Who Belongs?: Immigration Outside the Law and the Idea of Americans in Waiting

Abstract

This essay addresses a central question in immigration law and policy: when immigrants are unlawfully present in the United States, how if at all might they make persuasive claims to legalization or some other recognition in the form of immigration law status? Part I sets out an analytical framework that shows how viewing immigrants — including unauthorized migrants — as Americans in waiting is essential to reconciling a central tension in immigration and citizenship law generally. This is the tension between national borders and a sense of justice that is defined largely by a national commitment to equality. Part II analyzes how, in the historical context of U.S. immigration and citizenship laws, immigrants have — or have not — been treated as Americans in waiting whose integration should be fostered. Part III suggests ways to think about possible claims by unauthorized migrants to lawful immigration status and eventually to U.S. citizenship. The conclusion sets out a brief agenda for further thought.

Keywords: immigration law, immigration policy, immigration enforcement, immigration federalism, citizenship, immigration legalization, national borders, justice in immigration, nation–state