I. WHAT IS UNITED STATES CITIZENSHIP?
T.H. Marshall, in the mid-twentieth century, “offer[ed] an enduring summary of the three elements that make up citizenship. . . . [A] civil element, made up of individual freedoms; the political element, entailing participation in government; and a social element, requiring an equitable distribution of goods.”1 Daniel Webster defined a citizen of the United States as being “a person, native or naturalized, who has the privilege of exercising the elective franchise, and of purchasing and holding real estate.”2
A web page geared toward secondary school students answered the citizenship question this way: “A citizen is a person who is a member of our country. As a citizen, you give your loyalty to the U.S. government. In return, the government protects you and all your rights granted in the Bill of Rights and the Constitution.”3
The Constitution’s Citizenship Clause states, “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”4 The Citizenship Clause, defining who is entitled to the rights specified by the Fourteenth Amendment’s Privileges and Immunities Clause,5 did not identify a “precise definition” of those rights until after the Civil War.6
A measure of at least the original meaning of citizenship could be made by examining immigration history, especially in light of the fact that those immigrating to the United States become naturalized citizens in great numbers.7 Generally, the early years of the Republic offered a relatively open reception to new settlers when, especially in advance of the Civil War, prosperity demanded population expansion.8 By the 1870s, though, economic pressures and growing racial animus promoted resentment against immigrants, particularly the Chinese, based on perceptions that they were depriving employment to those already settled.9 Thus began both a nativist reaction among the early settlers, primarily Europeans, fearful of an invasion from other parts of the world,10 and efforts to restrict new immigrants, beginning with the Chinese Exclusion Acts of the 1880s.11
Entwined in this history was, of course, the complex reality of slavery, the Civil War, Reconstruction, the legacy of xenophobia, and decades-long attempts by former slaves to attain full citizenship rights.12 I ask about the meaning of U.S. citizenship because the answers affect my analysis of the following conundrum: I came upon this study when scrutinizing a provision in the Immigration Act of 1990, wherein Congress created a mechanism to grant permanent resident status to undocumented unaccompanied minors arriving in this country seeking refuge from parents who were unavailable to care for and protect them. Before the Act, “undocumented children in state care routinely found themselves in an immigration predicament. They remained in state care until their majority, and then found themselves turned out to face the world without legal immigration status [essentially stateless] and all its associated benefits.”13
Finally, in 1990, Congress provided immigration relief for undocumented children who are dependent on juvenile courts for their protection.14 The Immigration Act of 1990 created a status known as Special Immigrant Juvenile Status (SIJS), protecting children by according them legal permanent residency (LPR)15 through a process that begins after they receive a declaration from a juvenile court ruling that they were subject to abuse, abandonment, or neglect by their parents, causing reunification with them not to be viable; that it would not be in the child’s best interests to be returned to her home country.16 A 1997 amendment addressed perceptions that some parents might be relinquishing their parental rights so that their children could apply for SIJS.17
In 2008, the Act was amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA), allowing SIJS even when “reunification with [one] or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law.”18 These amendments also offered additional protection for the thousands of unaccompanied minors entering the United States by expanding legal protections and access to services.19
Like most other LPRs, after maintaining this status for five years, the law permits SIJS-holders to naturalize and become United States citizens (USCs).20 It is at this time that the law presents a conundrum for those with SIJS: Once they become citizens and reach twenty-one years of age, one would have assumed that, as with others who naturalize, they could apply to reunite with their parents (or at least the parent who did not abuse them, if that were the case) by filing an application to have them immigrate.21 However, since the Act’s enactment in 1990, subsection (J)(iii)(II) has provided that these children’s parents cannot use their status to “be accorded any right, privilege, or status under this Act.”22 Notwithstanding a 2008 amendment easing the proof requirement causing abuse of only one parent to suffice, the initial 1990 provision preventing Special Immigrant Juveniles (SIJ or SIJs) from ever using their status to bestow immigration benefits on their parents was neither addressed nor altered; it remains the case even if, as is commonplace, the parental rights were never formally terminated.23 This provision remains the law today, even if one parent was completely innocent of abuse, or even if an innocent parent was also a victim of the other parent’s abuse.24
It is unknown why Congress failed to make a corresponding change in the SIJS law when it enacted the provision requiring only one parent’s abuse.25 Why did the 2008 TVPRA not amend subsection (a)(27)(J)(iii)(II) to reflect the change in parental proof requirements? Was there a political compromise, made in the final hours of the legislative session?26 An oversight?27 A desire to make SIJS so unattractive that only the most desperate would apply?28 It could not have derived from an effort to deter parental abuse, as the prohibition applies to both parents of those granted SIJS, regardless of whether the abuse stemmed from only one of them.
A review of the legislative history of the SIJS provision of the Immigration and Naturalization Act (the Act or INA)29 leads to the necessary inference that the goal of section (J)(iii)(II) was simply to ban the abusing parent from receiving immigration benefits through the child’s SIJS classification;30 when the subsection was enacted in 1990, it included both parents. While it has not encompassed both since 2008, the law was not amended to reflect the change.
A. The Problem
For those neither born in the United States, expressed in the Latin phrase jus soli, or “law of the soil,”31 nor who acquired or derived U.S. citizenship through operation of law,32 the way to become a citizen, as specified in the Constitution, is through naturalization: “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”33 Nowhere does the Constitution say that naturalized citizens’ rights can be abridged vis-à-vis native born citizens; nowhere does the Constitution say that naturalized citizens possess fewer rights than those born in the United States. To be sure, any USC, regardless of how citizenship was attained, can suffer deprivations of certain citizenship rights, such as losing the right to vote or to serve on juries following conviction of certain crimes.34 All other restrictions, beyond those identified in the Constitution—requiring both the President and Vice President to be “natural-born citizens”35—are baseless and violate the Constitution.
Curiously, the SIJS law establishes a two-tiered system of citizenship when it provides, in section 1101(a)(27)(J)(iii)(II), that “no natural parent . . . of any alien provided special immigrant status under this subparagraph shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this [Act].”36 Thus, naturalized SIJs are the only naturalized citizens who may not sponsor their parents’ immigration. In the end, what the Act offers these children with one hand (protection in the United States), it takes away with the other, when it prohibits them from reuniting with their innocent parent. For a myriad of reasons, this consequence is both unwarranted and irrational.
It is troubling that there is no rationale for the continuation of the prohibition against a naturalized SIJ sponsoring a non-abusing parent. There is no evidence that the bill was rushed and thus drafted in error: the text of the SIJS section when it was introduced in the House compared with that which became law in December 2008 remained unchanged. Moreover, an amendment to the TVPRA was introduced in 2007 and, while it soon failed, its SIJS-related text was identical to that in the eventual 2008 enactment. Clearly, the SIJS amendments were drafted long before the 2008 bill passed.37
In any event, the 2008 SIJ amendment, which eased the proof requirements regarding parental abuse, will cause that child, once naturalized, to live in a perpetual state of second class citizenship, with her rights to petition for the immigration of her non-abusing parent forever foreclosed. This is not only illogical,38 but also constitutionally unacceptable. Either a Technical Corrections Amendment should address this deficiency or the provision should be challenged judicially.
In attempting to seek answers to the questions concerning these SIJ restrictions by examining the history and theories of naturalization and citizenship, I realized my naïveté of the plethora of historic gradations of United States citizenship. True, at least “on paper,” naturalized and “natural-born” citizens have possessed the same rights, except in the limited situations in which the Constitution makes distinctions.39 Nonetheless, vast is the extent of both historical and contemporary distinctions among citizens who are deprived of “full” citizenship rights; “millions of Americans lose some of their citizenship rights every day.”40 Deprivations have affected, and to some extent continue to affect, convicted felons,41 children, women,42 nonwhites,43 and the disabled—particularly those with intellectual disabilities. In addition, others suffer the curtailment of social rights, such as violations of laws regulating minimum wage or the right to unionize.44
Digesting these disparities caused me to consider further the historical and current understanding of naturalization in the United States. What are its roots? How did it develop? What, truly, are the rights of current United States citizens? How have these changed throughout history? If the consequences of naturalization have evolved since colonial times, how has that evolution been drawn? Have consequences diminished? Expanded? Finally, notwithstanding the answers to these questions, is it fair, or constitutional, to treat citizens and naturalized citizens differently, or some naturalized citizens differently than others? Part II reviews the historical record, from the British roots through the post-World War II era, to gain an understanding of the meaning of citizenship, naturalization, and opposition thereto, and to ascertain whether there is a basis for creating multiple tiers of citizenship. Part III examines the impact of discrimination against various sub-groups of society on citizenship, with a lens into the constitutional basis, or lack thereof, of subsection (a)(27)(J)(iii)(II). Part IV concludes that Congress’s naturalization power over America’s singular class of citizenship does not reach to prevent a naturalized citizen from reuniting with her parent. It is an unlawful class-based distinction within the singular class to which belong all United States citizens.
In U.S. law today, there is but a single class of U.S. citizen. As there is no legal distinction between native-born and naturalized citizens,45 those naturalized are entitled to the same citizenship rights as those born in this country—except, that is, naturalized SIJs.46 This Article will appraise historical occasions in which citizens were not treated equally, treatment that was ultimately acknowledged to be anathema to U.S. citizenship.47 This same correction, made vis-à-vis the rights of women, racial minorities, and rights of the intellectually disabled, is warranted for naturalized SIJs.
II. NATURALIZED U.S. CITIZENSHIP IN HISTORICAL PERSPECTIVE
A historical review of the notions of naturalized U.S. citizenship reveals that the concept of a single class of citizenship derived from Britain and persisted through late nineteenth century America. Without a doubt, the new Americans in what would become the United States “drew heavily upon the accumulated traditions of English law in articulating new ideas of citizenship . . . .”48 Dating to 1368, English law held that those born within the boundaries of royal lands were subjects of the king.49 English jurists, though, did not hew solely to the theory of jus soli, that place of birth determined one’s status; those born outside royal territory were not necessarily considered outside royal control. In addition to place of birth, descent or ancestry “could also determine who was a ‘natural-born subject’ with an inherent claim to the rights of an Englishman.”50
The doctrine of nationality also has its roots in the fourteenth century, with an emphasis on the personal nature of the relationship between subjects and the king. Within those relationships there was a gradation of rank, with each rank carrying varying rights and privileges or lack thereof.51 Naturalization followed a piecemeal practice of removing disabilities and granting increasing privileges.52 By the seventeenth century, England had established procedures to incorporate newcomers into its community, ranging from parliamentary acts of naturalization to royal patents of denization.53 A series of English cases as far back as the mid-1600s established the principle of “fundamental equality of status and rights among naturalized and native-born subjects.”54 The very term naturalization “led to the conclusion that the alien must be considered reborn as a natural subject.”55 Likewise, from close to the outset of the new settlement, “the American colonists . . . adopted aliens as fellow subjects . . . .”56
To be sure, distinctions existed between the established customs in England and those in the colonies. While at times English law was employed to “delay or destroy the political careers of ambitious naturalized subjects,” for example, by interfering in the 1690s with the acceptance of someone elected to the House of Burgess,57 these restrictions were generally rejected.58 When those controversies ensued, as they did in the 1770s, they generally ended in victory for the naturalized citizen.59
Most importantly, while English law stressed the “personal nature of the subject-king relationship,”60 with English judges “conclud[ing] that the essential purpose of naturalization was to make the alien legally the ‘same’ as a native Englishman,”61 the American system gradually came to normalize a different type of relationship between citizens and their government, one of consensual membership in a voluntary community.62 Adding to the practical necessity of attracting newcomers to the country,63 “[g]enerous inducements designed to entice foreign settlers expanded the benefits conferred by naturalization and made it difficult to consider natives and adopted aliens distinct types of members.”64 These liberal naturalization policies “contributed to a growing assumption that membership status was and ought to be undifferentiated.”65 In the colonies, political debates “revealed an increasing sense that aliens who chose to commit their efforts and resources to the common good justly deserved an equal share of the rights of membership.”66
During the Constitutional Convention, the founders had to decide whether to “reproduce” in the United States the British tradition of graded civil status.67 “Some delegates, including Madison, suggested a plan by which applicants would receive incremental rights as, step by step, they fulfilled the basic requirements of citizenship.”68 This suggestion was eventually rejected, with the founders concluding “that the only disadvantage to be placed upon naturalized citizens would be ineligibility for the presidency of the United States.”69 Thus, in its final iteration, “the Constitution repudiated graded citizenship as well as any notion that native-born and naturalized citizens should possess different sets of rights, and confirmed the principle that U.S. citizenship, once conferred, would be uniform and complete.”70
Following the Revolutionary War and the establishment of the various states, laws were sometimes enacted delimiting citizenship requirements; the first made was based on race when, in 1779, Virginia declared that its citizens would constitute “all white persons born within the territory and all who had resided there for the two years preceding . . . .”71 Subsequently, immigrants were made to prove their intent to reside in the state and prove their fidelity.72 A Virginia law withheld the right of new state citizens to hold office until residing there for two years, evincing “a permanent attachment to the state, by having intermarried with a citizen of the commonwealth, or a citizen of any other of the United States, or purchased lands to the value of one hundred pounds therein.”73 Generally, though, requirements included merely sworn allegiance, a certain period of residence, and proof of good character.74
A. The Constitution and Naturalization
The “competing views of citizenship” arising during the constitutional ratification debates resulted in the document of 1787, which failed to define the meaning of “being naturalized.”75 In fact, it referred to citizenship on only three occasions: Article I, Section 8, which authorizes Congress to establish a uniform Rule of Naturalization; Article I, Section 2, which restricts eligibility for the House of Representatives to those who have been citizens for seven years, and eligibility for the Senate to those who have been citizens for nine years; and Article II, Section 1, which restricts the presidency to “natural born Citizens, or a citizen of the United States,” at the time the Constitution was adopted. The absence of a constitutional definition of citizenship “reflected the unresolved dispute” between national and state loyalty.76 Birthright citizenship was seen as “an incentive for immigrants who expected to have children, and thus served to help populate the new nation.”77 For those born elsewhere, citizenship through naturalization emphasized the notion of consent, reflecting the developing understanding that, unlike in England, obedience was not owed to a superior king.78 This notion echoed the tenets in the Declaration of Independence, declaring that governments derive their powers from the “consent of the governed.”79 Thus, the American naturalization process reflected a voluntary, contractual arrangement between one who chose an allegiance and the community to which she joined, a community that accepted her.80
“For most of this country’s [early] history, immigration laws and policies permitted relatively easy access to lawful immigration status”81 and, following immigration, ease at gaining citizenship. Not until the mid to late 1820s do we find any adverse references to immigrants: “mostly not such as we would generally prefer,” they being poor.82 As tolerance of the poor waned, a law was proposed “to allow no alien to land till the master of the vessel on which he came had paid the city five dollars.”83 Fear was afoot that the British were trying to rid themselves of their poor by sending them off to America.84
It is true that citizenship rights of the native born derive from Section 1 of the Fourteenth Amendment, while those of naturalized citizens derive from satisfying statutory requirements. Nonetheless, the Supreme Court confirmed the lasting and equal status of naturalized citizens as early as 1824, in the case of Osborn v. Bank of United States.85 22 U.S. 738, 827 (1824). Chief Justice Marshall, writing for the Court, stated that “the judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and the treaties made, . . .” Id. at 819. The Court answered the case’s question in the affirmative. Id. The ruling, however, was superseded by statute. Nicodemus v. Union Pacific Corp., 318 F.3d 1231 (10th Cir. 2003). Brought by a recently naturalized citizen, the case determined whether a charter provision of the Bank of the United States, which authorized cases to be brought by and against it in the federal courts, was authorized by Article III of the Constitution. In upholding the provision, the Court distinguished incorporation from naturalization, explaining
[a] naturalized citizen is indeed made a citizen under an act of Congress . . . . He becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. The constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national Legislature, is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual. The constitution then takes him up, and, among other rights, extends to him the capacity of suing in the Courts of the United States, precisely under the same circumstances under which a native might sue. He is distinguishable in nothing from a native citizen, except so far as the constitution makes the distinction. The law makes none.86
By defining naturalized citizenship in this way, Osborn certified, at this early date in the national history, the concept of “no distinctions” between native-born and naturalized citizens.87
Earlier decisions, though not all emanating from the Supreme Court, supported the inference that the Constitution created only one class of citizen, whether born of birth in the United States or of naturalization. In the 1800 case Jackson v. Beach,88 hailing from the Supreme Court of New York County, naturalization retroactively confirmed the sale of land to a noncitizen, thereby establishing his good title upon naturalization. “[T]he lessor of the plaintiff having been naturalized, that naturalization has a retroactive effect, so as to be deemed a waiver of all liability to forfeiture . . . ”89 as well as “a good conveyance.”90 The principles of Jackson v. Beach were affirmed in an 1826 Supreme Court case involving a similar objection, with like result. In Doe, ex rel. Governeur’s Heirs v. Robertson,91 the plaintiff proved that he had good title to land acquired from the son of a noncitizen who naturalized after receiving a “patent” for the land, but before the defendant’s competing claim was made. The point: a naturalized USC had full rights to hold land, including a right that applied retroactively. This openness to welcoming new members of the American community was reflected in Minor v. Happersett as Chief Justice Waite declared “[w]hoever, then, was one of the people of either of these States when the Constitution of the United States was adopted, became ipso facto a citizen—a member of the nation created by its adoption. . . . Disputes have arisen as to whether or not certain persons or certain classes of persons were part of the people at the time, but never as to their citizenship if they were.”92 And in a Supreme Court case from 1892, Boyd v. Nebraska ex rel. Thayer, asking whether the newly elected Nebraskan governor James E. Boyd could lawfully hold that office, as he was alleged to not yet have become a United States citizen on election day, the Court supported the officeholder when it said: “[n]aturalization is the act of adopting a foreigner, and clothing him with the privileges of a native citizen . . . .”93
B. Mounting Opposition to Immigration
This study of citizenship, particularly the question of equal citizenship, is attempting to ascertain whether the SIJS provision in question violates the United States’ principles of citizenship. A window into the history of the efforts to restrict admission of immigrants should be instructive for that project.
While “[m]any commonly believe that the United States was open to outsiders until the early twentieth century,” it is more precise to aver that,
except as to African slaves, prior to the late nineteenth century, entry restrictions commonly focused on [] economic conditions (i.e., poverty) or [] physical or mental conditions (i.e., lunacy) . . . . [While] the first effort to restrict immigration by creating obstacles to naturalization arose in 1798, when the Naturalization Act extended the required residence period from five to fourteen years; [the] law went largely unenforced and was repealed shortly thereafter.94
On the other hand, race-based immigration restrictions were firmly established in the 1790 Naturalization Law, signed by President Washington, allowing for citizenship eligibility after just two years of U.S. residence, but only for “free white persons.”95 This limitation to “white persons” lasted until 1870 when, still denying citizenship to Native Americans and those of Chinese descent, it was extended to “Africans and . . . persons of African descent.”96 Racial preferences were not thoroughly eliminated from the law until 1952.97
As the 1800s progressed, with many fleeing despotism and hunger, entreaties opposing immigration hastened. Questions were raised about the extent to which the nation should welcome immigrants. In 1837, the “Native American Association organized . . . a meeting held in Washington,” with a goal of repealing the naturalization law “to save their institutions from the corruption of foreign countries and themselves from the loss of their birthright.”98 The participants feared that “[a]lready many of the most important elections had been swayed and decided by the votes of foreigners, notoriously ignorant, used by artful demagogues.”99
From the late nineteenth century through the early twentieth, “the first nationally-organized movement developed against immigrants. ‘Nativism’ . . . is distinctively American . . . . Although the word was coined around 1840, the ‘spirit’ of American nativism surfaced long before that.”100 “[T]his powerful anti-foreigner tradition . . . can be traced as far back as the Protestant Reformation.” It was, at least partly, an “anti-Catholic tradition” that shaped the identity of the nation.101
This “Protestant nativism” reflected the apparent conflict between Catholic traditions and the “American concept of individual freedom”; “Americans were tempted to view American liberty and European popery as irreconcilable.”102 The flood of Catholic immigrants in the nineteenth century exacerbated this perceived threat. “Fear of foreign radicals” increased following the 1790s and the French Revolution,103 especially when there was truth behind the sentiment, as with “the influx of the German Forty-Eighters, some of whom [brought] the Marxist movement” to the United States.104 This influx “kindled xenophobia” over the threat to American institutions from radical immigrants.105 It was during this period that “the Know Nothing Party, anti-Catholic and anti-immigrant in nature, had some legislative successes.”106
Ongoing anti-foreign sentiment buttressed attitudes opposing racial minorities; “[t]he racist tendencies of the Americanization movement” buoyed the Ku Klux Klan107 in the 1860s. Racial nativism endorsed the claim “that the United States belongs in some special sense to the Anglo-Saxon ‘race.”’108 The first apparent effects of this sentiment were the efforts to exclude Chinese immigrants, who had been used for decades for cheap labor to build the nation’s railroads. “While anti-Asian sentiment culminated in enactment of the Chinese Exclusion Act in 1882, the notion of race as a factor in immigration became a strong sub-text of nativism around the turn of the [twentieth] century,”109 culminating “in the movement described by the expression ‘One Hundred Percent Americanism.’”110
Anti-immigrant sentiment swelled as the nation turned the page into the twentieth century. After 1910, for example, most citizenship applications from natives of East Asia were rejected,111 along with those from the Near and Middle East.112 In 1913, during the World War I era, the Bureau of Naturalization was established,113 bolstering Americanization drives and similar widespread programs heralding the importance of educating immigrants regarding the responsibilities and duties of citizenship.114 “President Wilson did little to stem the growing tide of xenophobia. . . . Soon, to stifle [anti-war efforts], the Espionage and Sedition Acts were enacted,”115 which were “responsible for more than two thousand arrests, over a thousand imprisoned, and 2537 loyalty investigations of federal workers in 1918 . . . .”116
As the logical response to these aggressive anti-immigrant actions was naturalization, by the 1920s, citizenship became the touchstone for most immigrants, who possessed the
growing conviction . . . that U.S. citizenship would give them the rights, privileges, and protections guaranteed by the federal government; they would live, vote, and secure work on the same basis as native U.S. citizens and would escape the restrictions and encumbrances of alien status. Citizenship also meant acceptance as an American: it was an unimpeachable sign that the newcomer had assimilated and had become equal as a result of possessing a set of rights that he or she had not known as an alien.117
The ultimate threat to immigrants, [] swift deportation, proved the most potent weapon in the arsenal of the nativists. This was fueled by the confluence of several events: the Bolshevik Revolution of 1917, the end of World War I in 1918, the establishment of revolutionary governments in Germany and Hungary during 1918 and 1919, the labor strikes of 1919, and the resulting Red Scare.118
“In 1919, foreign-born radicals and so-called anarchists such as Emma Goldman and her lover Alexander Berkman were being deported by the hundreds in . . . the Palmer raids.”119 From 1920 to 1921, this anti-foreign fervor led to a new wave of legislation that excluded foreigners from many occupations.120 The climax occurred in the early 1920s, resulting in
the most significant . . . legislation enacted in this arena either before or since. . . . With the 1921 Immigration Act Congress established a quota system limiting immigration to 3% of the number of foreign-born of each nationality recorded in the 1910 census, with an annual maximum of 355,000. This meant that 55% of new immigrants would be from northern Europe and only 45% would be from southern and eastern Europe.121
Shortly thereafter, new anti-immigration laws passed overwhelmingly, implementing “racial nationalism through a quota system based on national origin.”122 Consequently, “[b]y 1923, nearly 225,000 United States residents” became “racially ineligible” to naturalize.123 A mere two years later, only a nominal number of immigrants passed through Ellis Island.124
In 1952, the Immigration and Nationality Act was first codified in a single piece of legislation, which organized the immigration and naturalization statutes from the past half-century into one Act, strengthening the government’s “deportation powers and widen[ing] its surveillance” of noncitizens.125 The 1952 Act also enhanced citizenship qualifications, requiring speaking and understanding English along with reading and writing proficiency.126 By the mid-twentieth century, racial restrictions on naturalization seemed impolitic and impractical: “[e]xperience had shown that all ethnic groups, given time and encouragement, had the capacity to assimilate into the national civil culture, and so U.S. citizenship was opened to all.”127 Thus, the most significant change of the 1952 Act was the “abolition of all racial tests or marital qualifications for citizenship[,]”128 resulting in an enormous effect on subsequent immigration.129
Amendments enacted in 1965, the Hart-Celler Act,130 replaced the discriminatory national origins quota system with per-country ceilings. Hart-Celler led to a rise in naturalizations in subsequent years; for example, in 1975 there were 142,000—8% more than the year before.131 “The 1965 amendments were a sea change in U.S. immigration law, marking the first time that it adopted a basic nondiscrimination principle” and “was apparently race-neutral[,] . . . part of a basic movement toward civil rights in American public law that included the Civil Rights Act of 1964 and the Voting Rights Act of 1965.”132
Between 1965 and the present day, several important immigration-related amendments were adopted, including the Refugee Act of 1980,133 the Immigration Reform and Control Act of 1986 (IRCA),134 the Immigration Marriage Fraud Amendments of 1986 (IMFA),135 the Immigration Act of 1990,136 the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA),137 and the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).138 Also enacted in 1996 was the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA).139 The 1990 Act increased total immigration to 675,000 a year, with family-based immigration increasing annually from 290,000 to 480,000, continuing historic support for family immigration.140 These post-1952 changes “strengthened the focus on family-based immigration.”141 In fact, as late as 2001, studies of the U.S. immigration system confirmed that “[l]egal immigration through the family-based [visa] classification is Congress’ highest preference, providing for eighty percent of all legal immigration.”142
Following the attacks of September 11, 2001, the U.S. immigration system was overhauled again and moved to the new Department of Homeland Security (DHS) under three branches: Customs and Border Protection; Immigration and Customs Enforcement; and Citizenship and Information Service. Finally, the REAL ID Act of 2005143 instituted federal standards for state-issued driver’s licenses and non-driver identification cards.
More recently, particularly during the Obama presidency, some states such as Texas and Arizona began to resist the federal government’s control over immigration, frustrated that it was not doing enough to rid the nation of unauthorized immigrants. Arizona, for example, enacted anti-immigrant legislation, commonly referred to as S.B. 1070, that (1) made failure to comply with federal alien-registration requirements a state misdemeanor, (2) made it a misdemeanor for an unauthorized noncitizen to seek or engage in work in Arizona, (3) authorized officers to arrest someone without a warrant if the officer had probable cause to believe that person had committed “any public offense that makes the person removable from the United States,” and (4) provided for officers conducting a stop, detention, or arrest to sometimes try to verify the person’s immigration status.144 Following the federal government’s challenge, all but the fourth provision was stricken as violating the federal government’s preemptive powers over immigration law.145
Shortly thereafter, the presidential campaign of 2016 and the years hence have aggravated anti-immigrant hysteria.146 Actions taken and/or threatened since the January 2017 inauguration include calls for a 1000-mile border wall, criminal prosecutions for undocumented parents who bring in undocumented children, reduction of family reunification (pejoratively called “chain migration”),147 executive orders to limit immigration from several majority-Muslim nations, and attempts to cancel the popular Deferred Action for Childhood Arrivals program, benefitting innocent youngsters and created in 2012. Indeed, there is a mounting outcry from immigrants and their advocates seeking to counterbalance the attacks on civil and human rights that immigrants are experiencing now and are fearing for the future.148
III. THE IMPACT OF DISCRIMINATION ON CITIZENSHIP
A. Discrimination Against Blacks and Other Racial Minorities
In suggesting, as I do here, that there is constitutionally but one class of U.S. citizen, attention must be paid to the nation’s blighted history founded on forcible slavery and complete disregard for citizenship or other basic human rights.149 A full grasp of U.S. citizenship is impossible without command of the historical support for these conditions. Undoubtedly, slavery was accounted for, envisioned, and even sanctioned by the Constitution.150 Obviously, in identifying those who possessed commonly understood citizenship rights such as voting151 and jury service152—only white men153—early legislation excluded more than half the population. Eventually, rights were denied to a wide swath of people, from women154 to Native Americans155 to Asians,156 and even ultimately to those with intellectual disabilities.157
From the early days of the Republic, citizens were limited to free white persons.158 That Blacks were intended for exclusion159 from the outset underscores the significance of race to an understanding of U.S. citizenship. To be sure, racial exclusion did not form the basis of all thought as to what it meant to be a citizen. For example, Jacob Howard’s introduction to Section 1 of the Fourteenth Amendment, speaking for the Joint Committee on Reconstruction, described an Amendment that abolished
all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another. . . . Ought not the time to be now passed when one measure of justice is to be meted out to a member of one caste while another and a different measure is meted out to the member of another caste, both castes being alike citizens of the United States, both bound to obey the same laws . . . ?160
Howard’s statement, while opposing the racialization of the United States, evidences the intent that this aspect of the Fourteenth Amendment confirmed a single class of U.S. citizenship.
This singular class of United States citizen reflected the rights affirmed in Osborn v. Bank of United States, Jackson v. Beach, Minor v. Happersett, and Boyd v. Nebraska, all of which established that naturalized citizens are full members of society, possessing the same rights as native-born citizens, and, according to the Constitution, standing on the same footing. This is a fact that cannot be altered by Congress, as its power is solely to prescribe the naturalization rules.161
Confirmation of a singular class of citizenship demonstrates the affront INA § 1101(a)(27)(J) poses to naturalized SIJs’ citizenship rights. This singular class of United States citizen is supported by further evidence derived from an unexpected source, the case of Dred Scott v. Sandford, notorious in American jurisprudence. Justice Taney, writing for the majority, addressed the constitutional dimensions of citizenship. While the infamous result in this 1857 case was that Black people born in the United States were not citizens,162 Taney reaffirmed the single status of United States citizenship, a concept contained in the Constitution if not well defined therein.163
Scott, who had been enslaved while living in Missouri, sued for his freedom after being transported to both Illinois, a free state, and Minnesota, a free territory. He claimed that residence in these free areas had nullified his slave status.164 A key issue in the case was whether Scott had a right to sue, a right reserved for citizens.165 In making “some of the Supreme Court’s first rulings on citizenship,”166 Justice Taney, in declaring that “[t]he words ‘people of the United States’ and ‘citizens’ are synonymous terms, and mean the same thing,”167 described “the political body who . . . form the sovereignty, and who hold the power and conduct the Government through their representatives.”168 “They are what we familiarly call the ‘sovereign people,’ and every citizen is one of this people, and a constituent member of this sovereignty.”169 Justice Taney’s opinion is infamous for holding that even a free Black man did not own the rights and privileges of citizenship—in this case, the right to sue—because the framers never intended that they be “admitted to the political community of citizens.”170
Justice Taney reasoned that there was only one class of “people of the United States,” citizens, and as the only members of that class, citizens had the right to sue; therefore, it was proper to deny the lower court’s jurisdiction over the lawsuit Scott filed to establish his citizenship. To Taney,171 Blacks, whether enslaved or not, were not meant to be citizens; thus, Blacks were unable to file suit.172 In his ruling, Justice Taney uttered one of the most unfortunate pronouncements ever to derive from the Supreme Court: that, in the term “people of the United States,” which he described as synonymous with citizens, Blacks, both free and enslaved, were excluded.173
While the opinion was decried by many, including the dissenting Justices McLean and Curtis,174 in the ensuing years its injustice has generated even greater disdain and is widely and commonly considered one of the worst, most notorious Supreme Court opinions.175 Notwithstanding the sorrowful and unjust nature of much of the opinion, it should be acknowledged that in the opinion, Justice Taney also pronounced the singular status of U.S. citizenship; it is in that awareness that this case could, to a degree, redeem itself.176 Through the Justice’s statements on citizenship, he can, oddly, assist those under consideration here. For, if there is but one class of U.S. citizenship, the benefits of that citizenship cannot be denied to naturalized SIJs. Recognizing this aspect of the Dred Scott decision can promote good, as opposed to the evil it has represented for so long. In the present day, a particularly maligned group in the United States, immigrants, and the weakest members of that group—abused, abandoned, and neglected children—can benefit by an informed understanding of the vital declaration made in this case.
The Civil War followed closely on the heels of Dred Scott and, some suggest, was a reason therefor.177 After the War’s end and the 1865 abolition of slavery through the Thirteenth Amendment, efforts arose in the South to disenfranchise, terrorize, and otherwise repudiate citizenship rights for African Americans.178 Southern lawmakers in Mississippi and South Carolina first drafted Black Codes in 1865 and 1866,179 imposing restrictions such as limiting former slaves’ mobility, work options, and free use of public accommodations, as well as imposing unequally cruel punishments for crimes.180 In 1865, the Ku Klux Klan formed in Tennessee and included many leading white southerners as members; the organization acted as the “chief instrument” of violence used by whites to destroy the developing southern base of Black power.181 “In response to the harshness of the Black Codes and the belief that only the federal government could guarantee African Americans’ civil rights in southern states,”182 the Civil Rights Act of 1866 was passed, followed two months later by the Fourteenth Amendment,183 a direct response to Dred Scott, intending “to nullify Taney’s ruling,” condemn the decision to the annals of history, and guarantee the constitutionality of the Civil Rights Act.184 The Amendment’s Citizenship Clause, holding that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside,” was expected to bring Blacks “‘within the pale of the Constitution’” and henceforth entitled to equal treatment with other citizens unless there was a reasonable basis for distinctive treatment.185
The . . . Clause, by clarifying that native born blacks were citizens, altered the application of the norm of citizen equality . . . [and] is essential to the logic of the Fourteenth Amendment, which is that any laws distinguishing between blacks and whites would distinguish between members of the same class, implicating the norm against class legislation. The way that the Fourteenth Amendment proscribed some forms of racial discrimination, then, was . . . by clarifying that blacks were citizens.186
By 1869, on paper at least—the Constitution—Blacks born in the United States were “officially” considered a part of the singular class that constituted United States citizens.187 At that moment, it appeared that their rights were intended to be equal to those of whites. Unfortunately, both the Act and the Amendment failed for too long to accomplish this mission of equality.
Without doubt, naturalized SIJs in the United States are not suffering the profound deprivations imposed on Blacks forced into slavery; nonetheless, apt comparisons can be made. First, the underground nature of Black families during slavery caused a variety of acknowledged horrors, not the least of which was families broken apart and loved ones shipped far from one another; Black couples were also forced into informal unions that made it difficult to collect post-Civil War pensions. Likewise, a naturalized SIJ who cannot reunite with her parent is permanently separated from this most important family member; her family relationship with her parent is essentially eliminated, invisible from U.S. law. Next, prior to the post-Civil War Amendments, free Blacks traveling to slave states could be seized back into slavery, unable to rely on the protection of their citizenship. Similarly, naturalized SIJs cannot rely on their naturalization for the protection they need from reuniting with their parent in their new homeland. The norm of citizen equality, which arrived with the founding of the United States and was clarified by the Fourteenth Amendment, is the light that shines on the United States; it should shine on all citizens equally, including newly naturalized SIJs.
The Fifteenth Amendment, ratified in 1870, sought to allow African Americans to vote by declaring, “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” Notably, while this Amendment was met with Blacks’ conciliatory attitudes towards whites and uncommon success at involvement in political life in the South,188 it also inspired considerable measures to denigrate and dehumanize Blacks so as to negate the Amendment’s impact. These efforts were embodied in what became known as “Jim Crow laws”—poll taxes, literacy tests, and other state-imposed obstacles to voting.189 The scope of discrimination was gradual but vast, reaching housing and segregation in all types of public accommodations, from motels and railroads to waiting rooms and water fountains. In Birmingham, Alabama, the “ultimate idiocy” was manifest in an ordinance making it “unlawful for a Negro and a white person to play together or in company with each other . . . at dominoes or checkers.”190 Aspects of these laws persisted through the early 1940s, but Jim Crow-ness persevered into the 1960s, when dramatic breaches of the citizenship rights of Blacks marred claims that they were making achievements towards equal protection.191
Reconstruction Era failures in the South were answered by a series of civil rights bills, most notably the Civil Rights Act of 1875, requiring “full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement . . . .”192 The Act too was thwarted, even by the judiciary. One notable Supreme Court example during this period, United States v. Cruikshank, held that the Due Process and Equal Protection Clauses of the Fourteenth Amendment only protected citizens from state actions and not from actions of private persons.193 By accommodating whites who refused Blacks services and other public accommodations, Cruikshank blunted the thrust of the equal rights legislation, as most violations originated privately.194 As a result, during the 1880s federal courts rejected constitutional challenges to race-based separate facilities.195 In 1883, the Supreme Court, ruling in The Civil Rights Cases, excused innkeepers’ and theater owners’ refusals to grant equal access, concluding that the actions had “nothing to do with slavery or involuntary servitude . . . .”196 Twenty years later, Supreme Court jurisprudence continued its tin ear on equal protection when, in Plessy v. Ferguson, it sanctioned a Louisiana law forbidding those of different races from sitting in the same railroad car,197 reaching, with this decision, perhaps the nadir of post-Civil War Black rights.198
The denial of rights for Black citizens persisted. Even the benefits of the Civil War pension system were often denied to Black families.199 While “[t]he extension to former slaves of the right to . . . inherit a pension” through family members was “an offering of citizenship,”200 white society, including officials working in the pension system, was forced to adjust its expectations and assumptions about family relationships in order to honor legitimate claims of relatives of Black Civil War soldiers.201
Specifically, during slavery, Blacks, alienated from white society, were prevented from forming the same type of formal family relationships as had whites. As a result, following the Civil War, Blacks often had difficulty obtaining their pension benefits due to inability to prove the formal family relationships that were required, which whites generally possessed.202 This peculiar difficulty, experienced by pensioners simply trying to reap a benefit from their Civil War service along with other citizens, reflected “the challenges former slaves faced in claiming the status of citizen.”203
The pension system illustrated just one roadblock experienced by Blacks in the post-Civil War era as they attempted to enjoy full citizenship rights. To a large degree, these impediments were soon experienced by other non-white minorities. Even from the judiciary, race-based restrictions and other efforts to exclude non-white minorities from the club of “true” Americans persisted over the decades. Notwithstanding the anticipation of a unitary class of citizen following the Civil War, laws were enacted even after the Civil War Amendments were adopted,204 affirmed by the Supreme Court, denying citizenship to members of various “racial” groups beyond African Americans. The first group targeted was Chinese immigrants through the Chinese Exclusion Act of 1882, suspending the admission of Chinese laborers and declaring them to be “ineligible for citizenship.” Soon, Mexican and Japanese persons suffered similar discrimination and exclusion.205 In 1922, the Supreme Court in Ozawa v. United States affirmed that Japanese noncitizen were nonwhite and therefore ineligible to naturalize.206 The Court’s reasoning was internally contradictory in the way it defined citizenship eligibility, sometimes requiring scientific tests to determine physical characteristics and other times using “the definition of the common man” to determine “whiteness”207 and thus naturalizeability.208 It was not until 1924 that Congress granted citizenship to “all [Native Americans] born within the jurisdiction of the U.S. government.”209
Despite affirmations of equal rights in laws and constitutional amendments, the denial of civil rights to both the formerly enslaved and even those never subject to such indignities is shameful. At a minimum, following the Civil War and Reconstruction, Blacks suffered decades-long denials of their citizenship rights, sometimes even culminating in murder.210 To be sure, today numerous liberties remain out of the reach of Black citizens,211 evidenced by, among other conditions, poverty,212 educational deprivation,213 unemployment,214 disproportionate police involvement in Black lives,215 and high incarceration rates.216 Examining the African American struggle for full citizenship rights217 is a good way to view the evolution, maturation, and realization of United States citizenship.
The denial of full citizenship for Black citizens both before and after the Civil War, along with the denial of rights to immigrants hailing from Mexico, China, Japan, and numerous other nations, are akin to the painful effects that section 1101(a)(27)(J)(iii)(II) will have on naturalized SIJs who will, even as U.S. citizens, permanently be denied the ability to live with their non-abusive parent in the United States.
B. Discrimination Against Felons
The denial of citizenship rights of those convicted of felonies is intricately linked with race, slavery, and slavery’s aftermath. “While laws disfranchising certain classes of convicted criminals have long been part of the Anglo-European law, in the decades after the Civil War, white southern Democrats found ways to use them to disproportionately affect African Americans.”218 This system, while not limited in application to African Americans, continues to threaten American democracy.219
Infamy220 offered both “a justification for the denial of citizenship rights to African Americans”221 and a strategy to advance the effort “to infame and thus disfranchise the race—by associating African Americans with criminality, degrading them through legal and extra legal violence, and denying the newly freed slaves the dignity traditionally associated with those deserving of suffrage.”222
The concept of “infamy,” which was firmly integrated into western legal tradition, dating both to Greek and Roman as well as English tradition, “served as a judgment on the civil and political status of convicted individuals. Infamous individuals experienced civil ‘degradation’—meaning the loss of the rights of citizenship,”223 such as the right to vote, for those who actually possessed that right at the time.224 In the United States, “the connection between denying the vote to convicts and denying the vote to African Americans predates the Civil War by at least half a century;”225 the two are intricately connected.
Both slaves and convicts had limitations put on their civil rights due to their bondage and captivity . . . . The rights of degraded individuals stood in contrast to freemen, those “not infamous nor subject to another man’s will,” who enjoyed suffrage and the full privileges of citizenship. It is not a coincidence that slaves and convicts appear together in the Thirteenth Amendment, with its allowance of slavery as a punishment for crime, and in the Fourteenth Amendment’s simultaneous affirmation of the civil rights of African Americans and refusal to protect the suffrage rights of convicts.226 These amendments sought to remove African Americans from their degraded social and civil status by distinguishing their civil rights from those of convicts.227
Clear parallels can be drawn between felon disfranchisement and Black subjugation.
Convicting African American men of infamous crimes fostered the belief that the entire race was undeserving of suffrage. . . . Referring to African Americans as “degraded,” . . . was not just a figure of speech. It was a reference to a legal and civil status, and its use helped maintain African Americans in an inferior social status.228
Given that “many white southerners believed that African Americans were undeserving of suffrage because . . . the race was infamed by slavery,” “[i]nfamy also helps explain why laws disfranchising for crime” represented early ways to “disfranchise African Americans in the South after 1865.”229 Further, “[t]he open language of the Fourteenth Amendment, allowing for disfranchisement for any crime, offered an opportunity” seized by white southerners.230 “Associating African Americans with criminality . . . perpetuated the infamy of the entire African American race.”231 The South’s significance in shaping the law and practice of infamy232 guided its concomitant influence on shaping American criminal justice, specifically its “influence in creating a system of mass incarceration, a nationwide acceptance of racial disparities in incarceration, and a criminal justice system that prioritizes retribution over rehabilitation.”233
“By the end of the nineteenth century nearly all southern states imposed lifelong disfranchisement” against felons,234 as did some outside the South.235 Today, felon disfranchisement continues to be used by local and state election administrators for “racial and partisan ends . . . .”236 Most states “maintain laws disfranchising for crime;” some recently began revising their laws and procedures for restoring citizenship rights.237 It is perhaps unsurprising that there remains today “a national consensus on permanent disfranchisement for certain convicted criminals . . . .”238
The significance of felon disfranchisement is felt by all who have these types of convictions, but its history as integral to the degradation of African Americans is noteworthy: the point was the degradation, which was considered in these cases to have been accomplished.239 “Race is certainly not absent in this history,” as those with criminal convictions, especially those who have suffered incarceration, “are marked with a disgrace and contamination that is incompatible with citizenship.”240 Today, then, we are left with “[l]aws, political agendas, and ideologies [that] have intersected . . . to produce . . . a class . . . who are excluded from suffrage.”241
Notwithstanding the racially repugnant aspect of felon disfranchisement, while it deprives those with these convictions of a significant aspect of citizenship, the practice is usually temporary; additionally, it follows conviction for a crime that is considered more serious than most, a felony. SIJ “disfranchisement,” on the contrary, in denying the right and therefore ability to unite with a parent, is permanent, a harsh punishment prosecuted against those who all acknowledge were victims of abuse, abandonment, and/or neglect, not perpetrators thereof. Absent is the logic behind this punishment.
C. Discrimination Against Women
While exclusion from equal citizenship for conviction of criminal acts can at least be justified because of actions taken by the convicted person, citizenship discrimination against women, as is that founded on race, is based on immutable characteristics.242 Perhaps not surprisingly, issues of race also have played a role in women’s citizenship inequality. Coverture,243 the principle linking married couples into a single legal entity—the husband—began affecting citizenship in 1855, when noncitizen white women who married citizens could derive citizenship through their husbands.244 Noncitizen women who were nonwhite, Black, or Native Americans living on reservations, however, were denied this benefit.245 In 1870, during Reconstruction, a federal law extended naturalization to African American women, so-called “aliens of African nativity and to persons of African descent.”246 Again, Native Americans and Asians were excluded until 1952.247 The benefits of derivative citizenship had their downside: a 1907 law terminated the citizenship of women who married noncitizens ineligible to naturalize based on the theory that, having assumed her husband’s nationality, these women could not regain it until their husbands naturalized.248 Following the 1920 passage of the Nineteenth Amendment granting women the vote, a drive to end coverture resulted in the Cable Act of 1922, conferring “independent citizenship on [some] married women.”249 There was a catch, though: to the extent that the Cable Act provided an independent means for women to naturalize, it departed from the historic principle of family unity that had been such a powerful tool for immigrants.250
Women have been denied a plethora of rights throughout U.S. history. While some of this discrimination continues, it is uncertain whether these denied rights would each be considered badges of citizenship. The discriminations include unequal employment opportunities, sexual abuse, and salary inequities in the workplace; injustice in court when victims of physical abuse, particularly in the domestic arena; and unequal access to higher education and training. Abuses such as these inspired the movement during the 1980s to enact an Equal Rights Amendment, whose mission was to guarantee equal rights to all citizens regardless of gender. It was unsuccessful.251 But are these truly “rights of citizenship?” Certainly, equal treatment is written into the Constitution, but one need not be a citizen to challenge the other types of unequal treatment.252 Equal pay, as well, is now mandated by statute,253 again regardless of citizenship.
In the same way that women were long denied core citizenship rights to vote and to marry freely (without losing their citizenship), naturalized SIJs are denied core citizenship rights when they are excluded from full citizenship by a law preventing them from reuniting with their non-abusing parent. This denial is based on their immutable characteristic, a fundamental part of their identity they cannot erase—that they were victims of abuse, abandonment, and/or neglect by their other parent. Placing naturalized SIJs in a separate category of citizen, and in an inferior category as naturalized citizens, denies them core citizenship rights and breaches the commitment to a singular class of citizen in this country.
D. Discrimination Against the Intellectually Disabled
To the list of groups denied full citizenship rights for a considerable extent of U.S. history, again based on immutable characteristics, those with disabilities must be added, particularly disabilities of an intellectual nature. Often considered incompetent, even sometimes “deviant and dangerous,”254 their diminished legal status was long excused by references to the “inevitable consequence” of their disabilities.255
From the nation’s founding, most states enacted legal “restrictions abrogating from ‘idiots,’ ‘incompetents,’ or ‘imbeciles’ the rights to vote, to make contracts . . . and to serve on juries”; these restrictions “made individuals vulnerable to segregation, marginalization, and abuse.”256 In the early twentieth century, eugenicists portrayed those with intellectual disabilities as “profoundly unfit for citizenship,”257 resulting in institutionalization, sterilization,258 exclusion from public education, deprivation of treatment, and other dehumanizing discriminations,259 continuing through much of the twentieth century.
The 1927 decision Buck v. Bell endorsed states’ rights to forcibly sterilize people suffering from intellectual disabilities.260 But the ruling lost influence as both “scientific ‘evidence’ no longer supported [stereotyping them] . . . as deviant and dangerous,” and changes brought about by the movements of the 1960s and 1970s caused community-based housing to win widespread support.261 Finally, those with disabilities began to be accepted as “full citizens,”262 leading to the passage of the 1975 Education for All Handicapped Children Act.263
Thereafter, it was foreseeable for state courts, such as one in New Jersey, to hold that “residence at a state school for the mentally retarded [sic] did not” automatically render someone ineligible from voting,264 reaffirming that treatment in mental institutions does not raise a presumption of incompetence.265 This view was reflected in a 1985 Supreme Court case that transformed the jurisprudence on this issue. In City of Cleburne v. Cleburne Living Center, an organization assisting those with intellectual disabilities was denied a special permit for a group home lease, city officials deciding it was really a hospital for the feeble-minded.266 The Supreme Court ruled that the zoning ordinance was being enforced in a manner that violated equal protection, as the city breached the plaintiffs’ due process rights by discriminating against potential group home residents based on fears related to mental retardation.267
In 1990, the Americans with Disabilities Act (ADA) was passed, “affirm[ing] the rights of disabled Americans in the last of that century’s civil rights laws.”268 Crucial to the ADA
was the insistence that disabled Americans were not seeking so-called special treatment, but demanding foundational civil rights. The need for this legislation two centuries after the Bill of Rights was enacted . . . captures an equally fundamental truth about American citizenship: the concepts that are central to U.S. national identity are not timeless, but uneven, compromised, and contested.269
While these citizens continue to suffer indignities,270 today conditions for them are greatly improved over those experienced in the 1930s.
1. The Elderly
The elderly, who often suffer from varying cognitive difficulties akin to those experienced by those with life-long intellectual disabilities, have also been victimized by restrictions of their voting and other meaningful rights. While tending to vote in greater numbers than do their younger counterparts,271 elders face barriers sometimes justified by the notion that voting should be predicated on a defined level of competence.272 Because states regulate voter qualifications and access to the vote,273 notwithstanding the Supreme Court’s holding that “voting is of the most fundamental significance under our constitutional structure,”274 statutes that disenfranchise the mentally incompetent disproportionately affect elderly voters; this is particularly the case for elderly who have guardians, as mental incompetence is a prerequisite for these guardianships.275 While rationalizations for these laws are based on safeguarding the democratic process, the hypocrisy inherent here is evident in the clearly stated purposes of these laws: “[t]hey have no consent to give. A fool has no consent; the lunatic has none” and “[i]diots and insane . . . are manifestly not a part of the acting society . . . .”276
More recently, courts have begun to accommodate those with intellectual disabilities, one ruling that “a mentally retarded person need not be an ‘idiot,’ and a mentally ill person need not be ‘insane.’”277 Further, regardless of the plethora of state rules that hinder elder voting, few are refused the right based on incompetency, perhaps because they do not vote in high numbers so are unlikely to affect election results.278
Shining this light onto the loss of basic citizenship rights for those with intellectual and cognitive disabilities can help to illuminate the related losses suffered by naturalized SIJs. Deprivations enforced against the disabled reveal something about “the deepest quandaries of American citizenship: Who should be able to claim and exercise rights and who should not? . . . Should we strive to include all people as valued members of society, and if so, how might we achieve this lofty goal?”279 SIJs forbidden to reunify with the one parent who cared for them will receive a strong message of worthlessness, as they will be unable to claim and exercise their rights. This will forever constitute, for them, a badge of dishonor.
CONCLUSION: A SINGULAR CLASS OF CITIZENSHIP
What is citizenship? This is a simple question with a complex answer. Citizenship means voting and serving on juries, except when it did not and except when it does not; it did not for quite some time. Today, citizenship does mean voting, except for felons and except in states that exclude those with intellectual and other cognitive disabilities. But citizenship must mean something more than voting. It must envision some “penumbra” of rights, surely including equal treatment with other citizens unless there is a compelling excuse. In the end, is citizenship simply one of those “I will know it when I see it” ideas?
Whatever citizenship does mean, what good is it if it does not embrace new members, allowing them to reunite with their most important first-degree relative, their parent? Citizenship must encompass life in community along with one’s parents. All citizens, whether naturalized or not, must be so entitled. A nation such as ours, with one class of citizenship, is violated by 8 U.S.C. § 1101(a)(27)(J)(iii)(II).
This Article scrutinized the creation of an unconstitutional two-tier system among U.S. citizens, those who attain SIJS and are later naturalized, and everyone else. While Congress is empowered to regulate naturalization, that regulation must satisfy universal concepts of fairness. Congress’s power should not extend to preventing a naturalized citizen from reuniting with her parent. It is an unlawful class-based distinction within the singular class to which belong all United States citizens.