The intersection of race and class in U.S. Immigration law and enforcement

Law and Contemporary Problems

Volumn 72, Issue 4, 2009, Pages 1-35

  Johnson, Kevin R ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 77954337077     PISSN: 00239186     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (354)

1. See generally RODOLFO ACUÑA, OCCUPIED AMERICA: A HISTORY OF CHICANOS (5th ed. 2004).
2. MARIO BARRERA, RACE & CLASS IN THE SOUTHWEST: A THEORY OF RACIAL INEQUALITY (1979).
3. ROBERT BLAUNER, RACIAL OPPRESSION IN AMERICA (1972).
4. NOEL IGNATIEV, HOW THE IRISH BECAME WHITE (1995).
5. DAVID R. ROEDIGER, THE WAGES OF WHITENESS: RACE & THE MAKING OF THE AMERICAN WORKING CLASS (1991).
6. See, e.g., EMMA COLEMAN JORDAN & ANGELA P. HARRIS, WHEN MARKETS FAIL: RACE AND ECONOMICS (2006).
7. Dorothy A. Brown, Race, Class, and Gender Essentialism in Tax Literature: The Joint Return, 54 WASH. & LEE L. REV. 1469 (1997).
8. Essay Collection, Classcritspart: Part I. Thinking Through Law's Questions of Class, Economics, and Inequality, 56 BUFFALO L. REV. 859 (2008).
9. Margaret E. Montoya, Class in LatCrit: Theory and Praxis in a World of Economic Inequality, 78 DENV. U. L. REV. 467 (2001).
10. Beverly I. Moran, Exploring the Mysteries: Can We Ever Know Anything About Race and Tax?, 76 N.C.L. REV. 1629 (1998).
11. Robert E. Suggs, Poisoning the Well: Law & Economics and Racial Inequality, 57 HASTINGS L.J. 255 (2005).
12. See generally THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE (David Kairys ed., 3d ed. 1998) (offering chapters with perspectives on Critical Legal Studies from leading scholars).
13. For a recent analysis of issues of race in the law, see LAW & CLASS IN AMERICA: TRENDS SINCE THE COLD WAR (Paul D. Carrington & Trina Jones eds., 2006).
14. See Darren Lenard Hutchinson, Critical Race Histories: In and Out, 53 AM. U. L. REV. 1187, 1191-96 (2004).
15. see also Symposium, Minority Critiques of the Critical Legal Studies Movement, 22 HARV. C.R.-C.L.L. REV. 297 (1987) (analyzing the failure of Critical Legal Studies to adequately incorporate race into its analysis).
16. A 2005 symposium analyzed the need to integrate issues of class into Critical Race Theory scholarship. See Symposium, Going Back to Class? The Reemergence of Class in Critical Race Theory, 11 MICH. J. RACE & L. 1 (2005).
17. see also Richard Delgado, Crossroads and Blind Alleys: A Critical Examination of Recent Writing About Race, 82 TEX. L. REV. 121, 122-23, 151 (2003) (calling on critical race scholarship to more thoroughly consider class and material deprivation in the analysis of racial subordination).
18. See Richard A. Boswell, Racism and U.S. Immigration Law: Prospects for Reform After "9/11?," 7 J. GENDER RACE & JUST. 315, 315-16 (2003) ("While race and class have been a constant and recurring theme in U.S. immigration law, it is only recently that legal scholars have begun to give it serious attention.").
19. see also Ali Noorani, Race, Class, and the Emergence of an Immigrant Rights Movement, 31 FLETCHER F. WORLD AFFAIRS 185, 187-89, 192-93 (2007) (analyzing influence of race and class on the possible emergence of an immigrant rights movement).
20. See infra II-III.
21. See Lennon v. INS, 527 F.2d 187, 189 (2d Cir. 1975) (describing the grounds for exclusion of noncitizens under the U.S. immigration laws as "like a magic mirror, reflecting the fears and concerns of past Congresses").
22. Pub. L. No. 89-236, 79 Stat. 911 (1965) (codified as amended in scattered sections of 8 U.S.C. (2009)).
23. See generally JOHN HIGHAM, STRANGERS IN THE LAND: PATTERNS OF AMERICAN NATIVISM 1860-1925 (3d ed. 1994) (analyzing the political history surrounding congressional passage of the national-origins quotas system in 1924).
24. For a careful analysis of whether Congress contemplated the increase in immigration from Asia in enacting the 1965 legislation that repealed the national-origins quota system, see Gabriel J. Chin, The Civil Rights Revolution Comes to Immigration Law: A New Look at the Immigration and Nationality Act of 1965, 75 N.C.L. REV. 273 (1996).
25. See infra II.A.2. The per-country ceiling generally limits the number of immigrants from any single country that can be admitted to the United States in any one year to 26,000.
26. See Immigration & Nationality Act (INA) § 202(a), 8 U.S.C. § 1152(a).
27. See infra II.A.
28. See infra II.B.
29. See Kevin R. Johnson, The End of "Civil Rights" as We Know It?: Immigration and Civil Rights in the New Millennium, 49 UCLA L. REV. 1481, 1499-510 (2002).
30. See Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163 (codified as amended in scattered sections of 8, 18, and 22 U.S.C.) [hereinafter "INA"] (comprehensive federal immigration law passed by Congress in 1952 and amended almost annually since).
31. See infra II-III.
32. See generally PETER BRIMELOW, ALIEN NATION: COMMON SENSE ABOUT AMERICA'S IMMIGRATION DISASTER (1995).
33. VICTOR DAVIS HANSON, MEXIFORNIA: A STATE OF BECOMING (2003).
34. SAMUEL P. HUNTINGTON, WHO ARE WE? THE CHALLENGES TO AMERICA'S NATIONAL IDENTITY (2004).
35. ARTHUR M. SCHLESINGER, JR., THE DISUNITING OF AMERICA (1991).
36. See generally LINDA BOSNIAK, THE CITIZEN & THE ALIEN: DILEMMAS OF CONTEMPORARY MEMBERSHIP (2006) (analyzing ambivalence in the United States over the proper treatment of immigrants).
37. See infra II.A.
38. See RICHARD DELGADO & JEAN STEFANCIC, CRITICAL RACE THEORY: AN INTRODUCTION 51-56 (2001) (defining the Critical Race Theory concept of "intersectionality").
39. See Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 STAN. L. REV. 1241 (1991) (discussing structural, political, and representational intersectionality for women of color).
40. Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 STAN. L. REV. 581 (1990) (analyzing similar concepts).
41. See generally CRITICAL RACE FEMINISM: A READER (Adrien Katherine Wing ed., 2d ed. 2003) (collecting foundational readings in the field of Critical Race Feminism, which is premised on the concept of intersectionality).
42. Symposium, The Future of Critical Race Feminism, 39 U.C. DAVIS L. REV. 729 (2006) (analyzing the evolution of Critical Race Feminism from many perspectives).
43. Compared to the overall U.S. population, immigrants tend to be overrepresented in the lowest- and highest-skilled jobs. See JEFFREY S. PASSEL, PEW HISPANIC CENTER, UNAUTHORIZED MIGRANTS: NUMBERS & CHARACTERISTICS 24 (2005) ("Some have characterized the educational distribution of immigrants as an 'hourglass' because immigrants tend to be overrepresented at both extremes relative to natives."). This article focuses on undocumented noncitizens in the lower-skilled (and more modestly paid) end of the job spectrum.
44. See Kevin R. Johnson, Public Benefits and Immigration: The Intersection of Immigration Status, Ethnicity, Gender, and Class, 42 UCLA L. REV. 1509, 1519-34 (1995).
45. see also Jennifer Gordon & R.A. Lenhardt, Citizenship Talk: Bridging the Gap Between Immigration and Race Perspectives, 75 FORDHAM L. REV. 2493, 2508-09 (2007) (analyzing the need for immigration scholars to probe the role of race in U.S. immigration law and its enforcement).
46. Kevin R. Johnson, Race and the Immigration Laws: The Need for Critical Inquiry, in CROSSROADS, DIRECTIONS, & A NEW CRITICAL RACE THEORY 187 (Francisco Valdes et al. eds., 2002) (advocating increased analysis by Critical Race Theorists of the impacts of U.S. immigration law and its enforcement).
47. Kevin R. Johnson, Race Matters: Immigration Law and Policy Scholarship, Law in the Ivory Tower, and the Legal Indifference of the Race Critique, 2000 U. ILL. L. REV. 525, 535-46 (2000) (same).
48. Critical inquiry into U.S. immigration law and its enforcement has increased in recent years. See, e.g., Raquel Aldana, On Rights, Federal Citizenship, and the "Alien", 46 WASHBURN L.J. 263, 266 (2007).
49. Raquel Aldana & Sylvia R. Lazos Vargas, "Aliens" in Our Midst Post-9/11: Legislating Outsiderness Within the Borders, 38 U.C. DAVIS L. REV. 1683, 1684 (2005).
50. María Pabón López, The Phoenix Rises From El Cenizo: A Community Creates and Affirms a Latino/a Border Cultural Citizenship Through Its Language and Safe Haven Ordinances, 78 DENV. U. L. REV. 1017 (2001).
51. George A. Martínez, Immigration and the Meaning of United States Citizenship: Whiteness and Assimilation, 46 WASHBURN L.J. 335 (2007).
52. Mary Romero & Marwah Serag, Violation of Latino Civil Rights Resulting From INS and Local Police's Use of Race, Culture, and Class Profiling: The Case of the Chandler Roundup in Arizona, 52 CLEV. ST. L. REV. 75 (2005).
53. Sylvia R. Lazos Vargas, The Immigrant Rights Marches (Las Marchas): Did the "Gigante" (Giant) Wake Up or Does It Still Sleep Tonight?, 7 NEV. L.J. 780 (2007).
54. Gerald L. Neuman, A Lost Century of American Immigration Law (1776-1875), 93 COLUM. L. REV. 1833, 1841-84 (1993).
55. See KEVIN R. JOHNSON, THE "HUDDLED MASSES" MYTH: IMMIGRATION & CIVIL RIGHTS 91-108 (2004).
56. See Kevin R. Johnson, Race, The Immigration Laws, and Domestic Race Relations: A "Magic Mirror" into the Heart of Darkness, 73 IND. L.J. 1111, 1120-36 (1998) (detailing exclusionary policies enacted in U.S. immigration laws as well as the national-origins quotas system that "reflects this nation's preoccupation with its ethnic balance").
57. See generally BILL ONG HING, MAKING & REMAKING ASIAN AMERICA THROUGH IMMIGRATION POLICY, 1850-1990 (1993) (documenting history of Chinese exclusion and related laws).
58. LUCY E. SALYER, LAWS HARSH AS TIGERS: CHINESE IMMIGRANTS & THE SHAPING OF MODERN IMMIGRATION LAW (1995) (same).
59. RONALD TAKAKI, STRANGERS FROM A DIFFERENT SHORE: A HISTORY OF ASIAN AMERICANS (1998) (same).
60. E.g., INA § 212(a)(4)(A), 8 U.S.C. § 1182(a)(4)(A) ("Any alien who . . . is likely at any time to become a public charge is inadmissible.").
61. See MAE M. NGAI, IMPOSSIBLE SUBJECTS: ILLEGAL ALIENS & THE MAKING OF MODERN AMERICA xix-xx (2004) (analyzing the importance of terminology in the legal and public discussion of immigration).
62. 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, 264 (1996-97) ("Even if they have lived in this country for many years, have had children here, and work and have deep community ties in the United States, noncitizens remain aliens, an institutionalized 'other,' different and apart from 'us.'").
63. See Jayashri Srikantiah, Perfect Victims and Real Survivors: The Iconic Victim in Domestic Human Trafficking Law, 87 B.U.L. REV. 157, 188-91 (2007) (discussing "illegal alien" stereotype). 33. Id. at 188-89.
64. See United States v. Carolene Prods. Co., 304 U.S. 144, 152-53 n.4 (1938) ("[P]rejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for more searching judicial inquiry.").
65. see also City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439-40 (1985) (stating the general rule that courts should apply strict scrutiny review to legislation that includes suspect classifications).
66. McLaughlin v. Florida, 379 U.S. 184, 192 (1964) ("[T]he central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States.").
67. Bolling v. Sharpe, 347 U.S. 497, 499 (1954) ("Classifications based solely upon race must be scrutinized with particular care, since they are contrary to our traditions and hence constitutionally suspect.").
68. For the contention that immigrants are discrete and insular minorities deserving of judicial protection, see JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 161-62 (1980).
69. See also David Cole, Enemy Aliens, 54 STAN. L. REV. 953, 981 (2002) ("[T]he fact that . . . aliens [cannot] vote makes it that much more essential that the basic rights reflected in the Bill of Rights be extended to aliens in our midst. As a group that is subject to government regulation but denied a vote, aliens are without a meaningful voice in the political bargains struck by our representative system.").
70. Neal Katyal, Equality in the War on Terror, 59 STAN. L. REV. 1365, 1383 (2007) ("Political accountability is a crucial component for deference, and when legislation only impacts people without a vote, it cannot be easily justified . . . ."). When the states have disadvantaged noncitizens through various alienage classifications in its laws and policies, the Supreme Court at times has treated them as discrete and insular minorities and subjected the classification to strict scrutiny review.
71. See, e.g., Sugarman v. Dougall, 413 U.S. 634, 642 (1973) (applying strict scrutiny to state alienage classification).
72. Graham v. Richardson, 403 U.S. 365, 372 (1971) ("[C]lassifications based on alienage . . . are inherently suspect and subject to close judicial scrutiny. Aliens as a class are a prime example of a 'discrete and insular minority' for whom such heightened judicial solicitude is appropriate.") (citation omitted).
73. See Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581, 609 (1889) (rejecting constitutional challenge to the Chinese Exclusion Act and holding that Congress possesses "plenary power" over immigration matters and that its judgment on such matters is "conclusive" upon the judiciary).
74. See, e.g., Demore v. Kim, 538 U.S. 510, 522-23 (2003) (finding no due process violation for the mandatory detention of a lawful permanent resident who was awaiting a deportation hearing).
75. Fiallo v. Bell, 430 U.S. 787, 792 (1977) (acknowledging the "'long recognized'" view that the U.S. government may exercise its power to remove or exclude noncitizens as an aspect of national sovereignty) (citations omitted).
76. Mathews v. Diaz, 426 U.S. 67, 80-82 (1976) (noting that the powers to exclude and deport noncitizens have "no permissible counterpart" with U.S. citizens); Ping (The Chinese Exclusion Case), 130 U.S. at 609 (holding that Congress's decisions on immigration admissions criteria was "conclusive" on the judiciary).
77. See infra II.A.
78. See, e.g., Saenz v. Roe, 526 U.S. 489, 502-05 (1999) (holding that a state cannot provide reduced public benefits to new residents). 39. See infra II-III.
79. See Kevin R. Johnson, Minorities, Immigrant and Otherwise, 118 YALE L.J. POCKET PART 77, 77-81 (2008), available at http://thepocketpart.org/2008/10/28/johnson.html (arguing that corporate law principles providing various remedies to protect minority rights of shareholders can provide solutions for modern constitutional law of immigration).
80. see also Gabriel J. Chin, Segregation's Last Stronghold: Race Discrimination and the Constitutional Law of Immigration, 46 UCLA L. REV. 1, 53-58 (1998) (analyzing the continuing vitality and modern significance of plenary power doctrine).
81. See Demore, 538 U.S. at 522 (upholding the mandatory detention of an immigrant convicted of an "aggravated felony" pending his deportation and emphasizing that "this Court has firmly and repeatedly endorsed the proposition that Congress may make rules as to aliens that would be unacceptable if applied to citizens.") (citations omitted).
82. see also Margaret H. Taylor, Demore v. Kim: Judicial Deference to Congressional Folly, in IMMIGRATION STORIES 343, 344-45 (David A. Martin & Peter H. Schuck eds., 2005) (contending that the decision in Demore v. Kim was influenced by fears surrounding the "war on terror" after September 11, 2001).
83. Emerging scholarship has analyzed the intersection of immigration and criminal law exemplified by Demore v. Kim. See, e.g., Jennifer M. Chacón, Unsecured Borders: Immigration Restrictions, Crime Control, and National Security, 39 CONN. L. REV. 1827 (2007).
84. Stephen H. Legomsky, The New Path of Immigration Law: Asymmetric Incorporation of Criminal Justice Norms, 64 WASH. & LEE L. REV. 469 (2007).
85. Teresa A. Miller, Citizenship & Severity: Recent Immigration Reforms and the New Penology, 17 GEO. IMMIGR. L.J. 611 (2003).
86. Juliet Stumpf, The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power, 56 AM. U. L. REV. 367 (2006).
87. See, e.g., T. ALEXANDER ALEINIKOFF, SEMBLANCES OF SOVEREIGNTY: THE CONSTITUTION, THE STATE, & AMERICAN CITIZENSHIP (2002).
88. GERALD L. NEUMAN, STRANGERS TO THE CONSTITUTION: IMMIGRANTS, BORDERS, & FUNDAMENTAL LAW (1996).
89. Kif Augustine-Adams, The Plenary Power Doctrine After September 11, 38 U.C. DAVIS L. REV. 701 (2005); Michael Scaperlanda, Polishing the Tarnished Golden Door, 1993 WIS. L. REV. 965 (1993).
90. Michael Scaperlanda, Polishing the Tarnished Golden Door, 1993 WIS. L. REV. 965 (1993).
91. See INA § 214(b), 8 U.S.C. § 1184(b) (presuming that every noncitizen seeking admission to the United States is an immigrant, i.e., a noncitizen who seeks to remain indefinitely in this country).
92. KEVIN R. JOHNSON, OPENING THE FLOODGATES: WHY AMERICA NEEDS TO RETHINK ITS BORDERS AND IMMIGRATION LAWS 54 (2007) (discussing the practical significance of this presumption in U.S. immigration laws).
93. See infra II.A.
94. See infra II.A-B.
95. The receipt of public benefits by U.S. citizens, as the public discussion of welfare recipients demonstrates, is also deeply controversial and often the subject of heated public debate in the United States; race-and the stereotypical African American "welfare queen"-is central to the discussion.
96. See Catherine R. Albiston & Laura B. Nielsen, Welfare Queens and Other Fairy Tales: Welfare Reform and Unconstitutional Reproductive Controls, 38 HOW. L.J. 473, 476-88 (1995) (analyzing the racialized images of Black women in the debate over welfare and welfare reform in the United States).
97. Angela Onwuachi-Willig, The Return of the Ring: Welfare Reform's Marriage Cure as the Revival of Post-Bellum Control, 93 CAL. L. REV. 1647, 1665-73 (2005) (same).
98. See INA § 212(a)(4)(A), 8 U.S.C. § 1182(a)(4)(A) ("Any alien who . . . is likely at any time to become a public charge is inadmissible."). The INA further provides that the receipt of public benefits within five years of admission also may result in the deportation of an immigrant. See INA § 237(a)(5), 8 U.S.C. § 1227(a)(5).
99. INA § 212(a)(4)(B), 8 U.S.C. § 1182(a)(4)(B).
100. INA § 213A(a)(1), 8 U.S.C. § 1183a(a)(1).
101. INA § 213A, 8 U.S.C. § 1183a.
102. See also Michael J. Sheridan, The New Affidavit of Support and Other 1996 Amendments to Immigration and Welfare Provisions Designed to Prevent Aliens from Becoming Public Charges, 31 CREIGHTON L. REV. 741, 752-65 (1998) (describing the various income requirements for immigrant sponsors, as well as the legal effect of a sponsor's affidavit of support).
103. Kevin K. Ban, The Illegal Immigration Reform and Immigrant Responsibility Act of 1996: Are You Wealthy Enough to Be Reunited with Your Alien Family Members?, 05-99 IMMIGR. BRIEFINGS 1 (May 1999) (explaining how the affidavit of support is now a statutorily prescribed document rather than one submitted upon the Attorney General's request).
104. U.S. DEP'T OF STATE, REPORT OF THE VISA OFFICE 2007 (2008) (Table XX), available at http://www.travel.state.gov/pdf/FY07AnnualReportTableXX.pdf (listing grounds for refusing visas, including a significant number of public charge exclusions). The U.S. Department of State visa statistics from 2000 to the present that show the invocation of the various exclusion grounds are collected at http://travel.state.gov/visa/frvi/statistics/statistics_1476.html.
105. INA § 212(a)(4), 8 U.S.C. § 1182(a)(4)(ii) (as amended by the Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No. 104-208, 110 Stat. 3009 (1996)).
106. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105. Two years later, Congress restored certain benefits to lawful immigrants.
107. See Noncitizen Benefit Clarification and Other Technical Amendments Act of 1998, Pub. L. No. 105-306, 112 Stat. 2926.
108. Scholars have analyzed the negative impacts of welfare reform and the 1996 reforms to the public charge exclusions on noncitizens.
109. Bill Ong Hing, Don't Give Me Your Tired, Your Poor: Conflicted Immigrant Stories and Welfare Reform, 33 HARV. C.R.-C.L.L. REV. 159 (1998).
110. Francine J. Lipman, Bearing Witness to Economic Injustices of Undocumented Immigrant Families: A New Class of "Undeserving" Poor, 7 NEV. L.J. 736 (2007).
111. Lisa Sun-Hee Park, Perpetuation of Poverty Through "Public Charge," 78 DENV. U. L. REV. 1161 (2001).
112. This part of Proposition 187 would seem to run afoul of the Supreme Court's decision in Plyler v. Doe, 457 U.S. 202 (1982), which struck down a Texas law that as a practical matter denied most undocumented children, including many of Mexican ancestry, living in Texas access to public elementary and secondary schools.
113. See also Michael A. Olivas, Plyler v. Doe, The Education of Undocumented Children and the Polity, in IMMIGRATION STORIES, supra note 42, at 197 (analyzing the factual and legal background of Plyler).
114. A court invalidated most of Proposition 187 as an unconstitutional intrusion on the federal power to regulate immigration. See League of United Latin Am. Citizens v. Wilson, 908 F. Supp. 755, 786-87 (C.D. Cal. 1995).
115. About a decade later, Arizona later adopted a measure similar in many respects to Proposition 187, which the courts refused to disturb. See Friendly House v. Napolitano, 419 F.3d 930, 932-33 (9th Cir. 2005).
116. ("What is particularly problematic about Proposition 200 [the Arizona counterpart to Proposition 187] . . . is that its intent and effect was to provoke even greater anti-immigrant feelings during an important Arizona election during which the undocumented became the scapegoat for many of the state's problems. Proposition 200 deceivingly included provisions to deny the undocumented benefits for which they were already ineligible under federal law. Indeed, the allegation was one of pernicious fraud, purportedly costing the state of Arizona millions of dollars.") (footnotes omitted).
117. Hector O. Villagra, Arizona's Proposition 200 and the Supremacy of Federal Law: Elements of Law, Politics, and Faith, 2 STAN. J. C.R. & C.L. 295, 309-27 (2006) (questioning the lawfulness of the Arizona measure).
118. Kevin R. Johnson, A Handicapped, Not "Sleeping," Giant: The Devastating Impact of the Initiative Process on Latina/o and Immigrant Communities, 96 CAL. L. REV. 1259, 1266-75 (2008) (analyzing how direct democracy disadvantages immigrants and Hispanics).
119. See Linda S. Bosniak, Opposing Prop. 187: Undocumented Immigrants and the National Imagination, 28 CONN. L. REV. 555, 556 (1996) (referring to support for Proposition 187 and similar statutes as "wide and deep").
120. see also Ruben J. Garcia, Comment, Critical Race Theory and Proposition 187: The Racial Politics of Immigration Law, 17 CHICANO-LATINO L. REV. 118, 129-31 (1995) (discussing Proposition 187 campaign).
121. Kevin R. Johnson, An Essay on Immigration Politics, Popular Democracy, and California's Proposition 187: The Political Relevance and Legal Irrelevance of Race, 70 WASH. L. REV. 629, 650-51 (1995) (documenting the anti-Mexican sentiment at the core of the campaign in support of the initiative).
122. Gerald L. Neuman, Aliens as Outlaws: Government Services, Proposition 187, and the Structure of Equal Protection Doctrine, 42 UCLA L. REV. 1425 (1995) (considering the Equal Protection doctrine applicable to state laws affecting immigrants). 59. Bosniak, supra note 58, at 556 n.3.
123. See infra text accompanying note 109.
124. See INA § 203(a)(3), 8 U.S.C. § 1153(a)(3). Some immigrants, such as noncitizen spouses of U.S. citizens, are not subject to this ceiling.
125. See INA § 201(b)(2)(A)(i), 8 U.S.C. § 201(b)(2)(A)(i) (providing for exemption from per-country ceiling for immediate relatives of U.S. citizens).
126. See Jennifer M. Chacón, Loving Across Borders: Immigration Law and the Limits of Loving, 2007 WIS. L. REV. 345, 359-60 (offering examples of disproportionate impacts of per country ceilings).
127. Stephen H. Legomsky, Immigration, Equality, and Diversity, 31 COLUM. J. TRANSNAT'L L. 319, 321 (1993) (commenting on disparate racial impacts of per-country ceilings).
128. Jan C. Ting, "Other Than a Chinaman": How U.S. Immigration Law Resulted From and Still Reflects a Policy of Excluding and Restricting Asian Immigration, 4 TEMP. POL. & CIV. RTS. L. REV. 301, 309 (1995) (same).
129. Bernard Trujillo, Immigrant Visa Distribution: The Case of Mexico, 2000 WIS. L. REV. 713, 719-22 (2000) (demonstrating how annual ceilings on certain immigrant admissions from a single country have disproportionate impacts on prospective immigrants from Mexico, as well as noncitizens from several other developing nations, because demand for immigration from those nations for reasons of proximity, jobs, and family ties, greatly exceeds the annual ceiling).
130. INA § 201(b)(2)(A)(i), 8 U.S.C. § 201(b)(2)(A)(i).
131. U.S. DEP'T OF STATE, 8 VISA BULLETIN 121 (Aug. 2008), available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4310.html.
132. See infra II.A.3.
133. See, e.g., Davon M. Collins, Note, Toward a More Federalist Employment-Based Immigration System, 25 YALE L. & POL'Y REV. 349, 356-60 (2007).
134. Jonathan G. Goodrich, Comment, Help Wanted: Looking for a Visa System That Promotes the U.S. Economy and National Security, 42 U. RICH. L. REV. 975, 985-97 (2008).
135. Susan Martin & B. Lindsay Lowell, Competing for Skills: U.S. Immigration Policy Since 1990, 11 LAW & BUS. REV. AM. 387, 390-95, 400-02 (2005).
136. Special Feature, Working Borders: Linking Debates About Insourcing and Outsourcing of Capital and Labor, 40 TEX. INT'L L.J. 691, 703-04 (2005).
137. See generally Ayelet Shachar, The Race for Talent: Highly Skilled Migrants and Competitive Immigration Regimes, 81 N.Y.U.L. REV. 148 (2006) (analyzing increasing global competition among nations for skilled labor).
138. See INA § 203(b), 8 U.S.C. § 1153(b) (limiting the number of employment-based visas given to immigrants "performing unskilled labor" to 10,000, while immigrants with "extraordinary" or "exceptional" ability are more readily preferred under the statute).
139. see also STEPHEN H. LEGOMSKY, IMMIGRATION & REFUGEE LAW & POLICY 244-45 (4th ed. 2005) (summarizing the employment immigrant visas available for "priority workers," professionals, skilled workers, investors, and "special immigrants," such as religious workers). Current temporary-worker programs.
140. see INA § 1101(a)(15)(H)(ii), 8 U.S.C. § 1101(a)(15)(H)(ii), are also plagued by bureaucratic inefficiencies and often fail to ensure the protection of the rights of workers.
141. See Ruben J. Garcia, Labor as Property: Guestworkers, International Trade, and Democracy Deficit, 10 J. GENDER RACE & JUST. 27, 45-51 (2006) (describing how guest-worker programs have rarely been temporary or in direct response to a labor need, as well as how such programs have failed to enforce governing labor-law standards).
142. Arthur N. Read, Learning From the Past: Designing Effective Worker Protections for Comprehensive Immigration Reform, 16 TEMP. POL. & CIV. RTS. L. REV. 423, 429-41 (2007) (discussing shortcomings of guest-worker programs).
143. David Bacon, Be Our Guests, THE NATION, Sept. 27, 2004, at 22 (same).
144. Enid Trucios-Haynes, Civil Rights, Latinos, and Immigration: Cybercascades and Other Distortions in the Immigration Reform Debate, 44 BRANDEIS L.J. 637, 643 (2006) (emphasis added).
145. see also Kevin R. Johnson, Protecting National Security Through More Liberal Admission of Immigrants, 2007 U. CHI. LEGAL F. 157, 176-89 (2007) (contending that an immigration regime that permitted more liberal admission of workers would be better for U.S. national security by reducing incentives for undocumented immigration and by better ensuring that as many noncitizens in the United States as possible are subject to ordinary admission procedures that help ensure public safety).
146. See infra II.C.
147. See Michele R. Pistone & John J. Hoeffner, Rethinking Immigration of the Highly-Skilled and Educated in the Post-9/11 World, 5 GEO. J. L. & PUB. POL'Y 495, 496-98 (2007).
148. See, e.g., Competitiveness and Innovation on the Committee's 50th Anniversary with Bill Gates, Chairman of Microsoft: Hearing Before the H. Comm. on Science and Technology, 110th Cong. 18-20 (Mar. 12, 2008) (statement of William H. Gates, Chairman of Microsoft).
149. Kim Hart, Gates Calls on Congress for Science Education, Visas, WASH. POST, Mar. 13, 2008 at D3.
150. S. Mitra Kalita, For Green Card Applicants, Waiting Is the Hardest Part, WASH. POST, July 23, 2005, at D1.
151. Chris Nuttall, Intel Chief Calls for Easing of Visa Curbs, FIN. TIMES, Feb. 8, 2006, at 6.
152. Robert Pear, High-Tech Titans Strike Out on Immigration Bill, N.Y. TIMES, Jun. 25, 2007, at A1.
153. David A. Vise, Gates Cites Hiring Woes, Criticizes Visa Restrictions, WASH. POST, Apr. 27, 2005, at E5.
154. See Camille J. Bosworth, Note, Guest Worker Policy: A Critical Analysis of President Bush's Proposed Reform, 56 HASTINGS L.J. 1095, 1106-08 (2005).
155. Eli J. Kay-Oliphant, Comment, Considering Race in American Immigration Jurisprudence, 54 EMORY L.J. 681, 699 (2005) ("For aliens affected by immigration law, the concept of race is extremely important, and causes many immigrants to be treated as perpetual foreigners."); see also supra note 25 (citing authorities that analyze the role of race in U.S. immigration law and policy).
156. See generally ALFREDO MIRANDÉ, GRINGO JUSTICE (1990) (documenting abuses of persons of Mexican ancestry by the Border Patrol).
157. See U.S. DEP'T OF HOMELAND SECURITY, YEARBOOK OF IMMIGRATION STATISTICS 102-03. (2007) (table 37) (showing that approximately two-thirds of all persons deported in 2007 from the United States were from Mexico).
158. See generally BILL ONG HING, DEPORTING OUR SOULS: VALUES, MORALITY, & IMMIGRATION POLICY (2006) (analyzing critically increasing numbers of deportations pursuant to 1996 immigration reforms).
159. DANIEL KANSTROOM, DEPORTATION NATION: OUTSIDERS IN AMERICAN HISTORY (2007) (documenting the history of deportation under U.S. immigration laws).
160. See generally Matthew J. Lindsay, Preserving the Exceptional Republic: Political Economy, Race, and the Federalization of American Immigration Law, 17 YALE J.L. & HUMAN. 181 (2005) (analyzing the role of race in the enactment of the first comprehensive federal immigration laws).
161. But cf. Kerry Abrams, Polygamy, Prostitution, and the Federalization of Immigration Law, 105 COLUM. L. REV. 641, 642-48 (2005) (analyzing the role of the regulation of marriage and morality in foundational U.S. immigration laws).
162. See, e.g., Chae Chan Ping (The Chinese Exclusion Case), 130 U.S. at 609 (rejecting a constitutional challenge to racial discrimination in the Chinese Exclusion Act and emphasizing that courts lack power to review exercise of congressional "plenary power" over immigration); supra text accompanying notes 34-46 (discussing the impacts of the plenary-power doctrine).
163. See, e.g., United States v. Lara-Garcia, 478 F.3d 1231, 1233-35 (10th Cir.) (defendant claimed that traffic stop was a pretext for inquiring into his immigration status), cert. denied, 550 U.S. 948 (2007).
164. Farm Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 539 (6th Cir. 2002) (rejecting officer's contention that difficulty speaking English constituted a legitimate race-neutral basis for conducting an investigation of the immigration status of the occupants of an automobile following a routine traffic stop).
165. Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1039-40 (9th Cir. 1999) (en banc) (reviewing injunctive relief sought against Border Patrol agents in Arizona for a class of persons with a Latin, Hispanic, or Mexican appearance driving their vehicle on highways at night).
166. Ramirez v. Webb, 787 F.2d 592, 593 (6th Cir. 1986) (affirming a preliminary injunction that enjoined immigration officers from stopping vehicles on "Hispanic appearance alone").
167. Ill. Migrant Council v. Pilliod, 540 F.2d 1062, 1065-66 (7th Cir. 1976), modified, 548 F.2d 715, 715 (7th Cir. 1977) (en banc) (addressing claim of racial profiling in immigration enforcement).
168. Murillo v. Musegades, 809 F. Supp. 487, 490-91, 500-02 (W.D. Tex. 1992) (granting preliminary injunction and class certification to a persons of Hispanic descent affiliated with local high school for unconstitutional stops and questioning by Border Patrol).
169. See generally Kevin R. Johnson, The Case Against Racial Profiling in Immigration Enforcement, 78 WASH. U. L.Q. 675 (2000) (analyzing racial profiling endemic to modern immigration enforcement).
170. See, e.g., William J. Stuntz, Local Policing After the Terror, 111 YALE L.J. 2137, 2142 (2002) (stating that racial profiling is the great issue of our time).
171. See Kevin R. Johnson, Some Thoughts on the Future of Latino Legal Scholarship, 2 HARV. LATINO L. REV. 101, 117-29 (1997) (discussing impacts of the prevailing stereotype of all Hispanics, including U.S. citizens, as "foreigners").
172. see also Keith Aoki, "Foreign-ness" & Asian American Identities: Yellowface, World War II Propaganda, and Bifurcated Racial Stereotypes, 4 ASIAN PAC. AM. L.J. 1, 7-10, 18-23 (1996) (noting the same classification of Asian Americans).
173. Natsu Taylor Saito, Alien and Non-Alien Alike: Citizenship, "Foreignness," and Racial Hierarchy in American Law, 76 OR. L. REV. 261, 281 (1997) (same).
174. See infra III.B.
175. See, e.g., Sam Quinones, Disabled Man Found After 89-Day Ordeal, L.A. TIMES, Aug. 8, 2007, at B1 (reporting on developmentally disabled U.S. citizen of Mexican ancestry who had been in the custody of the Los Angeles County Sheriff's Department and had been wrongfully deported to Mexico).
176. Marisa Taylor, Zeal to Deport Sometimes Catches U.S. Citizens in Its Net, NEWS & OBSERVER (Raleigh), Jan. 25, 2008, at A3 (reporting a number of cases of wrongful detention and deportation of U.S. citizens).
177. See, e.g., Ozawa v. United States, 260 U.S. 178, 196-98 (1922) (holding that immigrant from Japan was not "white" and thus ineligible for naturalization).
178. United States v. Thind, 261 U.S. 204, 213-15 (1923) (ruling to the same effect with respect to immigrant from India).
179. See generally IAN HANEY LÓPEZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE (10th anniversary ed. 2006) (analyzing case law interpreting the requirement in place from 1790 to 1952 that an immigrant be "white" to naturalize).
180. Black immigrants technically were eligible to naturalize but, given the stigma attached to African Americans in U.S. social life, it is not surprising that few immigrants were willing to claim a Black identity in an attempt to secure citizenship. Unlike Asian immigrants, immigrants from Mexico were permitted to naturalize because of treaty obligations between the U.S. and Mexican governments. See In re Rodriguez, 81 F. 337, 349, 353-54 (W.D. Tex. 1897).
181. see also George A. Martínez, The Legal Construction of Race: Mexican Americans and Whiteness, 2 HARV. LATINO L. REV. 321, 326-27 (1997) (analyzing implications of Rodriguez decision).
182. See Leti Volpp, "Obnoxious To Their Very Nature": Asian Americans and Constitutional Citizenship, 8 ASIAN L.J. 71, 83 (2001) ("To be Asian American suggests in the American imagination the idea that one acts according to cultural dictates somehow fundamentally different from those known in the United States. One's Asianness seems to be the difference one must suppress in order to be a full citizen.").
183. The immigration and nationality laws also historically have had disparate impacts on women. See 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, 145, 160-63 (1996).
184. Janet Calvo, Spouse-Based Immigration Laws: The Legacies of Coverture, 28 SAN DIEGO L. REV. 593 (1991).
185. See, e.g., Kevin R. Johnson, Civil Rights and Immigration: Challenges for the Latino Community in the Twenty-First Century, 8 LA RAZA L.J. 42, 51-52 (1995).
186. Linda Kelly, Defying Membership: The Evolving Role of Immigration Jurisprudence, 67 U. CIN. L. REV. 185, 202-03 (1998).
187. Kirk Semple, Immigrants Eager to Vote Sue to Hasten Citizenship, N.Y. TIMES, July 16, 2008, at B2.
188. See NANCY RYTINA & SELENA CALDERA, U.S. DEP'T OF HOMELAND SECURITY, OFFICE OF IMMIGRATION STATISTICS, ANNUAL FLOW REPORT: NATURALIZATIONS IN THE UNITED STATES: 2007, at 2 (July 2008) (Table 1).
189. Bob Barr, High Crimes and Misdemeanors: The Clinton-Gore Scandals and the Question of Impeachment, 2 TEX. REV. L. & POL. 1, 44-49 (1997) (contending that abuse of naturalization process was one of several charges that justified the impeachment of President Bill Clinton).
190. The Justice Department's Office of the Inspector General found that the Clinton Administration did not act for politically partisan ends in its Citizenship USA program, which sought to facilitate the naturalization process for immigrants, although some naturalization petitions were erroneously approved due to hasty processing.
191. See IG Report Finds INS's "Citizenship USA" Program Was Flawed, But Not for Political Reasons, 77 INTERPRETER RELEASES 1198 (Aug. 21, 2000).
192. See Karin Brulliard, In D.C., Area, Citizenship Test is One of Patience; Local Immigrants Face Longest Wait, WASH. POST, May 3, 2008, at B1.
193. Julia Preston, Immigration Fees Rise, N.Y. TIMES, July 31, 2007, at A15.
194. Editorial, Citizenship Fees Soar, WASH. POST, July 31, 2007, at A17.
195. See generally ILLINOIS COALITION FOR IMMIGRANT AND REFUGEE RIGHTS, PRICED OUT: U.S. CITIZENSHIP: A PRIVILEGE FOR THE RICH AND WELL EDUCATED? (2008) (analyzing negative impacts of sharp fee increases on immigrants seeking to naturalize and become U.S. citizens).
196. See Julia Preston, Goal Set for Reducing Backlog on Citizenship Applications, N.Y. TIMES, Mar. 15, 2008, at A13.
197. Editorial, High Price, Poor Service: Despite Exorbitant Fees, the Wait to Become a Naturalized Citizen is Three Times As Long As It Was Last Year, WASH. POST, Jan. 26, 2008, at A16.
198. See Kitty Calavita, Collisions at the Intersection of Gender, Race, and Class: Enforcing the Chinese Exclusion Laws, 40 LAW & SOC'Y REV. 249, 256-60 (2006) (analyzing influence of race and class on congressional enactment of Chinese exclusion laws).
199. see also Henry S. Cohn & Harvey Gee, "No, No, No, No!": Three Sons of Connecticut Who Opposed the Chinese Exclusion Acts, 3 CONN. PUB. INT. L.J. 1, 21-34 (2003) (explaining economic and other pressures for congressional limitations on Chinese immigration).
200. FRANCISCO E. BALDERRAMA & RAYMOND RODRÍGUEZ, DECADE OF BETRAYAL: MEXICAN REPATRIATION IN THE 1930S 89-117 (rev. ed. 2006).
201. Kevin R. Johnson, The Forgotten "Repatriation" of Persons of Mexican Ancestry and Lessons for the "War on Terror," 26 PACE L. REV. 1, 4-13 (2005).
202. See generally KITTY CALAVITA, INSIDE THE STATE: THE BRACERO PROGRAM, IMMIGRATION, & THE I.N.S. (1992) (summarizing history of "Bracero Program").
203. Demonstrating the ambivalence in the United States over immigrant labor, see generally BOSNIAK, supra note 19 (analyzing ambiguous status of noncitizens in U.S. society). The U.S. government in 1954 instituted a massive deportation campaign known as "Operation Wetback," while the nation continued to bring "guest workers" to the United States.
204. See generally JUAN RAMON GARCÍA, OPERATION WETBACK: THE MASS DEPORTATION OF MEXICAN UNDOCUMENTED WORKERS IN 1954 (1980) (documenting mass deportation campaign in 1954 known as "Operation Wetback").
205. See Jennifer M. Chacón, Misery and Myopia: Understanding the Failures of U.S. Efforts to Stop Human Trafficking, 74 FORDHAM L. REV. 2977, 2982 (2006) (noting how each year tens of thousands of women and children are trafficked into the United States).
206. see also Karen E. Bravo, Exploring the Analogy Between Modern Trafficking in Humans and the Trans-Atlantic Slave Trade, 25 B.U. INT'L L.J. 207, 260-93 (2007) (comparing trade of African slaves in the history of the Americas with modern human trafficking).
207. See TIMOTHY J. DUNN, THE MILITARIZATION OF THE U.S.-MEXICO BORDER, 1978-1992: LOW-INTENSITY CONFLICT DOCTRINE COMES HOME (1996).
208. Karl Eschbach et al., Causes & Trends in Migrant Deaths Along The U.S./Mexico Border, 1985-1998 (2001).
209. JOSEPH NEVINS, OPERATION GATEKEEPER: THE RISE OF THE "ILLEGAL ALIEN" & THE MAKING OF THE U.S.-MEXICO BOUNDARY (2002).
210. Wayne A. Cornelius, Death at the Border: Efficacy and Unintended Consequences of U.S. Immigration Control Policy, 27 POP. & DEV. REV. 661, 661-62 (2001).
211. Guillermo Alonso Meneses, Human Rights and Undocumented Migration Along the Mexican-U.S. Border, 51 UCLA L. REV. 267, 268-72 (2003).
212. See James H. Johnson, Jr., U.S. Immigration Reform, Homeland Security, and Global Economic Competitiveness in the Aftermath of the September 11, 2001 Terrorist Attacks, 27 N.C.J. INT'L L. & COM. REG. 419, 443-46 (2002) (recognizing that the U.S. government has concentrated immigration enforcement efforts on "poor immigrants" despite the significant number of higher educated nonimmigrants who have overstayed their visas).
213. David B. Thronson, You Can't Get Here from Here: Toward a More Child-Centered Immigration Law, 14 VA. J. SOC. POL'Y & L. 58, 75-76 (2006) ("[The] enforcement concentration on the border discourages older patterns of seasonal migration and encourages a relatively permanent settlement pattern for undocumented immigrants.").
214. See JEFFREY S. PASSEL, PEW HISPANIC CENTER, THE SIZE AND CHARACTERISTICS OF THE UNAUTHORIZED MIGRANT POPULATION IN THE U.S. 2 (Mar. 7, 2006) (estimating that, as of March 2006, the undocumented immigrant population in the United States was between 11.5 and 12 million with about 40% being visa overstays).
215. See generally Leticia M. Saucedo, The Browning of the American Workplace: Protecting Workers in Increasingly Latino-ized Occupations, 80 NOTRE DAME L. REV. 303 (2004) (citing studies that show significant wage depression and worsening labor conditions in occupations fielded disproportionately by Latinos).
216. Leticia M. Saucedo, The Employer Preference for the Subservient Worker and the Making of the Brown Collar Workplace, 67 OHIO ST. L.J. 961 (2006) (describing how "brown collar workers" often fill increasingly segregated and undesirable jobs because of their partial "subservience").
217. Leticia M. Saucedo, Addressing Segregation in the Brown Collar Workplace: Toward a Solution for the Inexorable 100%, 41 U. MICH. J.L. REFORM 447 (2008) (suggesting a new Title VII segregation framework founded on the inference of discrimination when all jobs of a particular category are filled by persons from a protected group).
218. See Raquel E. Aldana, Introduction: The Subordination and Anti-Subordination Story of the U.S. Immigrant Experience in the 21st Century, 7 NEV. L.J. 713, 716-31 (2007) (summarizing legal and other forms of subordination of undocumented immigrant workers in the United States).
219. see also Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 149 (2002) (holding that undocumented workers were not entitled to backpay for employer's violation of federal labor law).
220. But see Christopher David Ruiz Cameron, Borderline Decisions: Hoffman Plastic Compounds, The New Bracero Program, and the Supreme Court's Role in Making Federal Labor Policy, 51 UCLA L. REV. 1 (2003) (offering critical analysis of Hoffman Plastics).
221. Robert I. Correales, Did Hoffman Plastic Compounds, Inc., Produce Disposable Workers?, 14 LA RAZA L.J. 103, 104-05 (2003) ("The Hoffman decision represents a retrenchment from a trend in which virtually all jurisdictions that had considered the issue found in favor of the workers.").
222. David Weissbrodt, Remedies for Undocumented Noncitizens in the Workplace: Using International Law to Narrow the Holding of Hoffman Plastic Compounds, Inc. v. NLRB, 92 MINN. L. REV. 1424, 1425, 1434-45 (2008) (positing the need to permit Title VII employment discrimination claims by undocumented citizens in order to conform to international law principles).
223. See Maria L. Ontiveros, Lessons From the Fields: Female Farmworkers and the Law, 55 ME. L. REV. 157, 169-70 (2003).
224. William R. Tamayo, The Role of the EEOC in Protecting the Civil Rights of Farmworkers, 33 U.C. DAVIS L. REV. 1075, 1075-76 (2000).
225. See Note, Political Legitimacy in the Law of Political Asylum, 99 HARV. L. REV. 450, 459 (1985) ("The government rests its denial of asylum in [Haitian and Salvadoran] cases on the claim that these are 'economic' rather than 'political' refugees . . . .").
226. Arab and Muslim noncitizens constitute another group of immigrants who have been the subject of aggressive immigration enforcement in recent years, especially after the tragic events of September 11, 2001.
227. See Susan M. Akram & Kevin R. Johnson, Race, Civil Rights, and Immigration Law After September 11, 2001: The Targeting of Arabs and Muslims, 58 N.Y.U. ANN. SURV. AM. L. 295, 327-44 (2002).
228. see also Susan M. Akram & Maritza Karmely, Immigration and Constitutional Consequences of Post-9/11 Policies Involving Arabs and Muslims in the United States: Is Alienage a Distinction Without a Difference?, 38 U.C. DAVIS L. REV. 609, 620-44 (2005) (analyzing impact of "war on terror" on Arab and Muslim citizens as well as noncitizens).
229. After September 11, the concern with fighting terrorism came to dominate immigration law and enforcement and the national debate over immigration reform, provoking criticism.
230. ("The removal of any and all immigrants is now seen as an adequate means of addressing terrorism because the rhetoric has evolved to conflate crime, terrorism, and migrant status so completely.").
231. K.R. Johnson & Bernard Trujillo, Immigration Reform, National Security After September 11, and the Future of North American Integration, 91 MINN. L. REV. 1369, 1396-1404 (2007) (describing how serious attempts at a U.S.-Mexico migration accord as well as eliminating some of the harshest anti-immigration federal provisions "stopped in their tracks on September 11" and were replaced by an emphasis on "fortifying the borders").
232. see also Donald Kerwin & Margaret D. Stock, The Role of Immigration in a Coordinated National Security Policy, 21 GEO. IMMIGR. L.J. 383, 398-423 (2007) (analyzing how immigration law can be effectively employed to serve national security ends).
233. See, e.g., Hernandez v. Texas, 347 U.S. 475, 482 (1954) (holding that Mexican American citizens had unconstitutionally been barred from juries in Jackson County, Texas).
234. "COLORED MEN" & "HOMBRES AQUI": HERNANDEZ V. TEXAS & THE EMERGENCE OF MEXICAN-AMERICAN LAWYERING (Michael A. Olivas ed., 2006) (analyzing major U.S. Supreme Court decision in 1954 addressing discrimination against Mexican American citizens).
235. RICHARD DELGADO ET AL., LATINOS & THE LAW: CASES & MATERIALS (2008) (collecting literature on the law's negative impact on Hispanics in the United States).
236. NEIL FOLEY, THE WHITE SCOURGE: MEXICANS, BLACKS, & POOR WHITES IN TEXAS COTTON CULTURE (1997) (studying history of discrimination against persons of Mexican ancestry in Texas).
237. David Montejano, Anglos & Mexicans in The Making of Texas, 1836-1986 (1987) (same).
238. See Christopher David Ruiz Cameron, The Rakes of Wrath: Urban Agricultural Workers and the Struggle Against Los Angeles's Ban on Gas-Powered Leaf Blowers, 33 U.C. DAVIS L. REV. 1087, 1087-88 (2000) (relaying a story of one Anglo owner of a landscaping business discussing his Latino workers: "They're very hard workers, the Mexican fellas, they just need some guidance. I show them how they can make more money working for me.").
239. Jennifer Gordon & R.A. Lenhardt, Rethinking Work and Citizenship, 55 UCLA L. REV. 1161, 1163 (2008) (referring to the claim of a U.S. citizen that he would not "be worked like a Mexican") (footnote omitted).
240. See generally STEVEN W. BENDER, GREASERS & GRINGOS: LATINOS, LAW, & THE AMERICAN IMAGINATION (2003) (analyzing prevailing negative stereotypes about Latinos in American culture).
241. LEO R. CHAVEZ, THE LATINO THREAT: CONSTRUCTING IMMIGRANTS, CITIZENS, & THE NATION (2008) (studying popular stereotypes of Latino immigrants as a threat to the United States).
242. See M. Isabel Medina, At the Border: What Tres Mujeres Tells Us About Walls and Fences, 10 J. GENDER RACE & JUST. 245, 245, 258 (2007) (describing the emphasis of the U.S. government on the "physical" barrier along the international border that is "conceptualized as a dividing line between two culturally and historically separate and distinct nations").
243. Marta Tavares, Fencing Out the Neighbors: Legal Implications of the U.S.-Mexico Border Security Fence, 14 HUM. RTS. BR. 33, 33, 37 (2007) (arguing that the 700 miles of border fencing authorized by the Secure Fence Act of 2006 will likely result in the violation of basic human rights of undocumented immigrants crossing the border and those persons living within the border region).
244. See infra III.A.
245. But see Kevin R. Johnson & Bill Ong Hing, National Identity in a Multicultural Nation: The Challenge of Immigration Law and Immigrants, 103 MICH. L. REV. 1347, 1364-68 (2005) (criticizing Huntington's analysis).
246. George A. Martínez, Immigration: Deportation and the Pseudo-Science of Unassimilable Peoples, 61 SMU L. REV. 7, 10-11 (2008) (questioning the claim of Huntington and others that Hispanic immigrants fail to assimilate into American society).
247. See, e.g., De Canas v. Bica, 424 U.S. 351, 354 (1976) ("Power to regulate immigration is unquestionably exclusively a federal power.") (emphasis added) (citing Fong Yue Ting v. United States, 149 U.S. 698 (1893).
248. Chy Lung v. Freeman, 92 U.S. 275 (1876).
249. Henderson v. Mayor of the City of New York, 92 U.S. 259 (1875).
250. Passenger Cases, 7 How. 283 (1849)). Growing numbers of scholars have questioned the conventional wisdom and advocated greater state and local involvement in immigration and immigrant regulation.
251. See, e.g., Clare Huntington, The Constitutional Dimension of Immigration Federalism, 61 VAND. L. REV. 787 (2008).
252. Cristina M. Rodriguez, The Significance of the Local in Immigration Regulation, 106 MICH. L. REV. 567 (2008).
253. Peter H. Schuck, Taking Immigration Federalism Seriously, 2007 U. CHI. LEGAL F. 57 (2007).
254. Peter J. Spiro, The States and Immigration in an Era of Demi-Sovereignties, 35 VA. J. INT'L L. 121 (1994).
255. see also Kris W. Kobach, Reinforcing the Rule of Law: What States Can and Should Do to Reduce Illegal Immigration, 22 GEO. IMMIGR. L.J. 459, 463-65 (2008) (outlining the kind of immigration legislation states can enact that federal law does not preempt).
256. Matthew Parlow, A Localist's Case for Decentralizing Immigration Policy, 84 DENV. U. L. REV. 1061, 1069-73 (2007) (contending that local governments should be permitted to regulate immigration in a manner consistent with U.S. immigration law and policy).
257. Rick Su, A Localist Reading of Local Immigration Regulations, 86 N.C.L. REV. 1619, 1624-25 (2008) (questioning traditional account that recent efforts of local governments to regulate immigration and immigrants was a response to the failure of Congress to pass comprehensive immigration reform).
258. Rick Su, Notes on the Multiple Facets of Immigration Federalism, 15 TULSA J. COMP. & INT'L L. 179, 180-91 (2008) (analyzing complex issues raised by local involvement in immigration and immigrant law).
259. Compare Lozano v. Hazleton, 496 F. Supp. 2d 477, 517-21 (M.D. Pa. 2007) (invalidating city immigration ordinance on federal preemption grounds), with Gray v. City of Valley Park, 567 F.3d 976 (8th Cir. 2009) (affirming judgment on procedural grounds that similar city ordinance was not preempted by federal law), and Chicanos Por La Causa, Inc. v. Napolitano, 544 F.3d 976, 979-80, 982-86 (9th Cir. 2008) (holding that Arizona law denying business licenses to employers that employed undocumented immigrant workers was not preempted by federal immigration law).
260. Many scholars have lodged concerns and raised questions against local attempts to regulate immigration. See, e.g., Orde F. Kittrie, Federalism, Deportation, and Crime Victims Afraid to Call the Police, 91 IOWA L. REV. 1449 (2006) (analyzing federalism issues raised in immigration enforcement).
261. Karla Mari McKanders, Welcome to Hazleton! "Illegal" Immigrants Beware: Local Immigration Ordinances and What the Federal Government Must Do About It, 39 LOY. U. CHI. L.J. 1 (2007) (criticizing Hazleton, Pennsylvania's immigration ordinance).
262. Michael A. Olivas, Immigration-Related State and Local Ordinances: Preemption, Prejudice, and the Proper Role for Enforcement, 2007 U. CHI. LEGAL F. 27 (2007) (arguing that any state, county, or local ordinance directed at immigration regulation generally is unconstitutional under federal preemption doctrine).
263. Michael A. Olivas, Preempting Preemption: Foreign Affairs, State Rights, and Alienage Classifications, 35 VA. J. INT'L L. 217 (1994) (arguing for adherence to the general rule that state regulation of immigration is preempted by federal law).
264. Huyen Pham, The Inherent Flaws in the Inherent Authority Position: Why Inviting Local Enforcement of Immigration Laws Violates the Constitution, 31 FLA. ST. U. L. REV. 965 (2004) (contending that local governments cannot constitutionally enforce immigration laws).
265. Juliet P. Stumpf, States of Confusion: The Rise of State and Local Power Over Immigration, 86 N.C.L. REV. 1557 (2008)
266. Michael J. Wishnie, Laboratories of Bigotry? Devolution of the Immigration Power, Equal Protection, and Federalism, 76 N.Y.U.L. REV. 493 (2001) (contending that exercise of immigration power by states might increase discrimination against all immigrants, including lawful ones, as well as U.S citizens of particular national origins); cf. Rose Cuison Villazor, What Is a "Sanctuary"?, 61 SMU L. REV. 133 (2008) (analyzing the meaning of "sanctuary" that some cities claim to provide undocumented immigrants). But see supra note 128 (citing scholarship contending that state and local governments could legitimately play a role in immigration and immigrant regulation).
267. Mike Seate, Rage Over Illegals Brings '60s to Mind, PITT. TRIB. REV., June 7, 2007, available at http://pittsburghlive.com/x/pittsburghtrib/news/rss/s_511404.html.
268. see also Kristen Hinman, Valley Park to Mexican Immigrants: "Adios, Illegals!," RIVERFRONT TIMES (St. Louis), Feb. 28, 2007, available at http://www.riverfronttimes.com/content/printVersion/204874 (quoting mayor of Valley Park, Missouri, a town that enacted an immigration ordinance similar to the one in Hazleton, "You got one guy and his wife that settle down here, have a couple kids, and before long you have Cousin Puerto Rico and Taco Whoever moving in.").
269. John Keilman, Hispanics Rue City's New Rules, CHI. TRIB., Oct. 29, 2006, at C3 (reporting that Hispanics felt under attack by local ordinances like Hazleton's).
270. Ruben Navarrette Jr., Hate in the Immigration Debate, SAN DIEGO UNION-TRIB., July 29, 2007, at G3 (observing that the anti-immigrant cause has become distinctly anti-Mexican as shown by the hate mail that he (a prominent national commentator and native-born U.S. citizen educated at Harvard College) regularly receives, including mail calling him a "dirty Latino" who should go "back to Mexico").
271. Michael Powell & Michelle García, Pa. City Puts Illegal Immigrants on Notice, WASH. POST, Aug. 22, 2006, at A3 (same).
272. See, e.g., Lopez v. Town of Cave Creek, 559 F. Supp. 2d 1030, 1034 (D. Ariz. 2008) (invalidating an ordinance banning sidewalk solicitation as a violation of the First Amendment).
273. Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 475 F. Supp. 2d 952, 955, 961-62, 970 (C.D. Cal. 2006) (striking down a city ordinance that targeted day laborers in practice by prohibiting speech for solicitation of employment).
274. Coalition for Humane Immigrant Rights v. Burke, 2000 U.S. Dist. LEXIS 16520, at *43 (C.D. Cal. Sept. 12, 2000) (acknowledging the plight of day laborers who feel "compelled to take to the streets to look for day work," as well as the need to solve problems "stemming from reckless vehicle-addressed solicitation" but finding an ordinance limiting employment solicitation "is not that solution").
275. Some cities also have responded to growing Hispanic populations by seeking to regulate-in some cases ban-trucks that sell tacos and other Mexican foods. See Hispanic Taco Vendors of Wash. v. City of Pasco, 994 F.2d 676, 677 (9th Cir. 1993) (affirming the denial of injunctive relief seeking to halt enforcement of local law requiring the licensing of taco trucks and other street vendors).
276. Miguel Bustillo, Hold the Tacos, New Orleans Says, L.A. TIMES, July 14, 2007, at A1 (reporting on local taco-truck ban in New Orleans area).
277. see also Garrett Therolf, Taco Trucks Can Stay Parked, L.A. TIMES, Aug. 28, 2008, at B1 (reporting on court injunction barring enforcement of Los Angeles County taco truck ordinance, which grew out of a complex dispute between owners of Mexican restaurants and taco trucks).
278. Margaret Hobbins, Note & Comment, The Day Laborer Debate: Small Town, U.S.A. Takes on Federal Immigration Law Regarding Undocumented Workers, 6 CONN. PUB. INT. L.J. 111, 114 (2007) (footnotes omitted).
279. For studies of day laborers, see ABEL VALENZUELA, JR. & EDWIN MELÉNDEZ, DAY LABOR IN NEW YORK: FINDINGS FROM THE NYDL SURVEY (Apr. 11, 2003), available at http://www.sscnet.ucla.edu/issr/csup/pubs/papers/pdf/csup3_NYDLS.pdf (focusing on day laborers in New York City).
280. ABEL VALENZUELA, JR. ET AL., ON THE CORNER: DAY LABOR IN THE UNITED STATES (Jan. 2006), available at http://www.sscnet.ucla.edu/issr/csup/index.php (discussing the daily lives of day laborers and the conditions they face).
281. See, e.g., Anna Gorman, A Darker State Economy Sends Day Laborers Packing, L.A. TIMES, Sept. 1, 2008, at B1 (reporting that economic decline resulted in a decision by some day laborers to return to their native countries).
282. For analysis of the legal issues facing day laborers, see Analiz DeLeon-Vargas, Comment, The Plight of Immigrant Day Laborers: Why They Deserve Protection Under the Law, 10 SCHOLAR 241 (2008).
283. Lisa Zamd, All in a Day's Work: Advocating the Employment Rights of Day Laborers, 3 MODERN AM. 56, 56-57 (2007).
284. JENNIFER GORDON, SUBURBAN SWEATSHOPS: THE FIGHT FOR IMMIGRANT RIGHTS 191-92 (2005) (discussing efforts to organize day laborers).
285. Scott L. Cummings, The Internationalization of Public Interest Law, 57 DUKE L.J. 891, 912-23 (2008) (summarizing how various legal-services programs address legal issues of undocumented immigrants, including day laborers).
286. See Nick Miroff & Kristen Mack, After Vote, Pr. William Immigrant Plan Faces Hurdles, WASH. POST, Oct. 18, 2007, at A1. The Prince William County measure implicates a larger-and much-contested-question about the role of state and local police agencies in the enforcement of the U.S. immigration laws.
287. Compare Kris W. Kobach, The Quintessential Force Multiplier: The Inherent Authority of Local Police to Make Immigration Arrests, 69 ALB. L. REV. 179 (2005) (advocating such cooperation), with Kittrie, supra note 129, at 1466-74, 1487-92 (analyzing federalism issues raised in local police involvement in immigration enforcement).
288. Nick Miroff, A Hispanic Population in Decline; Illegal Immigrant Policy Alters Pr. William on Many Levels, WASH. POST, July 10, 2008, at A1.
289. E.g., Thomas G. Tancredo, U.S. Representative (Colo.), A New Strategy for Control of Illegal Immigration, Remarks at the Heritage Foundation (Sept. 21, 2006), in HERITAGE LECTURES, Oct. 26, 2006, at 5.
290. Kris W. Kobach, Attrition Through Enforcement: A Rational Approach to Illegal Immigration, 15 TULSA J. COMP. & INT'L L. 155, 160-61 (2008).
291. The U.S. government offered a short-lived-because it was unsuccessful-campaign encouraging undocumented immigrants to turn themselves in and effectively self-deport.
292. See Amy Taxin, Federal "Self-Deportation" Pilot Program Ends Today a Flop, SAN GABRIEL VALLEY TRIB., Aug. 22, 2008.
293. See Kristina M. Campbell, Local Illegal Immigration Relief Act Ordinances: A Legal, Policy, and Litigation Analysis, 84 DENV. U. L. REV. 1041, 1056-57 (2007) (analyzing litigation resulting in settlement of a legal challenge to the Escondido ordinance barring landlords from renting to undocumented immigrants).
294. See Anna Gorman, Undocumented? Unwelcome; Escondido is Using a Wave of Policies to Try to Drive Away Illegal Immigrants, L.A. TIMES, July 13, 2008, at B1.
295. see also Catherine Slack, Municipal Targeting of Undocumented Immigrants' Travel in the Post 9/11 Suburbs: Waukegan, Illinois Case Study, 22 GEO. IMMIGR. L.J. 485 (2008) (analyzing effects of efforts of Illinois city to regulate travel of undocumented immigrants).
296. Such methods reflect a practice that has been described as discrimination by proxy, namely reliance on a race-neutral proxy correlated with Hispanic identity to discriminate against Hispanic citizens and immigrants. See Kevin R. Johnson & George Martínez, Discrimination by Proxy: The Case of Proposition 227 and the Ban on Bilingual Education, 33 U.C. DAVIS L. REV. 1227, 1274-76 (2000).
297. See Steve Lopez, Migrant Has Tough Message to Others, L.A. TIMES, July 20, 2008, at B1.
298. See Tom I. Romero, No Brown Towns: Anti-Immigrant Ordinances and Equality of Educational Opportunity for Latina/os, 12 J. GENDER, RACE, & JUST. 14 (2008) (contending that state and local immigration laws are in fact about race, not simply undocumented immigration).
299. See generally JAMES W. LOEWEN, SUNDOWN TOWNS: A HIDDEN DIMENSION OF AMERICAN RACISM (2005) (offering a comprehensive history of sundown towns throughout the United States).
300. See Marisa Bono, Don't You Be My Neighbor: Restrictive Housing Ordinances as the New Jim Crow, 3 MODERN AM. 29, 29-34 (2007).
301. See Rigel C. Oliveri, Between a Rock and a Hard Place: Landlords, Latinos, Anti-Illegal Immigrant Ordinances, and Housing Discrimination, 62 VAND. L. REV. 55, 72-81 (2008) (identifying how many persons are perceived as unlawfully being in the United States because of "group-based stereotypes" tied to ethnicity rather than national origin).
302. see also Howard F. Chang, Cultural Communities in a Global Labor Market: Immigration Restrictions as Residential Segregation, 2007 U. CHI. LEG. F. 93, 101-04 (2007) (analyzing immigration controls as a form of residential segregation).
303. For different perspectives on comprehensive immigration reform of U.S. immigration law like that debated in Congress during 2006-07, see, for example, Muzaffar Chishti, Comment, A Redesigned Immigration Selection System, 41 CORNELL INT'L L.J. 115 (2008) (offering an immigration-reform proposal).
304. Hugh Hewitt, A New Year and the Old Debate: Has Immigration Reform Reformed Anything?, 13 NEXUS 1 (2008) (offering a variety of perspectives on immigration reform).
305. Asa Hutchinson, Keynote Address, 59 ADMIN. L. REV. 533 (2007) (discussing practicalities of immigration reform).
306. Sheila Jackson Lee, Why Immigration Reform Requires a Comprehensive Approach That Includes Both Legalization Programs and Provisions to Secure the Border, 43 HARV. J. ON LEGIS. 267 (2006) (discussing politics of immigration reform).
307. Doris Meissner, Keynote Address, 16 TEMP. POL. & CIV. RTS. L. REV. 309 (2007) (offering opinions on immigration reform).
308. Marc R. Rosenblum, Independent Task Force on Immigration and America's Future, "Comprehensive" Legislation vs. Fundamental Reform: The Limits of Current Immigration Proposals, MIGRATION POLICY BRIEF 13 (Jan. 2006) (analyzing comprehensive immigration-reform proposals).
309. Katherine L. Vaughns, Restoring the Rule of Law: Reflections on Fixing the Immigration System and Exploring Failed Policy Choices, 5 U. MD. L.J. RACE REL. GENDER & CLASS 151 (2005) (same).
310. Christopher J. Walker, Border Vigilantism and Comprehensive Immigration Reform, 10 HARV. LATINO L. REV. 135 (2007) (explaining link of failure of immigration reform and rise of vigilantism).
311. Michael J. Wishnie, Labor Law After Legalization, 92 MINN. L. REV. 1446 (2008) (describing needed changes to federal labor law after legalization of undocumented immigrants). But see generally JOHNSON, supra note 44 (proposing a more far-reaching reform of the immigration laws than that envisioned by the proponents of the various forms of "comprehensive" reform considered by Congress)
312. See, e.g., Raquel Aldana, Of Katz and "Aliens": Privacy Expectations and the Immigration Raids, 41 U.C. DAVIS L. REV. 1081, 1092-96 (2008) (discussing U.S. government's raids of Swift Company meatpacking plants in December 2006).
313. Anil Kalhan, The Fourth Amendment and Privacy Implications of Interior Immigration Enforcement, 41 U.C. DAVIS L. REV. 1137, 1157-68 (2008) (analyzing legal impacts of raids and other forms of interior immigration enforcement).
314. Sandra Guerra Thompson, Commentary, Immigration Law and Long-Term Residents: A Missing Chapter in American Criminal Law, 5 OHIO ST. J. CRIM. L. 645, 654-58 (2008) (same).
315. David B. Thronson, Creating Crisis: Immigration Raids and the Destabilization of Immigrant Families, 43 WAKE FOREST L. REV. 391, 403-06 (2008) (identifying negative impacts of immigration raids on families, including U.S. citizen children of immigrants).
316. Shoba Sivaprasad Wadhia, Under Arrest: Immigrants' Rights and the Rule of Law, 38 U. MEM. L. REV. 853, 862-88 (2008) (analyzing legal impacts of raids and other forms of interior immigration enforcement).
317. see also Huyen Pham, The Private Enforcement of Immigration Laws, 96 GEO. L.J. 777, 782-800 (2008) (studying various modes of private enforcement of the immigration laws).
318. See, e.g., INS v. Lopez-Mendoza, 468 U.S. 1032, 1035-38 (1984) (addressing legal challenges to raids at a car-repair shop and a potato-processing plant); INS v. Delgado, 466 U.S. 210, 211-14 (1984) (same with respect to a factory search).
319. Int'l Molders & Allied Workers' Union Local No. 164 v. Nelson, 799 F.2d 547, 550 (9th Cir. 1986) (same).
320. see also David K. Chan, Note, INS Factory Raids as Nondetentive Seizures, 95 YALE L.J. 767, 769 (1986) (arguing that U.S. citizens and lawful immigrants are "seized" under the Fourth Amendment when government interrogates the person regarding their citizenship status during a workplace raid).
321. See, e.g., Pam Belluck, Lawyers Say U.S. Acted in Bad Faith After Immigrant Raid in Massachusetts, N.Y. TIMES, Mar. 22, 2007, at A22.
322. Robbie Brown, 300 Detained in Immigration Raid at Plant, N.Y. TIMES, Oct. 8, 2008, at A19 (South Carolina).
323. Anna Gorman, U.S.-Born Children Feel Effect of Raids, L.A. TIMES, June 8, 2008, at B1 (California).
324. Adam Nossiter, Nearly 600 Were Arrested in Factory Raid, Officials Say, N.Y. TIMES, Aug. 27, 2008, at A16 (Mississippi).
325. Julia Preston, Immigration Raid Draws Protest From Labor Officials, N.Y. TIMES, Jan. 26, 2007, at A17 (North Carolina).
326. Libby Sander, Immigration Raid Yields 62 Arrests in Illinois, N.Y. TIMES, Apr. 5, 2007, at A12.
327. William Wan, Authorities Detain 45 in Immigration Raid of Painting Company, WASH. POST, July 1, 2008, at B2 (Maryland).
328. Spencer S. Hsu, Immigration Raid Jars a Small Town, WASH. POST, May 18, 2008, at A1.
329. For criticism of the criminal prosecutions in Postville, see Peter R. Moyers, Butchering Statutes: The Postville Raid and the Misinterpretation of Federal Criminal Law, 32 SEATTLE U. L. REV. 651 (2009). U.S. immigration authorities employed similar strategies in much-publicized raids at meatpacking plants in 2007.
330. Erik Camayd-Freixas, Interpreting After the Largest ICE Raid in U.S. History: A Personal Account 1, (June 13, 2008) (unpublished essay, on file with The New York Times), available at http://graphics8.nytimes.com/images/2008/07/14/opinion/14ed-camayd.pdf.
331. As the Postville raid suggests, recent immigration raids have had particularly negative impacts on Guatemalan immigrants. One of the largest workplace raids before Postville occurred in March 2007 in New Bedford, Massachusetts, with more than 360 workers arrested, the majority of who were natives of Guatemala.
332. Jack Spillane, Immigrants Feel Singled Out for Labor Abuse, STANDARD-TIMES (New Bedford), June 30, 2008, available at http://www.southcoasttoday.com/apps/pbcs.dll/article?AID=/20080630/NEWS/ 806300303/-1/SPECIAL62.
333. Yvonne Abraham & Brian R. Ballou, 350 Are Held in Immigration Raid: New Bedford Factory Employed Illegals US Says, BOSTON GLOBE, Mar. 7, 2007, at A1.
334. Maria Sacchetti, Commission Hears Testimony on US Immigration Raids, BOSTON GLOBE, Apr. 8, 2008, at B1.
335. Editorial, The Shame of Postville, N.Y. TIMES, July 13, 2008, at WK11.
336. Elise Martins, Postville, Iowa, Immigration Raids Tear Apart Families, Destroy Local Economy, Sisters of Mercy, available at http://www.sistersofmercy.org/index.php?option=com_content&task =view&id=1373&Itemid=193. 160. See supra II.B.2.
337. Editorial, 'The Jungle,' Again, N.Y. TIMES, Aug. 1, 2008, at A18.
338. David L. Wilson, Union-Busting by Any Other Name . . . ., MR ZINE, July 20, 2008, available at http://mrzine.monthlyreview.org/wilson200708.html.
339. see also MICHAEL E. FIX & WENDY ZIMMERMAN, URBAN INSTITUTE, ALL UNDER ONE ROOF: MIXED-STATUS FAMILIES IN AN ERA OF REFORM 1 (Oct. 6, 1999) (estimating that ten percent of all families in United States had mixed immigration statuses). The recent raids resulting in the arrests of undocumented immigrant parents have left some U.S.-citizen children without parental supervision.
340. See Sherryl Zounes, Current Development, Children Without Parents: An Unintended Consequence of ICE's Worksite Enforcement Operations, 21 GEO. IMMIGR. L.J. 511, 512-14 (2007).
341. Removal of noncitizens that effectively results in the deportation of U.S. citizen children (who accompany the deported parent) has long been a problem with the enforcement of the U.S. immigration laws.
342. See Edith Z. Friedler, From Extreme Hardship to Extreme Deference: United States Deportation of Its Own Children, 22 HASTINGS CONST. L.Q. 491, 525-35 (1995)
343. Bill Piatt, Born as Second Class Citizens in the U.S.A.: Children of Undocumented Parents, 63 NOTRE DAME L. REV. 35, 46-50 (1988).
344. See, e.g., Press Release, Ali Noorani, Department of Homeland Security or Department of Economic Ruin? (July 24, 2008) available at http://www.immigrationforum.org/press/release-display/department-of-home land-security-or-department-of-economic-ruin/.
345. See Bill Ong Hing, Immigration Policies: Messages of Exclusion to African Americans, 37 HOW. L.J. 237, 244-47 (1994) (describing the historic role of chattel slavery and immigration and nationality laws in severely limiting the number of African immigrants to the United States).
346. See Cheryl Little, InterGroup Coalitions and Immigration Politics: The Haitian Experience in Florida, 53 U. MIAMI L. REV. 717 (1999).
347. see also Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 158 (1993) (upholding U.S. government's policy of the interdiction on the high seas and repatriation of Haitians fleeing political violence and their return to Haiti).
348. But see Harold H. Koh, The "Haiti Paradigm" in United States Human Rights Policy, 103 YALE L.J. 2391 (1994) (criticizing the Haitian interdiction case).
349. see generally Harold H. Koh, Reflections on Refoulment and Haitian Centers Council, 35 HARV. INT'L L.J. 1 (1994) (same). Many factors contributed to the extraordinary treatment of noncitizens fleeing Haiti, including the difference of race and class.
350. See generally Kevin R. Johnson, Judicial Acquiescence to the Executive Branch's Pursuit of Foreign Policy and Domestic Agendas in Immigration Matters: The Case of the Haitian Asylum-Seekers, 7 GEO. IMMIGR. L.J. 1 (1993).
351. see also Charles J. Ogletree, Jr., America's Schizophrenic Immigration Policy: Race, Class, and Reason, 41 B.C. L. REV. 755, 761 (2000). Despite the long history of political violence in Haiti, U.S. officials historically have generally classified people fleeing that country as "economic migrants," not "political refugees" eligible for relief under the U.S. immigrations laws.
352. see also Haitian Refugee Ctr. v. Smith, 676 F.2d 1023, 1030 (5th Cir. 1982) (noting that the Immigration & Naturalization Service
353. Haitian immigrants created a popular fear among the U.S. public of a flood of poor and Black people of a very different culture coming to the United States.
354. See Lauren Gilbert, National Identity and Immigration Policy in the U.S. and the European Union, 14 COLUM. J. EUR. L. 99, 123-30 (2007-08).