Children and Parents, Innocence and Guilt
128 Harvard Law Review Forum 137 (March 2015)
8 Pages Posted: 2 Jun 2015 Last revised: 14 Jun 2015
Date Written: 2015
This essay responds to Professor Stephen Lee’s review of my book, Immigration Outside the Law (Oxford Univ. Press 2014). See Stephen Lee, “Growing Up Outside the Law,” 128 Harv. L. Rev. 1405 (2015). Professor Lee first questions my core reliance on Plyler v. Doe — a case about children — in a book about unauthorized migrants in general. He then explains a “membership as brokering” approach to understanding the claims of some unauthorized migrants to be treated as Americans in waiting.
My response first agrees with Professor Lee that the differences between unauthorized children and adults are typically exaggerated. Immigration Outside the Law unsettles any such dichotomy by delving much deeper than Plyler and explaining how unauthorized migration to the United States is a story of de facto government policy that tolerates and acquiesces in unauthorized migration.
Second, Professor Lee’s analysis of membership as brokering is perceptive, but it helps with only half of the argument for treating unauthorized migrants as Americans in waiting. A complete argument has two parts. It must first explain why all immigrants — whether lawfully or unlawfully present — should be treated as Americans in waiting. Membership as brokering is valuable here. Because children are crucial in immigrant integration, Lee’s analysis does vital work to discredit the child/adult part of the dichotomy between innocent children and guilty adults. But it is also necessary to explain why unauthorized migrants should be treated as well as lawful immigrants — that is, why the lack of lawful status shouldn’t matter. Unless combined with an analysis of innocence and guilt, membership as brokering won’t persuade those who question whether unauthorized migrants have any legitimate claim to integration. To address that doubt, the essential foundation is an analysis of innocence and guilt that comes from examining the meaning of unlawful presence. This is the foundation that Immigration Outside the Law tries to provide.
Keywords: immigration law, immigration policy, immigration enforcement, citizenship, immigration legalization, national borders, justice in immigration, nation–state
Suggested Citation: Suggested Citation