Immigrants: Your Liberty Interests Affirmed Here
Light another firecracker. Immigrants are in again. Six years after some of the most mean-spirited political times in American history, the new out list includes: Former California Governor Pete Wilson in soft-spoken semi-retirement; Former “Contract with America” guy Newt Gingrich now spinning on the Fox Channel; and nativists in general, exposed for their hateful, narrow-mindedness.
Meanwhile, 10 million immigrants have come to America legally since 1990. And in California, the largest state in the union, minorities have become the majority.
Times have certainly changed.
Immigrant bashing seems as gauche as putting ketchup on your egg roll.
But the biggest confirmation of the trend came last week from the Supreme Court.
In key rulings, the high court, not much for guidance on presidential elections, has suddenly redeemed itself by taking the high road on our core issues of liberty and freedom, especially when it comes to immigrants.
The justices reminded us all that being an American — that is to say, a person protected by our great Constitution doesn’t necessarily mean being a citizen.
You just have to be here.
Even if that means being in prison.
The decision is named after one Kestutis Zadvydas, a Lithuanian immigrant, but it was paired with the case of an Asian convict, Kim Ho Ma from Cambodia. In fact, most of the cases impacted by the decision will involve Cambodians, like Ma, because Cambodia has no agreement with the United States for repatriation.
The significance of this can be seen clearly in Ma’s case. Hardly what you’d call a “model minority” type, Ma was admitted to the United States as a child refugee. He became involved with gang life and was convicted for criminal activity in a Washington State court. Ma served his time in a state prison. But he was held indefinitely because he was considered deportable by the INS.
The question was, deportable to where?
While the courts tried to figure it out, Ma sat for two years in prison. Last year, the Ninth Circuit court ruled in Ma’s favor, saying the INS had no authority to hold him beyond 90 days. Ma was ordered released. That decision, in turn, was on appeal until the Supreme Court ruled this week.
Zadvydas, the other immigrant, was born in 1948 to Lithuanian parents in a displaced persons camp in Germany. Now there’s a man without a country. Who issues him a passport?
In this tale there is the potential for a happy ending, as Zadvydas’ parents were allowed entry to America when Kestutis was a young boy. But a story wouldn’t be a story without complications. The young Zadvydas embarked on a life of crime, went to prison, and was ordered deported in 1994.
Most ethnic Americans can still feel the sting of the ’90s like it was yesterday. The mid-’90s was a time of rabid anti-immigration sentiment. Politicians used it to incite fear in Americans. Immigrants were taking jobs, marrying daughters, going on welfare, wasting tax dollars. It made sense to the majority of Americans at the time. Get rid of them all.
Talk about a different time. The country was coming out of a recession. Modems were barely 2400 baud. And people scapegoated immigrants routinely. Even Asian ones.
While legal immigrants were certainly harassed, the real ire was saved for the illegal immigrants — those who crossed the border secretly and lacked documentation. And if you were a badass criminal gangbanger like Ma or like Zadvydas? They were even lower than low. Low low. Worm low. Baja low.
Yes, deport. But once again, to where? Where do you send a man born into displacement? Neither Germany nor Lithuania wanted him. So for three years, Zadvydas sat in prison. It wasn’t until 1997 that a federal judge granted his petition for a writ of habeas corpus. That, however, was overturned by the Fifth circuit court, which saw nothing wrong with keeping a deportable man in prison indefinitely. Southern court, southern justice? Nope, both the Clinton and the Bush administrations argued for sending him away throughout the case’s history.
Last week’s ruling set the politicos straight.
In a 5-4 vote, the court said that the government’s power was subject to constitutional limitations. The swing vote, as per usual, was Sandra Day O’Connor. She joined Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg, all behind Stephen G. Breyer (a San Franciscan and Lowell High alum).
Said Justice Breyer: “The Due Process Clause applies to all persons within the United States, including aliens, whether their presence here is lawful, unlawful, temporary or permanent.”
In other words, are you here? Both feet on the ground? Then you, my friend, have a “liberty interest.”
The Constitution protects you, like any American citizen.
The Bill of Rights, where it doesn’t specifically mention citizens, applies to all.
The court’s ruling impacts 20,000 detained immigrants, many of whom can be allowed freedom under a “probation-like” status. But the decision also opens up the possibility that even more anti-immigrant laws from the dark ages of the mid-nineties will be overturned.
As we celebrate freedom and independence this week, we trust the court’s guidance: “We the people” means all of us.
Emil Guillermo’s book, Amok won an American Book Award 2000. He is the host and executive producer of NCM-TV: New California Media, seen on PBS stations in San Francisco and Los Angeles. E-mail: emil@amok.com. |
