CONGRESS
Stop denying immigrants due process
BY IRA KURZBAN
Published by: The Miami Herald
The Immigration debate in the United States is not new or even of recent vintage.
President John Adams invoked the first anti-alien legislation in the Alien Act of 1798 so he could pressure the French into leaving the country. Abraham Lincoln had to work with the Know-Nothing Party, which was anti-foreigner and anti-immigrant.
We see echoes of this anti-immigrant sentiment in today’s debate, which is fraught with bad ideas — such as shutting down the border, a ridiculous idea for several reasons.
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First: Immigrants make enormous contributions to our economy. What would Boston be like without the Irish, Chicago without the Poles, Philadelphia without the Italians, New York without the Jews or Miami without the Cubans? Immigrant communities do not simply take jobs that Americans do not want; they create diverse, dynamic economic communities.
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Second: The key to fighting terrorism is not shutting down our borders but obtaining good intelligence. Despite all the discussion about putting troops on the southern border of the United States, the only known terrorist — the Millennium Bomber — crossed into the country from Canada on the northern border.
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Third: The U.S. border is not only the southern border or the northern border; it is the world. Each year we issue millions of visas abroad. Millions enter the United States at our seaports and airports as business people, tourists, medical professionals, investors, fiancées of U.S. citizens, diplomats, students and transferees of multinational corporations.
In fact, the illegal-immigrant population was created not simply by people coming over the border but by a little known provision passed by Congress in 1996 that made it virtually impossible for people illegally in the country to become legal. What immigration specialists know as ‘‘the 3/10 year bar’’ prevents immigrants who have over-stayed their visas or who have entered illegally from obtaining residency by barring them for 10 years if they return to their country to apply for residency.
As most employers won’t wait 10 years for an employee, the process is futile. So illegal immigrants do not leave because they cannot get their residency even if someone is willing to petition for them.
Why is any of this important? While the debate rages on about "amnesty" or no "amnesty," there is little commentary about the other provisions in both the House and Senate bills. Since 1996, Congress has embarked on an effort to destroy basic due-process rights for aliens and their U.S.-citizen families.
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Immigrants are barred from suing immigration authorities in most matters even if those authorities are flatly wrong. Although the president may be sued for sex discrimination while he sits in office, an immigration officer is prevented from being sued for virtually every discretionary decision he makes.
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In 2005, Congress abolished the writ of habeas corpus for immigrants in virtually all circumstances. The current legislation in the House and Senate goes even further. It would reinstate indefinite detention for non-U.S. citizens. It would bar residents applying for citizenship to go to court even if their citizenship is denied for a biased or illegal reason.
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Other provisions will practically wipe about the ability of people to leave the country voluntarily, thereby preventing them from coming back in the near future. The proposed Senate legislation also effectively would bar a challenge to an illegal removal order by transferring all federal cases to one court, which happens to lack the expertise or ability to address a large volume of cases.
The law would also restrict the right to reopen deportation cases and bar judicial review of a denial of a motion to reopen.
These bold attacks on due process are not only for immigrants. A denial of a motion to reopen will affect a U.S. citizen who marries an undocumented person and wants to stay with his or her spouse.
While the president talks about why we should not have the national anthem in Spanish — an issue that virtually no one contests or cares about — Congress is at work tearing up the Constitution when it comes to immigration issues not just for foreign born persons but their U.S.-citizen families as well. Threading the immigration needle may be difficult, but it should not involve tearing up the Constitution to do it.
Ira Kurzban is a former national president of the American Immigration Lawyers Association and the author of Kurzban’s Immigration Law Sourcebook.
