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 Founding generation. The history of colonial and early American immigrant petitioning also corresponds with English traditions, which guaranteed the right to petition to all individuals. The absence of alienage classifications on petitioning is consistent, moreover, with the reality that "citizenship" and membership in a "national community" were ambiguous, inchoate notions at the Founding, notions that were intentionally submerged for fear their discussion would force a confrontation with the sectional disagreements over slavery. 2 76 In light of this history, if the Framers truly intended to exclude immigrant petitioners from constitutional protection, one would expect to find at least some evidence to this effect. But the Verdugo- Urquidez Court offered none, nor has research uncovered any. History strongly suggests that the use of the word "people" rather than "'persons" in the First Amendment was not in any way intended to exclude noncitizens from the rights safeguarded therein. Any argument for the exclusion of immigrants from the Petition Clause must be pitched on grounds other than history. III THE PETITION CLAUSE AND IMMIGRANT COMMUNICATIONS TO LAW ENFORCEMENT AGENCIES If the First Amendment guarantees all persons in the United States, regardless of their citizenship status, the right to petition the government for a redress of grievances, then do barriers to immigrants petitioning law enforcement agencies have constitutional implications Consider an undocumented immigrant who is the victim of a violent crime, or whose labor rights have been egregiously violatedor both, as in the cases of Gregorio Zarma Goyo and Beatrice Okezie 277 -but who hesitates to seek redress from law enforcement authorities for fear of deportation. It is wildly unsound policy to deter Goyo, Okezie, and tens of thousands of persons like them, from petitioning the government for relief. In the following Part, I consider whether burdens to immigrants petitioning may also violate the Petition Clause. 276 See, e.g., Smith, supra note 135, at 116 (observing ambiguities in meaning of citizenship at Founding); see also Raskin, supra note 134, at 1401 ("To exclude aliens from voting would have given rise to the dangerous inference that U.S. citizenship was the decisive criterion for suffrage at a time when the majority of U.S. citizens, including almost all women and substantial percentages of men without property, were categorically excluded from the franchise."). 277 See supra notes 1-2 and accompanying text.
Imaged with the Permission of N.Y.U. School of Law May 2003] IMMIGRANTS AND THE RIGHT TO PETITION A. The Right to Petition Under Current Doctrine In this Section, I consider the extent to which current doctrinewhich treats petitioning as subsumed within speech and entitled to no special First Amendment protection-safeguards the right of immigrants to apply to government officials for a redress of grievances. In the following Section, I argue that history, constitutional text and purpose, and sound principle favor treating petitioning as an extraordinary form of speech, the regulation of which should be subject to close judicial scrutiny. In particular, I analyze petition rights and law enforcement policies in two discrete circumstances. The first involves an agency that expressly inquires into immigration status and shares with the INS the information it obtains. Some local criminal law enforcement agencies embrace this approach, 278 as did the 1992 Memorandum of Understanding between the DOL and INS. 279 I call this a collect-and-report approach. The second and more common approach involves a law enforcement agency that neither requires nor prohibits the collection or reporting to the INS of immigration status information. Noncitizens therefore cannot be certain whether, upon filing a complaint, they will be asked about their immigration status or, if that information is otherwise learned by the agency, it will be communicated to the INS. Many local police departments 280 and many labor and employment 278 Davis et al., supra note 26, at 193 (describing police department whose "policy required them to report illegal immigrants" to INS). 279 Memorandum of Understanding Between INS and Labor Department on Shared Enforcement Responsibilities, reprinted in 113 Daily Lab. Rep. (BNA) D-1 (June 11, 1992) [hereinafter 1992 MOU]. Pursuant to the 1992 MOU, the DOL agreed that whenever it examined employer payroll records in the course of a wage-and-hour investigation, the DOL would (1) review records regarding employee immigration status and (2) refer any suspected discrepancies or omissions to the INS. Id. 280 Before 1996, several cities adopted "anti-snitch" ordinances prohibiting municipal employees from communicating with INS about the immigration status of those they served. See, e.g., City of N.Y. Exec. Order No. 124 (Aug. 7, 1989); City of Chi. Exec. Order No. 89-6 (Apr. 29, 1989). These orders sometimes contained a "criminal activity" exception to the prohibition on reporting. See, e.g., N.Y. Exec. Order No. 124 § 2(a)(3). But see Chi. Exec. Order No. 89-6 (failing to enumerate criminal activity exception). Even these exceptions, however, did not allow local officials to report the status of a crime victim. N.Y. Exec. Order No. 124 § 2(c) ("Enforcement agencies, including the Police Department and the Department of Correction ... shall not transmit to federal authorities information respecting any alien who is the victim of a crime." (emphasis added)). Because the status of these policies has been uncertain since 1996, see infra note 282 and accompanying text, and because many police departments have never adopted uniform policies on collecting and sharing immigration status information, I classify police departments as generally embracing the no-standards approach.
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