What makes the family special?

University of Chicago Law Review

Volumn 80, Issue 1, 2012, Pages 7-27

  Abrams, Kerry ^a  

^a UNIVERSITY OF VIRGINIA SCHOOL OF LAW   (United States)

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EID: 84875959610     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (111)

1. For figures, see Office of Immigration Statistics, Persons Obtaining Legal Permanent Resident Status by Type and Detailed Class of Admission: Fiscal Year 2011 (Department of Homeland Security (DHS)), online at http://www.dhs.gov/xlibrary/assets/ statistics/yearbook/2011/table7d.xls (visited Feb 16, 2013). The numbers: 453,158 immediate relatives of US citizens; 234,931 family-sponsored residents; 139,339 employmentsponsored residents (but 74,071-over half!-of these employment-sponsored visas went to family members of employees); 50,103 diversity (but 22,004 of these were to family members of diversity-lottery winners); 168,460 refugees and asylees (but 72,047 of these went to family members of refugees and asylees); and 16,049 other visas, including special humanitarian programs (1,447 of these went to family members). 453,158 + 234,931 + 74,071 + 22,004 + 72,047 + 1,447 = 857,658 family-based immigrants; that number divided by the 1,062,040 total = 80.76 percent. This number may actually undercount family- based immigrants, as the eligibility requirements for cancellation of removal include family ties, but these visas are not identified in the reported statistics as family-based, and the program for Amerasians born in Vietnam during the period when American servicemen were there exists to give preferential status to children who likely had American fathers.
2. See, for example, Gordon H. Hanson, et al, Immigration and the US Economy: Labour-Market Impacts, Illegal Entry, and Policy Choices, in Tito Boeri, Gordon Hanson, and Barry McCormick, eds, Immigration Policy and the Welfare System: A Report for the Fondazione Rodolfo Debenedetti 170, 280-81 (Oxford 2002);
3. Hearing on the Role of Family- Based Immigration in the U.S. Immigration System before the Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law of the House Committee on the Judiciary, 110th Cong, 1st Sess 4 (2007) (statement of Rep Steve King) ("Promoting Family Values and Immigration Hearing");
4. James Goldsborough, Out-of- Control Immigration, 79 Foreign Aff 89, 92 (Sept/Oct 2000).
5. See, for example, Fiallo v Bell, 430 US 787, 806 (1977) (Marshall dissenting) ("Congress extended to American citizens the right to choose to be reunited . . . with their immediate families.").
6. See, for example, Shani M. King, U.S. Immigration Law and the Traditional Nuclear Conception of Family: Toward a Functional Definition of Family that Protects Children's Fundamental Human Rights, 41 Colum Hum Rts L Rev 509, 512-13 (2010);
7. Lori A. Nessel, Families at Risk: How Errant Enforcement and Restrictionist Integration Policies Threaten the Immigrant Family in the European Union and the United States, 36 Hofstra L Rev 1271, 1288 (2008).
8. Promoting Family Values and Immigration Hearing, 110th Cong, 1st Sess at 28 (cited in note 2) (statement of Professor Bill Ong Hing).
9. See, for example, Michael M. Hethmon, Diversity, Mass Immigration, and National Security after 9/11-An Immigration Reform Movement Perspective, 66 Albany L Rev 387, 395-96 (2003) (arguing that the US policy of favoring family reunification is "nepotistic" and that "nepotism and diversity are contradictory");
10. Promoting Family Values and Immigration Hearing, 110th Cong, 1st Sess at 4 (cited in note 2) (statement of Rep King): In fact, of the entire pie chart of our immigration, we have testimony in prior hearings that demonstrates that as much as 89 percent and perhaps as much as 93 percent of our legal immigration is based on humanitarian reasons, and as little as 7 percent to 11 percent is based upon skills or merit. . . . We should not reserve so many of our immigrant visas for aliens whose only attribute is that they happen to be related to a U.S. citizen or permanent resident.
11. See, for example, Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 Harv L Rev 1497, 1529 (1983);
12. Janet Halley and Kerry Rittich, Critical Directions in Comparative Family Law: Genealogies and Contemporary Studies of Family Law Exceptionalism, 58 Am J Comp L 753, 755 (2010).
13. This right was included in the English common law doctrine of coverture, under which a wife lacks legal existence during marriage. See Janet M. Calvo, Spouse-Based Immigration Laws: The Legacies of Coverture, 28 San Diego L Rev 593, 595-600 (1991).
14. See Janet Calvo, A Decade of Spouse-Based Immigration Laws: Coverture's Diminishment, but Not Its Demise, 24 N Ill U L Rev 153, 160-61 (2004).
15. Chinese Exclusion Act, ch 126, 22 Stat 58 (1882);
16. Revised Chinese Exclusion Act, ch 220, 23 Stat 115 (1884);
17. Scott Act, ch 1015, 25 Stat 476 (1888).
18. See Todd Stevens, Tender Ties: Husbands' Rights and Racial Exclusion in Chinese Marriage Cases, 1882-1924, 27 L & Soc Inq 271, 280-88 (2002).
19. In re Chung Toy Ho, 42 F 398, 400 (D Or 1890).
20. Pub L No 67-5, ch 8, 42 Stat 5.
21. See Mae Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America 20 (Princeton 2004) (describing the act as setting a quota for each European country at "3 percent of the number of foreign-born of that nationality residing in the United States in 1910").
22. Emergency Quota Act § 2(a), (d), 42 Stat at 5-6.
23. Pub L No 59-193, ch 2534, 34 Stat 1228.
24. Expatriation Act § 3, 34 Stat at 1228-29.
25. Because citizens, as well as those who intended to become citizens, could sponsor family members, wives were a necessary admissions category despite derivative citizenship. Wives of US citizens did not need an immigration category because they had automatic citizenship, but wives of those who intended to become citizens did. See Naturalization Act of 1855 § 2, ch 71, 10 Stat 604, 604.
26. Pub L No 67-346, ch 411, 42 Stat 1021.
27. Cable Act § 2, 42 Stat at 1022. Some of the racial aspects of the 1855 and 1907 Acts persisted in, and even were exacerbated by, the Cable Act.
28. See Leti Volpp, Divesting Citizenship: On Asian American History and the Loss of Citizenship through Marriage, 53 UCLA L Rev 405, 433 (2005).
29. Cable Act § 2, 42 Stat at 1022.
30. Candice Bredbenner, A Nationality of Her Own: Women, Marriage, and the Law of Citizenship 118-19 (California 1998)
31. quoting Memorandum from the Acting Secretary of Labor to the Commissioner of Naturalization (Feb 2, 1924)
32. reprinted in Harold Fields, Shall We Naturalize Aliens Whose Wives Are Living Abroad?, 1 New American 5 (Aug 1925).
33. Pub L No 68-139, ch 190, 43 Stat 153.
34. National Origins Act § 4(a), 43 Stat at 155. The law also further solidified the distinction between citizens and noncitizens by doing away with sponsorship of relatives by noncitizens and limiting nonquota family immigration to only those wives and children whose citizen husband or father resided in the United States.
35. National Origins Act § 6(a)(1), 43 Stat at 155. Wives were also included in the quota provisions, presumably because some citizen husbands did not reside in the United States, so their wives would not be nonquota immigrants under the Act.
36. National Origins Act § 6(b), 43 Stat at 156. The only other preference category was for skilled agricultural workers and their wives and dependent children under the age of 16.
37. See National Origins Act §§ 4(a), 6(a)(1), 43 Stat at 155.
38. This privileging appears to have led to onerous backlogs for husbands of US citizen wives. From 1928 to 1952, Congress repeatedly gave immigrant husbands married to US citizen wives retroactive nonquota status if the marriage had been entered into before the date of the enacting legislation. See Report of the Committee on the Judiciary Pursuant to S Res 137, S Rep No 1515, 81st Cong, 2d Sess 464-65 (1950) (discussing the Acts of 1928, 1932, and 1948, and showing how granting nonquota status under these acts eased backlogs from Greece, Portugal, Romania, Spain, and Turkey).
39. See, for example, Immigration Act of 1891 § 1, ch 551, 26 Stat 1084, 1084 (excluding, among others, "[a]ll idiots, insane persons, paupers or persons likely to become a public charge, [and] persons suffering from a loathsome or a dangerous contagious disease").
40. See Charles C. Foster, The Development of the United States Immigration Law Selection System and the Immigration Bar, 5 Houston J Intl L 193, 204 (1983).
41. Pub L No 82-414, ch 477, 66 Stat 163
42. codified as amended at 8 USC § 1101 et seq.
43. McCarran-Walter Act § 101(a)(27)(A), 66 Stat at 169 (defining a nonquota immigrant as "an immigrant who is the child or the spouse of a citizen").
44. See also Elwin Griffith, Reforming the Immigration and Nationality Act: Labor Certification, Adjustment of Status, the Reach of Deportation, and Entry by Fraud, 17 Mich J L Reform 265, 265 (1984).
45. See S Rep No 1515 at 465 (cited in note 29) (noting that the reason for inequity was that "a husband has been traditionally considered to be the head of the household, and where he went, his wife would follow" but that now the "underlying principle should be to maintain the family unit, which could be accomplished by removing the inequality in the treatment of husbands of American citizens").
46. McCarran-Walter Act § 203(a)(3)-(4), 66 Stat at 178-79.
47. As a result of this problem, backlogs developed, and amendments to the McCarran- Walter Act retroactively gave nonquota status to siblings who had been waiting for a requisite number of years. See Act of Oct 24, 1962 § 1, Pub L No 87-885, 76 Stat 1247, 1247.
48. Pub L No 89-236, 79 Stat 911
49. amending INA § 201 et seq
50. codified as amended 8 USC § 1151 et seq.
51. Hart-Celler Act § 1, 79 Stat at 911.
52. Hart-Celler Act § 3, 79 Stat at 912-13
53. amending INA § 203
54. codified as amended at 8 USC § 1153.
55. President Lyndon B. Johnson, Special Message to the Congress on Immigration, 1965 Pub Papers 37, 38.
56. President Lyndon B. Johnson, Remarks at the Signing of the Immigration Bill, Liberty Island, New York, 1965 Pub Papers 1037, 1038.
57. For further discussion of the dynamics behind the passage of the Hart-Celler Act, see Richard Alba and Victor Nee, Remaking the American Mainstream: Assimilation and Contemporary Immigration 175-76 (Harvard 2003) (explaining that while the drafters of the Hart-Celler Act anticipated that it would "ethnically recalibrate immigration," it actually encouraged immigration surges from some countries);
58. Aristide R. Zolberg, A Nation by Design: Immigration Policy in the Fashioning of America 328-36 (Harvard 2006).
59. See, for example, Immigration Act of 1990, Pub L No 101-649, 104 Stat 4978.
60. HR 938, 110th Cong, 1st Sess (Feb 8, 2007).
61. Nuclear Family Priority Act § 2, HR 938 at 1-2 (cited in note 45).
62. For a helpful discussion of the term "integration" and other terms such as "assimilation," see Adrian Favell, Integration Policy and Integration Research in Europe: A Review and Critique, in T. Alexander Aleinikoff and Douglas Klusmeyer, eds, Citizenship Today: Global Perspectives and Practices 349, 351-52 (Carnegie Endowment for International Peace 2001) (stating that the term integration "accepts some idea of permanent settlement and deals with and tries to distinguish a later stage in a coherent societal process").
63. See Adam B. Cox and Eric A. Posner, The Second-Order Structure of Immigration Law, 59 Stan L Rev 809, 854 (2007) (discussing family reunification as an "institutional design strategy in which family relationship serves as a proxy for a first-order immigration policy goal" such as assimilation).
64. See Karen Knop, Relational Nationality: On Gender and Nationality in International Law, in Aleinikoff and Klusmeyer, eds, Citizenship Today 89, 115 (cited in note 47).
65. See Nora V. Demleitner, How Much Do Western Democracies Value Family and Marriage?: Immigration Law's Conflicted Answers, 32 Hofstra L Rev 273, 285-86 (2003).
66. INA § 319(a), 8 USC § 1430(a).
67. INA § 203(d), 8 USC § 1153(d).
68. Hiroshi Motomura, We Asked for Workers, but Families Came: Time, Law, and the Family in Immigration and Citizenship, 14 Va J Soc Pol & L 103, 117-18 (2007).
69. Promoting Family Values and Immigration Hearing, 110th Cong, 1st Sess at 24 (cited in note 2) (statement of Professor Hing).
70. See INA § 203(a), (d);
71. 8 USC § 1153(a), (d).
72. Promoting Family Values and Immigration Hearing, 110th Cong, 1st Sess at 7 (cited in note 2) (statement of Rep Conyers).
73. For a discussion of the effects of schools and other non-familial activities on children, see Laura A. Rosenbury, Between Home and School, 155 U Pa L Rev 833, 841-46 (2007).
74. Thomas Alexander Aleinikoff, et al, Immigration and Citizenship: Process and Policy 394 (West 7th ed 2012).
75. See Promoting Family Values and Immigration Hearing, 110th Cong, 1st Sess at 13 (cited in note 2) (statement of Professor Harriet Duleep).
76. See Carmenza Gallo and Thomas R. Bailey, Social Networks and Skills-Based Immigration Policy, in Harriet Orcutt Duleep and Phanindra V. Wunnava, eds, Immigrants and Immigration Policy: Individual Skills, Family Ties, and Group Identities 203, 205-07 (Jai 1996).
77. INA § 213A(a)(1)(A), 8 USC § 1183a(a)(1)(A).
78. Affidavits of support are enforceable-at least in theory-in a number of contexts. First, a state support agency might refuse to give support to an otherwise eligible individual if it is aware that there is an existing affidavit of support that requires a family member to support that person. Second, a state can sue for reimbursement if it does inadvertently give welfare benefits to someone covered by an affidavit of support (although most states have not actively pursued this avenue). Third, the immigrant can bring a private lawsuit against the sponsor to enforce the support obligation, an option that is increasingly being exercised by immigrants, especially in divorce proceedings, as the support obligation survives divorce. See Veronica Tobar Thronson, 'Til Death Do Us Part: Affidavits of Support and Obligations to Immigrant Spouses, 50 Fam Ct Rev 594, 595-602 (2012).
79. Gary S. Becker, A Treatise on the Family 30-79 (Harvard 1991).
80. See also Katharine Silbaugh, Turning Labor into Love: Housework and the Law, 91 Nw U L Rev 1, 27-79 (1996);
81. Hila Shamir, What's the Border Got to Do with It? How Immigration Regimes Affect Familial Care Provision-A Comparative Analysis, 19 Am U J Gender Socy Pol & L 601, 608-11 (2011).
82. See Silbaugh, 91 Nw U L Rev at 3, 17 (cited in note 65).
83. Nancy C. Staudt, Taxing Housework, 84 Georgetown L J 1571, 1572-73 (1996).
84. See Pierrette Hondagneu-Sotelo, Doméstica: Immigrant Workers Cleaning and Caring in the Shadows of Affluence 210-43 (California 2001) (analyzing the limitations of current legal regulation of domestic labor and offering a program for reform).
85. Similar gray markets occur in industries such as the construction industry, which are insulated from prosecution for immigration law violations by rules that immunize contractors from immigration violations committed by subcontractors. See Richard Sullivan and Kimi Lee, Organizing Immigrant Women in America's Sweatshops: Lessons from the Los Angeles Garment Worker Center, 33 Signs: J Women Culture & Socy 527, 528-29 (2008).
86. For a discussion of how the underground domestic labor economy bolsters female US citizens' exercise of equal citizenship while simultaneously denying immigrant women access to citizenship, see Linda Bosniak, The Citizen and the Alien: Dilemmas of Contemporary Membership 102-21 (Princeton 2006).
87. For more information regarding these statistics, see Office of Immigration Statistics, Persons Obtaining Legal Permanent Resident Status by Broad Class of Admission and Selected Demographic Characteristics: Fiscal Year 2011 (DHS), online at http://www.dhs.gov/xlibrary/assets/statistics/yearbook/ 2011/table9.xls (visited Feb 16, 2013).
88. See 42 USC § 666 (requiring states to adopt child support guidelines);
89. 45 CFR § 303.5 (setting forth details of a paternity acknowledgment program).
90. For an analysis of how federal immigration law functions as a form of family law, see Kerry Abrams, Immigration Law and the Regulation of Marriage, 91 Minn L Rev 1625, 1634 (2007).
91. See Laura E. Hill, Connections between U.S. Female Migration and Family Formation and Dissolution, 2 Migraciones Internacionales 60, 68 (2004) (discussing how female migrants "may be motivated to migrate by a desire to find better marriage markets or to improve quality of their marriage or even to have the freedom to escape a dissatisfying marriage");
92. Douglas S. Massey, Mary J. Fischer, and Chiara Capoferro, International Migration and Gender in Latin America: A Comparative Analysis, 44 Intl Migration 63, 73- 75 (2006) (discussing family structure conditions under which women emigrate).
93. For an interesting analysis of the conflicting goals of immigrant "mail-order brides" and their US citizen husbands, see Hung Cam Thai, Clashing Dreams: Highly Educated Overseas Brides and Low-Wage U.S. Husbands, in Barbara Ehrenreich and Arlie Russell Hochschild, eds, Global Woman: Nannies, Maids, and Sex Workers in the New Economy 230, 248-51 (Owl Books 2002).
94. See Defense of Marriage Act (DOMA) § 3(a), Pub L No 104-199, 110 Stat 2419, 2419 (1996)
95. codified at 1 USC § 7 (defining marriage as "a legal union between one man and one woman as husband and wife").
96. DOMA's constitutionality was the subject of litigation in several circuits and is now pending Supreme Court review. Windsor v United States, 699 F3d 169 (2d Cir 2012)
97. cert granted, 133 S Ct 9 (2012);
98. Golinski v Office of Personnel Management, 824 F Supp 2d 968 (ND Cal 2012);
99. Massachusetts v Department of Health and Human Services, 682 F3d 1 (1st Cir 2012);
100. In re Levenson, 587 F3d 925 (9th Cir 2009).
101. Consider Lindsay M. Howden and Julie A. Meyer, Age and Sex Composition: 2010 2 (Census Bureau May 2011), online at http://www.census.gov/prod/cen2010/ briefs/ c2010br-03.pdf (visited Feb 16, 2013).
102. See Jeffrey S. Passel and D'Vera Cohn, U.S. Population Projections: 2005-2050 8 (Pew Research Center Feb 11, 2008), online at http://www. pewhispanic.org/files/reports/ 85.pdf (visited Feb 16, 2013) (reporting that if current trends continue, by 2050 82 percent of the increase in population will be due to immigrants arriving from 2005 to 2050 and their American-born descendants).
103. See Kristin Smith and Reagan Baughman, Caring for America's Aging Population: A Profile of the Direct-Care Workforce, Monthly Labor Rev 20, 21 (Bureau of Labor Statistics Sept 2007), online at http://www.bls.gov/opub/mlr/ 2007/09/art3full.pdf (visited Feb 16, 2013) (stating that 89 percent of the direct-care workforce is female).
104. For a version of this argument, see Bill Ong Hing, Deporting Our Souls: Values, Morality, and Immigration Policy 28-29 (Cambridge 2006).
105. See, for example, David T. Courtwright, Gender Imbalances in History: Causes, Consequences and Social Adjustment, 16 Reproductive BioMedicine Online 32, 35 (Mar 2008), online at http://download.journals.elsevierhealth.com/pdfs/ journals/1472-6483/ PIIS1472648310603975.pdf (visited Feb 16, 2013).
106. See Department of Economic and Social Affairs, The World's Women 2010: Trends and Statistics 48-52 (United Nations 2010), online at http://unstats.un.org/unsd/demographic/products/Worldswomen/WW-full%20report- color.pdf (visited Feb 16, 2013).
107. Some countries are now experiencing more out-migration of women than men, largely because of the need for care work in industrialized countries with aging populations. See Rhacel Salazar Parreñas, The Care Crisis in the Philippines: Children and Transnational Families in the New Global Economy, in Ehrenreich and Hochschild, eds, Global Woman 39, 39 (cited in note 73) (stating that two-thirds of Filipino migrant workers are women, who engage predominantly in care work).
108. Contrast Moore v City of East Cleveland, Ohio, 431 US 494, 506 (1977) (holding a housing ordinance with a limited definition of family to be unconstitutional)
109. Fiallo v Bell, 430 US 787, 799-800 (1977) (holding that the provision of the McCarran-Walter Act that excluded the relationship between an illegitimate child and his natural father from preferential treatment was not unconstitutional).
110. See INA § 201(b), 8 USC § 1151(b).
111. This status would be subject to the limitations on conditional permanent residency under INA § 216, 8 USC § 1186.