Love and War: Family Migration in Time of National Emergency

Abstract

Is there a constitutional right to family-sponsored immigration? What does love have to do with it? Is family-sponsored immigration about rights of citizens or interests of aliens? Can the nation invoke the war justification for regulating family-sponsored immigration by excluding enemy aliens from entering its borders en masse? Can the nation stigmatize alien family members as a potential threat to national security only by using their nationality? Is it national discrimination?

The 9/11 Commission found that several systems failed to detect and prevent the 9/11 attacks. A significant failure occurred in the implementation of immigration policies. The Commission reports that the INS failed to see the nexus between immigration policies and national security; it failed to understand that the presence of a terrorist in the country may, by itself, be a lethal weapon. The Commission found that for terrorists, travel documents are as important as weapons.

This article seeks to map the subject of migration in times of war. It explores this issue through one type of migration - family-sponsored migration - as it reflects the interests of foreigners but also the rights of citizens and represents the most difficult clash arising between individuals seeking their happiness in mutual love and national interests. The main argument is that despite the strong case for individual rights, admission policies should be seen as an important counterterrorism measure. To this end, the nation can establish a 'Presumption of Dangerousness' stating that every non-resident enemy alien - or every non-resident alien under the rule of states sponsoring terrorism - presents a security risk. But while the traditional laws of war as applied during the two World Wars banned any contact between enemy aliens in a categorical and collective manner - not only family migration but also trade, student exchanges and tourism - recent developments in international human rights law require mitigation of these outdated prohibitions. I therefore suggest sustaining the presumption of dangerousness yet enabling it to be rebutted in particular cases for the purpose of achieving individual justice.

Keywords: Immigration Law, National Security Law, Comparative Law, Family Migration