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Battling over rights of non-citizens

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Since the Sept. 11 attacks on the United States, the federal government has jailed more than 700 non-citizens on material witness and immigration charges. But at the same time, the Bush administration is pushing Congress to selectively allow some illegal immigrants to become legal residents — a reflection of President Bush’s longtime goal of winning support from Latino voters.

At a time of intense concern in Congress about non-citizens getting into the United States, an estimated 9 million illegal aliens continue to live and work here.

These non-citizens — especially those from Mexico — have some political clout because many of their relatives are citizens who vote and because both parties are wooing Latino voters.

Affinity with Latinos?
In 1999, when then-Gov. George Bush launched his bid for the presidency, he said that his affinity with Latino voters was one of his strengths as a candidate.

Peeling Latino voters away from the Democratic Party is a priority for Bush political strategist Karl Rove.

In recent weeks, the president has urged Congress to enact a extension of a provision of immigration law called “245(i),” which would allow illegal immigrants who have a job or family ties in the United States to apply for legal residency.

But Bush has misstated the case by referring to those who’d be eligible for the program as legal immigrants when, in fact, they are non-citizens who have broken the law by overstaying their visas or entering the United States illegally.

“I want to show our friends, the Mexicans, that we are compassionate about people who live here on a legal basis, that we don’t disrupt the families for people who are here legally,” Bush said last month.

Bush has also signed into law a bill restoring food stamps to about 360,000 non-citizens who have lived in the United States legally for at least five years, reversing a provision in the 1996 welfare reform bill that had stripped food stamp eligibility from such people.

Tensions among Republicans
Bush’s moves have created tensions in Republican ranks: Pro-business Republicans see a need for low-cost labor — even illegal immigrant labor — to help the economy function, but others say that Sept. 11 has made any laxness in enforcing immigration laws intolerable.

Leading the fight against Bush is Rep. Tom Tancredo, R-Colo., who says extending the 245(i) provision could allow criminals “ranging from petty thieves to suicide bombers” to stay in the United States.

Rep. Jose Serrano, D-N.Y., counters this argument by saying, “The best way to assure our national security is to bring immigrants more formally into our society.” Instead of “persecuting undocumented residents ... which will only push the majority of these hardworking individuals back into the shadows, we should pursue legalization,” Serrano says.

Bush is siding with Serrano, not Tancredo.

Selective enforcement
Selective enforcement conforms to Bush’s political agenda: Crack down on potential suicide bombers who try to enter the United States, but be “compassionate” to Mexicans seeking to work in the United States.

But Mark Krikorian, director of the Center for Immigration Studies, an advocacy group that favors reducing immigration to the United States, said, “245(i) is not just a ‘Mexican’ program — it’s for all illegal aliens.”

And, he contended, “it is almost certain that people from Middle Eastern countries will get green cards under 245(i), and it’s not implausible that one of those people could be a terrorist.”

He also said that “by overwhelming the INS (with new paperwork), 245(i) will degrade the quality of its work and result in somebody slipping through.”

The Sept. 11 attacks gave new urgency to the task of sifting potential terrorists out of the millions of foreigners who come to the United States every year.

But defining the rights of non-citizens is a process that has been going on for decades.

In the past 30 years, the Supreme Court has ruled that non-citizens:

Cannot be barred from receiving welfare benefits and public education.

Can be excluded from serving on juries.

Can be barred from serving as police officers and public school teachers.

In March, the Supreme Court further restricted non-citizens’ rights in a decision denying nearly $67,000 in back pay to an illegal immigrant from Mexico who used fraudulent identification to get a job, then was fired for supporting a labor union organizing effort.

Chief Justice William Rehnquist said immigration laws must be enforced even when they conflict with other federal laws, such as ones guaranteeing the right to join a union.

The Supreme Court also ruled last year that non-citizens convicted of ordinary crimes such as robbery can’t be held indefinitely if the U.S. government is unable to persuade their home country to take them back.

But the court went out of its way to say it will consider cases of terrorism and national security in an entirely different light.

Terrorism might justify “preventive detention” of non-citizens and require judges to give “heightened deference to the judgments of the political branches with respect to matters of national security,” Justice Stephen Breyer wrote.

Antagonism toward illegal immigrants reached a climax in 1994, when Californians approved a law called Proposition 187, which barred illegals from receiving education, non-emergency medical care and other government services.

A federal judge blocked enforcement of the law, but the fight over Proposition 187 has never been completely resolved.

In the 1994 election in which Proposition 187 was approved in a landslide vote, only about 8 percent of California voters identified themselves as Latinos, according to Los Angeles Times exit poll interviews.

But by the 2000 election, exit poll interviews suggested that Latinos had grown to 13 percent of the electorate. That percentage is almost certain to continue growing.

There are also increasing numbers of Latino voters in Georgia, New Jersey and other states.

Given the growing number of immigrants who become voters, the Bush administration has been careful that its domestic anti-terrorism campaign not appear xenophobic or targeted at any particular religious or ethnic group.

When the Justice Department sought interviews with 5,000 men from Islamic countries, Attorney General John Ashcroft said the department wanted people “whose passports reflect a variety of settings where there have been strong al-Qaida presences.”

Problem with 'absconders'
Ashcroft has argued that long-term detentions of foreigners who overstay their visas is fully justified under the current circumstances.

“Our experience has not been very good when we have not confined individuals,” Ashcroft told reporters recently, saying his department was trying “to decrease the number of people we call ‘absconders,’” — visa violators who’ve been released pending their deportation hearings and then gone on the lam.

Ashcroft’s detention policy faces legal challenges from non-citizens.

In a suit filed on April 17, two Pakistanis and one Turk said Ashcroft had violated their Fifth Amendment due process rights and Sixth Amendment right to counsel by ordering them held for up to five months without allowing them to consult lawyers. All three were ultimately deported for visa violations.

Nancy Chang, a lawyer who represents the three men, said, “the government doesn’t have the power to hold people based on suspicion without going through the criminal justice process. This case will clarify that immigrants have constitutional rights and that, in pursuing its anti-terrorism investigation, the government must comply with the Constitution.”

It will be up to federal judges to decide how far the Constitution’s protections extend when it comes to non-citizens.