructive to increase English proficiency, they simply discriminate against and punish those who have not yet learned English.

IN SEARCH OF ASYLUM

Every year, men, women and children come to our shores seeking safe haven from political and social persecution. The U.S. is bound by both international and domestic law to open its doors to those who have a "well-founded fear of persecution" on account of race, religion, nationality, political opinion or membership in a particular social group. Although hundreds of thousands of political refugees have been admitted into the U.S. since World War II, our government has too often been guided by political, rather than humanitarian, considerations and countless numbers of people have been returned to their countries of origin only to be jailed, tortured and even killed.

The politicization of the asylum process reached a peak during the Reagan years. During the 1980s, the government denied 97% of Salvadoran and 99% of Guatemalan asylum applications, in spite of the fact that there were civil wars raging in both countries. At the same time, the government routinely granted applications from people fleeing countries whose governments the Reagan Administration opposed, such as Nicaragua and Cuba. The ACLU and several religious and civil rights organizations challenged the discriminatory handling of asylum claims in a class action lawsuit. Eventually, the government agreed to give new asylum hearings to 240,000 Salvadorans and Guatemalans. 

In the early 1990's, after years of violent dictatorship followed by a short-lived period of democratic rule under Jean-Bertrand Aristide, thousands of Haitians, fearing new tyranny, fled their country. In response, President Bush issued the so-called Kennebunkport Order, ordering the Coast Guard to forcibly return all Haitian refugees intercepted in international waters. More than 20,000 men, women and children were returned to Haiti, prompting one federal judge to accuse the U.S. Government of returning refugees "to the jaws of political persecution, terror, death and uncertainty when it has contracted not to do so."

The 1996 immigration and antiterrorism laws passed by Congress in 1996 were steps backwards for refugees. Under the immigration law, the challenge to the discriminatory treatment of Salvadoran and Guatemalan refugees would have been impossible, because class action lawsuits are now banned. And for the first time in this country's history, the government can deport someone without any federal court review of a deportation order. The antiterrorism law allows the government to deport aliens based on evidence they cannot effectively challenge because it is secret. one federal court judge said of the practice of using secret evidence: "One would be hard pressed to design a procedure more likely to result in erroneous deprivations. . . . Secrecy is not congenial to truth-seeking."

Sources: United States/Crossing the Line: Human Rights Abuses Along the U.S. Border with Mexico Persist Amid Climate of Impunity. Report by Human Rights Watch/Americas, April 1995.
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