As Congress and President Obama begin to discuss comprehensive immigration reform, the ACLU urges that critical civil liberties principles should guide any potential legislation.
While the president has stated a commitment to providing a path to legal status for the estimated 12 million undocumented immigrants living in the United States, he has not yet set forth specifics. There is widespread recognition that our immigration system does not meet the needs of our nation and often fails to ensure fairness and due process, and the proposals for reform are likely to raise many complex and contentious issues.
The following fundamental principles must guide the process as it goes forward:
- Immigration reform must not create a national ID system. Calls for new and expensive electronic employment verification systems and biometric worker identification are thinly-disguised national ID requirements. It is unacceptable to force American workers to be fingerprinted or photographed in order to work. The intrusive verification regimes that have been proposed would rely on massive and inaccurate databases, undermine the privacy of American workers, lead to discrimination against those who look or sound “foreign” and impose new burdens on authorized workers. These systems neither prevent the hiring of undocumented workers nor resolve the nation’s immigration issues. They merely saddle taxpayers and businesses with enormous costs in a time of economic crisis.
- State and local intrusions into immigration policy and enforcement should be halted immediately. State and local immigration regulation and enforcement leads to racial and ethnic profiling and undermines effective policing by discouraging immigrant communities from cooperating with the police. Cities and states cannot be allowed to supersede national immigration policy by enacting their own laws targeting immigrants. When President Obama was on the campaign trail, he applauded a court decision striking down one such law, saying: “Today’s ruling … is a victory for all Americans. The anti-immigrant law passed by [Hazleton, Pennsylvania] was unconstitutional and unworkable – and … underscores the need for comprehensive immigration reform so local communities do not continue to take matters into their own hands.” The president should act consistently with his principles and direct the Department of Justice to support the legal challenges against these unconstitutional state and local laws.
- Reforms to our immigration laws should be fair and ensure that the constitutional guarantee of due process for every person is fully respected and vigilantly protected. All immigration programs and policies of the Department of Homeland Security must be subject to effective oversight and judicial review by the federal courts. Every person, including immigrants, must have an absolute right to go to court to enforce the law and the Constitution. The power of courts to promptly review the actual practices and policies governing implementation of any legalization program that Congress may enact is essential to upholding fundamental rights, enforcing the Constitution, ensuring the rule of law, and preventing bureaucratic abuses.
- Any new legislation to reform our immigration system must address endemic due process failures embodied in current law. We must end unnecessary and unconstitutional prolonged detention of immigrants who pose no risk or danger; we must restore discretion to eliminate mandatory deportation laws that ignore U.S. citizen children and spouses; we must ensure effective judicial review as the cornerstone of due process; and we must repeal summary procedures that deny fair hearings to immigrants or fail to protect bona fide refugees.
