The Forced Movement of Indigenous People - Essay Example

Immigration of the of the Immigration Question One-Kanstroom and the Forced Movement of Indigenous People Inthe 18th century, the Fugitive US State Law resulted in the forced transportation of African Americans across international borders, and this was totally anticipated. As such, several whites had actively planned and brought about this forced movement. With regard to abolition of slavery, many whites were strongly opposed to it. This was due to their great fear that a large number of people, who were deemed to be aliens, would enter and participate in mainstream society. Plans aimed at freeing the slaves had been the outcome of coercion and false voluntarism. Thus, a 1714 emancipation plan had recommended that the slaves who desired freedom were to be deported. In this context, Noah Webster, suggested in 1793 that freed slaves could be provided with the status of free tenants and shifted to available land, within the US. In contrast to this, St. George Tucker had recommended the enactment of severe laws that would compel freed Negroes to leave the US rather than be subject to these laws (Kanstroom, 2007, p. 84). During the 19th century there were a number of deportation schemes. In fact, it was believed that deportation would induce whites to free the slaves. The elimination of slavery would result in white immigrants who would prove to be much better workers. Several people held the optimistic opinion that slaves after being freed and deported would become happy, free, and useful (Kanstroom, 2007, p. 85). Additionally, in the mid-19th century, laws were enacted in the US, which excluded coolies. This initiated a process that gradually led to the exclusion of each and every Chinese laborer. Thereafter, this process resulted in the federal deportation system. These laws effectively demonstrated the ubiquitous legacy of slavery and emancipation. They also illustrated the racialized underpinnings of the immigration and deportation structures of the US. Those who subsequently examined the Chinese deportation laws, discerned a clear association between the previous removal regimes and Chinese deportation (Kanstroom, 2007, p. 21). As such there was a similarity between Chinese deportation and indigenous deportations that had taken place in the past. These removal regimes, per se, had formed a theoretical model for the emerging deportation system of the 1890s. In this context, the US Supreme Court stated in Fong Yue Ting v United States that the expulsion of a specific race of people was an act of despotism. In addition, it opined that deportation law made the liberty of one person subject to the total control of another. Question Two-Plenary Power Doctrine The doctrine of plenary power ensures constitutional immunity from judicial scrutiny, with respect to the immigration decisions of the Executive and Congress. As a result, the federal government can utilize immigration laws to intimidate and suppress any group that is branded as undesirable by it. The case law of the US provides the federal government with tremendous flexibility in regulating immigration. As such, the US Supreme Court has upheld a number of immigration laws that blatantly discriminate against noncitizens, on the basis of their political affiliation, race, and national origin. These immigration laws would have been in serious violation of the US Constitution, if a citizen of the US had been involved. (Akram & Johnson, 2002, p. 329). The plenary power doctrine was formed on the basis of the following factors. A crucial element of the deportation system was race, and race thinking assumed two general forms. The first did not have a biological or physiological basis and was fundamentally a cultural notion. The second form was based on biological features, and it associated cultural features with skin color, height, and head shape (Kanstroom, 2007, p. 98). The Chinese were considered fit for deportation, for the following reasons. Chinese immigration to the US was allowed under the Immigration Act of 1864. This was under the credit ticket system, which permitted certain categories of immigrant labor contracts. A commissioner of immigration, reporting to the secretary of state, was created by the Immigration Act. The chief duty of the commissioner of immigration was to collect information regarding the resources and climate of the US and communicate it to the European nations (Kanstroom, 2007, p. 93). However, the people of the US underwent a change in their attitude to immigration, by the 1870s. Thereafter, federal exclusion power was provided by the Page Act of 1875. This prohibited Asian laborers from being forcibly brought to the US. Furthermore, it prevented the entry of certain convicts and prostitutes. At that juncture, the constitutional authority of the federal government and the states to control immigration had not been settled (Kanstroom, 2007, p. 93). Subsequently, the newly independent US developed a stringent doctrine of deportation. To ensure a proper balance, the judiciary attempted to rationalize the harsh deportation trend being strongly undertaken by the government. The courts considered the new economy and continental scale and supported increased governmental regulation. In the Chinese Exclusion Case, the clear application of federal sovereign power was witnessed (Kanstroom, 2007, p. 97). In Chy Lung v Freeman, the US Supreme Court held that the laws enacted by a state to safeguard itself form foreign criminals, were constitutional, if such laws were indispensable. In addition, with regard to Chinese laborers in the US, a new law was proposed by Representative Geary. This was in the year 1892, and it required every Chinese person in the US to prove their legality. This law was racist on two counts. Chinese without a certificate of residence had to establish that they had reasonable grounds for their failure to obtain the certificate of residence. Second, such Chinese had to prove that they were residing legally in the US, which required the corroboration of at least one white witness. Subsequently, Senator Felton of California recommended that all Chinese in the US, with the exception of diplomatic personnel and their servants, should be required to obtain a certificate of residence (Kanstroom, 2007, p. 116). A Chinese individual who failed to procure a certificate of residence, within a year of stay in the US, was to be punished as an illegal immigrant. Question Three-Legomsky, Criminal Justice Model and Immigration Criminal justice and immigration control have shown a tendency to come together. Some of the areas of intersection of these regulatory regimes are; infringement of immigration laws produce wider, stricter, and more frequent consequences. Thus, refugees seeking asylum can be criminally prosecuted for illegal entry into the nation. At the same time, the US Congress has gradually increased the non-immigration related crimes that attract deportation (Legomsky, 2007, p. 471). As such, the number of individuals being deported from the US has increased exponentially. The theories behind deportation tend to resemble the theories underlying criminal punishment. Thus, the deportation mechanism depicts plea bargaining and preventive detention, which have been integral to the criminal justice system. Furthermore, federal sentencing judges, and state and local police have been frequently required to discharge the functions associated with immigration and criminal justice (Legomsky, 2007, p. 471). Moreover, in the US, the public has developed an interrelated view regarding criminals and foreigners. Society demands that the violators of immigration law have to be identified, detained and extradited. This has assumed greater importance than the programs seized with the legal admission of immigrants to the US. The seriousness with which this issue is viewed is demonstrated by the transfer of immigration functions to the Department of Homeland Security from the Department of Justice (Legomsky, 2007, p. 472). There are serious measures being adopted to apply the criminal justice model to immigration. Furthermore, the import of the criminal enforcement framework into immigration law has been accompanied by the firm exclusion of the procedural protections of the criminal adjudication model. It has been stated by several entities that the procedural safeguards essential for criminal cases, are not necessary, in their entirety, with regard to cases involving deportation (Legomsky, 2007, p. 518). It could be contended that deportation constitutes an excessive intervention, after an individual has undergone a criminal sentence. While prescribing the duration of a sentence for a crime, the legislation has to ensure certain elements. Thus, it has to arrive at a judgment regarding the extent of the retribution that the crime in question deserves, and the degree of the deterrent required. In addition, such legislation has to assess the duration for which the offender has to be incapacitated, for presuming that the danger posed by him has reduced to an acceptable level. This makes it excessive to deport a person who has served a sentence (Legomsky, 2007, p. 519). This can be refuted by contending that deportation aims to rid the nation of undesirable noncitizens. Question Four-Discretion in Deportation Law The following discussion discloses the role of discretion in the deportation law. The federal government is primarily responsible for enforcing immigration law. A number of scholars have persisted in their criticism of the dilution of immigration and civil rights, due to the war on terrorism. An important aspect of this development is the doctrine of plenary power. Several of the important constitutional changes made to civil rights have been ignored by the present immigration law (Akram & Johnson, 2002, p. 330). Moreover, the Bush administration had acted with scant regard towards legal constraints, while undertaking domestic responses to terrorism. With respect to immigration issues, the federal government had been provided with considerable freedom. This liberty allowed it to take swift action and to respond almost instantaneously to intricate economic, political, and social problems (Akram & Johnson, 2002, p. 346). Furthermore, the Oklahoma City terrorist bombings led to the enactment of stringent immigration laws. At the same time, special extradition proceedings were created for deporting alleged terrorists from the US. Noncitizens, such as Arabs and Muslims, had been adversely affected by the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Akram & Johnson, 2002, p. 346). The failure experienced with deportation, in the year 1798, ensured a minimum of formal deportation systems, in the US. Jefferson had termed deportation of friendly aliens as a radical experiment, and this view had been generally accepted, even in the 20th century. The deportation system was based upon federalization of immigration control, legitimization of federal deportation laws, and the introduction of post-entry social control deportation laws to expand the border control laws. These developments took place from 1862 to 1903 (Kanstroom, 2007, p. 92). As such, from the middle of the 19th century, immigration control became an intricate federal-state joint intervention. Initially, the federal government enacted laws that addressed the worst labor practices. Subsequently, these laws concentrated upon the extradition of certain undesirable immigrants. Americans were prohibited by law to take part in the slave trade between China and Cuba (Kanstroom, 2007, p. 92). This law was aimed at getting rid of coolie labor. The 1860s and 1870s witnessed a massive encouragement of immigration. A major demand for labor arose from the Civil War and emancipation of slaves. At that juncture, around 25 states formally and independently adopted measures to promote immigration. In fact, the then President Lincoln had informed Congress that it would be to the benefit of the nation to encourage immigration (Kanstroom, 2007, p. 92). He clearly perceived a vast deficiency of laborers in every field. . Question Five - US Response to 9/11 and the Centralization of Immigration Power In the aftermath of the 9/11 terrorist attacks, the US federal government adopted several measures that could possibly have civil rights consequences in the future. The Department of Justice took the help of state and local law enforcement agencies for interrogating Arabs and Muslims. Increasingly, the local police was utilized for immigration enforcement. This resulted in several violations of civil rights, due to the unfamiliarity of these officers with immigration laws. Such intervention by the local and state level authorities could permanently affect the civil rights of US immigrants (Akram & Johnson, 2002, p. 298). It has been noticed that the law does not discourage the government from adopting extreme measures against noncitizens. The immigration measures aimed at Arabs and Muslims have been significantly influenced by foreign policy. For instance, the Immigration and Naturalization Service (INS) wanted to deport noncitizens of Palestinian origin. This was at the time when the federal government attempted to close down the offices of the Palestine Liberation Organization (PLO) in the US. Furthermore, during the 1980s, the then US President Reagan came out with a secret National Security Decision Directive. This authorized a network of agencies that were to prevent terrorists from entering or staying in the US. Moreover, the INS formulated the Alien Terrorists and Undesirables: A Contingency Plan strategy that recommended large scale detention and arrest of noncitizens from Iran and Arab countries (Akram & Johnson, 2002, p. 316). This strategy proposed the use of ideological reasons in immigration laws to deport such persons from the US. While applying the Immigration and Nationality Act (INA), the authorities have clearly discriminated against Muslims and Arabs. The chief targets are Palestinians and other Arabs. At the time of the Gulf War, government officials obtained the fingerprints and photographs of every immigrant with an Iraqi or Kuwaiti passport. (Akram & Johnson, 2002, p. 317). Such discrimination has been employed against noncitizens with political associations and beliefs that are unacceptable to the US. This was evident during the McCarthy era, when noncitizens who believed in communism were relentlessly persecuted and extradited. During removal proceedings, the INS has targeted Arabs and Muslims, by using evidence that it does not disclose to the noncitizens or their counsel. On the basis of such secret evidence, these noncitizens are charged, detained, and denied bond or release in extradition proceedings (Akram & Johnson, 2002, p. 321). After the terrorist attacks of 9/11, the limited membership rights recognized with regard to Arabs and Muslims became obvious. Such discriminatory treatment has been present in the US from quite some time. In fact, several African American, Asian American, and South American groups have not been provided with full membership in US society. List of References Akram, S. M., & Johnson, K. R. (2002). Race, Civil Rights, and Immigration Law after September 11, 2001: The Targeting of Arabs and Muslims. NYU Annual Survey of American Law, 58, 295-355. Chy Lung v Freeman et al, 92 US 275 (Supreme Court of the United States of America 1875). Fong Yue Ting v United States, 149 US 698 (Supreme Court of the United States of America 1893). Kanstroom, D. (2007). Deportation Nation: Outsiders in American History. Cambridge, MA, USA: Harvard University Press. Legomsky, S. H. (2007). The New Path of Immigration Law: Asymmetric Incorporation of Criminal Justice Norms. Washington and Lee Law Review, 64(2), 469-528. Read More