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A generous and ascending scale of constitutional rights

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A generous and ascending scale of constitutional rights

  1. 1. A Generous and Ascending Scale of Constitutional Rights By Joseph P. Whalen (May 8, 2012)USA v. Huitron-Guizar, No. 11-8051 (10th Cir May 7, 2012) 1 notes that theConstitution empowers Congress to pass laws that differentiate between classes ofindividuals and that anyone may be restricted to varying degrees and anyone whois not a U.S. Citizen should not be surprised by this simple fact of life. The courtrefers back to an explanation given by the U.S. Supreme Court in 1950, and thenelaborates upon it. “Mr. Huitron-Guizar agrees that those guilty of serious crimes and the mentally ill are sensibly stripped of firearms they might otherwise lawfully keep. Yet he wonders what it is about aliens that permits Congress to impose what he considers a similar disability? The starting point to any answer was given by Justice Jackson in Johnson v. Eisentrager, 339 U.S. 763, 770 (1950): The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society. Mere lawful presence in the country creates an implied assurance of safe conduct and gives him certain rights; they become more extensive and secure when he makes preliminary declaration of intention to become a citizen, and they expand to those of full citizenship upon naturalization. This ascending scale of constitutional rights is elaborate. An alien outside the country has fewer rights than one within, e.g., an alien held at the border has no right to a deportation hearing. Shaughnessy v. Mezei, 345 U.S. 206, 212 (1953). An unlawfully present alien has fewer rights than one lawfully here; an illegal alien generally has no right to assert a selective- enforcement claim to thwart deportation. Reno v. American-Arab Anti- Discrimination Comm., 525 U.S. 471, 488 (1999). A lawful alien here fewer than five years can be denied enrollment in Medicare, unlike one here for, say, a decade. Mathews v. Diaz, 426 U.S. 67, 87 (1976). A temporary resident alien has fewer rights than a permanent resident alien; the former, for example, may be barred from making campaign contributions. Bluman v. Fed. Election Comm’n, 800 F. Supp. 2d 281, 288 (D.D.C. 2011, aff’d 1321 See http://www.ca10.uscourts.gov/opinions/this_week/pdf/11-8051.pdf Page 1 of 3
  2. 2. S.Ct. 1087 (2012). Likewise, a lawful permanent resident has fewer rights than a citizen, since a state can form a citizens-only police force. Foley v. Connelie, 435 U.S. 291, 300 (1978). Finally, one right is limited to natural born citizens: eligibility to run for president 2. U.S. Const., Art. II, § 1, cl. 5. The line separating lawful and unlawful aliens is often as bright as that between aliens and citizens. Mr. Huitron-Guizar’s implicit Equal Protection argument is that Congress does not have power to “discriminate against non-citizens by not allowing them to have all the constitutional rights that United States citizens have.” Aplt. Br. 16. This is not correct. Federal statutes that classify based on alienage need only a rational basis; they flow from plenary powers over admission, exclusion, naturalization, national security, and foreign relations. Mathews v. Diaz, 426 U.S. at 81. The Court has “firmly and repeatedly endorsed the proposition that Congress may make rules as to aliens that would be unacceptable if applied to citizens.” Demore v. Kim, 538 U.S. 510, 522 (2003). Mr. Huitron-Guizar cannot meet his burden of showing that there is no rational relationship (more below) between the classification and a legitimate government end. Equal protection requires that similarly situated individuals be treated similarly; aliens, let alone those unlawfully here, are simply not situated like citizens.” At pp. 4-6Once gaining an understanding of the basics of this “ascending scale of rights as[one] increases [their] identity with [American] society” and the significance ofattainment or recognition of U.S. citizenship either through naturalization,acquisition at birth abroad to at least one citizen parent, or derivation through anaction of law at some point after one’s birth becomes clearer. Specifically, a citizenmay not be ordered removed (deported).A naturalized citizen would have to be stripped of citizenship first in order to thenbe subject to removal proceedings. In order to revoke naturalization ordenaturalize someone, a judicial proceeding is required. In that judicialproceeding, it must usually be proven that that particular naturalization wasillegally procured or was procured by concealment of a material fact or by willfulmisrepresentation. See INA § 340 [8 USC § 1451]. Certain other very specificgrounds exist but are too obscure to mention here.2 A special note for the crackpot “birthers” out there: INA § 305 [8 USC § 1405], makes one bornthere on or after April 30, 1900, a U.S. citizen at birth and collectively naturalized everyone else whowas born there or was present there on that date who was as a citizen of the Republic of Hawaii on August12, 1898. Page 2 of 3
  3. 3. Revocation proceedings may brought as either civil proceedings or may becriminal proceedings. Title18 USC, Part I, Chapter 47 (Fraud and FalseStatements) may apply to a particular case, esp. § 1015 which could result in a fineand up to five (5) years imprisonment; or perhaps under Chapter 69 (Nationalityand Citizenship) § 1425 which criminalizes unlawful procurement and carriesstiffer prison sentences of 10, 15, or 25 years. It should be noted that convictionunder 18 USC § 1425 involves automatic revocation and is specifically cross-referenced in INA § 340 thereby dispensing with any need for a follow-uprevocation proceeding. The charges under § 340 can be tacked on to and combinedwith just about any criminal proceeding. These provisions are not all of thepossibilities under the law.It seems obvious that people across the globe like the rights that come with U.S.citizenship enough to try to get it. The vast majority3 earn it through patience,study, perseverance, and generally good hard work. The very few who employnefarious and/or unsavory methods beware the wrath of a world-power scorned.3 While the U.S. consistently accepts over one million new legal immigrants per year, not everyone seeksnaturalization when first eligible to do so (some not at all). There are a growing number of“undocumented citizens” in the U.S. who are children that derived citizenship through an action of lawwhen a parent naturalized but whose parent(s) have neglected to properly seek recognition of that derivedcitizenship. Page 3 of 3

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