The Truest Test of Democracy

The chair of the ISBA's Immigration and International Law Section Council weighs in on the president's executive order on immigration.

As strongly expressed opinions about the president's executive order on immigration swirl around us, I thought we should hear from an ISBA leader with a deep understanding of immigration law based on decades of practice. I invited Aurora lawyer Patrick M. Kinnally, chair of our Immigration and International Law Section Council, to comment. I thank him for accepting my invitation. Here are his thoughts. - Vincent F. Cornelius

The truest test of a constitutional democracy is how it protects those who most need protection. Based on that calculus choices should be made. Policies are announced, some good, others not. But regardless, a common weal must be our goal, focusing on what unites rather than separates us.

I have been practicing immigration law since 1973. I started as an inspector on the Canadian border for the Immigration and Naturalization Service and a teacher at the Federal Law Enforcement Center. Later, I represented immigrant prisoners in the Illinois correctional system, taught immigration law at Northern Illinois College of Law, and represented immigrants in private practice. My experience is on both sides. This is my view of the current dispute about immigration policy.

The impact of 9/11

First, some context. In September 2001, our country was attacked by individuals from foreign nations. Not since the Japanese attacked Hawaii in 1941 did such an invasion occur. We all remember where we were on September 11, 2001. The attack that day inflicted deep, lasting wounds. We as a nation were violated.

As we struggled with how to react, many students of history recalled Executive Order ("EO") No. 9066. That EO authorized the segregation of persons of Japanese ancestry, including American citizens, in camps like the one at Tule Lake, California. This edict did not apply to those of German or Italian ancestry. It was later upheld by the U.S. Supreme Court. Hirabayashi v. United States, 320 U.S. 81 (1943); see also Korematsu v. United States, 323 U.S. 214 (1944).

The federal government responded to 9/11 with a rule called the National Security Entry-Exit Registration System ("NSEERS"). NSEERS resulted in registration for persons of specific nations who were not United States citizens or lawful permanent residents ("LPRs"). It was a recoil, but not an illegal one. The attorney general, at Congress' behest, may implement special regulations for the registration of "aliens of any other class not lawfully admitted to the United States for permanent residence." 8 U.S.C. § 1303(a); see also Kandamar v. Gonzales, 464 F. 3d 65 (2006).

NSEERS was in part a reaction to the fact that the 9/11 invaders were in the United States as F-1 nonimmigrants, or students. The NSEERS countries were Iran, Iraq, Sudan, and Libya. As the policy expanded, it covered more than two dozen nations, including North Korea. NSEERS was repealed by another EO on December 23 of last year by President Barack Obama before he left office.

The right to travel for U.S. citizens is fundamental but not unlimited. Zemel v. Rusk, 381 U.S. 1 (1965). It is even less robust for LPRs and those applying with immigrant visas seeking entry to the United States. (In Re: Collado Munoz, 21 I&N Dec. 1061, BIA 1998.) This ability to enter for nonimmigrants is further constrained by executive power.

EO 13769

In one of his first acts, the president issued EO 13769, a fiat that prohibits travel from countries that are largely Muslim. The text of the EO does not mention religion as an enforcement tool, though Donald Trump stated in 2015 that he favored a "complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on." See Cindy G. Buys, Does the Immigration and Nationality Act Allow Discrimination Based on Religion?, The Globe (June 2016), http://bit.ly/2l1ksAS. Indeed, the Immigration and Nationality Act contains no provision that prohibits religious discrimination in its enforcement. Maybe that is a Congressional oversight.

The new EO covers five pages of single-spaced text. It is confusing and capacious. It is illegal in connection with LPRs right to travel and most likely refugees and immigrants who were on their way to this country with the appropriate visas. It created unnecessary anxiety and is poorly drafted. Naturally, lawsuits were filed. Judge Robart issued a broad temporary restraining order (TRO) halting implementation of the EO (State of Washington, et al. v. Donald Trump, et. al., 17 CV-00141JLR (2017)), which was upheld by the federal ninth circuit appellate court.

Not surprisingly, the EO and responding TRO have divided our nation. Clearly, the executive branch has authority over immigration law, although in recent years many states have enacted statutes in this area. Thankfully, our judiciary has the authority to provide a check on excessive executive power.

For its part, Congress has the responsibility to shape a cogent, fair immigration policy but has failed to do so. As this goes to press, we are watching the executive battle with our judiciary while Congress sits on the sidelines.

There is little doubt that our federal government has the duty to protect us from those who would do us harm. But at what cost to our democracy? Should individual rights give way to discrimination based on national origin or religious affiliation? Our Supreme Court has declared, "We must never forget that it is a constitution we are expounding, a constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs." Hirabayashi, 320 U.S. at 100-01.

The pitched, "us" versus "them" political battle now underway is debilitating to us as a nation. We need to make, collectively, some new choices not based on fear but on the actual security needs we all share.

- Patrick M. Kinnally