Immigration Laws: Unlawful And Unconstitutional?

Immigration laws are a complex web of policies that govern the movement of people across borders. While the primary function of these laws is to regulate immigration, they often come at the cost of violating the rights of immigrants and refugees. In the United States, for instance, immigration laws have been criticized for their harsh treatment of those seeking a better life, including refugees and asylum seekers. The Trump administration's crackdown on immigration has resulted in the suspension of legal immigration programs and the restriction of pathways for hundreds of thousands of people fleeing war-torn countries. This has led to concerns about the violation of human rights and the fueling of mass incarceration, family separation, and racial discrimination. The Laken Riley Act, signed into law by President Trump, mandates the federal detention of illegal immigrants accused of certain crimes, raising concerns about due process and indefinite detention. Furthermore, immigration laws enacted in 1996 have created double punishment for immigrants with criminal records, leading to severe consequences for communities. These laws have been used to advance racist and white supremacist ideologies, causing harm to families and communities, especially those of color. The unjust application of immigration laws demands scrutiny and reform to ensure the protection of human rights and the fair treatment of immigrants.

Racist and white supremacist ideologies

Immigration laws in the United States have long been criticised for perpetuating racist and white supremacist ideologies. The Trump administration's policies have been accused of targeting or disproportionately affecting non-citizens of colour, reflecting a white nationalist rhetoric. This includes the Muslim Travel Ban, which barred certain non-citizens from Muslim-majority countries from entering the US, and the termination of Temporary Protected Status (TPS) for non-citizens from countries such as El Salvador, Haiti, Nicaragua, and Sudan. The administration has also been criticised for its inflammatory rhetoric, portraying immigrants as criminals, invaders, and even subhuman.

The history of US citizenship and immigration law is closely correlated with the denial of whiteness to certain groups. "Whiteness" in this context is a social construct that changes over time and place, influenced by factors such as race, ethnicity, and nationality. By emphasising or de-emphasising these strands, the concept of whiteness can be granted or rescinded from different social groups. This understanding of whiteness is important for comprehending how nationality and xenophobia contribute to its construction and how terms like "illegal" help to reify the status of certain persons as perpetual foreigners or non-whites.

The Chinese Exclusion laws of the late 1800s and the Immigration Act of 1917, which prohibited the entry of people from the Asiatic Barred Zone, are examples of how white supremacy has been enshrined in US immigration law. The Supreme Court's decision in Trump v. Hawaii, upholding the Muslim Travel Ban, is a more recent example of how immigration policies can be influenced by discriminatory animus.

The Laken Riley Act, signed into law by President Trump, has also been criticised for its impact on immigrants of colour. The law mandates the federal detention of illegal immigrants accused of certain crimes, including theft and burglary. This has been interpreted as contributing to the mass incarceration of communities of colour and causing severe harm to families through detention and deportation.

In conclusion, US immigration laws have been criticised for perpetuating racist and white supremacist ideologies by targeting non-citizens of colour, employing inflammatory rhetoric, and enacting policies that reflect a desire to preserve a predominantly white national identity. These issues have been exacerbated by the Trump administration's restrictive immigration policies and continue to have devastating consequences for immigrants and communities of colour.

Unjust double-punishment for immigrants with criminal records

The United States' federal immigration law criminalizes immigrants in numerous ways, including the creation of unjust double-punishment for immigrants with criminal records. Sections 1325 and 1326 of the U.S. Code make it a federal crime to enter or re-enter the U.S. without authorization, leading to the mass incarceration and separation of families, especially those of color. This double punishment is often combined with discriminatory and racist policing practices, putting immigrant communities of color at a constant risk of detention, deportation, and family separation.

For example, an NIJC client, Fernando, was convicted of drug possession charges and served three months in jail. Instead of being allowed to reunite with his family, ICE officials immediately put him into deportation proceedings, causing another year of separation from his family, four times longer than his initial sentence.

The Laken Riley Act, signed into law by President Trump, mandates the federal detention of illegal immigrants accused of theft, burglary, assaulting a law enforcement officer, or any crime causing death or serious bodily injury. This law has been criticized for contributing to mass family separation and deportation, with limited regard for due process.

The criminalization of immigrants with criminal records has been deemed harmful, costly, and discriminatory, stemming from a xenophobic period in the 1920s when lawmakers influenced by eugenicists sought to criminalize migration. The Trump administration's utilization of these laws has led to further demonization of immigrants and the tearing apart of families and communities.

The prosecution of immigrants for entry-related offenses has also been deemed ineffective as a deterrent, with migration being driven primarily by factors such as security, economic conditions, and family connections in the U.S. The focus on prosecuting immigrants diverts resources from addressing more serious crimes and has resulted in significant costs for the government, with incarceration costs for improper entry and re-entry prosecutions totaling over $7 billion in the last decade.

The elimination of due process

In recent years, there have been efforts to reform immigration policies and restore due process rights for immigrants. Advocates argue that the current system lacks the necessary protections afforded by the Constitution and the US legal system. For example, in deportation cases, the government must demonstrate the need for detention through a constitutionally adequate bond hearing. However, in practice, many immigrants are detained without such hearings, and mandatory deportation laws needlessly separate families.

The issue of due process is particularly pertinent in the context of the Trump administration's "zero-tolerance" immigration policy, which resulted in a surge of family separations at the border. While the administration ended the practice through an executive order, it highlighted the importance of due process rights for immigrants. The Fifth Amendment of the US Constitution guarantees due process to "people" or "persons," regardless of citizenship. This right to due process in deportation proceedings has been affirmed by the Supreme Court, yet in practice, immigrants often face challenges in accessing a fair hearing.

Furthermore, the passing of the Laken Riley Act in 2025 raised concerns about the elimination of due process for immigrants. The legislation allows for the indefinite detention of immigrants, including those legally living and working in the US, based on accusations of low-level crimes. This raises concerns about the denial of basic due process rights and the potential for misuse of power by state attorneys. The Act has been criticised for hindering the ability of federal agencies to effectively enforce immigration laws and for contributing to the chaos within the immigration system.

Discriminatory treatment of immigrants

Immigration laws have been criticised for their discriminatory treatment of immigrants, which has been linked to racial profiling and the separation of families. In the United States, immigration laws enacted in 1996 have created a system of double punishment for immigrants with criminal records, leading to mass incarceration and family separation. This has particularly impacted communities of colour, with racist policing practices targeting immigrants of colour for detention, deportation, and family separation.

The Laken Riley Act, signed into law by President Trump in 2025, mandates the federal detention of illegal immigrants accused of certain crimes, including theft and assault. This law has been criticised for its potential to discriminate against immigrants, with the American Immigration Council stating that it "forces immigration officers to indefinitely detain and deport non-citizens who pose no public safety risk, without access to basic due process."

Discrimination against immigrants is also prevalent in employment, housing, and public accommodations. Laws such as the Immigration and Nationality Act in the United States prohibit employers from discriminating based on citizenship or immigration status during hiring, firing, recruiting, or verifying employment eligibility. Similar protections exist in New York City through the New York City Human Rights Law (NYCHRL), which prohibits discrimination based on "immigration and citizenship status" and "national origin" by employers, housing providers, and public accommodations providers.

Despite these protections, immigrants continue to face discrimination in various forms, including disparate treatment, biased profiling by law enforcement, and retaliation for opposing discriminatory practices. For example, immigrants may face adverse treatment in employment, such as differential pay or denial of promotions, or be subjected to harassment and offensive language based on their immigration status.

To address these issues, organisations like the National Immigrant Justice Center (NIJC) advocate for the decriminalisation of immigration, aiming to end prosecutions for entry and re-entry and ensure equal justice for all community members.

Unlawful discrimination in hiring

Immigration laws in the United States have been criticised for their discriminatory nature, particularly in the way they are enforced and the subsequent impact on communities of colour.

The Equal Employment Opportunity Commission (EEOC) enforces laws prohibiting employment discrimination and harassment because of race, colour, sex, religion, national origin, age (40 and over), and physical or mental disability. Employers with 15 or more employees (20 or more for age discrimination) must obey these laws.

The EEOC also investigates employment discrimination based on national origin, in addition to other protected bases under Title VII of the Civil Rights Act of 1964. The EEOC laws apply regardless of an individual's citizenship or immigration status.

The anti-discrimination provision of the INA is enforced by the Immigrant and Employee Rights Section (IER) in the Department of Justice's Civil Rights Division. IER generally investigates national origin claims against employers with four to 14 employees.

Examples of unlawful discrimination in hiring based on national origin include:

• Discrimination because of a person's or their ancestor's place of birth.
• Discrimination based on a person's association with people of a different national origin group, such as attendance at schools or places of worship used by people of a particular nationality.
• Practices that disproportionately screen out people of a particular national origin, such as citizenship requirements, minimum height requirements, or policies against hiring individuals with arrest and conviction records.
• Harassment based on national origin, including ethnic slurs and other verbal or physical conduct that creates an intimidating or offensive working environment.
• Discrimination based on accent, unless the accent materially interferes with the ability to do the job.
• Discrimination based on appearance, such as when an employer seeks someone with an "all-American front office appearance".

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