The US Constitution does not include a right to freedom of movement, there is therefore no written definition of this right. Migrants are entitled to the fundamental protection of the US Constitution and their rights have been interpreted by the US Courts. In the case of Reno v Flores,(1) in 1993, a class action challenge to the immigration detention of children, the Supreme Court emphasised the importance of the right to liberty of migrant children.

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The US Constitution does not include a right to freedom of movement, there is therefore no written definition of this right. Migrants are entitled to the fundamental protection of the US Constitution and their rights have been interpreted by the US Courts. In the case of Reno v Flores,(1) in 1993, a class action challenge to the immigration detention of children, the Supreme Court emphasised the importance of the right to liberty of migrant children.

Immigration law in the United States is governed at the federal level by the Immigration and Nationality Act, (INA), which was created in 1952 and has been amended numerous times since then but remains the main source of law. Section 201(a) of the INA sets out the main groups of people who may be issued immigrant visas or otherwise obtain permanent residence in the US. These groups are: family sponsored immigrants; employment based immigrants; and diversity immigrants (those that come from countries from which high numbers of immigrants have not travelled to the US). Quotas or ‘worldwide levels apply to the entry of these groups. A number of immigrants are exempt from the worldwide levels, these are set out in 201(b)(1) (A)-(E) and include immigrants, lawfully admitted for permanent residence, who are returning from a temporary visit abroad; refugees, immigrants who have resided in the US continuously for 7 years after having been admitted in any status.

The fourteenth amendment to the US Constitution states that no State shall deny “to any person within its jurisdiction the equal protection of the laws”. This protection applies to migrants and has prevented state authorities from discriminating against migrants, for example in relation to education rights of irregular migrants (8.4-Rights and Entitlements). The Civil Rights Act of 1964 prohibits direct discrimination and the disparate impact of employment practices on the grounds of race, color, religion, sex, or national origin. The Act is not limited to nationals of the US so would therefore include protection for migrant workers.

Since September the 11^th the US has introduced a number of initiatives to tighten border controls. The emphasis is on a border management system that keeps pace with expanding trade and protects the United States and its territories from the threats of terrorist attack, illegal immigration, illegal drugs, and other contraband. To protect its borders the US has signed two border agreements with Canada and Mexico, in December 2001 and March 2002 respectively.

The US Homeland Security Act of 2002, under section 452, established the position of a Citizenship and Immigration Ombudsman who reports to the Bureau of Citizenship and Immigration Services (BCIS), which replaced the Immigration and Nationality Service (INS) under the Act. The functions of the Ombudsman include: to assist employers and individuals in resolving problems with the BCIS; to identify areas in which such individuals have problems in dealing with the BCIS; and to propose administrative changes to the Practices of the BCIS to remedy the problem areas. The Director of the BCIS must respond within 3 months to recommendations made by the Ombudsman. The Ombudsman also has the responsibility of appointing local Ombudsmen, at least one per State.

Under section 501 of the INA the Attorney General may seek the removal of any person considered to be an ‘alien terrorist’. Alien terrorists are persons who have committed non-violent offences, as set out in section 241(a)(4)(B). Such persons may be removed from the country before their sentence of imprisonment is complete. Under section 232 of the INA immigrants entering the country may be subject to detention for physical or mental examination to ascertain if they have any ‘mental or physical defects’ and under section 236 other immigrants may be detained with a view to removal proceedings, if the detainee is not removable detention must terminate.

In March 2003 the US Government enacted Operation Liberty Shield a comprehensive national security plan. The Operation allowed for the detention of asylum seekers “for the duration of the processing period”, from 33 undisclosed countries including Iraq that were considered “nations where al-Qaeda, al-Qaeda sympathizers, and other terrorist groups are known to have operated”. However in May 2003 the Operation was terminated by the Department for Homeland and Security. The US also detains indefinitely over 600 suspected terrorists of a number of different nationalities, mainly captured during the Afghanistan war, at Guantanamo Bay in Cuba. In July 2002 a Federal Court held that the US had no jurisdiction to review the detention at Guantanamo bay, as the detainees are held outside the territory of the US and the detainees are not US citizens

Analysis provided by: Anisa Niaz LLM (Public Law), United Kingdom.

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