Immigrant Rights in the Shadows of Citizenship

1. On Being Here and Not Here: Noncitizen Status in American Immigration Law

26 chapter 1 On Being Here and Not Here Noncitizen Status in American Immigration Law John S. W. Park This essay looks at broad developments in the immigration law to point out how the status of all newcomers to the United States has become both more simple and more vulnerable in fundamental ways. I focus on a particular type of status created through federal court precedents, then codified in the federal immigration law since 1952. That status created a category of persons who were physically in the United States, but framed as though they were not “admitted,” and thus having the same position as persons just seeking admission from a foreign country. As nonadmitted persons, they were released from the custody of immigration authorities, but they really had no constitutinal rights and no substantive right to be in the country. No matter the length of their stay, these persons could be expelled at the will of executive officials , with minimal or no supervision from the federal courts. When their status first emerged in the late nineteenth century, only a relatively small minority of undesirable Asians and Europeans fell within the power of this legal fiction. This essay attempts to show, however, how that status now describes the condition of most immigrants in the United States. On Being Here and Not Here 27 Beginning in 1875, as Congress began to regulate immigration much more deliberately and forcefully, federal authorities created a wide range of new categories for people coming to the United States. Some were legislative , and others came from the federal courts, many borrowing from existing legal precedents and concepts. All of these classifications had great legal force: after the first of several Chinese Exclusion Acts in 1882, determining a person’s status for purposes of immigration had profound consequences for everyone seeking admission into the United States. As Kitty Calavita, Erika Lee, and other scholars have shown, being classified “a returning citizen,” a “merchant,” or “a laborer” meant the difference between entry, detention, or exclusion.1 Clearly, after Chinese exclusion, the new federal system of immigration enforcement responded very differently to persons seeking entry, and depending on one’s status, various substantive and procedural protections—the right to a hearing, the right to petition the federal courts, the right to invoke the constitution itself—did or did not apply. Because it was Chinese exclusion, racial status mattered a great deal, too, and as Hiroshi Motomura and other scholars have pointed out, many Europeans were treated as “citizens in waiting” from the very first day they arrived in the United States, while Chinese and then other Asians languished in immigration detention arguing over their rights.2 By the early twentieth century in the United States, federal immigration law envisioned the categories of citizens, persons on their way to citizenship, lawful residents ineligible for citizenship, and persons who were not formally supposed to be here at all. And not everyone among this last category was in the same position: there were those who had entered unlawfully, having avoided or tricked immigration authorities; and there were persons who were inspected, then either detained or “paroled” into the United States. Being paroled was and is a rather odd status. As it appeared originally in federal immigration law, the fiction of parole developed through the federal courts as an analog to the parole in criminal law. The fiction applies most often to someone who is literally free and yet still under the direct jurisdiction of the state. Parole in both instances was conceived as a privilege, and the state may revoke that privilege either when the parolee has violated the terms of parole or when the state determines other relevant circumstances warranting a change of status. In the criminal law, revoking parole often means a trip back to jail; in the immigration law, losing parole status means detention, 28 John S. W. Park then (maybe) a trip back to one’s home country. A change in parole status could have opposite consequences: in the criminal law, a parolee who successfully meets the conditions of parole is considered “rehabilitated” and released into society. Similarly, if a federal official or a federal court finds that an immigrant parolee does have a right to be in the United States, that person is released and acquires other rights as a lawful immigrant. Parole can be an odd, liminal status, like purgatory, neither here nor there. In...