Choosing immigrants, making citizens.

• Author: Motomura, Hiroshi

INTRODUCTION I. A CLOSER LOOK AT SECOND-ORDER STRUCTURE A. Defining Ex Ante and Ex Post Screening B. The Problem of Country-Specific Investments C. The Constitution, the Undocumented, and Ex Post Screening II. FRAMES OF REFERENCE CONCLUSION INTRODUCTION

In immigration law as in other areas of legal scholarship, it is hard enough to find answers, but it is even harder and more important to pose the right questions and to understand the assumptions and frames of reference that define the field. For immigration law in particular, one of the basic choices is whether to adopt the traditional definition--as addressing whether noncitizens are allowed to enter and stay--or to embrace a broader range of questions about immigrants' rights, citizenship, and the integration of immigrants.

With the definition of the field up for grabs, the contributions of legal scholars are especially valuable if they not only search more deeply for answers to fundamental questions of law and policy, but also prompt us to consider why the questions matter in the first place. The Second-Order Structure of Immigration Law (1) by Professors Adam Cox and Eric Posner does both, the first quite explicitly but the second only obliquely. This Essay fills out the picture painted partially by Second-Order Structure, with a particular effort to identify its unstated assumptions, to examine those assumptions, and to explain why they make a difference.

Drawing on models of contracting and asymmetric information in the economics literature, and likening a country picking immigrants to an employer picking employees, (2) Second-Order Structure explains how questions of immigration law may concern "first-order" or "second-order" structure. First-order structure typically has three dimensions: the number of immigrants, the type of immigrants, and their terms of admission. (3) This poses the central second-order challenge: how to screen in only those applicants who satisfy the criteria derived from the first-order decisions. (4) For example, given a first-order preference for immigrants who will be law-abiding in the United States, how do we screen for this? (5) Second-Order Structure tells us that this requires a second-order decision: whether to screen immigrants on the basis of criteria known before arrival, or after they have lived in the host country for a period of time. A basic choice is thus posed between "ex ante" and "ex post" screening of immigrants.

Second-Order Structure explains that ex post screening has one big advantage: more information is available when immigrants are chosen. (6) But it issues a caution: not knowing if they will pass the host country's ex post screening, immigrants will hesitate to make "country-specific investments." Apparently agnostic on whether ex ante or ex post screening is inherently superior, Second-Order Structure observes: "The choice between the two systems turns in part on tradeoffs among these variables." (7)

To preview this Essay's main points, Second-Order Structure provides an illuminating structure for understanding immigration law choices, but its lessons apply more readily to some choices than others. Though it only obliquely addresses the limits of its own analysis, it happens to offer a rich opportunity--through an inquiry into those limits--to appreciate two ways in which immigration law necessarily implicates immigrants' rights, citizenship, and the integration of immigrants. First, immigration law affects a wide range of people from the undocumented to lawful nonimmigrants to permanent residents to naturalized citizens, who move over time from one status to another. From this first point follows a second: immigration law poses a basic choice between two frames of reference--one that focuses on the acquisition of lawful status, and the other on the acquisition of citizenship.

Part I of this Essay explores how Second-Order Structure analyzes three core topics. These are: (A) deportation as the mechanism for ex post screening; (B) the concept of country-specific investments; and (C) underenforcement of immigration laws in the United States. These analyses uncover the full spectrum of status and time in immigration and citizenship, but they also show that Second-Order Structure, even when it seems to address the full spectrum, persuasively addresses only part of it. The analyses of deportation and country-specific investments in Second-Order Structure seem to address the choice between ex ante and ex post screening as a general matter. However, they apply much more convincingly to undocumented immigrants, and much less so to noncitizens who are lawfully in the United States. The analysis of the underenforcement of immigration laws is expressly limited to the undocumented in a way that confirms the unstated limits on the first two analyses. Part II of this Essay addresses more fully the spectrum of status and time and how this spectrum poses a basic choice between choosing immigrants and making citizens as alternative frames of reference. Part II explains how Second-Order Structure adopts choosing immigrants as its frame of reference, and how this frame limits the application of some of its central arguments.

1. A CLOSER LOOK AT SECOND-ORDER STRUCTURE

   1. Defining Ex Ante and Ex Post Screening

      Ex ante screening, Second-Order Structure tells us, is a decision "whether to accept a particular immigrant on the basis of pre-entry information, such as the immigrant's race or her educational achievement in her home country." (8) In U.S. immigration law, these decisions are reflected in the admission categories and inadmissibility grounds in the federal Immigration and Nationality Act (INA). (9)

      A noncitizen seeking lawful admission to the United States generally must clear two hurdles. First, she must qualify under a nonimmigrant or immigrant category. A nonimmigrant is admitted for a limited duration and purpose, for example to study at a certain school (10) or to work in a certain job. (11) An immigrant may be admitted for an indefinite stay in a status known as "lawful permanent resident." (12) There are immigrant admission categories based on family ties, (13) skills and employment, (14) protection as a refugee, asylee, or other forced migrant, (15) and a lottery. (16) A noncitizen who wants to become a U.S. citizen must generally become a permanent resident first. Then, after a waiting period--generally five years--and satisfying other requirements, she may become a citizen through naturalization. (17)

      Second, however, a noncitizen who qualifies under an immigrant or nonimmigrant category may not be admitted if an inadmissibility ground applies to her. For example, marriage to a U.S. citizen initially qualifies a noncitizen for admission, (18) but she will be inadmissible if she has committed two crimes other than political offenses. (19) In that case, admission requires a discretionary waiver. (20) There are inadmissibility grounds based on national security, (21) lack of financial support, (22) and immigration law violations, to name just a few. (23) In short, lawful admission to the United States is controlled by positive and negative criteria that combine to define a system of ex ante screening. (24)

      Second-Order Structure tells us that ex post screening works to "select[] immigrants on the basis of post-entry information, such as her avoidance of criminal activity or unemployment in the host country." (25) This definition seems intuitive, but Second-Order Structure applies it to U.S. immigration law in a curious and revealing way by focusing on deportation instead of acquisition of a lawful status such as permanent residence or citizenship. (26) Part of its deportation-focused discussion of ex post screening addresses removal procedures, which range from a summary inquiry by a single immigration officer at a port of entry to a full trial-type proceeding before an immigration judge followed by some administrative and judicial review. (27) The rest of the discussion of ex post screening in Second-Order Structure addresses the statutes defining deportable noncitizens. (28) These strong associations of ex ante screening with the border and ex post with deportation permeate the discussion. For example, "the ex ante system depends on the ability to control the border; the ex post system depends on the ability to detect noncitizens in the host country' s territory." (29)

      For undocumented immigrants in the United States, Second-Order Structure correctly assumes that because they foiled the ex ante screening system, deportation is the mechanism for ex post screening. Their unlawful presence alone...