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
matically pressured by law enforcement strategies since September
11.21 Analysis of the right to petition also has important implications
for a range of legal doctrines grounded in the Petition Clause, from
the right of access to courts to the Noerr-Pennington doctrine of antitrust
law to no-contact rules of legal ethics. 22 Finally, consideration of
the petition rights of noncitizens in particular sheds light on the contemporary
meaning of membership in a national community and on
the limits of the governmental power to regulate the lives of territorially
resident noncitizens.
Part I of this Article reviews the available empirical data on immigrant
victimization and reporting rates regarding illegal activity,
both criminal and civil. Part II addresses the Supreme Court's 1990
conclusion, based on a cursory historical analysis, that many immigrants,
especially undocumented immigrants, are excluded from "the
people" whose rights the Framers intended to secure by the First
Amendment. 23 To challenge the Court's conclusion on its own historical
terms, I examine the history of petitioning by noncitizens in the
Founding era, from petitions by Acadian and Domingan refugees to
those of Native American and foreign veterans of the Revolutionary
War. A few of these narratives are presented here in a refutation of
the Supreme Court's conclusion that the Framers intended to exclude
immigrants from protections afforded "the people" in the Bill of
Rights. In Part III, I develop a theory of petitioning as "extraordinary
speech," contending that text, history, purpose, and reason support
subjecting petitioning restrictions to close judicial scrutiny. Such an
approach would cohere with the principles animating doctrines related
to petitioning jurisprudence, including free speech, court access,
unconstitutional conditions, and equal protection. Applying this theory
to contemporary law enforcement agency policies, I conclude that
some policies so burden the petition rights of immigrants as to violate
the First Amendment. 2 4 Finally, Part IV attempts to anticipate and
dispel principal objections to a theory of robust petition rights for
21 See infra notes 75-82 and accompanying text.
22 See infra notes 289-98 and accompanying text.
23 United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990) ("While this textual
exegesis is by no means conclusive, it suggests that 'the people' protected by the ... First
... Amendment[ I... refers to a class of persons who are part of a national community or
who have otherwise developed sufficient connection with this country to be considered
part of that community.").
24 1 do not argue that immigrants who petition are thereby entitled to an affirmative
grant of lawful immigration status. My conclusion is narrower: Immigrants who exercise
their constitutional right to communicate a grievance to the government may not therefore
be deported. An undocumented immigrant who reports a crime or otherwise petitions the
government is of course subject to removal if the INS discovers her independently of her
petitioning activity.