Alienated: Immigrant Rights, The Constitution, and Equality in America.

Vol. 15 No.7 (July 2005), pp.612-616

ALIENATED: IMMIGRANT RIGHTS, THE CONSTITUTION, AND EQUALITY IN AMERICA, by Victor C. Romero. New York: NYU Press, 2005. 320pp. Cloth $42.00. ISBN: 0-8147-7568-3.

Reviewed by John C. Blakeman, Department of Political Science, University of Wisconsin at Stevens Point. Email: John.Blakeman@uwsp.edu .

The constitutional and legal rights of immigrants (both legal and illegal) in the United States are often not well defined, and certainly politically contentious. Victor C. Romero’s new book, ALIENATED, examines the intersection of constitutional law and immigration law and policy and argues that there is a “constitutional immigration law paradox” in which certain constitutional and legal rights are reserved exclusively for U.S. citizens, while at the same time claiming to treat all people equally and fairly regardless of their citizenship. As the NYU press release for the book also notes, Romero is a naturalized Filipino American, and thus “brings an outsider’s perspective” to immigration law.

Romero begins his discussion of the growing field of constitutional immigration law with a question: “to what extent should the Constitution protect noncitizens—immigrants, undocumented persons, tourists, foreign students—in the United States” (p.1)? Romero’s answer, and argument, is that the best reading of the Constitution is one that provides as much parity as possible between citizen and noncitizen, regardless of formal immigration status. He bases his analysis of the Constitution on two canons of critical race scholarship. The first, antiessentialism, holds that “the Constitution should be read so as not to assume that all people are alike just because they look alike. . . [Thus] one cannot divine the shared characteristics of a group based on a single real or perceived trait like race or gender” (p.5). The second approach is antisubordination, which “asks whether the challenged government action works to further the oppressive status quo or undermine it . . . [H]ence, an ‘antisubordination’ reading of the Constitution would work to protect foreign nationals who, because of their citizenship status, already enjoy fewer rights than their U.S. citizen counterparts” (p.5).

Using principles of critical race theory, and more broadly critical legal studies, Romero’s methodology is multidimensional and interdisciplinary and relies on three main sources to justify his equality-based reading of the Constitution. First, Romero relies upon his own experiences as an adult immigrant and naturalized citizen. Second, he relies on non-constitutional areas of law to highlight arguments about constitutional law. Finally, he uses “nonlegal perspectives such as history and social psychology.”

The first chapter places traditional constitutional approaches to immigration law in the context of Romero’s personal experiences navigating the tricky federal bureaucracy maze that handles immigration and naturalization issues. As Romero notes, much of immigration law is based on the Supreme Court’s historic deference to Congress and the Executive Branch, and the Court has [*613] historically viewed legislative and executive power over immigration in plenary terms. Romero suggests that a “strong disconnect exists between people’s perceptions of how immigration law operates and how it works in fact” (p.17). Here, Romero uses his own personal experiences to illustrate his point. For example, a Foreign Service officer in the Philippines refused to renew his visa, even though has was a full time student at a law school in the United States. Romero speculates that his visa was cancelled because the officer used his Philippino citizenship as a factor in determining that he was an overstay risk—he might remain in the United States after his studies were completed. If true—and Romero admits this is speculative—the Foreign Service officer violated an antiessentialist reading of the Constitution. As he puts it, “while national origin and race are not synonymous, we should be more skeptical of their intersectionality when used by the government to perpetuate subordination” (p.20). Romero next uses his interaction with a Latina INS official, when applying for citizenship, to illustrate further an antiessentialist reading of the Constitution. After arduous grilling by the INS officer about Romero’s marital status (he is married to an American citizen), he did get his citizenship application approved. The process prompts Romero to ask “why could not that Latina INS officer been more sympathetic to me? Why could she not have thought about her own ancestor . . . [W]hy would she treat me as the other?” In his view, his interaction with a Latina INS officer who was somewhat skeptical about his citizenship application shows how “multiculturalism (here, the hiring of a Latina to serve as an INS officer) can be coopted by the dominant power to perpetuate . . . subordination” (p.20).

Professor Romero next discusses constitutional immigration law in the context of several different policy areas. Chapter Two focuses on immigrants and the war on terrorism. Here the author tackles issues such as the racial profiling of Arabs and Arab-Americans after the September 11 terrorist attacks, the roundup and interrogation of thousands of people of Middle Eastern heritage, and the use of immigration policy and deportation as an antiterrorist device. Romero points out the danger of “assuming that the terrorist who belongs to one group overlooks the possibility that the terrorist could come from the so-called nonterrorist group” (p.35). Thus, the Oklahoma City bombing in 1993 and the anthrax attacks after 9/11 show that terrorists “can very easily be a member of the in-group capitalizing on public scrutiny of out-group behavior,” especially since after the Oklahoma City bombing many terrorism experts publicly suspected Arab terrorists (p.35). Romero concludes that “the underpolicing of U.S. citizen terrorists and the perpetuation of invidious stereotypes” in current immigration policy undermine equality and “perpetuate essentialist notions of the nonwhite, disloyalist foreigner, while simultaneously strengthening the oppressive status quo” (p.40). This difference between domestic and foreign terrorists, Romero suggests, leads to a more activist role for federal courts in ensuring and protecting the constitutional equality of immigrants during a time of heightened suspicion.

Romero next discusses immigration issues that impact families in Chapter Three. The Child Citizenship Act of [*614] 2000 (CCA) automatically confers citizenship on foreign-born children adopted by U.S. parents. He compares the CCA, which was popular and quickly passed by Congress, to the Family Reunification Act (FRA), which has languished in Congress since 1999. As he puts it, the CCA “enjoyed broad bipartisan support chiefly because it helped bridge the still existing psychological gap between adopted and biological children, at no apparent cost to the government,” and the law “virtually guarantees” that foreign born adoptees will be allowed to remain in the United States with their adopted families (pp.53-54). The CCA thus equalizes the citizenship status of biological and adopted children and ensures that the threat of deportation of adoptees no longer exists. Accordingly, in Romero’s terms, the law achieves two types of family unity.

The proposed FRA is different. It would remove certain mandatory deportation rules and restore the Attorney General’s discretion in cases where a noncitizen parent with a citizen child is deported. For Romero, issues of race, class, and gender help explain why Congress was so quick to support the CCA, yet so hesitant to even debate the FRA. Since most adults adopting noncitizen children are white, “it is easy to see why the CCA was so positively received. Many of the white senators and representatives easily identified with the white U.S. citizen parents who wanted to make sure their nonwhite adopted children were U.S. citizens” (p.61). Thus, “most congresspersons probably have different narrative pictures of the ‘citizen householder family’ and the ‘immigrant householder family’: a ‘citizen’ family is one headed by a middle-class, white U.S. citizen regardless of the color the children, while and ‘immigrant’ family is one headed by a poor, brown or yellow noncitizen regardless of the color of the children. If this racial and class divide along citizenship lines underscores the CCA narrative, it makes sense that these privileged lawmakers would be able to more easily identify with the U.S. citizen parents than with the immigrants, and therefore be easily persuaded of the CCA’s merits” (pp.61-62). Importantly, Romero’s analysis attributes much to the individual and collective motivation of members of Congress with little empirical data to support his assertions. His scrutiny of the lawmaking process leading up to passage of the CCA and the languishing of the FRA would benefit from research into how interest groups affected the process too. His class, race, and gender analysis may hold to a point, but the lawmaking process is not so reductionist as he suggests.

Turning away from adoption and other family issues, Romero explores in Chapter Four a hypothetical floor for constitutional rights of undocumented immigrants. Using a comparison between the Fourth Amendment’s right to be free from unreasonable searches and seizures and premises liability law in torts, Romero argues that the constitutional protections of the Fourth Amendment should extend to noncitizens: “just as we would require tortfeasor landowners to compensate persons injured on their property irrespective of their relationship to the plaintiff, our constitutional law should provide Fourth Amendment protections against the government regardless of the claimant’s immigration status” (p.69). Since tort law and immigration both seek to deter undesirable conduct, the “parallels between the two” are clear: [*615] “the landowner in tort law is analogous to the U.S. government in immigration” (p.83). Thus, the invitee and licensee in tort law, to whom the landowner owes a reasonable duty of care, are analogous to the legal permanent resident and legal nonimmigrant, respectively. Here, Romero looks specifically to tort law regimes in New York and California, two states that have abolished property distinctions (invitee, licensee, trespasser) and now treat all injured entrants equally. The question in liability law then becomes: did the landowner adhere to a general due care or “reasonableness” standard? Romero suggests the same framework for the Fourth Amendment. “When the Fourth Amendment is at issue in a case, courts should attach less significance to the immigration status of the noncitizen, and should focus instead on how the right should apply in the individual case, taking the immigration status of the noncitizen as one factor among many” (p.78). This “floor” of constitutional rights will support the idea that “the personhood of noncitizens” is more important that “their nonmembership in the U.S. polity.” This approach will also return to the appropriate Fourth Amendment focus on deterring unconstitutional government conduct. Romero refers to recent federal district court cases and a Supreme Court decision that suggests his fears about the Fourth Amendment’s inapplicability to illegal immigrants is real, and not hypothetical. To be sure, it is easy to anticipate that concerns over the guarantees of the Fourth Amendment in the context of immigration law and policy will arise with increasing frequency with the ongoing war on terrorism, and indeed Romero offers an interesting and substantive approach to dealing with these concerns.

In Chapters Five and Six Romero tackles two other issues: the viability of a constitutional or statutory right to financial aid for higher education for undocumented immigrants, and the hypothetical issue of whether the federal government can constitutionally deport the foreign same-gender partners of U.S. citizens solely based on their sexual orientation. As regards the first issue, Romero notes that the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) allows states to limit access to financial aid to undocumented immigrants. As such, the law “violates the quality principles of antiessentialism and antisubordination by allowing states to favor U.S. citizens over undocumented nonresidents despite the fact that in many instances the latter might be more productive, and hence more worthy, recipients of state largesse” (p.97). Romero offers a detailed critique of IIRIRA provisions, and advocates passage of the Student Adjustment Act, introduced into the House of Representatives in 2003, which would allow undocumented immigrants the same opportunities for higher education as lawful permanent residents.

Romero argues that recent public opinion polls (from 2003) coupled with Massachusetts’ gay marriage law, Vermont’s civil union law, and the attractiveness of American educational institutions to foreign students, implies that “not only is there a greater probability of same-gender binational relationships developing today than in the past,” but there may also be an “increase in the number of formal, government-sanctioned relationships among binational same-gender partners” (p.109). Although he recognizes that mass deportation of same-gender partners is hypothetical at this point, it is still conceivable: [*616] “if . . . a conservative backlash against homosexuals is imminent, what better way to constitutionally implement such an antigay policy than to utilize the immigration laws—laws that have been subject to minimal judicial scrutiny—to selectively deport foreign same-gender partners of U.S. citizens” (p.113)? To be sure, U.S. circuit courts have sustained a federal agency’s interpretation of immigration law to grant “immediate relative” status to heterosexual spouses only, and although the Supreme Court has addressed gay rights issues recently, it has not dealt with a case concerning the deportation of same-gender noncitizens. However, Romero speculates that the Supreme Court, as currently constituted, “may be unwilling to tolerate much stereotypical, animus-based discrimination against homosexuals outside the confines of a First Amendment debate” (p.137). Based on his detailed and critical reading of gay rights cases, such as ROMER v. EVANS (1996) and LAWRENCE v. TEXAS (2003), Romero posits that “while it is often reluctant to do so, the Court will intervene to elevate the rights of gays and noncitizens if there is no good countervailing reason to do otherwise” (p.157). Thus, Romero essentially gives a detailed brief about how current Supreme Court precedent can be used to protect same-gender immigrants in a relationship with U.S. citizens from deportation based only on their sexual orientation.

Romero’s concluding chapter discusses diverse “theoretical and practical alternatives to the status quo that advance the cause of equality by promoting both antiessentialism and antisubordination” (p.161). Romero ends with an interesting argument for more state and local control over immigration, suggesting that the increase in local and state resolutions against the Patriot Act and the increasing nationwide movement to accept as valid identification the matricula consular cards issued by the Mexican governments to its nationals working in the U.S. indicate that state and local advocacy to protect the rights of immigrants and noncitizens may be useful and effective.

In all, ALIENATED is a wide-ranging work that critiques and assesses constitutional immigration law across a diverse range of policy areas. Thematically, Romero’s focus on antiessentialist and antisubordination readings of the Constitution help give coherence to the book, and his sustained critical assessment of current, potential, and hypothetical constitutional issues surrounding immigration law are thought provoking. Readers will find ALIENATED’s critical take on immigration law and policy useful for supplementing more conventional, policy-oriented research. The book is probably best suited for graduate level seminars on judicial policymaking or courses on immigration law and politics. Parts of the book will certainly be of value to law-related courses that cover terrorism, law and gender, family law, and critical legal studies.

CASE REFERENCES:

ROMER v. EVANS, 517 U.S. 620 (1996).

LAWRENCE v. TEXAS, 123 S.Ct. 2472 (2003).

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