Race and the Shaping of U.S. Immigration Policy

The date is October 13, 2004, some 147 years after Chief Justice Roger Taney and the infamous Dred Scott case. Representing the United States government, Deputy Solicitor General Edwin Kneedler, stands before the United States Supreme Court and tells the Court that the nation needs to protect its borders and in doing so some noncitizens must be treated as if they have no rights to due process.1 At issue is the ultimate fate of over 1000 persons of color, Mariel Cubans held in federal custody nearly 25 years after the boatlift. Two of the Cuban detainees have been incarcerated for 19 years. A total of 33 aliens have waited in jail for more than 15 years to be deported. Justice Souter grills Solicitor General Kneedler about the legal “fiction” of pretending that Mariel Cubans, who have been here for a quarter-century, have no more rights than immigrants showing up at the border: “That fiction of exclusion can’t be used for constitutional purposes, can it? . . . You have a due process clause that says ‘persons,’ not ‘citizens’ are entitled to constitutional protections?” Justice John Paul Stevens continues the questioning of Kneedler by asking “how far the government would carry the ‘no rights’ argument?” “Can we kill them?” he asks.2