Immigration Law as Contract Law Everyday Law for Immigrants. by Victor C. Romero. Boulder: Paradigm Publishers, 2009. Pp. 160. $24.95

• Publication year: 2011

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 34, No. 3SPRING 2011

BOOK REVIEW

Immigration Law as Contract Law Everyday Law for Immigrants. By Victor C. Romero. Boulder: Paradigm Publishers, 2009. Pp. 160. $24.95.

Review by Won Kidane(fn*)

I. Introduction

Described by leading scholars as intricate,(fn1) "hopelessly convo-luted,"(fn2) "byzantine,"(fn3) or even a "hideous creature,"(fn4) immigration law is a conundrum of a sort-very difficult to teach to law students, let alone explain to the ordinary migrant new to the American legal system. A learned judge described the difficulty associated with immigration law, stating, "Whatever guidance the regulations furnish to those cognoscenti familiar with [immigration] procedures, this court, despite many years of legal experience, finds that they yield up meaning only grudgingly and that morsels of comprehension must be pried from mollusks of jargon."(fn5) In his book, Everyday Law for Immigrants, Professor Victor Romero breaks this "hideous creature" down into its most basic cells with astounding efficiency and care to provide the ordinary person with the essentials of how immigration status is acquired, maintained, and lost.

The book is quite remarkable. It not only presents complex materials in plain and understandable language, but also employs a creative analogy between immigration law and contracts to help the reader gain a better understanding of immigration law. Throughout the book, Professor Romero masterfully demonstrates, for the benefit of those who make and interpret the law, the needlessness of immigration law's complexity. As such, it is an extraordinary success in simplifying complex materials in the tradition of the Everyday Law Series-as attested to by the editors of the series, Professors Richard Delgado and Jean Stefancic(fn6)-and in guiding the efforts of lawmakers and the judiciary to simplify the puzzle that is immigration law.(fn7) This Review examines the fundamental assumptions, theories, approaches, and contents of each section of Professor Romero's book to demonstrate how he effectively simplifies immigration law; a few humble critiques and suggestions are offered along the way.

II. The Theoretical and Constitutional Underpinnings of Immigration Law and Professor Romero's Contractarian Paradigm

Professor Romero's primary approach is the use of contract theory to explain the theoretical and constitutional underpinnings of immigration law. He tells his readers that "[a]lthough it is tempting to think of immigration law as primarily involving human rights (especially when we consider the protections afforded refugees), it is perhaps more accurate to view it as a form of contract law between the United States and the foreigner."(fn8) He explains that the "United States grants the noncitizen the privilege to enter the country for some specific purpose and amount of time, and, in exchange, the noncitizen promises to abide by the terms the country sets forth. Should the noncitizen breach his promise, he must leave the United States."(fn9) This is a remarkable way of simplifying the complex equation for the ordinary migrant.

Professor Romero simplifies immigration law better than perhaps anyone who has attempted it before. When a party thinks about entering a contract, the party first wonders what her side of the bargain will be. Professor Romero helps migrants understand and appreciate this aspect of the immigration "contract." This approach is pragmatic and exceedingly helpful for the ordinary migrant. Perhaps the second topic a party to a contract will think about is the fairness of the contract terms.

The question of fairness has a universal character, and as such, each migrant, regardless of cultural background, will be concerned with the fairness of the contract that he gets into. Although a substantial portion of Professor Romero's body of academic writing, including his recent and excellent book Alienated,(fn10) is devoted to the inquiry of fairness from different perspectives, in the interest of simplicity and brevity, he does not import those discussions to this book. For a person who is not familiar with Professor Romero's rich body of work,(fn11) his equating immigration law with contract law might appear as if he is either ignoring the issue of contract fairness or subscribing to the assumption that contracts are intrinsically fair so long as they are freely entered into. The latter school of thought assumes that a contract simply consists of keeping one's promises regardless of their nature.(fn12) According to this theory, a contract by its very nature is fair.(fn13) A more acceptable approach, however, would look at the fairness of the terms before, during, and after the conclusion of the agreement, as well as the bargaining powers of the parties involved. Supporters of the latter view even suggest that contract law is basically a part of tort law because an agreement to injurious terms should not exonerate the party who causes the injury.(fn14)

In an excellent piece published in the Harvard Civil Rights-Civil Liberties Law Review, Professor Romero himself advocates for an analogy between state tort law and immigration law. He notes that "immigration theorists can learn from states that have abandoned the traditional premises liability classifications in favor of a unitary 'reasonable person' tort law standard. This abandonment reflects the belief that the traditional premises liability classifications dehumanize the injured party."(fn15)

Professor Romero suggests that the fairness of terms must be measured with objective and independent criteria regardless of the status of the individual.(fn16) Although it is perhaps difficult to perceive his fairness point of view in the book under review, readers of this book should note that Professor Romero is highly sensitive to the issue of fairness of contracts, and omission of its discussion is obviously due to the need for brevity and simplicity in creating a work that is accessible for the average reader. Fortunately, the last chapter of the book itself provides a list of excellent resources for further reference.

III. The Contracts Paradigm and Substantive and Procedural Due Process

Consider next the substantive and procedural due process aspects of Professor Romero's contracts analogy.

A. Substantive Due Process

Professor Romero indicates that Congress, as the representative of the American people, writes the terms of the immigration contract. He cites numerous examples to substantiate his contract theory. Two examples are worth evaluating. First, he notes that in the immigration setting, the courts have given Congress unreviewable discretion-under the "plenary power" doctrine-beginning with the Chinese Exclusion Case in 1889.(fn17) The plenary power doctrine, according to Professor Romero, is additional evidence of immigration law as contract.(fn18) He suggests that because Congress has unreviewable discretion, thus distinguishing immigration law from human rights law, migrants should not be disappointed with unfair terms. It might be noted, however, that this phenomenon may actually distinguish immigration law from contract law because in contract law, courts often provide a remedy for grossly unfair terms predicated on principles of law and equity, including reasonable expectations, undue influence, unconscionability, mistake, and impossibility. None of these principles of law or equity apply in immigration law under the plenary power doctrine.

That said, the contract analogy would make perfect sense under the notion of contracts that existed at about the same time as the Chinese Exclusion Case, which could rightly be classified as the "Lochner era."(fn19) Several Supreme Court decisions in that era, including United States v. E.C. Knight Co (1895),(fn20) Smyth v. Ames ...