Immigration Article of the Day: The Citizenship Line: Rethinking Immigration Exceptionalism by Rachel E. Rosenbloom

The Citizenship Line: Rethinking Immigration Exceptionalismby Rachel E. Rosenbloom Northeastern University – School of Law 2013 Boston College Law Review, Forthcoming

Abstract: As immigration reform takes center stage, accompanied by calls for yet more increases in border and interior enforcement, a critical issue demands the attention of scholars and policymakers. It is not possible to police the movement of noncitizens without first determining who is and is not a citizen, and on a formal level the doctrinal framework of immigration law carves out special procedural protections for citizenship claims. Yet citizenship determinations occur deep inside an adjudication system that has been profoundly shaped by “immigration exceptionalism.” Thousands of U.S. citizens are swept up in immigration enforcement actions every year, and dozens of cases have come to light in which erroneous deportations of citizens can be traced to racial profiling in immigration enforcement and the reduced procedural protections afforded to noncitizens, manifested in summary proceedings, lengthy detention, and lack of access to counsel. Such cases compel us to reconceptualize citizenship as not just a status that precedes immigration enforcement but also one that is, in a functional sense, produced by such enforcement. This insight has important consequences for both theoretical understandings of citizenship and constitutional analysis of immigration enforcement. Drawing on historical and contemporary material, this Article proposes a new understanding of immigration exceptionalism, exploring its implications for the rights of both citizens and noncitizens and highlighting its central reliance on the notion that citizenship status can function as a threshold jurisdictional inquiry. Arguing that such reliance is misplaced, this Article sets forth a new vision for an immigration adjudication system that takes seriously the presence of U.S. citizens within it. Such an approach offers a new avenue for critiquing core features of contemporary immigration enforcement such as mandatory detention and fast-track removal procedures, calling into question not just the merits of this system but also its fundamental coherence.

KJ