CHACON FINAL AM LOVING ACROSS BORDERS IMMIGRATION LAW AND THE

CHACON FINAL 10/26/2007 11:59 AM LOVING ACROSS BORDERS: IMMIGRATION LAW AND THE LIMITS OF LOVING JENNIFER MARIE CHACÓN∗ I. Introduction ................................................................................345 II. Immigration Restrictions and Antimiscegenation Laws ............348 A. Admission Policy and the Social Construction of Race......350 B. Nationality Laws and the Policing of the Color Line..........356 III. Where Loving Never Tread: How the Law Still Regulates Intimacy......................................................................................358 A. Immigration, Nationality, and the Family...........................359 B. Immigration and Nationality Laws Versus Family .............362 1. Spousal Reunification: The Exclusion of Same-Sex Partners..........................................................................362 2. No Path to Legality: The Plight of the Undocumented Noncitizen............................................363 3. Deporting Family Members: The Expanded Removal of Lawful Permanent Residents and Undocumented Noncitizens....................................................................366 4. Physical Barriers to Intimacy ........................................369 IV. Distorting Family Life and Devaluing Personhood....................371 V. Conclusions ................................................................................378 I. INTRODUCTION In Loving v. Virginia, the Supreme Court expressly recognized the role that antimiscegenation laws played in maintaining racial hierarchies.1 The Virginia law that Loving invalidated had been enacted to prevent the intermarriage of “white persons” with anyone besides another “white person.”2 The State argued that, because the law applied Acting Professor of Law, U.C. Davis School of Law. A.B., Stanford University, 1994; J.D., Yale Law School, 1998. I owe many thanks to my dedicated research assistants, Pauline Woodman and Ruby Marquez, and to Elisabeth McKenchnie of the U.C. Davis Mabie Law Library. I also owe a debt of gratitude to the many people who commented on earlier versions of this Article, including Tucker Culbertson, Kevin R. Johnson, Rashmi Goel, Bill Ong Hing, Adele M. Morrison, Reginald Oh, Angela Onwuachi-Willig, Carla D. Pratt, and Catherine Smith. This Article is dedicated to my brother Anthony, and to everyone for whom the promise of Loving remains unfulfilled. 1. Loving v. Virginia, 388 U.S. 1, 11 (1967). 2. Id. at 4-5 & n.4. ∗ CHACON FINAL 10/26/2007 11:59 AM 346 WISCONSIN LAW REVIEW equally to both whites and nonwhites, it did not discriminate on the basis of race.3 The Court, however, looked beyond the alleged race neutrality of the statute and took into account the law’s social and historical roots.4 Chief Justice Earl Warren, writing for the Court, found that the law violated the Equal Protection Clause of the Fourteenth Amendment: “The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.”5 The Court also struck the law down on substantive due process grounds, stating that “[t]o deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law.”6 In striking down Virginia’s antimiscegenation statute, the Supreme Court first placed the law in its historical context. Describing the history of Virginia’s Racial Integrity Act, the Court wrote: “The present statutory scheme dates from the adoption of the Racial Integrity Act of 1924, passed during the period of extreme nativism which followed the end of the First World War.”7 It then described the law’s effect and ultimately concluded that “invidious racial discrimination” was the sole—and illegitimate—rationale for the law.8 The shift in the Court’s focus from nativism to racism raises a question as to why the Court characterized the period of the Act’s passage as one of “extreme nativism” rather than of extreme racism. Nativism is “the favoring of native-born citizens over immigrants,”9 as well as “the intense opposition to an internal minority on the grounds of its foreign connection.”10 Nativism and racism are not necessarily the same thing: “Although nativism is often racialized, and is thus racist, in its essence nativism espouses assimilation into the dominant culture through elimination of ‘foreign’ traits—such as speaking languages other than English— whereas racism entails systematic exclusion from the dominant culture, as illustrated by Jim Crow laws.”11 3. See id. at 10. 4. See id. at 6-7. 5. Id. at 11. 6. See id. at 12. 7. Id. at 6. 8. Id. at 11. 9. Rene Galindo & Jami Vigil, Are Anti-Immigrant Statements Racist or Nativist? What Difference Does it Make?, 4 LATINO STUD. 419, 422 (2006) (citing JOHN HIGHAM, STRANGERS IN THE LAND 4 (1955)). 10. Id. 11. Id. at 425. CHACON FINAL 10/26/2007 11:59 AM 2007:345 Loving Across Borders 347 The Court made no effort to explain why the law’s roots in a period of nativism were relevant to the determination of the statute’s racist intent. Nor did it attempt to distinguish between domestic racial discrimination and “extreme nativism.” In other words, the Loving decision characterized the origins of Virginia’s antimiscegenation law as nativist, but actually struck the law down because it was racist. The Court’s brief historical analysis in Loving, therefore, appears to conflate nativism and racism. Whether deliberate or fortuitous, this provides an important opportunity to explore the synergies between the racism that motivated Virginia’s Racial Integrity Act and the nativism that drove the nationalorigin quota restrictions of the 1924 Immigration Act.12 The laws have changed a great deal since 1924. Just as the 1967 Loving decision declared Virginia’s forty-three-year-old criminal prohibition on interracial marriage unconstitutional,13 the Immigration Act of 1965 ended the express reliance on racial quotas in immigration and nationality laws.14 Yet, immigration and nationality laws—along with the criminal laws used to enforce them—continue to reify racial hierarchies. Ironically, they often do so by interfering with what the Loving Court characterized as the “fundamental freedom” to marry,15 and other constitutionally recognized rights to family intimacy. Examining these contemporary statutes with the same distrust of nativism that the Supreme Court applied to Virginia’s Racial Integrity Act reveals the ways that barriers to family intimacy posed by current law may continue to perpetuate “White Supremacy.” Part II of this Article briefly reviews some of the ways in which immigration and nationality laws regulated family intimacy in the century preceding the Loving decision. These laws, which expressly countenanced racial quotas and race-based bars to admission and 12. Immigration Act of 1924, Pub. L. No. 68-139, ch. 190, §§ 4-5, 443 Stat. 153, 155 (defining “quota” and “non-quota” immigrants). 13. Because all sex outside of marriage was illegal, prohibitions on marriage operated in conjunction with other criminal-law provisions to serve as absolute prohibitions on interracial sexual relations. See, e.g., VA. CODE ANN. § 18.2-344 (2004), invalidated by Martin v. Ziherl, 607 S.E.2d 367 (Va. 2005) (“Any person, not being married, who voluntarily shall have sexual intercourse with any other person, shall be guilty of fornication, punishable as a Class 4 misdemeanor.”) Virginia’s criminalization of sex outside of marriage was not declared unconstitutional until two years ago. See Martin, 607 S.E.2d 367. 14. See Act of Oct. 3, 1965, Pub. L. 89-236, 79 Stat. 911 (codified as amended at 18 U.S.C. §§ 1101-1537 (2000)). The Act raised the annual ceiling on immigration to 290,000 and allocated 170,000 of those slots to Europe, Asia and Africa, with caps of 20,000 per country. See id. §§ 1, 2, 21(e). It also allocated 120,000 slots to the Western Hemisphere, with no individual country caps. Id. § 21(e). 15. Loving v. Virginia, 388 U.S. 1, 12 (1967). CHACON FINAL 10/26/2007 11:59 AM 348 WISCONSIN LAW REVIEW naturalization, operated in tandem with antimiscegenation laws to construct and enforce racial boundaries within the United States. Part III explores contemporary immigration and nationality laws, detailing some of the ways in which formal legal barriers to marriage and intimate family relationships persist under these contemporary laws. Part IV discusses the larger social significance of the legal barriers to intimacy created by immigration and naturalization laws. This Part also illustrates the concrete ways in which the nativism that still undergirds modern immigration and nationality laws frustrates the goal of dismantling stateenforced racial hierarchies. Part V asserts that racial hierarchies cannot be completely eliminated, nor “White Supremacy” completely dismantled, under a constitutional order that too sharply limits its concerns about family to relationships between citizens. II. IMMIGRATION RESTRICTIONS AND ANTIMISCEGENATION LAWS In Loving, the Court stated that “[m]arriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”16 Two years earlier, in Griswold v. Connecticut, the Court had concluded that the right to intimate relations in marriage existed “within the zone of privacy created by several fundamental constitutional guarantees.”17 In both cases, the Court expressed the need to protect intimate marital relations from unjust State intrusions.18 But the Court’s concern with protecting the individual’s liberty interest in ordering their family affairs extends well beyond the marriage bed. In Moore v. East Cleveland, for example, the Court observed that “freedom of personal choice in the matter of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”19 16. Id. (quoting Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)). 17. 381 U.S. 479, 485 (1965). 18. See Loving, 388 U.S. at 12 (“Under our Constitution, the freedom to marry or not marry, a person of another race resides with the individual and cannot be infringed by the State.”); Griswold, 381 U.S. at 485-86 (“Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.”). 19. 431 U.S. 494, 499 (1977) (quoting Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-640 (1974)). The Moore Court reasoned that the Constitution’s due process protections prevented a state from enacting a zoning ordinance that prohibited Inez Moore from sharing a home with her two grandsons, who were first cousins. “When the government intrudes on the choices concerning family living arrangements this court must examine carefully the importance of the governmental interest advanced and the extent to which they are served by the challenged regulation.” Id. The Court then cited to a “host of cases” acknowledging a “private realm of family life in which the state cannot enter.” See id. CHACON FINAL 10/26/2007 11:59 AM 2007:345 Loving Across Borders 349 The fact that the Court has provided substantive due process protections for an individual’s interest in marriage and family has generally ensured that the government may interfere with these important liberty interests only in cases of sufficiently compelling government interest.20 In cases involving immigration and nationality laws, however, the Court has required no such governmental deference to family intimacy.21 Historically, the Court has been reluctant to scrutinize Congress’s regulation of immigration, and this reluctance has proven detrimental to families whose lives intersect with the restrictions imposed by immigration and nationality laws. A. Admission Policy and the Social Construction of Race In the late eighteenth century, Congress enacted a series of laws meant to exclude Asians. One of the first such efforts was the Alien Prostitution Importation Act of 1875, also known as the Page Law.22 The 20. See, e.g., id. 21. Gerald E. Neuman, Discretionary Deportation, 20 GEO. IMM. L.J. 611, 62223 (2006) (“U.S. constitutional law . . . has not imposed substantial constraints on deportation in the name of substantive due process family unity rights of aliens or citizens.”); see also Linda Kelly, Family Planning, American Style, 52 ALA. L. REV. 943, 959-60 (2001) (arguing that the more expansive definition of “family” articulated in Moore should guide immigration laws’ family-reunification provisions, but noting that it does not); Enid Trucios-Haynes, “Family Values” 1990’s Style: U.S. Immigration Reform Proposals and the Abandonment of the Family, 36 BRANDEIS J. FAM. L. 241, 246 (1997) (arguing that the “depressing insensitivity” of the Cleveland ordinance struck down in Moore is evidenced in immigration laws’ nuclear-family requirements for reunification); Linda Kelly, Preserving the Fundamental Right to Family Unity: Championing the Notion of Social Control and Community Ties in the Battle of Plenary Powers Versus Aliens’ Rights, 41 VILL. L. REV. 725, 741-42, 773-76 (1996) [hereinafter Kelly, Family Unity] (noting that Congress need only give a facially legitimate and bona fide reason for discrimination in immigration laws, but arguing that the Moore standard should apply to family-reunification issues in immigration); Kiyuko Matsumoto-Powers, Aliens, Resident Aliens, and U.S. Citizens in the Never-Never Land of the Immigration and Nationality Act, 15 U. HAW. L. REV. 61, 64-80 (1993) (arguing that provisions in the Immigration Marriage Fraud Amendment violate the constitutional right to marital privacy); John Guendelsberger, Implementing Family Unification Rights in American Immigration Law: Proposed Amendments, 25 SAN DIEGO L. REV. 253, 269-73 (1988) (arguing that the Moore principles should apply to immigration laws governing family unification). For a discussion of the ways in which contemporary immigration laws regulate courtship, marriage, and divorce, see Kerry Abrams, Immigration Law and the Regulation of Marriage, 91 MINN. L. REV. 1625, 1642 (2007) (“Ultimately, Congress is free to pass immigration legislation that discriminates based on marriage, that discriminates between types of marriages, or that even refuses to recognize marriage for immigration purposes.”). 22. Act of Mar. 3, 1875, ch. 141, 18 Stat. 477 (repealed 1974); see also Kerry Abrams, Polygamy, Prostitution, and the Federalization of Immigration Law, 105 COLUM. L. REV. 641, 690-98 (2005) (describing the passage of the Page Law). CHACON FINAL 10/26/2007 11:59 AM 350 WISCONSIN LAW REVIEW Act prohibited the importation of noncitizen women for purposes of prostitution, and included criminal penalties of up to five years imprisonment or five thousand dollars in fines.23 The Act’s ostensive purpose was to limit prostitution, but there is a great deal of evidence suggesting that Congress’s objective was to develop a way to exclude Chinese immigrants—particularly Chinese women—at a time when the Burlingame Treaty expressly precluded such exclusion.24 Policing intimacy served as the legal vehicle for excluding unwanted immigrants. The enforcement of the law cemented the massive gender imbalances among the Chinese population in the United States, effectively preventing family formation within the Chinese community.25 On a broader social level, the policy had the effect of reifying social stereotypes of individuals of Chinese descent living in the United States.26 The Page Law signaled the beginning of concerted congressional efforts to use immigration and nationality laws to police the nation’s racial makeup. Shortly after the passage of the Page Act, Congress passed the broader Chinese Exclusion Act,27 which the Supreme Court upheld in The Chinese Exclusion Case.28 The Court ruled that the prerogative of the political branches to make immigration decisions according to their perception of the public interest outweighed any rights of the excluded Chinese nationals.29 Four years later, in Fong Yue Ting v. United States, the Court extended the holding of The Chinese Exclusion Case, taking a similarly deferential stance toward congressional decisions to deport “aliens”30 who had been lawfully residing in the See Alien Prostitution Importation Act § 3. See Abrams, supra note 22, at 690; see also BILL ONG HING, MAKING AND REMAKING ASIAN AMERICA THROUGH IMMIGRATION POLICY 1850-1990, at 36 (1993). 25. HING, supra note 24 at 44-45. 26. See infra Part IV (discussing the impact of these exclusionary laws). 27. See Act of May 6, 1882, ch. 126, 22 Stat. 58 (1882). This Act was not repealed until 1943. See Act of Dec. 17, 1943, 57 Stat. 600 (1943); see also CHARLES GORDON ET AL., 1 IMMIGRATION LAW AND PROCEDURE §2.02[2] (2006). 28. The Chinese Exclusion Case, 130 U.S. 581, 606-07 (1889). 29. Id. at 609 (“The power of exclusion of foreigners being an incident of sovereignty . . . cannot be granted away or restrained on behalf of any one. . . . Nor can [the federal government’s power in this regard] be hampered, when needed for the public good, by any considerations of private interest.”). 30. The Immigration and Nationality Act uses “alien” to signify individuals who are neither citizens nor nationals of the United States. 8 U.S.C. § 1101(a)(3) (2000). The term, however, is frequently employed as a rhetorical device signaling a normative judgment about the outsider status of a particular individual. See Kevin R. Johnson, “Aliens” and the U.S. Immigration Laws: The Social and Legal Construction of Nonpersons, 28 U. MIAMI INTER-AM. L. REV. 263 (1997); Gerald L. Neuman, Aliens as Outlaws: Government Services, Proposition 187, and the Structure of Equal Protection Doctrine, 42 UCLA L. REV. 1425, 1428 (1995). The term “illegal aliens” lacks any 23. 24. CHACON FINAL 10/26/2007 11:59 AM 2007:345 Loving Across Borders 351 United States.31 The Court justified the political branches’ plenary power over immigration by characterizing such power as “an inherent and inalienable right of every sovereign and independent nation, essential to its safety, its independence, and its welfare.”32 By 1917, Congress had expanded the bar on Chinese immigration to shut out all “Asians,” except the Japanese,33 through the creation of an Asiatic Barred Zone.34 Those who had already been admitted were barred by law from becoming naturalized citizens.35 In 1924—the year the Loving Court identified as a year characterized by “extreme nativism”36—Congress enacted the Johnson-Reed Act.37 The eugenic rhetoric of the time influenced Congress’s enactment of the 1924 Act.38 Eugenicists were proclaiming that race determined intelligence, morality, and other social characteristics, while expressing concern that racemixing could result in “unstable ‘mongrel’ races.”39 Against this background, legislators passed laws like Virginia’s Racial Integrity Law and the Johnson-Reed Act. Historian Mae Ngai characterized the Johnson-Reed Act as an effort by Congress to “transform immigration law into an instrument of mass racial engineering.”40 The Act directed the secretaries of commerce, state, and labor to develop a system of grounding in law, and also has pejorative connotations. See Jennifer M. Chacón, Unsecured Borders, 39 CONN. L. REV. (forthcoming 2007); Neuman, supra, at 1440-42; cf. MAE M. NGAI, IMPOSSIBLE SUBJECTS: ILLEGAL ALIENS AND THE MAKING OF MODERN AMERICA, at xix-xx (2004) (explaining the decision to use the term “illegal alien” as part of a larger project to understand the origins of the representations suggested by the term). This Article uses the term “undocumented noncitizen” or “unauthorized migrants” to refer to individuals present in the United States without official authorization. 31. 149 U.S. 698, 730-31 (1893). 32. Id. at 711. 33. The Japanese were initially exempt from this bar as a result of the “socalled Gentleman’s Agreement” between the United States and Japan. GORDON ET AL., supra note 27, § 2.02[3]; BILL ONG HING, TO BE AN AMERICAN 18 (1997) (noting that Congress had already curtailed Japanese immigration in 1907). Congress, however, added them to the statutory-exclusion list in 1924. Leti Volpp, Divesting Citizenship: On Asian American History and the Loss of Citizenship Through Marriage, 53 UCLA L. REV. 405, 414 (2005). 34. See Volpp, supra note 33, at 414 (noting that the Asiatic Barred Zone spanned from Afghanistan in the Middle East across the entire Pacific, but excluded the Philippines, which was a United States colony); GORDON ET AL., supra note 27, § 2.02[3]. 35. IAN F. HANEY LÓPEZ, WHIITE BY LAW: THE LEGAL CONSTRUCTION OF RACE 15 (1996). 36. Loving v. Virginia, 388 U.S. 1, 6 (1967). 37. Immigration Act of 1924, Pub. L. No. 68-139, 43 Stat. 153. This Act was named for Representative Albert Johnson (R-WA) and Senator David Reed (R-PA). See NGAI, supra note 30, at 276 n.4. 38. See NGAI, supra note 30, at 24 (describing testimony at the congressional hearings regarding racial superiority). 39. See id. 40. Id. at 27. CHACON FINAL 10/26/2007 11:59 AM 352 WISCONSIN LAW REVIEW quotas that would serve as the basis for admitting 155,000 immigrants each year.41 The secretaries did not finalize the quota system until 1929.42 Although it was described as a national-origin quota, in fact: The quota system distinguished persons of the “colored races” from “white” persons from “white” countries. . . . In this presentation, white Americans and immigrants from Europe have “national origins,” that is, they may be identified by the country of their birth or their ancestors’ birth. But, the “colored races” were imagined as having no country of origin. They lay outside the concept of nationality and, therefore, citizenship. They were not even bona fide immigrants.43 The quotas not only separated Europe into categories of Northern Europeans (clearly favored in the quota scheme) and Southern and Eastern Europeans (who were heavily disfavored),44 but it also separated Europe from the entire non-European world.45 In keeping with earlier law and policy, the Act mandated the exclusion of Chinese, Japanese, Indians, and other Asians from immigration and declared them racially ineligible for citizenship.46 In the late 1920s and early 1930s, patterns of immigration enforcement evolved in response to the new legal order characterized by strict immigration caps, expanding grounds for exclusion, and racial quotas. Congress created, and then expanded, the Border Patrol, allegedly in response to concerns that racially excluded groups would make their way to the United States via Mexico and Canada.47 Inspection along the once-soft border was strengthened.48 The Border Patrol required migrants entering the United States from Mexico to submit to delousing baths, medical inspections, and interrogations.49 Although the 1924 Act did not impose limits on immigration from countries in the 41. Id. at 23. 42. See id. at 25. 43. Id. at 27. 44. See id. 45. See id. 46. See Immigration Act of 1924 § 28(c), 43 Stat. 153, 168. 47. NGAI, supra note 30, at 66. Contemporary calls to secure the United States from terrorist infiltration by focusing on the U.S.-Mexico border parallel this rationale. See, e.g., PATRICK J. BUCHANAN, STATE OF EMERGENCY 15-18 (implying that terrorists are infiltrating the United States through the U.S.-Mexico border). 48. See NGAI, supra note 30, at 59. 49. Id. at 68; see also DAVID DORADO ROMO, RINGSIDE SEAT TO A REVOLUTION: AN UNDERGROUND CULTURAL HISTORY OF EL PASO AND JUÁREZ: 1893-1923, at 229 (2005) (noting the process of delousing that occurred at the El Paso border crossing). CHACON FINAL 10/26/2007 11:59 AM 2007:345 Loving Across Borders 353 Western Hemisphere, including Mexico,50 the Border Patrol aimed substantial efforts at the exclusion of “illegal immigrants” from Mexico.51 By the late 1920s, Mexicans had—somewhat ironically— become the single largest group of irregular migrants.52 Even in the absence of quotas for the Western Hemisphere, the enforcement of immigration laws effectively racialized Mexicans, constructing them as the “iconic illegal aliens.”53 A new wave of internal immigration enforcement accompanied efforts to police the border. Deportation—once designed to correct errors in the admission process54—became a more important tool for enforcing expansive, race-based immigration laws.55 Congress removed the oneyear statute of limitations on deportation,56 even as a wider range of conduct—and mere status—subjected an increasing number of people to deportation.57 As early as the late 1920s, legal critics recognized that deportation would separate families, with negative implications for American-citizen family members.58 This led to the development of 50. See NGAI, supra note 30, at 50. 51. Mae M. Ngai, The Strange Career of the Illegal Alien: Immigration Restriction and Deportation Policy in the United States, 1921-1965, 21 LAW & HIST. REV. 69, 88 (2003) (“By the early 1930s the service was apprehending nearly five times as many suspected illegal aliens in the Mexican border area as it did in the Canadian border area. The Los Angeles newspaper La Opinión believed the aggressive deportation policy would result in a ‘de-Mexicanization of southern California.’” (citation omitted)). Although the quota system did not bar Mexicans from entry, they were often unable to pass the required literacy test or pay the entry fees. NGAI, supra note 30, at 54-55; Kelly Lytle Hernández, The Crimes and Consequences of Illegal Immigration: A Cross-Border Examination of Operation Wetback, 1943-1954, W. HIST. Q., Winter 2006, at 5 (“[The] inability to pay U.S. immigration fees and/or pass literacy exams often forced [poor Mexicans] to surreptitiously cross the border in violation of U.S. immigration law.”) 52. See NGAI, supra note 30, at 7. 53. Id. at 58. The racialization of Mexicans is also part of contemporary nativist views on immigration. See, e.g., BUCHANAN, supra note 47, at 135 (“Not only do Mexicans come from a different culture, they are, 85 percent of them, mestizo or Amerindian. History teaches us that separate races take even longer to integrate.”). 54. Daniel Kanstroom, Deportation, Social Control and Punishment: Some Thoughts About Why Hard Laws Make Bad Cases, 113 HARV. L. REV. 1889, 1908-10 (2000) (discussing the border-control function of early deportation measures). 55. NGAI, supra note 30, at 58-60. 56. See id. at 59. 57. See id. at 59-60; see also DAVID COLE, ENEMY ALIENS: DOUBLE STANDARDS AND CONSTITUTIONAL FREEDOMS IN THE WAR ON TERRORISM 107-09 (2003) (discussing the expansion of deportation grounds in the early 1900s); Kanstroom, supra note 54, at 1901-02 (discussing the evolution of deportation from a means of border control to a means of social control); Robert Pauw, A New Look at Deportation as Punishment: Why at Least Some of the Constitution’s Criminal Procedure Protections Must Apply, 52 ADMIN. L. REV. 305, 309-13 (2000) (discussing the application of “constitutional safeguards” to deportation). 58. See NGAI, supra note 30, at 78-80. CHACON FINAL 10/26/2007 11:59 AM 354 WISCONSIN LAW REVIEW “hardship” waivers in the early 1940s.59 Such waivers could be granted to deportable noncitizens with substantial ties to the community.60 In reality, this relief was given mostly to European immigrants and was “categorically den[ied] . . . to Mexican and Caribbean migrants.”61 Immigration enforcement routinely disrupted the family ties of certain migrant communities.62 The phenomenon of familial disruption through deportation continues through the present day.63 Despite the “nativist” origins of these policies, the Court has never subjected immigration and nationality laws—even those that discriminated on the basis of race—to the heightened scrutiny that it applied to Virginia’s Racial Integrity Act. Instead, it recognizes Congress’s plenary authority to regulate immigration and the status of noncitizens in the United States. This is not to say that the Court has rejected all constitutional challenges to immigration and nationality laws. The Court has required the government to provide procedural due process protections for noncitizens in immigration proceedings.64 On the other hand, substantive due process challenges to immigration and nationality laws generally have been unsuccessful.65 Consequently, in the context of immigration law, Congress need only supply a legitimate reason to curtail substantive due process rights such as the right, recognized in Meyer v. Nebraska, 59. See id. at 86. 60. See id. 61. See id. at 86-87. 62. See id. at 87. 63. See infra Part IV. 64. See, e.g., Yamataya v. Fisher (The Japanese Immigrant Case), 189 U.S. 86, 100-02 (1903) (noting the applicability of due process protections in the deportation of a noncitizen who had entered the United States four days earlier); Zadvydas v. Davis, 533 U.S. 678, 682 (2001) (striking down the indefinite detention of a resident noncitizen on due process grounds); Landon v. Plasencia, 459 U.S. 21, 36 (1982). But see Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 216 (1953) (rejecting a due process challenge to the indefinite confinement on Ellis Island of a noncitizen in exclusion proceedings); Demore v. Kim, 538 U.S. 510, 513 (2003) (rejecting a due process challenge to the mandatory detention of certain removable resident noncitizens). 65. Neuman, supra note 21, at 638 (noting the plenary powers doctrine’s denial of substantive due process constraints on deportation); see also Charles D. Weisselberg, The Exclusion and Detention of Aliens: Lessons from the Lives of Ellen Knauff and Ignatz Mezei, 143 U. PA. L. REV. 933 (1995) (discussing how the plenary powers doctrine trumps contemporary substantive due process norms in the exclusion of noncitizens). Notably, outside of the immigration context, the Court has extended the Fourteenth Amendment guarantees that form half of Loving’s core to noncitizens. The 1886 decision Yick Wo v. Hopkins marked the Court’s first explicit ruling that some constitutional rights apply not only to citizens, but also to aliens in the United States. 118 U.S. 356 (1886). The Court held that the discriminatory application of a city ordinance which prevented aliens of Chinese descent from operating commercial laundries was a violation of the Equal Protection Clause. See id. at 368-69; see also Plyler v. Doe, 457 U.S. 202 (1982). CHACON FINAL 10/26/2007 11:59 AM 2007:345 Loving Across Borders 355 “to marry, establish a home and bring up children.”66 Indeed, the Court has been virtually “undeviating” in “declar[ing] itself powerless to review even those immigration provisions that explicitly classify on such disfavored bases as race, gender, and legitimacy.”67 Perhaps this is unsurprising in light of the fact that the Court developed its hands-off approach to immigration legislation when reviewing laws that Congress had enacted with the express intention of excluding certain racial groups.68 B. Nationality Laws and the Policing of the Color Line Through quotas, exclusion provisions, and immigration law enforcement, Congress prevented certain “undesirable” migrants from entering the country. Through nationality laws, Congress prevented those migrants, along with certain other noncitizens already present in the country, from obtaining U.S. citizenship. From 1790 through the end of the Civil War, the privileges of citizenship extended only to free white persons of satisfactory character.69 The provision precluded persons of African descent— whether slave or free—from becoming citizens.70 But “white clearly meant white exclusively,”71 so the provision also excluded American Indians, and “when Asians appeared on the scene in the 1840s, the courts quickly determined that they were ineligible as a matter of course.”72 These early prohibitions codified white racial privilege. Legally defined racial lines formed the boundaries of citizenship privileges. For example, in 1855, Congress passed a law that 66. 262 U.S. 390, 399 (1923); see also Kelly, Family Unity, supra note 21, at 776-77; Abrams, supra note 21, at 1642 (noting that Congress’s plenary power over immigration extends to the regulation of family). 67. Stephen H. Legomsky, Immigration Law and the Principle of Plenary Congressional Power, 1984 SUP. CT. REV. 255, 255 (1984). But see Hiroshi Motomura, The Curious Evolution of Immigration Law: Procedural Surrogates for Substantive Constitutional Rights, 92 COLUM. L. REV. 1625, 1699-1700 (1992) (arguing that some noncitizens’ equal protection claims have been successfully adjudicated as procedural due process claims). 68. Gabriel J. Chin, Segregation’s Last Stronghold: Race Discrimination and the Constitutional Law of Immigration, 46 UCLA L. REV. 1 (1998). 69. ARISTED R. ZOLBERG, A NATION BY DESIGN: IMMIGRATION POLICY IN THE FASHIONING OF AMERICA 86 (2006) (discussing the terms of the Naturalization Act of 1790 and noting that the requirement of whiteness was “[p]erennially restated in subsequent legislation down to the Civil War”). 70. Id.; see also The Dred Scott Case, 60 U.S. 393, 404-07 (concluding that free blacks could never be U.S. citizens and that at the country’s inception they “had no rights which the white man was bound to respect”). 71. ZOLBERG, supra note 69, at 86. 72. Id. at 86-87. CHACON FINAL 10/26/2007 11:59 AM 356 WISCONSIN LAW REVIEW automatically granted citizenship to a foreign woman upon marriage to a U.S. citizen.73 The law was limited, however, to women who were not otherwise excluded from naturalization on the basis of their race.74 The Supreme Court further limited the law’s benefits in 1868,75 holding that “only ‘white women’ could gain citizenship by marrying a citizen.”76 This decision highlighted the ways in which nationality laws could be used to deny social benefits to those who crossed racial boundaries. Nonwhite women might marry white male citizens, but these marriages did not entitle them to the same citizenship rights as their white female counterparts.77 Even after the passage of the Reconstruction Amendments, racebased exclusion remained a pronounced feature of nationality laws. In 1907, Congress passed legislation mandating that a woman who was a U.S. citizen and married a noncitizen would lose her citizenship.78 Mackenzie v. Hare, which involved the marriage of a white female citizen to a white British man, upheld this law.79 Congress partially repealed the 1907 law through the 1922 Cable Act.80 Even after the partial repeal, however, women who married ineligible foreigners still lost their own citizenship.81 Thus, while marriage to some noncitizens— for example, white Europeans—no longer carried the price of relinquishing citizenship, marriages between a white citizen woman and an Asian man carried a high social cost.82 The denaturalization 73. Act of Feb. 10, 1855, ch. 71, § 2, 10 Stat. 604. 74. See id. § 1; Volpp, supra note 33, at 422. 75. Kelly v. Owen, 74 U.S. (7 Wall.) 496, 498 (1868). 76. LÓPEZ, supra note 35, at 35; see also KEVIN R. JOHNSON, THE “HUDDLED MASSES” MYTH: IMMIGRATION AND CIVIL RIGHTS 134 (2004). 77. Of course, even for white women, the benefits of citizenship were tightly circumscribed, since women did not have a constitutional right to vote until the passage of the Nineteenth Amendment in 1920. See U.S. CONST. amend. XIX; see also JUDITH N. SHKLAR, AMERICAN CITIZENSHIP 57-62 (1991) (discussing this disenfranchisement as an effective deprivation of citizenship). 78. Act of Mar. 2, 1907, Pub. L. No. 59-193, § 3, 34 Stat. 1228, 1228-29; see also LÓPEZ, supra note 35, at 47. Up until the passage of the law, courts had been split on this issue. See Volpp, supra note 33, at 424-25. 79. 239 U.S. 299 (1915). For a discussion of the case, see JOHNSON, supra note 76, at 135-36; see also Kevin R. Johnson, Racial Restrictions on Naturalization: The Recurring Intersection of Race and Gender in Immigration and Citizenship Law, 11 BERKELEY WOMEN’S L.J. 142, 161-62 (1996) (reviewing LÓPEZ, supra note 35). 80. Act of Sept. 22, 1922, Pub. L. No. 67-346, § 4, 42 Stat. 1021, 1022. 81. See id. § 3; see also LÓPEZ, supra note 35, at 47; Volpp, supra note 33, at 433-35. It was not until 1936 that women who had lost U.S. citizenship due to marriage between 1907 and 1922, but whose marriage had ended, could file applications to resume citizenship. Id. at 446-47 (citing Act of June 25, 1936, Pub. L. No. 74-793, 49 Stat. 1917). 82. Cf. Mackenzie, 239 U.S. at 312. CHACON FINAL 10/26/2007 11:59 AM 2007:345 Loving Across Borders 357 requirement remained in effect through 1931, and prompted Professor Ian Haney López to comment that [u]ntil Congress repealed this provision in 1931, marriage to a non-White alien by an American woman was akin to treason against this country: either of these acts justified the stripping of citizenship from someone American by birth. Indeed, a woman’s marriage to a non-White foreigner was perhaps a worse crime, for while a traitor lost his citizenship only after trial, the woman lost hers automatically.83 The most pronounced effect was on women who were citizens, but whose race precluded them from regaining citizenship through naturalization.84 Immigration and nationality laws operated in conjunction with antimiscegenation statutes, which legislators drafted in response to immigration concerns85 and other nativist fears.86 Although these laws emanated from distinct sources—with antimiscegenation laws created at the state level and immigration and naturalization laws at the federal level—they served a common end. Antimiscegenation laws policed racial boundaries by prohibiting marriage between whites and the members of certain nonwhite racial groups. Federal immigration and nationality laws barred most nonwhites from entry, prevented certain nonwhite groups from attaining political membership even through marriage, and disenfranchised those who sought familial intimacy with excluded “colored” people. Together, these laws had a profound impact on the ability of certain racial and ethnic groups to form intimate family ties in the United States. It was not until two years before Loving that the Immigration Act of 1965 finally eliminated the racist “national origin” quotas.87 The end of 83. LÓPEZ, supra note 35, at 47. 84. Id. (citing Ex parte (Ng) Fung Sing, 6 F.2d 670 (W.D. Wash. 1925) (upholding the exclusion of a Chinese-American woman who lost her citizenship and was expatriated for marrying a Chinese citizen)). See generally Volpp, supra note 33, at 42431. 85. See Leti Volpp, American Mestizo: Filipinos and Antimiscegenation Laws in California, 33 U.C. DAVIS L. REV. 795, 822 (2000) (describing the efforts by the California Joint Immigration Committee to support two proposed Senate bills amending the antimiscegenation statute to include the prohibition of marriages between “Malays” and Caucasians, and noting that the Senate later adopted both bills unanimously). 86. See, e.g., Loving v. Virginia, 388 U.S. 1, 6-7 (1967); supra notes 9-10 (discussing the Supreme Court’s mention of “extreme nativism” following the end of World War I). 87. Act of Oct. 3, 1965, Pub. L. 89-236, 79 Stat. 911 (1965) (codified as amended at 18 U.S.C. §§ 1101-1504 (2000)); see also GORDON ET AL., supra note 27, at § 2.04[3]. CHACON FINAL 10/26/2007 11:59 AM 358 WISCONSIN LAW REVIEW racial quotas and antimiscegenation law, however, has not undone the effects of centuries of discriminatory laws. Moreover, immigration and nationality laws continue to interfere in family intimacy in ways which, though apparently facially neutral, still reify racial hierarchies in the United States. III. WHERE LOVING NEVER TREAD: HOW THE LAW STILL REGULATES INTIMACY Loving implies that the State cannot interfere in marriage—a “vital personal right[] essential to the orderly pursuit of happiness by free men.”88 Nevertheless, significant legal barriers to family intimacy persist in immigration and nationality laws. Although these impediments no longer serve as parallel means of enforcing antimiscegenation laws, they do impede intra- and interracial marriages, binational same-sex marriages, and many other forms of intimate family relationships. A. Immigration, Nationality, and the Family Immigration laws are not blind to the rights and needs of families; indeed, family reunification is a central part of United States immigration law. For lawful permanent residents (LPRs) and United States citizens, immigration laws contain family-reunification provisions.89 The Immigration and Nationality Act (INA) defines several categories of relatives, assigning rank-order preferences to various groups.90 The spouses, unmarried children under the age of twenty-one, and parents of adult U.S. citizens are in the most favored group. There are no annual caps on how many such people may enter the United States.91 The remaining eligible family members are divided into four preference categories: the unmarried adult children of U.S. citizens; the spouses and adult children of LPRs; the married sons and daughters of citizens and the brothers and sisters of citizens.92 Each of these groups are subject to formulaic numerical caps.93 Immigration laws also contain many provisions that allow spouses and children to accompany foreigners 88. 388 U.S. at 12. 89. See 8 U.S.C. §§ 1151-53 (2000). 90. See id. 91. See id. § 1151(b). 92. See id. § 1153(a). The statute does not provide for reunification for the married sons and daughters of LPRs or the brothers and sisters of LPRs. Id. 93. See id. § 1153(a). CHACON FINAL 10/26/2007 11:59 AM 2007:345 Loving Across Borders 359 entering the United States on temporary visas known in the INA as “nonimmigrant” visas.94 The family reunification provisions are not without critics. “Once Asian and Latin immigrants began to dominate the family immigration categories, the kinship system was attacked.”95 From the early 1980s through the mid-1990s, Republican Senator Alan Simpson of Wyoming, a leading critic of family-reunification provisions, was particularly interested in eliminating the preference category for siblings.96 Thus far, such efforts have failed, but calls to reduce family-sponsored visas persist.97 Proponents of these calls cite economic motivations, with family visas placed in opposition to employment-based visas.98 Nevertheless, family reunification presently constitutes the largest component of U.S. immigration law.99 The family-reunification provisions, however, do not recognize many familial bonds. For instance, they disregard close ties between a grandparent and a grandchild. The numerical caps also mean that even those who qualify under one of these family-reunification prongs have to 94. See, e.g., id. § 1101(a)(15)(F)(ii) (accompanying student-visa holder); Id. § 1101(a)(15)(H)(iii) (accompanying specialized-worker-visa holder); Id. § 1101(a)(15)(J) (accompanying academic-visa holder); Id. § 1101(a)(15)(O)(iii) (accompanying visa holder with extraordinary ability in the sciences, arts, education, business, or athletics); Id. § 1101(a)(15)(P)(iv) (accompanying artist-and-entertainer visa holder). 95. BILL ONG HING, DEPORTING OUR SOULS: VALUES, MORALITY, AND IMMIGRATION POLICY 119 (2006). 96. Id. at 120-21. 97. See, e.g., The Nuclear Family Priority Act, H.R. 938, 110th Cong. (2007) (proposing a reduction in the number of family-sponsored immigrants); MIGRATION POLICY INST., IMMIGRATION AND AMERICA’S FUTURE: A NEW CHAPTER: REPORT OF THE INDEPENDENT TASK FORCE ON IMMIGRATION AND AMERICA’S FUTURE 41 (2006) (“[I]t would be prudent to reexamine the continued viability of the current category of siblings of U.S. citizens.”); Kelly, Family Unity, supra note 21, at 725-26 (describing Representative Lamar Smith’s 1995 proposal to “reduce[e] family sponsored visas from 480,000 to 330,000”); STEPHEN H. LEGOMSKY, IMMIGRATION AND REFUGEE LAW AND POLICY 290 (4th ed. 2005) (describing the 1995 Jordon Commission recommendation to repeal “the family sponsored 1st, 2B, 3rd, and 4th preferences”). 98. See HING, supra note 95, at 125 (critiquing this analysis); see also MIGRATION POLICY INST., supra note 97, at 41 (proposing the elimination of the preference category for siblings, and suggesting that “many of those who qualify for this category may be able to immigrate faster to the United States through the new and expanded provisional and permanent employment-based categories”). But see Bill Ong Hing, Dissenting Comments, in IMMIGRATION AND AMERICA’S FUTURE: A NEW CHAPTER, supra note 97, at 151, 151 (“[The] claim is that to help the economy, more jobs and skilled-based criteria should be used. My position is that the nation and its employers would continue to do quite well economically by expanding the family numbers throughout all categories.”). 99. See MIGRATION POLICY INST., supra note 97, at 31 (“Over the past five years, just under two thirds of immigrants have been sponsored by US citizen family members.”). CHACON FINAL 10/26/2007 11:59 AM 360 WISCONSIN LAW REVIEW wait years for reunification with family members. For example, in May 2007, first-preference relatives from the Philippines—that is, unmarried adult sons or daughters of citizens—experienced delays of approximately fifteen years before their visa status became current.100 For Mexicans, the delay was over sixteen years.101 The unmarried adult children of citizens coming from all other countries wait six years.102 Spouses or children (under twenty-one) of LPRs from Mexico experienced average delays of up to six years, compared to five years for those from other countries.103 Delays are substantially worse for the adult children of LPRs, whose wait times are currently about fifteen years for someone from Mexico and eleven years for someone from the Philippines.104 Although all families experience substantial wait times, across categories, wait times are often significantly longer for relatives from Mexico and the Philippines.105 So, while facially neutral, the immigration laws do not treat all families the same. The law also restricts who qualifies as the “child” of a petitioning relative.106 These restrictions discriminate on the basis of the constitutionally protected characteristics of sex and legitimacy.107 Nevertheless, the Supreme Court has upheld such discrimination.108 Even those who meet the legal definition of a “child” under the Immigration and Nationality Act may not be guaranteed the right to reunite with a family member. For example, individuals who have been granted relief from removal on the grounds that their removal would violate the 100. BUREAU OF CONSULAR AFFAIRS, U.S. DEP’T OF STATE, VISA BULLETIN NO. 105, at VIII (2007), http://travel.state.gov/visa/frvi/bulletin/bulletin_3219.html. 101. Id. 102. Id. 103. Id. 104. Id. 105. Id. For example, a U.S. citizen hoping to acquire a visa for a sibling in the Philippines waited twenty-two years before the sibling’s visa status became current. See id. The period was thirteen years if the sibling was coming from Mexico, twelve years if the sibling was coming from China, and eleven years if the sibling was coming from anywhere else in the world. See id. 106. See 8 U.S.C. § 1101(b)(1) (2000). 107. See GERALD GUNTHER & KATHLEEN M. SULLIVAN, CONSTITUTIONAL LAW 681-720 (14th ed. 2001) (discussing gender and legitimacy as classifications requiring a more substantial government interest than that required for rational basis review, and also requiring a closer relationship between the challenged classification and that interest). 108. See, e.g., Miller v. Albright, 523 U.S. 420, 424 (1998) (upholding a naturalization statute that discriminated on the basis of gender); Fiallo v. Bell, 430 U.S. 787 (1977) (upholding an immigration provision that discriminated on the basis of sex and legitimacy). In Nguyen v. INS, 533 U.S. 53 (2001), the Court actually purported to apply intermediate scrutiny, but still upheld a discriminatory citizenship provisions. 533 U.S. 53 (2001). CHACON FINAL 10/26/2007 11:59 AM 2007:345 Loving Across Borders 361 Torture Convention109 have no legal right to family reunification.110 In short, in the context of immigration, family interests have often been subordinated to other interests at stake in exclusion policies: “Whatever the basis for family unity in American constitutional law generally, family unity has lent only weak support to constitutional challenges to the admission categories and numerical limits established by Congress.”111 B. Immigration and Nationality Laws Versus Family For some citizens and LPRs, immigration laws provide no means for reunification with family members. Spousal-reunification provisions exclude same-sex partners. Undocumented workers often are precluded from normalizing their immigration status even after marriage to a U.S citizen or LPR. Both undocumented workers and LPRs who commit certain crimes can be removed from the United States without regard to their family ties. Finally, the militarization of the U.S.-Mexico border has created a physical barrier that compounds these other obstacles. 1. SPOUSAL REUNIFICATION: THE EXCLUSION OF SAME-SEX PARTNERS The most readily apparent example of family members excluded from the reunification provisions of immigration laws are same-sex partners. Although our immigration laws allow for spousal reunification,112 a same-sex partner does not qualify as a “spouse.”113 The 109. See United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 113. Article 3 of the Torture Convention mandates that signatory states shall not return a person to a country in which there is a substantial likelihood that the person will be tortured. See id. at 114. 110. See Lori A. Nessel, Forced to Choose: Torture, Family Reunification and United States Immigration Policy, 78 TEMP. L. REV. 897, 899 (2005). 111. Hiroshi Motomura, The Family and Immigration: A Roadmap for the Ruritanian Lawmaker, 43 AM. J. COMP. L. 511, 517 (1995) (citing United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950)). 112. See 8 U.S.C. §§ 1151(b)(2)(A)(i), 1153(a)(2)(A) (2000). 113. See, e.g., Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982) (finding that Congress intended to “confer spouse status under section 201(b) [of the INA] only upon the parties to heterosexual marriages” and that this policy “has a rational basis and therefore comports with the due process clause and its equal protection requirements”). For critiques of Adams, see Christopher A. Dueñas, Note, Coming to America: The Immigration Obstacles Facing Binational Same-Sex Couples, 73 S. CAL. L. REV. 811, 821-23 (2000) (arguing that immigration laws should recognize same-sex marriages); see also Victor C. Romero, The Selective Deportation of Same-Gender Partners: In Search of the “Rara Avis,” 56 U. MIAMI L. REV. 537 (2002); Victor C. Romero, Asians, Gay Marriage, and Immigration: Family Unification at a Crossroads, 15 IND. INT’L & COMP. L. REV. 337 (2005) (tracing the anti-Asian and antigay history of U.S. immigration CHACON FINAL 10/26/2007 11:59 AM 362 WISCONSIN LAW REVIEW Ninth Circuit spoke to this issue in a case involving a U.S. citizen, Richard Adams, who attempted to file a visa petition on behalf of his partner, Tony Sullivan, a foreign national.114 The INS District Director initially denied the visa petition, and the Court agreed with the conclusion that that the term “spouse” in the immigration code did not contemplate same-sex couples.115 In light of the widespread legal prohibitions on same-sex marriage in the United States,116 this conclusion is perhaps unsurprising. Nonetheless, the exclusion of same-sex partners from the spousal reunification provisions of the Immigration and Nationality Act has particularly severe consequences. Deprived of the ability to acquire family-sponsored visas for one partner, binational same-sex couples may find themselves unable to live together lawfully in the United States.117 In Lawrence v. Texas, the Supreme Court struck down a Texas law prohibiting same-sex intimate sexual relationships, finding that the Constitution protects the right of same-sex couples to engage in intimate sexual relations in the privacy of their home.118 But Lawrence is cold comfort to a same-sex partner in need of a family-unification visa. Like the Lovings, they may enjoy the liberty of intimacy only by moving elsewhere.119 In this way, immigration and nationality laws operate to preserve hierarchies on the basis of sexual orientation. policies); JOHNSON, supra note 76, at 140-51 (describing the ways that immigration laws discriminates against gays and lesbians). But see Michael A. Scaperlanda, Kulturkampf in the Backwaters: Homosexuality and Immigration Law, 11 WIDENER J. PUB. L. 475 (2002) (arguing against the recognition of same-sex spouses in immigration law). 114. Adams, 673 F.2d at 1038. 115. Id. In denying the visa petition, the INS was less legalistic in framing the issue. The letter they initially wrote to Adams gave this reason for the denial: “You have failed to establish that a bona fide marital relationship can exist between two faggots.” LEGOMSKY, supra note 97, at 260. 116. Forty-one states currently have statutes defining marriage as existing only between a man and a woman. See Nat’l Conference of State Legislatures, Same Sex Marriage, Civil Unions, and Domestic Partnerships, June 2007, http://www.ncsl.org/programs/cyf/samesex.htm. Twenty-seven states have defined marriage in their constitutions. See id. 117. See Victor C. Romero, Crossing Borders: Loving v. Virginia as a Story of Migration, 51 HOWARD L.J (forthcoming Fall 2007) (discussing Tony Sullivan’s choice to live in the United States without legal authorization in the aftermath of his case). See generally HUMAN RIGHTS WATCH, FAMILY, UNVALUED: DISCRIMINATION, DENIAL, AND THE FATE OF BINATIONAL SAME-SEX COUPLES UNDER U.S. LAW (2006). 118. 539 U.S. 558 (2003). 119. See generally Romero, supra note 117 (exploring the parallels between the migration stories of the Lovings and same-sex couples like Adams and Sullivan). CHACON FINAL 10/26/2007 11:59 AM 2007:345 2. Loving Across Borders 363 NO PATH TO LEGALITY: THE PLIGHT OF THE UNDOCUMENTED NONCITIZEN When a noncitizen marries a citizen or LPR, the noncitizen does not automatically obtain lawful status in the United States. The citizen or LPR must petition for their spouse to be admitted, and if the petition is granted, the wait begins.120 But what if the spouse is already present unlawfully? Recently, Congress has changed immigration and naturalization laws in ways that effectively prevent many undocumented noncitizens— the majority of whom are Mexican121—from normalizing their legal status. These changes make it difficult for migrants who have entered the country without inspection, overstayed a visa, or worked without authorization to become LPRs.122 This is true even when the noncitizen marries a citizen or LPR. In the past, noncitizens who were eligible for visas had a clear legal path to normalize their immigration status through a process called “adjustment of status.” Specifically, section 245(i) of the INA used to permit a person who qualified for an immigrant visa to become an LPR upon payment of a $1,000 fee.123 Congress, however, has allowed this provision to lapse;124 it currently restricts adjustment to noncitizens who filed the necessary application before April 30, 2001.125 In order to normalize their status, many noncitizens who qualify for a visa must now leave the country and apply for consular processing at the U.S. embassy or consulate with jurisdiction over their residence.126 This may seem like a minor inconvenience, but the practical effects are significant, since even voluntary departure from the country may result See supra Part III.B (discussing family-sponsored visas and wait times). JEFFREY S. PASSEL, PEW HISPANIC CTR., SIZE AND CHARACTERISTICS OF THE UNAUTHORIZED MIGRANT POPULATION IN THE U.S., at i (2006), http://pewhispanic.org/files/reports/61.pdf (“There were an estimated 6.2 million unauthorized Mexican Migrants in 2005, or 56% of the unauthorized population.”) An additional twenty-two percent of the undocumented population comes from other countries in Latin America. Id. at ii. 122. See 8 U.S.C. § 1255(c) (2000); see also David B. Thronson, Of Borders and Best Interests: Examining the Experiences of Undocumented Immigrants in U.S. Family Courts, 11 TEX. HISP. J.L. & POL’Y 45, 51-52 (2005) (discussing the recent evolution of barriers to the adjustment of status for unauthorized migrants). 123. 8 U.S.C. § 1255(i) (1994). The measure was enacted on a temporary basis. Pub. L. 103-317 § 506(b), 108 Stat. 1724, 1765-66 (Aug. 26, 1994). 124. See LEGOMSKY, supra note 97, at 492. 125. 8 U.S.C. § 1255(i) (2000); see also Thronson, supra note 122, at 51. 126. See 8 U.S.C. §§ 1255, 1255a; see also LEGOMSKY, supra note 97, at 490. 120. 121. CHACON FINAL 10/26/2007 11:59 AM 364 WISCONSIN LAW REVIEW in the imposition of lengthy bars to reentry.127 An individual who leaves or is removed from the country, after having been in the country unlawfully for between 181 days and one year, is barred from returning to the country for three years, even if lawful immigration would otherwise be possible.128 Those who leave or are removed after a period of unlawful presence of more than one year are subject to a ten-year bar.129 And these are instances where the sole offense is unlawful presence; noncitizens may be subject to permanent bars to reentry if they commit certain types of criminal offenses.130 Consequently, eligibility for a family-based visa will do many noncitizens little good. Although limited means to obtaining eventual legal status exist for some migrants,131 there is often no guaranteed legal route to reunification. In such cases, the only viable option for staying 127. See Mireya Navarro, Immigration, a Love Story, N.Y. TIMES, Nov. 12, 2006, § 9, at 1. Navarro’s article provides an anecdote of one of the families that has been caught in this legal trap. She writes Mr. Harrell and Ms. Molina, both 35, married in 2001, in a large wedding attended by family from both sides and blessed by pastors in English and Spanish. But the Harrells no longer live together, not because of divorce, but because Mrs. Harrell, now the mother of two sons and four months pregnant with their third child, has been deported. She had applied for legal residency, or a green card, with her new husband as her sponsor . . . but she was sent back to Honduras 20 months ago because of her illegal entries and told she would have to wait 10 years to try again. Id. Mr. Harrell ultimately moved to Honduras to be with his wife and children. Id. For additional anecdotal evidence, see Patrick McGee, Immigration Laws Hit Home for Frustrated Mansfield Family, FORT WORTH STAR-TELEGRAM, Dec. 10, 2006, at A1 (recounting the story of a Mexican national separated from his U.S.-citizen wife and child, due to his detention and pending removal for his illegal entry); Lino v. Gonzalez, 467 F.3d 1077 (7th Cir. 2006) (affirming the reinstatement of a removal order of a Mexican national with a U.S.-citizen husband and three U.S.-citizen daughters); MoralesIzquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007) (en banc) (affirming the reinstatement of a removal order without a hearing of Mexican national with U.S. citizen wife). 128. See 8 U.S.C. § 1182(a)(9)(B)(i). 129. Id. § 1182(a)(9)(B)(i)(II). 130. For example, those who are removed on the basis of their commission of an “aggravated felony” may never lawfully reenter the country. Id. § 1182(a)(9)(A)(i). “Aggravated felons” may sound like a limited category, but in fact it includes people who have committed one of a variety of minor offenses, such as misdemeanor second-degree burglary. See James F. Smith, United States Immigration Law as We Know It: El Clandestino, The American Gulag, Rounding Up the Usual Suspects, 38 U.C. DAVIS L. REV. 747, 755 & n.20 (2005); see also Nancy Morawetz, Introduction to Symposium on Immigration and Criminal Law, 4 N.Y. CITY L. REV. 3, 5 (2002) (noting that misdemeanor theft may qualify as an aggravated felony). 131. See, e.g., 8 U.S.C. § 1182 (i), (a)(3)(D)(iv), (h)(1)(B). Discretionary waivers may be available to certain spouses, for example. See Abrams, supra note 21, at 1635-36 & nn. 36-37. CHACON FINAL 10/26/2007 11:59 AM 2007:345 Loving Across Borders 365 together in the United States is often for the undocumented noncitizen to live “underground.” 3. DEPORTING FAMILY MEMBERS: THE EXPANDED REMOVAL OF LAWFUL PERMANENT RESIDENTS AND UNDOCUMENTED NONCITIZENS In addition to preventing undocumented noncitizens from normalizing their status, the law has increased the threat of removal and permanent bar for LPRs. LPRs may be subject to removal when they run afoul of the immigration laws, even if they have substantial family ties in the United States.132 Over the past decade, Congress has vastly expanded the list of conduct that might lead to removal.133 The consequence is a significant increase in the number of noncitizens vulnerable to removal. Moreover, immigration judges are now largely precluded from considering the impact that the detention and removal of noncitizens would have on their U.S.-resident families.134 Professor Nancy Morawetz 132. HING, supra note 95, at 70-87 (providing numerous examples of LPRs removed despite substantial family ties and lengthy U.S. residence); Nancy Morawetz, Understanding the Impact of the 1996 Deportation Laws and the Limited Scope of Proposed Reforms, 113 HARV. L. REV. 1936, 1952 (2000) (providing examples of LPRs removed despite substantial family ties); see also Olowo v. Ashcroft, 368 F.3d 692, 695 (7th Cir. 2004) (affirming the removal order of an LPR who argued that her nine-year-old citizen daughters would be subject to genital mutilation in Nigeria). For a discussion of the Olowo case, see David B. Thronson, Choiceless Choices: Deportation and the Parent-Child Relationship, 6 NEV. L.J. 1165, 1168-70, 1207-13 (2006). 133. See, e.g., Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132 §§ 435, 440(e), 110 Stat. 1214, 1274-77 (codified as amended at 8 U.S.C. § 1101 (2000)) (expanding “crimes of moral turpitude” to convictions with sentences of one year or longer, and amending “aggravated felonies” to include gambling, prostitution, alien smuggling, document fraud, and bribery); Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, §§ 321-22, 110 Stat. 3009546, 3009-627 to -628 (codified as amended at 8 U.S.C. § 1101(a)) (lowering the terms of imprisonment for crimes of violence and thefts that qualify as “aggravated felonies” from five years to one year, and expanding the definition of a “conviction” to include “some form of punishment, penalty or restraint” imposed by a judge). Many of the Congressional proposals for “immigration reform” in 2006 would have further expanded the grounds for removing noncitizens. See, e.g., H.R. 4437, 109th Cong. § 203 (2006) (making “unlawful presence” a felony); Community Protection Act of 2006, H.R. 6094, 109th Cong. § 101 (allowing the Attorney General to designate any group that meets certain criteria as a “gang,” and allowing for the removal of noncitizen “gang” members regardless of whether the individual committed a crime); Comprehensive Immigration Reform Act of 2006, S. 2611, 109th Cong. §§ 203, 205 (expanding the “aggravated felony” removal provisions and providing for removal of “criminal street gang members”). 134. See Morawetz, supra note 132, at 1950. Professor Nancy Morawetz avers that [t]he combined impact of the new immigration legislation, tougher criminal justice policies, mandatory detention rules, and vigorous INS enforcement CHACON FINAL 10/26/2007 11:59 AM 366 WISCONSIN LAW REVIEW argues that “[t]he new deportation laws deny immigration judges the opportunity to take family integrity into consideration.”135 Often, noncitizen parents subject to deportation have citizen children born in the United States. Indeed, one study estimates that one in every ten children in the United States lives in a mixed-status family min which at least one family member is a noncitizen.136 Prior to 1976, parents from the Western Hemisphere with U.S.-citizen children under the age of twenty-one received preferential treatment in their efforts to obtain lawful status based on the citizenship status of these children.137 From 1965 to 1976, the United States government allocated 120,000 visas for people from the Western Hemisphere on a first-come, firstserved basis.138 The only condition the U.S. government imposed on these Western Hemisphere visas was the requirement that the visa recipient not negatively affect the labor market.139 Significantly, the government waived the labor-market requirement in the cases of individuals with citizen children, effectively favoring noncitizens with citizen children for immigration.140 This practice ended in 1976, when Congress imposed the visa preference system on countries in the Western Hemisphere.141 The family-preference visa categories did not—and do not—allow children under twenty-one to sponsor a visa for their parents.142 has not fallen solely on legal permanent residents convicted of crimes. These laws directly affect the families of legal permanent residents. By eliminating (in most cases) the system of relief hearings that allowed family members to testify about the consequences of family separation, the laws operate as a statement that the effects of deportation on family members does [sic] not matter. Id. 135. Id. at 1952; see also HING, supra note 95, at 58-64 (discussing the “rise and fall” of the section 212(c) waiver, which gave judges discretion in the deportation of deportable noncitizens based on equitable considerations). 136. MICHAEL FIX ET AL., THE INTEGRATION OF IMMIGRANT FAMILIES IN THE UNITED STATES 15 (2001). 137. BILL ONG HING, DEFINING AMERICA THROUGH IMMIGRATION POLICY 97-98 (2004). 138. Id. at 97. 139. Id. This discussion sets aside the statutory exclusion grounds that might apply in individual cases. See supra notes 50-53 and accompanying text. 140. HING, supra note 137, at 97. 141. Id. at 98. At the same time, the law was revised to incorporated a percountry visa-allocation system to Western Hemisphere countries. Id. This cut the number of visas available to Mexicans in half. Id. 142. Id. at 95 (discussing the 1965 preference system); 8 U.S.C. 1151(b)(2)(A)(i) (2000) (requiring that citizen children be at least twenty-one years old to sponsor a parent as an “immediate relative”). CHACON FINAL 10/26/2007 11:59 AM 2007:345 Loving Across Borders 367 Not only are these children unable to petition for their parents, they are often constructively removed with their noncitizen parents.143 To qualify for cancellation of removal on the basis of hardship to citizen children, parents must demonstrate hardship “substantially different from, or beyond that which would normally be expected from the deportation of an alien with close family members here.”144 Under this exacting legal standard, successful applications for cancellation of removal are extremely rare.145 Thus, most parents face the choice of relocating their citizen children outside of the United States or separating from them.146 While it is entirely appropriate that immigration laws cede to parents the right to decide what is best for their children, under the current statutory framework, noncitizen parents may be required to choose between two options that will impose hardship on their families.147 Some parents simply refuse to make this choice. In spite of the legal prohibitions on reentry, some individuals who have been removed from the United States return, both to be with their families and to continue working.148 Although this arrangement avoids the hard choices laid out above, these families suffer different stresses. As one immigrants’ rights advocate has noted, These differences force decisions about where to live, where to work, how to be together, whether to marry, and where to send children to school that are dictated by the circumstances of 143. See, e.g., Gonzalez Vallejo v. Gonzales, 187 F. App’x 783 (9th Cir. 2006); Coleman v. United States, 454 F. Supp. 2d 757, 759 (N.D. Ill. 2006) (dismissing the petitioner’s request for a declaratory judgment that the removal of the undocumentednoncitizen mother of a citizen child was a constructive removal of the child in violation of the child’s “constitutional rights as a birthright citizen of the United States”); see also Bill Piatt, Born as Second Class Citizens in the U.S.A.: Children of Undocumented Parents, 63 NOTRE DAME L. REV. 35, 40-41 (1988). 144. In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 65 (BIA 2001). 145. See Cabrera-Alvarez v. Gonzalez, 423 F. 3d 1006, 1014 (9th Cir. 2005) (Pregerson, J., dissenting) (“That onerous standard is so difficult to satisfy that there is only one published BIA decision that grants cancellation of removal after finding that the requisite ‘exceptional and extremely unusual hardship’ existed.”); see also Thronson, supra note 132, at 1195 & n. 152 (noting that claims for relief from removal on the basis of the noncitizen-children’s rights to citizenship “have been rejected uniformly by course in virtually every circuit”); Molly Hazel Sutter, Mixed Status Families and Broken Homes: The Clash Between the U.S. Hardship Standard in Cancellation of Removal Proceedings and International Law, 15 TRANSNAT’L L. & CONTEMP. PROBS. 783, 786-87 (2006). 146. Thronson, supra note 132, at 1172, 1189. 147. Id. at 1213-14. 148. See generally Smith, supra note 130, at 749-58. (telling the stories of immigrants who were deported, but have returned to the United States to be with their families, and now live clandestinely in this county). CHACON FINAL 10/26/2007 11:59 AM 368 WISCONSIN LAW REVIEW birth and U.S. immigration policy, not the needs of the family. They impose a life of deception. The stresses to family life are immeasurable . . . . 149 4. PHYSICAL BARRIERS TO INTIMACY The increasing militarization of the border has compounded the fragmentation of mixed-status families by impeding casual visits among family members on both sides of the border. In 2006, Congress debated the further expansion of the border patrol; increased law-enforcement presence along the border; and the creation of additional physical barriers, such as a seven-hundred-mile border fence.150 Efforts to control immigration through extensive border-militarization are now more than a decade old. In August 1994, the INS Commissioner approved a new national strategy for the Border Patrol. This strategy called for increased enforcement resources at major entry corridors along the U.S.-Mexico border, including more agents and more technology designed to increase border arrests.151 A series of regional enforcement efforts followed.152 149. Interview by Bill Ong Hing, Border Action Network, with Grania Marcus, D.C. Border Tour, in Nogales, Ariz. (Feb. 19, 2006), http://lawprofessors.typepad.com/immigration/2006/02/from_the_border_11.html. 150. See Julia Preston, House and Senate Hold Immigration Hearings, N.Y. TIMES, July 6, 2006, at A12 (“At odds over immigration, lawmakers from the Senate and the House held rival hearings on Wednesday on opposite coasts, competing for public support for their sharply differing proposals and moving no closer to compromise.”); Rachel L. Swarns, Senate, in Bipartisan Act, Passes Immigration Bill, N.Y. TIMES, May 26, 2006, at A19 (describing House and Senate debates on immigration legislation and noting obstacles to compromise); Rachel L. Swarns, Immigration Bill Backed in Senate Setting up Clash, N.Y. TIMES, May 25, 2006, at A1 (noting that many House Republicans “vehemently oppose[d]” provisions in the Senate bill). In December of 2005, the House passed an immigration bill that “defied [President] Bush’s call for a guest worker program and passed a border security bill that would [have] criminalize[d] illegal immigrants’ presence in the country.” Id. Congress failed to enact a comprehensive immigration reform bill in 2006. See Stephen Labaton & Steven R. Wiseman, Talking About Common Ground, N.Y. TIMES, Nov. 9, 2006, at C1 (“Despite support from Mr. Bush, Republican resistance in the House managed to block a broad immigration reform package passed by the Senate in the summer.”). A border-wall proposal, which calls for seven-hundred miles of fencing and electronic sensors, was the only piece of immigration legislation to be signed into law in 2006. See Secure Fence Act of 2006, Pub. L. No. 109367, § 3, 120 Stat. 2638 (2006). 151. Bill Ong Hing, The Dark Side of Operation Gatekeeper, 7 U.C. DAVIS J. INT’L L. & POL’Y 121, 127-28 (2001) (quoting U.S. BORDER PATROL, BORDER PATROL STRATEGIC PLAN: 1994 AND BEYOND—NATIONAL STRATEGY 17 (1994)); see also Peter Andreas, The Transformation of Migrant Smuggling Across the U.S.-Mexico Border, in GLOBAL HUMAN SMUGGLING: COMPARATIVE PERSPECTIVES 107, 112-16 (David Kyle & Rey Koslowski eds., 2001). 152. See Hing, supra note 151, at 128. CHACON FINAL 10/26/2007 11:59 AM 2007:345 Loving Across Borders 369 Between 1993 and 1998, the number of Border Patrol agents along the southwestern border more than doubled, rising from 3,389 to 7,357. At the same time, the INS budget for enforcement efforts along the southwestern border doubled to $800 million.153 The net effect of these militarization efforts has been to shift migration away from heavily guarded areas to the less-guarded—and more dangerous—areas along the border.154 These efforts have not been particularly effective in reducing the number of undocumented migrants who enter the country,155 but have firmly separated binational families.156 Making the situation even more difficult, poor citizens of Mexico may 153. Id. at 129. 154. See Wayne A. Cornelius, Controlling “Unwanted” Immigration: Lessons from the United States, 1993-2004, 31 J. ETHNIC & MIGRATION STUD. 775, 783 (2005); Andreas, supra note 151, at 115; Hing, supra note 151, at 130-44. This shift has resulted in a significant increase in deaths in border-crossing areas. See Wayne A. Cornelius, Death at the Border: Efficacy and Unintended Consequences of US Immigration Control Policy, 27 POPULATION & DEV. REV. 661, 669 (2001); Hing, supra note 137, at 135-44. 155. During the massive border militarization efforts of the mid-1990s, the number of undocumented migrants coming into the country reached unprecedented levels. See Jeffrey S. Passel & Roberto Suro, Pew Hispanic Ctr., Rise, Peak, and Decline: Trends in U.S. Immigration 1992-2004, at i (2005), available at http://pewhispanic.org/reports/report.php?ReportID=53; see also Jennifer M. Chacón, Misery and Myopia: Understanding the Failure of U.S. Efforts to Stop Human Trafficking, 74 Fordham L.J. 2977, 3010 (2006) (noting that, as a result of border militarization, “migrants are trapped within the U.S., not outside of it”); Cornelius, supra note 154, at 782; Mireya Navarro, For a Divided Family, Border is Sorrowful Barrier, N.Y. TIMES, at Dec. 21, 2006, at A1 (“Demetrios Papademetriou, president of the Migration Policy Institute, a nonpartisan research group in Washington, said that ‘the primary effect of hardening the border has been one of locking people in.’”). This year’s [agricultural labor] shortages are compounding a flight from the fields by Mexican workers already in the United States. As it has become harder to get into this country, many illegal immigrants have been reluctant to return to Mexico in the off-season. Remaining here year-round, they have gravitated toward more stable jobs. Julia Preston, Pickers Are Few, and Growers Blame Congress, N.Y. TIMES, Sept. 22, 2006, at A1. 156. See Interview with Grania Marcus, supra note 149. Family members used to cross back and forth quite easily, and those working in the US could return to Mexico to visit family there and return to their jobs. Most working in the US were building their ranchitos in their communities in Mexico and planning to retire there with their families. Now, the high cost and extreme hardships of the journey force lengthy, and sometimes permanent, separations. Some families in our churches who live on both sides of the border have been divided, no longer able to cross to see their children, parents, or relatives. Broken families occur here much more frequently than in the past. Id. CHACON FINAL 10/26/2007 11:59 AM 370 WISCONSIN LAW REVIEW not be able to acquire even temporary visas that might enable them to visit family members in the United States.157 As a consequence of immigration law enforcement, family intimacy has become a privilege that migrants must be willing to trade in exchange for the benefits of working in the United States.158 The tradeoff is one that many migrants obviously feel compelled to make. 159 IV. DISTORTING FAMILY LIFE AND DEVALUING PERSONHOOD Contemporary immigration law and policy places those who migrate to the United States in a double bind with regard to their families. On the one hand, when their families are in the United States— and they often are160—some portray them as excessively reliant on State assistance.161 These perceptions exist in spite of the contributions that 157. See, e.g., Navarro, supra note 127 (noting that one Mexican woman had little chance of obtaining a tourist visa because she did not own property, did not hold a full-time job, and had no evidence to offer that she had ties to Mexico that would compel her to return after a visit). 158. See, e.g., Lizette Alvarez & John M. Broder, More and More, Women Risk All to Enter U.S., N.Y. TIMES, Jan. 10, 2006, at A1 (“And finally, Ms. Gallardo, 38, who earned $50 a week at an Acapulco hotel, had to contemplate life without her two vivacious daughters, Isabel, 7, and Fernanda, 5. That once unimaginable trade-off— leaving her children behind so they could one day leave poverty behind—had suddenly become her only option.”)., 159. See, e.g., Alvarez & Broder, supra note 158; PASSEL, supra note 121, at 6 (noting that half of the male undocumented noncitizens were “solo males,” in the United States without wives or children); 160. For example, in the California migrant-farmworker community, “there is roughly one child for every adult farmworker.” Maria L. Ontiveros, Lessons from the Fields: Female Farmworkers and the Law, 55 ME. L. REV. 157, 170 (2003). 161. South Carolina State Senator David Thomas recently spoke out against “illegals coming and then essentially dragging the system down, loading their families onto the welfare system.” Tim Smith, Senate Wants Services Cut to Illegals, GREENVILLE NEWS (S.C.), Apr. 12, 2006, at 1B. Oklahoma State Representative Randy Terrill recently said that more illegal residents are turning to Oklahoma City, Tulsa, and smaller Oklahoma cities, lamenting that “[w]e cannot afford to be the welfare state for the entire world.” Angel Riggs, State Curb on Aid to Illegals Weighed, TULSA WORLD, Mar. 27, 2006, at A1. Phyllis Schlafly has decried the strain that undocumented migrants place on health care facilities: Think about these costs when you find maternity wards filled by female illegal immigrants giving birth to ‘anchor babies’ who are granted instant U.S. citizenship plus generous welfare benefits for the newborn and the whole illegal immigrant family. Think about these foreign diseases when you knock on the door of any of the dozens of hospitals that have closed because they couldn’t cover the costs of destitute illegal immigrant patients. Phyllis Schlafly, Homeland Security Should Protect Us from Disease, COPLEY NEWS SERV., Nov. 23, 2004. CHACON FINAL 10/26/2007 11:59 AM 2007:345 Loving Across Borders 371 migrant workers (including those here illegally) make to the economy162 and despite the fact that welfare laws bar undocumented noncitizens from seeking most forms of public assistance.163 Vocal immigration restrictionists also blame noncitizens for straining resources in public schools.164 Indeed, the efforts of school administrators to accommodate 162. See, e.g., Eduardo Porter, Illegal Immigrants Are Bolstering Social Security with Billions, N.Y. TIMES, Apr. 5, 2005, at A1 (noting that, in 2004, illegal immigrants accounted for about 10 percent of the Social Security surplus). Illegal immigrants also contribute to the economy as consumers and taxpayers. See Eduardo Porter, Here Illegally, Working Hard and Paying Taxes, N.Y. TIMES, June 19, 2006, at A1. The question of how immigration impacts the wages of native-born Americans has yielded mixed answers. Compare RAKESH KOCHHAR, PEW HISPANIC CTR., GROWTH IN THE FOREIGN-BORN WORKFORCE AND EMPLOYMENT OF THE NATIVE BORN (2006), http://pewhispanic.org/reports/report.php?ReportID=69 (finding no consistent pattern to support the conclusion that native-born workers suffered or benefited from increased numbers of foreign-born workers), with GEORGE J. BORJAS, CTR. FOR IMMIGRATION STUD., INCREASING THE SUPPLY OF LABOR THROUGH IMMIGRATION: MEASURING THE IMPACT ON NATIVE-BORN WORKERS (2004), http://www.cis.org/articles/ 2004/back504.pdf (reporting that, between 1980 and 2000, immigration “reduced the average annual earnings of native-born men by an estimated $1,700 or roughly 4 percent,” reduced the annual earnings of natives without a high school education by 7.4 percent, and had a “significantly larger” negative effect on native-born black and Hispanic workers). For a brief criticism of a similar study, see Eduardo Porter, Cost of Illegal Immigration May Be Less than Meets the Eye, N.Y. TIMES, Apr. 16, 2006, § 3, at 3. 163. The Professional Responsibility and Work Opportunity Reconciliation Act of 1996 severely limited undocumented migrants’ eligibility for federal benefits. Stephen Yale-Loehr & Sean Kohler, Overview of U.S. Immigration Law, in PLI NEW YORK PRACTICE SKILLS COURSE HANDBOOK SERIES (April 27, 2004). The Welfare Act effectively bars almost all noncitizens from receiving two significant federal programs: Food Stamps, the major food assistance program for the poor; and Supplemental Security Income (SSI), the cash assistance program for low-income persons who are aged, blind, or disabled. The Welfare Act also allows states to exclude legal foreign nationals from three federal programs administered on the state level: non-emergency Medicaid; social services funded by Title XX block grants, including care for children and disabled persons, and domestic violence programs; and the new Temporary Assistance for Needy Families (TANF) program, which replaced Aid to Families with Dependent Children (AFDC). Id. 164. For example, Arizona State Representative Russell Pearce has blamed failing schools on the fact that “[t]hey’re being overwhelmed by ‘a population that don’t put a high value to education.’” Joseph Lelyveld, The Border Dividing Arizona, N.Y. TIMES, Oct. 15, 2006, § 6 (Magazine), at 40; see also Abby Goodnough, Florida City Rejects Stringent Law on Migrants, N.Y. TIMES, July 25, 2006, at A1 (discussing the failed efforts to pass an ordinance claiming that illegal immigration “leads to higher crime rates, contributes to overcrowded classrooms and failing schools, subjects our hospitals to fiscal hardship and legal residents to substandard quality of care, and destroys our neighborhoods and diminishes our overall quality of life”). See generally Plyler v. Doe, 457 U.S. 202, 230 (1982) (holding that undocumented-migrant children are constitutionally entitled to public education through high school). CHACON FINAL 10/26/2007 11:59 AM 372 WISCONSIN LAW REVIEW the needs of students with binational families can generate angry reactions from citizen parents and students.165 On the other hand, migrants perceived as lacking families face a different set of problems. Their plight mirrors the problem that Chinese and Filipino immigrants faced in the late 1800s and early 1900s. Such immigrants were unable to legally marry outside of their racial groups because of antimiscegenation laws, but they were also unable to marry women of their own race, because those women were barred from entry.166 Professor Shirley Hune has referred to the policy as intended “genocide” of the Chinese immigrant community.167 One collateral effect of the policy was the portrayal of immigrant men—who lived (by necessity) in large bachelor enclaves—as sexually lascivious and dangerous to white women.168 The contemporary Mexican day laborer169 faces the same stereotypes. They form groups of apparently “single” men on street corners; their families’ low visibility contrasts with their own high visibility.170 Perhaps unsurprisingly, they are frequently characterized as sexually voracious, or even deviant.171 As with the Chinese and Filipino 165. For example, in the fall of 2005, the Superintendent of the Napa Valley Unified School District circulated a memo indicating that the December break would be lengthened—and the summer break shortened—by one week. See E-mail from Elizabeth Ann Chacón, Teacher at New Tech High School, Napa, Cal., to Jennifer M. Chacón (Dec. 18, 2006) (on file with the Wisconsin Law Review). The proposal was designed, at least in part, to accommodate students with families in Mexico. See id. Students boycotted in protest. See id. 166. See RACHEL MORAN, INTERRACIAL INTIMACY: THE REGULATION OF RACE AND ROMANCE 33-34, 37-39 (2001); see also JOHNSON, supra note 76, at 126 (“The exclusion of Chinese women all but eliminated the possibility of marrying and forming nuclear families for Chinese immigrant men in the United States; marriage with white women was, after all, prohibited by the antimiscegenation laws in most of the Western states.”). 167. Shirley Hune, U.S. Immigration Policy and Asian Americans: Aspects and Consequences, in CIVIL RIGHTS ISSUES OF ASIAN AND PACIFIC AMERICANS: MYTHS AND REALITIES 283, 285 (1979) (“Such a policy could only be designed to eliminate the Chinese population in America.”). 168. See MORAN, supra note 166, at 31, 37. 169. Not all day laborers are Mexican immigrants. A recent survey in Northern Virginia revealed that 67 percent of those day laborers were immigrants from Central America. Elissa Silverman, Day Laborers Hired Mostly by Firms, WASH. POST, Jan. 29, 2006, at T09. Nationally, it is estimated that 59 percent of day laborers in the United States are Mexican, 28 percent are Central American, and 7 percent are actually U.S.born. ABEL VALENZUELA JR. ET AL., ON THE CORNER: DAY LABOR IN THE UNITED STATES, at iii (2006), available at http://www.uic.edu/cuppa/uicued/Publications/RECENT/onthecorner.pdf. 170. In reality, some 43 percent of day laborers are married or living with a partner. VALENZUELA ET AL., supra note 169, at 18. 171. See, e.g., Day Laborers, http://www.daylaborers.org (“Some of the most violent murderers, rapists, and child molesters, are illegal aliens who work as day CHACON FINAL 10/26/2007 11:59 AM 2007:345 Loving Across Borders 373 immigrants of the Nineteenth Century, there is a general presumption of criminality.172 Unlike male day laborers, female migrants are often invisible— working to provide child-care and maid services in homes or laboring in sweatshops.173 Women, however, are increasingly migrating to the United States, sometimes to reunite with family or to improve their economic prospects.174 Although the media sometimes depict female migrants as good “mother figures” for white children,175 some critics characterize these women’s own childbearing decisions as shrewdly calculated efforts to avail themselves of government benefits.176 laborers.”). This website includes a photo of “day laborers” making lewd gestures, and displays the mug shots of several noncitizen men who are wanted for crimes like sexual assault of a minor. See id. The implication that undocumented migrants pose sexual threats to women, and even to children, can be found in many media accounts. See, e.g., Anahad O’Connor, In Brewster, a Backlash Against Day Laborers, N.Y. TIMES, Feb. 5, 2006, § 14WC, at 1 (“‘The big issue that was brought up was how are we going to protect our kids?’ said Rachel McLaughlin, a local activist . . . . ‘My daughter is a first grader . . . and I think it’s dangerous to have large groups of people loitering in certain areas, especially if they are men.’”); Vivian S. Toy, Border Warriors, N.Y. TIMES, Oct. 22, 2000, § 14LI, at 1. Vivian S. Toy reports that [Margaret Bianculli-Dyber] said she became passionate about the [need to deport undocumented migrants in Suffolk county] in the summer of 1998, when her daughter, who was 25 at the time, failed to meet her at church one Sunday morning. Her daughter explained later that she had been afraid to leave their Farmingville home because five Hispanic men solicited her for sex as they crossed in front of the house to reach a nearby soccer field. At a community meeting that summer, she found that hundreds of her neighbors had similar complaints. “There were all kinds of horror stories about daughters and sons being solicited, about peeping Toms and men urinating in public,” she said. Id. 172. See Ramiro Martinez, Jr., Coming to America: The Impact of the New Immigration on Crime, in IMMIGRATION AND CRIME: RACE, ETHNICITY AND VIOLENCE 1-6 (Ramiro Martinez, Jr. & Abel Valenzuela, Jr. eds., 2006) (reviewing stereotypes of migrants as criminal). 173. See Alvarez & Broder, supra note 158. 174. See id. (citing the research of Katharine Donato, an associate professor of sociology at Rice University, who estimates that women currently constitute 35 to 45 percent of those crossing the border illegally, compared with fewer than 20 percent twenty years ago). 175. A recent cinematic example is the 2004 movie Spanglish, in which the patient Mexican migrant Flor Moreno, played by Paz Vega, acted as a maid and nanny for John Clasky, played by Adam Sandler, and his family. SPANGLISH (Columbia Pictures 2004). The film contrasts her childrearing skills with the shrill antics of Deborah Clasky, played by Tea Leoni. See A.O. Scott, Triangle: Dad, Mom, Housekeeper, N.Y. TIMES, Dec. 17, 2004, at E24. 176. See, e.g., Schlafly, supra note 161 (decrying the birth of “anchor babies”); BUCHANAN, supra note 47, at 31, 57. In reality, these babies provide no real “anchor,” as they are ineligible to petition for the lawful admission of their parents until they reach age twenty-one. See 8 U.S.C. § 1151(b)(2)(A)(i) (2000). CHACON FINAL 10/26/2007 11:59 AM 374 WISCONSIN LAW REVIEW These distorted images impact family-law proceedings involving undocumented migrants, in which judges sometimes hand down unfavorable rulings based on a party’s undocumented status.177 “Judges who discriminate on the basis of immigration status reflect acceptance, consciously or otherwise, of a pervasive societal narrative that constructs an expanding notion of unworthiness and ‘illegality’ regarding undocumented immigrants and a diminished popular sense regarding the availability of protection from prejudice and discrimination.”178 Ironically, the families of noncitizens may better exemplify traditional “family values” than nonimmigrant families.179 Children in immigrant households are more likely to live in two-parent households than children in entirely native families.180 Moreover, many of the oftmaligned day laborers are “active members of their communities,” with over “[h]alf . . . attend[ing] church regularly . . . and one-quarter . . . participat[ing] in community worker centers.”181 Many contemporary depictions of immigrants, however, present a distorted picture of migrants and their families. These depictions omit positive facts, while simultaneously concealing the ways in which immigration laws actually help to ensure the familial separations that lie at the root of many negative stereotypes. There is very little discussion in contemporary immigration debate about the devaluation of the family unit that occurs as a consequence of the immigration laws. In reality, immigration policies that make it impossible for some noncitizen spouses and partners to gain a legal foothold in the United States and that provide for the deportation of some LPRs without regard to family ties in the United States constrain and strain marital and familial bonds.182 In addition, border policies that eliminate the possibility of conjugal and parental visits across borders severely test family intimacy.183 Rather than moving to expand immigration categories to facilitate family unification, many legislators 177. Thronson, supra note 122, at 54-55. 178. Id. 179. See id. at 49; David Brooks, Op-Ed., Immigrants to Be Proud of, N.Y. TIMES, Mar. 30, 2006, at A25 (“[T]he immigrants themselves are like a booster shot of traditional morality injected into the body politic. Immigrants work hard. They build community groups. They have traditional ideas about family structure, and they work heroically to make them a reality.”). 180. Press Release, The Urban Inst., Low Income Children of Immigrants More Likely to Live in Two-Parent Families (Nov. 26, 2002), http://www.urban.org/publications/900569.html; see also Brooks, supra note 179. 181. VALENZUELA ET AL., supra note 169, at iii. 182. See supra Parts III.B.1-3. 183. See supra Part III.B.4. CHACON FINAL 10/26/2007 11:59 AM 2007:345 Loving Across Borders 375 and policy makers have proposed their further contraction.184 Meanwhile, stereotypes about immigrant men and women as sexually threatening and hyperfertile exist precisely because their familial relationships are sundered by law and obscured from public view. Ironically, the same stereotypes have also become the basis for claims that migrant men and women are unsuitable for citizenship.185 As a practical matter, the negative effects of immigration laws are far from race-neutral. Because the laws overwhelmingly impact groups traditionally viewed as “outsiders”—particularly Asian Americans and Latinos—the laws have significant social consequences for these groups that should not be ignored. Mexicans and Mexican Americans are disproportionately affected by the impediments to family intimacy posed by immigration law. These laws are not subject to “rigid scrutiny,” and therefore, constitutional challenges to these barriers to intimacy are unlikely to succeed.186 That does not mean, however, we should blind ourselves to their effects. In Loving, the Supreme Court expressly noted that “[p]enalties for miscegenation arose as an incident to slavery.”187 During the era of slavery in the United States, the laws made it impossible for African American slaves to nurture their families or to legally protect the integrity of their family units.188 The government 184. For example, on December 16, 2005, Representative J.D. Hayworth (RAriz.) sought to introduce an amendment to the ill-fated H.R. 4437, which would have eliminated the visa category that allows citizens to sponsor their siblings for legal residence. Press Release, Asian Law Caucus, Immigrant Allies Nationwide Fend Off Sneak Attack on Family Reunification (Dec. 16, 2005), http://www.altrue.net/site/alc/content.php?type=1&id=1142. Hayworth’s amendment did not address the visa applications of the U.S. citizens who have already been on the “fourth preference” visa waiting list for as long as twenty-two years. Id.; see also supra Part III.A (discussing other attacks on family-reunification provisions). 185. See, e.g., BUCHANAN, supra note 47, at 258-59 (“Pregnant women who sneak in or overstay their visas automatically entitle their babies to a lifetime of benefits at the expense of the U.S. taxpayers, including twelve years of free schooling. The parents stay to collect the benefits.”); id. at 13 (“Some come for malevolent motives . . . to make careers . . . raping . . . Americans.”). 186. See Hiroshi Motomura, We Asked for Workers, but Families Came: Time, Law, and the Family in Immigration and Citizenship, 17 VA. J. SOC. POL’Y & L. 103, 118 n.69 (2006) (contrasting the constitutional rights to family outside and inside the context of immigration law.) 187. Loving v. Virginia, 388 U.S. 1, 6 (1967) (citing Walter Wadlington, The Loving Case: Virginia’s Anti-Miscegenation Statute in Historical Perspective, 52 VA. L. REV. 1189, 1202 n.93 (1966)). 188. PEGGY COOPER DAVIS, NEGLECTED STORIES: THE CONSTITUTION AND FAMILY VALUES 30 (1997) (“Scholars of slavery recognized denial of family bonds as a hallmark of slave status.”). During a Senate debate in 1864, Senator James Harlan of Iowa urged that “interference with parental and marital relationships” constituted an example of “the incidents of servitude” that the Thirteenth Amendment was designed to preclude. Alexander Tsesis, A Civil Rights Approach: Achieving Revolutionary CHACON FINAL 10/26/2007 11:59 AM 376 WISCONSIN LAW REVIEW perpetuated the problem by denying citizenship to African Americans.189 Even in the wake of the Thirteenth and Fourteenth Amendment, African Americans were denied full social citizenship through Jim Crow laws.190 In Loving, the Supreme Court recognized that antimiscegenation laws were a central component of that scheme, insofar as they were intended to perpetuate racial hierarchy.191 The nativism that concerned the Supreme Court in Loving has long contributed to the shape of U.S. immigration policy. It is therefore important to understand the ways that immigration laws also regulate family formation in ways that perpetuate racial hierarchy. These laws devalue family, subjugate the needs of certain immigrant families to the perceived economic and cultural needs of the nation, and deny citizenship to certain family members. In short, some of the same mechanisms that helped to perpetuate racial hierarchies during the time of slavery continue to do so in more subtle forms today. V. CONCLUSIONS In Loving, the Supreme Court noted that the statutory scheme under evaluation was the product of “the Racial Integrity Act of 1924, passed Abolitionism Through the Thirteenth Amendment, 39 U.C. DAVIS L. REV. 1773, 1813-14 (2006). Senator Henry Wilson stated that, were the Amendment to pass, “[i]n place of slavery’s chains, federal law would respect natural rights by protecting family interests.” Id. Ebson Ingersoll, a Representative from Illinois and advocate of the Thirteenth Amendment, noted that one of the most problematic aspects of slavery was the fact that it separated families, leaving whole segments of society without the “right to the endearments and enjoyment of family ties.” Cong. Globe, 38th Cong., 1st Sess. 2990 (1864), reprinted in STATUTORY HISTORY OF THE UNITED STATES: 1 CIVIL RIGHTS 53 (Bernard Schwartz ed., 1970); see also NATHAN I. HUGGINS, BLACK ODYSSEY 154-82 (2d ed. 1990) (chronicling the effects of slavery on the black family); James W. Fox, Jr., Intimations of Citizenship: Repressions and Expressions of Citizenship in the Era of Jim Crow, 50 HOW. L.J. 113, 179 (2006) (“[O]ne of the most oppressive powers held by slave owners was the power to legally control families by dividing families at the sole will of the slave owner.”). Referencing the legislative history of the Thirteenth Amendment against the backdrop of legal-process theory, one commentator has observed that the Thirteenth Amendment embodies “familial, political, and citizenship rights, as well as the right to be free from commoditization and other labor abuses,” and concludes that the Amendment’s prohibition on slavery should be read as a bar to the familial separations such as those institutionalized by the Bracero Program of the 1950s and the current H-2A agricultural guestworker visa program. Benjamin P. Quest, Process Theory and Emerging Thirteenth Amendment Jurisprudence: The Case of Agricultural Guestworkers, 41 U.S.F. L. REV. 233, 238-39, 252-54, 258 (2006). 189. See supra notes 69-72 and accompanying text. 190. Ian F. Haney López, “A Nation of Minorities”: Race, Ethnicity, and Reactionary Colorblindness, 59 STAN. L. REV. 985, 1057 (2007). 191. Loving, 388 U.S. at 11. CHACON FINAL 10/26/2007 11:59 AM 2007:345 Loving Across Borders 377 during the period of extreme nativism which followed the end of the First World War.”192 The contemporary debate over immigration reveals renewed signs of nativism. 193 While we do not appear to be on course to return to an era of antimiscegenation laws, changes to our immigration and nationality laws now present troubling barriers to marriage and family intimacy. These barriers fuel negative racial stereotypes of noncitizen groups in the United States, providing more fodder for those who argue for even more restrictive immigration policy.194 A constitutional challenge to these laws would likely fail. As the Court noted in Loving, distinctions drawn on a basis of unprotected classifications require only a “rational basis.”195 The Court has given Congress a wide berth in the area of immigration law, even when Congress has used its power to draw distinctions among protected classes in ways that negatively affect the realm of intimate family relations.196 Unfortunately, these constitutionally permissible distinctions now serve as a highly effective means of entrenching systems of racial hierarchy within the United States. Twelve million undocumented noncitizens are living, working, and loving inside and across our borders.197 The vast majority of them are Latino, and most are Mexican.198 Congress has implemented a set of immigration laws that make it impossible for many of these undocumented noncitizens to sustain their intimate relationships with anything approaching ease or normalcy. It is of great importance that critical scholars understand and acknowledge the fact that immigration and nationality laws have shifted seismically, particularly in the past decade.199 The new legal regime has 192. Id. at 6. 193. The nativist rhetoric of some immigration restrictionists, such as Peter Brimelow and Patrick Buchanan, suggests a White Supremacist agenda. Conflating all white ethnic groups and ignoring the long history of their differences, Brimelow states that “many modern American intellectuals [are] just unable to handle a plain historical fact: that the American nation has always had a specific ethnic core. And that core has been white.” PETER BRIMELOW, ALIEN NATION: COMMON SENSE ABOUT AMERICA’S IMMIGRATION DISASTER 10 (1995). He elaborates: It is simply common sense that Americans have a legitimate interest in their country’s racial balance. It is common sense that they have a right to insist that their government stop shifting it. Indeed, it seems to me that they have a right to insist that it be shifted back. Id. at 264; see also BUCHANAN, supra note 47, at 135 (arguing that assimilating Mexicans into U.S. society would be problematic because they are of a different race). 194. See JOHNSON, supra note 76, at 42-45. 195. See Loving, 388 U.S. at 9-11. 196. See supra Part III.A. 197. PASSEL, supra note 121, at i. 198. Id. at i-ii. 199. Zoe Lofgren, A Decade of Radical Change in Immigration Law: An Inside Perspective, 16 STAN. L. & POL’Y REV. 349, 350, 378 (2005) (“In the last decade, CHACON FINAL 10/26/2007 11:59 AM 378 WISCONSIN LAW REVIEW completely abrogated many roads by which unauthorized migrants might claim lawful citizenship in American society. These legal changes have created a large, undocumented underclass with limited prospects for obtaining the benefits of citizenship, including protection of their intimate relationships. At the same time, the law has increased the importance of formal citizenship, because even LPRs can be easily banished under vastly expanded removal provisions, regardless of their bonds with family members in the United States.200 While immigration law’s numerous devaluations of intimate relations among migrants are not as egregious as the State’s interference in the relations of slave families, or as facially discriminatory as the law that sought to keep Mildred and Jeter Loving from marrying, they spring from the same root. These laws interfere with the family intimacy of many immigrants, whose broken homes in turn feed stereotypes about migrants that suggest their unsuitability to be U.S. citizens and residents. Consequently, the rhetoric about noncitizens’ willingness to “assimilate” or “integrate”—and their likely impact on U.S. culture, politics, and identity—rests upon observations of a reality distorted by law. When the Loving Court struck down Virginia’s antimiscegenation statute, it reasoned that state laws prohibiting marriage on the basis of race constituted “measures designed to maintain White Supremacy,” and found that purpose patently illegitimate.201 While the maintenance of “White Supremacy” may not be the overt purpose of contemporary immigration and nationality laws, it is a possible effect of these laws. In the spirit of Loving, we should begin to ask tough questions about the legitimacy of the laws that make it increasingly difficult to love across borders. Congress has made it harder for the spouses, parents, and children of Americans and legal permanent residents to become legal . . . and instituted legal changes that result in harshly unconscionable results for American families.”). 200. See supra Part II.B.3. 201. Loving v. Virginia, 388 U.S 1, 11 (1967).