Trump’s Immigration Policy: Borderline Unconstitutional

immmigration-rally

The 2016 Presidential primaries are well on their way, and the issue of immigration reform has been a contentious one, to say the least. This is especially true on the Republican side, where leading candidate Donald Trump has advocated extreme measures to reform immigration policy, such as building a wall between the U.S. and Mexican Border, and temporarily banning Muslim immigrants from entering the U.S.

However, Trump’s other plans for immigration reform, which call for mass deportations and the abolishment of birthright citizenship, have dominated discussions. Besides the fact that these two policies are criticized for being impractical and prejudicial, implementing either policy would most likely also be unconstitutional.

As of the 2013, there are currently over 11 million undocumented immigrants in the United States. In an interview with CNN’s Dana Bash, Trump said that if he were elected President, he would deport all undocumented immigrants, and then allow the “really good people” to re-enter the country through an expedited process. However, those “really good people” would not be recognized as citizens.

Mass deportation of all undocumented immigrants would take about 20 years and cost an estimated $500 billion. This includes the cost of all the police, judges, lawyers, enforcement agencies and transportation needed to find and deport 11 million people, but it does not include the cost of bringing back the “really good people.”

However, the biggest question arising from Trump’s plan is not the costs associated with it, but rather the constitutionality of the plan.

There is a basic constitutional understanding that the United States has broad power to protect its borders, to decide who may enter its territory, what people who enter can do while inside its borders, and how long they may be allowed to stay.

Accordingly, the Trump Plan raises three interconnected issues: 1) which branch (if any) would have the authority to order the deportation of 11 million people; 2) does the deportation of 11 million people violate the Due Process Clause; and 3) if the plan splits up families with American-born children, would the American-born children be deported with their parents? 

 

Which Branch Can Order the Deportation of 11 Million People?

Congress is the legislative branch and decides most issues by passing laws. The executive branch, led by the President, has very wide discretion in deciding how to enforce those laws. The judicial branch, consisting of federal district courts and ultimately the U.S. Supreme Court (the highest court in the land), can issue rulings that decide disputes, such as the question of which branch is ultimately responsible for immigration policy.

In 2014, President Obama issued an executive order that overhauled the nation’s deportation policy. The executive order lifted the threat of deportation of more than 4 million illegal immigrants and was directed at people with no criminal record, whose children were U.S. citizens. However, lower courts blocked President Obama’s executive action after twenty-six Republican-governed states sued to stop it, claiming he exceeded his presidential powers under the U.S. Constitution.

Trump has already publically stated that if he became President, he would create a “deportation force” that would go door-to-door looking for undocumented immigrants. Trump has also laid out an immigration plan that calls for a nationwide system to verify workers’ legal status (tripling the number of immigration and customs enforcement agents) and implements a tracking system to identify people who overstay their visas.

Donald Trump has yet to specify how he plans to execute his immigration plan. However, one thing is for sure: if he plans on utilizing an executive action to deport 11 million people, he will face similar push-back from those who believe he is exceeding his presidential power.

 

The Due Process Clause Applies to Illegal Immigrants and Requires a Hearing and Appeal

Although the federal government has broad power in protecting the nation’s borders, neither the legislative or executive branch may violate the due process clause when deporting individuals – even if those individuals are undocumented.

The Fifth and Fourteenth Amendments to the U.S. Constitution each contain a due process clause. The due process clause states that federal or state governments may not take an individual’s “life, liberty, or property” without due process of law.

While undocumented immigrants do not enjoy all of the rights granted to U.S. citizens by the Constitution – for example the right to vote – courts have ruled that, while they are within the borders of the United States, undocumented immigrants are granted the same fundamental constitutional rights granted to all Americans. In 2001, the U.S. Supreme Court ruled in Zadvydas v. Davis that the due process clause of the 14th Amendment applies to all undocumented immigrants in the United States whose presence is “unlawful, involuntary or transitory.” This means that each and every one of the over 11 million undocumented immigrants Trump wants to deport has the right to a hearing (and possibly an appeal) before they are ever deported.

Furthermore, even if Trump can identify every undocumented immigrant in this country, it would cost taxpayers millions of dollars to pay for all of the legal fees necessary to properly give every undocumented immigrant a fair trial. Moreover, attempting to deport large quantities of undocumented immigrants, without due process, would not only be blatantly unconstitutional – it would raise countless humanitarian issues as well.

 

Issue of Deportation of American-Born Children Along with Their Parents

Donald Trump has repeatedly vowed to end President Obama’s deportation-relief policies for parents of American-born children. “We’re going to keep families together, but they have to go,” said Trump. This effectively means that Trump is advocating for the abolishment of birthright citizenship and the deportation of children who are U.S. citizens.

“Birthright citizenship” is a principle stemming from the 14th Amendment of the U.S. Constitution; it refers to the idea that children of undocumented immigrants, born within the geographical limits of the U.S., are automatically entitled to American citizenship.

In other words: if a child is born in the United States, they are an American citizen, regardless of whether or not their parents are American citizens.

However, some have suggested that the 14th Amendment’s phrase, “and subject to the jurisdiction thereof,” is open to re-interpretation. State lawmakers across the country have even gone as far as to present legislation that claims the U.S. does not have jurisdiction over U.S.-born children of undocumented immigrants.

These attempts lack legal foundation. The U.S. Supreme Court decidedly addressed this issue in the landmark decision of U.S. v. Wong Kim Ark. In Ark, the court held that a baby born in San Francisco, California to Chinese parents (who at the time were not permitted to naturalize as U.S. citizens) became a U.S. citizen at the time of his birth.

That case unambiguously defined the 14th amendment as it relates to citizenship, and it has been settled law for over 100 years. Moreover, the Supreme Court has since affirmed the understanding that undocumented immigrants are in fact “subject to the jurisdiction” of the United States under the 14th Amendment.

Therefore, if Trump wants to take away a firmly established right of citizenship, he would have to push congress to amend the Constitution first.

 

The federal government’s policy on immigration has risen to the top of the political and constitutional agenda, and over the next year, the nation will watch it develop. Donald Trump’s plans for immigration reform have been revered by some for being refreshingly honest, and criticized by others for being prejudicial and impractical.

Only time will tell whether Trump will be elected to represent the Republican Party in the 2016 General Election. And only time will tell whether his plans – some of which are currently unconstitutional – will be ever be executed.

Thank You and Goodbye: Stripping Citizenship From Generations of Haitian Dominicans

Statue of Liberty

The Supreme Court of the Dominican Republic recently upheld changes to the citizenship provision of its Constitution, putting many Dominican Americans in an uncomfortable position.  For those Dominican Americans whose U.S. citizenship is based upon their birthplace, or jus soli, the Dominican Republic’s recent rejection of jus soli in favor of citizenship based on the blood of the parents, or jus sanguine, brings with it difficult memories of the obstacles and discrimination they themselves faced as the children of immigrants.  Though the ruling applies globally, it is expected to impact the Dominican Republic’s Haitian Dominicans most harshly.  The decision ignores the economic realities of the Dominican Republic and its history, and it creates a double standard where Dominicans Americans rely on the same rights in the U.S. that are being denied to Haitian Dominicans in the Dominican Republic.

Change From a Policy of Jus Soli to Jus Sanguine in the Dominican Republic

 From 1929, the Constitution of the Dominican Republic granted citizenship to “[a]ll persons born in the territory of the Republic with the exception of the legitimate children of foreigners resident in the country in diplomatic representation or in transit.”  While early interpretations of the “in transit” language limited its application to those persons who stayed in the country ten days or fewer, the August 2004 passage of General Law on Migration 285-04 expanded the “in transit” language to include all nonresidents.  In Yean and Bosico v. Dominican Republic, the Inter-American Court on Human Rights held that the Dominican Republic was barred from restricting citizenship beyond the exceptions in the Constitution itself and that the Dominican Constitution incorporated the jus soli rule of nationality.

In 2010, Dominican lawmakers responded by amending the language of their Constitution to exclude from citizenship all children born of “illegal residents.”  They also stated that “in transit” would be defined according to Dominican laws, effectively excluding the children of all nonresidents from citizenship.  A September 23rd ruling by the Dominican Republic’s highest court affirmed the change to a jus sanguine rule and declared it applies retroactively to anyone born after 1929 who does not have at least one parent of Dominican blood.  The ruling gives the electoral commission one year to compile a list of people to be excluded from citizenship.

Impact of the Dominican Supreme Court’s Ruling

 Approximately two to three million individuals, 20-25% of the people residing in the Dominican Republic, are undocumented.  Culturally, the Dominican Republic places less importance on recordkeeping than does the United States.  For instance, some births are not documented until several years after the children are born.  Factors including illiteracy, poor official recordkeeping, lost hospital records, and the cost of traveling to government offices and paying required fees, make obtaining official birth certificates too difficult for some.  In my own experience living in the Dominican Republic, I met several individuals who possessed birth certificates containing significant errors, or who simply never bothered to obtain the document.

Under the recent Supreme Court ruling, any person who lacks the documentation necessary to establish legal residence could be considered “in transit,” and therefore lose the rights of Dominican citizenship.  In practice, however, civil registry officials have admitted to targeting individuals with Haitian features and “Haitian-sounding names” to determine who might be investigated.  The fact that the new law allows for the possibility that individuals’ citizenship rights may be challenged, even when their families have lived in the country for generations, highlights the ill-conceived nature of the change.

Economic Reality: The Dominican Republic’s Historic Dependence on Haitian Labor

The change to a jus sanguine rule ignores the fact that, for many decades, the Dominican Republic has encouraged Haitian laborers to migrate to the Dominican Republic to work in labor intensive industries.  Not surprisingly, many of those workers stayed in the country and started families.  Sugarcane in the Dominican Republic is cut by hand using machetes.  The work is labor intensive and physically demanding and creates a great need for seasonal labor.  In 1930, Dictator Rafael Trujillo took power, and the global impact of the Great Depression forced sugar prices down.  As a result, plantation owners seeking cheap labor brought in more and more Haitian workers.  The sugarcane workers lived in impoverished rural communities called “bateyes.”  Although many of the sugarcane plantations have disappeared, the bateyes remain.  Many Haitian immigrants who came to work on the sugar plantations stayed in the country and have had children there for several generations.

Today, the Dominican economy relies more than ever on cheap Haitian labor in key industries like agriculture, construction, and tourism.  However, racism and discrimination against Haitian laborers abounds.  Those of Haitian descent are often discriminated against due to their skin color, low income level/social ranking, and clothing quality, and because many have retained their traditional ancestral cultural values and modes.

Double Standard: Economic Reliance on Dominicans Living Abroad

The change to a jus sanguine rule also creates a double standard where Dominican law creates incentives for Dominican citizens to live abroad while at the same time denies rights to Haitians attempting to do the same.  For both the Dominican Republic and Haiti, the economic impact of remittances is substantial.  A remittance is money sent by a foreign worker back to that person’s country of origin.  According to an annual study done by the Multilateral Investment Fund, the Dominican Republic earned over $3 billion in 2012 from remittances.  The influx of foreign goods and money is also encouraged by a tax break for returning Dominicans that allows each person to bring $3000 into the country during the holiday season without paying import taxes.  Dominican migration abroad was further encouraged in 2010 when seven seats in the Dominican Congress were created to represent Dominican citizens living in the United States, Canada, Europe, and Central and South America.

Like the Haitian immigrants who moved to the Dominican Republic for better opportunities in the sugar cane fields, Dominicans themselves have historically sought opportunities in other countries like the United States.  Over 1.5 million people of Dominican origin live in the United States.  The Dominican Republic is second only to Mexico for the largest share of Latin American immigrants to the United States, and is among the top five nations worldwide in numbers of family-based immigrants to the United States.   For those Dominicans who have children born in the United States, their children have a right to U.S. citizenship; a right now denied to children born to Haitian parents in the Dominican Republic.

Conclusion

The Dominican Supreme Court’s September 23rd ruling is a step backward for the country’s international policy.  It is bound to promote confusion and discriminatory application and ignores the country’s reliance on similar rights granted to children of its citizens born abroad.  Dominican lawmakers should revisit the logic of promoting a law that strips the citizenship rights of those who know no other country than the Dominican Republic.