I come to this view because I believe that there is a fundamental difference between rights and benefits. Fiss's list constitutes benefits, not rights. Lawful presence in the country is an acceptable minimum criterion for such membership. On the other hand, the rights of illegal aliens deserve a different treatment. One's position on illegal immigration can and should be distinct from the position one takes on the rights of illegal immigrants.
Some rights have to be respected without regard to immigration status.
The right to due process of law and to judicial review fall in this category. Similarly, to borrow Fiss's principle of antisubjugation, illegal immigrants must be protected from acts that promote subjugation. This is especially true in the workplace, where lack of rights can result in private economic gains to unscrupulous employers. Workplace laws must apply to all workers, without regard to status. Without that protection, employers have additional incentives to hire and exploit illegal aliens.