New Immigration Articles from SSRN

Kerry Abrams (Virginia) “Immigration Law and the Regulation of Marriage”. This Article (here) argues that much of federal immigration law functions as a form of family law. Although the conventional wisdom holds that family law is state law, federal immigration law actually regulates marriages that involve immigrants much more extensively than state family does, often unintentionally. This Article maps the architecture of federal immigration law regulation through the four stages of marriage: courtship, entry into marriage, the intact marriage, and exit from marriage through divorce. It shows how laws that appear at first glance to effectuate immigration policy – including the immigration provisions of the Violence Against Women Act, the requirement that citizen spouses sign an affidavit of support in order to sponsor their immigrant spouses, and immigration laws prohibiting marriage fraud – all regulate the creation and dissolution of legally recognized family relationships, and/or determine the legal rights and responsibilities of family members, in other words, function as family law. It then offers ways of analyzing whether Congress is acting within its immigration power when it passes laws that regulate the family.

Hiroshi Motomura (North Carolina) “We Asked for Workers, But Families Came: Time, Law, and the Family in Immigration and Citizenship” This Article (here) is based on two key ideas. First, the family adds the dimension of time to immigration and citizenship law. It does so, for example, through jus soli citizenship for the children of immigrants and discretionary relief from removal, which combine to allow noncitizens over time to establish family-based ties to the United States that immigration law then recognizes. But establishing that the family matters in immigration and citizenship – and therefore that time matters – only begins the inquiry. The next question is how time matters. The prevailing sense of time in current law is largely retrospective, as a way of recognizing ties in the United States. It is important, the Article argues, also to think of time prospectively. Doing so would prompt a subtle but significant shift occurs in the role of the family, away from mere recognition and toward a more instrumental view of the family in immigration and citizenship. The family would become not only an object of integration, but a means of integration. This would mean making sure that immigration and citizenship law promotes the immigrant family, for example by allowing immigrant families to stay together. Only then can families realize their potential to foster the integration of immigrants.

KJ