How America treats foreigners, regardless of their legal status, is of supreme importance morally, politically, and even diplomatically. It speaks to our values, impacts our standing in the world, and may even influenced the way our own citizens are treated abroad. This is not a bleeding heart talking point, but the sober and matter-of-fact conclusion of the U.S. Supreme Court in Arizona v. U.S. (2012), as cited and recounted by the Fifth Circuit Court in Hernandez v. U.S. (2014):
“The Supreme Court has …. [emphasized] the strong national interest Congress has in protecting aliens from mistreatment. The Court noted that immigration policy concerns the “perceptions and expectations of aliens in this country who seek the full protection of its laws,” acknowledged that the “mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad,” and reaffirmed that “ ‘[o]ne of the most important and delicate of all international relationships … has to do with the protection of the just rights of a country’s own nationals when those nationals are in another country.’ ” This strong national commitment to aliens’ rights not only militates in favor of a uniform, federal policy … it also militates in favor of the availability of some federal remedy for mistreatment at the hands of those who enforce our immigration laws. Where those who allege mistreatment have a right but lack a remedy, as here, the Supreme Court suggests that Congress would want some remedy to be available.”
This is perhaps why a federal judge appointed by George W. Bush temporarily halted the much maligned family separation policy. Though it may seem counter-intuitive to the average American, even illegal aliens (to use the technical legal term) are entitled to a broad range of civil and due process rights. This was recognized even in the 19th century, as noted in The Hill:
Three key Supreme Court decisions in 1886, 1896 and 1903 laid the 14th Amendment basis for the consistent ruling of the court that aliens, legal and illegal, have constitutional protection in criminal and certain civil affairs in the justice system.
In Yick Wo v. Hopkins (1886), the court ruled that:
Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and unequal hand, so as practically to make unjust and illegal discriminations between persons of similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution [the 14th Amendment].
In Wong Win v. United States (1896), the court ruled that:
It must be concluded that all persons within the territory of the United States are entitled to the protection by those amendments [Fifth and Sixth] and that even aliens shall not be held to answer for a capital or other infamous crime, unless on presentment or indictment of a grand jury, nor deprived of life, liberty or property without due process of law.
In summary, the entire case of illegal aliens being covered by and protected by the Constitution has been settled law for 129 years and rests on one word: “person.” It is the word “person” that connects the dots of “due process” and “equal protection” in the 14th Amendment to the U.S Constitution and it is those five words that make the Constitution of the United States and its 14th amendment the most important political document since the Magna Carta in all world history.
Moreover, during most of that time period, illegal immigration did not exist legally or conceptually; “For the first century of the country’s existence, anyone could land here and walk right off the boat with no papers of any kind,” as noted in the L.A. Times:
The first federal general immigration law was enacted in 1882. It prohibited from entering the U.S. “any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge.” In other words, unless you were physically or mentally incapable of taking care of yourself, you were in — unless you were Chinese.
That’s because the first sweeping federal restriction on immigration also came in 1882, in the form of the Chinese Exclusion Act. Troubled by the influx of Chinese workers — who helped build the transcontinental railroads, among other things — Congress enacted a wholesale ban on their further immigration that year. To enforce the ban, a bureaucracy had to be created, leading in 1891 to the establishment of the federal Bureau of Immigration, the first body charged with enforcing federal immigration law.Beyond
these restrictions, however, federal immigration laws remained relatively lax: If you were an able-bodied, non-Chinese person, you could come “legally” for several more decades. You didn’t have to speak a word of English or be literate in any language at all. In fact, it was not until 1917 that Congress required that immigrants pass a literacy test, and even then they could pass in any language, not just English.
When a massive influx of new immigrant groups came at the turn of the 20th century — Italians from Southern Europe and Jews from Eastern Europe, largely — a backlash began to build. In 1924, President Coolidge signed into law the National Origins Act, the primary aim of which was to severely restrict the flow of immigrants from Southern and Eastern Europe. The new law required for the first time that immigrants to the U.S. have visas, introducing the concept of “having papers” to American immigration policy.
Thus, the concept of being an “illegal” immigrant more or less did not emerge until less than a century ago, well after the arrival of the largest waves of immigrants — to whom many Americans, including anti-immigrant ones, can trace their ancestry.
Since then, there has been a consistent body of case law reaffirming the constitutional and legal rights of foreigners: Almeida-Sanchez v. United States (1973), which ruled that all criminal charge-related elements of the First, Fourth, Fifth, Sixth, and Fourteenth Amendments — such as search and seizure, self-incrimination, trial by jury, and due process — protect all non-citizens, legally or illegally present in the U.S.; Plyler v. Doe (1982), which ruled that the Equal Protection Clause applies to any person in the U.S. “whatever his status under immigration laws”; Reno v. Flores (1993), wherein even the very conservative Justice Scalia agreed that the Fifth Amendment applied to aliens; and Zadvydas v. Davis (2001), which held that the “due process” clause of the Fourteenth Amendment applies to all aliens in the U.S. be they “unlawful, involuntary or transitory”.
Whatever the nuances and debates of U.S. immigration policy, there can be no legitimate debate that the many of the most basic foundational principles of our nation apply to all persons present in the country — a moral and practical position that should be celebrated and admired rather than ignored and maligned.