The American Dream of Constitutional rights remains elusive for undocumented immigrants, despite the courageous feats and perilous risks they have boldly faced to secure a more hopeful future for themselves and their families. That is the conclusion of a panel assembled to examine the question during the 2009 University of Florida Constitution Day program, held at the UF Reitz Student Union on Sept. 17.
Hosted by the Levin College of Law, the Constitution Day program, “The U.S. Constitution and Undocumented Immigrants,” was inspired by the university’s Common Reading Program 2009 book selection, The Devil’s Highway, which chronicles the doomed desert border crossing of a group of 26 South and Central American immigrants.
Presenters and panelists Juan Perea, Cone Wagner Nugent Johnson, Hazouri and Roth Professor professor of law, David Hudson, professor of law, Lea Johnston, assistant professor of Law, and Philip J. Williams, director of the University of Florida Center for Latin American Studies and professor of political science, took the audience on a guided tour through the history of immigration regulation — from the first statutes aimed at curtailing Chinese immigration to the present practice of limiting the protection of the Fourth Amendment in close proximity to national borders. Perea posed to the audience the broader question at stake, “What is the problem with immigration?”
Perea’s question followed his own presentation titled, “A Brief History of the Constitution and Immigration Restriction,” as well as the presentations of his colleagues. Hudson presented “Welcome to America: The Constitution and Arriving Non-U.S. Citizens,” and Johnston presented “Desert Mirage: The Elusive Protection of the Fourth Amendment for Undocumented Immigrants.”
“Congress is not clearly granted any power to regulate immigration in the constitution,” Perea explained. He added, however, that by pairing congress’ powers to regulate commerce with the “necessary and proper” clause, congress has successfully enacted laws to regulate immigration. Perea noted the Chinese Exclusion Act of 1882 as the first official legislation to regulate immigration according to race. The act, he explained, resulted from overt racism when Chinese immigrants began entering and succeeding in California. The act was upheld by the U.S. Supreme Court under the rationale that “every country has the ‘sovereign right’ to choose who will be present.”
Perea placed the influence of racism on immigration policy on the “long-lived ideology… that the United States was supposed to be a white country.”
Later regulation dubbed immigrants from Italy and Greece “non whites” and therefore undesirables. Jews wishing to enter the United States faced similar obstacles. Perea’s presentation touched on the widely-known cyclical pattern of history and the present national panic surrounding undocumented immigrants from Mexico.
“We have an old pattern of anti-Mexican-American sentiment,” Perea said. “There has been a real erosion of Constitutional protections for undocumented Mexicans and for their citizen children.” Perea also commented on the cyclical nature of Mexican immigration — during times of “labor surplus,” such as during economic crisis resulting in high U.S. unemployment rates, Perea said that Mexicans have been expelled and sent back to Mexico, sometimes with their citizen-children and sometimes without, thereby splitting families and depriving U.S. citizen-children of due process before expulsion.
Hudson explained the differences between the complicated standards that must be met for deportation of non-citizens as well as the stringent standards for excluding non-citizens from entry into the United States. He also briefly commented on the new category of removal called “expedited removal,” which takes place with no hearing, administrative approval, or judicial review.
During her presentation, Johnston sought to explore the extent to which Fourth Amendment rights against unreasonable search and seizure apply to undocumented immigrants. She explained that the text of the Fourth Amendment secures the promised rights to “the people,” rather than referring to “a person.” In the 1990 case of United States v. Verdugo-Urquidez, Chief Justice John Rehnquist suggested in dicta that this distinction extends Fourth Amendment rights to the people of the United States – citizens – but may deny illegal immigrants any rights at all.
Despite the ambiguity in case law that makes an answer to the question of precisely which rights are afforded to undocumented immigrants, Johnston stated that the question is really is a “moral issue” and that the provisions of the Constitution that protect human dignity should be extended to undocumented immigrants.
Philip J. Williams, director of the University of Florida Center for Latin American Studies, provided additional comments regarding the elusive ghost of “El Sueño Americano,” or The American Dream. The expected steps for immigrants longing to achieve this dream are to settle, assimilate, then gain citizenship, he said. Williams, however, suggested that this is rather the myth of immigration, and a far cry from reality. Echoing Perea’s earlier comments about racism ruling policy, Williams said that “immigration policy has always reflected the United States’ image of itself,” as well as how the United States sees itself among the international community.
Despite the overwhelming amount of information and research disseminated by the distinguished panelists, more questions than answers remained. Several audience members sought to answer Perea’s question about what the “problem” of immigration is.
One suggested that if conditions in Mexico improved, perhaps fewer Mexicans would seek to enter the United States. Another suggested that the United States is too lenient in enforcing criminal penalties on those who enter the country illegally, so there are insufficient deterrents in place. Both suggestions sought to curtail immigration itself without identifying why immigration is viewed as such a problem, when the United States is “a nation of immigrants.”
Nearly all of the presenters and panelists touched on the issue of racism as a primary motivating factor in anti-immigrant legislation, suggesting that perhaps the real problem with immigration is not the immigrants themselves, or the presumed effect on American jobs, but U.S. citizens’ own fears of change and the unknown.
