Posted on April 20, 2005

Immigration Rights, Immigration Privileges

Bill West,, Apr. 20

Here we go again. The Feds detained two foreign nationals for immigration law violations and, because they happened to be Muslim teenagers, certain elements of the media have been acting as though the end of democracy as we know it may be upon us. The case involves two 16 year old girls living in New York, one from Bangladesh and the other from Guinea, both of whom reportedly have been in the United States illegally for many years thanks to their parents overstaying their original visa status and failing in attempts to gain asylum.

The information about the case of these girls, who will not be identified here although they have been identified already on various sites on the Internet, is somewhat sketchy. What has been reported is that New York police initially investigated certain complaints about the girls, which led to the development of information alleging their suspected involvement in planning suicide bombing activities. The local cops called in the FBI and Federal Immigration authorities (Immigration and Customs Enforcement agents) and the girls were taken into custody. They are being held at an immigration detention facility in Pennsylvania pending further proceedings. Since they are juveniles, the Feds are releasing little information about their cases. The Feds routinely release little information about deportation cases, anyway.

An April 12 Op-ed piece in the New York Times was headlined “Guilty Until Proven Innocent” and described the “plight” of these two illegal alien teenagers. The article continued to lament the generally harsh treatment immigrants, especially Muslim immigrants, have faced in the U.S. since the 9-11 attacks. The article also noted the case of “wrongly jailed” Oregon attorney Brandon Mayfield, who is a U.S. citizen. Mayfield was detained by the FBI last year on a U.S. District Court issued material witness warrant after the FBI initially developed information linking him to the Madrid 3-11 train bombings that later turned out to be erroneous. Mayfield was released, after two weeks, as soon as that error was discovered.

Returning to the issue of aliens and immigration law enforcement and the media. On April 11, the Washington Post ran an article about the work done by a Muslim clinic in Maryland. A quote from the article is interesting, “For Muslims, there is the additional anxiety of living in a time of suspicion, when thousands of them, mostly legal immigrants, are questioned, deported, detained or subject to a special registration under security measures imposed after the 2001 terrorist attacks.”

These two articles are merely the latest examples of many wherein mainstream media outlets have been critical of the U.S. Government’s handling of immigration law enforcement efforts after the 9-11 attacks. That criticism has focused on how the Government is infringing upon, or reducing, “immigrant rights” within the United States and how those efforts will somehow lead to an erosion of freedom for all Americans…presuming that aliens within the U.S. should somehow be included in that term “American.”

A brief bit of legalism here. Under U.S. Immigration and Nationality law, an “alien” is very simply anyone who is not a citizen or national of the United States. It is not a derogatory term. It is a legal term. When U.S. citizens leave the U.S. and go to another country, they are aliens in that country and subject to that country’s immigration and nationality law (and, quite possibly, would be dealt with far more swiftly and severely than aliens in the U.S. if they violate that other country’s law).

More legalism. For many years, decades in fact, the Federal Courts all the way to the Supreme Court have held that while immigration proceedings in the U.S. must be fair, they are different and separate from Federal criminal proceedings. They are civil administrative proceedings that lay primarily within the jurisdiction of the Executive Branch as authorized by laws and regulations passed by Congress. Immigration proceedings, and this mostly means removal, or deportation proceedings for these purposes, are not the same as criminal court proceedings, even though some of the court process may seem similar. And, while the proceedings must be fair to the alien, the alien “respondent” is actually not entitled to the same rights as a criminal “defendant.” It may not quite seem fair to absolutely everyone, but in immigration proceedings, so long as they are essentially fair, meaning there is a process for the alien to present his or her side and challenge the Government side, it’s OK for the system to be somewhat stacked in favor of the Government. In fact, Congress has said it should be that way and the Federal Courts have allowed it for a very long time.

Why is that? Well, it’s really fairly simple. And, all the media hype to the contrary is either ignorance or possibly deliberate, and devious, effort to distort reality. Dealing with aliens and their entry into and remaining in the U.S. is not unlike a homeowner having the right to invite a stranger into their home. The homeowner has the absolute right to know whom he or she is allowing through the door; the absolute right to simply refuse entry for virtually any reason; and, finally, the absolute right to tell the invited guest to leave anytime the homeowner decides that should happen. Our Federal Government is America’s homeowner for immigration purposes and aliens are the invited guests. As much as some in the media and special interest groups may dislike it, those “Immigrant Rights” are really “Immigrant Privileges” and should be so considered.

That, of course, does not mean aliens within the United States should be mistreated. All persons deserve to be treated fairly and humanely and our immigration and nationality laws and procedures allow for that, even if, compared to criminal jurisprudence, it may sometimes seem “draconian.” It really is not; it is simply different and separate. The real public relations problem arises when aliens are arrested and detained by Immigration authorities pending deportation proceedings, like the aforementioned teenaged alien girls.

Aliens in deportation proceedings are detained because they are considered a risk of flight or a danger. If the Government has information the alien is either, the Government is obligated to act appropriately. The evidence is ultimately presented to an Immigration Judge who renders a decision on custody, with an entire series of appeal rights available to both the alien and the Government. In the case of juvenile aliens, special provisions related to privacy and custody concerns weigh in, requiring family notifications and contact, if available, and counseling and detention in special facilities. Law and regulation, even within the “separate and different” immigration system, require this.

And detention of deportable aliens is important, even apart from the obvious security threat issue. Consider the fact there are over 400,000 fugitive aliens with final deportation orders. All of those had their day in court, exhausted their appeals, but had been released from custody or never were in custody and failed to surrender for deportation. And, for every one of those fugitives caught, at least two more take their place in the system as the process plods along. Of course, the Government has limited detention space for deportable aliens, so prioritization of cases is necessary. Alien detention, from the Government perspective, is considered limited, scarce and important.

Since immigration proceedings are not the same as criminal justice proceedings, not all procedures are necessarily open to the public. But even these closed hearings are still adversarial in nature, wherein the alien and his or her attorney can question the Government’s evidence, witnesses and overall case before the Immigration Court. There are appeals available to the Board of Immigration Appeals, Federal District Courts on Habeas Writs, the Federal Circuit Courts, and the Supreme Court.

Those two detained alien teenagers who set off the latest furor are, quite simply, two illegal alien suspects detained pending further removal proceedings. Had they been aged 18 instead of 16 and encountered at an airport with false documents attempting entry instead of off the street in New York and Catholics from Guatemala instead of Muslims from where they are from, we would not be reading the laments in the New York Times as we are. Yet, everyday, Immigration authorities arrest and detain very many other aliens, even juvenile aliens, who don’t register on the special interest meter of certain media.

We should allow the cases of the two New York teenagers to play out in the Immigration Court process. They will have fair due process in a system structured for alien removal processing, not a system structured for protecting the rights of criminal defendants, which they are not at this point. The New York Times and some others may dislike that reality, but it is the reality of our immigration system and that should at least be portrayed accurately for what it is.