Proposed Immigration Bill in Violation of Constitution and Treaty Obligations


Give me your tired, your poor

Your huddled masses yearning to breathe free

This inscription at the base of the Statue of Liberty epitomizes the important role immigrants have played throughout this country’s history. Yet despite our idealized “melting pot” image, the United States has often restricted access across our borders and failed to adequately protect the rights of those who have risked their lives and uprooted their families to escape persecution or economic hardship.

Bill HR 4437, which passed the House this past December, would take a further step towards eroding any remaining image of the United States as a nation welcoming to immigrants. Many of its harshest provisions are currently being contemplated by the Senate Judiciary Committee. Not only are many of these proposed provisions unnecessarily harsh, they fail to adequately account for current practical realities Some are even arguably in violation of both United States treaty obligations and the United States Constitution.

One very troubling aspect of the pending legislation involves the criminalization of undocumented presence. By making it a criminal offense to set foot in this country while undocumented, the bill ignores the central role undocumented workers play in this nation’s economy. It is a common practice for employers to actively recruit undocumented workers and indeed the national economy depends upon their labor. Yet under the proposed bill, undocumented people who have come into this country seeking simply employment opportunities in order to provide basic necessities for their families could be charged with a felony, thrown into prison, deported, and restricted from ever legally attempting to enter the country in the future.

Moreover, the bill does not restrict criminalization only to those who enter the country as undocumented. It also applies to those whose visas have lapsed. As such, a student or employee legally in the country who subsequently drops below a certain number of credits or gets laid off from a job could be convicted of a felony.

The law also extends criminal sanctions to anyone, including a United States citizen, who “aids and abets” in an immigrant’s undocumented presence, and by expanding the definition of “alien smuggling,” the bill penalizes those who generously give of themselves to protect marginalized members of society. For instance, by making it illegal to assist or transport a person who one knows or should know to be undocumented, the bill exposes to criminal penalties everyone from social workers and legal aid attorneys to soup kitchen volunteers and bus drivers. Indeed, a friend or family member who drives an undocumented person to the supermarket could fall prey to the criminal reach of the legislation. Even if not strictly enforced to include these seemingly innocent and even praise-worthy actions, the bill’s broad, open-ended language creates at the very least a significant danger of both selective enforcement and racial profiling.

In addition to these troubling aspects of the legislation, other provisions raise Constitutional questions, specifically with regard to due process, the separation of powers, and equal protection. For example, many contend that by eliminating the ability of refugees to appeal deportation decisions, the legislation denies such persons their fundamental due process rights under the Fifth Amendment. Furthermore, by authorizing state and local officers to enforce federal immigration law, the legislation not only will increase tensions between immigrants and local police officers and divert police resources away from traditional criminal law, but also will potentially infringe on the federal government’s power to regulate immigration under Article I. It will also create the potential to violate the equal protection clause of the Fourteenth Amendment; by placing state and local officers in the difficult position of applying incredibly nuanced federal immigration laws, disparate treatment with regard to enforcement will likely ensue across states and localities.

Finally, compounding the constitutionally questionable aspects, some proposed provisions violate this country’s treaty obligations under the International Refugee Convention. Specifically, by imposing criminal penalties on a person who had to forge documents in order to escape persecution in her home country and by denying appeals to deportation determinations, the legislation flatly violates Articles 31 and 32 of the Refugee Convention that explicitly prohibit such practices.

In sum, then, the Senate Judiciary Committee is currently contemplating the creation of impractical and unnecessarily harsh legislation that at least arguably violates the Constitution and United States treaty obligations. While this country needs to address the issue of how to deal with the estimated ten to twelve million undocumented immigrant within its borders, any solution should recognize the current and historical contributions of those undocumented people to this nation’s economic and social development. If there remains even the tiniest semblance of our self-image as a nation welcoming to those fleeing persecution or seeking economic opportunity, then let us continue to work toward a practical solution that recognizes the civil, political, and human rights of all.

Scott Paltrowitz is a member of the Harvard Immigration Project (HIP).

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