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August 1, 2017

Former Justice Gerald Kogan, Justice Barbara Pariente, Judge Rosemary Barkett, and Justice Peggy Quince.
JUDGE ROSEMARY BARKETT, second from the right, laughs with colleagues, from the left, former Justice Gerald Kogan, Justice Barbara Pariente, and Justice Peggy Quince.

Keeping America’s promise to immigrants

By Jan Pudlow
Senior Editor

How the United States treats immigrants is deeply personal to Rosemary Barkett.

Born in Mexico of Syrian parents, Barkett’s family came to Miami when she was six and she was proud to become an American citizen.

“As an American, immigration and the treatment of immigrants is a topic that is very meaningful to me. As a Mexican and Syrian immigrant, the face of two of the people that have been recently maligned and defamed, it is even more meaningful to me. I hope that I, and my family, can serve as a reminder that being Mexican or Syrian or a member of any religion, does not automatically make one a terrorist or a threat to any country ­­— and that Mexicans, Syrians, or members of any ethnicity can become extremely good citizens of any adopted country,” said Barkett, a former chief justice of the Florida Supreme Court, and a former U.S, 11th Circuit Court of Appeals judge who joined the Iran-United States Claims Tribunal in The Hague in 2013.

Presently, she serves on the board of the ABA’s Rule of Law Initiative and chairs its Committee on the Middle East and North Africa Division. She has lectured in Kuwait, Dubai, Qatar, Damascus, Turkey, Algeria, China, Haiti, Khyrgystan, Mexico, Russia, Egypt, Tunisia, and Morocco.

On this occasion, Barkett was in Boca Raton, the lecturer at the Chester Bedell Foundation and the Bar’s Trial Lawyers and Criminal Law sections luncheon, on June 23 at the Bar’s Annual Convention. The topic of the annual Bedell lecture is always “the independence of the American lawyer.”

“Perhaps because of who I am and because of the time in which we now live, my focus landed on the fifth word of the topic of this annual speech: The Independence of the American Lawyer and what it means to be an independent American lawyer in our constitutional democracy.

“And I especially thought about what I thought it meant to be me: a Syrian, Mexican immigrant. . . . I grew up in a time and place where immigrants were proud to be immigrants and extremely proud to have become Americans,” Barkett said.

“Then as a lawyer and a judge, studying the Declaration of Independence and our Bill of Rights and applying them to actually enforce the principles upon which this country was founded made me even prouder to be part of this great experiment in government — a government that was built by immigrants, for the remarkable and actually expressed purposes of ‘establish[ing] justice’ and securing the ‘blessings of liberty to ourselves and our posterity.’

“From the time of our revolution in 1776 to the present — well, the almost present — we have continuously and publicly recognized that we are, uniquely, a land of immigrants and refugees dedicated to welcoming those from different nations, creeds, and cultures and protecting their rights to life, liberty, justice, and equality,” said Barkett.

As George Washington said in 1776: “The bosom of America is open to receive not only the opulent and respected stranger, but the oppressed and persecuted of all nations and religions; whom we shall welcome to a participation of all our rights and privileges.”

“But, having ideals does not blind us to the fact that we are also human and, thus, we know that upholding ideals is never easy,” acknowledged Barkett.

“No matter how good we are or try to be, history shows that we will be tempted to ignore our fundamental principles and our laws, or to bypass the ideals we may sometimes think are too hard to observe, especially in the name of public safety. It is the continuing effort to acknowledge and correct mistakes that makes a person or country great.

“Our continuing effort to rectify errors can be seen throughout our history in examples of great legal achievements that occurred, but only after astronomical failures.”

She listed some of those “astronomical failures” that took years to correct:

In 1939, when about 900 mostly Jewish refugees fleeing Nazi Germany begged for asylum in Miami, the United States rejected their ship, citing quota acts of 1921 and 1924.

In 1882, Congress passed the Chinese Exclusion Act, the first restriction on immigration into the U.S., supported and advanced by the Supreme Order of Caucasians, whose aim was to evict the Chinese just because they were Chinese.

During World War II, the Supreme Court’s decision in Korematsu v. United States upheld the authority of the government to imprison Japanese Americans — arbitrarily and indefinitely — solely on the basis of national origin.

“It took us until 1988, with the passage of the Civil Liberties Act, to formally recognize that the internment was meritless and based solely on ‘race prejudice, war hysteria, and a failure of political leadership,’” Barkett said.

“And now, although our own historical values coincide with our treaty commitments to grant asylum and to provide refuge to those who fear persecution or discrimination or death in their own countries, we are not meeting our obligations in either regard,” she said.

“Today, many asylum seekers are subjected to expedited removal or are indefinitely detained, effectively depriving them of their due process rights. Others are not even given the chance to request asylum in our country.

“And the problem of accepting and housing refugees has generated a worldwide crisis which cannot be ignored, simply because it may not be in our direct line of vision here in the United States.

“The magnitude of the problem for refugees fleeing death and terrifying conditions in war-torn countries or dangerous in other ways cannot possibly be exaggerated. Nor do I minimize the problems faced by countries attempting to balance liberty, justice, and equality with the safety of their citizens,” Barkett said.

“I wish I had the time to paint a clear picture, for example, of the thousands and thousands of children who have crossed alone into the United States, many of whom are entitled to asylum or refugee status, but are completely precluded from or cannot maneuver through the complex system we have established in order to obtain the legal remedies to which they may very well be entitled,” Barkett said.

“As lawyers, we have a distinctive vantage point and opportunity. We can combine our historical appreciation for inherently vulnerable classes, our unique knowledge of the law, and our access to the fora of legal change to raise these issues and fight for them and/or support those who do.”

Barkett quoted Republican Arizona Sen. John McCain’s May 2017 letter to The New York Times: “To view foreign policy as simply transactional is more dangerous than its proponents realize. Depriving the oppressed of a beacon of hope could lose us the world we have built and thrived in. It could cost our reputation in history as the nation distinct from all others in our achievements, our identity, and our enduring influence on mankind. Our values are central to all three.”

“I have loved the identity and reputation this country has held throughout the years — not because of our ‘might’ — but because we were created to establish justice and were made ‘from an ideal that liberty is the inalienable right of mankind,’” Barkett said.

“We have promised in many ways to assure that liberty to those who face persecution, torture, or death in their countries,” Barkett said.

“I think we should keep our promises.”

[Revised: 07-18-2018]