Civil libertarians view high court ruling as affront to immigrants’ rights

Thursday, February 25, 1999

The Supreme Court has struggled for more than a century to define the level of constitutional protection that foreigners deserve when they migrate to the United States.

On one hand, the 14th Amendment guarantees equal protection of the laws to all “persons,” not just to all “citizens” — a choice of words that has given aliens some measure of protection. On the other hand, the court has found in some cases that citizenship must count for something, so aliens have sometimes lost out.

Yesterday, in the view of civil liberties advocates, the Supreme Court reached a new level of hostility toward aliens in a decision that will give aliens less access to the courts to make claims that their constitutional rights — including First Amendment rights — have been violated. The court ruled in Reno v. American-Arab Anti-Discrimination Committee that illegal aliens are not entitled to make claims in court that they have been targeted for deportation because of their political views.

“As a general matter, an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against deportation,” Justice Antonin Scalia wrote for the court.

The ruling will likely hasten the deportation of the “Los Angeles 8,” a group of 7 Palestinians and one Kenyan who say they were singled out because of their political views. The government claims they actively supported terrorist Palestinian groups and wanted them deported. The eight claimed, among other things, that that they were being deported for the sort of fund-raising and advocacy activities that the court has found to be protected by the First Amendment. The litigation over the deportation has been going on for 12 years.

Scalia gave little ground to the selective enforcement argument, allowing only that a selective enforcement claim could be raised in the “rare case” when the government’s action was “outrageous.”

“Aliens no longer have any meaningful First Amendment freedoms because the government can target them for expulsion based on core political activities,” said Georgetown law professor David Cole, lawyer for the alien group.

Miami immigration lawyer Ira Kurzban said the ruling marked “the first time in American history” that an entire government agency — namely the Immigration and Naturalization Service had been ruled off-limits to a category of lawsuits.

Kurzban said selective enforcement claims had been made in the past by Haitian refugees and Iranian students, but not by the majority of illegal aliens targeted for deportation each year. Deportations have increased sharply in the wake of a 1996 law aimed at reforming immigration laws.

The court’s ruling was something of a surprise because when the justices agreed to consider the case last year, they had confined the case to technical questions about the timing of deportation appeals. The issue of selective prosecution, with its First Amendment overlay, was no longer in the case. Scalia ruled on it anyway.

In a separate opinion, Justice Ruth Bader Ginsburg criticized the court for doing so without “full briefing” on the selective prosecution issue. Justice David Souter also said it was a “danger” for the court to rule on issues that were not fully argued before the court.

Ginsburg also said deportation was a “grave sanction” that should not be approved if the reasons were unconstitutional. She quoted from the 1945 decision Bridges v. Wixon, which said, “freedom of speech and of press is accorded aliens residing in this country.”

On the more technical question of timing, the court ruled 8-1 that appeals of deportation orders could be made only when the orders were final — too late, in the view of immigration advocates.

The court’s vote on the selective prosecution issue was 6-3, with Chief Justice William Rehnquist and Justices Sandra Day O’Connor, Anthony Kennedy, Clarence Thomas and John Paul Stevens joining Scalia. Justices Ginsburg, Souter and Stephen Breyer dissented.