In 1985, the US Supreme Court heard arguments in Jean v. Nelson, a case in which a group of Haitian immigrants who had been denied temporary admission, or “parole,” into the country—and were instead incarcerated while seeking asylum—accused the government of discrimination on the basis of race and national origin. The Court’s majority declined to rule on the equal protection claim, instead remanding the case to the district court on purely statutory grounds. But Justice Thurgood Marshall dissented, arguing that the petitioners were protected by the Fifth Amendment’s equal protection clause in parole decisions.
To commemorate the 35th anniversary of Marshall’s dissent, NYU Law’s Center for Human Rights and Global Justice and the NAACP Legal Defense and Educational Fund (LDF) presented a two-day virtual conference, “Immigration, Equal Protection, and the Promise of Racial Justice: The Legacy of Jean v. Nelson,” on October 22 and 23. Participants considered the case itself; broader efforts seeking racial justice for Haitian asylum seekers in the 1980s; and subsequent struggles to secure equal protection for immigrants of color.
The conference’s keynote discussion featured Sherrilyn Ifill ’87, president and director-counsel of LDF and a member of the NYU Law Board of Trustees, and Kevin Johnson, dean of the University of California, Davis, School of Law. It was moderated by Gemma Solimene ’87, clinical associate professor of law at Fordham University School of Law.
Selected remarks from the discussion:
Sherrilyn Ifill: “When President Trump was elected, a number of us who work in the civil rights and social justice spaces, you can imagine, met to talk about what we were likely to face. We were not confused about who this president was, and we were not confused about his racism. He had run on an anti-immigrant platform. He had run on an explicitly racist platform, particularly against Latinos, but also against Black people…. So we decided that there will be no daylight between us, and that we would reserve some of our bandwidth to cover one another.” (video 30:40)
“When [Temporary Protected Status (TPS) for Haitian immigrants] was rescinded [in November 2017], we spent a lot of time talking about that rescission. And look, we were very clear about what was happening. We had been following the president’s remarks, he had made the S-hole country remarks, we felt we knew what this was about…. We decided to file suit in that case, because we felt that this case sat at the intersection of race and immigration. And we believe, as the Legal Defense Fund, when we see race discrimination, unconstitutional race discrimination…it sits right in our wheelhouse.” (video 33:03)
Kevin Johnson: “What I fear now is going on is that some of the justices, including Chief Justice Roberts, are using immigration law to water down equal protections for others, including African Americans. I think his Part IV in his plurality opinion in the University of California case involving DACA didn’t have to be written. There’s no reason to write it, because they struck down the rescission of DACA on the Administrative Procedure Act grounds. I think that the chief justice wanted to water down and actually dismiss the pleading stage, an equal protection claim that in any other context would have legs. This is a program [in which] 90 percent of the people affected were Latino. And you have a president on record saying, ‘Why are we giving relief to all these people from S-hole countries?’ So I think that one of the fights will be, in the future, ensuring judicial review, overruling this plenary power doctrine and the Chinese exclusion case that underlies it.” (video 41:03)
Watch the full discussion on video:
Posted December 18, 2020