Stephen Lee, Growing Up Outside the Law, 128 Harv. L. Rev. 1405 (2015).
In his recent book, Immigration Outside the Law, Professor Hiroshi Motomura argues that unauthorized immigrants ought to be treated as presumptive insiders. To make this bold claim, Motomura develops a broadly applicable account of membership derived from parameters set out in Plyler v. Doe, the landmark Supreme Court decision invalidating the State of Texas’s attempt to exclude undocumented schoolchildren from K-12 schools. The book makes a critical assumption: that what is true and right as to schoolchildren is also true and right as to unauthorized immigrants more generally. In this Review, I set out to do two things. First, I explain that Immigration Outside the Law fits within a larger body of scholarship challenging what I call a theory of “membership as innocence.” This theory of membership rests on a binary of “innocent children/culpable adults.” Plyler itself rests on this binary as does the modern “deferred action for childhood arrivals” program. Motomura challenges this binary by arguing that many of the same equitable considerations justifying rights and benefits for undocumented schoolchildren apply with comparable force to their parents and adults more generally. The second goal of this Review is to propose an alternate framework for supporting the rights of undocumented adults. Borrowing insights from the burgeoning social science literature on immigrant incorporation, I develop a theory of “membership as brokering,” which highlights the important integrative work that undocumented children perform on behalf of their parents and family members. This framework bolsters the broader claim that undocumented adults have valid claims to membership but avoids the innocence/culpability binary altogether. This Review concludes with an explanation of how brokering principles animate recent Executive Action granting membership benefits to undocumented immigrants and also points to aspects of the program that could have gone further.