The Citizenship Line: Rethinking Immigration Exceptionalism

IntroductionAs immigration enforcement continues its stunning expansion in the United States, individuals across a range of statuses-documented and undocumented, citizen and noncitizen-are increasingly feeling its effects.1 The substantive provisions of the Immigration and Nationality Act ("INA") apply only to "aliens," defined as those who are "not . . . citizen[s] or national[s] of the United States."2 It is impossible, however, to police the movement of noncitizens without first determining who is and is not a citizen. Scholars and advocates have long argued that immigration enforcement has widespread effects on U.S. citizens who are racially profiled as foreign.3 Yet scholarship is only just beginning to consider the nature of citizenship determinations and their implication for our understanding of immigration enforcement as a whole.4This Article argues that acknowledging the presence of U.S. citizens within the immigration enforcement system calls into question some basic tenets of the U.S. Supreme Court's immigration jurisprudence. A person who claims, but has not yet established, citizenship stands on the divide not only between two divergent outcomes (the right to remain versus the potential to be deported), but also between two different conceptions of procedural justice. Case law, statutes, and regulations grant more robust due process protections to citizenship claims than to other claims that arise within the removal process.5 This distinction exemplifies a larger divide that relegates noncitizens to a constitutional netherworld with regard to immigration enforcement procedures. Yet a closer look at the experiences of U.S. citizens within this system, both past and present, reveals the elusiveness of a clear boundary between noncitizens and citizens. The relaxed procedural norms of immigration law have shown a tendency to migrate into the treatment of citizenship determinations.6 So have the racial fault lines of immigration law: known cases in which U.S. citizens have been detained and deported tend to reflect the immigration enforcement priorities of the day, with the majority of early cases involving Chinese Americans and the majority of contemporary cases involving Latinos, particularly Mexican Americans.7Although most citizenship claims are easily documented, there remain many U.S. citizens who have a tenuous evidentiary hold on their status.8 Citizenship determinations occur in many forms, from an officer's snap judgment about whom to question to prolonged litigation before agency adjudicators and courts. In some contexts, such as passport control at an airport, a citizenship determination may be routine and unremarkable. Yet a person taken into custody in a workplace raid or upon release from the county jail may have no ready means of proving citizenship. There are many examples-stretching from the late nineteenth century to the present day-of cases in which U.S. citizens have had to wage protracted battles to prove their citizenship, or have been deported prior to being able to do so. The case law is filled with unrecorded births and birth certificates whose authenticity is questioned.9 Citizenship claims based on descent often require would-be citizens to prove not only their parents' or grandparents' places of birth, but also that the relatives spent the requisite amount of time in the United States to convey citizenship to a child.10 In some cases, valid documentation of citizenship is readily available but never enters the official record due to the summary nature of immigration proceedings, the inherently coercive effects of detention, and the lack of legal representation for detainees.11Incidents in which U.S. citizens have been subject to deportation or prolonged detention are often characterized as mistakes or outliers.12 I argue that rather than relegating such incidents to the margins, we should recognize the extent to which they are woven into the fabric of immigration enforcement. …