Immigrants and the Right to Petition - NYU Law Review

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Imaged with the Permission of N.Y.U. School of Law NEW YORK UNIVERSITY LAW REVIEW [Vol. 78:667 sell trinkets in the streets, subways, and airports of New York,'I are but extreme examples. It would seem a foolish policy to discourage millions of people from communicating with law enforcement officials about unlawful activity. Yet this is, in effect, what our federal, state, and local governments have done by refusing to guarantee that complainants will not be deported for petitioning law enforcement agencies for redress. The consequence has been to embolden lawbreakers who prey on immigrants, frustrate civil and criminal law enforcement generally, undermine public safety and health, entrench undocumented immigrants in a caste hierarchy, and foster an underground economy that depresses the terms and conditions of employment for all workers. 12 Policymakers have responded with modest steps to address the burdens on petitioning that result in the exclusion of undocumented immigrants from the mainstream of law enforcement. Congress has enacted "whistleblower" protections for certain immigrants, including battered women and children, 13 criminal informants, 14 and victims of international trafficking, 15 as well as certain other crime victims 16 who petition authorities for redress. On the civil side, Congress has established whistleblower protections for H-1B visa holders who report la- 11 See Joseph P. Fried, 2 Sentenced in Mexican Peddling Ring, N.Y. Times, May 8, 1998, at B3 (reporting sentencing of peddling conspirators who victimized Mr. Goyo). 12 See, e.g., Peter Kwong, Forbidden Workers: Illegal Chinese Immigrants and American Labor 63-65, 74-81, 174-203 (1997) (discussing immigrant-smuggling networks, lack of government law enforcement, and widespread economic exploitation of new immigrants in Chinatown, New York); Lora Jo Foo, The Vulnerable and Exploitable Immigrant Workforce and the Need for Strengthening Worker Protective Legislation, 103 Yale L.J. 2179 (1994) (explaining how risk of deportation deters immigrants from reporting labor and employment violations); Elizabeth Ruddick, Silencing Undocumented Workers: U.S. Agency Policies Undermine Labor Rights and Standards, 23 Immigr. Newsl. 3 (1996) (asserting that enforcement of labor and employment laws is frustrated when government policies threaten to deport immigrants who report unlawful workplace conditions). 13 See Battered Immigrant Woman Protection Act of 2000, Pub. L. No. 106-386, §§ 1501-1513, 114 Stat. 1464, 1518-37 (codified in scattered sections of 8 U.S.C). The Battered Immigrant Woman Protection Act was passed as Title V of the Violence Against Women Act of 2000 (VAWA), which was enacted as division B of the Victims of Trafficking and Violence Protection Act of 2000. See §§ 1-2, 114 Stat. at 1464-65. For current statutory provisions protecting abused noncitizens, see, for example, 8 U.S.C. § 1229b(b)(2) (2000) (originally codified at 8 U.S.C. § 1254(a)(3) (1994) (enacted by § 1505, 114 Stat. at 1524)) (allowing attorney general to cancel deportation for battered spouse or child). 14 See § 1101(a)(15)(S) (enacted by Violent Crime Control Enforcement Act of 1994, Pub. L. No. 103-322, § 130003, 108 Stat. 1796, 2024). 15 See § 1101(a)(15)(T) (enacted by Trafficking Victims Protection Act of 2000, Pub. L. No. 106-386, § 107(e)(1), 114 Stat. 1464, 1474-75). 16 See § 1101(a)(15)(U)(i), (iii) (enacted by Battered Immigrant Woman Protection Act, § 1513, 114 Stat. at 1533) (protecting noncitizens subjected to "substantial physical or mental abuse" resulting from number of crimes, including rape, torture, involuntary servitude, kidnapping, extortion, and assault).
Imaged with the Permission of N.Y.U. School of Law May 2003] IMMIGRANTS AND THE RIGHT TO PETITION bor abuses, 17 and the U.S. Department of Labor (DOL) has narrowed its information-sharing agreement with the U.S. Immigration and Naturalization Service (INS) to encourage undocumented workers to report wage and hour violations. 18 Following the September 11, 2001 terrorist attacks, the vital importance of facilitating unimpeded immigrant petitioning achieved brief popular attention when the INS Commissioner asked all persons to report missing loved ones and pledged not to use "immigration status information provided to local authorities in the rescue and recovery efforts." 19 These measures are few and limited, however, and represent only minor deviations from the rule that undocumented immigrants petition government authorities at their peril. Deterring immigrants from communicating with law enforcement officials is surely unwise. This Article argues that it may be unconstitutional as well, violative of the First Amendment right to petition. Analysis of immigrants' right to petition is illuminating for several reasons. First, it has significant consequences for the welfare of millions of noncitizens and for the effectiveness of law enforcement policies touching the lives of all residents of the nation. 20 Second, analysis of the petition rights of noncitizens has important implications for understanding the scope of other First and Fourth Amendment rights of immigrants-protections that, like the right to petition, are reserved by constitutional text to "the people" and have been dra- 17 See § 1182(n)(2)(C)(iv). The H-1B visa program offers temporary employment visas to specialized workers. See § I101(a)(15)(H)(i)(b). Although the statute directs the INS and U.S. Department of Labor (DOL) to protect the immigration status of H-LB complainants, § 1182(n)(2)(C)(v), the agencies have yet to implement a program. See 20 C.F.R. § 655.801(c) (2002) (announcing that H-1B whistleblower "may be allowed to seek other appropriate employment in the United States .... Further information concerning this provision should be sought from the Immigration and Naturalization Service"). 18 Memorandum of Understanding Between the Immigration and Naturalization Service, Department of Justice, and the Employment Standards Administration, Department of Labor (Nov. 23, 1998), in 227 Daily Lab. Rep. (BNA) E-1 (Nov. 25, 1998) [hereinafter 1998 MOU]; see also Michael J. Wishnie, Immigrant Workers and the Domestic Enforcement of International Labor Rights, 4 U. Pa. J. Lab. & Emp. L. 529, 547-51 (2002) (analyzing 1998 revision of MOU). 19 News Release, Immigration and Naturalization Serv., U.S. Dep't of Justice, Statement by INS Commissioner James Ziglar (Sept. 21, 2001), available at http://www.immigra tion.gov/graphics/publicaffairs/newsrels/NYCterrorist.htm. 20 On the general inadequacy of statutory protections for whistleblowers, see, for example, Trystan Phifer O'Leary, Silencing the Whistleblower: The Gap Between Federal and State Retaliatory Discharge Laws, 85 Iowa L. Rev. 663 (2000) (critiquing current statutes); Robert G. Vaughn, State Whistleblower Statutes and the Future of Whistleblower Protection, 51 Admin. L. Rev. 581 (1999) (analyzing state statutes); Thomas M. Devine, The Whistleblower Protection Act of 1989: Foundation for the Modern Law of Employment Dissent, 51 Admin. L. Rev. 531, 576-79 (1999) (summarizing proposed statutory reforms to federal civil service provisions).
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