Alito Record Shows Hard Line on Immigrant Rights

Commentary

By Mark Lloyd, New America Media

Little attention has been paid to Supreme Court nominee Samuel A. Alito's views on immigration. As a lawyer for Reagan administration, Alito argued that immigrants who enter the United States illegally are not entitled to the rights afforded to American citizens.

WASHINGTON, D.C. - Jan 3, 2006 - Much has been made of Supreme Court nominee Judge Samuel A. Alito's record on subjects such as abortion (he is "personally opposed" to it) and his general support for greater presidential power. Alito's view on immigration -- an increasingly polarizing issue in America -- have barely drawn notice.

The case of Fenghu Chang is instructive. In the summer of 1992, Chang, a chief engineer for a large engineering firm owned by the People's Republic of China, led a delegation to the United States. A Chinese security agent instructed Chang to watch the other members of his group and to report any suspicious activity to the Chinese Embassy. Chang began to suspect that several of his colleagues were planning to stay in the United States but, fearing for their safety, did not report his suspicions. Another member of the delegation told Chang he would report on the suspicious activity, and on Chang as well. Noticing Chang's distress, an American engineer advised him to meet with someone Chang later learned was an FBI official.

The FBI official advised Chang that he was in danger and that he should seek political asylum, and that the United States would assist Chang's family. Chang applied for asylum.

In court, Chang testified that he feared prosecution in China because of his prominent position there and his failure to report on other delegates. Since Chang left China, his wife was forced to retire, his passport was revoked and his photo was placed on record at the Ministry of State Security. His sister, a high ranking official in his hometown, warned him not to return because the local security agency was waiting for him. Despite all of this, Chang's request for political asylum was denied by the Immigration and Naturalization Service. The immigration judge ruled that Chang did not face persecution "for any political opinion" and that Chang had only shown a "subjective fear...of either losing his job or being prosecuted for a failure in his responsibility."

Fortunately for Chang, the Third Circuit Court of Appeals reversed the INS ruling in 1997, calling it a "somewhat Delphic oral opinion." There was one dissenting opinion that would have sent Chang back to China and most certainly to prison. It was issued by Alito.

In the previous decade, as a lawyer for the Reagan administration, Alito argued that immigrants who enter the United States illegally are not entitled to the rights afforded to Americans.

In a 1986 memo to William Webster, then director of the FBI, Alito argued that it was constitutional for the agency to document and share with other U.S. law enforcement agencies fingerprint and criminal information of Iranian and Afghan citizens living in Canada. The FBI is prohibited from sharing such information regarding U.S. citizens, but Alito suggested that nonresident, non-citizens were not protected. In a footnote in this same memo, Alito went beyond the question the FBI presented and argued that the Constitution "grants only fundamental rights to illegal aliens within the United States." Alito's position ignored a landmark Supreme Court ruling that undocumented immigrant children are guaranteed certain constitutional protections such as an education, even if those rights are not deemed "fundamental."

Judge Alito has sought to distance himself from the memos he wrote while working with the Reagan Justice Department. But as the case of Mr. Chang demonstrates, his judicial record provides little comfort to those concerned about immigrant rights. In his nine published opinions on asylum cases, Judge Alito affirmed deportation judgments seven times, according to a Yale Law School study. In eight published immigration opinions not involving asylum applications, Judge Alito sided with the INS seven times. Judge Alito's opinions suggest that immigration law works best when the court bows to the wisdom of the INS.

"Judge Alito has embraced a conservative judicial philosophy on issues critical to the rights and freedoms of our community," says Gen Fujioka, Acting Executive Director of the Asian Law Caucus. "His decisions defer to those with political and economic power and reveal hostility to laws that support minorities, immigrants, women and workers."

Ann Marie Tallman, President and General Counsel of the Mexican American Legal Defense and Education Fund (MALDEF), says that a MALDEF review of Alito's legal record reveals a "disturbing pattern of insensitivity toward Latino's lives." She adds that "Alito's misstatement of the law regarding the constitutional rights of non-citizens may...reflect a tendency on his part to disfavor constitutional protections for undocumented workers, many of whom are Latino."

A December Washington Post poll indicates that 54 percent of Americans think the Senate should confirm Alito, while 28 percent say he should not be approved. Twenty percent of Americans said they did not know enough about the nominee to have an opinion. But according to the Leadership Conference on Civil Rights the opposition to Alito is growing.

Too many Americans are under the false impression that presidents should get to pick whoever they want to be on the Supreme Court. The far-right wing of the president's party does not share that impression, and made its disappointment clear when President Bush first nominated Harriet Miers to the court. The far-right is very happy with the Bush's second choice.

Those of us concerned about the rights of immigrants must push our senators to take seriously their constitutional responsibility to confirm a Supreme Court justice committed to the rights and freedoms of everyone in the United States -- including immigrants.

Attorney Mark Lloyd, a senior fellow at the Center for American Progress, teaches public policy at Georgetown University. An award-winning broadcast journalist, Lloyd writes a monthly column for New America Media called "Washington Pulse."