Immigration outside the law

Columbia Law Review

Volumn 108, Issue 8, 2008, Pages 2037-2097

  Motomura, Hiroshi ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 58649101142     PISSN: 00101958     EISSN: None     Source Type: Journal    
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References (389)

1. I use this phrase deliberately as an attempt to be more literally accurate and more neutral than "illegal" or "undocumented" immigration. As Part ILA explains, the terminology is contested for the same reasons that the meaning of unlawful presence is contested. On terminology, see Thomas Alexander Aleinikoff, David A Martin, Hiroshi Motomura & Maryellen Fullerton, Immigration and Citizenship: Process and Policy 1291 (6th ed. 2008) [hereinafter Aleinikoff, Martin, Motomura & Fullerton, Immigration and Citizenship] (discussing debate surrounding terminology used to refer to migrants "whose presence in the United States is in violation of law");
2. Kevin R. Johnson, "Aliens" and the U.S. Immigration Laws: The Social and Legal Construction of Nonpersons, 18 Immigr. & Nat'lity L. Rev. 3, 13 (1997) ("The term alien serves as a device that intellectually legitimizes the mistreatment of nonciuzens and helps to mask human suffering."). To be clear, I do not suggest that unlawfully present individuals are in a domain in which law is nonexistent or irrelevant It is a construct of the law itself that places them on the "outside."
3. See Mae M. Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America 13 (2005) (examining experiences of individuals "who variously comprised illegal aliens, alien citizens, colonial subjects, and foreign contract-workers-all liminal status categories that existed outside the normal teleology of immigration, that is, legal admission, permanent-resident status, and citizenship").
4. 457 U.S. 202 (1982).
5. Tex. Educ. Code Ann. § 21.031 (Vernon Supp. 1981).
6. For more on the litigation and its aftermath, see Michael A. Olivas, Plyler v. Doe, the Education of Undocumented Children, and the Polity, in Immigration Stories 197, 197-220 (David A. Martin & Peter H. Schuck eds., 2005) [hereinafter Olivas, Education].
7. In re Alien Children Educ. Litig., 501 F. Supp. 544 (S.D. Tex. 1980), was consolidated with the Tyler litigation for review in the Supreme Court.
8. 457 U.S. 202.
9. Parts of Brennan's analysis seemed to require only that the statute have a "rational basis," but in the end he blended both rational basis and "intermediate scrutiny." See id. at 218 n.16, 224;
10. see also id. at 217 (requiring "substantial interest").
11. The Court rejected three state objectives: (1) that the statute was intended to allow the state "to protect itself from an influx of illegal immigrants"; (2) that "undocumented children are appropriately singled out for exclusion because of the special burdens they impose on the State's ability to provide high-quality public education"; and (3) that "undocumented children are appropriately singled out because their unlawful presence within the United States renders them less likely than other children to remain within the boundaries of the State, and to put their education to productive social or political use within the State." Id. at 228-30.
12. Id. at 210 n.8.
13. Id. at 219 n.19.
14. 411 U.S. 1, 27-37 (1973);
15. see Plyler, 457 U.S. at 221, 223 (citing San Antonio Independent School District v. Rodriguez in support of claim that education is not a fundamental right).
16. 457 U.S. at 242-54 (Burger, C.J., dissenting).
17. See Olivas, Education, supra note 4, at 208 (noting Reagan Administration refused to "formally enter its amicus brief on the side of the plaintiffs . . . and it took no position on the crucial equal protection issue").
18. See Earl M. Malu, The Chief Justiceship of Warren Burger, 1969-1986, at 56-57 (2000) (explaining Justice Powell's vote as reflecting his views on treatment of children and on education).
19. Barbara Belejack, A Lesson in Equal Protection: The Texas Cases That Opened the Schoolhouse Door to Undocumented Immigrant Children, Tex. Observer, July 13, 2007, at 14;
20. see also Michael A. Olivas, Immigration-Related State and Local Ordinances: Preemption, Prejudice, and the Proper Role for Enforcement, 2007 U. Chi. Legal F. 27, 39 [hereinafter Olivas, State and Local Ordinances] (explaining that Chief Justice Roberts's views on Plyler surfaced during his Senate confirmation hearings).
21. Editorial, Teaching Alien Children Is a Duty, N.Y. Times, June 16, 1982, at A30 [hereinafter Editorial, Teaching Alien Children].
22. Plyler, 457 U.S. at 243 (Burger, C.J., dissenting).
23. See, e.g., Michael J. Perry, Equal Protection, Judicial Activism, and the Intellectual Agenda of Constitutional Theory: Reflections on, and Beyond, Plyler v. Doe, 44 U. Pitt. L. Rev. 329, 337-41 (1983) (suggesting multiple grounds for criticizing majority opinion in Plyler).
24. See Plyler, 457 U.S. at 210 (majority opinion) (rejecting argument that "undocumented aliens ... are not 'persons within the jurisdiction' of the State of Texas, and that they therefore have no right to the equal protection of Texas law");
25. id. at 243 (Burger, C.J., dissenting) (agreeing with majority that equal protection applies to illegal aliens);
26. Hiroshi Motomura, Americans in Waiting: The Lost Story of Immigration and Citizenship in the United States 77-78 (2006) [hereinafter Motomura, Americans in Waiting] ("Plyler extended constitutional protections to the undocumented not based on immigration as contract or affiliation, but rather on presence on U.S. territory.");
27. Linda Bosniak, Persons and Citizens in Constitutional Thought 6 (Feb. 11, 2008) (unpublished manuscript prepared for Harvard Public Law Conference on Religion, Multiculturalism, and Citizenship, Feb. 29-Mar. 1, 2008, on file with the Columbia Law Review) (suggesting it would be "almost unthinkable" for current Supreme Court to undo Plyler's recognition of "undocumented immigrants as constitutional persons").
28. See, e.g., Olivas, Education, supra note 4, at 210-11 (asserting that reasoning in Plyler 'has not substantially influenced subsequent Supreme Court immigration jurisprudence");
29. Nina Rabin, Mary Carol Combs & Norma González, Understanding Plyler's Legacy: Voices from Border Schools, 37 J.L. & Educ. 15, 15 (2008) (characterizing Plyler as "the high water mark in the Court's immigrants' rights jurisprudence"). Since 1982, the Court's membership has changed almost completely and in ways that suggest that the current Court would adopt a different constitutional analysis, and perhaps a different outcome. This further contributes to the limited reach of Plyler as constitutional precedent
30. Editorial, Teaching Alien Children, supra note 16.
31. See Plyler, 457 U.S. at 218-19 ("This situation raises the specter of a permanent caste of undocumented resident aliens ....").
32. Id. at 244-46 (Burger, C.J., dissenting).
33. Lawrence Downes, Op-Ed., What Part of 'Illegal' Don't You Understand?, N.Y. Times, Oct 28, 2007, at WK11.
34. In portraying this spectrum of views, I do not overlook the fact that the Plyler Court was unanimous that persons unlawfully in the United States may invoke the protections of the U.S. Constitution. See supra note 19 and accompanying text. However, my focus is not on the threshold question of whether the Constitution applies, but rather on further questions-addressed infra in Parts II and IV-about the consequences of unlawful presence.
35. I use the term "subfederal" to include states, counties, cities, school districts, special districts, and all other government entities below the federal level. Throughout this Essay, I will use the phrases "states and localities," "states and cities," and "state and local"; I intend these phrases to refer to the same government entities as the term "subfederal."
36. See Plyler, 457 U.S. at 220 (explaining that it is "difficult to conceive of a rational justification for penalizing these children for their presence within the United States").
37. Id. at 225.
38. Id. at 245-46 (Burger, C.J., dissenting).
39. See generally Lisa M. Seghetti, Stephen R. Vina & Karma Ester, Cong. Research Serv., Enforcing Immigration Law: The Role of State and Local Law Enforcement (2006) (examining role of state and local law enforcement in enforcing immigration law).
40. Kris W. Kobach, The Quintessential Force Multiplier: The Inherent Authority of Local Police to Make Immigration Arrests, 69 Alb. L. Rev. 179, 181 (2005) ("The nearly 800,000 police officers nationwide represent a massive force multiplier.").
41. See Olivas, State and Local Ordinances, supra note 15, at 35 ("[S]hifting immigration enforcement powers to sub-federal levels ... is bad policy and will lead to bad results both with immigration enforcement and local enforcement");
42. Michael J. Wishnie, State and Local Police Enforcement of Immigration Laws, 6 U. Pa. J. Const L. 1084, 1104 (2004) [hereinafter Wishnie, State and Local Enforcement] ("[P]ermanent involvement of state and local police in routine immigration enforcement raises the further risk of racial profiling and selective immigration enforcement beyond moments of real or perceived national threat");
43. Carrie L. Arnold, Note, Racial Profiling in Immigration Enforcement: State and Local Agreements to Enforce Federal Immigration Law, 49 Ariz. L. Rev. 113, 119 (2007) (describing "evidence of racial profiling when state and local officers have teamed up with federal officers to investigate immigration violations");
44. see also Huyen Pham, The Private Enforcement of Immigration Laws, 96 Geo. L.J. 777, 781 (2008) [hereinafter Pham, Private Enforcement] (noting that some discrimination may be consequence of mistaken understandings of immigration law, which may prompt overenforcement against individuals believed to lack lawful immigration status).
45. See Wishnie, State and Local Enforcement, supra note 32, at 1087 (noting that some law enforcement officials object to immigration measures because they believe they will "deter crime reporting by noncitizens" and "divert resources from local policing priorities").
46. See Huyen Pham, The Inherent Flaws in the Inherent Authority Position: Why Inviting Local Enforcement of Immigration Laws Violates the Constitution, 31 FIa. St. U. L. Rev. 965, 995 (2004) (arguing that subfederal immigration enforcement "violat[es] the constitutional mandate for uniform immigration laws" and creates "foreign policy concerns" by "exacerbat[ing] uncertainty as to how a country's nationals will be treated within the United States").
47. 347 U.S. 483, 493 (1954).
48. Plyler v. Doe, 457 U.S. 202, 222-23 (1982) (quoting Brown, 347 U.S. at 493).
49. Id. at 252-53 (Burger, C.J., dissenting).
50. For an overview, see Aleinikoff, Martin, Motomura & Fullerton, Immigration and Citizenship, supra note 1, at 1347-50.
51. See, e.g., Editorial, One Argument, 12 Million Holes, N.Y. Times, Jan. 18, 2008, at A20 (describing immigration bill that died in Congress that would have "dealt with the 12 million illegal immigrants already here, through a tough path to earned citizenship").
52. Jeffrey S. Passel, Pew Hispanic Ctr., The Size and Characteristics of the Unauthorized Migrant Population in the U.S.: Estimates Based on the March 2005 Current Population Survey 3 (2006).
53. Michael Hoefer, Nancy Rytina & Christopher Campbell, U.S. Dep't of Homeland Sec, Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2007, at 2-3 (2008);
54. Passel, supra note 40, at 1-3.
55. Passel, supra note 40, at 4.
56. Id. at 2.
57. In a much narrower sense, "unlawful presence" is also a term of art under section 212(a) (9) (B)-(C) of the Immigration and Nationality Act (INA). INA § 212(a)(9)(B)-(C), 8 U.S.C. § 1182(a)(9)(B)-(C) (2006) (defining aliens unlawfully present).
58. Plyler v. Doe, 457 U.S. 202, 226 (1982).
59. The U.S. Citizenship and Immigration Services website provides information on processing times. U.S. Citizenship & Immigration Servs., Processing Dates, at https:// egov.uscis.gov/cris/jsps/ptimes.jsp (last visited Aug. 13, 2008) (on file with the Columbia Law Review).
60. See, e.g., INA § 244 (defining temporary protected status).
61. David A Martin, Migration Policy Inst., Twilight Statuses: A Closer Examination of the Unauthorized Population 1 (2005).
62. See INA § 240A(b) (granting Attorney General power to cancel removal and adjust to permanent resident status any alien who is deportable if alien meets certain conditions).
63. Plyler, 457 U.S. at 226.
64. See id. at 207 n.4 (acknowledging existence of "congressional proposals to 'legalize' status of many unlawful entrants").
65. Pub. L. No. 99-603, 100 Stat. 3359 (1986) (codified as amended at 8 U.S.C. § 1255a (2006)).
66. See id.; U.S. Immigration & Naturalization Serv., U.S. Dep't of Justice, 1993 Statistical Yearbook of the Immigration and Naturalization Service 183 (1994) (noting that "[i]n 1987-88, approximately 3 million persons applied for legalization under [IRCA]");
67. U.S. Immigration & Naturalization Serv., Report on the Legalized Alien Population (1992) (outlining INS's legalization program and its impact on aliens).
68. Paul Feldman, Texas Case Looms over Prop. 187's Legal Future, L.A. Times, Oct. 23, 1994, at Al.
69. Lucy Hood, Educating Immigrant Students, Carnegie Rep., Spring 2007, at 2, 6-8.
70. Pub. L. No. 105-100, §§ 201-204, 111 Stat. 2160, 2193-201 (1997);
71. see also discussion of NACARA infra Part V.
72. Pub. L. No. 105-277, §§ 901-904, 112 Stat 2681, 2681-538 to -542 (1998).
73. See Susan Bibler Coutin, Nations of Emigrants: Shifting Boundaries of Citizenship in El Salvador and the United States 46-72 (2007) (describing immigrants' fight to gain permanent residency through NACARA).
74. Plyler v. Doe, 457 U.S. 202, 218-19 (1982).
75. See generally Motomura, Americans in Waiting, supra note 19, at 129-30 (describing how restrictions on Asian immigration in late nineteenth and early twentieth century forced employers to seek new sources of labor, most prominently from Mexico).
76. See Ngai, supra note 1, at 56-90 (describing selective application of exclusion grounds and eligibility for discretionary relief).
77. This was true even after the Border Patrol was founded in 1924. See Act of May 28, 1924, Pub. L. No. 68-153, ch. 204, 43 Stat 205, 240 (appropriating funds for land border enforcement).
78. Mounted border inspectors were patrolling the U.S.-Mexico border by 1904. In March 1915, Congress authorized funding for mounted "Chinese inspectors" operating out of El Paso, Texas, but they never numbered more than seventy-five.
79. See Clifford Alan Perkins, Border Patrol: With the U.S. Immigration Service on the Mexican Boundary 1910-54, at 7-14 (1978) (recalling his own appointment as a "Chinese inspector");
80. see also John Torpey, The Invention of the Passport: Surveillance, Citizenship, and the State 118 (2000) (noting that there were not enough agents to effectively patrol border).
81. The 1911 final report of the Dillingham Commission, established by Congress in 1907 to study the origins and consequences of immigration to the United States, observed: Because of their strong attachment to their native land . .. and the possibility of their residence here being discontinued, few become citizens of the United States. The Mexican migrants are providing a fairly adequate supply of labor.... While they are not easily assimilated, this is of no very great importance as long as most of them return to their native land. In the case of the Mexican, he is less desirable as a citizen than as a laborer. Kitty Calavita, The Immigration Policy Debate: Critical Analysis and Future Options, in Mexican Migration to the United States: Origins, Consequences, and Policy Options 151, 155-59
82. (Wayne Cornelius & Jorge Bustamante eds., 1989) [hereinafter Calavita, Immigration Policy Debate] (quoting Immigration Comm'n, Reports of the Immigration Commission: Abstracts of the Reports of the Immigration Commission with Conclusions and Recommendations and Views of the Minority, S. Doc. No. 61-747, at 690-91 (1911)).
83. See Martha Gardner, The Qualities of a Citizen: Women, Immigration, and Citizenship, 1870-1965, at 209 (2005) (describing how U.S. employers viewed Mexicanimmigrants strictly as laborers without permanent, emotional, or legal ties to the United States);
84. Ngai, supra note 1, at 52-53 ("Anti-Mexican rhetoric invariably focused on allegations of ignorance, filth, indolence, and criminality.").
85. See Calavita, Immigration Policy Debate, supra note 64, at 155-59 (chronicling historical nexus between U.S. immigration policies and Mexican migration).
86. In 1952, Congress made it a felony to "harbor" an alien unlawfully in the United States and expanded the Border Patrol's enforcement authority. At the insistence of southwestern growers and other agricultural interests, Congress added the so-called Texas Proviso, which excluded the employment of an unauthorized worker from the definition of harboring. Act of June 27, 1952, Pub. L. No. 82-414, § 274, 66 Stat. 163, 228-29;
87. Roger Daniels, Guarding the Golden Door: American Immigration Policy and Immigrants Since 1882, at 121 (2004) (discussing "die infamous 'Texas proviso,' which stipulated that employment of illegal aliens, 'including the usual and normal practices incident to employment,' did not constitute 'harboring'");
88. Daniel J. Tichenor, Dividing Lines: The Politics of Immigration Control in America 194 (2002) (noting that Texas Proviso "highlighted the lengths to which congressional champions of national origins quotas were willing to go to preserve Mexican labor immigration, both legal and illegal"). When IRCA became law in 1986, at least twelve states had some kind of employer sanctions law. Select Comm'n on Immigration & Refugee Policy, U.S. Immigration Policy and the National Interest: Staff Report of the Select Commission on Immigration and Refugee Policy 565 (1981).
89. Plyler v. Doe, 457 U.S. 202, 218 (1982). Justice Brennan also noted that, "despite the existence of these legal restrictions, a substantial number of persons have succeeded in unlawfully entering the United States," and even a child subject to deportation may never in fact be deported.
90. Id. at 205, 226.
91. See INA § 274A, 8 U.S.C. § 1324a(e)-(f) (2006) (listing penalties for violations); Kitty Calavita, Employer Sanctions Violations: Toward a Dialectical Model of White-Collar Crime, 24 L. & Soc'y Rev. 1041, 1046-55, 1057, 1060 (1990) [hereinafter Calavita, Employer Sanctions] (detailing study finding widespread disregard for laws against hiring undocumented workers due to industry competitiveness and ease with which employers can escape punishment using "good faith" defense).
92. INA § 274A(b) (1)(A);
93. see also Collins Foods Int'l, Inc. v. INS, 948 F.2d 549, 554 (9th Cir. 1991) (holding that employer did not violate § 1324a(b) (1)(A) by failing to closely inspect employee's social security card or compare it to example in INS handbook, and observing that "Congress intended to minimize the burden and the risk placed on the employer in the verification process").
94. INA § 274B(a)(6).
95. See Wayne A. Cornelius, The U.S. Demand for Mexican Labor, in Cornelius & Bustamante, supra note 64, at 25, 43-44 (surveying California employers who describe ease with which undocumented workers attain false identification).
96. See Calavita, Employer Sanctions, supra note 69, at 1046-55, 1057, 1060 (describing employer reactions to IRCA sanctions and illustrating degree to which employers are, paradoxically, protected by IRCA despite their employment of undocumented workers).
97. See Linda S. Bosniak, Exclusion and Membership: The Dual Identity of the Undocumented Worker Under United States Law, 1988 Wis. L. Rev. 955, 993-94 (explaining practical limits on workplace protections for undocumented workers).
98. See Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 151-52 (2002) (holding that National Labor Relations Board does not have discretion to "award backpay to illegal aliens" for National Labor Relations Act violations).
99. In fiscal year 2002, the federal government arrested 510 unauthorized workers and employers in workplace raids. Worksite arrests rose to 1,292 in fiscal year 2005 and then leapt to 4,940 in 2007. U.S. Immigration & Customs Enforcement Frequently Asked Questions About Worksite Enforcement, at http://www.ice.gov/pi/news/factsheets/ worksite.htm (last updated Aug. 12, 2008) (on file with the Columbia Law Review). Largescale raids resulted in the arrests of 1,297 workers at six branches of meat processor Swift & Co. in December 2006; of 350 workers at a New Bedford, Massachusetts, leather goods factory in March 2007; and 390 workers at the Agriprocessors meat plant in Postville, Iowa in May 2008.
100. See Yvonne Abraham & Brian R. Ballou, 350 Are Held in Immigration Raid: New Bedford Factory Employed Illegals, US Says, Boston Globe, Mar. 7, 2007, at IA;
101. Dashboard: Migrant Crackdown, Time, May 26, 2008, at 14.
102. See infra notes 216-219 and accompanying text.
103. See Passel, supra note 40, at 9-14 (presenting data showing "unauthorized workers" remain overrepresented in low wage and low education occupations).
104. See. e.g., Julia Preston, Employers Fight Tough Measures on Immigration, N.Y. Times, July 6, 2008, at Al ("Under pressure from the toughest crackdown on illegal immigration in two decades, employers across the country are fighting back in state legislatures, the federal courts and city halls.").
105. See Peter Andreas, Border Games: Policing the U.S.-Mexico Divide 111 (2000) (suggesting that a "winning image" has become politically viable alternative to successful enforcement). Such enforcement is very real and not just symbolic, but it remains selective.
106. See David A. Martin, Eight Myths About Immigration Enforcement, 10 N.Y.U. J. Legis. & Pub. Pol'y 525, 544-45 (2007) (noting that interest groups have slowed legislative efforts to reduce illegal immigration);
107. see also Aleinikoff, Martin, Motomura & Fullerton, Immigration and Citizenship, supra note 1, at 1312-40 (examining evolution of congressional strategies for border enforcement, detention, and deportation in wake of IRCA-imposed employer sanctions);
108. Tichenor, supra note 67, at 243 ("[0]dds were stacked against the efficacy of employer sanctions in curbing illegal immigration at the outset").
109. See Julia Preston, Fewer Latinos in U.S. Sending Money Home, N.Y. Times, May 1, 2008, at Al (reporting on remittance levels in recent years).
110. See, e.g., Louis A. Perez, Jr., Op-Ed., Consider the Context That Sparks Migration, News & Observer (Raleigh), May 12, 2008, at 9A (arguing U.S. policies have impeded Latin American efforts to ameliorate conditions that impel emigration).
111. See Elizabeth E. Joh, Discretionless Policing: Technology and the Fourth Amendment, 95 Cal. L. Rev. 199, 230-32 (2007) (discussing privacy-based objections to automated enforcement of traffic laws). Any comprehensive system used to check work authorization will likely generate an intolerable number of false positives, including citizens with inaccurate entries.
112. See, e.g., Kathy Kiely, Employer-Verification Proposal Draws Fire: Provision Part of Immigration Bills' Debate, USA Today, May 25, 2007, at 7A (describing report by Social Security Administration's inspector general finding four percent error rate in files that proposed immigration program would use to determine eligibility to work).
113. See Adam B. Cox & Eric A Posner, The Second-Order Structure of Immigration Law, 59 Stan. L. Rev. 809, 844-49 (2007) (arguing that current enforcement system operates as ex post mechanism and explaining why this may be preferable to an ex ante system).
114. For a response, see Hiroshi Motomura, Choosing Immigrants, Making Citizens, 59 Stan. L. Rev. 857, 869 (2007) (noting that "lessons in Second-Order Structure about ex post screening are less convincing for noncitizens who are lawfully in the United States, and especially unconvincing for permanent residents").
115. Plyler v. Doe, 457 U.S. 202, 219 n.18 (1982)
116. (quoting Doe v. Plyler, 458 F. Supp. 569, 585 (E.D. Tex. 1978)).
117. Id. at 246 (Burger, C.J., dissenting) ("[A]ppellees' status is predicated upon the circumstances of their concededly illegal presence in this country . . . .").
118. Nat'l Conference of State Legislatures, Overview of State Legislation Related to Immigrants and Immigration, January-March 2008, at 1, 8 (2008).
119. See Immigrant Policy Project, 2007 Enacted State Legislation Related to Immigrants and Immigration 1 (2007), available at http://www.ncsl.org/print/ immig/ 2007Immigration831.pdf (on file with the Columbia Law Review) (finding that number of state laws relating to immigration and immigrants increased from 84 in 2006 to 170 in 2007);
120. see also Cristina Rodríguez, Muzaffar Chishti & Kimberly Nortman, Testing the Limits: A Framework for Assessing the Legality of State and Local Immigration Measures 8-9, 23-24, 32-43, 47-52 (2007) (summarizing recent state and local measures);
121. Walter F. Roche, Jr., Number of State-Level Immigration Laws Is Growing, L.A. Times, Aug. 6, 2007, at A15 (reporting dramatic increase in number of state-level immigration laws from 2006 to 2007);
122. Stephen Yale-Loehr & Ted Chiappari, Cities and States Rush in Where Congress Fears to Tread, N.Y.L.J., Feb. 26, 2007, at 3, 6 (summarizing recent developments in state immigration laws and relevant applications of federal preemption).
123. See Editorial, Hazy Days of Immigration, N.Y. Times, July 20, 2006, at A20 (indicating strict immigration laws proposed by San Bernardino spread to other locales);
124. Ashley Powers, Law Aimed at Migrants Faces Hurdle, L.A Times, June 27, 2006, at B3 (discussing judicial ruling increasing required petition signatures before immigration measure could be placed on the ballot in San Bernardino).
125. See Jill Esbenshade, Am. Immigration Law Found., Division and Dislocation: Regulating Immigration Through Local Housing Ordinances 3 (2007) (noting that 43 of 104 locations studied had "debated or passed rental restrictions alone or as part of broader [immigration] ordinances").
126. State and local laws barred criminals, or restricted the movement of free blacks, or quarantined anyone with a contagious disease. Other laws limited migration of the poor. Some state and local laws required shipmasters to post bonds to guarantee that their passengers would be financially self-sufficient after arrival. There were also head taxes on immigrants, paid into a welfare fund for any who became indigent See Gerald L. Neuman, The Lost Century of American Immigration Law (1776-1875), 93 Colum. L. Rev. 1833, 1834-37, 1850-51 (1993) (noting that immigration policy in eighteenth to midnineteenth centuries was not as open as is often perceived, with state and local laws limiting admission to those with certain economic and racial backgrounds and requiring head tax on immigrants);
127. see also Aristide R. Zolberg, A Nation by Design: Immigration Policy in the Fashioning of America 74-76 (2006) (explaining that state and local laws restricted movement of criminals, free blacks, the poor, and those with contagious diseases).
128. See Chy Lung v. Freeman, 92 U.S. 275, 280-81 (1875) (striking down direct state immigration regulation); Henderson v. Mayor of N.Y., 92 U.S. 259, 274-75 (1875) (same). Following the Supreme Court's decisions in Henderson and Chy Lung, California's congressional delegation successfully lobbied for federal limits on Chinese immigration.
129. See Act of May 6, 1882, ch. 126, 22 Stat. 58 (setting federal limits on Chinese immigration) ;
130. Act of Mar. 3, 1875 (Page Act), ch. 141, §§ 1, 5, 18 Stat. 477, 477-78 (same).
131. See generally Motomura, Americans in Waiting, supra note 19, at 21-26 (examining California's congressional delegation's ability to influence federal limits on Chinese immigration).
132. See Gonzales v. City of Peoria, 722 F.2d 468, 475 (9th Cir. 1983) (discussing how INA House Conference Report shows clear intent to allow all officers meant to enforce criminal law authority to arrest those violating the Act). This civil-criminal line matters because some federal immigration violations are civil, while others are criminal. A first offense of unlawful entry is a federal misdemeanor punishable by six months imprisonment and a civil fine.
133. See INA § 275, 66 Stat. 163, 229 (1952) (current version at 8 U.S.C. § 1325 (2006)) (providing for fining alien apprehended by immigration officer at least fifty dollars for each apprehension, with possible imprisonment of not more than two years);
134. see also id. § 274 (providing criminal penalties for alien smuggling and harboring);
135. id. § 276 (providing criminal penalties for unlawful entry after removal). Mere unlawful presence is not a crime, but it can prompt an inadmissibility or deportability finding and removal from the United States.
136. See id. § 212(a) (6) (A) (i) (stating that any alien in the United States who has not been admitted or paroled is inadmissible);
137. id. § 237(a) (1) (B)-(C) (stating that any alien in the United States who is present in violation of law or who has failed to maintain nonimmigrant status is deportable);
138. see also id. § 266 (making willful failure to register as an alien a federal misdemeanor).
139. The Office of Legal Counsel of the U.S. Department of Justice addressed inherent state and local authority to enforce federal immigration laws in two conflicting opinions, one in 1996 by the Clinton Administration, and the other in 2002 by the Bush Administration.
140. See Assistance by State and Local Police in Apprehending Illegal Aliens, 20 Op. Off. Legal Counsel 26, 32 (1996) ("State and local police lack recognized legal authority to stop and detain an alien solely on suspicion of civil deportability, as opposed to a criminal violation of the immigration laws or other laws." (emphasis added)).
141. But see Non-Preemption of the Authority of State and Local Law Enforcement Officials to Arrest Aliens for Immigration Violations, 26 Op. Off. Legal Counsel 1, 1-2 (2002), available at http://www.aclu.org/FilesPDFs/ACF27DA. pdf (on file with the Columbia Law Review) (withdrawing 1996 civil enforcement analysis).
142. See also INA § 103(a) (10) (allowing authorization of state or local law enforcement officers to enforce federal immigration laws if "an actual or imminent mass influx" of aliens off the coast or near a land border presents "urgent circumstances requiring an immediate Federal response").
143. See U.S. Immigration & Customs Enforcement, Delegation of Immigration Audiority Section 287(g) (2008), at http://www.ice.gov/partners/287g/ Section287-g.htm (on file with the Columbia Law Review) (establishing procedures whereby state and local officers are authorized and trained to enforce immigration law under section 287(g) of Immigration and Nationality Act).
144. In 2002, Florida and the federal government signed the first section 287(g) MOA, allowing thirty-five state officers to enforce federal immigration laws. In 2003, Alabama entered into a similar MOA. As of February 2008, section 287(g) has authorized thirtyseven state and local government entities to check the immigration status of individuals in custody or even of anyone stopped by law enforcement officers.
145. Jennifer V. Hughes, Police Seek Help in Criminal Deportation, N.Y. Times, Feb. 24, 2008, at WE2;
146. see also Aleinikoff, Martin, Motomura & Fullerton, Immigration and Citizenship, supra note 1, at 1015-16 (describing federal authorization of at least twenty-eight local governmental entities to check immigration status of prisoners);
147. Seghetti et al., supra note 30, at 17-21 (describing memoranda of understanding entered into by Alabama, Arizona, Florida, and Los Angeles County Sheriffs Department with Attorney General).
148. Proposition 187, 1994 Cal. Stat A-317 (approved by electors Nov. 8, 1994).
149. A federal district court found that Proposition 187 was preempted by federal law except for its new criminal penalties for manufacture, sale, and use of false documents. League of United Latin Am. Citizens v. Wilson, 997 F. Supp. 1244, 1261 (C.D. Cal. 1997);
150. League of United Latin Am. Citizens v. Wilson, 908 F. Supp. 755, 786-87 (C.D. Cal. 1995). The case settled while on appeal. Patrick J. McDonnell, Prop. 187 Talks Offered Davis Few Choices, LA Times, July 30, 1999, at A3.
151. On "self-deportation," see Janet Boss & Carol Kasel, Proposition 187 Feedback and Fallout, Rocky Mountain News (Denver), Nov. 21, 1994, at 3N (reporting that according to Governor Wilson, "Proposition 187 would effectively lead people to 'self deport'").
152. See Hoefer et al., supra note 41, at 4 (detailing increases in percentage of unauthorized residents in Georgia, Washington, Arizona, Texas, and North Carolina).
153. See, e.g., Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 484 (M.D. Pa. 2007) (noting local population increase from 23,000 in 2000 to estimated 30,000 to 33,000 in 2005, primarily because of influx of migrants, most of them Latino). In the nineteenth century, the influx of Chinese to California led to state anti-Chinese laws before leading to federal Chinese exclusion.
154. See Motomura, Americans in Waiting, supra note 19, at 21-26 (tracing development of state and then federal regulation of Chinese immigrants).
155. See Plyler v. Doe, 457 U.S. 202, 215-16 (1982) (concluding that relevant inquiry in case at bar was "whether the equal protection clause ha[d] been violated" by Texas's refusal to reimburse local school boards for education of undocumented children).
156. See id. at 225
157. (explaining that states "enjoy no power with respect to the classification of aliens," and that the power is " 'committed to the political branches of the Federal Government'" (quoting Mathews v. Diaz, 426 U.S. 67, 81 (1976)));
158. id. at 237-38 n.l (Powell, J., concurring) (noting exclusivity of federal immigration power and limits on state power to regulate in area).
159. 424 U.S. 351 (1976);
160. see also Toll v. Moreno, 458 U.S. 1, 12-13 & n.18 (1982) (commenting on significance of De Canas).
161. A state or local law relating to immigration or immigrants is preempted if it meets any of the three tests set out in De Canas. First, federal law preempts any state attempt to regulate immigration. De Canas, 424 U.S. at 354. Second, state law is preempted if Congress intended to "occupy the field" in that it was the "clear and manifest purpose of Congress" to effect a "complete ouster of state power-including state power to promulgate laws not in conflict with federal laws."
162. Id. at 357-58 (citation omitted). Third, a state law is preempted if it "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress" or conflicts with federal law so as to make compliance with both state and federal law impossible.
163. Id. at 363 (citations omitted).
164. See generally Clare Huntington, The Constitutional Dimension of Immigration Federalism, 61 Vand. L. Rev. 787 (2008) (exploring role of federalism in immigration context).
165. De Canas, 424 U.S. at 352 (quoting Cal. Lab. Code § 2805(a) (West 2003)).
166. Plyler, 457 U.S. at 225 (summarizing this part of reasoning in De Canas);
167. see also De Canas, 424 U.S. at 365 (determining federal statute did not preempt state law). Writing in the shadow of his own opinion for the Court in De Canas, Justice Brennan had to concede in writing for the Plyler majority: " [T] he States do have some authority to act with respect to illegal aliens, at least where such action mirrors federal objectives and furthers a legitimate state goal."
168. Plyler, 457 U.S. at 225. But he distinguished the Texas statute by explaining that the California law "mirrored precisely the federal policy, of protecting the domestic labor market, underlying the immigration laws."
169. Id. at 208 n.5.
170. As amended ten years after De Canas, federal law expressly preempts state employer sanctions, see INA § 274A(h)(2), 8 U.S.C § 1324a(h)(2) (2006), with one exception that has been at issue in recent litigation, as discussed infra note 126.
171. Villas at Parkside Partners v. City of Farmers Branch, 496 F. Supp. 2d 757, 762 (N.D. Tex. 2007) (granting preliminary injunction);
172. see also Villas at Parkside Partners v. City of Farmers Branch, No. 3:06-CV-2371-L, 2008 WL 2201980, at *1, *19 (N.D. Tex. May 28, 2008) (granting permanent injunction). In January 2008, the City of Farmers Branch adopted a new ordinance requiring tenants to obtain a "residential occupancy license," which requires the city building inspector to verify with the federal government that the individual is "lawfully present" in the United States.
173. See Villas at Parkside Partners v. City of Farmers Branch, No. 3:06-CV-2371-L, 2008 WL 2201978, at *5 (N.D. Tex. May 28, 2008) (denying defendant's motion for leave to file defendant's original counterclaim for declaratory judgment).
174. City of Farmers Branch, 2008 WL 2201980, at *9-*10.
175. Id. at *10.
176. City of Farmers Branch, 496 F. Supp. 2d at 766-69;
177. see also City of Farmers Branch, 2008 WL 2201980, at *19 (granting permanent injunction).
178. 305 F. Supp. 2d 585, 591 (E.D. Va. 2004).
179. Id. at 608.
180. The court allowed the claim to proceed subject to factfinding on whether Virginia relied on federal standards, but it never decided that issue because it dismissed the plaintiffs' preemption claim for lack of standing. Equal Access Educ. v. Merten, 325 F. Supp. 2d 655, 660-72 (E.D. Va. 2004);
181. see Nathan G. Cortez, The Local Dilemma: Preemption and the Role of Federal Standards in State and Local Immigration Laws, 61 SMU L. Rev. 47, 53 (2008) (noting that court never decided whether Virginia was using nonfederal standards).
182. See Chicanos Por La Causa, Inc. v. Napolitano, No. 07-17272, 2008 WL 4225536, at *7-*8 (9th Cir. Sept. 17, 2008) (upholding state statute's requirement that Arizona employers use E-Verify by finding no conflict with employer sanctions provisions of IRCA) ;
183. accord Gray v. City of Valley Park, No. 4:07CV00881ERW, 2008 WL 294294, at *12-*19 (E.D. Mo. Jan. 31, 2008) (finding no preemption by federal immigration laws of city ordinance provisions against landlords leasing to illegal immigrants or employment of illegal immigrants).
184. See Lenni B. Benson, Separate, Unequal, and Alien: Comments on the Limits of Brown, 49 N.Y.L. Sch. L. Rev. 727, 733-34 (2004) (commenting on complexities of determining "lawful" immigration status in Equal Access Education).
185. 465 F. Supp. 2d 1043 (S.D. Cal. 2006).
186. Id. at 1047-48.
187. Id. at 1048.
188. Several weeks after this order, the city consented to a permanent injunction barring enforcement of the ordinance, and to paying $90,000 in plaintiffs' attorney fees. Garrett v. City of Escondido, No. 06CV24S4JAH (NLS) (S.D. Cal. Dec. 15, 2006) (order granting stipulated final judgment and permanent injunction).
189. 465 F. Supp. 2d at 1057.
190. Id.
191. 496 F. Supp. 2d 477 (M.D. Pa. 2007), appeal docketed, No. 07-3531 (3d Cir. Aug. 30, 2007).
192. Id. at 484-85.
193. Id. at 527-33.
194. Compare Cortez, supra note 115, at 64 (approving this aspect of City of Hazleton), with Cristina M. Rodríguez, The Significance of the Local in Immigration Regulation, 106 Mich. L. Rev. 567, 620-28 (2008) [hereinafter Rodriguez, Significance of the Local] (criticizing this aspect of City of Hazleton). The court also found that the savings clause in IRCA, codified at INA § 274A(h)(2), 8 U.S.C. § 1324a(h)(2) (2006), did not expressly allow states to adopt employer sanctions schemes that penalized employers through revocation of their business licenses.
195. See 496 F. Supp. 2d at 519-20 (finding employment provisions preempted by IRCA). In contrast, the federal court of appeals that rejected a preemption challenge to the Arizona employer sanctions statute found that this savings clause expressly authorized the Arizona scheme.
196. See Chicanos Por La Causa, Inc. v. Napolitano, No. 07-17272, 2008 WL 4225536, at *4-*7 (9th Cir. Sept. 17, 2008) (finding authorization for state licensing statutes in IRCA's savings clause);
197. accord Gray v. City of Valley Park, No. 4:07CV0081ERW, 2008 WL 294294, at *9-*12 (E.D. Mo. Jan. 31, 2008) (same).
198. 496 F. Supp. 2d at 530.
199. Id. at 530-31. The court also found that only federal immigration judges can determine immigration law status.
200. Id. at 532.
201. Here I do not-and need not-assume a default rule in favor of federal over subfederal immigration regulation in the absence of extensive federal enactments. But given that such enactments exist and are pervasive, it is fair to array contrasting views of preemption along a spectrum from the self-executing to the discretionary.
202. See generally Gerald L. Neuman, Discretionary Deportation, 20 Geo. Immigr. L.J. 611 (2006) [hereinafter Neuman, Discretionary Deportation] (exploring consequences of discretion in deportation policy).
203. See, e.g., INA § 276 (prosecution for illegal reentry).
204. See Cox & Posner, supra note 85, at 845-46 & nn.133-134 (analyzing enforcement statistics).
205. See Graham v. Richardson, 403 U.S. 365, 382 (1971) ("Congress does not have the power to audiorize the individual States to violate the Equal Protection Clause."
206. (citing Shapiro v. Thompson, 394 U.S. 618, 641 (1969))).
207. Compare Aliessa v. Novello, 754 N.E.2d 1085, 1098 (N.Y. 2001) (holding New York law that denied Medicaid benefits based on legal alien status violated equal protection), with Soskin v. Reinertson, 353 F.3d 1242, 1244 (10th Cir. 2004) (holding Colorado law which repealed optional Medicaid coverage for legal aliens did not violate equal protection).
208. See generally Aleinikoff, Martin, Motomura & Fullerton, Immigration and Citizenship, supra note 1, at 1246-60 (discussing implications of federal government's grant of authority to states to provide benefits to noncitizens).
209. See generally Aleinikoff, Martin, Motomura & Fullerton, Immigration and Citizenship, supra note 1, at 1185-89 (discussing limitations on class action litigation under the INA);
210. Hiroshi Motomura, Judicial Review in Immigration Cases After AADC: Lessons From Civil Procedure, 14 Geo. Immigr. L.J. 385 (2000) (discussingjudicial review of immigration decisions).
211. But cf. David A. Martin, Behind the Scenes on a Different Set: What Congress Needs to Do in the Aftermath of St. Cyr and Nguyen, 16 Geo. Immigr. L.J. 313, 321, 327 (2002) (arguing for strong consolidation provisions that are nonetheless designed to "keep open a real and meaningful chance for judicial consideration of all issues").
212. For criticism of restrictions on class actions in immigration litigation, see Jill E. Family, Threats to the Future of the Immigration Class Action, 27 Wash. U. J.L. & Pol'y (forthcoming 2008), available at http://ssrn.com/ abstract=1024812 (on file with the Columbia Law Review).
213. From this perspective, judicial review is problematic as a whole-not just whether judicial inquiry is narrow or broad-for it delays and distorts determinations that are relatively straightforward and thus prone only minimally to error. This explains the bars to judicial review in certain immigration cases, see INA § 242(a)(2), as well as skepticism of judicial review of agency decisions in other areas of law.
214. 8 U.S.C. § 1252(b) (9) (2006). The need to assess a pattern or practice that went beyond the individual case was the conceptual basis for court decisions that heard systemic challenges before the enactment of section 242(b)(9) in 1996.
215. See, e.g., McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 489-94 (1991) (upholding general collateral challenge to procedures used by INS in administration of certain IRCA provisions).
216. A similar choice between individual and systemic inquiries explains the divide in Hoffman Plastic Compounds, Inc. v. NLRB, where the majority and the dissent reached opposite conclusions about the status of unauthorized workers under the National Labor Relations Act depending on how narrowly or broadly they viewed unlawful work. 535 U.S. 137, 151, 153 (2002) (disagreeing about whether "allowing the Board to award backpay to illegal aliens would unduly trench upon explicit statutory prohibitions critical to federal immigration policy").
217. 8 U.S.C. § 1231(a) (5).
218. See generally Aleinikoff, Martin, Motomura & Fullerton, Immigration and Citizenship, supra note 1, at 1077-92 (discussing lawfulness of reinstatement of removal orders).
219. If the noncitizen expresses a fear of returning to the country designated in the prior removal order, the case will be referred to an asylum officer for a decision whether removal must be withheld under INA section 241(b)(3).
220. See 8 C.F.R. § 241.8 (2008).
221. Fernandez-Vargas v. Gonzales, 548 U.S. 30, 33 (2006) ("[S]tatute applies to those who entered before HRIRA and does not retroactively affect any right of, or impose any burden on, the continuing violator of the INA . . . .").
222. For a similar divide between majority and dissent, see Morales-Izquierdo v. Gonzales, 486 F.3d 484, 498 (9th Cir. 2007) (en banc) ("[A] previously removed alien who reenters the country illegally is not entided to a hearing before an immigration judge to determine whether to reinstate a prior removal order.").
223. 548 U.S. at 42-44.
224. Id. at 51 (Stevens, J., dissenting).
225. For more detailed analyses of this phenomenon, see generally Stephen Lee, Private Immigration Screening in the Workplace, 61 Stan. L. Rev. (forthcoming 2009), available at http://ssrn.com/abstract=1272238 (on file with the Columbia Law Review) (exploring role of employers in immigration enforcement);
226. Pham, Private Enforcement, supra note 32 (analyzing effectiveness of private enforcement of immigration laws). My focus on private actors in enforcement excludes other types of private involvement in immigration decisionmaking more generally, such as the role of family and employers who file immigrant petitions for relatives and employees.
227. See INA § 274A, 8 U.S.C. § 1324a(b)(1) (2006);
228. see also supra Part IIA (discussing employer sanctions).
229. See discussion supra Part II.A.
230. See Lee, supra note 142, at 27-30 (describing selective employer-government collaboration).
231. See Jennifer Gordon, Suburban Sweatshops: The Fight for Immigrant Rights 49-50 (2005) (describing employer use of employer sanctions to combat worker organizing);
232. Lee, supra note 142, at 11-15 (discussing how employers can utilize immigration laws to manipulate and control employees).
233. F. Ray Marshall, Economic Factors Influencing the International Migration of Workers, in Views Across the Border 163, 169 (Stanley R. Ross ed., 1978).
234. See Collins Foods Int'l, Inc. v. INS, 948 F.2d 549, 553-55 (9th Cir. 1991) (explaining employer's obligation to verify identity and work authorization documents);
235. Calavita, Employer Sanctions, supra note 69, at 1046-55, 1057, 1060 (describing how IRCA protects employers of unautfiorized workers).
236. E.g., Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 149 (2002) (finding "that awarding backpay to illegal aliens runs counter to policies underlying [the Immigration Reform and Control Act of 1986]");
237. see also supra note 74 and accompanying text.
238. Modifying the role of employers and other private actors in immigration law enforcement would ease some of the concerns mentioned here, if those changes reduced die complexity and discretion in their decisions.
239. For example, one local sheriff explained his reasons for entering into a section 287(g) agreement with the federal government by describing Mexicans: " "Their values are a lot different-their morals-than what we have here,' [the sheriff] said. 'In Mexico, there's nothing wrong with having sex with a 12-, 13-year-old girl .... They do a lot of drinking down in Mexico.' " Kristen Collins, Sheriffs Help Feds Deport Illegal Aliens, News & Observer (Raleigh), Apr. 22, 2007, at 1A
240. See, e.g., Deborah Sontag, Deported, By U.S. Hospitals: Immigrants, Spurned on Rehabilitation, Are Forced Out, N.Y. Times, Aug. 3, 2008, at A1 (describing how some U.S. hospitals return impecunious patients to their home countries).
241. See Alicia A. Caldwell, Associated Press, Texas Governor Proposes WebCams Along Border, S. Fla. Sun-Sentinel, June 9, 2006, at 2A (describing plan to put live feed of private property-mounted border monitoring videos on internet);
242. Associated Press, Texas Border Cam Test Catches 10 Illegal Immigrants, Chi. Sun-Times, Jan. 8, 2007, at 49 (describing website and resulting apprehensions).
243. See Rodríguez, Significance of the Local, supra note 126, at 600-05 (discussing evolution of sanctuary laws and congressional response to them).
244. See Rose Cuison Villazor, What Is a "Sanctuary"?, 61 SMU L. Rev. 133, 151-54 (2008) (complicating rhetorical use of "sanctuary" and highlighting subtler policies used by cities and states to limit cooperation with federal enforcement of immigration laws).
245. Plyler v. Doe, 457 U.S. 202, 210 (1982);
246. see also Motomura, Americans in Waiting, supra note 19, at 77-78 (explaining Plyler established territorial jurisdiction as basis for conferring certain constitutional protections on undocumented immigrants).
247. 457 U.S. at 218-19 (footnote omitted);
248. see also id. at 234 (Blackmun, J., concurring) (emphasizing same point made by majority opinion);
249. id. at 239 (Powell, J., concurring) (same);
250. Motomura, Americans in Waiting, supra note 19, at 160-61 (discussing public education as integral transitional instrument for undocumented immigrants).
251. Plyler, 457 U.S. at 223 (majority opinion);
252. see also id. at 221 (emphasizing importance of education in American society).
253. Id. at 222-23 (quoting Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954)).
254. Id. at 203.
255. See id. at 207-08 ("[T] he illegal alien of today may well be the legal alien of tomorrow, and that without an education, these undocumented children, [a]lready disadvantaged as a result of poverty, lack of English-speaking ability, and undeniable racial prejudices . . . will become permanently locked into the lowest socio-economic class." (internal quotations and citation omitted)).
256. On Reconstruction era restrictions on education for African Americans as a way to deny full citizenship, see generally James D. Anderson, The Education of Blacks in the South, 1860-1935 (1988).
257. Plyler, 457 U.S. at 213;
258. see also id. at 217 n.14, 221-22 (identifying abolition of unfavorable "caste or class" treatment toward any group as a goal of the Fourteenth Amendment and noting that "denial of education to some isolated group of children poses an affront to [this] goal [ ]").
259. Id. at 223 (quoting Brown, 347 U.S. at 493).
260. Id.;
261. see also id. at 222 n.20 ("[P]ublic schools are an important socializing institution, imparting those shared values through which social order and stability are maintained.").
262. See discussion of DREAM Act infra Part IVA.
263. See League of United Latin Am. Citizens v. Wilson, 908 F. Supp. 755, 774, 785-86 (C.D. Cal. 1995) (holding denial of "public elementary and secondary education to (i) children who are in the United States in violation of federal law, and (ii) children who are citizens or otherwise legally present, but whose parents or guardians are in the United States unlawfully" is in direct conflict with federal law).
264. This proposal was deleted from what became the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546 (codified in scattered sections of 8 U.S.C). It passed the House as a separate bill (H.R. 4134, 104th Cong. (1996)), but the Senate did not consider it.
265. See Aleinikoff, Martin, Motomura & Fullerton, Immigration and Citizenship, supra note 1, at 1372-73 (discussing California Proposition 187).
266. See discussion of DREAM Act infra Part IVA.
267. See discussion of Justice Powell's vote at supra text accompanying notes 14-15;
268. see also Linda S. Bosniak, Membership, Equality, and the Difference That Alienage Makes, 69 N.Y.U. L. Rev. 1047, 1121-23 (1994) [hereinafter Bosniak, Membership, Equality] (explaining that Justice Brennan's majority opinion showed "enormous compassion" for undocumented children but not their undocumented parents).
269. The rationale behind this model of integration is that full integration requires access to formal citizenship. This perspective on naturalization may express part of the American "nation of immigrants" tradition, as opposed to other countries where naturalization traditionally is a way to recognize or memorialize integration, not a means of fostering it See Motomura, Americans in Waiting, supra note 19, at 145-46 (comparing naturalization in Germany and the United States).
270. Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality 60 (1983);
271. see also Bosniak, Membership, Equality, supra note 169, at 1068-87 (discussing Walzer's contribution to immigration scholarship).
272. Walzer, supra note 171, at 52.
273. See Cristina M. Rodríguez, The Citizenship Paradox in a Transnational Age, 106 Mich. L. Rev. 1111, 1122-23 (2008) ("If we commit to treating immigrants as citizens, we may well erode what support exists for large-scale immigration, giving rise to policies that more strictly limit the number of people permitted to enter.").
274. See, e.g., Sarah Lueck, Bush Touts His Immigration View as House Republicans Push Theirs, Wall St. J., July 6, 2006, at A4 (reporting on President Bush's support for a "path to citizenship" for some illegal immigrants in the United States);
275. Jim Rutenberg, G.O.P. Draws Line in Border, N.Y. Times, May 26, 2006, at Al (describing House Republican majority's opposition to "paths to citizenship");
276. see also President George W. Bush, Address to the Nation on Immigration Reform (May 15, 2006), at http://www.white house.gov/news/releases/2006/05/ 20060515-8.html (on file with the Columbia Law Review) ("[I]llegal immigrants . . . should not be given an automatic path to citizenship.");
277. Press Release, Sen. Barack Obama, Obama Statement on President Bush's Speech on Immigration Reform (May 15, 2006), at http://obama.senate.gov/press/ 060515-obama-statement-23/ (on file with the Columbia Law Review) (asserting that comprehensive immigration reform requires "a path to citizenship" for undocumented immigrants).
278. See Cristina M. Rodríguez, Guest Workers and Integration: Toward a Theory of What Immigrants and Americans Owe One Another, 2007 U. Chi. Legal F. 219, 222 (arguing guestworker programs fail to incorporate immigrants into American social and civic life).
279. 305 F. Supp. 2d 585, 591 (E.D. Va. 2004) (noting that "Virginia Attorney General's September 5, 2002, memorandum to all Virginia public universities and colleges" stated that "the Attorney General is strongly of the view that illegal and undocumented aliens should not be admitted into our public colleges and universities at all" (citing Memorandum from the Commonwealth of Va. Attorney Gen. to Va. Pub. Univs. & Colls. (Sept 5, 2002)));
280. see also discussion supra Part II.C
281. 305 F. Supp. 2d at 593-94.
282. The district court rejected die foreign commerce and due process claims, and as Part ILC explained, the court allowed die claim to proceed subject to factfinding and later dismissed die preemption claim for lack of standing. Equal Access Educ. v. Merten, 325 F. Supp. 2d 655, 660-72 (E.D. Va. 2004).
283. See 305 F. Supp. 2d. at 598 (stating the case lacks an equal protection claim).
284. See Rodriguez, Significance of the Local, supra note 126, at 605-08 (highlighting "the inevitability of conflict between the federal government and states and localities on immigration-related matters," particularly with regard to access to education). Where, however, states and localities adopt measures to facilitate access to education, students who are unlawfully present can acquire a sense of social acceptance in spite of their immigration law status.
285. See Leisy Abrego, Legitimacy, Social Identity, and die Mobilization of Law: The Effects of Assembly Bill 540 on Undocumented Students in California, 33 Law & Soc Inquiry 709, 723-29 (2008) (arguing that California law granting in-state tuition status to undocumented students relieved stigma and provided a socially acceptable identity).
286. Rabin et al., supra note 20, at 50-56 (discussing educational restrictions in spite of Plyler).
287. See Olivas, State and Local Ordinances, supra note 15, at 55 (analogizing Hazleton ordinance to "our inglorious immigration history of racial exclusion");
288. discussion of anti-immigrant animus supra Part U.C.
289. See Motomura, Americans in Waiting, supra note 19, at 16-17, 23-24 (tracing early attempts to exclude Chinese immigrants following California gold rush).
290. See Michael J. Wishnie, Laboratories of Bigotry? Devolution of the Immigration Power, Equal Protection, and Federalism, 76 N.Y.U. L. Rev. 493, 497-98 (2001) (citing current state discrimination and predicting future acts of anti-immigrant discrimination by states).
291. See Peter H. Schuck, Taking Immigration Federalism Seriously, 2007 U. Chi. Legal F. 57, 60-64 (observing that many states are more generous than Congress to lawful and unlawful immigrants).
292. See Noah Pickus & Peter Skerry, Good Neighbors and Good Citizens: Beyond the Legal-Illegal Immigration Debate, in Debating Immigration 95, 111-13 (Carol Swain ed., 2007) (describing how state and local programs can foster integration);
293. Rodríguez, Significance of the Local, supra note 126, at 581 ("[T] he primary function state and local governments play is to facilitate die integration of immigrants into public life.").
294. See Jane Caplan & John Torpey, Introduction to Documenting Individual Identity: The Development of State Practices in the Modern World 1, 5 (Jane Caplan & John Torpey eds., 2001) ("[I]ndividual identification . . . has been enabling as well as subordinating, and has created rights as well as police powers.").
295. See Gérard Noiriel, The French Melting Pot Immigration, Citizenship, and National Identity 45 (Geoffroy de Laforcade trans., 1996) ("[I]dentification documents, and laws are what, in die final analysis, determine the 'identity' of immigrants.");
296. Torpey, supra note 63, at 10-17 (arguing states have strong interest in identifying both their subjects and foreigners);
297. Dean Spade, Documenting Gender, 59 Hastings I.J. 731, 761 (2008) (discussing increasing social and economic significance of personal documentation);
298. cf. Coutin, supra note 58, at 101 (observing that unauthorized migrants are not allowed to "'complete' their journeys by acquiring U.S. identity documents").
299. See Azam Ahmed & Karoun Demirjian, Credit Offered to Illegal Residents: Banks Target Workers Without Documents, Chi. Trib., Feb. 15, 2007, at 1 (describing banks' efforts to cultivate customers who are unauthorized migrants in die United States);
300. E. Scott Reckard et al., Banking on Illegal Immigrants: A Move to Issue Credit Cards to People Widiout Social Security Numbers Draws Anger and Praise, LA. Times, Feb. 14, 2007, at A1 (same).
301. REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat 302, 311-12 (codified at 49 U.S.CA. § 30301 (West 2008));
302. Aleinikoff, Martin, Motomura & Fullerton, Immigration and Citizenship, supra note 1, at 1403-05.
303. Aleinikoff, Martin, Motomura & Fullerton, Immigration and Citizenship, supra note 1, at 1404-05.
304. State of Cal., Little Hoover Comm'n, We the People: Helping Newcomers Become Califomians (2002).
305. City of New Haven, New Haven's Elm City Resident Cards-Fact Sheet available at http://www.cityofnewhaven.com/pdf-whatsnew/municipalidfactsheet.pdf (last visited Oct. 22, 2008) (on file with the Columbia Law Review) ;
306. Jeff Holtz, This Summer's Surprise Hit: An Elm City ID, N.Y. Times, Sept. 16, 2007, at 6CT (documenting need for identification cards and their popularity with city's immigrant community);
307. Jennifer Medina, New Haven Approves Program to Issue Illegal Immigrants IDs, N.Y. Times, June 5, 2007, at B6 (announcing start of New Haven immigrant identification card program).
308. See Jesse McKinley, ID Cards for Residents Pass a Vote in California, N.Y. Times, Nov. 15, 2007, at A20 (summarizing debate around San Francisco's decision to create immigrant identification card program).
309. Nat'l Res. Council, The New Americans: Economic, Demographic, and Fiscal Effects of Immigration 135-65 (James P. Smith & Barry Edmonston eds., 1997) (oudining immigration's theoretical effects on labor markets);
310. Philip Martin & Elizabeth Midgley, Immigration: Shaping and Reshaping America, 61 Population Bull. 1, 20 (2006) (highlighting economic tradeoffs inherent in immigration policy).
311. Cf. Howard F. Chang, The Disadvantages of Immigration Restriction as a Policy to Improve Income Distribution, 61 SMU L. Rev. 23, 25 (2008) (arguing that tax policies and transfer programs are more efficient than immigration restrictions as a way to protect least skilled native workers).
312. INA § 214(c)(9), 8 U.S.C. § 1184(c)(9) (2006). The fee is $750 for employers with twenty-five or fewer full-time equivalent workers employed in die United States.
313. See generally Aleinikoff, Martin, Motomura & Fullerton, Immigration and Citizenship, supra note 1, at 422-25 (detailing process of petitioning and qualifying for H-IB status).
314. See INA § 286(s). Colleges, universities, and nonprofit research institutions are exempt from the fee requirement.
315. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546 (codified in scattered sections of 8 U.S.C).
316. See H.R. 321, 106th Cong. (1st Sess. 1999) (denying removal or deportation of Robert Anthony Broley);
317. H.R. 4730, 105th Cong. (2d Sess. 1998) (same);
318. Anthony Lewis, The Quality of Mercy, N.Y. Times, Feb. 27, 1999, at A15 (describing McCollum's efforts to deny removal or deportation of Robert Anthony Broley).
319. See Ken Belson & Jill P. Capuzzo, Towns Rethink Laws Against Illegal Immigrants, N.Y. Times, Sept. 26, 2007, at Al (describing negative economic effects of town's laws against illegal immigrants).
320. See, e.g., Jennifer Gordon & RA Lenhardt Citizenship Talk: Bridging the Gap Between Immigration and Race Perspectives, 75 Fordham L. Rev. 2493, 2513-14 (2007) (questioning whether "political participation [is] a zero sum game, so that die more active immigrants become, the less power African Americans have");
321. Jennifer Gordon & RA. Lenhardt Rethinking Work and Citizenship, 55 UCLA L. Rev. 1161, 1173-85 (2008) (exploring conflict between African American and Latino low-wage workers);
322. Carol M. Swain, The Congressional Black Caucus and die Impact of Immigration on African American Unemployment, in Debating Immigration 175, 180-87 (Carol M. Swain ed., 2007) (describing adverse effects of Hispanic immigration on wages and working conditions of low-income blacks).
323. See generally Kevin R. Johnson, Hurricane Katrina: Lessons About Immigrants in the Administrative State, 45 Hous. L. Rev. 11, 58-64 (2008) (describing aftermath of Hurricane Katrina wherein "New Orleans Mayor Ray Nagin expressed fear about the future prospects of his city: 'How do I ensure that New Orleans is not overrun by Mexican workers?'" and explaining diat "[c]oming from a prominent African American political leader, this statement inflamed anti-immigrant sentiment in the black community").
324. Walzer, supra note 171, at 39 (citing Henry Sidgwick, The Elements of Politics 295-96 (1891)).
325. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat 3009-546 (codified in scattered sections of 8 U.S.C).
326. Though this is not a legally binding agreement following back-and-forth bargaining, this view of immigration adopts ideas of fairness and justice often associated with contracts. Motomura, Americans in Waiting, supra note 19, at 15-62 (discussing immigration as contract).
327. See id. at 80-114 (discussing emergence of "immigration as affiliation" as conception of lawful immigration).
328. I am grateful to Stephen Lee for suggesting that the treatment of refugees, asylees, and victims of trafficking and crimes is relevant here.
329. Convention Relating to the Status of Refugees art. 33, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 137 (prohibiting participating states from returning people who were refugees prior to 1951 to a country where "life or freedom would be threatened on account of his race, religion, nationality," or membership in another social category) (adhered to by 143 states as of March 2006).
330. This Convention was later applied to all refugees. Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (expanding scope of equal status protection embodied in Convention Relating to the Status of Refugees to refugees covered by definition irrespective of date) ;
331. see also David A. Martin, T. Alexander Aleinikoff, Hiroshi Motomura & Maryellen Fullerton, Forced Migration: Law and Policy 4 (2007) (characterizing refugee law as marking out privileges based on particular suffering or danger that "trump die normal law of migration control").
332. Martin, Aleinikoff, Motomura & Fullerton, Forced Migration, supra note 208, at 2-4 (arguing Nazi regime's horrors spurred development of refugee protections).
333. Pub. L. No. 105-100, §§ 201-204, 111 Stat. 2193-201 (1997);
334. see also supra Part II.A
335. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat 3009-546 (codified in scattered sections of 8 U.S.C).
336. See Coutin, supra note 58, at 63-66 (examining NACARA's recognition of ambiguously positioned class members).
337. I refrain from citing the Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat 3359 (1986), because it is generally perceived as an amnesty for unlawful migrants, as opposed to my examples of migrants whose prior unlawful status is largely forgotten (asylees) or overlooked (NAGARA).
338. These are petitioners under the Violence Against Women Act (VAWA) and T (trafficking) and U (victims) visas. See INA § 101(a)(51), 8 U.S.C. § 1101(a)(51) (2006) (defining VAWA petitioners);
339. id. § 101 (a)(15)(T)-(U) (defining T visa and U visa petitioners);
340. Aleinikoff, Martin, Motomura & Fullerton, Immigration and Citizenship, supra note 1, at 433-37 (discussing purposes and procedures of T and U visas).
341. Aleinikoff, Martin, Motomura & Fullerton, Immigration and Citizenship, supra note 1, at 1383 (summarizing proposed legislation and citing sources).
342. See Coutin, supra note 58, at 199 ("'Following the rules' was singled out as a moral virtue, as in die statement that the new [legalization] program 'should not permit undocumented workers to gain an advantage over those who have followed the rules.'").
343. See INA §§ 274(a), 274C(e)-(f) (criminalizing harboring or preparing false documents for illegal aliens);
344. U.S.C. § 1546(a) (2000) (criminalizing fraud of visas, permits, and other immigration status documentation).
345. Congress expanded criminal liability for reentry or attempted reentry without audiorization after removal or after having departed while a removal order was in effect. See INA § 276, 8 U.S.C § 1326.
346. See generally Juliet Stumpf, The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power, 56 Am. U. L. Rev. 367, 379-92 (2006) (discussing closer links between criminal law and immigration law).
347. Spencer S. Hsu, Immigration Prosecutions Hit New High, Wash. Post June 2, 2008, at Al. The number of convictions for immigration offenses climbed from 6,197 in FY 1995, to 14, 277 in FY 2002, and then to 31,208 in FY 2004. In FY 2004, immigration-related crimes accounted for 33.9% of all federal criminal convictions. TRAC Immigration, DHS-Immigration Criminal Enforcement Trends, at http://trac.syr.edu/ tracins/highlights/v04/dhstrends.html (last visited Oct 9, 2008) (on file with the Columbia Law Review);
348. TRAC Immigration, DHS-Immigration Ranks First in Terms of Share of All Federal Criminal Convictions, at http://trac.syr.edu/ttacins/highlights/v04/ dhsshare. html (last visited Oct. 9, 2008) (on file with the Columbia Law Review).
349. Julia Preston, 270 Immigrants Sent to Prison in Federal Push, N.Y. Times, May 24, 2008, at Al;
350. see TRAC Immigration, Prosecutions for 2008: Referring Agency: Department of Homeland Security Immigration and Customs Enforcement at http:// trac. syr.edu/immigration/reports/192/ (last visited Oct 4, 2008) (on file with the Columbia Law Review) (providing statistics on rise in prosecutions initiated by enforcement in the U.S. interior). In contrast, the federal government brought criminal charges against a very small number of unauthorized workers after a workplace raid in Laurel, Mississippi, several months after the Postville raid.
351. See Adam Nossiter, Nearly 600 Were Arrested in Factory Raid, Officials Say, N.Y. Times, Aug. 27, 2008, at A16 (reporting that according to immigration experts, "the relatively low number of criminal cases could represent a shift in government policy," but that a government spokesperson rejected suggestion diat policy had changed).
352. See generally Neuman, Discretionary Deportation, supra note 130, at 618-24 (explaining that uncompromising statutory rules can impose hardship that discretionary mechanisms can ameliorate).
353. See, e.g., Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546 (codified in scattered sections of 8 U.S.C);
354. Aleinikoff, Martin, Motomura & Fullerton, Immigration and Citizenship, supra note 1, at 789-812 (summarizing discretionary relief" through cancellation of removal, including stricter requirements imposed in 1996);
355. Motomura, Americans in Waiting, supra note 19, at 54-57, 98-99 (noting that recently "waivers and cancellation of removal have become much harder to get").
356. See Shortfalls of the 1996 Immigration Reform Legislation: Hearing Before the Subcomm. on Immigration, Citizenship, Refugees, Border Security and International Law of the H. Comm. on the Judiciary, 110th Cong. 42 (2007) (statement of Hiroshi Motomura, Kenan Distinguished Professor of Law, University of North Carolina-Chapel Hill) (discussing, in addition to discretion, reductions in judicial review and other shifts within federal decision making authority).
357. See INA § 240A, 8 U.S.C. § 1229b (2006) (enacting requirements for cancellation of removal).
358. Of course, these categories are oversimplifications, and the labels that I employ may be perilous. One might label pragmatic arguments as "consequentialist," and moral arguments as "rights-based." The "rights-based" label may be especially misleading, however. I do not mean to suggest that moral rhetoric necessarily articulates a claim "as of right" to legalization or other benefits. What I call a moral argument is better understood as an argument based on policy, not on a claim of right.
359. Plyler v. Doe, 457 U.S. 202, 218 n.17 (1982) (quoting Administration's Proposals on Immigration and Refugee Policy: J. Hearing before the Subcomm. on Immigration, Refugees, and International Law of the H. Comm. on the Judiciary and the Subcomm. on Immigration and Refugee Policy of the S. Comm. on the Judiciary, 97th Cong. 9 (1981) (testimony of Hon. William French Smith, U.S. Attorney General));
360. cf. Linda S. Bosniak, Opposing Prop. 187: Undocumented Immigrants and the National Imagination, 28 Conn. L. Rev. 555, 581-90 (1996) (critiquing arguments that assess justice claims inside a "national imagination" rather than thinking in transnational or postnational terms). In contrast, all of the pragmatic and moral arguments that I identify fit within a "national imagination" in that they advance justice claims as a matter of national citizenship.
361. 457 U.S. at 220, 226;
362. see also Bosniak, Membership, Equality, supra note 169, at 1121-23 (observing that it mattered a great deal to die Plyler Court that the children had not chosen to come to the United States).
363. See United States v. Wong Kim Ark, 169 U.S. 649, 693 (1898) (affirming that Fourteenth Amendment confers citizenship by birth within territory of United States).
364. See generally Aleinikoff, Martin, Motomura & Fullerton, Immigration and Citizenship, supra note 1, at 15-44 (describing longstanding principle of jus soli);
365. Motomura, Americans in Waiting, supra note 19, at 72-73, 114 (same). Professors Peter Schuck and Rogers Smith have argued that the clause should be interpreted more restrictively to deny citizenship to children whose parents have not been admitted as permanent residents of the United States, but theirs is not the prevailing view.
366. See Peter H. Schuck & Rogers M. Smith, Citizenship Without Consent: Illegal Aliens in the American Polity 118 (1985) ("[C]itizenship at birth would not be guaranteed to the native-born children of those persons - illegal aliens and 'nonimmigrant' aliens-who have never received the nation's consent to their permanent residence within it").
367. For criticism of Schuck and Smith's interpretation of the Fourteenth Amendment, see Societal and Legal Issues Surrounding Children Born in the United States to Illegal Alien Parents: J. Hearing Before the Subcomm. on Immigration and Claims and the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. 103-09 (1995) (statement of Gerald L. Neuman, Professor, Columbia University Law School) (describing Schuck and Smith's revisionist theory of the citizenship clause as "poorly reasoned," "historically inaccurate," and "completely circular"). Professor Schuck later testified in Congress in opposition to legislation that would have limited jus soli citizenship to the children of citizens and lawful permanent residents.
368. See id. at 97-103.
369. See, e.g., H.R.J. Res. 46, 109th Cong. (2005) (proposing constitutional amendment denying citizenship to individuals born in U.S. if neither parent is a U.S. citizen or owes permanent allegiance to the United States);
370. H.R.J. Res. 42, 108th Cong. (2003) (same).
371. See, e.g., Schuck & Smith, supra note 227, at 94 (arguing in the context of interpreting Fourteenth Amendment that "[i]f mutual consent is the irreducible condition of membership in the American polity, it is difficult to defend a practice that extends birthright citizenship to the natives-bom children of illegal aliens").
372. See, e.g., David A. Martin, Membership and Consent: Abstract or Organic?, 11 Yale J. Int'l L. 278, 282-84, 291-94 (1985) (reviewing Schuck & Smith, supra note 227) (noting complications associated with birthright citizenship and ascriptive citizenship rules).
373. See discussion supra Part ILA
374. See, e.g., Coutin, supra note 58, at 122-48 (discussing effect of remittances on Salvadorian economy);
375. id. at 7 (citing figures); id. at 11 (citing sources).
376. See Douglas S. Massey, Jorge Durand & Nolan J. Malone, Beyond Smoke and Mirrors: Mexican Immigration in an Era of Economic Integration 118-21 (2003) (discussing trend of declining wages and increased criminalization of undocumented workers).
377. Max Frisch actually wrote: "We wanted workers, but people came." Max Frisch, Überfremdung I, in Schweiz als Heimat? 219 (1990) ("Man hat Arbeitskräfte gerufen, und es kommen Menschen.").
378. See Motomura, Americans in Waiting, supra note 19, at 126-32 (describing national origins system).
379. See id. at 131-32.
380. See INA §101 (a)(15)(E), 8 U.S.C. § 1101(a)(15)(E) (2006) (distinguishing treaty investors and traders who come to United States from other "immigrants").
381. See U.S.-Chile Free Trade Agreement, U.S.-Chile, ch. 14, §3, June 6, 2003, available at http://www.ustr.gov/assets/Trade-Agreements/Bilateral/Chile- FTA/Final-Texts/asset-upload-file535-3989.pdf (on file with the Columbia Law Review);
382. U.S.Singapore Free Trade Agreement, U.S.-Sing., ch. 11, § 3 , May 6, 2003, available at http:// www.ustr.gov/assets/Trade-Agreements/Bilateral/ Singapore-FTA/Final-Texts/asset-upload-file708-4036.pdf (on file with the Columbia Law Review);
383. North American Free Trade Agreement, U.S.-Can.-Mex., Annex 1603 § C, Dec. 17, 1992, 32 I.L.M. 605 (1993).
384. See generally Aleinikoff, Martin, Motomura & Fullerton, Immigration and Citizenship, supra note 1, at 431-32 (discussing nonimmigrant categories based on trade and other international agreements).
385. To be sure, the idea of "needs" is itself complex. If wages rose sufficiendy, the jobs would not go unfilled, but the question remains whether such wage levels would render U.S. employers uncompetitive in a global economy.
386. See Hiroshi Motomura, We Asked for Workers, but Families Came: Time, Law, and die Family in Immigration and Citizenship, 14 Va. J. Soc. Pol'y & L. 103, 114-18 (2006) (discussing relationship between family-based immigration and integration of immigrants).
387. See Pam Belluck, Healthy Korean Economy Draws Immigrants Home, N.Y. Times, Aug. 22, 1995, at 1 (describing reverse migration of immigrants from South Korea);
388. Kevin Cullen, Going Full Circle: Native Land's New Prosperity Has Many Reversing Their Exodus, Boston Globe, Mar. 19, 2007, at Al (describing reverse migration of Irish immigrants);
389. Kirk Semple, A Land of Opportunity Lures Poles Back Home, N.Y. Times, Sept. 21, 2008, at A37 (describing reverse migration of Polish immigrants).