September 2016 Bar Bulletin
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September 2016 Bar Bulletin

The Right of the Immigrant Renewed

By Jacob Anderson


Immigration has deep roots in American society. Since the signing of the Declaration of Independence, immigration has played a major role in American culture.

Currently, presidential hopefuls in the 2016 election are revealing to the public their individual positions on illegal immigration. Businessman Donald Trump has vehemently expounded a hardline stance against illegal immigration. If elected president, Trump promises to deport all of the estimated 11.5 million illegal immigrants within 18 months of his presidency.

Trump’s plan conjures intransigence from lawmakers and legal scholars since mass deportation of illegal immigrants would only be feasible if they are deemed ineligible for the due process protections of the U.S. Constitution. Supporters of Trump-like immigration plans claim that illegal immigrants are not granted due process rights and therefore can be deported from America without legal proceedings.

However, critics of such plans believe that all people residing in the United States are guaranteed constitutional rights. Such political rhetoric has stimulated passionate debate in legal circles about the due process rights of illegal immigrants. Due to the Supreme Court’s legal precedents and interpretation of the Fourteenth Amendment, it is irrefutable that illegal immigrants are indeed afforded constitutional protections and cannot be deported without judicial approval.

This conclusion will be corroborated by an in-depth review of three cases: Yick Wo v. Hopkins,1 Wong Wing v. United States2 and Plyler v. Doe,3 and will also expose an erroneous caveat used by presidents of the past.

The seminal case of Yick Wo v. Hopkins explicitly addressed the due process rights of immigrants within the United States of America. Due to the Court’s sound interpretation of the Fourteenth Amendment, specifically the “equal protection” clause, this case established a definitive precedent on the topic of immigrant rights and continues to be one of the most cited cases.

In 1880, an ordinance was passed in San Francisco that mandated all laundry facilities in wooden buildings obtain a permit from the Board of Supervisors. This entity was given total discretion over who would receive these valuable permits. Even though 89% of all launderers were Chinese, not a single one of them was issued a permit, which sparked outcry within the city’s Asian community.

Yick Wo and Wo Lee were two of the launderers who were denied permits. Instead of closing their businesses as the ordinance stipulated, they defied the law and were subsequently jailed by Sheriff Peter Hopkins. Believing that their imprisonment was unfair, Yick Wo and Wo Lee both petitioned for writs of habeas corpus, claiming their rights were violated under the Constitution’s “equal protection” clause.

However, the Supreme Court of California and the Circuit Court of the United States denied Yick Wo and Wo Lee’s claims. Consequently, Wo and Lee bundled their cases together and appealed to the Supreme Court of the United States under the name Yick Wo v. Hopkins, and were granted certiorari. The Court decided the case unanimously in favor of the appellants.

What does a 130-year-old case about Chinese launderers have to do with the constitutional rights of immigrants? The court’s opinion, written by Justice Mathews, addressed much more than the individual cases of Yick Wo and Wo Lee. With broader implications, it also addressed the constitutional protections of all immigrants under the Fourteenth Amendment’s “equal protection” clause.

The Court focused primarily on the latter part of the Fourteenth Amendment, Section 1: “nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”4 The Court reasoned that because immigrants are indeed persons in every ordinary sense of the word, and they are in the United States’ jurisdiction, it is clear that constitutional provisions equally protect them.

This same principle can be applied today to the rights of illegal immigrants. The Yick Wo holding set a precedent that protects the life, liberty and property of everyone in U.S. jurisdiction. Therefore, it affirmed that the United States cannot deport anyone without due process measures, as that would mean depriving a potentially innocent person of life and liberty unfairly.

Similarly, Wong Wing established a firm legal precedent stating that all people within U.S. jurisdiction are entitled to constitutional protections under the Fourteenth Amendment. Wong Wing is one of the most quoted and referenced immigration cases.

In Wong Wing, the Chinese Exclusion Act stipulated that any Chinese immigrant found to be illegal was to be deported after serving two months in a hard labor prison. Wong Wing was found to be a Chinese illegal immigrant and sentenced accordingly by the Commissioner of the Circuit Court (who was not a judge). Wing sought a writ of habeas corpus, but was denied.

Wing subsequently appealed to the Supreme Court. Wing was granted certiorari in 1896 by the Supreme Court. Just like in Yick Wo, the issue of the case was not as much about the plaintiff’s unique situation, but about the rights of non-U.S. citizens being detained or accused of crimes. The question the Court faced was whether immigrants can be deprived of life or liberty without due process.

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