Law Commons^™

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

Journal Articles

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 …

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

Journal Articles

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 …

Interrogating Iqbal: Intent, Inertia, And (A Lack Of) Imagination, Victor C. Romero

Journal Articles

In Ashcroft v. Iqbal, the Court reaffirmed the long-standing equal protection doctrine that government actors can only be held liable for discriminatory conduct when they purposefully rely on a forbidden characteristic, such as race or gender, in promulgating policy; to simply know that minorities and women will be adversely affected by the law does not deny these groups equal protection under the law. This Essay interrogates this doctrine by taking a closer look at Iqbal and Feeney, the thirty-year-old precedent the majority cited as the source of its antidiscrimination standard. Because Feeney was cited in neither of the …

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

Journal Articles

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.

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

Journal Articles

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 …

Race, Immigration, And The Department Of Homeland Security, Victor C. Romero

Journal Articles

Despite the wisdom of separating the service and enforcement functions of our immigration bureau, the new tripartite system under the auspices of the Department of Homeland Security risks fueling the "immigrant Arab as terrorist" stereotype, rather than helping to re-establish the reality that noncitizen terrorists, like U.S. citizen ones, are a rare species.

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

Journal Articles

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.

Proxies For Loyalty In Constitutional Immigration Law: Citizenship And Race After September 11, Victor C. Romero

Journal Articles

The purpose of this article is to share some thoughts about using citizenship and race as proxies for loyalty in constitutional immigration discourse within two contexts: one historical and one current. The current context is the profiling of Muslim and Arab immigrants post-September 11, and the historical context is the distinction the Constitution draws between birthright and naturalized citizens in the Presidential Eligibility Clause.

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

Journal Articles

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. …

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

Journal Articles

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 …

Devolution And Discrimination, Victor C. Romero

Journal Articles

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 …

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

Journal Articles

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 …

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

Journal Articles

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

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

Journal Articles

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 …

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

Journal Articles

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 …

Whatever Happened To The Fourth Amendment: Undocumented Immigrants' Rights After Ins V. Lopenz-Mendoza And United States V. Verdugo-Urquidez, Victor C. Romero

Journal Articles

This Note rejects the Court's approach to the Fourth Amendment in Lopez and Verdugo and attempts to redefine the boundaries of Fourth Amendment protections for undocumented immigrants. Part I examines the impact of the Lopez and Verdugo decisions upon undocumented immigrants' Fourth Amendment rights. Part II evaluates the arguments for extending Fourth Amendment protections to undocumented immigrants. Viewing the Fourth Amendment as a restriction on government intrusion, Part III examines the constitutional remedies available to undocumented immigrants. This part rejects the Lopez restrictions on the applicability of the exclusionary rule and concludes that the Fourth Amendment neither draws distinctions among …