Civil Liberties of Aliens

                                    Are Aliens Really "Persons"?

Erosions of Constitutional Rights of Immigrants in the US

“It is often said that civil liberties are the first casualties of war. It may be more accurate to say that immigrants’ civil liberties are the first to go”.

(David Cole, 2002)[1]

[1] David Cole, 2002, “Terrorizing Immigrants in the Name of Fighting Terror”, Human Rights.

The Constitution does not discriminate between different types of “persons” in granting certain inalienable rights. In fact the Bill of Rights repeatedly refers to “people” and “persons” and not to non-aliens and citizens.[2] However through new laws, executive orders and judicial deference, we are seeing a gradual shift in the ways “aliens” can count themselves as “persons”. Particularly after September 11, 2001, the USA PATRIOT Act[3], the Enhanced Border Security and Visa Entry Reform Act, and the Homeland Security Act treated immigrants like criminal suspects.[4] Constitutional scholar Erwin Chemerinsky portrays this era as a continuation of a “legacy of suppression in times of crisis”.[5]

Case law lays a patchwork of conflicting notions of whether immigrants can consider themselves persons or aliens. In Plyler v. Doe, the Supreme Court reaffirmed the protection of Constitutional rights saying “an alien is surely a ‘person’ in any ordinary sense of that term”.[6] At the same time, courts have given plenary power to the Congress in matters of protecting the sovereignty of the country.[7]

This review demonstrates the many facets of an immigrant’s life that are impacted by the systemic discrimination of post 9/11 America. These are: (1) Employment Restrictions; (2) Detention without Cause; (3) Inhumane Deportation: (4) Invasion of Privacy; and (5) Restrictions on Speech and Political Activity.

1. Employment Restrictions

Immigration laws have largely been shaped by preconceived notions of who is racially an “American”.[8] Thus there are years-long waiting lists for immigration visas for people from colored nations, and instant processing for people from other nations with the same qualifications and applications.[9] This inhibits the ability for colored immigrants to seek employment, and to conduct business.

Curtailing an immigrant’s right to work is a de facto taking under the Fifth Amendment, since it infringes on a person’s ability to utilize their intellectual and physical property. Furthermore, it violates the immigrants’ due process and equal protection rights under the Fourteenth Amendment since the laws are discriminatory, based on their country of origin. The creation of discriminatory legal barriers to employment in various visa programs[10] creates different levels of protection on an immigrant person’s pursuit of happiness.

2. Detention without Cause

After September 11, 2001 the Justice Department has interviewed and detained over 5,000 male immigrants, most of who were Arab or Muslim – in secret, without counsel, and sometimes physically and verbally abused.[11]Some of these were held under the federal material witness law, which was enacted in 1984 to secure the testimony of witnesses who might otherwise flee criminal proceedings.[12]

Innocent immigrants can easily be ensnared by such sweeps and violate the Fourth Amendment protections against unreasonable searches and seizures. Worst still, they may be penalized or deported for no other reason than their religion or nationality. According to constitutional scholar David Cole, the Enemy Alien Act of 1978 authorizes “detention without an individual showing of dangerousness”.[13] Subsequent amendments to the Immigration and Naturalization Act expedited or eliminated judicial review for many aliens.[14] Following the Illegal Immigration Reform and Immigrant Responsibility Act of 1996,[15] the courts were split on whether the writ of habeas corpus even applies to aliens.[16]

The week following September 11, 2001 an amendment to 8 C.F.R. §287.3(d) allowed the immigration officials to detain aliens indefinitely following a warrant-less arrest.[17]Within two months, the Patriot Act Section 412 amended the Immigration and Nationality Act to allow the Attorney General to take into custody any alien whom he certifies is “engaged in any other activity that endangers the national security of the United States”.[18] The combined effect of these actions has been to gradually exempt a broader group of aliens from the constitutional rights of due process under the Fourteenth Amendment.

3. Inhumane Deportation

As exemplified in the “Return to Sender” operation,[19] immigrants are treated more like packages than like persons. Deportations for immigration violations occur without consideration of the human cost, and at times without verifiable justification. In fact, hundreds of aliens were deported secretly under the Creppy Directive. This directive, issued by Chief Immigration Judge Michael Creppy less than two weeks after September 11, 2001, required immigration judges to close the courtroom to visitors, family and the press in “special interest” cases.[20] Even the court dockets did not list these deportation hearings.

Immigration law is also inconsistent with the double jeopardy protections under the Fifth Amendment, particularly when even minor criminal offenses can lead to deportation or severe constrains in naturalization. Furthermore, Courts have creatively denied the designation of “person” to aliens who have not been admitted.[21] An even more creative designation of “enemy combatant” not only deprives a person of U.S. constitutional rights,[22] but also rights under any international convention.[23]

4. Invasion of Privacy

Immigrants are often required to get themselves fingerprinted and photographed in dozens of ways that would be humiliating to even criminal suspects. For example, green card applicants are required to subject themselves through biometric recording in which every one of their fingers is pressed in every direction repeatedly till the machine scans it flawlessly. Consular interviews, port-of-entry quizzing and official house-calls terrifies immigrants, as the consequences of a wrong answer could be severe. Non-citizens subjected to questioning cannot feel free to refuse to answer due to the vast discretionary powers of the immigration authorities.[24]

Post-9/11 immigrants live under the constant terror of being secretly watched. Secret subpoenas and information requests are allowed under the Patriot Act and the Bush administration has admitted to using roaming wiretap programs. Congress shut down the Total Information Awareness Project, but other data mining by federal agencies continues.[25] There are other ways in which immigrants feel watched in their daily affairs, places of worship and shopping centers. For example, in 2002 the FBI requested data from the Census Bureau on census blocks with high percentage of Arab and Muslim populations.

5. Restrictions on Speech and Political Activity

Persons with different political beliefs can be prevented from entering the United States if those beliefs can be traced to a terrorist group. This is possible under Section 411 of the Patriot Act, which sets political association boundaries similar to those created by the House Un-American Activities Committee created during the McCarthy era of the 1950s.[26] The association with terrorism is loosely defined to include subjective constructs such as “encouragement”. Historically, federal agencies frequently use muscular and intrusive investigations to disrupt First Amendment activity by politically disfavored groups and persons.[27]

In fact “terrorism” itself is a subjective political construct given that the African National Congress was once considered a terrorist organization.[28] In Iraq, Shias are our best friends one day, and then worst enemies the next day. The Patriot Act deprives immigrants of the constitutional guarantee of the fairness in time by being active retroactively as well as prospectively.[29] Thus an immigrant can only engage (in the future) or have engaged (in the past) in political acts with a crystal ball projecting the indefinite future of all organizations associated with that act. Even then, immigration law may change some day to make whatever was legal, illegal retroactively.


In a country where even corporations headquartered elsewhere can have the same rights as “persons”, it is demeaning that immigrants are treated as non-persons. This is made worst by the judicial complicity underpinning intrusion of civil liberties of people of color. This is part of a historical trend in which minorities have to sacrifice their liberty to benefit the majority.[30]

Immigrants face de facto racial profiling directed at individuals who appear Muslim or Arab, every-time they have to go to the airport to catch a flight.[31] Or get nervous that his or her last name might match someone on a confidential terror list. Or they have to scramble for additional documents to get a driver’s license under the Real ID Act. Or they get pulled over at checkpoints for further questioning when they declare that they are not citizens. In America, the enemy is always someone who looks different.[32]

Alephia Baxamusa has completed her undergraduate degree in law from the University of London and is pursuing a LL.M degree at the University of San Diego, School of Law.

[2]See Victor C. Romero, Alienated: Immigration Rights, the Constitution and Equality in America. New York University Press, 2004, pp. 261.

[3] HR 3162 entitled “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001’’.

[4] April McKenzie. 2003. Nation of Immigrants or a Nation of Suspects? State and Local Enforcement of Federal Immigration Laws since 9/11,Alabama Law Review.

[5] Erwin Chemerinsky. 2006. The War on Terrorism and the Loss of Freedom. CR: The New Centennial Review 6.1 (2006) 55-67

[6]Plyler v. Doe, 457 U.S. 202, 210 (1981).

[7]See Fong Yue Ting v. United States, 149 U.S. 698, 708 (1893) (stating that immigration matters are “an inherent and inalienable right of every sovereign and independent nation”).

[8] Bill Ong Hing. 2003. Defining America Through Immigration Policy (Mapping Racisms Series). Temple University Press, pp 336.

[9] Each year, maximum 140,000 applicants are awarded green card in employment based categories. Each country is limited to receive 7% of 140,000 green card (which is 9,800) on how large its population. This creates long waiting lists for populous countries like India or China. For example, in the EB-2 Immigrant Visa category, the waiting list for professionals with advanced degrees from India spans back to 2003.

[10] For example, under a Spouse Visa (H4) an immigrant cannot work.

[11] Kevin R. Johnson. 2003. The “Huddled Masses” Myth: Immigration and Civil Rights. Temple University Press, pp. 264. See also, America’s Disappeared, ACLU, 2004.

[12] ACLU, 2005. Material Witness.

[13] David Cole. 2003. ENEMY ALIENS: Double Standards and Constitutional Freedoms in the War on Terrorism., New York: The New Press.

[14] Alison Leal Parker, 2001. In Through the Out Door, Columbia Law Review.

[15] Section 306 of IIRIRA rewrote 8 U.S.C. §1252 (g) to limit judicial reviews of immigration matters.

[16] David Cole and James X. Dempsey. 2002. TERRORISM AND THE CONSTITUTION: Sacrificing Civil Liberties in the Age of Terrorism. New York: The New Press.

[17] Published in 66 Fed. Reg. 10,390 (September 20, 2001) and effected September 17, 2001. See Indefinite Detention without probable cause: A comment on INS Interim Rule 8 C.F.R. §287.3, New York University Review of Law and Social Change, 2001.

[18]See also Vijay Sekhon, 2003. The Civil Rights of “Others”: Antiterrorism, The Patriot Act, and Arab and South Asian American Rights in Post-9/11 American Society. Tex. F. on C.L. & C.R.

[19] This is a massive sweep of immigrants by the U.S. Immigration and Customs Enforcement (ICE) agency that began on May 26, 2006. It is unclear how many people have been arrested and for what reasons.

[20] Jonathan L. Hafetz, 2003. The First Amendment and the Right of Access to Deportation Proceedings, California Western Law Review.

[21]Shaugnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953).

[22] Jonathan Hafetz, The Supreme Court;’s “Enemy Combatant” decisions: recognizing the rights of non-citizens and the rule of law, 2004.

[23] Neal K. Katyal and Laurence H. Tribe, 2001. Waging War, Deciding Guilt: Trying the Military Tribunals, Yale law Journal.

[24] Philip B. Heymann, 2002. Civil Liberties and Human Rights in the Aftermath of September 11, Human Rights.

[25] Oren Gross, 2002. Chaos and Rules: Should Responses to Violent Crises Always be Constitutional? Yale Law Journal.

[26] Vijay Sekhon, 2003. The Civil Rights of “Others”: Antiterrorism, The Patriot Act, and Arab and South Asian American Rights in Post-9/11 American Society, Tex. F. on C.L. & C.R.

[27] David Cole and James X. Dempsey. 2002. Terrorism and the Constitution: Sacrificing Civil Liberties in the Age of Terrorism, New York: The New Press, 2d ed.

[28] Lindsay N. Kendrick, 2003, Alienable Rights and Unalienable Wrongs: Fighting the “War on Terror” through the Fourth Amendment.

[29] Peter Margulies, 2002, Uncertain Arrivals: Immigration, Terror, and Democracy After September 11. Utah Law Review.

[30] Cole 2003, supra note 13, pg. 5; and Girardeau A. Spann, 2006, Terror and Race.

[31] Sasha Polakow-Suransky, 2001. Flying While Brown: Must Arab Men Be Racially Profiled? AMER. PROSPECT, Nov. 19, 2001, at 14.

[32] Jean Phan, 2007, The American Tradition of Racial Profiling, Berkeley Electronic Process.