Our Illegal Founders

This Essay briefly mines America’s history to argue that the law setting forth where our national borders are and how strictly we patrol them has always been subject to the vagaries of politics, economics, and perception. Illegal (im)migration has long been part of our migration history, engaged in not just by Latin American border crossers, but also by prominent colonists, giving the lie to the claim that upholding border laws should always be sacrosanct. In many school districts today, the usual summary of American history from our childhood civics classes no longer bypasses the uncomfortable truths of conquest and westward expansion by Anglo-Protestant settlers to the detriment of Native Americans and Mexicans. However, not often is this story described as a parable of illegal immigration

Immigration Law, Contracts, and Due Process: A Response to Professor Won Kidane’s Review of \u3cem\u3eEveryday Law for Immigrants\u3c/em\u3e

Professor Won Kidane has done me a great honor by reviewing Everyday Law for Immigrants. Authors pray their work is not ignored; they can only dream that colleagues will take it seriously. From that viewpoint, Professor Kidane has blessed me twice. The Seattle University Law Review has also graciously allowed me an opportunity to respond to his thoughtful critique. That Professor Kidane found seeds for scholarly discourse within a book intended primarily for nonacademics is a testament to his comprehensive understanding of U.S. immigration law and how it functions on the ground. This brief response will focus on two interrelated themes that arise out of the “immigration as contract” motif. First, I examine Professor Kidane’s claim that current U.S. immigration policy operates more like a unilateral or adhesion contract than a bilateral one. Second, I explore the notion that due process is at risk when one views immigration policy through a contract prism

Interrogating Iqbal: Intent, Inertia, and (a lack of) Imagination

In Ashcroft v. Iqbal, the Court reaffirmed the long-standing equal protection doctrine that government actors can only be held liable for discriminatory conduct when they purposefully rely on a forbidden characteristic, such as race or gender, in promulgating policy; to simply know that minorities and women will be adversely affected by the law does not deny these groups equal protection under the law. This Essay interrogates this doctrine by taking a closer look at Iqbal and Feeney, the thirty-year-old precedent the majority cited as the source of its antidiscrimination standard. Because Feeney was cited in neither of the lower court opinions, its reappearance in Iqbal signals the Court\u27s reluctance to intervene in matters (even tangentially) related to national security even if the government\u27s allocation of burdens and benefits perpetuates societal racial and gender privileges. In Feeney, the Court upheld a Massachusetts law granting benefits to war veterans, even though the state legislature was aware that less than two percent of the veterans at the time were women, owing in part to women\u27s exclusion from military service; thirty years later, the Iqbal Court dismissed constitutional claims against two high ranking federal officials responsible for orchestrating modern-day round-ups of noncitizens from so-called terrorist-breeding states, even though these officials knew their policies would disproportionately burden individuals of a certain racial, religious, and citizenship background. Both cases illustrate the inertia that has befallen the Court as it appears unwilling to engage in the traditional balancing of government interests against individual rights on the theory that the disaffected minorities must essentially prove that lawmakers bore them the equivalent of ill will or animus-in Feeney\u27s words, reiterated verbatim in Iqbal: that the decisionmakers chose a course of action because of not merely in spite of [the action\u27s] adverse effects upon an identifiable group. By taking a closer look at the challenged laws in Feeney and Iqbal, by examining the Court\u27s choice to defer to the political branches\u27 decisions to press ahead despite the laws\u27 effects upon minority groups, and by reminding ourselves of times when the Court\u27s imagination and innovative thinking stretched beyond the confines of formal rational basis review, this Essay explores the limits inherent in deferring to political actors, especially when we know they are consciously perpetuating privilege, furthering discrimination by default. Even in matters that arguably relate to national security and foreign policy, the Court should never shirk its responsibility to closely scrutinize discriminatory governmental policies that were deliberately adopted

Reading (into) Windsor: Presidential Leadership, Marriage Equality, and Immigration Policy

Following the demise of the federal Defense of Marriage Act in United States v. Windsor, the Obama Administration directed a bold, equality-based reading of Windsor to immigration law, treating bi-national same-sex couples the same as opposite-sex couples. This Essay argues that the President\u27s interpretation is both constitutionally and politically sound: Constitutionally, because it comports with the Executive\u27s power to enforce immigration law and to guarantee equal protection under the law; and politically, because it reflects the current, increasingly tolerant view of marriage equality. Though still in its infancy, President Obama\u27s policy of treating same-sex beneficiary petitions generally the same as opposite-sex ones is a model of presidential leadership on what would otherwise be a controversial issue. While some might be concerned that the executive branch is overstepping its bounds by creating a de facto national immigration policy in the absence of specific congressional fiat and in the midst of a robust national debate over marriage equality, President Obama\u27s directive embraces the promise of integrative egalitarianism, the hallmark of our post-Brown equality jurisprudence, by setting forth an inclusive, uniform federal policy that enhances, rather than diminishes, equality for all

Race, Immigration, and the Department of Homeland Security

Despite the wisdom of separating the service and enforcement functions of our immigration bureau, the new tripartite system under the auspices of the Department of Homeland Security risks fueling the immigrant Arab as terrorist stereotype, rather than helping to re-establish the reality that noncitizen terrorists, like U.S. citizen ones, are a rare species

Asians, Gay Marriage, and Immigration: Family Unification at a Crossroads

Family unification has long been a significant component of U.S. immigration policy, and the Asian Pacific American (APA) community has long been a champion of laws that strengthen America\u27s commitment to this goal. The recent emergence of same-gender marriages among state and local governments has caused society to consider more closely its definition of the family, challenging the traditional notion that only civil unions between heterosexuals should be celebrated. But because U.S. immigration law does not include a gay or lesbian partner within its statutory definition of spouse, binational same-gender couples may not legally remain in the country together, even if they have been married under favorable domestic or foreign law. Aside from burdening the close to 36,000 binational same-gender couples in the nation today, restrictive U.S. immigration policies pose a particular dilemma to APAs who otherwise advocate family unity, yet embrace more traditional notions of the family. That is because traditional conceptions of marriage and the family may wreak havoc on the approximately 16,000 binational couples in which the foreign partner is Asian. APAs who clamor for family-friendly immigration policies but temper their advocacy with tradition create a risk of deportation for thousands of gay and lesbian Asian immigrants with whom they should seek to build coalitions. Advocating a traditional view of family unity thus endangers the immigration status of tens of thousands of Asian gays and lesbians, undermining claims to family unification the APA community has long valued

Reading (into) Windsor: Presidential Leadership, Marriage Equality, and Immigration Policy

Following the demise of the federal Defense of Marriage Act in United States v. Windsor, the Obama Administration directed a bold, equality-based reading of Windsor to immigration law, treating bi-national same-sex couples the same as opposite-sex couples. This Essay argues that the President\u27s interpretation is both constitutionally and politically sound: Constitutionally, because it comports with the Executive\u27s power to enforce immigration law and to guarantee equal protection under the law; and politically, because it reflects the current, increasingly tolerant view of marriage equality. Though still in its infancy, President Obama\u27s policy of treating same-sex beneficiary petitions generally the same as opposite-sex ones is a model of presidential leadership on what would otherwise be a controversial issue. While some might be concerned that the executive branch is overstepping its bounds by creating a de facto national immigration policy in the absence of specific congressional fiat and in the midst of a robust national debate over marriage equality, President Obama\u27s directive embraces the promise of integrative egalitarianism, the hallmark of our post-Brown equality jurisprudence, by setting forth an inclusive, uniform federal policy that enhances, rather than diminishes, equality for all