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28 Chicana/o-Latina/o L. Rev. 19 (2009)
Race and the Shaping of U.S. Immigration Policy

handle is hein.journals/chiclat28 and id is 21 raw text is: RACE AND THE SHAPING OF U.S.
The date is October 13, 2004, some 147 years after Chief Jus-
tice Roger Taney and the infamous Dred Scott case. Represent-
ing 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 le-
gal 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 constitu-
tional 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
* LL.B. 1975 (Windsor), LL.M. 1976 (Northwestern), Associate Faculty, Col-
lege of Graduate Studies, Central Michigan University. The author practiced immi-
gration law with Dobkin & Associates, the firm he founded, Farmington Hills,
Michigan, 1979-2004. He is past Chairperson of the Immigration Law Section of
the Oakland County Michigan Bar Association and has lectured and presented sem-
inars on immigration in the U.S., Canada and the U.K. His writings on immigration
law, administrative law, constitutional law and civil liberties have been published as
book chapters and in law reviews. Many thanks to Kyle Landis-Marinello, a gifted
third year law student at the University of Michigan, for his research and writing
assistance. Email: xgreencard@aol.com.
1. Oral argument before the U.S. Supreme Court, Clark v. Martinez, 543 U. S.
371 (2005) (Oct. 13, 2004).
2. Id.

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