Thursday, October 8, 2020
In September 2020, the Department of Homeland security proposed rule that would set time limits of up to four years for foreign student visas. The proposed rule will require all F, J, and I non immigrants who wish to remain in the United States beyond their specifically authorized admission period to apply for an extension of stay directly with USCIS or to depart the country and apply for admission with CBP at a port of entry. The Department’s rationale is that it is concerned about the integrity of the programs and a potential for increased risk to national security.[i] Even though the majority of people who overstay their visa in the US are from China, India, Brazil, and Canada, the proposed rule targets mostly students from African countries. Which begs the question, is there animus towards people from certain parts of the world coming to the U.S.? A few examples might illuminate this.
On June 18, 2020, the US Supreme Court, in Department of Homeland Security v. Regents of University of California 591 U.S.__ (2020) ruled that the Trump administration’s attempt to end Deferred Action For Childhood Arrivals (DACA) violated the Administrative Procedures Act. This part of the opinion garnered a majority vote (Chief Justice Roberts was joined by Justices Breyer, Kagan Ginsburg and Sotomayor). More pertinent, those challenging the rescission had argued among others, that rescission violates the equal protection guarantee of the Fifth Amendment in that the Executive was motivated by animus towards a certain ethnic group (read Hispanics). Chief Justice Roberts rejected the equal protection claim, and was joined in part by Justices Alito, Gorsuch, Kavanaugh and Thomas.
The history of immigration in this country is full of animus towards certain ethnic groups. For example, during the 1800’s, Congress passed several Chinese exclusion acts that prevented several Chinese laborers from immigrating to the U.S. In 1879, the convention which framed the present constitution of California, presented a memorial to Congress stating among others that “the presence of Chinese laborers had a baneful effect upon the material interests of the state, and upon public morals; that their immigration was in numbers approaching the character of an Oriental invasion, and was a menace to our civilization; that the discontent from this cause was not confined to any political party, or to any class or nationality, but was well nigh universal; that they retained the habits and customs of their own country, and in fact constituted a Chinese settlement within the state, without any interest in our country or its institutions; and praying congress to take measures to prevent their further immigration.”[ii]
In the early colonial period, anti-Catholicism was the prevalent form of nativism. Catholics were routinely barred from entering certain colonies, holding public office and voting.[iii] Sociologist and nativist Edward Alsworth Ross described Jews as “polar opposite of our pioneer breed. Undersized and weak muscled, they shun bodily activity and are exceedingly sensitive to pain” He described Italians as possessing a distressing frequency of low foreheads, open mouths, weak chins, poor features, skewed faces…[iv]
Writing in the Washington Examiner in 2006, Former Colorado Governor Richard Lamm described his eight reasons on how America was being destroyed. Top of the list,? immigration perils of multiculturalism.
In his presidential primary race in 1992, Pat Buchanan ran on America first and anti-immigration platform. No less than Donald Trump wrote an op-ed piece in the LA Times in October 31 1991 attacking Pat Buchanan. He titled it “Buchanan is Too Wrong To Correct.” He called Buchanan dangerous. Trump described Buchanan as follows “On slow days, he attacks gays, immigrants, welfare recipients, even Zulus. When cornered, he says he’s misunderstood.”[v] Trump later denounced Buchanan telling reporters, “We must recognize bigotry and prejudice and defeat it wherever it appears.”[vi]
In 2015, President Trump kicked of his presidential campaign by denigrating Mexicans. “They are not our friend, believe me “They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.” [vii]
In March 9, 2016 on CNN, the President said, “I think Islam hates us. There’s something there that — there’s a tremendous hatred there. There’s a tremendous hatred. We have to get to the bottom of it. There’s an unbelievable hatred of us.”[viii] Sound familiar?
On March 6, 2017, Trump issued a travel ban (Proclamation No. 9645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats) for citizens from six majority-Muslim countries. The Proclamation was challenged by several groups, and eventually upheld by the Supreme Court in Trump v. Hawaii, 138 S.Ct. 2392 (2018). In rejecting challengers’ argument that the primary purpose of the Proclamation was religious animus and that the President’s stated concerns about vetting protocols and national security were but pretexts for discriminating against Muslims, Chief Justice Roberts responded “The Proclamation does not fit this pattern. It cannot be said that it is impossible to “discern a relationship to legitimate state interests” or that the policy is “inexplicable by anything but animus.” [ix]
In these cases, the Chief Justice often avoids commenting on the meat of the issues by declaring that is not what the court is deciding. In Trump v. Hawaii, he wrote that whether the proclamation was fair or not, is not for the Court. In Department of Homeland Security v. Regents of University of California, he wrote that in holding the administration rationale for ending the program unreasonable, the court was not endorsing it.
Because the Supreme Court was deferential to the Executive in both Trump v. Hawaii and Department of Homeland Security v. Regents of University of California, it is likely that animus towards certain nationalities in immigration policy will continue, unabated by the courts. The more things change, the more they stay the same.
[i] 85 Fed. Reg. 60526 (September 25, 2020).
[ii] Aleinikoff et al., Immigration and Citizenship: Process and Policy, 9 (8th ed. 2016).
[iii] Id., at 582.
[iv] Id., at 9.
[v] Donald J. Trump, Op-Ed, Buchanan is To Wrong To Correct, LA Times Oct 31, 1999. https://www.latimes.com/archives/la-xpm-1999-oct-31-op-28208-story.html
[vi] Tim Alberta, The Ideas Made It, But I didn’t, Politico, May/ June 2017 https://www.politico.com/magazine/story/2017/04/22/pat-buchanan-trump-president-history-profile-215042
[vii] Katie Riley, Here Are All the Times Donald Trump Insulted Mexico, Time.com, Aug. 31, 2016 https://time.com/4473972/donald-trump-mexico-meeting-insult/
[viii] Jenna Johnson and Abigail Hauslohner, I think Islam hates us’: A timeline of Trump’s comments about Islam and Muslims, Wash. Post. May 20, 2017 https://www.washingtonpost.com/news/post-politics/wp/2017/05/20/i-think-islam-hates-us-a-timeline-of-trumps-comments-about-islam-and-muslims/
[ix] Trump v. Hawaii, 138 S.Ct. 2392, 2420 (2018).