Law Commons^™

Devolution And Discrimination, Victor C. Romero

Victor C. Romero

This essay explores the issue of whether discrimination against two historically disadvantaged groups - racial minorities, on the one hand, and gays and lesbians, on the other - might increase or decrease should the federal immigration power devolve to the individual states. I conclude that while the lack of uniformity that accompanies immigration law devolution might lead to undesirable results in welfare reform and criminal law enforcement, and would likely not stem the tide of racism, it might lead to the opening of opportunities for gay Americans to petition their binational partners for immigration benefits. Such a development would turn …

U.S. Immigration Policy: Contract Or Human Rights Law?, Victor Romero

Victor C. Romero

The current immigration debate often reflects a tension between affirming the individual rights of migrants against the power of a nation to control its borders. An examination of U.S. Supreme Court precedent reveals that, from our earliest immigration history to the present time, our immigration policy has functioned more like contract law than human rights law, with the Court deferring to the power of Congress to define the terms of that contract at the expense of the immigrant's freedom.

Asians, Gay Marriage, And Immigration: Family Unification At A Crossroads, Victor C. Romero

Victor C. Romero

Family unification has long been a significant component of U.S. immigration policy, and the Asian Pacific American (APA) community has long been a champion of laws that strengthen America's commitment to this goal. The recent emergence of same-gender marriages among state and local governments has caused society to consider more closely its definition of the family, challenging the traditional notion that only civil unions between heterosexuals should be celebrated. But because U.S. immigration law does not include a gay or lesbian partner within its statutory definition of spouse, binational same-gender couples may not legally remain in the country together, even …

Decriminalizing Border Crossings, Victor C. Romero

Victor C. Romero

An international border crosser should only be deemed a criminal if the United States government can prove that, with requisite criminal intent, she engaged in an act aside from crossing the border that would constitute a crime. No longer should crossing the border be a strict liability criminal offense. Doing so will restore balance to the civil immigration system, conserve scarce enforcement resources to target truly criminal behavior, enhance our standing abroad, and help heal our racially-polarized discourse on immigration policy.

Restricting Hate Speech Against Private Figures: Lessons In Power-Based Censorship From Defamation Law, Victor C. Romero

Victor C. Romero

This article examines the debate between those who favor greater protection for minorities vulnerable to hate speech and First Amendment absolutists who are skeptical of any burdens on pure speech. The author also provides another perspective on the debate by highlighting the "public/private figure" distinction as an area within First Amendment law that acknowledges differences in power, a construct anti-hate speech advocates should use to further their cause. Specifically, the author places the "public/private figure" division in a theoretical and historical context and then provides empirical support for the thesis that whites enjoy a more prominent societal role and greater …

The Selective Deportation Of Same-Gender Partners: In Search Of The "Rara Avis", Victor C. Romero

Victor C. Romero

This article seeks to explore the possibility that a selective deportation of a same-gender partner who has overstayed her visa constitutes an outrageous case under the AADC test. Its modest goal is to discourage the INS from ever pursuing such a strategy, knowing that there are probably many who believe that same-gender overstays, even if civilly united in Vermont, are not the ideal candidates for "suspect class" status under U.S. constitutional law. That notwithstanding, common sense and sound doctrine suggest that, despite the many anti-gay and anti-immigrant decisions handed down over the last twenty years, the Court will not hesitate …

Rethinking Minority Coalition Building: Valuing Self-Sacrifice, Stewardship And Anti-Subordination, Victor C. Romero

Victor C. Romero

No abstract provided.

Loving V. Virginia In A Post-Racial World: Rethinking Race, Sex, And Marriage, Kevin Maillard, Rose Villazor, Victor Romero

Victor C. Romero

Victor Romero is a contributing author: "Loving Across the Miles: Binational Same-Sex Marriages" pages 217-234. In 1967, the U.S. Supreme Court ruled that laws prohibiting interracial marriage were unconstitutional in Loving vs. Virginia. Although this case promotes marital freedom and racial equality, there are still significant legal and social barriers to the free formation of intimate relationships. Marriage continues to be the sole measure of commitment, mixed relationships continue to be rare, and same-sex marriage is only legal in 6 out of 50 states. Most discussion of Loving celebrates the symbolic dismantling of marital discrimination. This book, however, takes a …

Decoupling 'Terrorist' From 'Immigrant': An Enhanced Role For The Federal Courts Post 9/11, Victor C. Romero

Victor C. Romero

Since the terrorist attacks of September 11, 2001, Attorney General John Ashcroft has utilized the broad immigration power ceded to him by Congress to ferret out terrorists among noncitizens detained for minor immigration violations. Such a strategy provides the government two options: deport those who are not terrorists, and then prosecute others who are. While certainly efficient, using immigration courts and their less formal due process protections afforded noncitizens should trigger greater oversight and vigilance by the federal courts for at least four reasons: First, while the legitimate goal of immigration law enforcement is deportation, Ashcroft's true objective in targeting …

Racial Profiling: Driving While Mexican And Affirmative Action, Victor C. Romero

Victor C. Romero

This Essay will focus on "racial profiling" not just in the way people think about the term - that is, with respect to stopping motorists for traffic violations based solely on their race, so-called "Driving While Mexican" or "Driving While Black" - but also in the context of "affirmative action - namely, using race as a factor in employment and educational decisions. More broadly, then, I want us to think of "racial profiling" as simply "the use of race to develop an understanding of an individual" which moves us slightly away from more pejorative notions of the phrase that have …

Immigrant Rights In The Shadows Of Citizenship, Rachel Bluff, Victor Romero

Victor C. Romero

Victor C. Romero is a contributing author: "Who Should Manage Immigration - Congress or the States? An Introduction to Constitutional Immigration Law." Chapter 12, page 286.

Punctuated by marches across the United States in the spring of 2006, immigrant rights has reemerged as a significant and highly visible political issue. Immigrant Rights in the Shadows of U.S. Citizenship brings prominent activists and scholars together to examine the emergence and significance of the contemporary immigrant rights movement. Contributors place the contemporary immigrant rights movement in historical and comparative contexts by looking at the ways immigrants and their allies have staked claims …

Noncitizen Students And Immigration Policy Post-9/11, Victor Romero

Victor C. Romero

The purpose of this article is to describe the post-9/11 world for noncitizen students and scholars in light of recent federal legislation, specifically focusing on three laws: the USA-PATRIOT Act of 2001, the Border Commuter Student Act of 2002, and the proposed Capital Student Adjustment Act, currently pending in Congress. In all three, Congress is seen trying to walk the fine line between providing fair access to postsecondary education to noncitizen students and guarding against the possibility that such institutions are being used as a springboard for terrorist activity.

The Child Citizenship Act And The Family Reunification Act: Valuing The Citizen Child As Well As The Citizen Parent, Victor Romero

Victor C. Romero

Leading civil rights advocates today lament the degree to which current immigration law fails to maintain family unity. The recent passage of the Child Citizenship Act of 2000 is a rare bipartisan step in the right direction because it grants automatic citizenship to foreign-born children of U.S. citizens upon receipt of their permanent resident status and finalization of their adoption. Congress now has before it the Family Reunification Act of 2001, which aims to restore certain procedural safeguards relaxed in 1996 to ensure that foreign-born parents are not summarily separated from their children, many of whom may be U.S. citizens. …

Are Filipina/Os Asians Or Latina/Os?: Reclaiming The Anti-Subordination Objective Of Equal Protection After Grutter And Gratz, Victor C. Romero

Victor C. Romero

In this piece, I explore two avenues of political action - self-identification for affirmative action purposes and longer-term solutions to educational inequity - in an attempt to develop a coherent and effective post-Grutter and Gratz strategy for promoting equal educational opportunities consistent with the demands of equal protection. I use the experiences of Filipina/o-Americans as a vehicle for exploring these issues. I hope to show that diversity as the underlying goal of affirmative action fails to capture the core of modern equal protection jurisprudence implicit in Brown v. Board of Education and Loving v. Virginia: that treating all races equally …

Everyday Law For Immigrants, Victor Romero

Victor C. Romero

Immigration is one of the most controversial topics of the decade. Citizens and pundits from across the political spectrum argue for major and disparate changes to American immigration law. Yet few know what American immigration law actually is and how it functions.

Everyday Law for Immigrants is an ideal guide for U.S. citizens who want a better understanding of our immigration laws as well as for migrants who make the United States their home. Romero deftly and comprehensively explains the basic challenges immigrants and foreign nationals face, not only within formal immigration policy, but also within American domestic law generally, …

The Encyclopedia Of American Civil Liberties, Paul Finkelman, Victor Romero

Victor C. Romero

Victor Romero contributed the following encyclopedia entries: "Civil Liberties of Aliens"; "Race and Immigration"; "Criminal Law/Civil Liberties and Noncitizens in the U.S."; "Illegitimacy and Immigration"; "Homosexuality and Immigration"; "Ambach v. Norwick"; "United States v. Verdugo-Urquidez"; "Fiallo v. Bell"; "INS v,. Chadha"; and "In re Griffiths."

This Encyclopedia on American history and law is the first devoted to examining the issues of civil liberties and their relevance to major current events while providing a historical context and a philosophical discussion of the evolution of civil liberties.

- From the Publisher

An Other Christian Perspective On Lawrence V. Texas, Victor C. Romero

Victor C. Romero

The so-called Religious Right's reaction to Lawrence v. Texas has been both powerful and negative, characterizing the case as an assault on the traditional conception of marriage and family life. This essay is an attempt to present a different Christian view. Modeled on the life and teachings of Jesus, this perspective celebrates the Lawrence case as consistent with God's call to social justice for the oppressed. It also outlines a Christian sexual ethic that lifts up genuine, monogamous, committed love between two individuals, whether of the same or opposite sex.

Critical Race Theory In Three Acts: Racial Profiling, Affirmative Action, And The Diversity Visa Lottery, Victor C. Romero

Victor C. Romero

The usual debates surrounding multiculturalism pit individual rights against group grievances in a variety of contexts including racial profiling, affirmative action, and the diversity visa lottery, often with seemingly contradictory results. Liberals often favor affirmative action but decry both racial profiling and the diversity visa lottery, while many conservatives hold the opposite view. Critical race theory provides a unique alternative to stock liberal and conservative arguments, allowing one to draw meaningful and persuasive distinctions among these seminal issues surrounding law enforcement, education, and immigration policy.

Aren't You Latino: Building Bridges Upon Common Misperceptions, Victor C. Romero

Victor C. Romero

This article addresses minority on minority oppression and itragroup animosity. The author discusses ways in which communities of color can use common misperceptions to their advantage as a bridge to building a larger community.

Are Filipinas Asians Or Latinas?: Reclaiming The Anti-Subordination Objective Of Equal Protection After Grutter And Gratz, Victor Romero

Victor C. Romero

No abstract provided.

Congruence Principle Applied: Rethinking Equal Protection Review Of Federal Alienage Classifications After Adanrand Constructors, Inc. V. Peña, Victor C. Romero

Victor C. Romero

This article suggests that the Supreme Court's 1995 decision in Adarand Constructors, Inc. v. Peña constitutes a starting point for a renewed dialogue on the intersection of race, noncitizens' rights, and immigration law. Part I of this Article examines the historical foundations of the plenary power doctrine up to the current dichotomy between judicial review of state and federal alienage classifications under equal protection. Part II reviews the Adarand decision, arguing that Justice O'Connor's congruence principle provides the bulwark for a revision of judicial review of federal legislation, especially in light of the historical and continuing perception of Asian- and …

Immigrant Education And The Promise Of Integrative Egalitarianism, Victor C. Romero

Victor C. Romero

Although not an equal protection case, Martinez v. Regents of the University of California challenges us to grapple with the Supreme Court’s post-Brown commitment to equal opportunity within the context of immigrant higher education. Sadly, Brown’s progeny from Bakke to Parents Involved reveals the cost of embracing a color-blind constitutionalism unmoored from a fundamental commitment to vigilantly combat subordination and dismantle unearned privilege. More optimistically, the Supreme Court’s gay rights jurisprudence developed in Romer v. Evans and Lawrence v. Texas provides insights into how a conservative court can accurately distinguish irrational discrimination from democratic deliberation, a lesson that might help …

Expanding The Circle Of Membership By Reconstructing The Alien: Lessons From Social Psychology And The Promise Enforcement Cases, Victor C. Romero

Victor C. Romero

Recent legal scholarship suggests that the Supreme Court's decisions on immigrants' rights favor conceptions of membership over personhood. Federal courts are often reluctant to recognize the personal rights claims of noncitizens because they are not members of the United States. Professor Michael Scaperlanda argues that because the courts have left the protection of noncitizens' rights in the hands of Congress and, therefore, its constituents, U.S. citizens must engage in a serious dialogue regarding membership in this polity while considering the importance of constitutional principles of personhood. This Article takes up Scaperlanda's challenge. Borrowing from recent research in social psychology, this …

Broadening Our World: Citizens And Immigrants Of Color In America, Victor C. Romero

Victor C. Romero

This article was originally presented at a symposium. The article discusses affirmative action and ways of increasing diversity in higher education.

Our Illegal Founders, Victor C. Romero

Victor C. Romero

This Essay briefly mines America’s history to argue that the law setting forth where our national borders are and how strictly we patrol them has always been subject to the vagaries of politics, economics, and perception. Illegal (im)migration has long been part of our migration history, engaged in not just by Latin American border crossers, but also by prominent colonists, giving the lie to the claim that upholding border laws should always be sacrosanct. In many school districts today, the usual summary of American history from our childhood civics classes no longer bypasses the uncomfortable truths of conquest and westward …

Equal Protection Held Hostage: Ransoming The Constitutionality Of The Hostage Taking Act, Victor C. Romero

Victor C. Romero

This Article contends that, following the Supreme Court's lead in Adarand Constructors, Inc. v. Peña and City of Cleburne v. Cleburne Living Centers, Inc., the continuing maltreatment of noncitizens in this country requires that federal alienage classifications be reviewed with the same strict, or at least heightened rational basis, scrutiny applied to state legislation. Part II of this Article describes the 1979 Hostage Taking Convention and sets forth some of its provisions in an effort to better understand the impetus for the HTA. Part III examines the legislative history of the HTA and briefly describes the Yunis case as the …

Reading (Into) Windsor: Presidential Leadership, Marriage Equality, And Immigration Policy, Victor C. Romero

Victor C. Romero

Following the demise of the federal Defense of Marriage Act in United States v. Windsor, the Obama Administration directed a bold, equality-based reading of Windsor to immigration law, treating bi-national same-sex couples the same as opposite-sex couples. This Essay argues that the President's interpretation is both constitutionally and politically sound: Constitutionally, because it comports with the Executive's power to enforce immigration law and to guarantee equal protection under the law; and politically, because it reflects the current, increasingly tolerant view of marriage equality. Though still in its infancy, President Obama's policy of treating same-sex beneficiary petitions generally the same as …

Alienated: Immigrant Rights, The Constitution, And Equality In America, Victor Romero

Victor C. Romero

Throughout American history, the government has used U.S. citizenship and immigration law to protect privileged groups from less privileged ones, using citizenship as a "legitimate" proxy for otherwise invidious, and often unconstitutional, discrimination on the basis of race. While racial discrimination is rarely legally acceptable today, profiling on the basis of citizenship is still largely unchecked, and has in fact arguable increased in the wake of the September 11 terror attacks on the United States. In this thoughtful examination of the intersection between American immigration and constitutional law, Victor C. Romero draws our attention to a "constitutional immigration law paradox" …

Rethinking Minority Coalition Building: Valuing Self-Sacrifice, Stewardship And Anti-Subordination, Victor Romero

Victor C. Romero

This essay provides an alternative to the conventional self-interest model of coalition building to explore one that relies instead on the three concepts of self-sacrifice, stewardship, and anti-subordination, addressing anticipated counterarguments and providing concrete examples of how this model might work.

Crossing Borders: Loving V. Virginia As A Story Of Migration, Victor C. Romero

Victor C. Romero

The struggle of binational same-gender partners today parallels the struggles of Mildred and Richard Loving during the heyday of the Civil Rights Movement - not only in the obvious parallels between race and sexual orientation as barriers to freedom, but also in the way the law uses these immutable characteristics to limit the freedom of movement. It is this freedom of movement - this migration or immigration - that I want to focus on in this essay. Lest we forget, the Lovings' story is, importantly, a story of migration: It's a story of the great lengths to which an interracial …