Eli J. Kay-oliphant, Considering Race in American Immigration Jurisprudence

• Publication year: 2005

CONSIDERING RACE IN AMERICAN IMMIGRATION JURISPRUDENCE

Imagine that you are President, fifteen years from now. You have been sitting in the Oval Office, thinking to yourself for over an hour. The silence is uncommon, considering your hectic schedule, and reflects the gravity of the situation and importance of the decision you must make. Time is moving slowly. Your mind races from one impossible solution to the next. Time is running out.

The atrocities of September 11 seem like a distant memory. Since then, the vigilance of your predecessors has secured stability and complete freedom from domestic terror. This was no small task. Threats large and small presented themselves; each was disrupted, averted, or deterred. As time passed, the nation gradually transitioned from constant fear to a sense of security. Just like every candidate for President since September 11, during your campaign you declared that you had not forgotten that day and promised to protect the nation and maintain its safety. Your promises are being tested now.

As you fidget in your seat you re-read the short memo that was delivered to you this morning. The memo is similar to every intelligence memo that you have received every day since taking office except that it has three characteristics that you have never seen at the same time. First, the threat described in the memo is imminent. The attack is in late stages of development, scheduled to occur in six days. Second, the threat is enormous. Individuals have acquired a weapon of mass destruction and have smuggled it to a major metropolitan area. Third, the threat is relatively specific. Your intelligence, verified by comparison across agencies and with our allies, indicates that the perpetrators are a group of about twelve individuals of Mexican or Asian descent. Despite this level of specificity, what strikes you is that what you do know is dwarfed by what you do not know: You know neither what city is under attack nor actionable descriptions of the inevitable perpetrators.

Your intelligence experts and national security advisor have prepared a plan of action in the short hours that they have known of this threat: a massive incarceration of all individuals of Mexican or Asian descent in major metropolitan areas. You do not want to use this plan. You have done the calculations a dozen times and you know that due to current law enforcement capabilities and available space in prisons, implementation would require rapid deportation of many who fit the vague characteristics described in the memo. Additionally, although citizens may indeed be the perpetrators of this crime, you are uneasy with the plan because it would necessarily target both aliens and citizens alike. Furious when you were presented with this solution, you demanded that your team come up with alternatives.

Your fury has turned to anxiety. The time that you have spent thinking alone has not garnered any solutions and has drawn the nation closer to its fate. The uncommon silence, silence that you wished for so many mornings, is unwelcome now because it indicates that which you already know: Your team has no alternatives. You knew that you would have to make important decisions, but the decision you are about to make will define your presidency, your life, and the lives of many people in America. You shift uneasily in your chair, and pick up the phone.

INTRODUCTION

If, for the sake of national security, you were forced to make a decision that would limit the rights of individuals inside the United States, which groups' rights would you limit first? In the 2003 term, with Demore v. Kim,¹the Supreme Court held that mandatory detention of a lawful permanent resident ("LPR")²pending a deportation hearing did not violate the Due Process Clause of the Fifth Amendment. After Kim, the Federal Government has the right to detain LPRs, prior to a determination regarding deportation, without having to give individualized justification for-and without giving the immigrant the opportunity to challenge-the detention.³The Kim decision, and its resulting restriction of LPR rights, was unexpected in light of general trends in noncitizen⁴rights jurisprudence⁵as well as specific Supreme Court precedent that evidenced movement by the Court in the direction of granting broader rights to resident aliens.⁶

Kim was not surprising, however, if viewed with a more comprehensive understanding of the role the "other" has played in American immigration law. Specifically, when taking the concept of race into account, the blurry and contradictory landscape of immigration jurisprudence becomes more coherent-betraying an unsettling image of immigration law. The Court's reliance on the plenary power doctrine to limit the rights of this "most favored"⁷category of immigrants has far reaching implications not only for the specific LPRs being held pending deportation in the status quo but also for the broader conception of immigrant rights in America.

Part I of this Comment focuses on the history of legal permanent resident due process rights in American immigration law. This Part provides a pragmatic framework for understanding the recent procedural due process inconsistency as well as an explication of the most recent decisions that frame the reality for the many LPRs in the United States. This history shows that over time legal permanent residents have been afforded increasingly protected rights but that recently many of those rights have been rolled back. Specifically, this Part dissects the Kim decision and analyzes its detrimental impact upon the evolving treatment of due process rights of all aliens in the United States.

Part II explores the role that racism has played, throughout history and in the present, for the constructed immigrant "other" in immigration law. This Part analyzes a historical root of immigration law, the plenary power doctrine, and the role that racism has played in its construction and maintenance. Part II continues by providing a theoretical explanation of racism in immigration law. Finally, this Part integrates the Kim decision into this historical and theoretical foundation to establish how racism plays out in current immigration law, policy, and precedent. This Part argues that society's blindness to the underlying role that race plays in the system has created immigration policy with negative effects that could not have been foreseen.

Part III discusses the methodological void in current immigration scholarship for the concept of race. By actively taking race into account not only in a traditional analysis of the law but also in a nontraditional, critical race theory analysis, the Comment serves as a vehicle, itself, to counter traditional immigration jurisprudence's underlying disregard for race as a concept and critical race theory as a methodology. Combination-the more traditional immigration analysis found in Parts I and II.A. coupled with the more theoretical race intervention analysis found in Part II.B-will serve to facilitate confrontations, comparisons, and permutations that may reconcile the disjointed and erratic jurisprudence in this area. This combination of the traditional analysis, that takes race into account, and the unconventional analysis, which also takes race into account, may be the most effective method for introducing immigration jurisprudence to the possibility that race should always be considered. This Part argues that considering these nontraditional methodologies, although not the only or best solution to problems in this area of the law, is necessary to move forward into an era of coherent immigration policy.

Coming to grips with the Kim decision and overall immigration jurisprudence while utilizing a critical race theory lens may provide a greater understand of underlying trends and deconstruct the discriminatory basis for some immigration policy. This Comment concludes by describing the uncertain future for the "other" in immigration law at the point where due process liberty and security of the nation meet.

I. THE HISTORY OF LEGAL PERMANENT RESIDENT DUE PROCESS RIGHTS

Although aliens do not enjoy exactly the same rights as U.S. citizens-as there are elements of immigration law that inherently restrict their rights-in all other areas LPRs have consistently attained rights similar in both quality and quantity to those of actual citizens.⁸In the area of immigration law, however, the judicially constructed plenary power of the political branches⁹to regulate matters has precluded judicial oversight and limited the ability of aliens to obtain due process rights.¹⁰The narrow exception to the plenary power principle has been the due process rights of LPRs. In immigration,

LPRs have gained broad due process rights, carving out a special class exception, despite the plenary power of Congress and the Executive over immigration.¹¹This special exception, however, is in jeopardy of complete rollback.¹²This Part describes, first, the advances LPRs have made generally in due process protection, and, second, the most recent specific setback in this trend: Demore v. Kim.

A. The Court Recognizes that LPRs Have Broad Due Process Rights

The state power to lock up a human being is not trivial. No matter what the classification of person, this power must have safeguards and standards. In the United States, the Constitutional system safeguards against physical constraint with the Due Process Clause. Indeed, "[f]reedom from imprisonment-from government custody, detention, or other forms of physical restraint-lies at the heart of the liberty that [the Due Process] Clause protects."¹³Lawful permanent residents have been granted broad due process rights in all areas of the law. Even in the special area of immigration, where the plenary power doctrine restricts judicial oversight of due process concerns, LPRs have achieved substantial due process rights.

1. LPRs Have Extensive Due Process Rights Outside of Immigration Law

The...