"settled recognition of due process rights attaching upon mere illegal entry into the country". He also rejected the argument that it was "illogical to allow the Federal Government to deny benefits of its social programs to illegal aliens . . . and then to disallow the states from similarly denying the benefits of their programs." The perceived illogic, said the Court, was nothing more "than a failure to recognize that the denial of Federal benefits rests on the power of the Federal Government to regulate immigration. . .

In ruling that the statutory provision was constitutionally infirm, regardless of whether it were reviewed under a strict scrutiny standard or under a rational relationship standard, the Court declined to "find that complete denial of free education to some children is not a denial of a fundamental right." "[T]he realities underlying the plaintiff children's status as illegal aliens . . . [were that] the plaintiffs undeniably stand in violation of federal law, but certainly they have committed no moral wrong." The suggestion that their exclusion from education is caused by their own illegal actions "places form over substance."

Judge Johnson took notice of the District Court's decision of July 21, 1980, in In re Alien Children Education Litigation, 501 F.Supp. 544 (S.D. Tex. 1980), which in a State-wide challenge to the same statute, sec. 21.031 of the Texas Education Code, had held that it violated equal protection guarantees. Judge Woodrow B. Seals had enjoined the Texas Commissioner of Education permanently from implementing the challenged statutory provisions, and the State of Texas had then obtained a stay of the injunction from a panel of the U.S. Court of Appeals for the Fifth Circuit, pending appeal.

Justice Lewis F. Powell, Jr., of the U.S. Supreme Court had vacated the stay of injunction on Sept. 4, 1980. See, Certain Named and Unnamed Non-Citizen Children and Their Parents v. Texas, 448 U.S. 1327 (1980).

Judge Johnson also noted Justice Powell's comment on that application, that there was a "reasonable probability" that the Supreme Court would grant certiorari or note probable jurisdiction, even before decision of the case by the Court of Appeals. Finally, Judge Johnson quoted Justice Powell's suggestion that five members of the Supreme Court might agree with the District Court's decision (in In re Alien Children Education Litigation), and that it might be "possible to accept the District Court's decision without fully embracing the full sweep of its analysis." See, 448 U.S. at 1332.

Subsequent to the Fifth Circuit's decision in Doe v. Plyler, ante, it summarily affirmed the District Court's decision in In re Alien Children Education Litigation, on Feb. 23, 1981. United States Law Week, Vol. 49, No. 48, June 9, 1981, p. 3919.

The appeals from both decisions were consolidated in the U.S. Supreme Court (see 452 U.S. 937), which affirmed the Fifth Circuit on June 15, 1982 (see 457 U.S. 202).

In his decision of July 21, 1980 in In re Alien Children Education Litigation, 501 F.Supp. 544 (S.D. Tex. 1980), footnoted by Circuit Judge Johnson in Doe v. Plyler, ante, Judge Woodrow B. Seals examined at length the question of the applicability of the Equal Protection Clause to undocumented aliens, with particular reference to the nature of a child's right to education and the role of education in American society. (The United States, which appeared amicus in

Doe v. Plyler, moved successfully to intervene in Alien Children as a plaintiff, asserting that the Texas statute violated the Equal Protection Clause. See Dept. of Justice news release unn., January 11, 1980, Dept. of State File No. P84 0149-0863.) The Court also examined assertions by the plaintiffs that the Texas statute was preempted by Federal legislation (and found that it was not), and that it conflicted with Federal treaties and foreign policy (and held that it did not; see, further, this Digest, Ch. 5, §2, post).

Having made the threshold determination that the effect of the statute was to exclude undocumented children from the Texas public schools, the Court then addressed the equal protection issue. Referring to Brown v. Board of Education, 347 U.S. 483 (1954), and other Supreme Court opinions that reemphasized "the importance of education to members of modern society and [of insuring] equal access to educational opportunities," the Court then discussed San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973). It pointed out that the instant case "squarely presents the issue reserved by the Supreme Court in Rodriguez: what level of scrutiny should be applied when a statute absolutely deprives educational opportunities to some children within the state's jurisdiction?" Judge Seals concluded that:

[S]trict judicial scrutiny should be applied to determine whether the statute violates the equal protection clause. The bases for this conclusion are the following: the statute absolutely deprives undocumented children of access to education thereby causing them great harm; there is a direct and substantial relationship between education and the explicitly guaranteed right to exchange ideas and information; and, the provision of education is not a social or economic policy but a state function. Additionally, recognizing the right to access to education when it is being provided to others does not imply a right to equal enjoyment of education.

Rejecting the plaintiffs' claim that discrimination against undocumented aliens was inherently suspect, Judge Seals also concluded that States might treat citizens and resident aliens differently from undocumented aliens, if the differences were "reasonably related to a valid governmental objective" and did not affect fundamental rights. If such rights were affected, State treatment of undocumented aliens, “like [S]tate treatment of other persons within its jurisdiction, is justified only if it furthers a compelling governmental interest." The Court was careful not to imply, however, that classifications involving undocumented aliens were permissible "by their very nature" or that the Equal Protection Clause did not apply to a class of undocumented persons. Supreme Court decisions, the language of

the Fourteenth Amendment, and holdings of other Federal courts required that "[S]tate classifications based on immigration status be subjected to judicial scrutiny."

While the Supreme Court had never addressed "squarely" the applicability of the Equal Protection Clause to undocumented aliens, decisions construing the Fourteenth Amendment, the Court said, did not suggest that the Equal Protection guarantee was reserved to citizens or resident aliens. Citing Mathews v. Diaz, 426 U.S. 65 (1976), for the teaching that undocumented aliens are protected by the Due Process Clause, Judge Seals could "conceive of no reason to conclude that they are unprotected by the [E]qual [P]rotection [C]lause". He stated, further:

(footnote omitted)

There is no indication that the framers of the fourteenth amendment intended to limit which individuals located within the United States were "persons" for either due process or equal protection purposes. . . . Accordingly, the equal protection clause protects undocumented aliens because they are "persons within the jurisdiction" of the state. State discrimination against illegal aliens is not necessarily permissible, and when a fundamental right is infringed by that discrimination the state must provide a compelling justification.

Judge Seals found that the Texas statute discriminated on the basis of wealth against undocumented alien children. Applying "strict judicial scrutiny", he ruled that the State had not shown that the legislation was necessary to promote a compelling governmental interest, and, accordingly, that it violated the Equal Protection Clause.

See, also, this Digest, Ch. 5, §2, pp. 415-417, post. See, further, the 1978 Digest, pp. 288-298.

Applicability of Civil Rights Statutes

In United States v. Otherson, 627 F.2d 1276 (9th Cir. 1980, reh'g denied, 1981), the United States Court of Appeals for the Ninth Circuit on November 6, 1980, affirmed the defendants' convictions on stipulated facts for depriving certain aliens of their civil rights in violation of 18 U.S.C. 242, and for conspiring to effect such deprivation in violation of 18 U.S.C. 371 and 242.

At the conclusion of the prosecution's case, the defendants had moved for acquittal, unsuccessfully, on the grounds that the aliens in question were not "inhabitants" of any State, territory, or district, as required by 18 U.S.C. 242, which, they also argued, covers only actions under color of State, but not Federal law. District Judge Howard B. Turrentine rejected this argument in United States v. Otherson, 480 F.Supp. 1369 (S.D. Cal. 1979). In an Order Defining

"Inhabitant" as Used in 18 U.S.C. §242, dated December 13, 1979, he concluded that the word "inhabitant" describes any person who is within the jurisdiction of the United States. In arriving at this interpretation Judge Turrentine examined the legislative history of predecessor and related statutes, as well as the Treaty of Amity, Commerce and Navigation between the United States and Mexico, signed at Mexico, April 5, 1831, TS 203, 8 Stat. 410, 9 Bevans 764, which was in force at the time of their enactment (it did not terminate until November 30, 1881). He noted the United States commitment under that Treaty to protect Mexican citizens who were either "transient or dwelling" within the United States.

Judge Turrentine also referred to the Convention between the American Republics Regarding the Status of Aliens in Their Respective Territories, signed at Havana February 20, 1928, TS 815, 46 Stat. 2753, 2 Bevans 710, entered into force for the United States May 21, 1930 (not in force, however, between the United States and Mexico), which recognized that states are obliged to extend to "foreigners, domiciled or in transit through their territory" the individual guaranties and essential civil rights that they extend to their own nationals.

Writing for the three-judge panel of the Ninth Circuit, Circuit Judge Harry Pregerson emphasized the applicability of 18 U.S.C. 242 under Supreme Court teaching to actions taken under color of Federal law. He also drew attention to the historical fact that at the time of enactment of its predecessors, the Civil Rights Acts of 1866 and 1870, there had been no "illegal aliens", since immigration to the United States had been unrestricted. This made it impossible, the Court said, to "believe that Congress in 1870 could have intended its statute to apply only to 'legal' immigrants." 637 F.2d, at 1284. § 4 Refugees; Asylum; Statelessness

Refugee Act of 1980

Refugees

On March 17, 1980, President Carter signed into law as Public Law 96-212, the Refugee Act of 1980, 94 Stat. 102, establishing within the framework of the Immigration and Nationality Act of 1952 a new admissions policy for refugees, which the President described as permitting "fair and equitable treatment of refugees in the United States, regardless of their country of origin."

Title I of the Refugee Act contains a Congressional declaration (in section 101(a), 8 U.S.C. 1521 nt) that it is the "historic policy of the United States to respond to the urgent needs of persons subject to persecution in their homelands, including, where appropriate,

humanitarian assistance for their care and maintenance in asylum areas, efforts to promote opportunities for resettlement or voluntary repatriation, aid for necessary transportation and processing, admission to this country of refugees of special humanitarian concern to the United States, and transitional assistance to refugees in the United States." United States policy, the declaration continues, is to encourage all nations to provide assistance and resettlement opportunities to refugees "to the fullest extent possible." Title I also sets out the objectives of the Act: "to provide a permanent and systematic procedure for the admission to this country of refugees of special humanitarian concern to the United States, and to provide comprehensive and uniform provisions for the effective resettlement and absorption of those refugees who are admitted."

Title II of the Refugee Act contains specific amendments to the Immigration and Nationality Act, the first of which (contained in section 201(a) of the Refugee Act) provides a new statutory definition of "refugee" (new section 101(a)(42) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(42)). The new definition eliminates the geographical and ideological restrictions that had applied to conditional entrant refugees under section 203(a)(7) of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(7), added by Public Law 89236, approved October 3, 1965, 79 Stat. 911, 913, and removed by section 203(c)(3) of the Refugee Act, 94 Stat. 107. See, further, S. Rept. 748, 89th Cong., 1st sess. (1965); 1965 United States Code Congressional and Administrative News, Vol. 2 (1966), pp. 3328, 3334-3335.

(Public Law 89-236 had also placed a percentage restriction upon the number of conditional entrant refugees, at not to exceed six percent (6%) of the total number of aliens, exclusive of special immigrants and immediate relatives of United States citizens, who might be issued immigrant visas or might otherwise acquire resident status or enter conditionally. Under the (original) single worldwide ceiling of 290,000 immigrants (other than those in the nonlimited categories indicated, ante), which was established by Public Law 95-412, approved October 5, 1978, 92 Stat. 907, the annual maximum number of conditional entrant refugees would have been limited to 17,400. The Attorney General had, however, during the refugee crises of the 1970's repeatedly resorted to use of his parole authority under section 212(d)(5) of the Immigration and Nationality Act to authorize the parole of aliens into the United States beyond the six-percent-of-total figure established in 1965 for conditional entrants. Apart from the broadened definition of "refugee", other provisions of the Refugee Act increase the number of refugee admissions (see post) without regard to percentage of total alien admissions.) The new statutory definition of “refugee" in new section 101(a)(42)