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  • Analysis of the IIRIRA
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    The Interplay Between The Income Requirement And The Equal Protection Doctrine

    On its face, the income requirement imposed on a sponsor for an alien family member classifies according to wealth. A moment's reflection, however, reveals that its true impact is to classify along the lines of race and national origin as well. Although “wealth” may not be a suspect classification under the Equal Protection doctrine thus allowing IIRIRA's income requirement to evade strict scrutiny, “race” and “national origin” are suspect classifications warranting strict judicial scrutiny. Successfully establishing the income requirement as a classification based on race and national origin would force onto the courts the issue of whether Congress' power over immigration and naturalization is so plenary as to allow the courts to exercise judicial deference in the face of suspect classification of not only lawful permanent residents (LPRs), but United States Citizens as well.

    Compared to an earlier era, a far greater proportion of recent immigrants come from countries that are either ravaged by war or less developed economically. Moreover, the place of origin for these immigrants tend to be concentrated in a few particular countries. While the immigrant inflow from these countries has undergone a significant rise in recent years, countries with an anchored government and a stable economy have not experienced comparable rates of growth. Because they are new arrivals, these recent immigrants are undoubtedly going through the process of overcoming the language barrier and adjusting to the new culture.

    As a consequence, these new immigrants are far less likely to meet the income requirement mandated by IIRIRA as are “established” immigrants who have attained higher socio-economic status. The “established” immigrants tend to hail from countries different than those of the new immigrants as it was probably the consequences of an earlier era that compelled the “established” immigrants to migrate to the U.S. As such, the income requirement disproportionately burdens USCs and LPRs who were former citizens of certain specific countries. This disproportionate impact stemming from de jure wealth classifications results in de facto discrimination based on national origin.

    Similarly, the wealth classifications employed in the income requirement effect de facto discrimination based on race. As a group, immigrants who will have trouble meeting the income requirement are most likely going to be Eastern Europeans and Southeast Asians. Therefore, the income requirement disproportionately impacts USCs and LPRs who belong to those two racial groups. The distinction between discrimination based on national origin and that based on race may be academic, as both warrant strict scrutiny. However, “an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another.” In Washington v. Davis, a written personnel test used by the District of Columbia's police department as a part of its recruiting procedures was challenged on the ground that it violated Equal Protection. The plaintiffs were two African Americans who were denied employment because they had failed the test; they brought suit claiming that the test “invidiously discriminated against Negroes and hence denied them due process of law contrary to the commands of the Fifth Amendment.”

    The Washington Court rejected the proposition that “a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact.” However, the Court held that a law's disproportionate impact was not irrelevant in cases involving claims of racial discrimination. Once the plaintiff succeeds in establishing a prima facie case of discriminatory purpose, “the burden of proof shifts to the State to rebut the presumption of unconstitutional action by showing that permissible racially neutral selection criteria and procedures have produced the monochromatic result.” In light of the relevance of a factual showing of disproportionate impact, it is thus useful to point out that IIRIRA's income requirement effects such impact along more than one line of distinction. Identifying a factor in addition to national origin facilitates the search for factual evidence of disproportionate impact as “[r]eliance on statistical data showing a discriminatory pattern of administration has become commonplace in modern cases.”

    Would-be Challengers to the Income Requirement Wishing to Rely on Equal Protection Face an Uphill Battle. Since Washington v. Davis, the Supreme Court has reiterated that “[p]roof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.” Arlington Heights involved an Equal Protection challenge to the city planning commission's decision to reject a real estate developer's petition to rezone a parcel on which the developer planned to build racially integrated housing. In rejecting the challenge, the Court reasoned that the developer had failed to carry the burden of proving that discriminatory purpose was a motivating factor in the city's decision, even though the decision did arguably bear more heavily on racial minorities.

    The Arlington Heights Court announced that Washington does not require a plaintiff to prove that the challenged action rested solely on racially discriminatory purposes; proof that a discriminatory purpose was one of the motivating factors in the decision is sufficient to establish an Equal Protection violation. Nevertheless, for USCs and LPRs who have enough resolve to bring a challenge against IIRIRA's income requirement on the ground of Equal Protection, they engage in a difficult, if not impossible, endeavor. To successfully challenge the income requirement on the ground of Equal Protection, a plaintiff must show not only discriminatory impact, but also discriminatory purpose as one of the motivating factors behind that requirement.

    In Arlington Heights, the Court held that the impact of the official action provides an important starting point for the inquiry of whether a discriminatory purpose existed. However, absent a stark pattern of discrimination, “unexplainable on grounds other than race, . . . impact alone is not determinative, and the Court must look to other evidence.” It then went on to announce a non-exhaustive list of other evidentiary sources in establishing discriminatory purpose, including: (1) the historical background of the decision, (2) the specific sequence of events leading up to the challenged decision, (3) departures from the normal procedural sequence, (4) substantive departures, and (5) legislative history. Without the type of blatant discriminatory impact “unexplainable on grounds other than race,” a plaintiff faces a formidable task in proving discriminatory purpose. And this formidable task awaits any potential challenger to IIRIRA's income requirement because the requirement clearly does not present the type of overt discriminatory impact akin to that which the Court deems dispositive.

    To successfully challenge the income requirement as violative of Equal Protection, a plaintiff necessarily then must rely on the other evidentiary sources declared in Arlington Heights. Resorting to the first source, namely, the historical background of the decision, presents a unique problem. In the context of Arlington Heights, “historical background” refers to series of past official actions taken against the group impacted by the challenged statute. Therefore, for an LPR or a naturalized USC to establish the requisite “historical background,” he or she has to show that the racial or ethnic group to which he or she belongs has been subjected to past discriminatory official actions. A question then arises as to what types of official actions are includable in “historical background.”

    If a plaintiff identifies past official actions according disfavored treatment to extraterritorial aliens who are of the same race or ethnicity as the challenger, it is unclear whether such actions can be included as part of the “historical background.” If the “historical background” includes only past actions that are constitutional violations in themselves, then the plaintiff must necessarily fail because extraterritorial aliens have no constitutional right to enter or remain in the United States. On the other hand, if “historical background” encompasses more general types of discriminatory official actions, Arlington Heights would concede indirectly that extraterritorial aliens are entitled to certain constitutional rights thereby directly contradicting earlier Court decisions.

    The second evidentiary source announced in Arlington Heights is the specific sequence of events leading up to the challenged act. Proponents of the income requirement will no doubt point to the original income requirement contained in a bill passed by the United States House of Representatives prior to President Clinton's signing of the IIRIRA. That bill provided for a required annual income equaling at least 200% of the federal poverty line. This revision prior to the final passage of the IIRIRA, reducing the income requirement from 200% to 125% of the federal poverty line, weighs against a plaintiff trying to prove discriminatory purpose.

    The three remaining evidentiary sources outlined in Arlington Heights also seem to offer little help to the plaintiff. “Procedural departures” are arguably not applicable to legislation as they are to administrative action. “Substantive departures” do not elucidate the issue since the requirements for a sponsor's affidavit of support was left to the discretion of the Attorney General prior to the amendment brought about by IIRIRA. “Legislative history“119 presents a problem similar to that encountered in proving “historical background.” Any evidence that can be characterized as discriminatory against a particular racial or ethnic group can arguably be justified on the ground that the statements or remarks in question were directed against extraterritorial aliens in that particular group and not against USCs or LPRs belonging to the same group.

    “Standing alone, [disproportionate impact] does not trigger the rule that racial classifications are to be subjected to the strictest scrutiny and are justifiable only by the weightiest of considerations.” Given the difficulty of proving a discriminatory purpose behind the income requirement, any challenge to the amendments brought about by IIRIRA will most likely invoke the most deferential standard of Equal Protection analysis under which a “statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” In light of the Court's recognition of Congress' plenary power in the field of immigration and naturalization, the statutory income requirement is almost sure to withstand a challenge under the Equal Protection Clause.

    In addition to the seemingly untoward nature of a challenge based on the Equal Protection doctrine, the doctrine itself and the income requirement in conjunction work an unexpected paradox for certain American citizens. An American citizen by birth who does not hold minority status in terms of race or national origin would lack standing under the Equal Protection doctrine to challenge the income requirement. Therefore, any such citizen who marries an alien or parents a child while abroad does not even meet the threshold prerequisite needed to bring an Equal Protection challenge against the income requirement even though he or she is impacted by it. By virtue of his or her race and national origin, a “non-minority American” would be stopped at the front-steps of the courthouse whereas racial and ethnic minorities would at least have the standing to bring their Equal Protection claims, as ill-fated as the claims may be. This anomalous consequence results in the unfavorable treatment of interracial or interethnic marriages.

    Regardless of whether a claim challenging the income requirement as violating Equal Protection would ultimately prevail, such a claim would at a minimum serve to expose the analytical uncouthness of a statute that claims to classify aliens yet in truth discriminates against USCs and LPRs. A court would be required to engage in difficult mental gymnastics in addressing the historical background of the IIRIRA, its legislative history,and its impact on interracial or interethnic marriages. Thus exposing the logical impalpability of the income requirement ought to convince the courts to seriously ponder its legitimacy.

    It is true that the evidentiary requirements enunciated in Arlington Heights may work an insurmountable barrier to an Equal Protection claimant challenging IIRIRA's income requirement. Consequently, a court would find it unnecessary to recite the plenary power doctrine in order to justify its refusal to strike down the income requirement. However, an Equal Protection challenge is not the only possible line of attack against the income requirement. Under a different strand of the American constitutional jurisprudence, the showdown is no longer between Equal Protection and the IIRIRA; rather, it is between Substantive Due Process and the plenary power doctrine.

    Can Redress Be Had By Resorting To Substantive Due Process?

    For USCs and LPRs whose alien family members are denied admission to the United States due to the income requirement, the Due Process Clause of the Fifth Amendment is another ground upon which to base a challenge to the changes brought about by IIRIRA. The Supreme Court “has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.” “A host of cases . . . have consistently acknowledged a ‘private realm of family life which the state cannot enter.’” Challenging the income requirement as a deprivation of the fundamental liberty interest to family life further avoids the anomalous outcome of denying standing to certain USCs.

    Although the Due Process claim was also raised by the plaintiffs in Fiallo,there is at least a possibility that a challenger to the income requirement would obtain more favorable results than did the Fiallo plaintiffs. Of the nine justices who sat on the Court when Fiallo was decided, only two remain.134 The change in the composition of the Court and the twenty years of social transformation that has occurred since Fiallo may lead to a different outcome this time around.135 Moreover, Fiallo was decided before the Court issued its decision in Moore v. City of East Cleveland.

    In Moore, a city housing ordinance limited the occupancy of a residential unit to certain enumerated categories of family members. The petitioner challenged this ordinance which prohibited her from living in the same dwelling with her two grandsons who were not brothers but cousins. The Court struck down the challenged ordinance because the city chose “to regulate the occupancy of its housing by slicing deeply into the family itself.” The Court held that the proffered governmental interests in support of the ordinance, although legitimate goals, were served marginally by the ordinance, at best. “[W]hen the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation.”

    The parallels between the challenged ordinance in Moore and the income requirement introduced by IIRIRA are striking indeed. With respect to the governmental interests sought to be achieved, both involve the general welfare of the citizenry and the fiscal burdens of government. And the liberty interests potentially violated by IIRIRA's income requirement are similar to, if not more coveted than, those held to be violated in Moore.

    Although Moore reaffirmed that there are certain fundamental personal liberty interests the protection of which warrants strict scrutiny, it never explicitly equated the right of a grandmother to reside with her grandsons as one of those fundamental interests. Furthermore, Moore was only a plurality opinion. Nevertheless, several factors suggest that IIRIRA's income requirement, as compared to the challenged ordinance in Moore, would evoke less divergence among the Justices. First, by preventing a grandmother from living with her grandsons, the ordinance at issue in Moore did not impede a nuclear family's right to private family life, whereas IIRIRA's income requirement potentially deprives a USC or LPR of the opportunity to reside with his or her spouse and children. Second, the ordinance involved in Moore hindered Moore's choice of living arrangement “only in East Cleveland, an area with a radius of three miles . . . . [S]he was free to [live as she chose] in other parts of the Cleveland metropolitan area.” IIRIRA's income requirement, in contrast, would preclude family reunification on American soil.

    If the Court is to follow the reasoning set forth in Moore, the income requirement simply cannot pass muster. The only conceivable ground upon which the Court could base a rejection of a challenge to the income requirement would be Congress' plenary power in immigration legislation. Therefore, the only issue that remains is whether the Court would be willing to forestall analytical quagmires—like that presented by the income requirement—which the plenary power doctrine will inevitably engender in the future. To defend the constitutional mandate of Substantive Due Process, the Court must not only strike down IIRIRA's income requirement, so too must it remove the plenary power doctrine from the constitutional landscape.


    Although courts may not seriously entertain any Equal Protection challenge instituted by USCs and LPRs against IIRIRA's income requirement, the burden that the requirement exerts on such individuals is no frivolous matter. The comprehensive breadth and the well-meshed cohesiveness of the United States Constitution can be demonstrated where Equal Protection fails to redress a grievance and Due Process avails itself to offer the justified relief. Under the lens of Due Process, USCs, whether by naturalization or birth, as well as LPRs, have a legitimate chance of successfully challenging IIRIRA's income requirement. At the same time, the income requirement and the seemingly inevitable controversies that it will beget should force the judiciary to reexamine the plenary power wielded by Congress in the field of immigration and naturalization.

    Preserving the nation's limited financial resources for the use of its own people is a permissible and compelling governmental interest which may call for extreme hands. But any measure adopted to achieve such goals, be it extreme or mild, should not cast a burden or impose a requirement on those whom the government does not seek to regulate. To uphold such a measure by citing the “[p]lenary immigration power [which] was founded on the back of blatant racial discrimination” would be rubbing salt on an open wound. The onslaught of academic criticism directed against plenary power and the multitude of judicial exceptions contrived to bypass the doctrine have made the plenary power doctrine an “unsightly deposit[ ]” in the constitutional jurisprudence. IIRIRA's income requirement has the potential for further ossifying that constitutional oddity should the requirement withstand judicial scrutiny. Both IIRIRA's income requirement and the plenary power doctrine should be denounced by the courts.