Governor Bryant’s letter to President Obama demonstrates a fundamental misunderstanding of U.S. immigration and constitutional law.
On the afternoon of Friday, July 18, 2014, Governor Phil Bryant of Mississippi published a letter to President Barack Obama in which he bemoans the recent wave of unaccompanied minors “flooding into our country” and warns the President that he intends to prevent federal authorities from transporting migrants (child refugees included) into Mississippi. Concluding his two-page letter, Governor Bryant demands that the President “follow the rule of law and address this issue appropriately.”
Ironically, among his frequent assertions of “the rule of law,” and “flawed immigration policy,” Governor Bryant’s letter demonstrates his fundamental misunderstanding of U.S. immigration and constitutional law. As an immigration practitioner and former constitutional lawyer in Governor Bryant’s state, I am deeply concerned about the potential effects of the Governor’s uninformed political grandstanding at the expense of children fleeing violence as well as immigrants throughout our state and nation. I feel compelled to temper his legal sophistry with facts and reason.
Governor Bryant’s persistent use of the term “illegal” to describe thousands of young people fleeing terror in their home countries demonstrates his complete misunderstanding of the complexities and nuances of immigration law.
As demonstrated by a prior post on my blog, the majority of Central American children crossing into the United States alone are doing so for reasons of fear–whether it be on the basis of increased gang activity in their towns, abuse in the home, or violence perpetrated by their home governments (at times in conjunction with gangs). Many of these reasons may qualify the children to receive asylum protection. (For further reading on the children’s experiences in their home countries, I highly recommend Sonia Nazario’s opinion piece in the New York Times, “Children of the Drug War: A Refugee Crisis, Not an Immigration Crisis”).
Federal immigration law is clear that any individual within the United States, regardless of status, may seek and qualify for asylum protection:
Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title. 8 U.S.C. § 1158 (emphasis added).
Of course, all asylum seekers must meet their burden of proof to the relevant judge or official in order to receive asylum protection. However, it is important to remember that in order to be a valid (or “legal”) asylum-seeker under federal law, one is not required to enter the United States with any particular status, or any status for that matter. Requiring asylum seekers to obtain costly visas and undergo long waiting periods before entering the United States would undermine the entire purpose of the protection.
While I have used the example of asylum to illuminate the hazy area between documented and undocumented migrants, other immigration protections that may be available to undocumented, unaccompanied minors, include, but are not limited to, Special Immigrant Juvenile Status. (As an important aside, if Governor Bryant is correct in his assertion that “thousands of immigrant children are facing serious threats of violence and abuse at the hands of human traffickers,” those children may also qualify as legal applicants for T visas, reserved for victims of human trafficking.)
Constitutional Right to Due Process and Equal Protection for All
As an important corollary, the “rule of law” requires that we, as Mississippians and citizens or residents of the United States, ensure that all individuals within the United States, including unaccompanied minors, receive all due process protections guaranteed by the Constitution. These due process protections include an individual’s right to receive notice of proceedings against him/her, fair proceedings (including access to an interpreter, if necessary), and the right to a neutral fact-finder (immigration official or judge). For unaccompanied minors, these due process rights would include a right to fair and meaningful immigration proceedings, in which each child, if applicable, may offer valid claims for asylum or other immigration relief.
Section 1 of the Fourteenth Amendment to the United States Constitution provides:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
While the privileges and immunities clause applies to U.S. citizens only, the drafters of the Fourteenth Amendment carefully ensured that the amendment’s due process and equal protection provisions applied to all, regardless of citizenship or immigration status. In his speech introducing the Fourteenth Amendment to the U.S. Senate on May 23, 1866, Senator Jacob Howard remarked that these clauses “disable a State from deprivingnot merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State” (emphasis added). The U.S. Supreme Court explicitly attached such protections to allimmigrants, regardless of status (or lack thereof), in Yamataya v. Fisher, 189 U.S. 86, 101 (1903).
The Hospitality State
It is also important to remember that Mississippi is no stranger to the plight of refugees and asylum seekers. Perhaps most famously, the Mississippi Gulf Coast became the new home to thousands of Vietnamese refugees in the 1970s and 1980s, amidst low national public support for the refugees’ plight. More recently, Mississippi inspired the world by welcoming with open arms a large group of young Sudanese men fleeing war. Both of these groups, and many more, have provided countless cultural, social, and economic benefits to their new state and country.
The question remains: will we, as Mississippians (including Governor Bryant), truly be committed to the rule of law? Will we fight to ensure that all individuals within our state and nation receive the constitutional protections to which they are entitled? Will we work for fair and constitutional immigration proceedings for unaccompanied minors? Or will we forget that we are a “nation of laws” and drown in political grandstanding?