Mexican Families & United States Immigration Reform
Trujillo, Bernard, Fordham Urban Law Journal
This essay argues that we should understand U.S. immigration policy as a series of bi-national relationships rather than as a single, user-indifferent interface. Applying this regulatory approach to Mexican labor migration (i) allows a more accurate definition of the migrating person in the context of the family he seeks to support; and (ii) highlights the United States' duty to provide for Mexican families.
Abstract Introduction I. Field Definition A. Bi-State Methodology B. Choosing Mexico C. Defining the Migrating Person II. If You Have the Facts, Argue the Facts III. If You Have the Law, Argue the Law Conclusion
"If you have the facts, argue the facts. If you have the law, argue the law." This old lawyers' adage captures the profile of current debates about reforming U.S. immigration policy. Well-intentioned people, some armed with the facts and others with the law, talk past each other. Advocates of strict enforcement finger well-worn copies of the statutes and color their opponents as scofflaws. Proponents of a comprehensive legal re-write brandish social and economic data and suggest that their antagonists are being fastidious about the ancillaries.
This essay suggests that immigration reform should correlate the law with the facts. Part I of this essay clarifies several elements necessary to define the field and initiate the analysis. The essay utilizes a bi-state approach to immigration. I will argue that U.S. immigration policy ultimately owes a duty to Mexican families.
Part II briefly reviews some of the data describing migration patterns, and Part III shows the lawful means of entry that the immigration system provides for migrants from the defined field. The essay concludes by summarizing some recommendations of how the U.S. may better regulate Mexican migration.
1. FIELD DEFINITION
It is important to first define, then to measure, and finally to regulate. Therefore, Part I offers a "field definition" for the phenomena the United States is trying to regulate. (1)
A. Bi-State Methodology
One general (and generally admired) characteristic of the law is its use- rindifference. No matter who violates the law or applies for its benefits, the law is the same for everyone. Immigration law, just like tax or criminal law, is no respecter of persons. Thus, U.S. immigration law is organized like any other domestic law; it provides benefits and burdens to all potential immigrants alike. (2)
Observations of migration to the United States, however, demonstrate that migrants always come from somewhere. Migrants do not drop out of the sky or appear mysteriously at points of entry. Every migrant to the United States comes from a certain sending country. These measurable patterns of sending provide crucial regulatory information. Ignoring the sending country as an explanatory variable yields a sad sort of policy solipsism.
United States immigration law is typically seen as an expression with two terms: a single receiver-country (the United States) interfacing simultaneously with applicants from a vector of 194 sender-countries. (3) It might be more useful, however, to re-imagine U.S. immigration as an expression containing 194 terms, each representing a bi-state relationship: (4) United States and Slovenia, United States and Togo, etc. Attempting such a series of pair-wise analyses would establish U.S. immigration regulation as an extension of U.S. diplomatic strategy generally.
When we re-imagine U.S. immigration policy as a series of bi-state analyses, new regulatory horizons open up. Particular expertise for immigration regulation would come less from the Department of Homeland Security (DHS), and more from the Department of State (DOS). The DHS is charged with the task of defending one homeland from many potential threats, ranging from terrorists to tornados. …