Excerpted From: Lenni B. Benson, The Danger of Dissent: A Century of Targeting Immigrants, 65 New York Law School Law Review 133 (2020/2021) (214 Footnotes) (Full Document)


LenniBBensonImmigration law exists as a border guardian; its terms decide “who may enter” and “who may stay.” At least, that is the basic policy assumption, for--in reality--immigration statutes are but the “blunt instrument[s]” deployed by human border guards, examiners, judges, and others assigned to operate the immigration apparatus and decide whether an individual qualifies for admission. These bureaucratic borders are powerful and too frequently operate without transparency or judicial review.

To complicate immigration law further, legislators also turn to immigration restrictions to realize domestic or foreign policy goals. For example, Congress reacted quickly to the 1995 bombing of the Oklahoma Federal Building by expanding the grounds for deportation to protect the public; however, the bombing proved to be the work of domestic terrorists. Both the legislative and the executive branches have repeatedly turned to immigration enforcement, particularly schemes of exclusion and deportation, to further unrelated policy goals.

Immigration law exposes the vulnerability of noncitizens. When government restrictions impair the rights of noncitizens to speak, write, lecture, or advocate, the greatest distinctions between the rights of noncitizens and citizens are exposed. History elucidates too many troubling examples of regulations spiraling into the xenophobic prosecution of entire immigrant communities. Rather than learning from these errors, however, the American society has acquiesced to a cyclical pattern of the usurpation of immigrant rights. The so-called “Palmer Raids” of 1919 and 1920 and the so-called “Muslim ban” of 2017 illustrate the consequences of allowing discrimination against noncitizens to lurk in the shadows of immigration policy for nearly 150 years. After exploring the foundations of immigration law, this article primarily focuses on the Palmer Raids and political dissidents such as Emma Goldman and Alexander Berkman; it also discusses some of the contemporary attacks on the liberty of immigrants in 2019 and 2020.

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It is easy to draw parallels between the dark elements of the Palmer Raids and the travel ban, and it is sometimes easy to forget that these events are separated by an intervening century touted for political, legal, and judicial progress. Not even various intermediary immigration law “reforms” can avert the blurring of temporal lines. Although laws and regulations have changed, 1919 and 2017 noncitizens are almost indistinguishable when viewed through a constitutional lens. Trump v. Hawaii confirmed the soundness of the federal government's plenary power in the immigration realm. If courts continue affording the executive such deference, presidents--from Wilson to Trump and beyond--will continue to wield immigration law to accomplish otherwise illegal policy goals and motivations.

Statutory and regulatory reforms are crucial to bringing the legal status of noncitizens into parity with citizens. But until the Supreme Court augments the constitutional guarantees afforded to immigrants, progress will remain slow. Guarantees of equal protection are enshrined in the Constitution, but such rights are curtailed by courts when applied to noncitizens. Indeed, an 1886 Supreme Court case arguably remains the high-water mark for immigrant rights under the Equal Protection Clause. Perhaps it is time to demand more from our judiciary.

The repetition of centuries-old errors will remain the topic of future symposia on immigration law so long as the law permits our leaders to treat immigrants differently than citizens. In 2019, more than seventy-five thousand children were apprehended at our southwest border, while countless others were forcefully separated from their parents and detained by Immigration and Customs Enforcement (ICE). In the spring of 2020, based on public health law and the COVID-19 pandemic as the statutory authority to control the borders, thousands have been summarily rejected and deported at the border without any hearings or procedures. Over the past few years, ICE has conducted large-scale raids across the country, targeting undocumented immigrants for deportation. In July of 2019, the Trump administration expanded the power of DHS agents to arrest people within the United States and to summarily deport them using expedited removal procedures if an individual could not establish lawful admission and inspection within the past two years.

What is clear is that the Trump administration believed that the power over immigrants gave the DHS authority to control the lives of noncitizens. During the COVID-19 pandemic, the administration took more than forty-five actions that directly or indirectly impacted immigrants inside and outside the United States. Today, approximately 14 percent of the U.S. population was born abroad and--while most people are residing with some lawful status or have naturalized--we have a population of over ten million who cannot immediately document their status. Of these ten million, more than 60 percent have lived in the United States for over ten years and millions are living in mixed-status households. Four million U.S. citizen children have at least one parent who is vulnerable to deportation.

While some may see the use of expedited procedures and the current expansion of border controls as properly within the DHS's purview, those interpreters do not fully understand how the machinery of enforcement is likely to impact us all. Who will be stopped and interrogated? Who will be questioned about their citizenship? How many immigrants and citizens will live in fear of enforcement? Is this attack on immigrants really separable from attacks on U.S. families?

Traveling through time and capturing the status of noncitizens at flashpoints in American history, it becomes clear that today's challenges are vestiges of our nation's dark and painful past of discrimination against immigrants. The more we learn about this history and the recent attacks on the liberties of immigrants, the more we see that the freedoms that serve as cornerstones of our democracy are perhaps more fragile than we believe.

Lenni B. Benson is a Distinguished Chair in Immigration and Human Rights Law, New York Law School; Founder and Senior Advisor, Safe Passage Project. J.D. Arizona State University College of Law, 1983; B.S. Arizona State University, 19