Alien rights and naturalization and the Supreme Court

Description: The rights held by people who are not citizens of the United States and the process by which people who are not citizens become citizens.

Significance: The Supreme Court played a critical role in determining the rights of both resident aliens, noncitizens legally living in the United States, and undocumented aliens, noncitizens in the country illegally. The Court also influenced the rights of aliens to become citizens and to maintain citizenship.

The U.S. Constitution touches on the definition of citizenship only indirectly and makes no provisions for how aliens, or noncitizens, may become citizens. Moreover, although the amendments to the Constitution enumerate rights, it is not clear to what extent these rights apply to people who live in the United States but are not U.S. citizens. Because the Supreme Court is entrusted with interpreting the Constitution and establishing whether laws are consistent with this document, it has played a critical role in determining the rights of aliens.

Exclusion and Deportation

Congress has the constitutional power to decide which noncitizens may enter the United States and who may be excluded. During the first century of the nation’s existence, Congress made little use of its power to restrict immigration. One of the earliest pieces of immigration legislation was the Chinese Exclusion Act of 1882, which barred the entry of Chinese laborers for a period of ten years. The Supreme Court upheld the right of Congress to exclude an entire national group from entering the country in Chae Chan Ping v. United States (1889) and in Fong Yue Ting v. United States (1893).

In theory, Congress could exclude all aliens from entering the United States because there is no constitutional right to immigration. Prior to entry, aliens have no constitutional rights. In Chew v. Colding (1953), the Court ruled that those who have successfully entered the country are protected by First Amendment rights to free speech, Fourth Amendment protections against unreasonable searches and seizures, and Fourteenth Amendment guarantees of equal protection of the law. Outside of the United States, however, these protections do not apply. The lack of constitutional rights by aliens seeking entry became clear in Shaughnessy v. United States ex rel. Mezei (1953). Ignatz Mezei was a Romanian citizen who was a resident of the United States for twenty-five years. He returned to Romania to visit his mother in 1948. When he attempted to reenter the United States, first an immigration inspector and then the U.S. attorney general ordered him excluded. He was held on Ellis Island, which the Court ruled was “on the threshold” of U.S. territory. His confinement there could not be considered a violation of the Fourth Amendment because he was not in U.S. territory. The Court affirmed this principle in United States ex rel. Knauff v. Shaughnessy (1950), in which the German wife of an U.S. citizen was denied entry into the United States and held for months on Ellis Island. The Knauff-Mezei doctrine, that aliens outside the United States do not have constitutional protection, continued to be in effect, but the Court moderated it somewhat in the following years. In Landon v. Plasencia (1982), the Court ruled that an alien who has established legal resident status in the United States does not lose that status merely by traveling overseas and may be deported but not excluded.

Congress has consistently excluded individuals on political grounds, such as association with a government opposed to the United States or membership in a political organization thought to be opposed to U.S. interests. Writers, artists, and intellectuals have often been among those excluded on these grounds. In 1969 the Justice Department refused to grant a visa to the Belgian journalist Ernest Mandel, who had been invited to speak at universities in the United States. Citing the Chinese Exclusion Act, the Court upheld the right of Congress to determine on political grounds who can be admitted to the country.

In deportation, a noncitizen who has already entered the United States, either legally or illegally, is denied the right to remain and sent back to the country of origin. The Court officially recognized the right of Congress to enact deportation laws in the 1892 case Nishimura Ekiu v. United States. Aliens facing deportation enjoy more rights than those who are excluded because the former are actually in U.S. territory. Undocumented aliens, those in the United States illegally, make up the bulk of the deportations from U.S. soil. Deportation proceedings are not considered trials but civil procedures, so those being deported do not have all the safeguards given to defendants in criminal trials.

Being an undocumented alien is in itself a reason for deportation. However, resident aliens are also subject to deportation. In Marcello v. Bonds (1952), the Court upheld the government’s right to deport a resident alien for violation of a marijuana law years earlier. In Galvan v. Press (1954), the Court approved the deportation of Juan Galvan, a resident alien, for having been a member of the Communist Party, even though it was a legal party at the time that Galvan was a member.

Rights to Employment

A number of Court rulings have affirmed the right of aliens residing legally in the United States to employment without discrimination by state or federal regulation. The Fourteenth Amendment to the Constitution, ratified in 1868, requires that all states give equal protection of the laws to all persons residing within their jurisdictions. In Yick Wo v. Hopkins (1886), the Court struck down a San Francisco city ordinance aimed at preventing Chinese nationals from operating laundries on the grounds that this was a violation of the Fourteenth Amendment. Four decades later, in Truax v. Raich (1915), the Court ruled unconstitutional an Arkansas statute that limited the number of aliens that any employer could hire. Citing Yick Wo, the Court ruled that the language of the Fourteenth Amendment included noncitizens under its protection. The Court’s decision observed that the right to work at common occupations was essential to the personal freedom that the amendment was intended to secure. Further, it observed that the power to control immigration is given by the Constitution to the federal government. If a state limits the opportunity for immigrants to earn a living, the state effectively limits immigration, which it does not have the authority to do.

The Court has permitted both state and federal governments to refuse employment to noncitizens in some circumstances. The job of police officer, for example, may be restricted to citizens only. In Foley v. Connelie (1978), the Court upheld a New York state law that allowed only citizens to become state troopers. Chief Justice Warren E. Burger, who wrote the decision in this case, explained that police officers are found throughout American society and exercise wide powers over those U.S. citizens who have contact with them. Similarly, in Cabell v. Chavez-Salido (1982), the Cousrt upheld a California statute requiring probation officers and those in similar occupations to be U.S. citizens. The idea that governmental positions of authority and responsibility can be restricted on the basis of citizenship was also extended to teachers in Ambach v. Norwick (1979). In this case, the Court gave its support to a New York statute that prohibited giving permanent teacher certification to an alien unless the alien demonstrated an intention to become a U.S. citizen.

In general, the Court has ruled against barring noncitizens from civil service jobs, but it has left state and federal governments the right to exclude foreigners from civil service positions when there are compelling political reasons to do so. In Sugarman v. Dowell (1973), the Court struck down a New York law that allowed only citizens to get competitive civil service jobs because people holding high-level and elective positions, who were in the most sensitive and authoritative positions, were exempted. In Hampton v. Mow Sun Wong (1976), the Court ruled that a regulation of the federal Civil Service Commission that prohibited noncitizens from taking civil service jobs violated the Fourteenth Amendment guarantee of equal legal protection. However, the Court also indicated that the regulation would be permissible if it came from the president or Congress, rather than from a mere governmental agency.

The Court has distinguished between employment discrimination on the basis of ethnic or racial background and discrimination in employment on the basis of citizenship by private employers. Although discrimination against noncitizens by state or federal government is usually prohibited by the Fourteenth Amendment guarantee of equal protection, the employment policies of private employers are not laws and therefore are not covered by this guarantee. In private employment, employers are prohibited from discriminating on the basis of race, color, sex, religion, or national origin by Title VII of the Civil Rights Act of 1964. None of these prohibitions, however, keeps private employers from discriminating on the basis of citizenship. In Espinoza v. Farah Manufacturing Co. (1972), the Court ruled that Farah Manufacturing Company’s decision to hire only U.S. citizens was not equivalent to discrimination on the basis of national origin because the company did employ large numbers of Americans of Mexican descent, the primary national origin of the noncitizens who were refused employment.

Rights to Public Education and Public Assistance

By definition, noncitizens who are in the United States illegally do not have the right to employment. However, the Court has issued rulings that have recognized the rights of both resident aliens and undocumented aliens to some of the other advantages of American society. One of the advantages of residence in the United States is access to the U.S. system of free public education. By the early twentieth century, free and compulsory public schools had been established in all areas of the United States. The right of children of noncitizen immigrants to attend these schools was widely accepted. Indeed, the “Americanization” of children from various ethnic backgrounds was seen by Americans in many areas with large immigrant populations as an important function of public education.

The right of children of illegal immigrants to education at the public expense was a much more controversial issue, particularly as popular concern over illegal immigration increased from the late 1960’s onward. This issue came before the Court in the controversial case of Plyler v. Doe (1982). A section of the Texas Education Code allowed school districts in Texas to either prohibit undocumented alien children from attending public schools or to charge the families of these children tuition.

Those who opposed the Texas statute maintained that employers in the state deliberately attracted illegal immigrant labor and that keeping undocumented aliens out of the school system would help to maintain a permanently disadvantaged and undereducated class of workers. Those who supported it pointed out that undocumented aliens could not expect to enjoy the benefits of a society when they were in that society illegally. They also claimed that if the Court upheld the statute, states would be obligated to extend every public benefit to all illegal immigrants who managed to escape capture. In its 1982 decision, the Court for the first time explicitly stated that undocumented aliens did enjoy the equal protection of the law guaranteed by the Fourteenth Amendment and that the Texas statute was therefore unconstitutional. However, Justice William J. Brennan, Jr., who delivered the decision, also stated that some public benefits can be denied to adult illegal immigrants because adult aliens in the United States without proper documents are intentionally breaking the law.

Although the right of resident aliens to public education has been widely accepted, their right to public assistance has been controversial. The case Graham v. Richardson (1971) dealt with the right of aliens to receive welfare benefits. The petitioners in this case challenged two state statutes: an Arizona statute requiring individuals receiving disability benefits to be U.S. citizens or residents for a minimum of fifteen years and a Pennsylvania statute that denied general assistance benefits to noncitizens. The Court ruled that the states could not restrict to citizens the benefits of tax revenues to which aliens had also contributed because this would violate the equal protection clause of the Fourteenth Amendment. However, the Court also observed that the federal government had the power to set policies toward immigrants. This made it possible for Congress to restrict access of resident aliens to some welfare benefits in 1996.

Rights of Suspected Illegal Aliens

The Immigration and Naturalization Service (INS) is charged by Congress with regulating the movement of aliens into the United States. This means that INS officers have the power to detain, interrogate, and arrest those suspected of having entered the United States illegally. However, the Fourth Amendment guarantees to all those on U.S. soil citizens or noncitizens freedom from unreasonable searches and seizures. Because many Americans living near the Mexican border are of Mexican or Hispanic ancestry, moreover, the duty of the INS to find suspected illegal aliens raises the continual danger that Mexican or Hispanic Americans will be placed under suspicion without justification. In making rulings on issues in this area, the Court had to balance the duties of immigration officers with the Fourth Amendment rights of suspected illegal aliens.

One of the chief limitations on the detention of suspected illegal aliens resulted from the case of Almeida-Sanchez v. United States (1973). In this case, the Court ruled that immigration officials could not use roving patrols far from the border to stop vehicles without a warrant or probable cause. This meant that immigration officers had to be able to demonstrate that a search by a roving patrol took place either at the border or at the equivalent of a border, such as an airport.

The practice of detaining suspected illegal aliens because of appearance or language is a difficult matter because it can easily be seen as discrimination against members of minority groups in the United States. The District of Columbia circuit court, in Cheung Wong v. Immigration and Naturalization Service (1972), ruled that immigration officers were justified in stopping and interrogating two individuals who did not speak English and who were Chinese in appearance outside of a restaurant that was suspected of employing illegal immigrants. This issue came before the Court in United States v. Brignoni-Ponce (1975). The Court ruled that roving patrols could stop vehicles to question suspected illegal aliens, but they could not use appearance alone as a justification for stopping people. Race or apparent ancestry alone was not enough cause for an officer to detain an individual. In Brignoni-Ponce, though, the Court did allow officers to take ancestry into consideration along with other factors when deciding to investigate the legal status of a suspected alien.

Naturalization and Denaturalization

Resident aliens who are not U.S. citizens may become citizens through naturalization. The conditions under which an alien may become a citizen are determined by Congress, and the power of Congress to set these conditions has been continually affirmed by the Supreme Court. The first Naturalization Act, passed in 1790, restricted citizenship through naturalization to “free white persons” of good character. Before the Civil War (1861-1865), nonwhites born on U.S. soil were considered ineligible for citizenship. With the passage of the Fourteenth Amendment, nonwhites born in the United States were granted U.S. citizenship, but people who were not of European ancestry continued to be ineligible for naturalization. The Court upheld this racial restriction on naturalization in the case of Ozawa v. United States(1922). Takao Ozawa had immigrated to the United States as a child in 1894, graduated from Berkeley High School, and attended the University of California. When Ozawa applied for citizenship at the U.S. District Court for the Territory of Hawaii, the court ruled that he was qualified for citizenship in every way except one: He was not white. On appeal, the Supreme Court ruled that Ozawa was not entitled to naturalization as a U.S. citizen because he was not of European descent. Although the United States no longer has naturalization policies that intentionally discriminate on the basis of race, this is a result of legislation rather than of judicial rulings on discrimination in naturalization.

Naturalization laws continue to require that new citizens support the basic form of government found in the United States. Those who, during a ten-year period before application for naturalization, were members of anarchist, Communist, or other organizations considered subversive may be barred from citizenship. The Court placed some limitations on these political restrictions in Schneiderman v. United States (1943).

Just as Congress determines the conditions under which individuals may be naturalized, it also historically determined the conditions under which they may be denaturalized, or stripped of their naturalized citizenship. Before the late 1950’s, the Court usually did not question the right of Congress to take citizenship from the foreign born. However, in Trop v. Dulles (1958), Chief Justice Earl Warren recognized the seriousness of denaturalization when he observed that deprivation of citizenship could be seen as a violation of “the principles of civilized treatment.” In Schneider v. Rusk (1964), the Court ruled that naturalized citizens could not lose their citizenship merely for living outside of the United States for extended periods of time. The greatest judicial limitation on denaturalization came in Afroyim v. Rusk (1967), in which a Polish-born citizen’s citizenship was removed for voting in an Israeli election. The Court ruled that Congress has no constitutional power to remove citizenship without the voluntary renunciation of the individual concerned. After this case, denaturalization has been limited to cases in which the government can prove that a foreign-born person obtained citizenship illegally or fraudulently.

Bibliography

One of the most informative works on the rights of aliens is Without Justice for All: The Constitutional Rights of Aliens (Westport, Conn.: Greenwood Press, 1985) by Elizabeth Hull. The Rights of Aliens and Refugees: The Basic ACLU Guide to Alien and Refugee Rights (Carbondale: Southern Illinois University Press, 1990) by David Carliner, Lucas Guttentag, Arthur C. Helton, and Wade Henderson is a practical handbook on the rights of noncitizens put together by the American Civil Liberties Union. Gerald L. Neuman’s Strangers to the Constitution: Immigrants, Borders, and Fundamental Law (Princeton, N.J.: Princeton University Press, 1996) is an academic consideration of problems in applying U.S. constitutional law to noncitizens and discusses case law interpretations of immigrant rights. In Rights Across Borders: Immigration and the Decline of Citizenship (Baltimore, Md.: Johns Hopkins University Press, 1998), sociologist David Jacobson argues that the growth of immigrant populations in the United States and other countries has led to the granting of rights formerly reserved to citizens. He maintains that this has weakened the status of citizenship. U.S. Immigration Law (Dallas: Pearson Publications, 1998) by Jeffrey A. Helewitz is a thorough introduction to the immigration law of the United States that includes historical background and cases.