Loving across borders: Immigration law and the limits of Loving

Wisconsin Law Review

Volumn 2007, Issue 2, 2007, Pages 345-378

  Chacón, Jennifer M ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 38149023442     PISSN: 0043650X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (247)

1. Loving v. Virginia, 388 U.S. 1, 11 (1967).
2. Id. at 4-5 & n.4.
3. See id. at 10.
4. See id. at 6-7.
5. Id. at 11.
6. See id. at 12.
7. Id. at 6.
8. Id. at 11.
9. Rene Galindo & Jami Vigil, Are Anti-Immigrant Statements Racist or Nativist? What Difference Does it Make?, 4 LATINO STUD. 419, 422 (2006)
10. (citing JOHN HIGHAM, STRANGERS IN THE LAND 4 (1955)).
11. Id.
12. Id. at 425.
13. Immigration Act of 1924, Pub. L. No. 68-139, eh. 190, §§ 4-5, 443 Stat. 153, 155 (defining "quota" and "non-quota" immigrants).
14. Because all sex outside of marriage was illegal, prohibitions on marriage operated in conjunction with other criminal-law provisions to serve as absolute prohibitions on interracial sexual relations. See, e.g., VA. CODE ANN. § 18.2-344 (2004), invalidated by Martin v. Ziherl, 607 S.E.2d 367 (Va. 2005) ("Any person, not being married, who voluntarily shall have sexual intercourse with any other person, shall be guilty of fornication, punishable as a Class 4 misdemeanor.") Virginia's criminalization of sex outside of marriage was not declared unconstitutional until two years ago. See Martin, 607 S.E.2d 367.
15. See Act of Oct. 3, 1965, Pub. L. 89-236, 79 Stat. 911 (codified as amended at 18 U.S.C. §§ 1101-1537 (2000)). The Act raised the annual ceiling on immigration to 290,000 and allocated 170,000 of those slots to Europe, Asia and Africa, with caps of 20,000 per country. See id. §§ 1, 2, 21(e). It also allocated 120,000 slots to the Western Hemisphere, with no individual country caps. Id. § 21(e).
16. Loving v. Virginia, 388 U.S. 1, 12 (1967).
17. Id. (quoting Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)).
18. 381 U.S. 479, 485 (1965).
19. See Loving, 388 U.S. at 12 ("Under our Constitution, the freedom to marry or not marry, a person of another race resides with the individual and cannot be infringed by the State."); Griswold, 381 U.S. at 485-86 ("Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.").
20. 431 U.S. 494, 499 (1977) (quoting Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-640 (1974)). The Moore Court reasoned that the Constitution's due process protections prevented a state from enacting a zoning ordinance that prohibited Inez Moore from sharing a home with her two grandsons, who were first cousins. "When the government intrudes on the choices concerning family living arrangements this court must examine carefully the importance of the governmental interest advanced and the extent to which they are served by the challenged regulation." Id. The Court then cited to a "host of cases" acknowledging a "private realm of family life in which the state cannot enter." See id.
21. See, e.g., id.
22. Gerald E. Neuman, Discretionary Deportation, 20 GEO. IMM. L.J. 611, 622-23 (2006) ("U.S. constitutional law . . . has not imposed substantial constraints on deportation in the name of substantive due process family unity rights of aliens or citizens.");
23. see also Linda Kelly, Family Planning, American Style, 52 ALA. L. REV. 943, 959-60 (2001) (arguing that the more expansive definition of "family" articulated in Moore should guide immigration laws' family-reunification provisions, but noting that it does not);
24. Enid Trucios-Haynes, "Family Values" 1990's Style: U.S. Immigration Reform Proposals and the Abandonment of the Family, 36 BRANDEIS J. FAM. L. 241, 246 (1997) (arguing that the "depressing insensitivity" of the Cleveland ordinance struck down in Moore is evidenced in immigration laws' nuclear-family requirements for reunification);
25. Linda Kelly, Preserving the Fundamental Right to Family Unity: Championing the Notion of Social Control and Community Ties in the Battle of Plenary Powers Versus Aliens' Rights, 41 VILL. L. REV. 725, 741-42, 773-76 (1996) [hereinafter Kelly, Family Unity] (noting that Congress need only give a facially legitimate and bona fide reason for discrimination in immigration laws, but arguing that the Moore standard should apply to family-reunification issues in immigration);
26. Kiyuko Matsumoto-Powers, Aliens, Resident Aliens, and U.S. Citizens in the Never-Never Land of the Immigration and Nationality Act, 15 U. HAW. L. REV. 61, 64-80 (1993) (arguing that provisions in the Immigration Marriage Fraud Amendment violate the constitutional right to marital privacy);
27. John Guendelsberger, Implementing Family Unification Rights in American Immigration Law: Proposed Amendments, 25 SAN DIEGO L. REV. 253, 269-73 (1988) (arguing that the Moore principles should apply to immigration laws governing family unification).
28. For a discussion of the ways in which contemporary immigration laws regulate courtship, marriage, and divorce, see Kerry Abrams, Immigration Law and the Regulation of Marriage, 91 MINN. L. REV. 1625, 1642 (2007) ("Ultimately, Congress is free to pass immigration legislation that discriminates based on marriage, that discriminates between types of marriages, or that even refuses to recognize marriage for immigration purposes.").
29. Act of Mar. 3, 1875, ch. 141, 18 Stat. 477 (repealed 1974); see also Kerry Abrams, Polygamy, Prostitution, and the Federalization of Immigration Law, 105 COLUM. L. REV. 641, 690-98 (2005) (describing the passage of the Page Law).
30. See Alien Prostitution Importation Act § 3.
31. See Abrams, supra note 22, at 690; see also BILL ONG HING, MAKING AND REMAKING ASIAN AMERICA THROUGH IMMIGRATION POLICY 1850-1990, at 36 (1993).
32. HING, supra note 24 at 44-45.
33. See infra Part IV (discussing the impact of these exclusionary laws).
34. See Act of May 6, 1882, ch. 126, 22 Stat. 58 (1882). This Act was not repealed until 1943. See Act of Dec. 17, 1943, 57 Stat. 600 (1943); see also CHARLES GORDON ET AL., 1 IMMIGRATION LAW AND PROCEDURE §2.02[2] (2006).
35. The Chinese Exclusion Case, 130 U.S. 581, 606-07 (1889).
36. Id. at 609 ("The power of exclusion of foreigners being an incident of sovereignty . . . cannot be granted away or restrained on behalf of any one. . . . Nor can [the federal government's power in this regard] be hampered, when needed for the public good, by any considerations of private interest.").
37. The Immigration and Nationality Act uses "alien" to signify individuals who are neither citizens nor nationals of the United States. 8 U.S.C. § 1101(a)(3) (2000). The term, however, is frequently employed as a rhetorical device signaling a normative judgment about the outsider status of a particular individual. See Kevin R. Johnson, "Aliens" and the U.S. Immigration Laws: The Social and Legal Construction of Nonpersons, 28 U. MIAMI INTER-AM. L. REV. 263 (1997);
38. Gerald L. Neuman, Aliens as Outlaws: Government Services, Proposition 187, and the Structure of Equal Protection Doctrine, 42 UCLA L. REV. 1425, 1428 (1995).
39. The term "illegal aliens" lacks any grounding in law, and also has pejorative connotations. See Jennifer M. Chacón, Unsecured Borders, 39 CONN. L. REV. (forthcoming 2007); Neuman, supra, at 1440-42;
40. cf. MAE M. NGAI, IMPOSSIBLE SUBJECTS: ILLEGAL ALIENS AND THE MAKING OF MODERN AMERICA, at xix-xx (2004) (explaining the decision to use the term "illegal alien" as part of a larger project to understand the origins of the representations suggested by the term). This Article uses the term "undocumented noncitizen" or "unauthorized migrants" to refer to individuals present in the United States without official authorization.
41. 149 U.S. 698, 730-31 (1893).
42. Id. at 711.
43. The Japanese were initially exempt from this bar as a result of the "so-called Gentleman's Agreement" between the United States and Japan. GORDON ET AL., supra note 27, § 2.02[3]; BILL ONG HING, TO BE AN AMERICAN 18 (1997) (noting that Congress had already curtailed Japanese immigration in 1907). Congress, however, added them to the statutory-exclusion list in 1924.
44. Leti Volpp, Divesting Citizenship: On Asian American History and the Loss of Citizenship Through Marriage, 53 UCLA L. REV. 405, 414 (2005).
45. See Volpp, supra note 33, at 414 (noting that the Asiatic Barred Zone spanned from Afghanistan in the Middle East across the entire Pacific, but excluded the Philippines, which was a United States colony); GORDON ET AL., supra note 27, § 2.02[3].
46. IAN F. HANEY LÓPEZ, WHIITE BY LAW: THE LEGAL CONSTRUCTION OF RACE 15 (1996).
47. Loving v. Virginia, 388 U.S. 1, 6 (1967).
48. Immigration Act of 1924, Pub. L. No. 68-139, 43 Stat. 153. This Act was named for Representative Albert Johnson (R-WA) and Senator David Reed (R-PA). See NGAI, supra note 30, at 276 n.4.
49. See NGAI, supra note 30, at 24 (describing testimony at the congressional hearings regarding racial superiority).
50. See id.
51. Id. at 27.
52. Id. at 23.
53. See id. at 25.
54. Id. at 27.
55. See id.
56. See id.
57. See Immigration Act of 1924 § 28(c), 43 Stat. 153, 168.
58. NGAI, supra note 30, at 66. Contemporary calls to secure the United States from terrorist infiltration by focusing on the U.S.-Mexico border parallel this rationale. See, e.g., PATRICK J. BUCHANAN, STATE OF EMERGENCY 15-18 (implying that terrorists are infiltrating the United States through the U.S.-Mexico border).
59. See NGAI, supra note 30, at 59.
60. Id. at 68; see also DAVID DORADO ROMO, RINGSIDE SEAT TO A REVOLUTION: AN UNDERGROUND CULTURAL HISTORY OF EL PASO AND JUÁREZ: 1893-1923, at 229 (2005) (noting the process of delousing that occurred at the El Paso border crossing).
61. See NGAI, supra note 30, at 50.
62. Mae M. Ngai, The Strange Career of the Illegal Alien: Immigration Restriction and Deportation Policy in the United States, 1921-1965, 21 LAW & HIST. REV. 69, 88 (2003) ("By the early 1930s the service was apprehending nearly five times as many suspected illegal aliens in the Mexican border area as it did in the Canadian border area. The Los Angeles newspaper La Opinión believed the aggressive deportation policy would result in a 'de-Mexicanization of southern California.'" (citation omitted)). Although the quota system did not bar Mexicans from entry, they were often unable to pass the required literacy test or pay the entry fees. NGAI, supra note 30, at 54-55;
63. Kelly Lytle Hernández, The Crimes and Consequences of Illegal Immigration: A Cross-Border Examination of Operation Wetback, 1943-1954, W. HIST. Q., Winter 2006, at 5 ("[The] inability to pay U.S. immigration fees and/or pass literacy exams often forced [poor Mexicans] to surreptitiously cross the border in violation of U.S. immigration law.")
64. See NGAI, supra note 30, at 7.
65. Id. at 58. The racialization of Mexicans is also part of contemporary nativist views on immigration. See, e.g., BUCHANAN, supra note 47, at 135 ("Not only do Mexicans come from a different culture, they are, 85 percent of them, mestizo or Amerindian. History teaches us that separate races take even longer to integrate.").
66. Daniel Kanstroom, Deportation, Social Control and Punishment: Some Thoughts About Why Hard Laws Make Bad Cases, 113 HARV. L. REV. 1889, 1908-10 (2000) (discussing the border-control function of early deportation measures).
67. NGAI, supra note 30, at 58-60.
68. See id. at 59.
69. See id. at 59-60; see also DAVID COLE, ENEMY ALIENS: DOUBLE STANDARDS AND CONSTITUTIONAL FREEDOMS IN THE WAR ON TERRORISM 107-09 (2003) (discussing the expansion of deportation grounds in the early 1900s); Kanstroom, supra note 54, at 1901-02 (discussing the evolution of deportation from a means of border control to a means of social control);
70. Robert Pauw, A New Look at Deportation as Punishment: Why at Least Some of the Constitution's Criminal Procedure Protections Must Apply, 52 ADMIN. L. REV. 305, 309-13 (2000) (discussing the application of "constitutional safeguards" to deportation).
71. See NGAI, supra note 30, at 78-80.
72. See id. at 86.
73. See id.
74. See id. at 86-87.
75. See id. at 87.
76. See infra Part IV.
77. See, e.g., Yamataya v. Fisher (The Japanese Immigrant Case), 189 U.S. 86, 100-02 (1903) (noting the applicability of due process protections in the deportation of a noncitizen who had entered the United States four days earlier); Zadvydas v. Davis, 533 U.S. 678, 682 (2001) (striking down the indefinite detention of a resident noncitizen on due process grounds); Landon v. Plasencia, 459 U.S. 21, 36 (1982). But see Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 216 (1953) (rejecting a due process challenge to the indefinite confinement on Ellis Island of a noncitizen in exclusion proceedings); Demore v. Kim, 538 U.S. 510, 513 (2003) (rejecting a due process challenge to the mandatory detention of certain removable resident noncitizens).
78. Neuman, supra note 21, at 638 (noting the plenary powers doctrine's denial of substantive due process constraints on deportation); see also Charles D. Weisselberg, The Exclusion and Detention of Aliens: Lessons from the Lives of Ellen Knauffand Ignatz Mezei, 143 U. PA. L. REV. 933 (1995) (discussing how the plenary powers doctrine trumps contemporary substantive due process norms in the exclusion of noncitizens). Notably, outside of the immigration context, the Court has extended the Fourteenth Amendment guarantees that form half of Loving's core to noncitizens. The 1886 decision Yick Wo v. Hopkins marked the Court's first explicit ruling that some constitutional rights apply not only to citizens, but also to aliens in the United States. 118 U.S. 356 (1886). The Court held that the discriminatory application of a city ordinance which prevented aliens of Chinese descent from operating commercial laundries was a violation of the Equal Protection Clause. See id. at 368-69; see also Plyler v. Doe, 457 U.S. 202 (1982).
79. 262 U.S. 390, 399 (1923); see also Kelly, Family Unity, supra note 21, at 776-77; Abrams, supra note 21, at 1642 (noting that Congress's plenary power over immigration extends to the regulation of family).
80. Stephen H. Legomsky, Immigration Law and the Principle of Plenary Congressional Power, 1984 SUP. CT. REV. 255, 255 (1984).
81. But see Hiroshi Motomura, The Curious Evolution of Immigration Law: Procedural Surrogates for Substantive Constitutional Rights, 92 COLUM. L. REV. 1625, 1699-1700 (1992) (arguing that some noncitizens' equal protection claims have been successfully adjudicated as procedural due process claims).
82. Gabriel J. Chin, Segregation's Last Stronghold: Race Discrimination and the Constitutional Law of Immigration, 46 UCLA L. REV. 1 (1998).
83. ARISTED R. ZOLBERG, A NATION BY DESIGN: IMMIGRATION POLICY IN THE FASHIONING OF AMERICA 86 (2006) (discussing the terms of the Naturalization Act of 1790 and noting that the requirement of whiteness was "[p]erennially restated in subsequent legislation down to the Civil War").
84. Id; see also The Dred Scott Case, 60 U.S. 393, 404-07 (concluding that free blacks could never be U.S. citizens and that at the country's inception they "had no rights which the white man was bound to respect").
85. ZOLBERG, supra note 69, at 86.
86. Id. at 86-87.
87. Act of Feb. 10, 1855, ch. 71, § 2, 10 Stat. 604.
88. See id. § 1; Volpp, supra note 33, at 422.
89. Kelly v. Owen, 74 U.S. (7 Wall.) 496, 498 (1868).
90. LÓPEZ, supra note 35, at 35; see also KEVIN R. JOHNSON, THE "HUDDLED MASSES" MYTH: IMMIGRATION AND CIVIL RIGHTS 134 (2004).
91. Of course, even for white women, the benefits of citizenship were tightly circumscribed, since women did not have a constitutional right to vote until the passage of the Nineteenth Amendment in 1920. See U.S. CONST. amend. XIX; see also JUDITH N. SHKLAR, AMERICAN CITIZENSHIP 57-62 (1991) (discussing this disenfranchisement as an effective deprivation of citizenship).
92. Act of Mar. 2, 1907, Pub. L. No. 59-193, § 3, 34 Stat. 1228, 1228-29; see also LÓPEZ, supra note 35, at 47. Up until the passage of the law, courts had been split on this issue. See Volpp, supra note 33, at 424-25.
93. 239 U.S. 299 (1915). For a discussion of the case, see JOHNSON, supra note 76, at 135-36; see also Kevin R. Johnson, Racial Restrictions on Naturalization: The Recurring Intersection of Race and Gender in Immigration and Citizenship Law, 11 BERKELEY WOMEN'S L.J. 142, 161-62 (1996) (reviewing LÓPEZ, supra note 35).
94. Act of Sept. 22, 1922, Pub. L. No. 67-346, § 4, 42 Stat. 1021, 1022.
95. See id. § 3; see also LÓPEZ, supra note 35, at 47; Volpp, supra note 33, at 433-35. It was not until 1936 that women who had lost U.S. citizenship due to marriage between 1907 and 1922, but whose marriage had ended, could file applications to resume citizenship. Id. at 446-47 (citing Act of June 25, 1936, Pub. L. No. 74-793, 49 Stat. 1917).
96. Cf. Mackenzie, 239 U.S. at 312.
97. LÓPEZ, supra note 35, at 47.
98. Id. (citing Ex parte (Ng) Fung Sing, 6 F.2d 670 (W.D. Wash. 1925) (upholding the exclusion of a Chinese-American woman who lost her citizenship and was expatriated for marrying a Chinese citizen)). See generally Volpp, supra note 33, at 424-31.
99. See Leti Volpp, American Mestizo: Filipinos and Antimiscegenation Laws in California, 33 U.C. DAVIS L. REV. 795, 822 (2000) (describing the efforts by the California Joint Immigration Committee to support two proposed Senate bills amending the antimiscegenation statute to include the prohibition of marriages between "Malays" and Caucasians, and noting that the Senate later adopted both bills unanimously).
100. See, e.g., Loving v. Virginia, 388 U.S. 1, 6-7 (1967); supra notes 9-10 (discussing the Supreme Court's mention of "extreme nativism" following the end of World War I).
101. Act of Oct. 3, 1965, Pub. L. 89-236, 79 Stat. 911 (1965) (codified as amended at 18 U.S.C. §§ 1101-1504 (2000)); see also GORDON ET AL., supra note 27, at § 2.04[3].
102. 388 U.S. at 12.
103. See 8 U.S.C. §§ 1151-53 (2000).
104. See id.
105. See id. § 1151(b).
106. See id. § 1153(a). The statute does not provide for reunification for the married sons and daughters of LPRs or the brothers and sisters of LPRs. Id.
107. See id. § 1153(a).
108. See, e.g., id. § 1101(a)(15)(F)(ii) (accompanying student-visa holder); Id. § 1101(a)(15)(H)(iii) (accompanying specialized-worker-visa holder); Id. § 1101(a)(15)(J) (accompanying academic-visa holder); Id. § 1101 (a)(15)(O)(iii) (accompanying visa holder with extraordinary ability in the sciences, arts, education, business, or athletics); Id. § 1101(a)(15)(P)(iv) (accompanying artist-and-entertainer visa holder).
109. BILL ONG HING, DEPORTING OUR SOULS: VALUES, MORALITY, AND IMMIGRATION POLICY 119 (2006).
110. Id. at 120-21.
111. See, e.g., The Nuclear Family Priority Act, H.R. 938, 110th Cong. (2007) (proposing a reduction in the number of family-sponsored immigrants); MIGRATION POLICY INST., IMMIGRATION AND AMERICA'S FUTURE: A NEW CHAPTER: REPORT OF THE INDEPENDENT TASK FORCE ON IMMIGRATION AND AMERICA'S FUTURE 41 (2006) ("[I]t would be prudent to reexamine the continued viability of the current category of siblings of U.S. citizens.");
112. Kelly, Family Unity, supra note 21, at 725-26 (describing Representative Lamar Smith's 1995 proposal to "reduce[e] family sponsored visas from 480,000 to 330,000");
113. STEPHEN H. LEGOMSKY, IMMIGRATION AND REFUGEE LAW AND POLICY 290 (4th ed. 2005) (describing the 1995 Jordon Commission recommendation to repeal "the family sponsored 1st, 2B, 3rd, and 4th preferences").
114. See HING, supra note 95, at 125 (critiquing this analysis); see also MIGRATION POLICY INST., supra note 97, at 41 (proposing the elimination of the preference category for siblings, and suggesting that "many of those who qualify for this category may be able to immigrate faster to the United States through the new and expanded provisional and permanent employment-based categories"). But see Bill Ong Hing, Dissenting Comments, in IMMIGRATION AND AMERICA'S FUTURE: A NEW CHAPTER, supra note 97, at 151, 151 ("[The] claim is that to help the economy, more jobs and skilled-based criteria should be used. My position is that the nation and its employers would continue to do quite well economically by expanding the family numbers throughout all categories.").
115. See MIGRATION POLICY INST., supra note 97, at 31 ("Over the past five years, just under two thirds of immigrants have been sponsored by US citizen family members.").
116. BUREAU OF CONSULAR AFFAIRS, U.S. DEP'T OF STATE, VISA BULLETIN NO. 105, at VIII (2007), http://travel.state.gov/visa/frvi/bulletin/bulletin_3219.html.
117. Id.
118. Id.
119. Id.
120. Id.
121. Id. For example, a U.S. citizen hoping to acquire a visa for a sibling in the Philippines waited twenty-two years before the sibling's visa status became current. See id. The period was thirteen years if the sibling was coming from Mexico, twelve years if the sibling was coming from China, and eleven years if the sibling was coming from anywhere else in the world. See id.
122. See 8 U.S.C. § 1101(b)(1) (2000)
123. See GERALD GUNTHER & KATHLEEN M. SULLIVAN, CONSTITUTIONAL LAW 681-720 (14th ed. 2001) (discussing gender and legitimacy as classifications requiring a more substantial government interest than that required for rational basis review, and also requiring a closer relationship between the challenged classification and that interest).
124. See, e.g., Miller v. Albright, 523 U.S. 420, 424 (1998) (upholding a naturalization statute that discriminated on the basis of gender); Fiallo v. Bell, 430 U.S. 787 (1977) (upholding an immigration provision that discriminated on the basis of sex and legitimacy). In Nguyen v. INS, 533 U.S. 53 (2001), the Court actually purported to apply intermediate scrutiny, but still upheld a discriminatory citizenship provisions. 533 U.S. 53 (2001).
125. See United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 113. Article 3 of the Torture Convention mandates that signatory states shall not return a person to a country in which there is a substantial likelihood that the person will be tortured. See id. at 114.
126. See Lori A. Nessel, Forced to Choose: Torture, Family Reunification and United States Immigration Policy, 78 TEMP. L. REV. 897, 899 (2005).
127. Hiroshi Motomura, The Family and Immigration: A Roadmap for the Ruritanian Lawmaker, 43 AM. J. COMP. L. 511, 517 (1995) (citing United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950)).
128. See 8 U.S.C. §§ 1151(b)(2)(A)(i), 1153(a)(2)(A) (2000).
129. See, e.g., Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982) (finding that Congress intended to "confer spouse status under section 201(b) [of the INA] only upon the parties to heterosexual marriages" and that this policy "has a rational basis and therefore comports with the due process clause and its equal protection requirements"). For critiques of Adams, see Christopher A. Dueñas, Note, Coming to America: The Immigration Obstacles Facing Binational Same-Sex Couples, 73 S. CAL. L. REV. 811, 821-23 (2000) (arguing that immigration laws should recognize same-sex marriages);
130. see also Victor C Romero, The Selective Deportation of Same-Gender Partners: In Search of the "Rara Avis, " 56 U. MIAMI L. REV. 537 (2002);
131. Victor C Romero, Asians, Gay Marriage, and Immigration: Family Unification at a Crossroads, 15 IND. INT'L & COMP. L. REV. 337 (2005) (tracing the anti-Asian and antigay history of U.S. immigration policies); JOHNSON, supra note 76, at 140-51 (describing the ways that immigration laws discriminates against gays and lesbians).
132. But see Michael A. Scaperlanda, Kulturkampf in the Backwaters: Homosexuality and Immigration Law, 11 WIDENER J. PUB. L. 475 (2002) (arguing against the recognition of same-sex spouses in immigration law).
133. Adams, 673 F.2d at 1038.
134. Id. In denying the visa petition, the INS was less legalistic in framing the issue. The letter they initially wrote to Adams gave this reason for the denial: "You have failed to establish that a bona fide marital relationship can exist between two faggots." LEGOMSKY, supra note 97, at 260.
135. Forty-one states currently have statutes defining marriage as existing only between a man and a woman. See Nat'l Conference of State Legislatures, Same Sex Marriage, Civil Unions, and Domestic Partnerships, June 2007, http://www.ncsl.org/programs/cyf/samesex.htm. Twenty-seven states have defined marriage in their constitutions. See id.
136. See Victor C. Romero, Crossing Borders: Loving v. Virginia as a Story of Migration, 51 HOWARD L.J (forthcoming Fall 2007) (discussing Tony Sullivan's choice to live in the United States without legal authorization in the aftermath of his case). See generally HUMAN RIGHTS WATCH, FAMILY, UNVALUED: DISCRIMINATION, DENIAL, AND THE FATE OF BINATIONAL SAME-SEX COUPLES UNDER U.S. LAW (2006).
137. 539 U.S. 558 (2003).
138. See generally Romero, supra note 117 (exploring the parallels between the migration stories of the Lovings and same-sex couples like Adams and Sullivan).
139. See supra Part III.B (discussing family-sponsored visas and wait times).
140. JEFFREY S. PASSEL, PEW HISPANIC CTR., SIZE AND CHARACTERISTICS OF THE UNAUTHORIZED MIGRANT POPULATION IN THE U.S., at i (2006), http://pewhispanic.org/files/reports/61.pdf ("There were an estimated 6.2 million unauthorized Mexican Migrants in 2005, or 56% of the unauthorized population.") An additional twenty-two percent of the undocumented population comes from other countries in Latin America. Id. at ii.
141. See 8 U.S.C. § 1255(c) (2000); see also David B. Thronson, Of Borders and Best Interests: Examining the Experiences of Undocumented Immigrants in U.S. Family Courts, 11 TEX. HISP. J.L. & POL'Y 45, 51-52 (2005) (discussing the recent evolution of barriers to the adjustment of status for unauthorized migrants).
142. 8 U.S.C. § 1255(i) (1994). The measure was enacted on a temporary basis. Pub. L. 103-317 § 506(b), 108 Stat. 1724, 1765-66 (Aug. 26, 1994).
143. See LEGOMSKY, supra note 97, at 492.
144. 8 U.S.C. § 1255(i) (2000); see also Thronson, supra note 122, at 51.
145. See 8 U.S.C. §§ 1255, 1255a; see also LEGOMSKY, supra note 97, at 490.
146. See Mireya Navarro, Immigration, a Love Story, N.Y. TIMES, Nov. 12, 2006, § 9, at 1. Navarro's article provides an anecdote of one of the families that has been caught in this legal trap. She writes Mr. Harrell and Ms. Molina, both 35, married in 2001, in a large wedding attended by family from both sides and blessed by pastors in English and Spanish. But the Harrells no longer live together, not because of divorce, but because Mrs. Harrell, now the mother of two sons and four months pregnant with their third child, has been deported. She had applied for legal residency, or a green card, with her new husband as her sponsor . . . but she was sent back to Honduras 20 months ago because of her illegal entries and told she would have to wait 10 years to try again.
147. Id. Mr. Harrell ultimately moved to Honduras to be with his wife and children. Id. For additional anecdotal evidence, see Patrick McGee, Immigration Laws Hit Home for Frustrated Mansfield Family, FORT WORTH STAR-TELEGRAM, Dec. 10, 2006, at A1 (recounting the story of a Mexican national separated from his U.S.-citizen wife and child, due to his detention and pending removal for his illegal entry); Lino v. Gonzalez, 467 F.3d 1077 (7th Cir. 2006) (affirming the reinstatement of a removal order of a Mexican national with a U.S.-citizen husband and three U.S.-citizen daughters); Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007) (en banc) (affirming the reinstatement of a removal order without a hearing of Mexican national with U.S. citizen wife).
148. See 8 U.S.C. § 1182(a)(9)(B)(i).
149. Id. § 1182(a)(9)(B)(i)(II).
150. For example, those who are removed on the basis of their commission of an "aggravated felony" may never lawfully reenter the country. Id. § 1182(a)(9)(A)(i). "Aggravated felons" may sound like a limited category, but in fact it includes people who have committed one of a variety of minor offenses, such as misdemeanor second-degree burglary. See James F. Smith, United States Immigration Law as We Know It: El Clandestino, The American Gulag, Rounding Up the Usual Suspects, 38 U.C. DAVIS L. REV. 747, 755 & n.20 (2005);
151. see also Nancy Morawetz, Introduction to Symposium on Immigration and Criminal Law, 4 N.Y. CITY L. REV. 3, 5 (2002) (noting that misdemeanor theft may qualify as an aggravated felony).
152. See, e.g., 8 U.S.C. § 1182 (i), (a)(3)(D)(iv), (h)(1)(B). Discretionary waivers may be available to certain spouses, for example. See Abrams, supra note 21, at 1635-36 & nn. 36-37.
153. HING, supra note 95, at 70-87 (providing numerous examples of LPRs removed despite substantial family ties and lengthy U.S. residence); Nancy Morawetz, Understanding the Impact of the 1996 Deportation Laws and the Limited Scope of Proposed Reforms, 113 HARV. L. REV. 1936, 1952 (2000) (providing examples of LPRs removed despite substantial family ties); see also Olowo v. Ashcroft, 368 F.3d 692, 695 (7th Cir. 2004) (affirming the removal order of an LPR who argued that her nine-year-old citizen daughters would be subject to genital mutilation in Nigeria).
154. For a discussion of the Olowo case, see David B. Thronson, Choiceless Choices: Deportation and the Parent-Child Relationship, 6 NEV. L.J. 1165, 1168-70, 1207-13 (2006).
155. See, e.g., Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132 §§ 435, 440(e), 110 Stat. 1214, 1274-77 (codified as amended at 8 U.S.C. § 1101 (2000)) (expanding "crimes of moral turpitude" to convictions with sentences of one year or longer, and amending "aggravated felonies" to include gambling, prostitution, alien smuggling, document fraud, and bribery); Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, §§ 321-22, 110 Stat. 3009-546, 3009-627 to -628 (codified as amended at 8 U.S.C. § 1101(a)) (lowering the terms of imprisonment for crimes of violence and thefts that qualify as "aggravated felonies" from five years to one year, and expanding the definition of a "conviction" to include "some form of punishment, penalty or restraint" imposed by a judge). Many of the Congressional proposals for "immigration reform" in 2006 would have further expanded the grounds for removing noncitizens. See, e.g., H.R. 4437, 109th Cong. § 203 (2006) (making "unlawful presence" a felony); Community Protection Act of 2006, H.R. 6094, 109th Cong. § 101 (allowing the Attorney General to designate any group that meets certain criteria as a "gang," and allowing for the removal of noncitizen "gang" members regardless of whether the individual committed a crime); Comprehensive Immigration Reform Act of 2006, S. 2611, 109th Cong. §§ 203, 205 (expanding the "aggravated felony" removal provisions and providing for removal of "criminal street gang members").
156. See Morawetz, supra note 132, at 1950. Professor Nancy Morawetz avers that [t]he combined impact of the new immigration legislation, tougher criminal justice policies, mandatory detention rules, and vigorous INS enforcement has not fallen solely on legal permanent residents convicted of crimes. These laws directly affect the families of legal permanent residents. By eliminating (in most cases) the system of relief hearings that allowed family members to testify about the consequences of family separation, the laws operate as a statement that the effects of deportation on family members does [sic] not matter. Id.
157. Id. at 1952; see also HING, supra note 95, at 58-64 (discussing the "rise and fall" of the section 212(c) waiver, which gave judges discretion in the deportation of deportable noncitizens based on equitable considerations).
158. MICHAEL FIX ET AL., THE INTEGRATION OF IMMIGRANT FAMILIES IN THE UNITED STATES 15 (2001).
159. BILL ONG HING, DEFINING AMERICA THROUGH IMMIGRATION POLICY 97-98 (2004).
160. Id. at 97.
161. Id. This discussion sets aside the statutory exclusion grounds that might apply in individual cases. See supra notes 50-53 and accompanying text.
162. HING, supra note 137, at 97.
163. Id. at 98. At the same time, the law was revised to incorporated a per-country visa-allocation system to Western Hemisphere countries. Id. This cut the number of visas available to Mexicans in half. Id.
164. Id. at 95 (discussing the 1965 preference system); 8 U.S.C. 1151(b)(2)(A)(i) (2000) (requiring that citizen children be at least twenty-one years old to sponsor a parent as an "immediate relative").
165. See, e.g., Gonzalez Vallejo v. Gonzales, 187 F. App'x 783 (9th Cir. 2006); Coleman v. United States, 454 F. Supp. 2d 757, 759 (N.D. III. 2006) (dismissing the petitioner's request for a declaratory judgment that the removal of the undocumented-noncitizen mother of a citizen child was a constructive removal of the child in violation of the child's "constitutional rights as a birthright citizen of the United States"); see also Bill Piatt, Born as Second Class Citizens in the U.S.A.: Children of Undocumented Parents, 63 NOTRE DAME L. REV. 35, 40-41 (1988).
166. In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 65 (BIA 2001).
167. See Cabrera-Alvarez v. Gonzalez, 423 F. 3d 1006, 1014 (9th Cir. 2005) (Pregerson, J., dissenting) ("That onerous standard is so difficult to satisfy that there is only one published BIA decision that grants cancellation of removal after finding that the requisite 'exceptional and extremely unusual hardship' existed."); see also Thronson, supra note 132, at 1195 & n. 152 (noting that claims for relief from removal on the basis of the noncitizen-children's rights to citizenship "have been rejected uniformly by course in virtually every circuit"); Molly Hazel Sutter, Mixed Status Families and Broken Homes: The Clash Between the U.S. Hardship Standard in Cancellation of Removal Proceedings and International Law, 15 TRANSNAT'L L. & CONTEMP. PROBS. 783, 786-87 (2006).
168. Thronson, supra note 132, at 1172, 1189.
169. Id. at 1213-14.
170. See generally Smith, supra note 130, at 749-58. (telling the stories of immigrants who were deported, but have returned to the United States to be with their families, and now live clandestinely in this county).
171. Interview by Bill Ong Hing, Border Action Network, with Grania Marcus, D.C. Border Tour, in Nogales, Ariz. (Feb. 19, 2006), http://lawprofessors. typepad.com/immigration/2006/02/from_the_border_11.html.
172. See Julia Preston, House and Senate Hold Immigration Hearings, N.Y. TIMES, July 6, 2006, at A12 ("At odds over immigration, lawmakers from the Senate and the House held rival hearings on Wednesday on opposite coasts, competing for public support for their sharply differing proposals and moving no closer to compromise.");
173. Rachel L. Swarns, Senate, in Bipartisan Act, Passes Immigration Bill, N.Y. TIMES, May 26, 2006, at A19 (describing House and Senate debates on immigration legislation and noting obstacles to compromise);
174. Rachel L. Swarns, Immigration Bill Backed in Senate Setting up Clash, N.Y. TIMES, May 25, 2006, at A1 (noting that many House Republicans "vehemently oppose[d]" provisions in the Senate bill). In December of 2005, the House passed an immigration bill that "defied [President] Bush's call for a guest worker program and passed a border security bill that would [have] criminalize[d] illegal immigrants' presence in the country." Id. Congress failed to enact a comprehensive immigration reform bill in 2006.
175. See Stephen Labaton & Steven R. Wiseman, Talking About Common Ground, N.Y. TIMES, Nov. 9, 2006, at C1 ("Despite support from Mr. Bush, Republican resistance in the House managed to block a broad immigration reform package passed by the Senate in the summer."). A border-wall proposal, which calls for seven-hundred miles of fencing and electronic sensors, was the only piece of immigration legislation to be signed into law in 2006. See Secure Fence Act of 2006, Pub. L. No. 109-367, § 3, 120 Stat. 2638 (2006).
176. Bill Ong Hing, The Dark Side of Operation Gatekeeper, 7 U.C. DAVIS J. INT'L L. & POL'Y 121, 127-28 (2001)
177. (quoting U.S. BORDER PATROL, BORDER PATROL STRATEGIC PLAN: 1994 AND BEYOND - NATIONAL STRATEGY 17 (1994));
178. see also Peter Andreas, The Transformation of Migrant Smuggling Across the U.S.-Mexico Border, in GLOBAL HUMAN SMUGGLING: COMPARATIVE PERSPECTIVES 107, 112-16 (David Kyle & Rey Koslowski eds., 2001).
179. See Hing, supra note 151, at 128.
180. Id. at 129.
181. See Wayne A. Cornelius, Controlling "Unwanted" Immigration: Lessons from the United States, 1993-2004, 31 J. ETHNIC & MIGRATION STUD. 775, 783 (2005); Andreas, supra note 151, at 115; Hing, supra note 151, at 130-44. This shift has resulted in a significant increase in deaths in border-crossing areas.
182. See Wayne A. Cornelius, Death at the Border: Efficacy and Unintended Consequences of US Immigration Control Policy, 27 POPULATION & DEV. REV. 661, 669 (2001); Hing, supra note 137, at 135-44.
183. During the massive border militarization efforts of the mid-1990s, the number of undocumented migrants coming into the country reached unprecedented levels. See Jeffrey S. Passel & Roberto Suro, Pew Hispanic Ctr., Rise, Peak, and Decline: Trends in U.S. Immigration 1992-2004, at i (2005), available at http://pewhispanic.org/reports/report.php?ReportID=53;
184. see also Jennifer M. Chacón, Misery and Myopia: Understanding the Failure of U.S. Efforts to Stop Human Trafficking, 74 Fordham L.J. 2977, 3010 (2006) (noting that, as a result of border militarization, "migrants are trapped within the U.S., not outside of it"); Cornelius, supra note 154, at 782;
185. Mireya Navarro, For a Divided Family, Border is Sorrowful Barrier, N.Y. TIMES, at Dec. 21, 2006, at A1 ("Demetrios Papademetriou, president of the Migration Policy Institute, a nonpartisan research group in Washington, said that 'the primary effect of hardening the border has been one of locking people in.'"). This year's [agricultural labor] shortages are compounding a flight from the fields by Mexican workers already in the United States. As it has become harder to get into this country, many illegal immigrants have been reluctant to return to Mexico in the off-season. Remaining here year-round, they have gravitated toward more stable jobs.
186. Julia Preston, Pickers Are Few, and Growers Blame Congress, N.Y. TIMES, Sept. 22, 2006, at A1.
187. See Interview with Grania Marcus, supra note 149. Family members used to cross back and forth quite easily, and those working in the US could return to Mexico to visit family there and return to their jobs. Most working in the US were building their ranchitos in their communities in Mexico and planning to retire there with their families. Now, the high cost and extreme hardships of the journey force lengthy, and sometimes permanent, separations. Some families in our churches who live on both sides of the border have been divided, no longer able to cross to see their children, parents, or relatives. Broken families occur here much more frequently than in the past. Id.
188. See, e.g., Navarro, supra note 127 (noting that one Mexican woman had little chance of obtaining a tourist visa because she did not own property, did not hold a full-time job, and had no evidence to offer that she had ties to Mexico that would compel her to return after a visit).
189. See, e.g., Lizette Alvarez & John M. Broder, More and More, Women Risk All to Enter U.S., N.Y. TIMES, Jan. 10, 2006, at A1 ("And finally, Ms. Gallardo, 38, who earned $50 a week at an Acapulco hotel, had to contemplate life without her two vivacious daughters, Isabel, 7, and Fernanda, 5. That once unimaginable trade-off - leaving her children behind so they could one day leave poverty behind - had suddenly become her only option.").,
190. See, e.g., Alvarez & Broder, supra note 158; PASSEL, supra note 121, at 6 (noting that half of the male undocumented noncitizens were "solo males," in the United States without wives or children);
191. For example, in the California migrant-farmworker community, "there is roughly one child for every adult farmworker." Maria L. Ontiveros, Lessons from the Fields: Female Farmworkers and the Law, 55 ME. L. REV. 157, 170 (2003).
192. South Carolina State Senator David Thomas recently spoke out against "illegals coming and then essentially dragging the system down, loading their families onto the welfare system." Tim Smith, Senate Wants Services Cut to Illegals, GREENVILLE NEWS (S.C), Apr. 12, 2006, at 1B. Oklahoma State Representative Randy Terrill recently said that more illegal residents are turning to Oklahoma City, Tulsa, and smaller Oklahoma cities, lamenting that "[w]e cannot afford to be the welfare state for the entire world."
193. Angel Riggs, State Curb on Aid to Illegals Weighed, TULSA WORLD, Mar. 27, 2006, at A1. Phyllis Schlafly has decried the strain that undocumented migrants place on health care facilities: Think about these costs when you find maternity wards filled by female illegal immigrants giving birth to 'anchor babies' who are granted instant U.S. citizenship plus generous welfare benefits for the newborn and the whole illegal immigrant family. Think about these foreign diseases when you knock on the door of any of the dozens of hospitals that have closed because they couldn't cover the costs of destitute illegal immigrant patients.
194. Phyllis Schlafly, Homeland Security Should Protect Us from Disease, COPLEY NEWS SERV., Nov. 23, 2004.
195. See, e.g., Eduardo Porter, Illegal Immigrants Are Bolstering Social Security with Billions, N.Y. TIMES, Apr. 5, 2005, at A1 (noting that, in 2004, illegal immigrants accounted for about 10 percent of the Social Security surplus). Illegal immigrants also contribute to the economy as consumers and taxpayers.
196. See Eduardo Porter, Here Illegally, Working Hard and Paying Taxes, N.Y. TIMES, June 19, 2006, at A1. The question of how immigration impacts the wages of native-born Americans has yielded mixed answers.
197. Compare RAKESH KOCHHAR, PEW HISPANIC CTR., GROWTH IN THE FOREIGN- BORN WORKFORCE AND EMPLOYMENT OF THE NATIVE BORN (2006), http://pewhispanic.org/reports/report.php?ReportID=69 (finding no consistent pattern to support the conclusion that native-born workers suffered or benefited from increased numbers of foreign-born workers),
198. with GEORGE J. BORJAS, CTR. FOR IMMIGRATION STUD., INCREASING THE SUPPLY OF LABOR THROUGH IMMIGRATION: MEASURING THE IMPACT ON NATIVE-BORN WORKERS (2004), http://www.cis.org/articles/2004/back504.pdf (reporting that, between 1980 and 2000, immigration "reduced the average annual earnings of native-born men by an estimated $1,700 or roughly 4 percent," reduced the annual earnings of natives without a high school education by 7.4 percent, and had a "significantly larger" negative effect on native-born black and Hispanic workers).
199. For a brief criticism of a similar study, see Eduardo Porter, Cost of Illegal Immigration May Be Less than Meets the Eye, N.Y. TIMES, Apr. 16, 2006, § 3, at 3.
200. The Professional Responsibility and Work Opportunity Reconciliation Act of 1996 severely limited undocumented migrants' eligibility for federal benefits. Stephen Yale-Loehr & Sean Köhler, Overview of U.S. Immigration Law, in PLI NEW YORK PRACTICE SKILLS COURSE HANDBOOK SERIES (April 27, 2004). The Welfare Act effectively bars almost all noncitizens from receiving two significant federal programs: Food Stamps, the major food assistance program for the poor; and Supplemental Security Income (SSI), the cash assistance program for low-income persons who are aged, blind, or disabled. The Welfare Act also allows states to exclude legal foreign nationals from three federal programs administered on the state level: non-emergency Medicaid; social services funded by Title XX block grants, including care for children and disabled persons, and domestic violence programs; and the new Temporary Assistance for Needy Families (TANF) program, which replaced Aid to Families with Dependent Children (AFDC).
201. Id.
202. For example, Arizona State Representative Russell Pearce has blamed failing schools on the fact that "[t]hey're being overwhelmed by 'a population that don't put a high value to education.'" Joseph Lelyveld, The Border Dividing Arizona, N.Y. TIMES, Oct. 15, 2006, § 6 (Magazine), at 40;
203. see also Abby Goodnough, Florida City Rejects Stringent Law on Migrants, N.Y. TIMES, July 25, 2006, at A1 (discussing the failed efforts to pass an ordinance claiming that illegal immigration "leads to higher crime rates, contributes to overcrowded classrooms and failing schools, subjects our hospitals to fiscal hardship and legal residents to substandard quality of care, and destroys our neighborhoods and diminishes our overall quality of life"). See generally Plyler v. Doe, 457 U.S. 202, 230 (1982) (holding that undocumented-migrant children are constitutionally entitled to public education through high school).
204. For example, in the fall of 2005, the Superintendent of the Napa Valley Unified School District circulated a memo indicating that the December break would be lengthened - and the summer break shortened - by one week. See E-mail from Elizabeth Ann Chacón, Teacher at New Tech High School, Napa, Cal., to Jennifer M. Chacon (Dec. 18, 2006) (on file with the Wisconsin Law Review). The proposal was designed, at least in part, to accommodate students with families in Mexico. See id. Students boycotted in protest. See id.
205. See RACHEL MORAN, INTERRACIAL INTIMACY: THE REGULATION OF RACE AND ROMANCE 33-34, 37-39 (2001); see also JOHNSON, supra note 76, at 126 ("The exclusion of Chinese women all but eliminated the possibility of marrying and forming nuclear families for Chinese immigrant men in the United States; marriage with white women was, after all, prohibited by the antimiscegenation laws in most of the Western states.").
206. Shirley Hune, U.S. Immigration Policy and Asian Americans: Aspects and Consequences, in CIVIL RIGHTS ISSUES OF ASIAN AND PACIFIC AMERICANS: MYTHS AND REALITIES 283, 285 (1979) ("Such a policy could only be designed to eliminate the Chinese population in America.").
207. See MORAN, supra note 166, at 31, 37.
208. Not all day laborers are Mexican immigrants. A recent survey in Northern Virginia revealed that 67 percent of those day laborers were immigrants from Central America. Elissa Silverman, Day Laborers Hired Mostly by Firms, WASH. POST, Jan. 29, 2006, at T09. Nationally, it is estimated that 59 percent of day laborers in the United States are Mexican, 28 percent are Central American, and 7 percent are actually U.S.-born.
209. ABEL VALENZUELA JR. ET AL., ON THE CORNER: DAY LABOR IN THE UNITED STATES, at iii (2006), available at http://www.uic.edu/cuppa/ uicued/Publications/RECENT/onthecorner.pdf.
210. In reality, some 43 percent of day laborers are married or living with a partner. VALENZUELA ET AL., supra note 169, at 18.
211. See, e.g., Day Laborers, http://www.daylaborers.org ("Some of the most violent murderers, rapists, and child molesters, are illegal aliens who work as day laborers."). This website includes a photo of "day laborers" making lewd gestures, and displays the mug shots of several noncitizen men who are wanted for crimes like sexual assault of a minor. See id. The implication that undocumented migrants pose sexual threats to women, and even to children, can be found in many media accounts. See, e.g., Anahad O'Connor, In Brewster, a Backlash Against Day Laborers, N.Y. TIMES, Feb. 5, 2006, § 14WC, at 1 ("'The big issue that was brought up was how are we going to protect our kids?' said Rachel McLaughlin, a local activist . . . . 'My daughter is a first grader . . . and I think it's dangerous to have large groups of people loitering in certain areas, especially if they are men.'");
212. Vivian S. Toy, Border Warriors, N.Y. TIMES, Oct. 22, 2000, § 14LI, at 1. Vivian S. Toy reports that [Margaret Bianculli-Dyber] said she became passionate about the [need to deport undocumented migrants in Suffolk county] in the summer of 1998, when her daughter, who was 25 at the time, failed to meet her at church one Sunday morning. Her daughter explained later that she had been afraid to leave their Farmingville home because five Hispanic men solicited her for sex as they crossed in front of the house to reach a nearby soccer field. At a community meeting that summer, she found that hundreds of her neighbors had similar complaints. "There were all kinds of horror stories about daughters and sons being solicited, about peeping Toms and men urinating in public," she said. Id.
213. See Ramiro Martinez, Jr., Coming to America: The Impact of the New Immigration on Crime, in IMMIGRATION AND CRIME: RACE, ETHNICITY AND VIOLENCE 1-6 (Ramiro Martinez, Jr. & Abel Valenzuela, Jr. eds., 2006) (reviewing stereotypes of migrants as criminal).
214. See Alvarez & Broder, supra note 158.
215. See id. (citing me research of Katharine Donato, an associate professor of sociology at Rice University, who estimates that women currently constitute 35 to 45 percent of those crossing the border illegally, compared with fewer than 20 percent twenty years ago).
216. A recent cinematic example is the 2004 movie Spanglish, in which the patient Mexican migrant Flor Moreno, played by Paz Vega, acted as a maid and nanny for John Clasky, played by Adam Sandler, and his family. SPANGLISH (Columbia Pictures 2004). The film contrasts her childrearing skills with the shrill antics of Deborah Clasky, played by Tea Leoni. See A.O. Scott, Triangle: Dad, Mom, Housekeeper, N.Y. TIMES, Dec. 17, 2004, at E24.
217. See, e.g., Schlafly, supra note 161 (decrying the birth of "anchor babies"); BUCHANAN, supra note 47, at 31, 57. In reality, these babies provide no real "anchor," as they are ineligible to petition for the lawful admission of their parents until they reach age twenty-one. See 8 U.S.C. § 1151(b)(2)(A)(i) (2000).
218. Thronson, supra note 122, at 54-55.
219. Id.
220. See id. at 49; David Brooks, Op-Ed., Immigrants to Be Proud of, N.Y. TIMES, Mar. 30, 2006, at A25 ("[T]he immigrants themselves are like a booster shot of traditional morality injected into the body politic. Immigrants work hard. They build community groups. They have traditional ideas about family structure, and they work heroically to make them a reality.").
221. Press Release, The Urban Inst., Low Income Children of Immigrants More Likely to Live in Two-Parent Families (Nov. 26, 2002), http://www.urban.org/ publications/900569.html; see also Brooks, supra note 179.
222. VALENZUELA ET AL., supra note 169, at iii.
223. See supra Parts III.B.1-3.
224. See supra Part III.B.4.
225. For example, on December 16, 2005, Representative J.D. Hayworth (R-Ariz.) sought to introduce an amendment to the ill-fated H.R. 4437, which would have eliminated the visa category that allows citizens to sponsor their siblings for legal residence. Press Release, Asian Law Caucus, Immigrant Allies Nationwide Fend Off Sneak Attack on Family Reunification (Dec. 16, 2005), http://www.altrue.net/site/alc/content.php?type=1&id=1142. Hayworth's amendment did not address the visa applications of the U.S. citizens who have already been on the "fourth preference" visa waiting list for as long as twenty-two years. Id.; see also supra Part III.A (discussing other attacks on family-reunification provisions).
226. See, e.g., BUCHANAN, supra note 47, at 258-59 ("Pregnant women who sneak in or overstay their visas automatically entitle their babies to a lifetime of benefits at the expense of the U.S. taxpayers, including twelve years of free schooling. The parents stay to collect the benefits."); id. at 13 ("Some come for malevolent motives . . . to make careers . . . raping . . . Americans.").
227. See Hiroshi Motomura, We Asked for Workers, but Families Came: Time, Law, and the Family in Immigration and Citizenship, 17 VA. J. SOC. POL'Y & L. 103, 118 n.69 (2006) (contrasting the constitutional rights to family outside and inside the context of immigration law.)
228. Loving v. Virginia, 388 U.S. 1, 6 (1967) (citing Walter Wadlington, The Loving Case: Virginia's Anti-Miscegenation Statute in Historical Perspective, 52 VA. L. REV. 1189, 1202 n.93 (1966)).
229. PEGGY COOPER DAVIS, NEGLECTED STORIES: THE CONSTITUTION AND FAMILY VALUES 30 (1997) ("Scholars of slavery recognized denial of family bonds as a hallmark of slave status."). During a Senate debate in 1864, Senator James Harlan of Iowa urged that "interference with parental and marital relationships" constituted an example of "the incidents of servitude" that the Thirteenth Amendment was designed to preclude.
230. Alexander Tsesis, A Civil Rights Approach: Achieving Revolutionary Abolitionism Through the Thirteenth Amendment, 39 U.C. DAVIS L. REV. 1773, 1813-14 (2006). Senator Henry Wilson stated that, were the Amendment to pass, "[i]n place of slavery's chains, federal law would respect natural rights by protecting family interests." Id. Ebson Ingersoll, a Representative from Illinois and advocate of the Thirteenth Amendment, noted that one of the most problematic aspects of slavery was the fact that it separated families, leaving whole segments of society without the "right to the endearments and enjoyment of family ties."
231. Cong. Globe, 38th Cong., 1st Sess. 2990 (1864), reprinted in STATUTORY HISTORY OF THE UNITED STATES: 1 CIVIL RIGHTS 53 (Bernard Schwartz ed., 1970);
232. see also NATHAN I. HUGGINS, BLACK ODYSSEY 154-82 (2d ed. 1990) (chronicling the effects of slavery on the black family);
233. James W. Fox, Jr., Intimations of Citizenship: Repressions and Expressions of Citizenship in the Era of Jim Crow, 50 HOW. L.J. 113, 179 (2006) ("[O]ne of the most oppressive powers held by slave owners was the power to legally control families by dividing families at the sole will of the slave owner."). Referencing the legislative history of the Thirteenth Amendment against the backdrop of legal-process theory, one commentator has observed that the Thirteenth Amendment embodies "familial, political, and citizenship rights, as well as the right to be free from commoditization and other labor abuses," and concludes that the Amendment's prohibition on slavery should be read as a bar to the familial separations such as those institutionalized by the Bracero Program of the 1950s and the current H-2A agricultural guestworker visa program.
234. Benjamin P. Quest, Process Theory and Emerging Thirteenth Amendment Jurisprudence: The Case of Agricultural Guestworkers, 41 U.S.F. L. REV. 233, 238-39, 252-54, 258 (2006).
235. See supra notes 69-72 and accompanying text.
236. Ian F. Haney López, "A Nation of Minorities": Race, Ethnicity, and Reactionary Colorblindness, 59 STAN. L. REV. 985, 1057 (2007).
237. Loving, 388 U.S. at 11.
238. Id. at 6.
239. The nativist rhetoric of some immigration restrictionists, such as Peter Brimelow and Patrick Buchanan, suggests a White Supremacist agenda. Conflating all white ethnic groups and ignoring the long history of their differences, Brimelow states that "many modern American intellectuals [are] just unable to handle a plain historical fact: that the American nation has always had a specific ethnic core. And that core has been white." PETER BRIMELOW, ALIEN NATION: COMMON SENSE ABOUT AMERICA'S IMMIGRATION DISASTER 10 (1995). He elaborates: It is simply common sense that Americans have a legitimate interest in their country's racial balance. It is common sense that they have a right to insist that their government stop shifting it. Indeed, it seems to me that they have a right to insist that it be shifted back. Id. at 264; see also BUCHANAN, supra note 47, at 135 (arguing that assimilating Mexicans into U.S. society would be problematic because they are of a different race).
240. See JOHNSON, supra note 76, at 42-45.
241. See Loving, 388 U.S. at 9-11.
242. See supra Part III.A.
243. PASSEL, supra note 121, at i.
244. Id. at i-ii.
245. Zoe Lofgren, A Decade of Radical Change in Immigration Law: An Inside Perspective, 16 STAN. L. & POL'Y REV. 349, 350, 378 (2005) ("In the last decade, Congress has made it harder for the spouses, parents, and children of Americans and legal permanent residents to become legal . . . and instituted legal changes that result in harshly unconscionable results for American families.").
246. See supra Part II.B.3.
247. Loving v. Virginia, 388 U.S 1, 11 (1967).