Of course the government can take religion into account in making immigration decisions. This happens all the time when someone seeks asylum based on religious persecution. People from a given country who can show that they are of religion X get asylum and get admitted, while people from that same country who are religion Y do not.
For those of you saying that religious determinants for immigration are allowed by the Constitution, does this mean that if President Carson announced that from now on only devout Seventh Day Adventists will be considered candidates for immigration, it would be completely legal?
A shiver went down my back. You know who commonly precedes a post with that? We Know Who They Are.
Nice … if government can choose a specific religion to be let in, then government can choose a specific religion to exclude.
Right, but only when that is part and parcel of a case for persecution. It’s not a blanket rule. Did you see post #25 above? And you know that people who are seeking asylum are already admitted, right?
The posting in this thread has too many people mixing up immigration, refugee status, and asylum. These are three very distinct things with different processes, but many here are talking about them as if they were all the same thing.
[QUOTE=aldiboronti]
My son, who’s English, lived in the US for 5 years. He had a green card, a good job, an American wife and everything seemed fine. Then one day he was called in to the immigration bureau. Because he came in originally on a tourist visa and even though he’d been given his green card they decided he should have exited the country and then applied for a work visa. So because of this he was stripped of all his possessions, locked up, denied access to a lawyer and summarily deported.
If the Constitution applies to non-Americans why was he denied any rights at all? That’s why I found the idea of the Constitution protecting non-citizens bizarre. He was told that as an illegal immigrant he had no rights at all.
[/quote]
The problem, I think, with people in your son’s situation, is that immigration violations are civil matters. Many of the constitutional rights one has with regard to due process (such as representation in court) apply only to criminal matters–or at least, that’s how the courts have ruled on them.
We don’t, of course. So far as I know, there has never once in this nation ever been anyone attempting to ban prayer in any school.
Think of it as a somewhat tautological implied restriction, that the Constitution only prohibits infringement of the rights of people who are protected by the Constitution. The first amendment has never, to my knowledge, been extended to non-citizens abroad, and if there is no one who has the right to sue for a supposed violation of constitutional rights, then no protected rights have been violated.
These aren’t accurate. Asylum is not generalized protection against peril. Only certain specific harms are protected against, one of which is religious persecution. Further, I don’t think an applicant necessarily has to prove individualized danger; once our government has identified a religious group as persecuted in a particular country, it’s sufficient simply to show membership in that religious group.
Surely you don’t mean to suggest that people already admitted have fewer rights than those who have not been? In other words, if the government can apply a religious test to asylum-seekers who are already here, presumably it can do so to would-be immigrants who have not yet even left home, right?
For most of its history, US immigration law was set up to permit immigration only from countries that were predominantly white and Christian, and no one has ever suggested that that would be impermissible.
Not necessarily. If we admit Yazidis from country X on the basis that it is established that Yazidis from country X have a well-founded fear of persecution on account of religion, it doesn’t follow that we exclude non-Yazidis from country X. We’ll admit non-Yazidi too, if they also have a well founded fear of persecution on account of on account of race, religion, nationality, membership in a particular social group or political opinion.
In other words, we’re applying the same rule to everyone: do you have a well founded fear of persecution on account of on account of race, religion, nationality, membership in a particular social group or political opinion? The circumstance of being a Yazidi from country X is enough to establish that you do; people who are not Yazidis from country X need to point to some other circumstance.
If we announced that we would not accept Muslims from country X, regardless of whether they had a well-founded fear of persecution on account of race etc, that would be a substantially different kind of decision. The fact that the courts would allow the first decision to stand doesn’t mean that they would allow the second decision to stand.
Your interpretation in post #9 is unsupported. There is no evidence that your interpretation is accurate and lots of evidence that you are wrong.
To clarify - all persons in the US enjoy the protections of the constitution through the 14th amendment. Your examples of quartering troops isn’t on point since those are people already in the US. There is no constitutional right for foreign nationals to immigrate to the US. As has been stated, congress controls the rules for immigration and the executive enforces those rules. SCOTUS gives wide latitude, even deference, to those branches in the area of immigration.
Well, congress would first need to enact those immigration rules, then the executive could enforce them. Then, yes.
Immigration case law is full of what might politely be called dick moves by the US government that were nonetheless permitted by the court.
On May 6, 1882 President Arthur signed the Chinese Exclusion Act* into law which essentially barred immigration by Chinese laborers. But at least if you were Chinese and living in the United States you were ok. For a while.
Then on October 1,1888 the Scott Act was passed barring Chinese from reentering the United States if they left. This led to a Supreme Court challenge by Chae Chan Ping.
Ping was a resident of California since 1875, but returned to China to visit family in 1887 or early 1888. Prior to leaving he got a reentry permit, supposedly guaranteeing the right to reenter the United States.
Ping boarded a ship in Hong Kong on September 7, 1888 for his return to the United States. The Scott Act was passed and signed into law during his voyage and upon arrival in San Francisco on October 8, 1888 he was denied entry into the United States. Ping was screwed.
Legal maneuvers began with a lower court ruling that Ping’s detention aboard the ship that brought him to San Francisco was lawful. And his denial of entry was not a violation of a previous treaty between the US and China.
The Supreme Court heard Ping’s appeal and unanimously ruled against him. The Court essentially said the political branches of government can do whatever they want as that is an inherent right of sovereignty.
- The Chinese Exclusion Act was later repealed on December 17, 1943.
Many of the constitutional rights one has with regard to criminal proceedings do not apply, such as (most of) the Fifth, Sixth and Seventh Amendments. The right to due process still applies, which is why a hearing is required for deportation. He could not have been denied access to an attorney in any case, though; the government just wasn’t required to provide him with one.
Reading this, I am amazed once again as to how, “backward” (for the want of a better term) U.S administrative law is. Deference sounds so early 20th century and apparently is enough to justify executive actions.
Waiting for U.S lawyers to tell me how wrong I am.
Seriously no Wednesbury type reasonableness there?
This isn’t an administrative law issue. Deference on immigration matters applies to both executive and legislative action.
Beg pardon? It’s supported by the Constitution, and there is literally nothing else that could be a basis for support for any claim on this topic.
Yes, I’m aware that the courts have not ruled on any such matter. But that’s irrelevant. If that were the only form of support that were possible, then upon what would the courts themselves base their decisions?
Yes, sorry, that’s what I meant. And in complicated immigration cases like that one, if you don’t have an attorney, you’re probably going to lose.
The courts have ruled on this matter, and they disagree with you.
The courts have ruled, and they have ruled contrary to your interpretation. Court decisions are perfectly responsive to support the claims on this topic and their rulings are completely relevant. You are wrong here.
Where are any of these rulings? The courts ruled the Chinese Exclusion Act permissible, for instance, but that wasn’t based on religion, and as such has no relevance to the present question.
To explore the bounds of the disagreement here, let me ask those on the “unconstitutional” side: Do you believe that it would be permissible for Congress to pass a new Immigration and Nationality Act that sets forth a list of countries from which no immigrants will be permitted, and to have that list include every Muslim-majority country? And then one step further: Would it be permissible for that Act’s list of exclusions simply to say “all Muslim-majority countries”?
Why do you think that distinction is significant?