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Immigrants facing Immigration Court find little solace in Constitution
by Mary Losure, Minnesota Public Radio
November 4, 2003

Lam Phan is fighting his father's deportion. "This is way over my head. I feel helpless in this situation," he says. (MPR Photo/Mary Losure)

The U.S. Constitution guarantees certain rights to all Americans. It says you can't be be deprived of your liberty without due process of law, for example. But under a legal doctrine that goes back more than 100 years, the U.S. Supreme Court has consistantly ruled that constitutional rights don't neccessarily apply to non-citizens. Millions of non-citizens who live in this country face a little-known entity: immigration courts.

Bloomington, Minn. — The chambers of the Executive Office for Immigration Review in Bloomington, Minn., look like any ordinary courtroom. A black-robed judge sits on a low platform. Below him are tables for the lawyers, separated from the rest of the courtroom by a wooden railing, just the way they are on TV.

But in this courtroom, at the table for the defense, there are often no lawyers.

The whole way over there they were asking me, 'Daddy, where are we going?' I tried to explain for them the easy way, and when we get there downstairs and went to that room where there are the jail cells, there's two of them over there, they were taking their finger (prints). 'Daddy what did we do, what are we doing here?' - "Tony"

On this day, a middle-aged Vietnamese man sits there, accompanied only by his 20-year-old son. The father faces deportation because of past convictions for petty theft.

He doesn't speak English, so his son, Lam Phan, is acting as his translator. Lam Phan requests a lawyer, but the request is turned down because this case falls under civil law, not criminal law.

So do all other deportation proceedings.

That means defendants in deportation cases do not have the right to a free, government-appointed attorney. Their cases are comparable to a civil lawsuit, where there is also no right to a government attorney.

It's a distinction that Lam Phan didn't understand before. "I thought it was a criminal case, because it acts like a criminal case, because it's my Dad against the government. It's not between him and somebody else."

During the hearing, the judge urged the Phans to bring a lawyer for their next court appearance.

But it won't be easy, Lam Phan says as he and his father walk soberly to their car for the long drive back to Sioux Falls, S.D.

"There's only one attorney in South Dakota that does immigration law and he wanted $5,000 up front to take on the case.

"(I will) go back, talk to a lawyer friend that can't take up the case because he doesn't practice immigration law. He's the one that helped us with the dismissal of the two petty cases that they brought up, and go from there."

Their lawyer friend has helped Lam Phan file some papers, but otherwise, the 20-year-old has been on his own.

The judge told Lam Phan during the hearing that the dismissal of the petty theft cases may not have been done properly; that is, in a way that would prevent his father's deportation under the complex rules of immigration law.

But there's not a lot Lam Phan can do about that now. "This is way over my head. I feel helpless in this situation," he says.

Figures from the U.S. Department of Justice show that nationwide, more than half of all those who appear before Immigration Courts are not represented by attorneys. And even though these are considered civil cases, immigration courts have the power to imprison people.

Nationwide, immigration authorities detain tens of thousands of non-citizens each year, for periods that can range from months to years. The court proceedings that result in such detentions have less stringent standards of evidence than criminal trials. They can also be closed to the public.

Immigration Court records are available to the public only if a Freedom of Information Act request is filed. This separate set of legal standards for immigrants has a long history and tradition in U.S. law.

Congress has the right to control who enters and leaves the United States. And the Supreme Court has consistently ruled that the rights of immigrants are secondary to Congress's right to control the nation's borders.

"The Constitution says that you can't be deprived of life, liberty or property without due process of law. And the Supreme Court has said, that as to non-citizens, you don't have any protectable life, liberty, and property interests in being in the United States, other than on the terms that Congress has set," according to Jack Chin, a law professor at the University of Arizona's Law School.

It's a legal doctrine that dates back to 1882, when Congress passed the Chinese Exclusion Act, which prohibits any person of Chinese racial ancestry from entering the U.S.

It was tested in the case of a Chinese immigrant who was returning to this country after visiting his family in China. He was taken into custody in San Francisco. He challenged the constitutionality of the law, but the Supreme Court ruled against him.

"The Justice Department persuaded the Supreme Court that there was a serious argument that if Chinese were allowed to emigrate on the same basis as members of other races; that American civilization itself was imperilled," Chin says. "The Supreme Court said, 'to preserve its independence and give security against foreign aggression and encroachment is the highest duty of every nation, and to attain these ends nearly all other considerations are to be subordinated.'"

That principal has been upheld over the years. For example, in the 1950s Congress passed a law authorizing deportation of any alien who had ever belonged to the Communist Party. The law was challenged on constitutional grounds, but not overturned.

The separate legal standards that apply to immigrants make it difficult to challenge immigration rules some see as discriminatory.

As part of the war against terror, men from 25 Muslim and Arab countries were required to come and specially register with immigration authorities. Thousands now face deportation for immigration violations.

St Paul immigration attorney Patricia Mattos says while people from other countries are allowed to continue trying to straighten their cases out, men targeted by the special registration program are being sent to the immigration courts for deportation.

She says her clients are fearful and disillusioned. "I had a client who was preparing for the naturalization exam and one of the questions is what are three rights guaranteed by the Bill of Rights. He is a Muslim. The first thing out of his mouth was 'freedom of religion, which I no longer have.'"

One of Mattos' clients is a Lebanese man who overstayed his visa.

Tony, who prefers not to give his last name, had lived here 15 years when he and his teenage sons were called in to be fingerprinted under the special registration program. Tony's wife was not included, since the program applies only to men.

"The whole way over there they were asking me, 'Daddy, where are we going?' I tried to explain for them the easy way, and when we get there downstairs and went to that room where there are the jail cells, there's two of them over there, they were taking their finger (prints). 'Daddy what did we do, what are we doing here?'"

In time, some immigration laws have come to be perceived as unjust, but in general, Congress, not the courts, has put an end to them. But that has sometimes taken decades.

The Chinese Exclusion Act was not repealed until 1943, more than 60 years after it was passed.

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