Aliens and the US Constitution

THIS year of the bicentennial of the United States Constitution is replete with celebrations of which Americans can be justly proud. The protection of the Constitution has been extended over its rich history to the mentally incompetent, prisoners, children, residents of US territories and possessions. Blacks were guaranteed an integrated education more than 30 years ago in perhaps this era's most significant civil rights decision. The extension of individual liberties to new groups has been defended frequently against political expediency by the Supreme Court. One group, however, has been largely neglected in this expansion of individual liberties - aliens. Refugees fleeing persecution are unjustly detained and foreigners are barred from entering the US because of their political affiliations and beliefs. Both are often denied a fair trial.

The time has come to remove fundamental discriminations under law against aliens. When they are subject to the power of the federal government, foreigners, like Americans, should be able to claim the protections of the Bill of Rights.

Currently, almost 1,000 undocumented asylum seekers are incarcerated in immigration jails around the country, even though there is no suggestion that they ever committed any crime. Most of these detainees are Salvadoreans who have fled persecution and war in their homeland.

But this form of mistreatment is inflicted on surprising victims. Eighteen Afghans are incarcerated in New York, some for upwards of a year. Before coming to the US, the detainees were supporters of the Mujahideen freedom fighters.

The size of the deprived group is large. Almost 3,000 Cubans who came in the Freedom Flotilla in 1980 are imprisoned indefinitely in federal prisons simply because Cuba will not take them back. The federal authorities have not yet reviewed the cases of the Cubans in order to determine which ones can be released safely into American society. They are simply warehoused in perpetuity.

Since 1981, more than 7,000 Haitians have been returned without asylum hearings to Haiti by US Coast Guard cutters patrolling the Windward Passage.

When petitions have been made to the federal courts challenging these detention and exclusion practices, they have been found largely immune from constitutional scrutiny, because ``excludable'' aliens who have not yet technically ``entered'' the US were involved.

This is so even though they have been present in the US for several years. A legal fiction is thus used to deprive individuals of basic legal protections.

US citizens have also been victimized. Aliens have been barred from the US for political membership and opinions. US citizens are thereby denied the opportunity to speak and associate with these visitors under the First Amendment. These exclusions have been based on the 1952 McCarran-Walter Act - a McCarthy-era relic that permits the denial of entry to the US on ideological grounds. Included in this group are ``excludables'' such as renowned authors Gabriel Garc'ia M'arquez, Dennis Brutus, and Dariel Fo.

More recently, the deportation proceedings brought against writer Margaret Randall, the incarceration for 44 days last year of a Japanese scholar, Choichiro Yatani, and the exclusion without a hearing last October of Patricia Lara, a Colombian journalist who was invited to attend an awards ceremony at the Columbia School of Journalism, have raised questions about the propriety and fairness of such ideological exclusions. Eight Palestinians in Los Angeles who were put under deportation proceedings on account of their allegedly subversive association and writings claim that they are but the first group to be targeted by an Immigration and Naturalization Service contingency plan that would provide for the apprehension, detention, and accelerated expulsion of alleged ``alien undesirables.'' Examples abound of this last remaining constitutional second class.

The Bill of Rights' guarantees against unfairness and discrimination should finally be extended to all people who are subject to abuse of power by government officials, including aliens. The antiquated ``entry'' doctrine must be discarded as a barrier to constitutional protection. Only by eliminating the gap in protection for those from abroad can we remain secure in the exercise of our rights as citizens and faithful to the constitutional heritage we are celebrating this bicentennial year.

Arthur C. Helton, a lawyer, is director of the Political Asylum Project of the Lawyers Committee for Human Rights.