Immigrant Rights in the Shadows of Citizenship

Rachel Ida Buff

• Publisher: NYU Press
• Year: 2008
• Print ISBN:
  9780814799925
• eBook ISBN:
  9780814789742
• Topic: Social Sciences
• Subtopic: North American History
• Index: Social Sciences

Punctuated by marches across the United States in the spring of 2006, immigrant rights has reemerged as a significant and highly visible political issue. Immigrant Rights in the Shadows of U.S. Citizenship brings prominent activists and scholars together to examine the emergence and significance of the contemporary immigrant rights movement. Contributors place the contemporary immigrant rights movement in historical and comparative contexts by looking at the ways immigrants and their allies have staked claims to rights in the past, and by examining movements based in different communities around the United States. Scholars explain the evolution of immigration policy, and analyze current conflicts around issues of immigrant rights; activists engaged in the current movement document the ways in which coalitions have been built among immigrants from different nations, and between immigrant and native born peoples. The essays examine the ways in which questions of immigrant rights engage broader issues of identity, including gender, race, and sexuality.

PART I

Narratives of Refuge and Resistance

The image of the Statue of Liberty is a central one to political culture in the United States. A time-honored narrative of American national identity relates the story of a nation of immigrants, of people who, for so many reasons, needed and claimed refuge here. At the entry points of the nation—at immigration stations, asylum hearings, detention and deportation centers—people seeking to enter the country, or to remain here, also produce narratives of refuge. Sometimes, their stories re-create a familiar plotline, in which America is a sheltering harbor for the persecuted. At other times, the circumstances in which potential immigrants, refugees, and deportees speak create alternative stories about their circumstances and about the true disposition of the United States toward the world’s tired, poor, and huddled masses yearning to breathe free. In the current post-9/11 moment, increasingly restrictive attitudes toward immigrants challenge the national narrative of refuge.

Chapter 1 examines the ways in which the harsh federal responses to immigrant claims threaten to transform not only the narrative of the United States as a nation of refuge but also the very practices of democracy. Asian American and legal studies scholar John S. W. Park examines the historical development of what he calls “the fiction of parole”: immigrants physically present but not legally admitted into the country. This category originated with the Chinese exclusion laws of the late nineteenth and early twentieth centuries. As Park explains, though, the idea of a federally “paroled” immigrant evolved throughout the twentieth century, often substituting for petitions for refuge. Since 1990, Park argues, the category of the parolee—someone present but without legal claim—has come to define most immigrants to the United States.

Immigrants consistently contest the legal categories that define them. In chapter 2, sociologist Connie G. Oxford explores the ways that the stories told by women seeking asylum in the United States are transformed by asylum attorneys, social workers, and the court system to fit into the standards established by immigration law. Oxford traces the ways that individual asylum seekers resist the transformation of their experiences into standardized legal narratives that often leave out what is most true to them, as well as the ways in which their advocates attempt to intervene on their behalf. She argues that the transformation of individual experiences into narratives acceptable to the state, while necessary, can also become an act of violence against the complexity of refugee experiences.

Family reunification has been a guiding component of immigration law since 1965, although that emphasis has been challenged by legislation proposed in 2007. But lesbian, gay, and transgender petitioners for immigrant status face a pronounced lack of legal recognition of the relationships they call family. In chapter 3, Scott Long, Jessica Stern, and Adam Francouer of Human Rights Watch and Immigration Equality, Inc., review the legal history of U.S. policy toward gay, lesbian, and transgender people. They trace the ways that LGBT immigration is caught in two distinct and long-term culture wars: over the regulation of national boundaries and over the recognition of gay identities and marriage. This article is followed by the transcript of one of the important legal cases governing LGBT immigration, Boutilier v. Immigration Service, 1967.

Finally, in chapter 4, Eunice Hyunhye Cho, former Education Director at the National Network for Immigrant and Refugee Rights (NNIRR), explains the political and historical context for the emergence of the draconian immigration restriction bill of 2006. She traces long-term advocacy by immigrant rights groups for less punitive policies that would recognize the ongoing importance of immigrant communities to national economic and social health. Cho presents the challenges of creating alliances between immigrant groups from different nations, living in different regions, and, often, with markedly different concerns and approaches. Such alliance building, she argues, often transformed the vision of individual, localized communities. This article is followed by a series of short documents from the National Network for Immigrant and Refugee Rights’ organizing campaigns of spring 2006.

CHAPTER 1

On Being Here and Not Here

Noncitizen Status in American Immigration Law

John S. W. Park

This essay looks at broad developments in the immigration law to point out how the status of all newcomers to the United States has become both more simple and more vulnerable in fundamental ways. I focus on a particular type of status created through federal court precedents, then codified in the federal immigration law since 1952. That status created a category of persons who were physically in the United States, but framed as though they were not “admitted,” and thus having the same position as persons just seeking admission from a foreign country. As nonadmitted persons, they were released from the custody of immigration authorities, but they really had no constitutinal rights and no substantive right to be in the country. No matter the length of their stay, these persons could be expelled at the will of executive officials, with minimal or no supervision from the federal courts. When their status first emerged in the late nineteenth century, only a relatively small minority of undesirable Asians and Europeans fell within the power of this legal fiction. This essay attempts to show, however, how that status now describes the condition of most immigrants in the United States.

Beginning in 1875, as Congress began to regulate immigration much more deliberately and forcefully, federal authorities created a wide range of new categories for people coming to the United States. Some were legislative, and others came from the federal courts, many borrowing from existing legal precedents and concepts. All of these classifications had great legal force: after the first of several Chinese Exclusion Acts in 1882, determining a person’s status for purposes of immigration had profound consequences for everyone seeking admission into the United States. As Kitty Calavita, Erika Lee, and other scholars have shown, being classified “a returning citizen,” a “merchant,” or “a laborer” meant the difference between entry, detention, or exclusion.¹ Clearly, after Chinese exclusion, the new federal system of immigration enforcement responded very differently to persons seeking entry, and depending on one’s status, various substantive and procedural protections—the right to a hearing, the right to petition the federal courts, the right to invoke the constitution itself—did or did not apply. Because it was Chinese exclusion, racial status mattered a great deal, too, and as Hiroshi Motomura and other scholars have pointed out, many Europeans were treated as “citizens in waiting” from the very first day they arrived in the United States, while Chinese and then other Asians languished in immigration detention arguing over their rights.²

By the early twentieth century in the United States, federal immigration law envisioned the categories of citizens, persons on their way to citizenship, lawful residents ineligible for citizenship, and persons who were not formally supposed to be here at all. And not everyone among this last category was in the same position: there were those who had entered unlawfully, having avoided or tricked immigration authorities; and there were persons who were inspected, then either detained or “paroled” into the United States. Being paroled was and is a rather odd status. As it appeared originally in federal immigration law, the fiction of parole developed through the federal courts as an analog to the parole in criminal law. The fiction applies most often to someone who is literally free and yet still under the direct jurisdiction of the state.

Parole in both instances was conceived as a privilege, and the state may revoke that privilege either when the parolee has violated the terms of parole or when the state determines other relevant circumstances warranting a change of status. In the criminal law, revoking parole often means a trip back to jail; in the immigration law, losing parole status means detention, then (maybe) a trip back to one’s home country. A change in parole status could have opposite consequences: in the criminal law, a parolee who successfully meets the conditions of parole is considered “rehabilitated” and released into society. Similarly, if a federal official or a federal court finds that an immigrant parolee does have a right to be in the United States, that person is released and acquires other rights as a lawful immigrant. Parole can be an odd, liminal status, like purgatory, neither here nor there.

In federal immigration law, the fiction of parole developed over many cases in the late nineteenth and early twentieth centuries. The underpinnings for the fiction began because many presumptively excludable Chinese migrants were claiming that they were either members of an exempt category of migrants or that they were American citizens. Federal authorities detained many more of these persons, interrogated them, and also demanded from Congress a harsher set of rules to enforce exclusion. This was because more and more Chinese detainees had filed habeas corpus petitions in the federal courts, and those claiming citizenship alleged that immigration authorities were violating their constitutional rights.³ Chinese detainees were filing habeas petitions because they wanted to test the legality of their detention or exclusion before the federal courts, expecting these courts to be more just and fair than hostile immigration officers.⁴ From the government’s perspective, one solution to this problem was to treat incoming migrants as though they were not within the United States at all, such that the constitution itself did not apply to such persons. The writ of habeas corpus—rooted in due process principles with the Fifth and then the Fourteenth Amendments—would be unavailable.

In 1895, the U.S. Supreme Court addressed the case of a Japanese woman landing in San Francisco. By this time, new congressional rules gave more authority to federal officers to determine a person’s admissibility, and Nishimura Ekiu’s case tested these new limits. She claimed to be the wife of a lawfully admitted immigrant, but California’s immigration inspector, acting as an agent of the federal government, did not believe her and determined that she was excludable. Nishimura’s attorney filed a habeas corpus petition, and the same immigration authorities “placed [her] temporarily in the Methodist Episcopal Japanese and Chinese Mission” in San Francisco “in obedience to the … writ.” Nishimura was thus in the United States literally, and she was invoking, through the writ, procedural protections and due process rights that were generally understood as an integral part of the Constitution. The essence of the case, though, was not whether Nishimura should or shouldn’t be admitted into the United States but, rather, whether she should have been allowed to file for the writ at all. In other words, if Congress had passed a set of rules giving executive authorities the right to determine admissibility, should the federal courts intervene at all? Did Nishimura have “a right to due process of law” under the Constitution?⁵

The answer to both questions was no. Nishimura’s case illustrated how federal judges increasingly framed themselves as “captives of the law,” bound by legislative rules that explicitly denied them the authority to review the findings of executive officials in matters of immigration.⁶ In matters of immigration, the constitution did not apply in the same way as it would to an American citizen on American territory. Nishimura was on American soil, the Court conceded, but she was certainly not a full member of the community. Speaking through Justice Horace Gray, the Court said that because Nishimura was a foreigner, for whom special exclusion procedures were created specifically by Congress, “the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.”⁷

It did not matter, furthermore, that she was physically within the United States:

Putting her in the mission house, as a more suitable place than the steamship, pending the decision of the question of her right to land, and keeping her there, by agreement between her attorney and the attorney for the United States, until final judgment upon the writ of habeas corpus, left her in the same position, so far as regarded her right to land in the United States, as if she never had been removed from the steamship.⁸

This was a novel fiction in federal immigration law: to treat someone who was within the territorial borders of the United States as though she was still at the cusp of the nation’s border. We are to pretend that she was aboard a ship, not yet disembarked.

The fiction appears again in another famous case in 1905. When Ju Toy filed his habeas petition, however, he claimed that he was a native-born American citizen, thus changing one crucial element distinguishing this case from earlier ones following Nishimura. The Supreme Court’s reply was still the same: even when a petitioner claims to be an American citizen, if the immigration officer does not believe him, the federal courts should not intervene by granting a full hearing through a habeas corpus petition. Ju Toy had exhausted his appeals to executive authorities, but in the first habeas case, the district court agreed with him, ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Acknowledgments
• Introduction: Toward a Redefinition of Citizenship Rights
• PART I: Narratives of Refuge and Resistance
• PART II: Ambivalent Allies, Reluctant Rivals, and Disavowed Deviants
• PART III: Immigrant Acts
• PART IV: Questions of Democracy
• PART V: Afterwords
• About the Contributors
• Index