Protests by illegal immigrants for equal rights are an oddity of American law. Illegal immigrants, by definition, are breaking the law and thus should be deported. Indeed, non-citizens as a class do not have the same rights as citizens because, at best, they are guests. At the same time though, immigrants are still human and should be given a certain level of respect. The distinction between human rights and citizen’s rights, if there is a distinction, is an important part of immigration law and one which could influence how the world is structured as globalization continues.
The Supreme Court’s ruling in Moncrieffe v. Holder is a crucial piece of the puzzle of human and citizen’s rights. Adrian Moncrieffe moved to the United States from Jamaica in 1984 when he was three. He eventually married and had two children in the United States. In 2008 though, Moncrieffe was arrested for possessing 1.3 gram of marijuana, or three cigarettes of marijuana, after his vehicle was searched at a traffic stop.
Moncrieffe pleaded guilty to possession with intent to distribute marijuana, but the state court decided not to jail him. Moncrieffe was supposed to have his sentence expunged after a few months. Instead, federal immigration officials arrested him and began the process for removal. The federal government could deport him because the marijuana possession charge was treated as a drug traffic offense. Under federal marijuana laws, drug trafficking is considered an aggravated felony, which automatically triggers deportation.
The Supreme Court heard the arguments for the case last fall and announced in mid-2013 that minor drug possession cannot be grounds for automatic deportation. Although Moncrieffe won the case, the 7-2 decision is much narrower than it seems. The Court’s decision does not prevent Moncrieffe from being deported; it only makes it non-automatic. Moncrieffe has only won a trial to determine if he should be deported, not protection from deportation. Still, the case is significant for non-citizens because it is the first step to giving aliens a real right to jury trial.
However, there are certain rights in the Constitution that apply to persons rather than citizens, the most significant being the right to due process. Unfortunately, the Supreme Court went the long way around to extend due process to Moncrieffe. Rather than strike down automatic deportation as a violation of due process, the Court held that state marijuana laws must be a felony under federal law in order to be considered “aggravated felonies” which trigger mandatory deportation.
Why the reluctance to extend a right that the Constitution grants to all persons? First, the Court is hesitant to make an immigration policy decision, a decision which is best left to Congress. Second, giving non-citizens the same rights as citizens would render the distinction meaningless. Either all rights would be human rights or all humans are citizens. The latter makes no sense and would lead to absurd consequences that other nations would not follow.
Making all rights a human right would be a huge step towards globalization in the legal system. Recognizing all humans as individuals with equivalent rights means that all legal systems must enforce these rights the same way. This is the goal of an equal society, so what is the problem? The problem is the loss of community and cultural autonomy, the autonomy which federalism is suppose to protect. Each community should be allowed to experiment and develop its own way of life, but that cannot happen if there is a central force unifying all communities.
A continuing problem in immigration law is how to ground rights. Making a right a human right means extending it to all humans, but depriving communities of autonomy. Making a right a right which is tied to citizenship has its own problems though. The nation-state has power over citizenship since states define who is a citizen and who is not. A state could deprive a right just by revoking citizenship or declaring that an individual was never a citizen.
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