Suchergebnisse

In Immigration Outside the Law, acclaimed immigration law expert Hiroshi Motomura, addresses the fraught issue of illegal immigration to the United States, which has become one of the most controversial political and social issues in contemporary America.

America is unquestionably a nation of immigrants. And yet throughout its history the practicalities of immigration have inspired more questions than consensus. Who should be admitted? What should the path to citizenship be? Despite national security concerns over enemies penetrating our borders, the number of foreign-born people living in the United States grew to 35 million in 2005, an all-time high. A coherent and rational immigrant policy is more necessary than ever. In Americans in Waiting, Hiroshi Motomura discovers in our national past a simple yet powerful approach to immigration and ci

This Article starts by analyzing the conventional wisdom, crystallized in the Ninth Circuit's 1983 decision in Gonzales v. City of Peoria, that state and local law enforcement officers do not require express federal authorization to make arrests for criminal violations of federal immigration law. This view, I explain, is based on overreliance on the line between civil and criminal. Even if a state or local arrest for an immigration crime still leaves federal prosecutors with substantial discretion not to bring criminal charges, it is highly likely that the federal government will force arrestees to leave the United States through the civil removal system, where much less discretion has been exercised. In immigration law, the discretion to arrest has been the discretion that matters. As long as this remains true, state and local arrest authority for immigration crimes reflects assumptions that have the potential to supersede much federal control over immigration enforcement. This consequence of state and local arrests assumes great practical importance when the lessons from Gonzales are applied to federal programs—such as § 287(g) agreements and Secure Communities— in which state and local nonimmigration arrests expose noncitizens to federal immigration enforcement. Though federal decisionmakers may exercise greater and more regularized discretion in response to a larger state and local role, such federal discretion will be fundamentally reactive. Any federal policy that allows state and local governments to be gatekeepers—to permit state and local priorities to decide which noncitizens will be exposed to federal immigration enforcement— risks abdication of federal authority over immigration.

This Article analyzes the rights of unauthorized migrants and elucidates how these noncitizens are incompletely but importantly integrated into the U.S. legal system. I examine four topics: (1) state and local laws targeting unauthorized migrants, (2) workplace rights and remedies, (3) suppression of evidence from an unlawful search or seizure, and (4) the right to effective counsel in immigration court. These four inquiries show how unauthorized migrants—though unable to assert individual rights as directly as U.S. citizens in the same circumstances—can nevertheless assert rights indirectly and obliquely by making transsubstantive arguments that fall into five general patterns. The first is an institutional competence argument that the wrong decisionmaker acted. The second is an argument that an unauthorized migrant was wronged by a comparatively culpable person. The third is a citizen proxy argument that sustaining an unauthorized migrant's claim will protect a U.S. citizen or lawful permanent resident. The fourth is that an unauthorized migrant may be unable to challenge the substance of a decision, yet may mount a successful procedural surrogate challenge to the way that decision was reached. The fifth is a phantom norm argument that, even if a government action withstands constitutional challenge, it violates a statute or regulation. These patterns illustrate how typical doctrinal relationships and litigation strategies—for example, choosing between equal protection and preemption arguments, or between seeking redress for harms to individuals and harms to groups—shift significantly for unauthorized migrants. These patterns of oblique rights reflect a pervasive national ambivalence about immigration outside the law.