Immigration Law, Contracts, and Due Process: a Response to Professor Won Kidane's Review of Everyday Law for Immigrants

• Publication year: 2011

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

RESPONSE

Immigration Law, Contracts, and Due Process: A Response to Professor Won Kidane's Review of Everyday Law for Immigrants

Victor C. Romero(fn*)

Professor Won Kidane has done me a great honor by reviewing Everyday Law for Immigrants.(fn1) Authors pray their work is not ignored; they can only dream that colleagues will take it seriously. From that viewpoint, Professor Kidane has blessed me twice. The Seattle University Law Review has also graciously allowed me an opportunity to respond to his thoughtful critique. That Professor Kidane found seeds for scholarly discourse within a book intended primarily for nonacademics is a testament to his comprehensive understanding of U.S. immigration law and how it functions on the ground.

This brief response will focus on two interrelated themes that arise out of the "immigration as contract" motif. First, I examine Professor Kidane's claim that current U.S. immigration policy operates more like a unilateral or adhesion contract than a bilateral one. Second, I explore the notion that due process is at risk when one views immigration policy through a contract prism.

While acknowledging its usefulness as an explanatory frame for lay readers, Professor Kidane correctly recognizes that my "immigration as contract" analogy lacks nuance. Indeed, Professor Hiroshi Motomura has identified at least two other ways of thinking about U.S. immigration policy that find a basis in our history-"immigration as affiliation" and "immigration as transition."(fn2) Nevertheless, Professor Kidane evaluates the "immigration as contract" analogy on its own terms and questions whether it is an accurate description of U.S. immigration policy.

Professor Kidane and I agree that U.S. immigration policy-the law governing the terms of entry, stay, and expulsion of noncitizens-has a contractual flavor to it. Congress, on behalf of the American people, sets forth contractual terms. Noncitizens, whether coming as immigrants or temporary visitors, must either abide by those terms or leave.

Delving further, Professor Kidane asks whether the reality of how immigration policy operates belies an assumption that the contract was bargained for between parties with roughly equivalent power. Invoking contract language, Professor Kidane asks whether this immigration contract is truly bilateral, or whether in practice, it operates more like a unilateral adhesion contract with Congress taking advantage of a vulnerable group of foreign nationals. Current constitutional jurisprudence supports the latter view in the guise of Congress's plenary power over immigration policy.

Because of the plenary power doctrine, the Supreme Court has largely ceded power to Congress to fashion what amounts to a one-sided contract, imposing upon noncitizens terms that our Constitution would not tolerate if applied to U.S. citizens. One need look no further than the Chinese Exclusion Act case of Chae Chan Ping v. United States(fn3) or the Red Scare narrative behind Shaughnessy v. United States ex rel. Mezei(fn4) before concluding that race and political ideology, while no longer permissible grounds of discrimination in our post-Brown v. Board of Education(fn5) society, remain...