Introduction

America is a nation of immigrants and their descendants. The noted historian Oscar Handlin once wrote, "Once I thought to write a history of the immigrants in America. Then I discovered that the immigrants were American history." Indeed, the contributions of the approximately 50 million immigrants who have come to our shores since 1607 have been great. The names of immigrants and their children and their children's children dot the history of America, for it was their labor and toil that built this country. They have made significant contributions to the building of America in industry, politics, the professions, and the arts. They have brought customs and traditions which have been absorbed into our eclectic culture and proclaimed as truly "American." As the late President John F. Kennedy said: "There is no part of our nation that has not been touched by our immigrant background. Everywhere immigrants have enriched and strengthened the fabric of American life."3

To many of those who came, the golden door of our borders symbolized a spirit of liberty, a spirit which was reflected in the free and democratic traditions of our society. Beyond that golden door, they saw a land of opportunity where the hopes and

Although American Indian people and some historians maintain that American Indians are native to this continent, other anthropologist-historians maintain that American Indians are also immigrants, having migrated from Asia over a previously existing land bridge.

aspirations of any individual could be fully realized. For the world's poor and oppressed, this country represented a refuge in which they could attain a better way of life. To others, passage through the golden door meant escape from either religious persecution, political tyranny, or economic hardships. Thus, the inscription on the Statue of Liberty is truly a declaration of our humanitarian spirit, the best of American traditions.

The image of the golden door, however, is a tarnished one. In the history of American immigration each succeeding group of immigrants met with resistance, ironically, from previous immigrant groups. During times of economic stress, American treatment of immigrants has often been cruel. The anti-Catholic, anti-Chinese, anti-Mexican, and other anti-alien eras in American immigration history are replete with examples of such treatment. Because of their status as recent immigrants in the United States, these various groups were extremely vulnerable and politically powerless and thus were ideally suited for the role of scapegoat for America's economic and social woes. Few were left unscathed and for many the American dream became the American nightmare.

2 Oscar Handlin, The Uprooted (2d ed. 1973), p. 3.

John F. Kennedy, A Nation of Immigrants (rev. 1964), p. 18.

Anti-alien sentiment was translated into discriminatory treatment of immigrants. Restrictions on the immigration of certain religious, political, racial, or ethnic groups became a rallying point for many Americans as the cure-all for the American economy. In the Federal bureaucracy, the response often was a disregard for proper constitutional safeguards for detained persons. For example, in the 1950s during "Operation Wetback," the administrative expulsion process was shortened to achieve speedier deportations. And immigration agencies often exacted greater documentary requirements of immigrants from certain countries, thereby creating a discriminatory immigrant selection process.

The arbitrary and discriminatory treatment of aliens has been conducted with the approval of American legislative bodies. State legislatures as well as the Congress have enacted legislation limiting the full participation of aliens or immigrants in our society. Such legislation not only discriminated against recent arrivals to America, but has also contributed to the suffering of United States citizens and long-time resident aliens, particularly those who were racially and ethnically identifiable with major immigrant groups.

Because a discriminatory immigrant selection system, improper interrogation methods, and unconstitutional searches and seizures still exist within the current immigration law enforcement process, citizens and long-time residents suffer violations of their civil rights. For the undocumented alien," the system offers a much harsher reality. Because deportation is not characterized legally as "punishment," aliens are denied many constitutional protections available to defendants in criminal proceedings. Deportation, however, is a more severe punishment than many criminal sanctions. In drafting the Virginia Resolutions objecting to the Alien and Sedition Acts of 1798, James Madison, father of the Constitution and later President, wrote as a member of the Virginia Assembly in 1800:

If the banishment of an alien from a country into which he has been invited as the asylum

"Operation Wetback" is discussed in chapter 1 of this report.

Generally, citizens are persons born in this country, persons born of United States citizen parents abroad (although a residency requirement may be imposed), and persons who have been naturalized. Naturalization, the conferring of citizenship on a foreign national, requires that the individual have resided continuously in the United States for 5 years, be of good moral character, able to read, write, and understand ordinary English, and have an understanding of American history and the principles and form of our government.

• Resident aliens include all legally admitted noncitizens who are physical

most auspicious to his happiness-a country where he may have formed the most tender connections; where he may have invested his entire property, and acquired property of the real and permanent, as well as the movable and temporary kind; where he enjoys, under the laws, a greater share of the blessings of personal security and personal liberty than he can elsewhere hope for and where he may have nearly completed his probationary title to citizenship; if, moreover, in the execution of the sentence against him he is to be exposed, not only to the ordinary dangers of the sea, but to the peculiar casualties incident to a crisis of war and of unusual licentiousness on that element, and possibly to vindictive purposes, which his emigration itself may have provoked; if a banishment of this sort be not a punishment, and among the severest of punishments, it will be difficult to imagine a doom to which the name can be applied.8

Almost a century later, Justice David J. Brewer quoted Madison's views in his dissent in Fong Yue Ting v. United States when he argued that deportation was indeed the most severe of punishments.9

The United States Commission on Civil Rights in recent years has become increasingly concerned about inadequate public understanding of and inaccurate information on the migration of immigrants to this country. Allegations and complaints of civil rights violations in the enforcement of the immigration laws have been received by the Commission from aliens as well as citizens and long-time residents.

In 1977 the Commission undertook a study of the civil rights problems in immigration law, practice, and procedure. In identifying and exploring the impact of those problem areas on the civil rights of citizens, resident aliens, and undocumented aliens, Commission staff conducted intensive background research and field investigations. Hundreds of individuals were interviewed, including representatives of community organizations and immigrant service organizations; officers of business groups and unions; attorneys and other immigration practitioners; Immi

ly present within the United States. This term will be used interchangeably with the term "immigrant."

' Undocumented aliens are aliens whose presence in the United States is in violation of the immigration laws. For example, aliens who enter the country without inspection as well as aliens who overstay their visas (which authorize the permissible length of stay in the United States for the particular immigrant) would be undocumented aliens. A documented alien, of course, is one who has acquired legal residence in this country.

• From Elliot's Debates on the Federal Constitution, vol. 4, p. 555. See 149 U.S. 698, 740-41 (1893).

gration and Naturalization Service, State Department, and other government officials; immigration experts; immigrants; and employers. Open meetings were held in February, June, and September of 1978 by the State Advisory Committees in New York, California, and Texas. More than 150 persons spoke at these open meetings. In November 1978 the Commission, for the first time, conducted a national hearing on civil rights in immigration. Thirty-two witnesses were either subpenaed or invited to testify at that hearing.

Because of the breadth of the American immigration system, the data gathered during the field investigations and the testimony received at the open meetings and national hearing were limited to selected issues of civil rights concern. Thus, some immigration issues of current public concern not contemplated by the original project scope are not covered by this report. One very important issue is the plight of refugees from Haiti and Cuba as well as Indochina. The Commission is deeply concerned with the processing procedure required for those persons who are seeking entry into this country as refugees. The Commission is also deeply concerned with reports that refugees residing in this country are experiencing discriminatory treatment, for, without a doubt, refugees who come to reside in the United States are entitled to the full protections afforded by the Constitution.

Although the report does not cover the problems of the refugee situation, the Commission does not wish to minimize the importance of that growing national and international concern. In fact, it is our hope and belief that the Refugee Act of 1980,10 signed into law in March of this year, will make great strides in responding to the worldwide refugee situation and thereby reflect this Nation's humanitarian attitude as a refuge for those seeking to escape persecution, political tyranny, and other hardships.

This report is the culmination of more than 8 months of field investigations, 8 days of open meetings, and 2 days of national hearings. Although it is not a comprehensive review of the entire

10 Refugee Act of 1980, Pub. L. No. 96-212 (to be codified in scattered sections of 8 U.S.C.). "Immigration and Nationality Act of 1952, as amended, 8 U.S.C. §§11011557 (1976).

12 For a brief description of police patrol and investigative techniques, see President's Commission on Law Enforcement and Administration of Justice, Task Force on the Police, Task Force Report: The Police (1967), p. 1. 19 INS enforcement and apprehension practices are discussed in chapters 5 ("Operation Cooperation") and 6 of this report.

14 INS area control operations and their legality are discussed in chapters 5 ("Operation Cooperation") and 6 of this report.

immigration system, the Commission hopes that this report will provide a useful overview of the more critical civil rights problems faced by persons confronted with that system of immigration law, practice, and procedure.

The report, in examining the current immigration system, also makes analogies and comparisons between immigration law enforcement and criminal law enforcement. The Immigration and Naturalization Service (INS) is a specialized agency with law enforcement functions charged with the administration and enforcement of the immigration laws of the United States." In performing its statutory duties, the INS, like police agencies, uses patrol and investigative techniques to enforce the laws. 12 INS Border Patrol agents are dispersed along the American border in an attempt to discourage or apprehend persons entering the country without inspection at authorized border points, through interrogations or investigative stops and other enforcement techniques.13 These INS officers, as do police officers, have authority to carry firearms and to use force in appropriate circumstances to perform their duties. At interior points, INS officers conduct investigations to apprehend persons residing in the United States in violation of the immigration laws by interrogating or conversing with persons who have information concerning immigration law violations, interrogating suspected violators or confronting suspects with evidence or information in their possession, and conducting surveillance activities or area control operations in communities or business establishments where immigration law violators are believed to be present. 14 In some circumstances, INS officers have statutory authority to make arrests or conduct searches without warrant.15

The Commission recognizes that the system for the enforcement and administration of the immigration laws is not identical to that of the criminal justice system. In fact, the deportation16 process has

15 8 U.S.C. §1357 (1976). Of course, search and arrest powers of INS officers, like those of other law enforcement officers, are subject to the requirements of the fourth amendment to the Constitution of the United States. See chapter 6 of this report for a discussion of INS search and arrest powers.

16 Deportation is a legal sanction under which aliens whose presence in the United States is in violation of Federal immigration laws are expelled from the country.

been consistently characterized by the courts as a civil proceeding.1 However, sufficient similarity exists between the immigration law enforcement system and the criminal justice system to justify comparison of certain aspects of both systems. Other studies, in examining INS practices, have recognized these similarities in comparing aspects of the two systems. 18

The report represents the findings and conclusions of the Commission with respect to the administration of justice in the enforcement of the immigration laws of the United States. It is divided into five sections.

The first section of the report discusses past and present discriminatory provisions of United States. immigration laws. The second section focuses on problems in the practices and procedures of the INS and the State Department in administering the immigration laws and how those practices and procedures affect citizens, aliens, and intending immigrants. 19 The third section of the report concentrates on employer sanctions, a proposed legislative solution to the "immigration problem." In the fourth section, chapters 6 and 7 examine the constitutional rights provided to persons during the apprehension, detention, and deportation stages of the immigration expulsion process and the effect that process has on persons other than those subject to deportation. The

17 The classification of deportation as a civil proceeding will be discussed in chapter 7 of this report.

18 One example would be "A Comparison of the Bond-Setting Practices of the Immigration and Naturalization Service with that of the Criminal Courts" by Bruce D. Beaudin, who conducted the study for the Depart

last section of the report examines current INS complaint investigation procedures.

Some of the problems arising from the enforcement and administration of the immigration laws have been addressed by reforms instituted by Leonel Castillo, the former Commissioner of INS. But many problems remain. Those problems are summarized in the two major findings of the report: (1) the current Immigration and Nationality Act still contains discriminatory provisions, and (2) the current practices and procedures for the enforcement of that statute result in the denial of rights to American citizens and to documented and undocumented aliens.

The findings of the report are followed by the Commission's recommendations to eliminate the discriminatory provisions of law and to revise current immigration practices and procedures. These improvements in immigration law, practice, and procedure are necessary if American citizens, resident aliens, and undocumented aliens are to receive the full measure of benefits and legal protections to which they are entitled under our system of government. By adopting these changes, America's "old" immigrants can embark on a true course which furthers the traditions of our free and democratic society, not only for the alien but also for the American citizen.

ment of Justice and the INS. The findings and recommendations of that study are discussed in chapter 7.

19 Intending immigrants are foreign nationals who desire to come to the United States to live and work. This term will be used interchangeably with the term "prospective immigrant" in this report.

gration and Naturalization Service, State Department, and other government officials; immigration experts; immigrants; and employers. Open meetings were held in February, June, and September of 1978 by the State Advisory Committees in New York, California, and Texas. More than 150 persons spoke at these open meetings. In November 1978 the Commission, for the first time, conducted a national hearing on civil rights in immigration. Thirty-two witnesses were either subpenaed or invited to testify at that hearing.

Because of the breadth of the American immigration system, the data gathered during the field investigations and the testimony received at the open meetings and national hearing were limited to selected issues of civil rights concern. Thus, some immigration issues of current public concern not contemplated by the original project scope are not covered by this report. One very important issue is the plight of refugees from Haiti and Cuba as well as Indochina. The Commission is deeply concerned with the processing procedure required for those persons who are seeking entry into this country as refugees. The Commission is also deeply concerned with reports that refugees residing in this country are experiencing discriminatory treatment, for, without a doubt, refugees who come to reside in the United States are entitled to the full protections afforded by the Constitution.

Although the report does not cover the problems of the refugee situation, the Commission does not wish to minimize the importance of that growing national and international concern. In fact, it is our hope and belief that the Refugee Act of 1980,10 signed into law in March of this year, will make great strides in responding to the worldwide refugee situation and thereby reflect this Nation's humanitarian attitude as a refuge for those seeking to escape persecution, political tyranny, and other hardships.

This report is the culmination of more than 8 months of field investigations, 8 days of open meetings, and 2 days of national hearings. Although it is not a comprehensive review of the entire

10 Refugee Act of 1980, Pub. L. No. 96-212 (to be codified in scattered sections of 8 U.S.C.).

" Immigration and Nationality Act of 1952, as amended, 8 U.S.C. §§11011557 (1976).

12 For a brief description of police patrol and investigative techniques, see President's Commission on Law Enforcement and Administration of Justice, Task Force on the Police, Task Force Report: The Police (1967), p. 1. 13 INS enforcement and apprehension practices are discussed in chapters 5 ("Operation Cooperation") and 6 of this report.

14 INS area control operations and their legality are discussed in chapters 5 ("Operation Cooperation") and 6 of this report.

immigration system, the Commission hopes that this report will provide a useful overview of the more critical civil rights problems faced by persons confronted with that system of immigration law, practice, and procedure.

The report, in examining the current immigration system, also makes analogies and comparisons between immigration law enforcement and criminal law enforcement. The Immigration and Naturalization Service (INS) is a specialized agency with law enforcement functions charged with the administration and enforcement of the immigration laws of the United States.11 In performing its statutory duties, the INS, like police agencies, uses patrol and investigative techniques to enforce the laws.12 INS Border Patrol agents are dispersed along the American border in an attempt to discourage or apprehend persons entering the country without inspection at authorized border points, through interrogations or investigative stops and other enforcement techniques.13 These INS officers, as do police officers, have authority to carry firearms and to use force in appropriate circumstances to perform their duties. At interior points, INS officers conduct investigations to apprehend persons residing in the United States in violation of the immigration laws by interrogating or conversing with persons who have information concerning immigration law violations, interrogating suspected violators or confronting suspects with evidence or information in their possession, and conducting surveillance activities or area control operations in communities or business establishments where immigration law violators are believed to be present.14 In some circumstances, INS officers have statutory authority to make arrests or conduct searches without warrant.15

The Commission recognizes that the system for the enforcement and administration of the immigration laws is not identical to that of the criminal justice system. In fact, the deportation1s process has

15 8 U.S.C. §1357 (1976). Of course, search and arrest powers of INS officers, like those of other law enforcement officers, are subject to the requirements of the fourth amendment to the Constitution of the United States. See chapter 6 of this report for a discussion of INS search and arrest powers.

16 Deportation is a legal sanction under which aliens whose presence in the United States is in violation of Federal immigration laws are expelled from the country.