IndiaPost.com - How many Americans in waiting?

While the debate on whether to legalize millions of undocumented immigrants and create a pathway for their citizenship continues to rage, a gem of a book advocates for a paradigm shift on how we ought to be viewing immigrants. It essentially states that immigrants ought to be treated like citizens.

Americans in Waiting - The Lost Story of Immigration and Citizenship in the United States by Hiroshi Motomura (Oxford University Press) is brilliant and insightful. It takes the reader through a fascinating tour of the landmark Supreme Court decisions on immigration and analyzes them through three viewpoints - immigration as contract, immigration as affiliation and immigration as transition. It is the last viewpoint that Professor Motomura focuses on in his book. Since the late 1700s, people who landed on America's shores were put on a track to citizenship and were treated on an equal footing as citizens.

These immigrants, which he terms "Americans in Waiting," could vote and were also given diplomatic protection. The concept faded away after it became irrelevant to declare one's intention to become a citizen. He advocates for its revival today. Motomura, who is Kenan Distinguished Professor of Law at the University of North Carolina School of Law, first analyzes the Supreme Court's infamous Chinese Exclusion cases and their progeny under a contract-based reasoning.

This approach does not require equality, but rather, depends entirely on the terms of the immigration contract. The contract can be altered or revoked at the will of the sovereign. The Chinese Exclusion cases served as a precursor to limit immigration to the US by race, ethnicity or objectionable political views. Yet, not all cases under the contract-based approach have been decided against the immigrant. In 2000, the Supreme Court in St. Cyr employed contract analysis to hold that Congress did not provide adequate notice when it eliminated waiver eligibility for those who had been convicted of crimes. P

rofessor Motomura then takes the reader through the decisions of the Supreme Court that have held that deportation procedures must meet minimum constitutional standards. These decisions have involved non-citizens who have developed ties to the United States.

This he terms "immigration by affiliation" and the decisions include Chew, Bridges, Woodby and Plasencia, which bucked the plenary power trend. Finally, Professor Motomura re-visits some of the plenary power decisions, Harisiades and Carlson, which rejected the immigrants' due process claims and observed that they had failed to naturalize.

Looking at these decisions with a new lens, the Supreme Court might have analyzed them from the transition point of view. If these immigrants had naturalized, they would not have been subject to deportation. It is the transition viewpoint that Professor Motomura forcefully advocates for its revival.

If this approach is revived, non-citizens who become legal residents should be viewed, within the first few years, as citizens in waiting and be accorded the same benefits as citizens in the areas of voting, public employment, benefits, family reunification and also be given some measure of protection against deportation.

Also, a transition-based model to immigration would allow greater integration of immigrants into America, and through their participation, could also influence it. Thus, it is hoped that although immigrants in transition may have to buy into a culture shaped largely by a white, protestant Anglo-Saxon majority, their early participation in the political process would also enable the country to benefit by embracing new ideas and cultures.

Once immigrants in transition are on the same level playing field as citizens, it would be harder to deport them by changing the rules midstream, as we saw in the Immigration Act of 1996 or through discriminatory post 9/11 immigration policies.

One would think that immigrants in transition would be able to argue that they are immune from deportation like citizens, but Professor Motomura believes that they should be deported for serious crimes, although it would be harder to deport them than non-citizens. (to be continued)