Equal Protection and the Immigrant: Legislating Our Way Toward Two Americas

Chapter 13
Equal Protection and the Immigrant: Legislating Our Way Toward Two Americas

Laura A. Hernández1

In what is becoming a common observation, examples of widening inequality in the United States abound. Much of the recent attention is focused on wealth inequality. This is not surprising given that monetary success serves as the American barometer of achievement. But we must dig more deeply into the root cause for the systemic reasons for this inequality, which run far deeper than the simple analogy of the “elite” top 1 percent or the “dependent” bottom 47 percent.2 When we do, it is apparent that American federal and state legislatures have passed laws that are effectively leading to the creation of a second-class population within our borders—a population comprised of recent immigrants.

Theoretically, the Equal Protection Clause should prevent such an outcome. Indeed, a fully realized Equal Protection Clause functions more as a gatekeeper than an ephemeral expression of a constitutional ideal. It exists to counteract an uncomfortable tendency in American political life to demonize the “other,” whether based on gender, race, sexual orientation or something else. Immigration status is unique in that it encompasses all of these “other” identities but adds the specter of an illegality of presence to justify what might otherwise be discriminatory legislation.

Focusing on the reduced constitutional status of the non-citizen to validate these types of laws is not an answer because their effect goes far beyond the (possibly undocumented) non-citizen. These laws harm their American-born citizen-children. This chapter will examine some of the legislation targeting non-citizens and explain why the Equal Protection Clause does not allow such discrimination.

The Non-Citizen Immigrant’s Reduced Constitutional Status

Longstanding judicial precedent dictates that non-citizens are never granted the same constitutional protection as American citizens.3 Beginning in the late 1880s, with the Chinese Exclusion Case and its progeny,4 the United States Supreme Court has expressly left the regulation of non-citizens to Congress for two primary reasons: (1) the sovereignty of the United States government; and, (2) the political question doctrine, which renders any issue involving congressional plenary authority nonjusticiable.5 As recently as1950, the United States Supreme Court infamously declared that the Due Process Clause of the Fourteenth Amendment was specifically delineated by federal legislative whim: “Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.”6

Nonetheless, more recent case law establishes that some constitutional protection is owed to non-citizens; though the scope is something of a moving target.7 Some of the factors that courts find most dispositive are the length of the non-citizen’s presence within the United States, ties to United States citizens or lawful permanent residents (otherwise described as the family unit), and good moral character.8

Tellingly, even while due-process protections were circumscribed, the United States Supreme Court invoked the Equal Protection Clause to protect non-citizens. The Court invalidated state legislation that discriminated against lawfully present non-citizens in employment,9 governmental benefits,10 land ownership,11 and financial assistance for higher education.12 Equal-protection concerns also led to the abrogation of a state statute that withheld access to public school education from undocumented non-citizens.13

At the heart of each of these decisions was a judicial concern that unequal treatment would necessarily lead to an underclass of non-citizens living within the United States. The consequences of this legally imposed stigma would then pass down to any and all of their American-born children. Current events have demonstrated that the Supreme Court’s concern was not misplaced.14

The Optimism Inspired By Plyler v. Doe

In 1982, the United States Supreme Court directly addressed a polarizing issue involving undocumented immigrants.15 Plyler v. Doe answered the question of whether undocumented immigrant children have the same right of access to primary and secondary public schools as citizen-children and lawfully present immigrant children.16 Ostensibly responding to the rising cost of public education,17 the State of Texas had legislatively denied funding to school districts that enrolled students of questionable immigration status.18 The statute further empowered those school districts to deny enrollment to any child who was unable to prove lawful status.19

In Plyler, the Texas statute clashed with the Equal Protection Clause because it created an impermissible sub-class of residents by subjecting an individual or group to its laws while simultaneously withholding the law’s protections,20 a result that placed it squarely at odds with the Fourteenth Amendment’s intent. Specifically, the Fourteenth Amendment was ratified on July 9, 1868, to counteract the rampant discrimination inflicted on this nation’s newest citizens, the freed slaves.21 The Civil War Amendments were a congressional attempt to forestall state legislatures from creating a legally imposed second-class citizenry. Reiterating the drafter’s intent, the Plyler Court expounded “[t]he Equal Protection Clause was intended to work nothing less than the abolition of all caste-based and invidious class-based legislation.”22

In keeping with its precedent under the Equal Protection Clause for lawfully present non-citizens, the Court expanded equal protection in the context of education to reach every individual domiciled in the United States, lawfully or not.23 Interestingly, the Court declined to find that undocumented non-citizens comprised a suspect class, holding instead that the voluntary nature of their legal status precluded such a designation.24 Nonetheless, the Supreme Court applied something more than the traditional rational basis standard of review.25 For the statute to be constitutional despite its discriminatory nature, it would have to further some substantial goal of the state, as opposed to a legitimate goal.26

The Supreme Court appeared to be swayed by the unique situation experienced by the Plyler plaintiffs, minor children whose unlawful entry into the country was not within their control.27 First, the Court refused to impute responsibility for their parents’ actions onto the children: “[E]ven if the State found it expedient to control the conduct of adults by action against their children, legislation directing the onus of a parent’s misconduct against his children does not comport with fundamental conceptions of justice.”28 Second, the Court held that education was an important government benefit given to all United States residents to ensure that they could beneficially participate in society by preserving the country’s political and cultural heritage.29 A wholesale denial of secondary public education to this group of resident children would necessarily result in a permanent underclass of individuals who lacked the skills and resources to better their status in American society.30

Implicitly, this language recognized that at least some of the undocumented immigrant children might one day become American citizens.31 Invoking the memory of Brown v. Board of Education, the Court analogized the legislative discrimination against undocumented immigrant children to that experienced by Black children educated in a segregated school system.32 By striking down the Texas statute, it appeared that the United States Constitution would not permit discriminatory legislation to act as a surrogate immigration-enforcement mechanism against those undocumented immigrants already present within the United States.

Unfortunately, the rationale of Plyler has not prevented recent federal and state legislation that elicits similar effects as the Texas education statute. Growing frustration over a broken immigration system and a southern border that is perceived as porous due to a lack of immigration enforcement has led state officials to fashion laws superficially aimed at the “crime”33 of illegal presence, regardless of the Equal Protection Clause or federal immigration laws.

The Political Tide Turns Against the Non-Citizen Immigrant

Long before the United States Senate began its latest attempt at comprehensive immigration reform in 2013, various state legislatures entered the arena of immigration enforcement. States began imposing new penalties and punishments for undocumented non-citizens and anyone who interacted with them. It comes as no surprise that this form of legislation was usually enacted after an influx of Latino immigrants into communities where previously there had been minimal or no Latino presence.34 The scope of these laws was troubling on many fronts, not least of which was the secondary effect of this discrimination on citizen-children.

The Housing Ordinances that Attempted to Convert Private Actors into ICE Agents

Beginning in 2006, three municipalities enacted ordinances designed to block access to housing by undocumented immigrants residing within their borders. The housing ordinances were a heavy-handed but slightly clever attempt to circumvent Plyler’s residency test while simultaneously enlisting private individuals as immigration-enforcement agents.

On October 16, 2006, the City of Escondido, California passed an ordinance entitled “Establishing Penalties for the Harboring of Illegal Aliens in the City of Escondido” (the “Escondido Ordinance”).35 The Escondido Ordinance targeted private landlords or businesses who owned and rented “dwelling units” within Escondido to tenants of undocumented status.36 The penalties included suspension of the offender’s business license, which would effectively preclude the collection of rental payments due from any of the offender’s tenants whether they were legally present in the United States or not.37 Multiple violations raised the maximum penalty to $1,000 per violation per day, a six-month jail term, or both.38 A federal district court enjoined the Escondido Ordinance before it could be enforced.39

Farmers Branch, Texas was the next municipality to pass this type of legislation.40 Ordinance 2903 (“Farmers Branch Ordinance”) found it necessary “to adopt citizenship and immigration certification requirements for apartment complexes to safeguard the public. …”41 Voters approved the Farmers Branch Ordinance on May 12, 2007.42 As in City of Escondido, a federal district court enjoined the Farmers Branch Ordinance.43 On January 22, 2008, Farmers Branch passed a revised ordinance to avoid the injunction, this time premising the ordinance on the need to “[c]ontinue to pursue strategies to address illegal immigration.”44 At the time of the revised ordinance’s passage, Farmers Branch Councilman O’Hare publicly stated that his motive for introducing the law was as follows: “I saw our property values declining … what I would call less desirable people move into the neighborhoods, people who don’t value education, people who don’t value taking care of their properties.”45 The councilman also asserted that the undocumented immigrants were largely responsible for the decline of local schools and local retail operations.46

Similarly, the City of Hazleton, Pennsylvania enacted “Illegal Immigration Relief Act” (the “IIRA”) and “Tenant Registration Ordinance” (collectively, the “Hazleton Ordinances”) in July 2006.47 Again, as in City of Escondido and City of Farmers Branch, a federal district court enjoined the Hazleton Ordinances before they could be enforced. However, this court was the only one to perform an equal-protection analysis48 because initially the IIRA allowed the city to consider race in the ordinance’s enforcement as long as race was not the sole or primary consideration.49 In response, Hazleton amended the IIRA by striking the “solely or primarily” language in an effort to create a facially neutral ordinance.50 Based on the revised language, the Hazleton court declined to find an equal-protection violation because the requisite discriminatory intent was no longer present, despite the blatantly discriminatory statements within the Hazleton Ordinances’ legislative history.51 Finally, because the Hazleton Ordinances did not implicate a fundamental right or create a suspect class, the court deemed Hazleton’s purpose for passing the legislation was rationally related to a legitimate state interest.52

Overall, each of the federal courts enjoined the municipality ordinances primarily on the basis of preemption by federal immigration laws.53 In 2013, federal appellate courts reconsidered City of Farmer’s Branch and City of Hazleton in light of the United States Supreme Court’s decisions in Arizona v. United States54 and Chamber of Commerce v. Whiting.55 Still, the Farmers Branch Ordinances and Hazleton Ordinances were held to be invalid due to their conflict with federal immigration laws and congressional plenary authority.56 The United States Supreme Court has denied certiorari in both cases.57

What is missing from these opinions is a legal analysis of the secondary effect on citizen-children when their undocumented parents are prevented from legally securing housing. While undocumented immigrants may not qualify as a suspect class per se, a class can be defined for their American offspring in both absolute and functional terms—minor children with full citizenship born to parents who are undocumented immigrants.58 In 2011, the Pew Hispanic Center estimated that there were 4.5 million United States born children to parents of undocumented status.59 According to a 2009 Pew study, over 95 percent of the children of undocumented parents under the age of five are citizen-children.60 Further, 77 percent of the children aged 14 to 17 in this group are citizen-children.61 Undoubtedly, the suspect class continues to grow.

It is undisputed that it would be legally impermissible for the municipalities of Escondido, Farmers Branch, and Hazleton to prevent a citizen from acquiring housing within their jurisdictions.62 The only factual distinction here is that this class of children has not reached the age of majority so they may legally contract.63 Children are necessarily dependent on their parents to secure housing. If, due to these types of ordinances the parents cannot provide housing, then an impermissible burden will be placed on a distinct group of citizens—a suspect class comprised of the most legally vulnerable—American children.64

DHS’s Secure Communities Program Leads to Greater Insecurity for Immigrant Communities.

Concern over border security has also led to government programs devised to locate and remove deportable immigrants who are allegedly engaged in serious criminal activity. One of these programs is Secure Communities. Launched in 2008 by the Department of Homeland Security (“DHS”), Secure Communities aims to facilitate the goal of prioritizing the removal of criminal aliens.65 Through this program, Immigration and Customs Enforcement (“ICE”) capitalizes on an existing “information-sharing partnership” between the Federal Bureau of Investigation (“FBI”) and local law enforcement jurisdictions.66 Specifically, local law enforcement authorities commonly submit the fingerprints of all individuals who are arrested to the FBI to check for existing criminal records.67 With the introduction of Secure Communities, the FBI now automatically forwards those same fingerprints to ICE so that it may check the prints against the immigration database. If the individual is determined to be subject to removal,68 then “ICE generally issues a detainer, requesting that the state or local jail facility hold the individual up to an extra 48 hours (excluding weekends) to allow for an interview,”69 after which ICE determines whether to begin removal proceedings.70 As of January 2013, 100 percent of the 3,181 United States jurisdictions are now “activated” Secure Communities.71

ICE claims Secure Communities has prioritized both the removal of “aliens who pose a danger to national security or a risk to public safety, including aliens convicted of crimes, with particular emphasis on violent criminals, felons, and repeat offenders”72 and “recent illegal entrants, individuals who have repeatedly violated immigration laws, and aliens who are fugitives.”73 There are three levels of potential criminal detainees: “Level 1: Individuals who have been convicted of major drug offenses, national security crimes, and violent crimes such as murder, manslaughter, rape, robbery and kidnapping”; “Level 2: Individuals who have been convicted of minor drug and property offenses such as burglary, larceny, fraud and money laundering”; and, “Level 3: Individuals who have been convicted of other offenses.”74

From the inception of Secure Communities in 2008 through August 31, 2012, ICE reports “more than 166,000 immigrants convicted of crimes were removed from the United States after identification through Secure Communities.”75 Of those removed, ICE reported that “more than 61,000 immigrants were convicted of aggravated felony (Level 1) offenses.”76 In the most recent reporting period, October 2012 through November 2013, ICE identified 319,982 individuals for removal.77 Of these, 31 percent were Level 1 offenders, 19 percent were Level 2 offenders, and 30 percent were Level 3 offenders.78 Therefore, of all those deported, 69 percent were convicted of a crime below an aggravated felony.79

Yet, there is growing resistance against Secure Communities not only from pro-immigrant organizations but also from the local law enforcement jurisdictions that are the linchpin of the program. Initially, local jurisdictions were told that participation in Secure Communities was not mandatory and a jurisdiction could decide to “opt-out” of the program.80 ICE has since clarified that although a local law enforcement agency “may choose not to receive the identifications that result from processing the fingerprints through DHS’s biometric system,” the jurisdiction may neither opt-out of the program nor affect whether ICE will act on the results of the fingerprint search.81

Nonetheless, some state and local governments are attempting to escape the mandate of Secure Communities.82 Illinois Governor Pat Quinn, Massachusetts Governor Deval Patrick, and New York Governor Andrew Cuomo have all attempted to leave Secure Communities.83 Governor Cuomo sent a letter to DHS stating: “The heart of the concern is that the program, conceived of as a method of targeting those people who pose the greatest threat to our communities, is in fact having the opposite effect and compromising public safety by deterring witnesses to crime and others from working with law enforcement.”84 There is also resistance among municipalities.85 Local jurisdictions are concerned that the program has disintegrated communication between law enforcement and the immigrant community, leading to decreased security for the community as a whole.86 Additionally, local governments and taxpayers shoulder the financial burden of the ICE detainers.87 For instance, Los Angeles County has calculated additional costs of $26 million per year to comply with Secure Communities.88

There is also judicial “clarification” to the mandatory nature of Secure Communities. The Third Circuit of the United States Court of Appeals recently held that ICE immigration detainers issued pursuant to the program are not mandatory; therefore, municipalities can be held liable under section 1983 for the unconstitutional detention of a citizen pursuant to the detainer request.89 The authority for immigration detainers is found in 8 C.F.R. § 287.7. It states in part: “A detainer serves to advise another law enforcement agency that the Department seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien. The detainer is a request that such agency advise the Department, prior to release of the alien … such agency shall maintain custody of the alien for a period not to exceed 48 hours …”90

In Galarza v. Szalczyk, the Third Circuit found that throughout the regulation, the term “request” is used.91 While the regulation also contains the phrase “shall maintain custody,” it does not alter the permissive nature of a detainer for three primary reasons. First, a review of case law reveals that “[a]ll Courts of Appeals to have commented on the character of ICE detainers refer to them as ‘requests’ or as part of an ‘informal procedure.’” Second, the INA “does not authorize federal officials to command state or local officials to detain suspected aliens subject to removal.” Third, ICE’s policies and litigation positions are consistent with the interpretation that detainers are requests.92 Moreover, a constitutional analysis raises Tenth Amendment concerns under the principle of anti-commandeering.93 Perhaps in recognition of a flawed interpretation, ICE retreated from its stance of mandatory detainers with the following statement: “While immigration detainers are an important part of ICE’s efforts to remove criminal aliens who are in federal, state or local custody, they are not mandatory as a matter of law.”94

Once again, the zeal over border security has led to a costly program that is not serving law-enforcement purposes. Importantly, the inherent distrust between the immigrant community and police agencies only grows larger when lawfully present immigrants (including naturalized citizens) and undocumented immigrants with no criminal background are caught in the web created by Secure Communities. For example, the plaintiff in Galarza was an American citizen who was imprisoned for three days pursuant to an ICE detainer even after he posted a $15,000 bail.95 The authorities simply did not believe his claim of citizenship even after he produced a social security card and a state driver’s license.96 As with the housing ordinances, the citizen-children of undocumented immigrant parents are especially vulnerable to this form of constitutional injury. If the child is ever in police detention, authorities are likely to scrutinize the child’s claims of citizenship to the same degree, if not more, than that of Mr Galarza. Between distrust of the authorities and the potential for wrongful removal, programs like Secure Community effectively and impermissibly restrict citizen-children’s access to local law enforcement.

The Developing Controversy over Professional Licensing for the Undocumented Immigrant

If America is a meritocracy, then the Plyler decision ensured access to the tool of meritocracy, education.97 It is not implausible to believe that the Supreme Court intended to allow undocumented immigrants to participate in the American Dream.98 Therefore, it seems inevitable that the United States would face an obvious consequence of a large undocumented population: individuals, with no legal status, who have otherwise earned all of the credentials required for a professional license. The issue has come to full fruition with respect to attorney admissions. Currently, State Bar agencies across the country are struggling with the question of whether state-licensing requirements can prevent qualified undocumented applicants from obtaining a law license.

Interestingly, the requirement of lawful immigrant status before one can be licensed as an attorney is a relatively recent occurrence.99 Its introduction can be traced back to federal immigration reform in the late 1990s.100 Responding to what it perceived as escalating levels of undocumented migration, Congress sought to curtail the influx of this population, especially from Mexico and Latin America.101 Legislatures and agencies enacted severe restrictions to disincentivize those who were residents without government permission.

Congress passed two statutory schemes: the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) and the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (“PRWORA”).102 The PRWORA contains a statutory provision that limits, among many, many other things, the licensing of undocumented individuals.103 It states:

(a) Notwithstanding any other provision of law and except as provided in subsections (b) and (d), an alien who is not—(1) a qualified alien (as defined in section 431), (2) a nonimmigrant under the Immigration and Nationality Act, or (3) an alien who is paroled into the United States under section 212(d)(5) of such Act for less than one year, is not eligible for any State or local public benefit (as defined in subsection (c)) …104

(c) (1) Except as provided in paragraphs (2) and (3), for purposes of this subtitle the term “State or local public benefit” means—(A) any grant, contract, loan, professional license, or commercial license provided by an agency of a State or local government or by appropriated funds of a State or local government; and …105

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