A Civil Right to Citizenship?

Is conferring citizenship to unlawful immigrants "a matter of civil and human rights"?

Yesterday the Senate passed the Gang of Eight’s immigration bill. As the debate shifts to the House, lawmakers should consider the way the language of civil and human rights is being deployed to bolster the case for citizenship for immigrants who entered the country unlawfully—and how it could undermine existing enforcement mechanisms.

Earlier this week, Senator Chuck Schumer (D-NY) raised the specter of “a million people on the Mall in Washington” if the House does not pass the Senate Gang's immigration legislation. According to Schumer, “if there’s no path to citizenship . . . this has the potential of becoming the next major civil rights movement.” Perhaps he was revealing the Gang's growing desperation to secure passage of their bill, but Schumer also professed a heretofore-unrecognized civil right to citizenship predicated upon violation of the immigration laws.

Schumer is not alone in this view. On April 24, Attorney General Eric Holder declared that "creating a pathway to earned citizenship for the 11 million unauthorized immigrants in this country is absolutely essential. This is a matter of civil and human rights." Derived from the Constitution or federal law, civil rights protect individuals from unequal treatment. Individuals whose civil rights are violated have a right to legal redress. The implications of these newly enunciated rights to citizenship have received little congressional scrutiny or public consideration.

When Congress legislates on matters relating to immigration and naturalization, it inevitably accords different legal treatment to individuals based on their immigration status. That is the purpose of the exercise. Establishing a civil right to citizenship for those who violate the immigration laws not only defeats this authority, it provides those who violate the immigration laws a basis to challenge their validity.

This novel approach to immigration law should give pause to any member of Congress whose support for the Gang of Eight bill rests upon enforcement of strengthened immigration and border-security measures. For how can Congress reasonably rely on promises of enhanced enforcement if the administration's top lawyer believes unlawful immigrants have existing rights to citizenship? Why should Congress bother establishing a "path to citizenship" when the administration has already concluded unlawful immigrants are entitled to the rewards citizenship confers?

This critical legal approach to immigration law and U.S. citizenship raises additional questions. It is not clear from what constitutional, legal or other authority these rights arise. If they emanate from the Equal Protection Clause of the Fourteenth Amendment, the Justice Department would have an obligation to seek heightened scrutiny of alienage classifications or selective invalidation of the immigration laws. If these rights spring from Title VII of the Civil Rights Act, immigration laws that have a disparate impact on classes of illegal immigrants become actionable in federal court. If "national origin discrimination" were expanded to provide immigrants treatment equal to that of legal residents or U.S. citizens, employers would face possible claims of discrimination for examining the legal status of potential employees or "discriminating" against unlawful immigrants. This legal development would negate the objectives of the immigration laws and encourage additional illegal immigration to the United States.

It is also unclear whether these newly discovered rights to citizenship rest upon common-law conceptions of property obtained through adverse possession. If so, those who openly and continuously proclaim their unlawful presence possess more compelling claims to citizenship. Proponents have also failed to explain from what treaty, convention or other body of international law these “human rights” to citizenship derive. Finally, the administration has not acknowledged the international legal forum through which unlawful immigrants could seek vindication of these human rights.

Limiting legal principles are also absent. It is not clear whether all unlawful immigrants have a civil right to citizenship, or only those who have violated the law for a determined period. If unlawful immigrants have a civil right to citizenship, surely legal residents possess an even greater claim. If so, was Tamerlan Tsarnaev unfairly deprived of his civil and human rights when denied citizenship? Are unlawful residents convicted of domestic violence or gang membership, or suspected of ties to foreign terrorist organizations, not entitled to citizenship? Or must national-security and public-welfare concerns now be balanced against unlawful immigrants' “civil and human rights” to citizenship?

The administration has not revealed whether these new rights extend to unlawful immigrants who arrive after possible enactment of pending immigration legislation. Holder has not specified whether these rights will vanish the moment the Gang's immigration legislation is signed into law; nor has he explained whether the arrival of more unlawful immigrants will reanimate these rights. One can scour the record of jurisprudence and find no parallel temporal or situational civil right in American legal history, nor one dependent upon the status of legislation before Congress.