October 8, 1999

In recent years, immigration and refugee law has taken on a new level of prominence. Laws such as the 1996 Illegal Immigration Reform and Individual Responsibility Act have brought immigration legislation into the center of public debate. To address some of the current and future issues in immigration law, the International Migration Policy Program hosted a luncheon discussion on Friday, October 8.

Moderator Alexander Aleinikoff of the Carnegie Endowment began the session by asking why the Supreme Court has not been more involved in immigration law.

Gabriel "Jack" Chin of the University of Cincinnati Law School offered a partial answer to Aleinikoff's question in his discussion of the Plenary Power Doctrine. The Plenary Power Doctrine, established in 1889, gives Congress and the Executive the power to make immigration policy free from judicial review. The doctrine rests on the assumption that immigration is a question of national sovereignty, relating to a nation's right to define its own borders. In his presentation, Chin looked at why the Plenary Power Doctrine has survived for over a hundred years. The Supreme Court has never struck down any Congressional legislation on immigration, even though Congress has passed some blatantly discriminatory laws over the years.

Chin offered several reasons why the Plenary Power Doctrine has survived, despite being the target of serious criticism. First, he said, immigrants often win in federal courts on statutory grounds. For example, rather than overturning a statute that called for the deportation of immigrants who were communists, the Court interpreted the definition of communism under the statute narrowly enough that few communists were subject to deportation. Second, Chin contended, Congress knows that if it were to enact an immigration law that went too far beyond the bounds of constitutionality, the Supreme Court would rule the law unconstitutional. Finally, Congress tends to change immigration laws as societal norms change.

Hiroshi Motomura of the University of Colorado Law School spoke about judicial review of immigration decisions. Legislation in 1996 limited court access for immigrants awaiting deportation, in certain cases denying judicial review all together. Motomura said that there has been a significant amount of litigation related to the question of whether a detainee can go to court to dispute his/her detention, but less litigation has addressed the question of when a detainee can go to court.

INA 242(b)(9) concerns this timing issue. The section can be read as meaning that a detainee must wait until the end of deportation proceedings to access court, or the section can be read differently, said Motomura, depending on whether one views detention as part of or independent of the removal procedure. Finally, although recognizing that the US government has a legitimate interest in preventing the use of the courts for delaying immigration proceedings, Motomura concluded that delaying judicial review may be a case of "justice delayed, is justice denied."

James Hathaway of the University of Michigan Law School discussed what he termed as the "critical disconnect" between the international system of refugee protection and its implementation in the United States. This critical disconnect is not a "normal" case of US unilateralism, asserted Hathaway, given that the US signed the Refugee Convention with few substantive reservations and in turn passed a 1980 law to implement it. Hathaway argued that the disconnect between international refugee law and US policy arises instead from the US protection system's substitution of discretion for "the most basic premise of the international refugee regime, namely that all persons who meet the refugee definition are entitled to benefit from internationally established rights."

The American asylum system, Hathaway contended, does not give refugees the full set of rights laid out by the Refugee Convention. The United States has attempted instead to fit its Convention obligations into previously-existing refugee policies. Hathaway cited the Supreme Court's decision in INS v. Cardoza-Fonseca (1987) as a prime example of this. He also argued that although the Supreme Court has recognized Article 33 (duty of non-refoulement) of the Convention, it decided that this article does not apply to all Convention refugees but only to "those able to meet a 'super-refugee' test derived from pre-Protocol US immigration law."

Q&A

George Fishman of the US House Judiciary Committee asked Jack Chin how the Court would react to a quota system instituted by Congress. Chin replied that in such a situation the Supreme Court would not feel bound by the Plenary Power Doctrine and would probably find the law unconstitutional. Alex Aleinikoff qualified Chin's remarks by noting that the Supreme Court would only find the quota system unconstitutional if it was based on national origin /race, rather than nationality.

Phyllis Coven of the US Immigration and Naturalization Service commented that the 1996 immigration legislation has resulted in an increasing amount of the Service's energy being spent on detention. She urged people to look closely at the consequences of the 1996 law "because we don't want an immigration policy based on the number of detention beds available, which is what the 1996 legislation has almost gotten us to."

Demetri Papademetriou of the Carnegie Endowment for International Peace asked about whether Congress or the INS's interpretation of the law is responsible for the problems that have arisen as a result of the 1996 immigration legislation. Hiroshi Motomura replied that it is too early to tell, while Alex Aleinikoff contended that the responsibility lies mainly with the legislation itself rather than INS interpretation of the legislation. Others in the audience expressed an opposite opinion, citing the INS's inclusion of DWI as grounds for deportation as an example of how the INS has interpreted the 1996 legislation unreasonably.

Denyse Sabagh, a private attorney, asked if the Supreme Court might find mandatory detention rules unconstitutional. Jack Chin responded that on the one hand, the Supreme Court has ruled that deportees can be held indefinitely, but on the other hand, the Court has also said that the procedures of deportation are subject to the constitution. Overall, Chin said, he was not confident that the Court would invalidate mandatory detention.

Report prepared by Amelia Brown