by Hiroshi Motomura. New York: Oxford University Press, 2006. 272pp. Cloth. $29.95/£17.99. ISBN: 9780195163452. Paper. $19.95. ISBN: 9780195336085.
Reviewed by Leila Kawar, Institute for Law and Society, New York University. E-mail: lck212 [at] nyu.edu.
As the most recent unsuccessful attempt by the US Congress to pass comprehensive immigration reform reminds us, the question of how to regulate immigration and citizenship remains far from settled. The US population currently includes more than 35 million foreign-born people. Political debates have lately focused on the contentious matter of regularization for the country’s more than 12 million undocumented migrants. Yet, recent legislative changes have also targeted the legal status of millions of other “lawful immigrants.” Particularly after the passage of restrictionist legislation in 1996, permanent residents and other lawful immigrants can be subjected to deportation if they are convicted of a minor crime. Although lawful immigrants pay taxes, they do not have the right to vote and their eligibility for public benefits, such as Medicare, is not constitutionally protected. The matter of when and how noncitizens become part of the national community has dramatic practical importance, but the way in which law draws a line between citizens and noncitizens “often does not match up” (p.4) with the lived experience of individuals and families who reside legally within the US but who are not US citizens.
Hiroshi Motomura’s contribution to this aspect of the current immigration debate delves deeply into the case law and legislative history to make the argument that legal precedent exists for treating lawful immigrants as future citizens. Motomura is the co-author of the most widely used immigration law casebook, now in its fifth edition, and his law review articles on immigration and citizenship are among those most frequently cited in the field. AMERICANS IN WAITING is his first individually authored book, and it has been recognized by an award from the Association of American Publishers in the category of legal studies published in 2006. Legal scholars and practitioners will find the book’s attention to detail particularly useful. The author examines a strikingly wide range of immigration case law, much of which is not typically included in the corpus of social scientific literature on immigration law. The book is also heavily footnoted: approximately 40 pages of notes follow 200 pages of text (although social science readers may wish that the text also contained a general bibliography).
Motomura also aims his book at a more general audience. And this is particularly clear from the fairly lengthy sections of the text, which provide historical context for the author’s detailed discussion of legislation and court decisions. Motomura’s coverage of more than two centuries of US [*543] lawmaking, as well as occasional comparative discussion of the legal regimes in other countries, is extremely competent and supplies an authoritative yet concise account of immigration and citizenship law, particularly for those unfamiliar with this area of public policy. The disadvantage to this discursive approach is that the author’s argument is at times almost submerged by contextual explanation.
In terms of theoretical orientation, Motomura adopts a conceptualist approach, familiar to readers of law review articles, to elucidate past and current US law concerning lawfully resident noncitizens. The book’s title, AMERICANS IN WAITING, captures the concept that Motomura terms “immigration as transition,” which he argues was once relatively central to American immigration lawmaking. Immigration as transition is the idea that migrants who express an intention to naturalize should be given rights and protections similar to US citizens. The principle is seen most strongly in the practice of making a declaration of intent to become a citizen, which for 150 years distinguished those who had filed this declaration from other noncitizens. Motomura also locates the principle of immigration as transition in the continued use of permanent residence status as a step towards citizenship.
The immigration as transition principle has not been the only idea governing immigration policymaking, and the first five chapters of the book discuss two other legal principles that have dominated American legal thinking about immigration: 1) immigration as contract, and 2) immigration as affiliation. In the first of these, immigrants are treated as signatories to a “contract” and are required to leave if they violate its terms. The contractual principle is visible in the Supreme Court’s reasoning in HARISIADES v. SHAUGHNESSY, declining to protect Communist Party members from politically motivated deportation. By contrast, the immigration as affiliation paradigm suggests that immigrants can earn rights only as they become, over time, enmeshed in the nation’s life. This idea is illustrated by laws upheld by the courts, which distinguish for the purposes of Medicare eligibility between lawful migrants who have been in the country more than five years, and those more recently arrived. At the same time, immigration as affiliation has a glass-half-full quality, since courts have developed an affiliation-based exception to the plenary power doctrine for procedural due process. Some of this material has appeared in Motomura’s previous law review articles. It is included in the book to demonstrate that American jurisprudence has historically contained differing conceptions of immigration – i.e., different rhetorical styles and different ways of appealing to fairness and justice. The author argues that, as the idea of immigration as transition has fallen into disuse, this diversity of paradigms has become somewhat reduced.
Motomura works to retrieve the immigration as transition paradigm, now partially buried in US legal history, and to demonstrate that, as a legal principle governing the treatment of noncitizens, it contains several desirable democratic [*544] features. However, this normative argument is complicated by a major historically-generated obstacle: in the process of conducting his legal excavation of the concept of immigration as transition, Motomura is forced to admit that this paradigm has overlapped historically with a strikingly non-egalitarian legal regime. Only a subset of immigrants could be Americans in waiting because, “from 1795 until 1952, when the declaration of intent was required for naturalization and established lawful immigrants as Americans in waiting, both immigration and citizenship were formally restricted by race” (p.135). The premise of the book is thus unusual in that it rests upon an irony: in the name of democratic incorporation, Motomura proposes to resurrect a principle that had its origins in a period of American history that was significantly less democratic.
Far from glossing over the less attractive side of this legal history, Motomura devotes significant space in the book to the various formal and informal ways in which racial and ethnic groups were systematically excluded from citizenship by a legal regime protecting the rights of supposedly superior races. His synopsis of the history of racial discrimination in immigration and citizenship law draws upon a sizeable array of historical studies, ranging from John Higham’s (1955) classic text to the more recent work of critical historians. It seems important to note, however, that the heyday of immigration as transition likewise coincided with a legal regime that prevented certain groups, notably women and the landless, from exercising rights that are now considered essential to full citizenship. The link between citizenship law and social class relations receives less attention in Motomura’s book than the racially discriminatory aspects of the law. There is likewise little discussion of the link between historical conceptions of citizenship and gender inequality, visible in the fact that US citizen women who married noncitizen spouses were once forced to give up their own citizenship. While the overlap between the disappearance of racially-based immigration restrictions and the reduced importance of the immigration as transition approach has been particularly striking at times (for example, the 1952 McCarran-Walter Act made filing a declaration of intent optional for prospective citizens at the same time that it did away with remaining racial bars to naturalization), Motomura avoids making a claim that the two were directly or explicitly linked. It could have been interesting to look at whether there has been a similar general historical parallel between the undoing of other types of legally sanctioned inequalities and the waning of the immigration as transition paradigm.
The narrative trajectory of Motomura’s text ultimately leads to the final two chapters. Hot topics, such as the movement to make English an official language as well as the post-9/11 use of both profiling in immigration law enforcement and sharply reduced procedural protections for non-citizens, cropped up throughout the earlier part of the book. But in the final chapters, Motomura argues that the polarization of the political debate surrounding these issues reveals an underlying problem [*545] with America’s current approach to immigrants. He suggests that contemporary America is characterized by a harmful “reciprocal skepticism” that opposes, on the one side, immigrants who are wary of the historical link between Americanization and racism, and on the other side, those who complain that immigrants are insufficiently committed to America. Motomura at this point switches into an explicitly normative register and recommends that the country should re-emphasize the idea of immigration as transition. He argues that the revived version of the transition paradigm provides a way to break the cycle of mistrust between immigrant-origin ethnic communities and other Americans. According to the author, extending to immigrants a more active welcome, on the assumption that any given lawful immigrant will become a citizen, effectively fosters civic education and involvement of immigrants and will ultimately result in a more integrated American society. A key assumption behind this position is that legal principles can serve as a societal steering mechanism without the disadvantageous externalities of direct state intervention. Motomura writes, “Law will create the conditions for lawful immigrants to make free, meaningful choices, and for nongovernmental organizations and individuals working in communities to help make them feel like Americans in waiting” (p.203).
Motomura clearly takes seriously the idea that law should be responsive to the processual nature of the transition to citizenship. In the Introduction, he shares his own family’s immigrant story and this personal experience provides part of the inspiration for the book. His commitment to the idea that noncitizen residents should be encouraged to transition towards an American identity is sure to attract criticism, but AMERICANS IN WAITING is a valuable addition to contemporary discussions of immigration and citizenship, especially at a time when the rush to pass comprehensive immigration reform has all but crowded out reflections on the nature of American community.
Higham, John. 1955. STRANGERS IN THE LAND: PATTERNS OF AMERICAN NATIVISM, 1860-1925. New Brunswick, NJ: Rutgers University Press.
HARISIADES v. SHAUGHNESSY, 342 U.S. 580 (1952).
© Copyright 2007 by the author, Leila Kawar.