More on how U.S. immigration law discriminates against Mexicans. How can that be legal and constitutional?
May 24, 2011
By Jan C. Ting
The current U.S. legal immigration system is the most generous (and most complicated) in the world, providing to immigrants each year more green cards, for permanent residence and a clear path to full citizenship, than all the rest of the nations of the world combined, approximately one million per year. With some exceptions, U.S. law provides that, "no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of that person's race, sex, nationality, place of birth, or place of residence."
The devil is always in the details, or in this case, the exceptions. The most prominent exception to the anti-discrimination rule is the so-called "per country cap" by which green cards in the two largest categories of family-sponsored and employment-based immigrants, are limited to 7% of the overall number available which can be issued to natives of any one country.
What countries do you think are affected by the 7% cap? Switzerland? Denmark? Luxembourg? No, the only countries affected would be large countries with large numbers of would-be immigrants to the U.S. who qualify for U.S. green cards. First and foremost, that would be Mexico.
The 7% per country cap means that qualified immigrants from Mexico in most immigrant categories must wait in separate and longer lines than qualified immigrants from other countries, solely because they are Mexican. In some common categories, they must wait more than a decade longer than qualified immigrants from other countries for their chance to immigrate, solely because they are Mexican.
How can it be legal and constitutional for the U.S. government to overtly discriminate on the basis of ethnicity? The short answer is that U.S. immigration law is different from all other laws where such ethnic discrimination would be a violation of the right to equal protection under the law and Constitution.
U.S. immigration law originated in the effort to exclude immigrants, initially Chinese, on the basis of race and ethnicity. In the earliest test of the new exclusion law, the U.S. Supreme Court in 1889 unanimously upheld the Chinese Exclusion Act of 1882 against legal and constitutional challenge. That decision is still good law today, and is studied in every law school in the United States that teaches immigration law, because it is the fountainhead of U.S. immigration law.
The U.S. Supreme Court found that Congress could regulate immigration even though the power to do so is not enumerated in the Constitution, because the power is inherent in national sovereignty. And because the power does not arise from the Constitution, it is not limited by the Constitution, but is an absolute and unqualified power, a plenary power.
But just because Congress has the power to make Mexican immigrants wait a decade or more longer to immigrate than equally qualified immigrants from other countries, does not make the law either wise or just. Among its unintended consequences is the encouragement of illegal immigration to the U.S. from Mexico.
I have occasionally asked those who purport to speak for immigrants from Mexico why their top immigration priority is amnesty for illegal immigrants, which has no chance of passage in the current Congress. Why not attack instead the overt discrimination against Mexicans, Filipinos, and a few other nationalities built into the U.S. immigration statute? Surely a broader coalition could be organized around that reform than around the controversial and divisive proposal for an immigration amnesty?
And the per-country cap is not the only instance of ethnic discrimination in U.S. immigration law. See also the so-called diversity visa green card lottery, which I have also condemned, and which completely excludes Mexicans from entering.
It doesn't discriminate against Mexicans, it discriminates against all countries that send more than 7% of the total number of immigrants, like Philippines or Mainland China
