The Invisible Border: Restrictions on Short-Term Travel By Noncitizens

39 Pages Posted: 20 Sep 2006 Last revised: 26 Oct 2007

Nancy Morawetz

New York University - School of Law

Abstract

As Congress considers immigration reform, public debate has focused on border enforcement and whether the undocumented should be provided with a path to citizenship. Underlying this debate is a tacit assumption that issues of border enforcement center on persons who lack a legal status to reside in the United States or who are attempting to evade immigration authorities. The border looms large, however, for millions of immigrants who have a legal status or who have fully presented themselves to immigration authorities in their efforts to obtain permanent status. For these immigrants, short term travel, including a trip of a few days to attend a family funeral, can lead to a permanent bar to readmission. As a result, the border operates invisibly as a force that keeps immigrants in their homes in the United States and stops them from traveling.

This paper examines how current immigration law restricts travel by noncitizens, including travel by lawful permanent residents and the spouses of United States citizens. It shows that as a result of the inter-working of various statutory and regulatory interpretations, these restrictions permeate the overall statutory and regulatory scheme governing noncitizens. At that same time, the restrictions generally lack any articulated rationale. Some were enacted without explanation. Others are carryovers from past legislative schemes. This paper proceeds to examine the individual and governmental interests implicated by these policies. Finally, it looks at the role that could be played by the courts, agencies and Congress in achieving a more humane and rational system for regulating travel.

Suggested Citation

Morawetz, Nancy, The Invisible Border: Restrictions on Short-Term Travel By Noncitizens. Georgetown Immigration Law Journal, Vol. 21, p. 201, 2007; NYU Law School, Public Law Research Paper No. 06-26. Available at SSRN: https://ssrn.com/abstract=931157

Nancy Morawetz (Contact Author)

New York University - School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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