Immigrants and the Right to Petition - NYU Law Review

Imaged with the Permission of N.Y.U. School of Law
NEW YORK UNIVERSITY LAW REVIEW
[Vol. 78:667
[Her employers] deceived Ms. Okezie into coming to the United
States from Nigeria when she was 13 years old .... Ms. Okezie was
required to work in [their] home without pay ....[Her employers]
repeatedly hit or beat Ms. Okezie ...with belts and with their
hands and fists . . .. [They] repeatedly threatened to have Ms.
Okezie deported if she complained or failed to complete her assigned
tasks to [their] satisfaction .... 2
INTRODUCTION
At the close of the 2001 term, the Supreme Court declared that
the First Amendment right to petition is "one of the most precious of
the liberties safeguarded by the Bill of Rights... and .. is implied by
the very idea of a government, republican in form." ' 3 Petitioning is the
act of presenting a communication to the legislative, executive, or judicial
branch of government, orally or in writing, to seek redress of a
grievance. 4 In this Article, I examine whether noncitizens, including
undocumented immigrants, are among "the people" whose right to
petition is constitutionally guaranteed, 5 and, more broadly, by what
2 Verified Complaint [ 1, 27, 24, Okezie v. Udogwu, No. 99 Civ. 3345 (S.D.N.Y. filed
May 7,1999) (on file with the New York University Law Review). I served as co-counsel to
Mr. Goyo, supra note 1, and Ms. Okezie and worked on the Petition cited infra note 55.
3 BE & K Constr. Co. v. NLRB, 536 U.S. 516, 524 (2002) (internal citations and quotations
omitted) (holding that federal labor law may not impose liability on employer for
losing retaliatory lawsuit absent evidence that suit was objectively baseless). The Petition
Clause, though obscure, was featured in two other decisions of the Court in the 2001 term.
See Christopher v. Harbury, 536 U.S. 403, 415 n.12 (2002) (explicating scope of right to
court access, characterized as arising from, inter alia, right to petition); Fed. Mar. Comm'n
v. S.C. State Ports Auth., 535 U.S. 743, 761 n.13 (2002) (rejecting Justice Breyer's argument
that Petition Clause establishes right to sue otherwise immune state before federal administrative
tribunal).
4 At English common law, a petition was a written communication to Parliament or
the Crown expressing a grievance and requesting relief. See infra notes 91-93 and accompanying
text. Contemporary American law recognizes the First Amendment right to petition
as protecting communications to all three branches of government. See, e.g., BE & K
Constr. Co., 536 U.S. at 525 (noting that Clause protects right to petition judicial branch);
McDonald v. Smith, 472 U.S. 479 (1985) (analyzing communications to executive branch
under Petition Clause); E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365
U.S. 127, 138 (1961) (interpreting Sherman Act to allow communications to legislative
branch, as prohibiting such communications would raise serious constitutional issues under
Petition Clause). Oral as well as written communications are protected as petitioning activity.
See, e.g., Comm. on Prof. Ethics, Ass'n of the Bar of the City of N.Y., Formal Op.
No. 1991-4 (Eugene M. Wypyski ed., 1992) (asserting that right to petition protects communications
to government officials, even where government is represented opposing
party, notwithstanding noncontact rule of ethics), available at 1991 WL 639878. Petitioning
thus includes communications with law enforcement officials to report crimes or other unlawful
activity and to request relief.
5 U.S. Const. amend. I ("Congress shall make no law.., abridging.., the right of the
people ... to petition the Government for a redress of grievances.").