Immigrants and the Government's War on Terrorism

When planes flew into the World Trade Center and the Pentagon on September 11, 2001, few immigrants anticipated that they themselves would be one of the primary groups affected by those attacks—not just as direct victims of the attack, for many immigrants died in the attacks, but as the group most targeted by executive and legislative enforcement efforts both at the federal and state levels. With greater prescience, those effects should have been predicted—previous terrorist attacks, whether carried out by immigrants or native-born citizens, have drawn harsh legislative and executive responses.¹ Past wars have generated repressive measures directed at immigrants who, because of their precarious status under American constitutional law, can be detained or deported with the simple passage of legislation or the issuance of an executive order.²

Immigrants are noncitizens who have been admitted to the United States to take up permanent residence in this country.³ Many of them become U.S. citizens. They constitute the group of noncitizens with the strongest ties to the United States. Many of them are spouses, daughters, sons, and parents of U.S. citizens. In a sense, they are the noncitizens who have the greatest moral, political, and legal claim to protection in the American legal scheme other than citizens. Until they are naturalized, however, American law considers them to be guests whose membership in the American community may be terminated by Congress and the executive at any time. Although they are entitled to some level of due process prior to their removal from our community, under the current legal order, they have no legal entitlement to remain in the United States, regardless of the government's reason for removing them and regardless of their ties to the U.S. community.

Removal hearings are administrative proceedings, not federal court proceedings, and they enjoy little substantive judicial review. Noncitizens placed in removal hearings, for the most part, are afforded severely curtailed constitutional protections. The U.S. Supreme Court has held that removal or deportation is a civil proceeding, not a criminal proceeding. Thus, the Court has reasoned, most protections provided persons under the Fourth, Fifth, Sixth, and Eighth Amendments, including the right to counsel, do not apply to removal proceedings. Congress, in turn, has used removal as a tool ostensibly to battle terrorism, but in ways that make it clear that preventing terrorism is not the aim. These include attempts to remove immigrants for offenses such as driving a vehicle while intoxicated or for offenses that, when committed, did not render the immigrant deportable, or for offenses committed during the individual's youth, regardless of the passage of time or of whether the immigrant's current life exemplifies total rehabilitation. Consequently, immigrants have been severely affected by the government's use of immigration laws to battle terrorism.

Immigrants are also overwhelmingly racially and ethnically distinct from the majority white population in the United States. Thus, the population most affected and targeted by the government's war on terrorism is defined and identified by race, ethnicity, and, in some cases, religion. Again, because of the peculiar status of noncitizens under American constitutional law, the government's intentional discrimination on the basis of ethnicity, race, and sex may be constitutionally tolerated. Noncitizens are left without remedy for governmental acts that would be unconstitutional if directed at citizens in the United States.⁴

To some extent, American immigration laws have, from the beginning, reflected nativist and racially discriminatory policies (Patel 2003; Medina 1997). National security concerns have spurred repressive legislation almost from the founding of the republic. The Alien and Sedition Acts of 1798, enacted during the presidency of John Adams, gave the president authority to remove any alien he deemed a danger to national security. During the first half of the twentieth century, dominated by two world wars and the beginning of the Cold War, immigrants were subject to harsh treatment in the American legal system. Some of the most criticized Supreme Court cases sharply curtailing the human rights of both citizens and noncitizens came out of this era.⁵ The latter...