Rights of Immigrants
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RAY SUAREZ: In 1996, Congress passed wide ranging immigration reform laws that among other things gave the Immigration and Naturalization Service more power to detain and deport certain categories of immigrants.
Now two Supreme Court decisions have upheld challenges to the INS interpretation of the 1996 laws. The first set of cases involved a group of resident aliens who had met guilty to certain crimes years ago. Because of those convictions they were facing deportation. Under the 1996 law, the government argued they were no longer eligible for a court hearing on the matter.
The immigrants argued that was unfair, since they had pled guilty prior to 1996, when they would have been entitled to a hearing. By a 5-4 vote, the Supreme Court agreed with the immigrants, saying the government cannot bar judicial review of deportation orders in such cases. In the second set of cases, two legal immigrants convicted of crimes also faced deportation, but their native countries refused to take them back.
One of them had been held in a U.S. Immigration prison for four years, well beyond the sentence for the original crime. They argued the U.S. Government cannot hold them indefinitely; again the court agreed by a 5-4 vote ruling that the law did not permit holding resident immigrants indefinitely in detention, even if they cannot be repatriated.
Two experts help us under the implications of the rulings. Karen Narasaki is president of the National Asian Pacific American Legal Consortium, a civil rights and advocacy organization. Mark Kirkorian is executive director for the Center for Immigration Studies, in Washington, DC, that examines and critiques the impact of immigration on the United States.
Well, let’s begin by getting both your surveys of what the two rulings taken together mean to immigration law. Mark Kirkorian?
MARK KIRKORIAN: What this means is that some of the tightening of the rules on immigrants regarding deportation specifically, have been loosened by the Supreme Court. In 1996, Congress sought to tighten a number of the rules not only on deportation but on welfare and a number of other areas regarding immigration. And progressively in the five years since then, many of those changes have been rolled back, or have been loosened and changed. And this is simply a continuation I think of that process.
RAY SUAREZ: Karen Narasaki.
KAREN NARASAKI: Well, we were very concerned with the 1996 laws, they are very harsh, and I would regard it more than a tightening of the laws. For example, what these cases stand for is to say to the I NS, you cannot strip the courts of an ability to look at the INS actions when it involves individuals. That’s what one of the laws was trying to do was basically say courts couldn’t review INS discretion at all.
RAY SUAREZ: As a way of shot ending it, giving you fewer bite at the apple, calling an end to your appeal process at some point?
KAREN NARASAKI: There was concern that immigrants were able to stay in the country longer than the Congress would like them to do in order to raise issues about their deportation. So that Congress took a number of steps, one was to try to remove all kinds of review. And what we’ve said is you need to have at least some court review, at least once, at least one bite of the apple. The cases that are involved in the Supreme Court rulings said you had no bite at the apple, which we felt was very frightening in a democracy to say to courts, you cannot look at any kind of discretionary action by the IN S.
RAY SUAREZ: Would you describe the function of those laws in the same way?
MARK KIRKORIAN: I think so. The immediate effect is going to be to create work for immigration lawyers. There’s no question about that. It highlights the — reaffirms the unofficial motto of the immigration bar, which is it ain’t over until the alien wins. But there’s a broader issue here, though, and that is that these Supreme Court decisions challenge the paradigm of immigration policy that we have had over the past five years, which is an anti-immigrant policy of high immigration.
It’s something constructed by certain elements of the Republican Party, chiefly Senator Spencer Abraham, who now Energy Secretary, which rejected Barbara Jordan’s recommendations, she was chairman of immigration commission, her recommendations to cut immigration and instead sought to appeal the appease public concern about immigration by tightening the screws on immigrants, and they tightened those screws in my opinion a couple of turns too far.
NINA KHRUSHCHEVA: Well, I agree that they tightened the screw as couple turns too far, but I disagree with mark in that he calls the generous immigration policies to be somehow anti-immigrant. It reminds me of when my parents were interned in world war ii and afterwards you read bit and some historians say we were doing it to protect the Japanese Americans, it wasn’t because we were trying to abrogate their due process rights. Our policies, immigration policies do need to be looked at.
One of the problems, that Mark has pointed out many times, is the INS is stashed for resources. One of the reasons why it’s starved for resources is because Congress keeps changing the law. There is one case where one family, their immigration status changed four times without them doing anything, because the law kept changing back and forth because you’d have the anti-immigrant faction of Congress win and pass something really horrific and harsh, then we attempt to roll some of it back, and then the other side comes in.
And the problem in terms of full employment for lawyers is not because it’s a case of you keep litigating until the immigrant wins, it’s because the policies that exist now are so are so arbitrary and so difficult to understand that I challenge anybody even who is a lawyer to really fully understand how the law works.
RAY SUAREZ: Well, let’s talk about the cases that made to it the high court. Was this response to the 1996 acts, which are now almost five years old, a sort of wrestling out of just how the rights of immigrants, the rights of legal and illegal immigrants, compare to the rights of, the constitutional protections to natural born citizens who are on American soil. Were we in effect still having that argument when we got to the Supreme Court?
MARK KIRKORIAN: We are and we probably will continue to have that argument, because these are questions about non citizens, in effect guests in the United States. However long they’ve been here, they have not yet bought into America through citizenship. And we have the prerogative to define due process for guests, broadly or narrowly.
And that, there’s a tension there, and that’s going to be ongoing. But I think the Supreme Court has said that in some of these more egregious instances, that Congress defined the due process rights of it grant too narrowly. Now Congress has, can respond to this, has the final word. But, for instance, in one of the cases the issue was whether immigrant who are deportable but whose home countries won’t take them can be held indefinitely. Lifers — they were called informally within the INS.
RAY SUAREZ: These were people who had completed their terms for the crimes.
MARK KIRKORIAN: For the crimes they had committed and the question is what do we do with them now. Vietnam, Cuba and some other countries won’t take them back. And Congress took away the INS’s discretion to examine these cases one by one and let these people under some kind of supervised release out. But this is an ongoing tug of war that I don’t think is ever necessarily going to be resolved in a democracy.
RAY SUAREZ: But what were the rights of people who served their time? Why not find a way to send them home if that’s the law that the Congress passes?
KAREN NARASAKI: Well, I think this case really stands for, it’s interesting that we’re heading for our holiday, because it stands for one of the principles that we hold here in America. We hold dear the right of courts to review actions by the government. We hold dear fairness. Some of these cases, what the INS was trying to do was to apply new laws retroactively to people who had relied on the old laws in making their decisions.
Some of these people had not committed serious crimes at all. In fact had not served any time, but were suddenly being told we’re going to deport you because we’ve now decided six, ten, twenty years later that what you did is something that we can deport you for. You know, those are standard principles that we’re concerned about. One of the things that impacts our community is about half of the lifers, as Mark said, are from Southeast Asia, they came as refugees, they came fleeing oppression because of who they were.
And our concern is most of these people came when they were children, they don’t even speak the language of the country that they’re being sent back to, their parents fled there because they were being persecuted. So you’re sending someone back to a Communist country who persecuted their families. We don’t know what will happen to these kids who are now young adults if they’re sent back. That I think offends most Americans’ notions of what’s fair and what’s right.
RAY SUAREZ: Should the law recognize those kinds of distinctions?
MARK KIRKORIAN: Sure. There’s no question that the INS administratively as well as the statute needs to have some flexibility, the law always needs flexibility. One of the reasons these relatively inflexible measures are enacted by Congress was because the immigration bar had been so effective in obstructing the administration of the law.
A former president of the Immigration Lawyers Association told me at the time that he had addressed a group of immigration lawyers and said that these laws are a testament to your effectiveness, you have so effectively prevented the enforcement of the law that Congress was pushing back. But I think there’s a broader issue here, there’s the question of what is the implications of this legislation — because rather than just looking at the particular cases, I think what we see here is that the approach crafted in 1996, which was rejecting cuts in immigration but embracing a tightening of the rules, squeezing of the foreigners who lived among us, has failed. It doesn’t work.
And the problems that immigration has caused and the public angst over it is going to resurface, and Congress next time needs to take a different approach — one that is a pro immigrant approach, but seeks to lower immigration itself, which is the cause of a lot of the problems that the public sees here.
RAY SUAREZ: Well, let me got a quick comment from you both on what the unfinished business remains.
KAREN NARASAKI: Well, I think it’s important to note for Mark that it’s not going to help to lower immigration. One of the reasons why we have these problems is because there are very tight quotas, particularly for family immigration, and so people have a hard time getting into the country. But aside from that, these cases fail to answer some of the issues that are still outstanding in terms of due process. For example, there are still mandatory detention laws.
That — it’s not clear whether the Supreme Court case answers the question of whether those are now gone. There’s still areas where INS is still trying to retroactively apply some of the laws, and that we believe is wrong. And finally something that hasn’t come up in this discussion is there really is a need to end the use of secret evidence.
Many people are unaware that in ’96 there was a law passed that allows the government to use secret evidence against you in a deportation hearing. Our country has long said look, it’s very dangerous to allow the government to use information when you don’t know who gave it and you can’t challenge the content of it. And that’s what’s going on in the courts right now.
RAY SUAREZ: Briefly, Mark Kirkorian, unfinished business regarding immigration?
MARK KIRKORIAN: The unfinished business is a larger issue. The problem is not the 1996 laws were sought to tighten up immigration enforcements. They went too far and we need to, we have in fact pulled back somewhat. The question is, how do we deal with the overall problems caused by immigration, and that can only be solved by dealing not with the symptoms but with the cause, which is excessive levels of immigration.
RAY SUAREZ: Thank you both.