The rights of others: Legal claims and immigration outside the law

Duke Law Journal

Volumn 59, Issue 8, 2010, Pages 1723-1786

  Motomura, Hiroshi ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 77955148485     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (288)

1. See MICHAEL HOEFER, NANCY RYTINA & BRYAN C. BAKER, OFFICE OF IMMIGRATION STATISTICS, U.S. DEP'T OF HOMELAND SEC., ESTIMATES OF THE UNAUTHORIZED IMMIGRANT POPULATION RESIDING IN THE UNITED STATES: JANUARY 2009, at 1 (2010), available at http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_pe_2009.pdf (estimating the unauthorized immigrant population living in the United States at 11.6 million in January 2008).
2. JEFFREY S. PASSEL & D'VERA COHN, PEW HISPANIC CTR., A PORTRAIT OF UNAUTHORIZED IMMIGRANTS IN THE UNITED STATES app. B at 29 tbl.B1 (2009), available at http://pewhispanic.org/files/reports/107.pdf (showing a total unauthorized immigrant population of 11.9 million in 2008 and providing figures for individual states).
3. I use this phrase deliberately as an attempt to be more literally accurate and more neutral than "illegal" or "undocumented" immigration. I do not use the phrase to 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 outside the law. See Hiroshi Motomura, Immigration Outside the Law, 108 COLUM. L. REV. 2037, 2047-55 (2008) (discussing the meaning of "unlawful presence").
4. see also THOMAS ALEXANDER ALEINIKOFF, DAVID A. MARTIN, HIROSHI MOTOMURA & MARYELLEN FULLERTON, IMMIGRATION AND CITIZENSHIP: PROCESS AND POLICY 1291 (6th ed. 2008) (discussing usage of the terms "illegal aliens," "undocumented aliens," and "unauthorized migrants").
5. 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) (discussing how the term "alien" is used to depersonalize unauthorized migrants).
6. Gerald L. Neuman, Aliens as Outlaws: Government Services, Proposition 187, and the Structure of Equal Protection Doctrine, 42 UCLA L. REV. 1425, 1440-42 (1995) (analyzing the meaning of the term "illegal alien").
7. Soon after the enactment of the Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359 (codified in scattered sections of 8 U.S.C.), Professor Linda Bosniak wrote: "Undocumented immigrants live at the boundary of the national membership community. They have long occupied a unique, deeply ambivalent place in the United States." Linda S. Bosniak, Exclusion and Membership: The Dual Identity of the Undocumented Worker Under United States Law, 1988 WIS. L. REV. 955, 956. The ambivalence analyzed in Professor Bosniak's foundational piece has evolved into intertwined patterns of oblique rights that I examine in this Article.
8. 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 at Chapel Hill) (explaining how "rule of law" includes not only enforcement, but also discretion subject to legal standards, decisionmaking that is based on expertise but subject to checks and balances, and due process).
9. Explaining that "rule of law" is a malleable concept that can include not just enforcement of the letter of the law, but also recognition of claims to equality or membership based on historical relationships and obligations.
10. Hiroshi Motomura, The Rule of Law in Immigration Law, 15 TULSA J. COMP. & INT'L L. 139, 144-51 (2008) (explaining that "immigration law is not self-executing but requires due process and the exercise of discretion").
11. I use the term "subfederal" to include states, counties, cities, school districts, special districts, and all other government entities below the federal level. When this Article refers to "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.".
12. See Gerald L. Neuman, The Lost Century of American Immigration Law (1776-1875), 93 COLUM. L. REV. 1833, 1835-84 (1993) (exploring pre-1875 state and local immigration laws).
13. see also ARISTIDE R. ZOLBERG, A NATION BY DESIGN: IMMIGRATION POLICY IN THE FASHIONING OF AMERICA 74-76 (2006) (discussing state regulatory efforts).
14. See HIROSHI MOTOMURA, AMERICANS IN WAITING: THE LOST STORY OF IMMIGRATION AND CITIZENSHIP IN THE UNITED STATES 24-25 (2006) (discussing factors that influenced the shift to federal immigration laws).
15. See Henderson v. Mayor of N.Y., 92 U.S. 259, 270-75 (1876) (holding unconstitutional New York and Louisiana statutes that regulated the admission of immigrants through the port of New York, on the ground that they infringed upon the federal power to regulate commerce with foreign nations).
16. Chy Lung v. Freeman, 92 U.S. 275, 279-81 (1876) ("The passage of laws which concern the admission of citizens and subjects of foreign nations to our shores belongs to Congress, and not to the States.").
17. Discussing the shift from state to federal immigration regulation.
18. See Immigration and Nationality Act (INA) § 287(g), 8 U.S.C. § 1357(g) (2006) (authorizing agreements that allow state and local officers to investigate, apprehend, and detain aliens to enforce federal immigration laws).
19. See 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, 47-51 (2007) (summarizing recent state and local measures).
20. See Kris W. Kobach, Attrition Through Enforcement: A Rational Approach to Illegal Immigration, 15 TULSA J. COMP. & INT'L L. 155, 160 (2008) ("If a strategy of attrition through enforcement were implemented nationwide, it would gradually, but inexorably, reduce the number of illegal aliens in the United States.").
21. Mark Krikorian, Downsizing Illegal Immigration: A Strategy of Attrition Through Enforcement, BACKGROUNDER (Center for Immigration Studies, Wash., D.C.), May 2005, at 1, 1-6, available at http://www.cis.org/articles/2005/back605.pdf (arguing that consistent enforcement of immigration laws would steadily reduce the population of unauthorized migrants).
22. See TEX. EDUC. CODE ANN. § 21.031 (Vernon 1981), invalidated by Plyler v. Doe, 457 U.S. 202 (1982).
23. Plyler v. Doe, 457 U.S. 202 (1982).
24. Discussing the lower courts' decisions, including rulings on preemption.
25. "Appellees... continue to press the argument that § 21.031 is preempted by federal law and policy. In light of our disposition of the Fourteenth Amendment issue, we have no occasion to reach this claim.".
26. Burger, C.J., dissenting ("I have no quarrel with the conclusion that the Equal Protection Clause of the Fourteenth Amendment applies to aliens who, after their illegal entry into this country, are indeed physically 'within the jurisdiction' of a state.").
27. Exploring why Plyler has not been extended beyond the context of public primary and secondary education.
28. Plyler, 457 U.S. at 228-30.
29. Discussing the importance of education, and the great societal and individual harms that occur when it is denied to children.
30. discussing Plyler's narrow doctrinal scope.
31. In this regard, Plyler stands in sharp contrast to Brown v. Board of Education, 347 U.S. 483 (1954), which also arose in the context of K-12 public education but acquired a broader significance as the starting point for the invalidation of segregation in many other American institutions.
32. Graham v. Richardson, 403 U.S. 365 (1971).
33. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).
34. Graham, 403 U.S. at 372 (citation omitted).
35. Mathews v. Diaz, 426 U.S. 67 (1976).
36. Asserting that the need for flexibility in policy choices in the face of changing world conditions requires "a narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization".
37. "Neither the overnight visitor, the unfriendly agent of a hostile foreign power, the resident diplomat, nor the illegal entrant, can advance even a colorable constitutional claim to a share in the bounty that a conscientious sovereign makes available to its own citizens and some of its guests.".
38. See Gerald M. Rosberg, The Protection of Aliens from Discriminatory Treatment by the National Government, 1977 SUP. CT. REV. 275, 283-93 (exploring possible justifications for the Court's restrained review of the statute at issue).
39. cf. Harold Hongju Koh, Equality with a Human Face: Justice Blackmun and the Equal Protection of Aliens, 8 HAMLINE L. REV. 51, 98-102 (1985) (exploring the substantive norms inside Justice Blackmun's equal protection framework as it applies to aliens).
40. Hiroshi Motomura, Immigration and Alienage, Federalism and Proposition 187, 35 VA. J. INT'L L. 201, 205-06 (1994) (explaining that an equal protection model can justify certain alienage classifications on a federal level where those same classifications would be unacceptable on a state level).
41. arguing for the validity and necessity of an equal protection approach to discrimination against aliens.
42. But see David F. Levi, Note, The Equal Treatment of Aliens: Preemption or Equal Protection?, 31 STAN. L. REV. 1069, 1085-86, 1088 (1979) (asserting that Diaz is better understood as a preemption decision than as an equal protection one).
43. cf. Michael J. Perry, Modern Equal Protection: A Conceptualization and Appraisal, 79 COLUM. L. REV. 1023, 1060-65 (1979) (arguing that the Court's doctrine concerning alienage-based classifications is justifiable not as a matter of equal protection, but rather of federalism).
44. Diaz, 426 U.S. at 84-85.
45. See Bernal v. Fainter, 467 U.S. 216, 219 (1984) ("As a general matter, a state law that discriminates on the basis of alienage can be sustained only if it can withstand strict judicial scrutiny.").
46. See Plyler v. Doe, 457 U.S. 202, 219 n.19 (1982) ("Unlike most of the classifications that we have recognized as suspect, entry into this class, by virtue of entry into this country, is the product of voluntary action. Indeed, entry into the class is itself a crime.").
47. Cf. LeClerc v. Webb, 419 F.3d 405, 415-19 (5th Cir. 2005) (holding that laws affecting nonimmigrant aliens require only a rational basis). Commentators have criticized this aspect of prevailing doctrine as providing insufficient protection to unauthorized migrants. See, e.g., Jason H. Lee, Unlawful Status as a "Constitutional Irrelevancy"?: The Equal Protection Rights of Illegal Immigrants, 39 GOLDEN GATE U. L. REV. 1, 19-40 (2008) (arguing that a lesser standard of review for classifications involving illegal immigrants is inconsistent with the principles of individual dignity and humanity that underlie the Equal Protection Clause).
48. arguing that rational basis review would allow the state to deny unauthorized migrants even the minimum standards that it owes under the Constitution to every human being.
49. In Toll v. Moreno, 458 U.S. 1 (1982), the U.S. Supreme Court expressly declined to reach the nonimmigrants' equal protection claims.
50. Lozano v. City of Hazleton, 496 F. Supp. 2d 477 (M.D. Pa. 2007), argued, No. 07-3531 (3d Cir. Oct. 30, 2008).
51. By discussing a local law directed at unauthorized migrants, I do not mean to ignore the many subfederal laws and policies that attempt to integrate unauthorized migrants, or even to offer protection from enforcement of federal immigration laws.
52. Discussing the role of states and localities in the integration of unauthorized migrants.
53. City of Hazleton, 496 F. Supp. 2d at 538-42.
54. Citing Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256, 279 (1979). The same dilemma exists as to other state and local laws targeting unauthorized migrants. It is not enough to win an unlawful race or ethnic discrimination claim. This is true even if challengers can show some racial or ethnic animus.
55. See 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, 651 (1995) ("[I]t is difficult to refute the claim that the ethnicity of the stereotypical undocumented immigrant played at least some role in the passage of Proposition 187." (footnote omitted)).
56. Discussing "strong indications that Proposition 187 owed some of its attractiveness to animosity toward Latino immigration". Interestingly, though Judge Munley rejected the plaintiffs' equal protection claim in City of Hazleton, he sustained their argument that the ordinance, by restricting access to rental housing, violated the rights of unauthorized migrants under 42 U.S.C. § 1981, which "provides that 'all persons' shall . . . have the same right to make and enforce contracts and have the full and equal benefit of all laws to the same extent enjoyed by 'white citizens.'".
57. City of Hazleton, 496 F. Supp. 2d at 546-48.
58. Equal Access Educ. v. Merten, 305 F. Supp. 2d 585 (E.D. Va. 2004).
59. Memorandum from Alison P. Landry, Assistant Attorney Gen. of Va., to Presidents, Chancellor, Rectors, Registrars, Admissions Dirs., Domicile Officers, and Foreign Student Advisors, and the Executive Dir., State Council for Higher Educ. in Va. (Sept. 5, 2002), available at http://www.schev.edu/AdminFaculty/ImmigrationMemo9-5-02APL.pdf. For a discussion of this Memorandum, see Equal Access Educ., 305 F. Supp. 2d at 591.
60. Equal Access Educ., 305 F. Supp. 2d at 601-08.
61. Plyler v. Doe, 457 U.S. 202, 210 n.8 (1982).
62. E.g., Villas at Parkside Partners v. City of Farmers Branch, 496 F. Supp. 2d 757, 764-72 (N.D. Tex. 2007).
63. Garrett v. City of Escondido, 465 F. Supp. 2d 1043, 1054-57 (S.D. Cal. 2006).
64. De Canas v. Bica, 424 U.S. 351 (1976). 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. 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." (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," (citations omitted), or conflicts with federal law so as to make compliance with both state and federal law impossible.
65. Establishing a preemption framework.
66. Hampton v. Mow Sun Wong, 426 U.S. 88 (1976).
67. Discussing the requirement in the Civil Service Commission regulations, 5 C.F.R. § 338.101 (1976), that only U.S. citizens or people owing "permanent allegiance" to the United States may sit for competitive civil service examinations.
68. "Since these residents were admitted as a result of decisions made by Congress and the President, implemented by the Immigration and Naturalization Service acting under the Attorney General of the United States, due process requires that the decision . . . be made at either a comparable level of government or . . . be justified by reasons which are properly the concern of [the Civil Service Commission].".
69. See Mow Sun Wong v. Campbell, 626 F.2d 739, 744-45 (9th Cir. 1980), cert. denied sub nom. Lum v. Campbell, 450 U.S. 959 (1981) (affirming both the president's power to issue and the constitutionality of 5 C.F.R. §§ 7.4 and 338.101).
70. Aliessa v. Novello, 754 N.E.2d 1085 (N.Y. 2001).
71. Citing Graham v. Richardson, 403 U.S. 365 (1971).
72. citing Mathews v. Diaz, 426 U.S. 67, 80 (1976).
73. But see Soskin v. Reinertson, 353 F.3d 1242, 1255-57 (10th Cir. 2004) (disagreeing with Aliessa and upholding a similar Colorado statute).
74. Hampton v. Mow Sun Wong, 426 U.S. 88, 90 (1976).
75. Diaz, 426 U.S. at 84.
76. Graham v. Richardson, 403 U.S. 365, 376 (1971).
77. Compare Plyler v. Doe, 457 U.S. 202, 230 (1982) (addressing the K-12 education context), with Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 540-41 (M.D. Pa. 2007), argued, No. 07-3531 (3d Cir. Oct. 30, 2008) (rejecting the plaintiffs' equal protection challenges to city ordinances restricting the access of undocumented aliens to employment and rental housing, because the plaintiffs failed to show that the ordinances were motivated by discriminatory intent).
78. "I prefer an equal protection approach because it answers, in a way that preemption reasoning does not, the moral and philosophical claims that resident aliens make against their state governments.".
79. Equal Access Educ. v. Merten, 305 F. Supp. 2d 585, 608 (E.D. Va. 2004). The district 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, 663-72 (E.D. Va. 2004).
80. see also 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).
81. For a similar insistence that subfederal laws rely on federal immigration status, see Villas at Parkside Partners v. City of Farmers Branch, 577 F. Supp. 2d 858, 861-62, 866-67, 869-71 (N.D. Tex. 2008) (granting a permanent injunction against the enforcement of the ordinance).
82. Villas at Parkside Partners v. City of Farmers Branch, 496 F. Supp. 2d 757, 762, 766-69 (N.D. Tex. 2007) (granting a preliminary injunction against the enforcement of an ordinance mandating certification of citizenship or immigration status to rent apartment property).
83. Garrett v. City of Escondido, 465 F. Supp. 2d 1043, 1057 (S.D. Cal. 2006).
84. Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 527-28 (M.D. Pa. 2007), argued, No. 07-3531 (3d Cir. Oct. 30, 2008).
85. Garrett v. City of Escondido, 465 F. Supp. 2d 1043 (S.D. Cal. 2006).
86. "The Court . . . has serious concerns regarding the burden this Ordinance will place on federal regulations and resources.".
87. Equal Access Educ. v. Merten, 305 F. Supp. 2d 585, 602-08 (E.D. Va. 2004) (noting that the outcome of the case turned on "whether defendants' admissions policies simply adopted federal standards, in which case they are not invalid under the Supremacy Clause, or instead create and apply state standards to assess the immigration status of applicants, in which case the policies may run afoul of the Supremacy Clause").
88. City of Escondido, 465 F. Supp. 2d at 1057. Several weeks later, 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. 06CV2434JAH (NLS) (S.D. Cal. Dec. 15, 2006) (order granting stipulated final judgment and permanent injunction). The state of California responded with a statute that barred cities and counties from requiring landlords to inquire into a prospective occupant's immigration or citizenship status.
89. See CAL. CIV. CODE § 1940.3 (West Supp. 2009).
90. See generally California Legislative News, 84 INTERPRETER RELEASES 2495 (2007).
91. City of Escondido, 465 F. Supp. 2d at 1057.
92. Expressing approval of 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) (criticizing this aspect of City of Hazleton).
93. City of Hazleton, 496 F. Supp. 2d at 530.
94. Relatedly, the court noted that only federal immigration judges can determine immigration law status.
95. Some of these decisions rely on a provision of federal immigration law that may expressly authorize some state employer sanctions laws. See INA § 274A(h)(2), 8 U.S.C. § 1324a(h)(2) (2006). Courts are divided on whether this savings clause allows state laws that penalize employers through business licensing schemes. Compare City of Hazleton, 496 F. Supp. 2d at 519-20 (finding preemption notwithstanding this provision), with Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856, 864-66 (9th Cir. 2008), petition for cert. filed sub nom.
96. U.S. Chamber of Commerce v. Candelaria, 78 U.S.L.W. 3251 (U.S. July 24, 2009) (No. 90-115) (finding that this provision authorizes state licensing-based employer sanctions), and Gray v. City of Valley Park, No. 4:07CV0081ERW, 2008 WL 294294, at *9-12 (E.D. Mo. Jan. 31, 2008) (same). State laws might be invalidated if the savings clause is construed to give preemptive effect to IRCA. Cf. Chamber of Commerce v. Edmondson, 594 F.3d 742, 765-71 (10th Cir. 2010) (granting a preliminary injunction against the enforcement of various Oklahoma state laws based on a likelihood of success in challenging some provisions on preemption grounds).
97. For a discussion of the range of views of the meaning of unlawful presence and how this range explains some of the deep disagreements about immigration outside the law.
98. For a discussion of the meaning of unlawful presence, the role of states and cities, and how these issues are linked.
99. City of Hazleton, 496 F. Supp. 2d at 525-29.
100. See, e.g., Bill Ong Hing, Institutional Racism, ICE Raids, and Immigration Reform, 44 U.S.F.L. REV. 307, 318-20 (2009) (describing racial profiling in immigration raids).
101. 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, 982-83 (2004).
102. Michael J. Wishnie, State and Local Police Enforcement of Immigration Laws, 6 U. PA. J. CONST. L. 1084, 1104 (2004).
103. 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).
104. City of Hazleton, 496 F. Supp. 2d at 484 (mentioning demographic shifts).
105. Discussing reasons to allow some plaintiffs to proceed anonymously.
106. Outlining the history of U.S immigration law and policy.
107. This pattern bears some resemblance to the concerns expressed by the New York Court of Appeals in Aliessa v. Novello.
108. For an illuminating discussion of the analogous value of transparency and deliberation in national security cases, see Joseph Landau, Muscular Procedure: Conditional Deference in the Executive Detention Cases, 84 WASH. L. REV. 661 (2009). Muscular procedure, by emphasizing "transparency and deliberation," is closer to institutional competence arguments than to the procedural surrogates discussed in Part II.
109. Explaining why "[l]ocal anti-foreign movements may have difficulty enlisting the national government in their crusades".
110. But cf. Peter J. Spiro, Learning to Live with Immigration Federalism, 29 CONN. L. REV. 1627, 1635 (1997) ("[A] state disempowered from acting in its own jurisdiction will get its way at the national level in the absence of strong countervailing interests on the part of other states . . . .").
111. For a discussion of this phenomenon in the context of subfederal restrictions on speech, see Adam Winkler, Free Speech Federalism, 108 MICH. L. REV. 153, 160-63 (2009) (citing THE FEDERALIST NO. 10, at 78 (James Madison) (Clinton Rossiter ed., 1961)). Professor Winkler's study does not include First Amendment challenges to local laws that restrict the activities of day laborers, but it would be illuminating to see if judicial responses to such challenges revealed patterns similar to what I discuss here.
112. See, e.g., Martinez v. Regents of the Univ. of Cal., 83 Cal. Rptr. 3d 518, 524-25 (Ct. App. 2008), review granted, 198 P.3d 1 (Cal. 2008).
113. See, e.g., City of Hazleton, 496 F. Supp. 2d at 519.
114. Plyler v. Doe, 457 U.S. 202, 218-19 (1982).
115. Powell, J., concurring.
116. For more information on this de facto policy and its history.
117. Gerald P. López, Undocumented Mexican Migration, 28 UCLA L. REV. 615, 641-72 (1981).
118. 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 unauthorized migration).
119. See Adam B. Cox & Eric A. Posner, The Second-Order Structure of Immigration Law, 59 STAN. L. REV. 809, 844-49 (2007) (arguing that the current enforcement system screens ex post and explaining why this may be preferable to screening ex ante).
120. See Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359 (codified as amended in scattered sections of 8 U.S.C.).
121. see also INA § 274A, 8 U.S.C. § 1324a (2006) (prohibiting the employment of unauthorized aliens).
122. "With the passage of IRCA, the border law has become a labor law as well.".
123. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 140 (2002).
124. For a fuller account of the case, see Catherine L. Fisk & Michael J. Wishnie, The Story of Hoffman Plastic Compounds, Inc. v. NLRB: Labor Rights Without Remedies for Undocumented Immigrants, in IMMIGRATION STORIES 311, 351 (David A. Martin & Peter H. Schuck eds., 2005).
125. Hoffman, 535 U.S. at 140.
126. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002).
127. The employer, Hoffman Plastic Compounds, had discharged Castro without knowing that he was not authorized to work.
128. NLRA, 29 U.S.C. §§ 150-69 (2006).
129. Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to e-17 (2006). For examples, see Rivera v. NIBCO, Inc., 364 F.3d 1057, 1061 (9th Cir. 2004).
130. Escobar v. Spartan Sec. Serv., 281 F. Supp. 2d 895, 896 (S.D. Tex. 2003).
131. FLSA, 29 U.S.C. §§ 201-19 (2006). For examples, see Zavala v. Wal-Mart Stores, Inc., 393 F. Supp. 2d 295, 323 (D.N.J. 2005).
132. Singh v. Jutla, 214 F. Supp. 2d 1056, 1056 (N.D. Cal. 2002).
133. Hoffman, 535 U.S. at 148-50.
134. see also Keith Cunningham-Parmeter, Redefining the Rights of Undocumented Workers, 58 AM. U. L. REV. 1361, 1393-95 (2009) (discussing employer and employee wrongdoing in Hoffman and characterizing Hoffman as a "guilty-worker/innocent-employer scenario").
135. Hoffman, 535 U.S. at 153 (Breyer, J., dissenting).
136. Balbuena v. IDR Realty LLC, 845 N.E. 2d 1246 (N.Y. 2006).
137. "[I]n the context of defendants' motions for partial summary judgment, we must presume that it was the employers who violated IRCA by failing to inquire into plaintiffs' immigration status or employment eligibility.".
138. Madeira v. Affordable Hous. Found. Inc., 469 F.3d 219 (2d Cir. 2006).
139. Ambrosi v. 1085 Park Ave. LLC, No. 06-CV-8163(BSJ), 2008 WL 4386751 (S.D.N.Y. Sept. 25, 2008).
140. This reliance on comparative culpability in workplace cases is consistent with a basic theme in the treatment of unauthorized migrants in immigration law generally, which opens up access to lawful immigration status when they have become victims, for example, of domestic violence, trafficking, or other crimes. (discussing how immigration law treats victims of domestic violence, trafficking, or other criminal activity as distinct from unauthorized migrants).
141. Chellen v. John Pickle Co., 446 F. Supp. 2d 1247, 1276-77 (N.D. Okla. 2006) (recognizing unauthorized workers as employees under the FLSA).
142. Zavala v. Wal-Mart Stores, Inc., 393 F. Supp. 2d 295, 322-25 (D.N.J. 2005) (same).
143. Galaviz-Zamora v. Brady Farms, Inc., 230 F.R.D. 499, 501-03 (W.D. Mich. 2005) (same).
144. Flores v. Amigon, 233 F. Supp. 2d 462, 463-64 (E.D.N.Y. 2002) (same).
145. Singh v. Jutla, 214 F. Supp. 2d 1056, 1058-59 (N.D. Cal. 2002) (same).
146. See generally Cunningham-Parmeter, (discussing and citing cases arising under the FLSA).
147. See, e.g., Chellen, 446 F. Supp. 2d at 1279-81 (discussing the nature of employer-defendants' violations of the FLSA).
148. Flores, 233 F. Supp. 2d. at 464 (noting the need to include undocumented aliens within the protections of the FLSA to prevent "abusive exploitation" of workers).
149. Hoffman, 535 U.S. at 153-56 (Breyer, J., dissenting). In contrast, the majority was concerned with a different systemic effect, namely, incentives for future unauthorized workers to come to the United States. Thus, the majority observed that allowing backpay for Castro "would encourage the successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws, and encourage future violations." (majority opinion).
150. Agri Processor Co. v. NLRB, 514 F.3d 1 (D.C. Cir. 2008).
151. Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984).
152. Agri Processor, 514 F.3d at 3-8.
153. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 153-56 (2002) (Breyer, J., dissenting).
154. Explaining how excluding unauthorized workers would undermine the purpose of the FLSA.
155. Comparative culpability arguments work together with citizen proxy arguments when concerns about harms to citizens are heightened because certain employers are identified as especially culpable.
156. The statutory term for deportation is "removal." See INA § 240, 8 U.S.C. § 1229a (2006) (setting out rules for conduct of removal proceedings).
157. One study found that in 2008, about four million U.S.-born children were living in families with at least one parent who was an unauthorized migrant, a significant increase over the 2.3 million in 2003.
158. See, e.g., INA § 240A(b), 8 U.S.C. § 1229b(b) (providing for cancellation of removal for certain nonpermanent residents). Inadmissibility and deportability waivers require and assess hardship to a close relative who is a U.S. citizen or lawful permanent resident.
159. See, e.g., INA § 212(h), 8 U.S.C. § 1182(h) (waiver of inadmissibility for certain crimes).
160. § 212(i), 8 U.S.C. § 1182(i) (waiver of inadmissibility for fraud or willful misrepresentation).
161. § 237, 8 U.S.C. § 1227(a)(1)(H) (waiver of deportability for certain misrepresentations).
162. See, e.g., In re Andazola-Rivas, 23 I. & N. Dec. 319, 322 (B.I.A. 2002) (holding that a noncitizen did not establish eligibility for cancellation of removal because she failed to demonstrate that her children would suffer exceptional and extremely unusual hardship from her deportation).
163. In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 65 (B.I.A. 2001) (finding the respondent not eligible for cancellation of removal because he did not establish that his children or parents would suffer exceptional and extremely unusual hardship if he was deported).
164. See, e.g., INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1) (requiring ten years of continuous physical presence for eligibility to apply for cancellation of removal).
165. Acosta v. Gaffney, 558 F.2d 1153, 1157-58 (3d Cir. 1977). The federal government removed over 108,000 parents of U.S.-citizen children between 1997 and 2008.
166. See OFFICE OF THE INSPECTOR GEN., U.S. DEP'T OF HOMELAND SEC., NO. OIG-09-15, REMOVALS INVOLVING ILLEGAL ALIEN PARENTS OF UNITED STATES CITIZEN CHILDREN 5-6 (2009), available at http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_09-15_Jan09.pdf.
167. See Gerald L. Neuman, Back to Dred Scott?, 24 SAN DIEGO L. REV. 485, 489 (1987) (reviewing PETER H. SCHUCK & ROGERS M. SMITH, CITIZENS WITHOUT CONSENT: ILLEGAL ALIENS IN THE AMERICAN POLITY (1985)). There is a narrow exception for parents who are diplomats representing foreign governments in the United States.
168. See ALEINIKOFF, MARTIN, MOTOMURA & FULLERTON,. For a contrary reading of the Fourteenth Amendment.
169. Presenting arguments that the Fourteenth Amendment denies jus soli citizenship to U.S.-born children of unauthorized migrants.
170. Kleindienst v. Mandel, 408 U.S. 753 (1972), tested the denial of a visa to the Belgian Marxist scholar Ernst Mandel. He sued, joined by several professors who had invited him to speak at universities in the United States.
171. The plaintiffs claimed that excluding Mandel due to ideology violated their First Amendment freedoms of speech and association. In Fiallo v. Bell, 430 U.S. 787 (1977), several families sued to challenge a federal immigration statute that defined "child" to include the children of unwed mothers, but not unwed fathers. Some plaintiffs were citizens and lawful permanent residents who sought to be reunited with their families.
172. The Supreme Court rejected both constitutional challenges, declining to take seriously the argument that denying admission to noncitizens can hurt citizens. Mandel, 408 U.S. at 768-70. Several scholars have discussed the relevance of effects on citizens to constitutional challenges to government immigration decisions.
173. See Adam B. Cox, Citizenship, Standing, and Immigration Law, 92 CAL. L. REV. 373, 374 (2004) (arguing that an alien-centered approach to constitutional immigration law ignores the possibility that immigration law may injure citizens).
174. Hiroshi Motomura, Whose Immigration Law?: Citizens, Aliens, and the Constitution, Review Essay, 97 COLUM. L. REV. 1567, 1584-86, 1601-02 (1997) (arguing for a focus on both aliens' rights and citizens' rights in deciding questions of constitutional immigration law).
175. Hiroshi Motomura, Whose Alien Nation?: Two Models of Constitutional Immigration Law, 94 MICH. L. REV. 1927, 1946-52 (1996) (book review) (arguing for a national self-definition model of constitutional immigration law that focuses on the rights of U.S. citizens and permanent residents).
176. For a discussion of analogous procedural surrogates in the constitutional aspects of immigration law, see generally Hiroshi Motomura, The Curious Evolution of Immigration Law: Procedural Surrogates for Substantive Constitutional Rights, 92 COLUM. L. REV. 1625 (1992).
177. Reyes v. Van Elk, Ltd., 148 Cal. App. 4th 604 (Ct. App. 2007).
178. That statute was section 1171.5 of the California Labor Code, which provides: For purposes of enforcing state labor and employment laws, a person's immigration status is irrelevant to the issue of liability, and in proceedings or discovery undertaken to enforce those state laws no inquiry shall be permitted into a person's immigration status except where the person seeking to make this inquiry has shown by clear and convincing evidence that the inquiry is necessary in order to comply with federal immigration law.
179. Reyes, 148 Cal. App. 4th at 608-09.
180. Of course, preemption was not an issue in Hoffman, which addressed the relationship between two federal statutes.
181. Reyes, 148 Cal. App. 4th at 615-18.
182. For robust use of discovery as a procedural surrogate that is similar but less explicit, see Rivera v. NIBCO, Inc., 364 F.3d 1057 (9th Cir. 2004), which denied discovery of employees' immigration status in a Title VII suit against their employer,. On privacy as a barrier to formal discovery of immigration and citizenship status, see Anil Kalhan, The Fourth Amendment and Privacy Implications of Interior Immigration Enforcement, 41 U.C. DAVIS L. REV. 1137, 1185-88 (2008).
183. Reyes, 148 Cal. App. 4th at 608-19.
184. Reyes, 148 Cal. App. 4th at 616.
185. Illegal Aliens. Ineligibility for Public Services. Verification and Reporting., Proposition 187, 1994 Cal. Stat. A-317 (codified in scattered sections of CAL. EDUC. CODE, CAL. GOV'T CODE, CAL. HEALTH & SAFETY CODE, CAL. PENAL CODE and CAL. WELF. & INST. CODE). It also would have required certain state and local government employees to verify the immigration status of persons whom they encountered in their duties, and to report all suspected unauthorized migrants to federal immigration officials. In addition, Proposition 187 introduced substantial new criminal penalties for manufacturing, selling, and using false documents. A federal court found that all but the criminal penalties were preempted. See League of United Latin Am. Citizens v. Wilson, 997 F. Supp. 1244, 1261 (C.D. Cal. 1997).
186. League of United Latin Am. Citizens v. Wilson, 908 F. Supp. 755, 786-87 (C.D. Cal. 1995). The case settled while on appeal. See Patrick J. McDonnell, Prop. 187 Talks Offered Davis Few Choices, L.A. TIMES, July 30, 1999, at A3.
187. Linda S. Bosniak, Opposing Prop. 187: Undocumented Immigrants and the National Imagination, 28 CONN. L. REV. 555, 558 (1996).
188. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 153-56 (2002) (Breyer, J., dissenting).
189. Agri Processor Co., Inc. v. NLRB, 514 F.3d 1, 8-9 (D.C. Cir. 2008).
190. 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.
191. see also ROGER DANIELS, GUARDING THE GOLDEN DOOR: AMERICAN IMMIGRATION POLICY AND IMMIGRANTS SINCE 1882, at 121 (2004) (discussing the background of the Texas Proviso).
192. DANIEL J. TICHENOR, DIVIDING LINES: THE POLITICS OF IMMIGRATION CONTROL IN AMERICA 194 (2002) (same).
193. When IRCA became law in 1986, at least twelve states had some kind of employer sanctions law. SELECT COMM'N ON IMMIGRATION & REFUGEE POL'Y, U.S. IMMIGRATION POLICY AND THE NATIONAL INTEREST: STAFF REPORT OF THE SELECT COMMISSION ON IMMIGRATION AND REFUGEE POLICY 565 (1981).
194. See INA § 274A, 8 U.S.C. § 1324a (2006) (prohibiting employment of unauthorized aliens).
195. See Wayne A. Cornelius, The U.S. Demand for Mexican Labor, in MEXICAN MIGRATION TO THE UNITED STATES: ORIGINS, CONSEQUENCES, AND POLICY OPTIONS 25, 43-44 (Wayne A. Cornelius & Jorge A. Bustamante eds., 1989) (surveying California employers who describe the ease with which undocumented workers attain false identification).
196. INA § 274A(b)(1)(A), 8 U.S.C. § 1324a(b)(1)(A).
197. see also Collins Foods Int'l, Inc. v. INS, 948 F.2d 549, 553-54 (9th Cir. 1991) (holding that the employer did not violate § 1324a(b)(1)(A) by failing to closely inspect the employee's social security card or compare it to an example in the INS handbook, and observing that "Congress intended to minimize the burden and the risk placed on the employer in the verification process").
198. See Kitty Calavita, Employer Sanctions Violations: Toward a Dialectical Model of White-Collar Crime, 24 LAW & SOC'Y REV. 1041, 1046-55, 1057, 1060 (1990) (describing employer reactions to IRCA sanctions and illustrating the degree to which employers are, paradoxically, protected by IRCA despite their employment of undocumented workers).
199. INA § 274B(a)(6), 8 U.S.C. § 1324b(a)(6). This requires discriminatory intent.
200. See Lack of Worksite Enforcement and Employer Sanctions: Hearing Before the Subcomm. on Immigration, Border Security and Claims of the H. Comm. on the Judiciary, 109th Cong. 7 (2005) (testimony of Richard M. Stana, Director, Homeland Security and Justice, U.S. Government Accountability Office) (describing how worksite enforcement was and continues to be a low priority for federal government agencies).
201. JOSEPH NEVINS, OPERATION GATEKEEPER: THE RISE OF THE "ILLEGAL ALIEN" AND THE MAKING OF THE U.S.-MEXICO BOUNDARY 136 (2002) (discussing the low number of workplace inspectors and enforcement actions in the late 1990s).
202. See U.S. Immigration & Customs Enforcement, Worksite Enforcement Fact Sheet, http://www.ice.gov/pi/news/factsheets/worksite.htm (last visited Mar. 22, 2010) (showing the total worksite enforcement arrests increasing from 1,292 in 2005 to 4,383 in 2006, 4,940 in 2007, and 6,287 in 2008).
203. For a discussion of the Postville raid and an analysis of the trend toward criminal prosecution of unauthorized migrants, see Ingrid V. Eagly, Prosecuting Immigration, 104 NW. U. L. REV. (forthcoming 2010) (manuscript at 21-56, on file with the Duke Law Journal).
204. See Neil A. Lewis, In Search for Illegal Workers, Immigration Officials Will Audit More Companies, N.Y. TIMES, Nov. 20, 2009, at A14 (describing the Obama administration's use of electronic databases to check for unauthorized workers).
205. Julia Preston, Immigrant Crackdown Leads to 1,800 Pink Slips, N.Y. TIMES, Sept. 30, 2009, at A1 (describing the Obama administration's emphasis on forcing employers to dismiss employees instead of raiding workplaces).
206. Presenting data showing that unauthorized immigrant workers remain overrepresented in low wage and low education occupations.
207. See, e.g., Cristina M. Rodríguez, Guest Workers and Integration: Toward a Theory of What Immigrants and Americans Owe One Another, 2007 U. CHI. LEGAL F. 219, 223 (noting the U.S. economy's dependence on immigrants from Mexico and Latin America).
208. See Julia Preston, Employers Fight Tough Measures on Immigration, N.Y. TIMES, July 6, 2008, at A1 ("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.").
209. 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.
210. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1050 (1984) (holding that the exclusionary rule does not apply in civil deportation hearings held by the INS).
211. INS v. Lopez-Mendoza, 468 U.S. 1032 (1984).
212. See Orhorhaghe v. INS, 38 F.3d 488, 493 n.2 (9th Cir. 1994).
213. United States v. Brignoni-Ponce, 422 U.S. 873 (1975).
214. Orhorhaghe, 38 F.3d at 493.
215. See, e.g., Ill. Migrant Council v. Pilliod, 548 F.2d 715 (7th Cir. 1977) (mem.) (holding that the Immigration and Naturalization Service could not lawfully stop and question individuals solely on the basis of Hispanic appearance). My concern in this Article is how decisionmakers and litigants work within prevailing doctrine to decide on remedies once a violation is established. For a thorough critique of doctrine defining a Fourth Amendment violation-especially of what constitutes a search or seizure, and consent to a search or seizure-see generally Devon W. Carbado, (E)Racing the Fourth Amendment, 100 MICH. L. REV. 946 (2002).
216. Gonzalez-Rivera v. INS, 22 F.3d 1441, 1450-51 (9th Cir. 1994).
217. Orhorhaghe, 38 F.3d at 503.
218. See Almeida-Amaral v. Gonzales, 461 F.3d 231, 236 (2d Cir. 2006) ("[E]xclusion may well be proper where the seizure itself is gross or unreasonable in addition to being without a plausible legal ground, e.g., when the initial illegal stop is particularly lengthy, there is a show or use of force, etc.").
219. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1043-50 (1983).
220. See Kevin R. Johnson, The Case Against Race Profiling in Immigration Enforcement, 78 WASH. U. L.Q. 675, 693-711 (2000) (discussing racial profiling by immigration officers even in the wake of the egregious violation decisions).
221. For a detailed argument that developments since Lopez-Mendoza support application of the exclusionary rule in removal proceedings, see generally Stella Burch Elias, "Good Reason to Believe": Widespread Constitutional Violations in the Course of Immigration Enforcement and the Case for Revisiting Lopez-Mendoza, 2008 WIS. L. REV. 1109.
222. In re Perez-Cruz, No. A95 748 837 (Immigration Ct. L.A., Cal. Feb. 9, 2009), appeal filed.
223. see also In re Herrera-Priego, No. [redacted], slip op. at 20-25 (Immigration Ct. N.Y., N.Y. July 10, 2003), available at http://www.lexisnexis.com/practiceareas/immigration/pdfs/web428.pdf (suppressing evidence and terminating removal proceedings because the enforcement action violated the government agency's own Operation Instructions on enforcement at worksites involved in a labor dispute).
224. Michael J. Wishnie, Introduction: The Border Crossed Us: Current Issues in Immigrant Labor, 28 N.Y.U. REV. L. & SOC. CHANGE 389, 389-93 (2004) (discussing Herrera-Priego).
225. 8 C.F.R. § 287.8(b)-(c) (2009).
226. Perez-Cruz, slip op. at 14.
227. In re Garcia-Flores, 17 I. & N. Dec. 325 (B.I.A. 1980).
228. Quoting United States v. Calderon-Medina, 591 F.2d 529, 531 (9th Cir. 1979).
229. Perez-Cruz, slip op. at 16-18.
230. E.g., In re Reyes-Basurto, No. [redacted], slip op. at 7-9 (Immigration Ct. N.Y., N.Y. May 28, 2009), available at http://www.legalactioncenter.org/sites/default/files/docs/lac/NY-5-28-09.pdf.
231. For a list of additional decisions, see Legal Action Ctr., Am. Immigration Council, Enforcement, Motions to Suppress, http://www.legalactioncenter.org/clearinghouse/litigation-issue-pages/enforcement-motions-suppress (last visited Feb. 19, 2010).
232. Perez-Cruz, slip op. at 17.
233. See Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 YALE L.J. 545 (1990). Examples of phantom norm decisionmaking include interpretation of both statutes and regulations.
234. Discussing the interpretation of regulations in Jean v. Nelson, 472 U.S. 846 (1985).
235. Kwong Hai Chew v. Colding, 344 U.S. 590 (1953).
236. Zadvydas v. Davis, 533 U.S. 678 (2001). I should disclose that I served as a volunteer consultant for the attorneys representing Kim Ho Ma, one of the petitioners in Zadvydas.
237. INS v. St. Cyr, 533 U.S. 289 (2001). I should disclose that I co-authored an amicus curiae brief in In re Soriano, 21 I. & N. Dec. 516 (B.I.A. 1996), which first posed some of the issues that St. Cyr later decided.
238. Zadvydas, 533 U.S. at 684-86.
239. St. Cyr, 533 U.S. at 308.
240. The U.S. Supreme Court decision in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), might be read to suggest that unauthorized migrants lack constitutional protections without some showing of connections to the United States. ("These cases... establish only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country."). A few decisions have taken this suggestion seriously, but they seem to be outliers. See United States v. Esparza-Mendoza, 265 F. Supp. 2d 1254, 1273 (D. Utah 2003) (holding that "Ezparza-Mendoza-as a previously deported felon-lacks sufficient connection to this country to assert a Fourth Amendment suppression claim").
241. United States v. Guitterez, No. CR 96-40075 SBA, 1997 U.S. Dist. LEXIS 16446, at *16-18 (N.D. Cal. Oct. 14, 1997) ("The salient issue... is whether defendant Guitterez has developed substantial connections with this country....").
242. Torres v. State, 818 S.W.2d 141, 143 n.1 (Tex. App. 1991) ("We do not believe that the protections of the Fourth Amendment . . . apply to such illegal aliens, unless they have developed sufficient connection with this country to be considered a part of the community.").
243. INS v. Lopez-Mendoza, 468 U.S. 1032, 1038-39 (1984).
244. Perez-Cruz contrasts superficially with Zadvydas, where the threshold application of the arguably relevant constitutional provision was in doubt. Zadvydas, 533 U.S. at 696-97. The issue in Perez-Cruz was not the application of the Fourth Amendment, but rather the remedy for violations. In re Perez-Cruz, No. A95 748 837, slip op. at 16-18 (Immigration Ct. L.A., Cal. Feb. 9, 2009), appeal filed. In both cases, however, a subconstitutional decision reached a result that was more favorable for the noncitizen than a constitutional holding would have provided.
245. See St. Cyr, 533 U.S. at 315-17 ("Requiring clear intent assures that Congress itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits." (quoting Landgraf v. USI Film Prod., 511 U.S. 244, 272-73 (1994))).
246. See Lopez-Mendoza, 468 U.S. at 1038 ("A deportation proceeding is a purely civil action . . . .").
247. Abel v. United States, 362 U.S. 217, 237 (1960) ("[D]eportation proceedings are not subject to the constitutional safeguards for criminal prosecutions.").
248. Galvan v. Press, 347 U.S. 522, 530-31 (1954) ("Deportation . . . has been consistently classified as a civil rather than a criminal procedure.").
249. Harisiades v. Shaughnessy, 342 U.S. 580, 594 (1952).
250. Fong Yue Ting v. United States, 149 U.S. 698, 709 (1893) ("'Deportation' is the removal of an alien out of the country . . . without any punishment . . . .").
251. See Plyler v. Doe, 457 U.S. 202, 210-16 (1982) ("[T]he Fifth Amendment protects aliens whose presence in this country is unlawful from invidious discrimination by the Federal Government.").
252. Mathews v. Diaz, 426 U.S. 67, 77 (1976) ("Even one whose presence in this country is unlawful, involuntary, or transitory is entitled to [Fifth Amendment] protection.").
253. Aguilera-Enriquez v. INS, 516 F.2d 565 (6th Cir. 1975), cert. denied, 423 U.S. 1050 (1976).
254. INA § 240(b)(4)A), 8 U.S.C. § 1229a(b)(4)(A) (2006).
255. See, e.g., DANIEL KANSTROOM, DEPORTATION NATION: OUTSIDERS IN AMERICAN HISTORY 4 (2007) (explaining problems associated with the fact that a noncitizen "will never have the right to appointed counsel").
256. LaJuana Davis, Reconsidering Remedies for Ensuring Competent Representation in Removal Proceedings, 58 DRAKE L. REV. 123, 150-68 (2009) (discussing problems attributable to the absence of appointed counsel in immigration proceedings).
257. See, e.g., INA § 237(a)(2), 8 U.S.C. § 1227(a)(2).
258. See, e.g., INA § 240A(b), 8 U.S.C. § 1229b(b).
259. Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 531-32 (M.D. Pa. 2007), argued, No. 07-3531 (3d Cir. Oct. 30, 2008).
260. Plyler v. Doe, 457 U.S. 202, 218-19 (1982).
261. In re Compean (Compean I), 24 I. & N. Dec. 710 (Att'y Gen. 2009).
262. See In re Compean (Compean II), 25 I. & N. Dec. 1, 2-3 (Att'y Gen. 2009) (reversing Attorney General Mukasey's order in Compean I).
263. Compean I, 24 I. & N. Dec. at 714-16.
264. 8 C.F.R. § 1003.23(b)(3) (2009).
265. See, e.g., Iavorski v. INS, 232 F.3d 124, 129 (2d Cir. 2000) ("Claims of ineffective assistance of counsel satisfy the [regulations'] general requirement[s] . . . .").
266. In re Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988).
267. see also ALEINIKOFF, MARTIN, MOTOMURA & FULLERTON.
268. Compare Castillo-Perez v. INS, 212 F.3d 518, 526 (9th Cir. 2000) ("While the requirements of Lozada are generally reasonable, they need not be rigidly enforced where their purpose is fully served by other means."), and Yang v. Gonzales, 478 F.3d 133, 143 (2d Cir. 2007) (holding that "only . . . substantial compliance is necessary"), with Stroe v. INS, 256 F.3d 498, 501-04 (7th Cir. 2001) (upholding the BIA's denial of an alien's motion to reopen on account of his failure to comply with Lozada).
269. See, e.g., Saakian v. INS, 252 F.3d 21, 26 (1st Cir. 2001) (holding that the immigration judge and the BIA had violated an alien's due process rights by denying his motion to reopen his asylum proceeding to raise an ineffective assistance of counsel claim).
270. Magallanes-Damian v. INS, 783 F.2d 931, 933 (9th Cir. 1986).
271. see also Dakane v. U.S. Att'y Gen., 399 F.3d 1269, 1273-74 (11th Cir. 2005) (employing functionally identical language).
272. Coleman v. Thompson, 501 U.S. 722 (1991).
273. In re Assaad, 23 I. & N. Dec. 553 (B.I.A. 2003).
274. Declining to overrule Lozada in light of the Supreme Court's holding in Coleman.
275. Under the regulations governing the BIA within the Department of Justice, the Attorney General may choose to review a BIA decision. See 8 C.F.R. § 1003.1(h)(1)(i) (2008).
276. In re Compean (Compean I), 24 I. & N. Dec. 710, 714 (Att'y Gen. 2009) (citing Att'y Gen. Order Nos. 2990-2008, 2991-2008 & 2992-2008 (Aug. 7, 2008).
277. 8 C.F.R. § 1003.1(h)(1)(i) (2008)).
278. Attorney General Mukasey handed down his decision on January 7, 2009, less than two weeks before Barack Obama acceded to the presidency.
279. At the time of the Compean I decision, federal appellate courts had reached divergent outcomes on the matter. Compare Rafiyev v. Mukasey, 536 F.3d 853, 861 (8th Cir. 2008) (holding that no such constitutional right exists), Afanwi v. Mukasey, 526 F.3d 788, 798-99 (4th Cir. 2008) (same), and Magala v. Gonzales, 434 F.3d 523, 525 (7th Cir. 2005) (same), with Nehad v. Mukasey, 535 F.3d 962, 967 (9th Cir. 2008) (holding that such claims are constitutionally cognizable), Aris v. Mukasey, 517 F.3d 595, 600-01 (2d Cir. 2008) (same), Zeru v. Gonzales, 503 F.3d 59, 72 (1st Cir. 2007) (same), Fadiga v. U.S. Att'y Gen., 488 F.3d 142, 155 (3d Cir. 2007) (same), Sene v. Gonzales, 453 F.3d 383, 386 (6th Cir. 2006) (same), Dakane v. U.S. Att'y Gen., 399 F.3d 1269, 1274 (11th Cir. 2005) (same), Tang v. Ashcroft, 354 F.3d 1192, 1196 (10th Cir. 2003) (same), and Nelson v. Boeing Co., 446 F.3d 1118, 1120 (10th Cir. 2006) (same).
280. Compean I, 24 I. & N. Dec. at 712, 727.
281. "[T]here is no valid basis for recognizing a constitutional right to counsel in removal proceedings, and thus no valid basis for recognizing a constitutional right to effective assistance of privately retained lawyers in such proceedings.".
282. In re Compean (Compean II), 25 I. & N. Dec. 1, 2 (Att'y Gen. 2009).
283. 4 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 555 (Jonathan Elliot ed., 2d ed. 1836).
284. See Zadvydas v. Davis, 533 U.S. 678, 692 (2001) (highlighting the "serious constitutional problem arising out of a statute that . . . permits an indefinite, perhaps permanent, deprivation of human liberty").
285. Lozano v. City of Hazleton, 496 F. Supp. 2d 477 (M.D. Pa. 2007), argued, No. 07-3531 (3d Cir. Oct. 30, 2008).
286. See Barbara Belejack, A Lesson in Equal Protection: The Texas Cases that Opened the Schoolhouse Door to Undocumented Immigrant Children, TEX. OBSERVER, July 12, 2007, http://www.texasobserver.org/article.php?aid=2548.
287. see also Transcript of Oral Argument, Plyler v. Doe, 457 U.S. 202 (1982) (No. 80-1538), available at http://www.oyez.org/cases/1980-1989/1981/1981_80_1538/argument.
288. Transcript of Oral Argument.