Constructing America: mythmaking in U.S. immigration courts.

• Author: Mendelson, Margot K.

NOTE CONTENTS INTRODUCTION I. EARLY COMPREHENSIVE IMMIGRATION LAWS: PREREQUISITES AND QUOTAS A. National Origins Quotas: Defining the Future by Imagining the Past B. Racial Prerequisite Laws: Performing America II. ERA OF REFORM AND THE PERSISTENCE OF MYTHMAKING A. "The Progress Narrative": Reform and the Immigration Acts of 1952 and 1965 B. Continuing Mythmaking: Linking the Past and the Present C. Cancellation of Removal: Exemption from Deportation 1. "Administrative Grace" and Shrinking Appellate Jurisdiction 2. Cancellation of Removal in Action a. Pro Se Materials b. Appellate Briefs c. Judicial Decisions 3. Nostalgia and Reinvention a. Nostalgia for a Time Past b. Reinventing History 4. Threads of Continuity: Myth Construction and Immigration Law CONCLUSION INTRODUCTION

In no other realm of our national life are we so hampered and stultified by the dead hand of the past, as we are in this field of immigration. --Harry S. Truman (1)

On May 4, 2001, the Board of Immigration Appeals (BIA) affirmed an immigration judge's decision to deny Javier Monreal-Aguinaga cancellation of removal. (2) The thirty-four year old Mexican national had entered the country at the age of fourteen, married his wife, and was raising his three young U.S. citizen children in Texas. (3) After government officials identified him and placed him in deportation proceedings, Mr. Monreal-Aguinaga applied for relief from deportation under the cancellation of removal provisions of the Immigration and Naturalization Act. (4) Although Mr. Monreal-Aguinaga successfully demonstrated his good moral character and continuous physical presence in the United States, the Board of Immigration Appeals denied his appeal on the grounds that he had not proven that his legal permanent resident and U.S. citizen relatives would suffer the requisite "hardship" if he were deported to his native Mexico. (5)

In an impassioned dissent from the majority's holding, BIA member Lory Diana Rosenberg painted a portrait of the Monreal-Aguinagas as a happy, close-knit "American family," undeserving of the trauma of deportation and separation that denying immigration relief would cause. (6) Speculating on the "extraordinary nature of the ties that the children [would] be forced to sever," Rosenberg insisted that her colleagues had failed to recognize something essential about the family they were poised to disassemble: the family spoke English, the children attended local schools, they maintained no ties to their father's homeland. (7) Indeed, the Monreal-Aguinaga children "very likely lit sparklers on the Fourth of July, marched in the Columbus Day parade, and cheered as loudly as any other American during the World Series." (8) The court's holding, Rosenberg insisted, "completely ignores the fact that these children are Americans." (9)

The argument and the family portrait that accompanies it are clear: this family, on the brink of deportation, should be spared because it is an American family. Whatever condemnation is due undocumented immigrants and whatever fate the law imposes upon them as a consequence of their illegality, the Monreal-Aguinagas should be exempt-at least in part because of their Columbus Day marching and World Series cheering.

Rosenberg's voice is a dissenting one, of course, but her reasoning sheds light on the broader way in which American identity is articulated, performed, and evaluated in immigration courts. Contemporary legal guides and pro se manuals for immigrants in deportation proceedings consistently instruct them to demonstrate that they own their homes, attend church, and volunteer in their communities. (10) Appellate briefs describe applicants for cancellation of removal as hard working, dutiful, pious, faithful, and unwaveringly committed to their nuclear families. (11) Indeed, decisions issued by the BIA and courts of appeals overwhelmingly reflect the same values. When granting relief from deportation, judges heap praise upon immigrants for working seven days a week and marrying their high school sweethearts. Court decisions wax poetic about immigrants who attend church every Sunday, coach local little league teams, and raise their children speaking English. (12) These values and lifestyles are understood to be quintessentially American, and it is by proving one's American credentials that one may be exempted from imminent deportation. By granting and denying inclusion into the American polity on this basis, the legal process rewards immigrants who express their conformity to narrow and nostalgia-tinged ideas about what it means to be American. In so doing, the law perpetuates myths about the nature of America and American identity.

By looking at the historical structures and functions of U.S. immigration law, this Note sheds light on the way in which immigrants are called upon to express their allegiance to traditional values, gender roles, and family structures that are both implicitly and explicitly defined as "American." I argue that immigration courts function as a forum for the production and performance of American identity narratives and that this process of myth construction has deep roots in American legal history. Although the structure and language of American immigration and naturalization law have changed considerably since the early twentieth century when comprehensive national immigration policy first emerged, the legal process governing immigration has long expressed and fortified national identity myths. The subtle role that deportation laws play in generating ideas of "Americanness" today is part of a broader and longer trend in which immigration courts operate as tools for defining and policing the nation's ideals.

Part I examines the emergence of comprehensive immigration laws and argues that the early laws powerfully expressed romanticized notions of American history and identity. The two main pillars of immigration law--national origins quotas and racial prerequisites--articulated and enforced images of an exaggeratedly homogenous and hierarchical nation. The quota laws based immigration quotas on racial data from past decades--explicitly aiming to maintain the racial composition of the past as it was imagined and defined by census-takers and legislators. Racial prerequisite laws grounded eligibility for citizenship in determinations of race. In so doing, these laws created a public forum in which individuals could demonstrate their conformity to white American values and ideals in order to "earn" their citizenship. Together, by directly controlling the population and publicly articulating national identity myths, these laws formed a framework through which America's history and identity have been negotiated, expressed, and substantiated.

Part II considers the legacy of those laws and the subtle ways in which immigration law continues to perpetuate American identity narratives. The revocation of quotas and prerequisites was intended to signify the end of racialized and value-laden immigration laws. Proponents of the immigration reforms of 1952 and, particularly, those of 1965 claimed that the new laws would replace cultural hegemony and ethnocentrism with a veritable celebration of diversity. This Part argues that the progress narrative advanced in dominant scholarship overemphasizes the impact of mid-century immigration reform. In spite of dramatic legal restructuring and the sweeping claims of reformers, immigration courts continue to express and substantiate hierarchical and exclusionary myths about American identity. As evidence, I focus on immigrants who are on the brink of divesture from the polity and explore the conditions under which they are relieved from deportation and granted legal identity as Americans. Examining a subset of cases called cancellation of removal claims, I argue that, although the statutes are less explicit than those of the past, immigrants still must act out their conformity to antiquated notions of America. Through complex proxies and ongoing jurisdiction stripping, immigration law continues to actively produce and substantiate narratives of exclusion, privilege, and cultural hegemony.

The implications of this legal phenomenon span from individual to cultural. At one level, the process stifles and coerces the immigrants who come before the courts. It imposes upon vulnerable and legally marginalized individuals the burden of performing a collective fantasy. Immigrants who occupy the most precarious legal- and indeed physical- space are compelled to act out the nation's imagined identity at the cost of communicating their own motives, values, and identities. These legal processes constitute what Jerry Mashaw has called an "insult[] to authenticity": they "falsify our experience, and ... challenge our conceptions of ourselves as autonomous moral agents." (13) The complex stories of historically underrepresented communities are reduced into relative caricatures as they are inscribed into the public record.

The homogeneity of stories and voices presented in the immigration legal forum furthermore raises concerns about the transparency and integrity of the statutory law. Legal realists have long decried the failure of the law to candidly articulate its criteria. (14) This critique has particular salience with respect to cancellation of removal, in which the narrow script that successful applicants rehearse contrasts sharply with the broad and apparently neutral language of the statute. Arguably, performances of a caricatured, 1950s-style Americana have come to substitute for the "good moral character" and "hardship" requirements set forth in the doctrine. Pro se guides, court transcripts, and appellate briefs reveal detailed criteria nowhere to be found in congressionally authorized statutes or regulations. Rather than setting forth and abiding by transparent criteria, the law operates through winks and nods.

Even still, this process does more than undermine the...