THE RIGHTS OF IMMIGRANTS

Since the founding of the United States, more than 55 million

immigrants from every continent have settled here. Indeed, with

the exception of Native Americans, everyone in our nation is

either an immigrant, or the descendent of voluntary or involuntary

immigrants. Yet every wave of immigration has faced fear and

hostility -- from both ordinary citizens and government --

especially during times of economic hardship, political turmoil or

war.

* During the depression of the 1840s, mobs hostile to immigrant

Irish Catholics burned down a convent in Boston and rioted in

Philadelphia.

* In 1882, Congress passed the Chinese Exclusion Act, one of our

first immigration laws, to keep out all people of Chinese origin.

* During the "Red Scare" of the 1920s, thousands of foreign-born

people suspected of political radicalism were arrested and

brutalized, and many were deported without a hearing.

* In 1942, 120,000 Americans of Japanese descent had their homes

and other property confiscated, and were interned in camps until

the end of World War II. At the same time, many Jews fleeing Nazi

Germany during that war were excluded under regulations enacted in

the 1920s.

* In the 1950s, an Immigration and Naturalization Service (INS)

program called "Operation Wetback" targeted Mexicans, exclusively,

for deportation, and today immigration from Haiti is sharply

restricted.

Even though the Bill of Rights does not grant foreigners a right

of entry into the United States, it does prohibit discrimination

based on race and national origin against citizens and noncitizens

alike. That is one reason why, in 1985, the American Civil

Liberties Union (ACLU) established a national Immigrants' Rights

Project, which has become one of the nation's leading advocates

for the rights of immigrants, refugees and non-citizens. We

recognize that our country, like all sovereign nations, has the

right to control its borders. But we also believe that the

government should treat all people according to constitutional

standards of fairness.

Here are the ACLU's answers to some questions frequently asked by

the public about immigration and the rights of immigrants.

Q: Aren't our borders out of control, allowing immigrant to flood

the country illegally?

A: No, U.S. borders are not "out of control." Of all the people

who immigrate to the U.S. in a given year, combined with those who

immigrated in earlier years, only a very small number are

undocumented. The Immigration and Nationality Act has strict

standards for who can immigrate to the United States. It allows

approximately 800,000 people to settle here each year as permanent

residents, including:

* about 480,000 who are admitted to reunite with their spouses,

children, parents and/or siblings

* about 140,000 who are admitted to fill jobs for which the

U.S. Department of Labor has determined no American workers

are available

* about 110,000 refugees who have proven their claims of

political or religious persecution in their homelands (this

number is expected to drop to about 85,000 by 1996)

* about 55,000 who are admitted under a "diversity" lottery,

begun in 1990, that mainly benefits young European

(especially Irish) and African immigrants.

In addition, the U.S. Census Bureau estimates that roughly

250,000-300,000 immigrants take up residence here each year

without permission. Half of these immigrants enter with valid

temporary visas but overstay the authorized time. The other half

-- only 125,000 to 150,000 -- enter illegally. Many of the latter

come from countries with troubled economies or pervasive human

rights violations, such as El Salvador and Guatemala. Contrary to

the stereotype, less than half the undocumented are Mexican; a

significant number are Western European. Canadians, Poles and

Filipinos are the fourth, fifth and sixth largest groups of

undocumented persons. In New York State, Italians are the second

largest group of the undocumented.

Q: Don't immigrants take jobs away from American Workers?

A: Most economic experts report that immigrants actually create

more jobs than they fill. They create jobs by forming new

businesses, by raising the productivity of already established

businesses, through capital investment, and through consumer

spending.

In addition, a 1994 study by Ohio University researchers found "no

statistically meaningful relationship between immigration and

unemployment.... [I]f there is any correlation, it would appear to

be negative: higher immigration is associated with lower

unemployment." A 1989 U.S. Department of Labor study found that

neither U.S. workers in complementary jobs, nor most minority

workers, appear to be adversely affected by immigration. Some

studies have found that African American unemployment was slightly

lowered by the presence of recent immigrants.

Contrary to public fears, the expert consensus is that, overall,

immigrants have a very positive impact on our economy.

Q: Don't immigrants place an unacceptable burden on our social

services?

A: Immigrants come here in search of work, not with the intention

of going on the dole. Moreover, even documented permanent

residents are barred from receiving most cash assistance during

their first three years of residency, and are subject to

deportation if they go on welfare within five years. Undocumented

immigrants are legally excluded from virtually all government

benefits, except those related to public health and safety.

"[I]mmigrants actually generate significantly more in taxes paid

than they cost in services," concluded the Urban Institute. This

is because undocumented workers, despite their ineligibility for

most federal benefits, frequently have Social Security and income

taxes withheld from their paychecks. As a result, one commentator

said, "a senior citizen on Social Security who lives in rural

Kentucky is indirectly being subsidized by an immigrant who washes

dishes in a chic restaurant in Santa Monica."

It's true that in our large cities and in other areas plagued with

economic problems, including high unemployment, servicing all the

people who are in need can be very difficult for local government.

But immigrants are not to blame for that difficulty, which arises

from a complex series of factors related to the national economy,

and to the federal government's priorities in distributing tax

revenues.

Q: What has the Supreme Court said about discrimination against

immigrants?

A: In decisions spanning more than a century, the U.S. Supreme

Court has ruled, on the one hand, that the Constitution's

guarantees of due process apply to every person within U.S.

borders, including "aliens whose presence in this country is

unlawful." On the other hand, the Court has said that since the

federal government is solely responsible for supervising

immigration, it has broad powers to discriminate based on

"alienage."

Alienage discrimination by states or localities, however, is

restricted. The Court has struck down many discriminatory state

and local laws affecting government welfare benefits, scholarships

and student loans, as well as eligibility for civil service and

other jobs. At the same time, under what it calls a "political

function" exception, the Court has allowed states to discriminate

against resident aliens in areas such as voting and holding

elective office, and in jobs such as police officer and school

teacher.

Q: What about laws like Proposition 187 -- are they

constitutional?

A: Proposition 187 was a ballot initiative approved by a majority

of California voters in the November 1994 state and local

elections. The law, which has drawn several legal challenges,

would deny most basic services -- including education, health and

social services -- to any person suspected of not being a citizen

or legal resident. It is clearly at odds with our Constitution,

which gives only the federal government, not the states, the

authority to set immigration policy. By attempting to usurp that

role, California has, first, violated existing laws that protect

immigrants against discrimination and denials of due process, and

second, opened the door to such discrimination and denials.

Among other things, the California initiative ignores the fact

that all children residing in the U.S. are entitled to public

education. The Supreme Court made this clear in its landmark 1982

ruling in Plyler v. Doe, when it struck down a Texas law that

barred the children of undocumented immigrants from attending

public schools on the ground that denying such children an

education would unjustifiably and irreparably harm them.

Proposition 187-type laws are also bad public policy, since they

have a range of harmful social consequences. Such laws could cost

society dearly by permanently stigmatizing hundreds of thousands

of young people and throwing them into the streets. Similarly, the

denial of health care to any population group would threaten the

health of everyone by gravely compromising our ability to combat

contagious and infectious diseases.

The ACLU believes that all U.S. residents, regardless of their

immigration status, should be entitled to basic services.

Q: Who are refugees?

A: Every year, people come to our shores seeking safe haven from

political and social upheavals. International and domestic law

dictates that persons who have experienced persecution in their

homelands, or who have a "well-founded fear of persecution" on

account of race, religion, nationality, politics or membership in

a particular social group, are refugees entitled to political

asylum in the U.S.

However, even refugees with strong claims often face great

obstacles in gaining asylum. Historically, our government has

treated asylum-seekers differently based on nationality, and in

recent decades, on politics. Refugees from Communist countries

have been welcomed, while those from countries officially regarded

as "democratic," like El Salvador, are often spurned. Cubans have

been admitted traditionally, while Haitians have been turned away

or detained.

In 1990, efforts by the ACLU and other advocates brought reforms

aimed at ending biased refugee policy. But the new system is

mismanaged, understaffed and has a huge case backlog that causes

long delays, with some refugees waiting years for their claims to

be adjudicated. The INS has even acknowledged misplacing thousands

of files, forcing those who seek asylum to file new applications,

or to work without authorization.

The ACLU believes that political asylum should be granted swiftly

and efficiently to qualified applicants. In addition, asylum

should not be granted or denied based on an applicant's

nationality. The principle of equal treatment demands no less.

Q: Do INS procedures violate the rights of deportable aliens?

A: Often they do, we believe. The Immigration and Nationality Act

gives INS officers broad powers. They can question "any person

believed to be an alien as to his right to be in the United

States," as well as search for, arrest and initiate deportation

proceedings against such persons. Near the border or a "functional

equivalent" of the border, agents can search vehicles without a

warrant and without fact-based suspicion that the occupants are

unlawful aliens.

Such broad powers inevitably lead to abuses. For example, INS

agents frequently base their actions solely on the fact that

people "look Mexican" or "look Chinese," even though the Supreme

Court has ruled against that practice. Conditions in INS detention

centers, where aliens await their asylum or deportation

proceedings, are often unhealthy, unsafe and abusive. And in

border areas especially, the use of excessive force by INS or

Border Patrol agents is a serious problem. The ACLU and other

organizations have called for the creation of an independent

federal commission to hear complaints of, and propose remedies

for, abuse.

Q: What are the rights of deportable aliens?

A: In Yamataya v. Fisher, a 1903 case involving a Japanese

immigrant, the U.S. Supreme Court ruled that INS officers could

not take an immigrant into custody and summarily deport him

without a hearing, even if he was thought to be here illegally,

without a hearing. The due process rights of deportable aliens

have evolved from this decision in a long series of cases. Today,

immigrants facing deportation are entitled to:

* a hearing before an immigration judge and review by a federal

court;

* representation by a lawyer (but not at government expense);

* reasonable notice of charges, and of a hearing's time and

place;

* a reasonable opportunity to examine the evidence and the

government's witnesses;

* competent interpretation for non-English speaking immigrants,

and

* clear and convincing proof that the government's grounds for

deportation are valid.

Nevertheless, because deportation is considered a "civil

procedure," not "punishment," prospective deportees lack full

constitutional protection. The ACLU believes that is unfair: Given

the potentially grave consequences of deportation, aliens are due

all the procedural guarantees afforded criminal defendants,

including the right to a court-appointed lawyer if they are

indigent.

Q: What are employer sanctions and why does the ACLU oppose them?

A: In 1986, intent on discouraging illegal immigration, Congress

passed the Immigration Reform and Control Act (IRCA), which

imposes civil fines and some criminal penalties on employers who

knowingly employ undocumented immigrants. The ACLU anticipated

that these sanctions would encourage employers to discriminate

against any job applicant who "looked" or "sounded foreign." Our

worst fears have been realized.

In 1990, a study by the federal General Accounting Office showed

that the sanctions had prompted almost 20 percent of the nation's

employers to practice illegal employment discrimination. The case

of Richard Trujillo, of Kansas City, Kansas, is illustrative:

Trujillo marked "U.S. citizen" on his application for a laborer's

job in Los Angeles. When interviewed, he presented his Social

Security card and driver's license as proof of work authorization

and was offered the job at $4.50 per hour. Later the same day, a

company representative called him and said he would have to

provide an "INS number," which citizens don't have and are not

required to have. The company rejected Trujillo's valid work

authorization and denied him the job.

Q: Is a national worker registry and identity card a good idea?

A: No, it isn't. A computer database keyed to an individual's

Social Security number, photo and fingerprints is an old and

discredited idea that, if realized, would enable the government to

invade the privacy of every person in the U.S., serve as a new

tool for discrimination and cost billions.

Such a registry, in order to work, would eventually require every

U.S. resident to carry an I.D. card or its equivalent that an

employer could use to access information about the cardholder.

This internal passport system could open the floodgates of access

to information about all of us, including credit histories,

spending habits, unlisted telephone numbers, and medical and

employment histories.

Computer databases are notoriously incomplete and rife with

errors, and experts warn that they cannot be made failsafe.

The Social Security Administration, in Congressional testimony,

estimated that the issuance of new counterfeit-resistant I.D.

cards would cost as much as $2.5 billion or more.

The system would intensify discrimination, subjecting anyone who

"looked" or "sounded" "foreign" to constant status checks by the

police, banks, landlords, etc. Persons who did not produce the

card on demand would be viewed suspiciously and possibly arrested

or detained, while those who did would be stigmatized and

humiliated by always having to prove their status.

Thus, in addition to scapegoating immigrants, a national worker

registry would violate the rights of everyone.

Illegal immigration is not the scourge it is alleged to be by some

politicians, who, in seeking a quick fix for our society's complex

problems, focus on immigration instead of on real causes. The fact

is, as former New York Governor Mario M. Cuomo has noted, that:

"...some of the problems we should take most seriously as a people

-- from the decline in our economic competitiveness to the decay

of our community values -- are problems that the new immigrants

can help us solve."