Undocumented Students: Creating a Path toward Citizenship

Undergraduate Thesis By Omar Issai Rivera Spring 2012

Advisor: Kristen Hill Maher Madeline Baer Department of Political Science College of Arts and Letters San Diego State University

Table of Contents

Abstract Chapter 1. 2. 3. 4. 5. 6. 7.

Introduction . . . . Literature: National Identity & Citizenship Identification of an Undocumented Student The Inclusion Problem . . . Potential Critique . . . . Policy Recommendation . . . Conclusion . . . . . . . . .

. . . . . . . .

. . . . . . . .

6 11 21 27 32 35 38 41

Works Cited .

Acknowledgements

Abstract The inclusion problem is the legal exclusion encountered by marginalized groups in a particular society. The problem arises when a group resides in society and is integrated culturally or economically and still lack full legal membership. This phenomenon can be seen in the issue surrounding undocumented students. The inclusion problem of undocumented students is not new to the judicial and legislative systems of the United States. In its decision of Plyler v. Doe in 1982, the judiciary allowed undocumented students to receive primary and secondary education, while the legislative branch has constantly failed to provide a path toward citizenship. Undocumented students are brought to the United States at no fault of their own, raised as members and excluded from legal membership after high school graduation. Given how these students have been included and excluded in the United States, how can they be extended full membership? I will demonstrate how providing a path toward citizenship is the appropriate manner on which to reach a solution to their inclusion problem for undocumented students. The analysis will use a normative approach to describe the bases on granting citizenship. The different interpretations of American identity such as liberal, republican, communitarian and ethno-cultural Americanism will be described because they influence the social and legal behavior of inclusion in the United States. The extent to which these theories apply to immigration and more importantly undocumented students will be explored. My claim for full membership is based on the idea that residence, along with liberal and communitarian interpretations of national identity should be the criteria for providing citizenship to undocumented students.

This topic is important because it provides a different perspective in approaching and creating conclusions about undocumented students. It demonstrates the manner in which historical exclusionary forms of American identity have shaped legislation and public opinion. This can be seen in the struggle for inclusion of subordinates groups such as women and African Americans. The similarities between these groups and undocumented students lie in their marginalization and exclusion from legal membership. It is important to note that this project is only intended to demonstrate the issues faced by undocumented students. It is not intended to argue for or against a position in the area of immigration. Although this issue overlaps with the general theme of immigration, this project has a focus on a more specific group within the debate. I will demonstrate how undocumented students are unique when approaching the issue of immigration.

Chapter 1 INTRODUCTION The inclusion problem is a political and social issue that needs to be confronted by marginalized populations in the United States. The desire for inclusion has been demonstrated in the historical struggles of women and African Americans1. The central themes of citizenship and national identity that plagued these populations now resonate with the issues confronted by undocumented students. Although each struggle had its own characteristics, the fight for inclusion through legal and social membership remains the same. The limits on inclusion of undocumented students are more comparable to the inclusion problem encountered by women and African Americans. These groups also lived within the United States and integrated in American society and yet lacked full legal membership. An example showing the legal exclusion of women can be seen in Bradwell vs. Illinois (1873). The state of Illinois did not allow Myra Bradwell into the state law bar due to her gender. Supreme Court Justice Samuel F. Miller stated that the admittance into the bar was a state privilege and not something based on citizenship. The Supreme Court stated that the privileges and immunities clause of the fourteenth amendment did not include the right to practice a profession. The decision was justified by Justice Joseph Bradley by stating that women were destined to be protected by men and thus belonged in a domestic sphere.2 The court case maintained womens social membership through education, social connections and economic integration (although unequal) but rejected their legal membership by denying equal rights under the United States

1 2

There are other historically marginalized groups such as Asians, Eastern Europeans. U.S. Supreme Court. 2012. Bradwell vs. State of Illinois, 83 U.S. 130 (1872). Retrieved from: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=83&invol=130

constitution. The problems encountered by African Americans are another example to the exclusions imposed to socially integrated members of society. The issue of African Americans is more complex due to their initial struggle for social membership prior to legal membership. African Americans were constantly being denied equal protection under the United States constitution. The social and legal exclusion was evident during chattel slavery, Jim Crow segregation and the civil rights movement. Even after the end of slavery as a result of the Emancipation Proclamation (1863) and the Fourteenth Amendment (1867), African Americans struggled for social and legal rights in the areas of education, public accommodation, voting rights and equal rights. Their struggle continued until the Civil Rights Act (1964) and the Voting Rights Act (1965) which granted a form of legal membership. Women, African Americans and undocumented students have all been an integral part of American society, included socially through education, social connections and/or economics, and yet excluded from legal citizenship at some point in their history. In order to better understand the inclusion problem of undocumented students, there are terms that need to be defined. The word inclusion or the act of being included refers to being recognized or represented within a category. In the context of this paper the category refers to American society. A citizen is used to describe an individual vested with rights and privileges of a particular state. A member is a person living within a society, presumably granted inclusion through social and legal rights in accordance with the definition of citizenship. Because it is possible to have social without legal membership (or vice versa) the concept of full membership will be used to describe and individual having both social and legal membership. There are currently various terms associated with undocumented students. Some references have a negative connotation while others hold neutral intent. The terms alien and
6

illegal will not be used because they are closely associated with criminality.3 The term undocumented is more accurate because students have no form of legal documentation in accordance with United States immigration laws. This project will use normative theory to analyze the inclusion problem of undocumented students. A normative analysis approach uses theory to evaluate how conditions ought to be. The normative analysis in this paper will depend on the academic work of scholars in the areas of citizenship and American identity. The different interpretations of American identity as presented in the work of Roger Smith are liberal, republican, and ethno-cultural Americanism.4 A fourth interpretation of American identity discussed in this paper is communitarianism. The interpretations are represented in the works of John Locke, Baron de Montesquieu, Samuel Huntington and Charles Taylor. In addition to the forms of national identity, I will draw particularly on the work of Joseph Carens, who argues that residence is a valid claim for citizenship. Joseph Carens is relevant to this issue because his claim of community membership holds features of a communitarian interpretation of national identity. This paper will challenge exclusionary notions of citizenship and propose a new foundation for inclusion based on liberal and communitarian ideals. In order to address the issues of undocumented students, the category must first be clearly defined. When someone hears the words undocumented students, they often assume it is a self-explanatory concept. However, this population is not readily recognizable because they

Suarez-Orozco, Carolina; Yoshikawa, Hirokazu; Teranishi, Robert T; Suarez-Orozco, Marcelo M. 2011. Growing Up in the Shadows: The Developmental Implications of Unauthorized Status. Harvard Educational Review. Vol. 81, Issue 3
4

Smith, Roger. 1988. The American Creed and American Identity: The Limits of Liberal Citizenship in the United States. The Western Political Quarterly. Vol. 41, Issue 2; pp. 225-251

cannot be distinguished from the general population. Contrary to public opinion, undocumented students share many similarities with American-born individuals. For this reason, claiming that undocumented students are distinct from the social norm is similar to identifying a needle in a haystack. Once we have defined the undocumented student, this population will be discussed in relation to their data. The data is important because it illustrates the characteristics of this population in American society. The data incorporates factors such as economics (e.g. taxes, revenues, wages and employment) and demographics (e.g. population, ethnicity). This data will show the contrast in characteristics of undocumented students and U.S. citizens in the areas of education and civic participation. After identifying the central themes, literature, population and data, a direct connection must be made between the literature and undocumented students. The literature must be relevant to the inclusion problem encountered by this population. How does the work of John Locke relate to the everyday struggle of an undocumented high school graduate? I will be making these connections in order to reflect on the manner in which this population has encountered limitations on their social and legal membership and to arrive at an appropriate solution. While it is important to form a personal path toward a solution, it is equally important to deliberate opposing arguments. The integration of opposing viewpoints and their refutations will serve as examples and references to strengthen the argument to extend citizenship to undocumented students. The final component of the paper will incorporate personal recommendations to provide a path toward citizenship for undocumented students. I will provide policy recommendations in
8

consideration of proposed and active legislation at the local and federal level (e.g. Dream Act, A.B. 130 (CA), A.B. 131 (CA), H.B. 200(KS), H.B. 1525 (AR) and IRCA). The recommendations do not run into conflict with the premise of this paper because while the normative analysis demonstrates how conditions ought to be, the recommendations provides an active approach to directly solving the issue through legislative initiative.

Chapter 2 LITERATURE: NATIONAL IDENTITY & CITIZENSHIP

9

The literature is intended to present material relevant to the themes of national identity and citizenship. The scholars presented in the literature will facilitate the analysis toward solving the inclusion problem of undocumented students. Since the analysis of this paper is based on the different forms of American identity that define citizenship, the literature will show how these interpretations shape the exclusions of populations in the historical and contemporary political eras. The early liberal interpretation of national identity is most commonly associated with the Enlightenment and authors such as John Locke. This interpretation closely identified with fundamental beliefs for universal human rights, religious tolerance, commerce and the support for science.5 These ideas, as advocated by the John Locke, suggest that a democracy must have notions of individual rights to life, liberty and property. In order for these elements to prevail, it is the responsibility of the state to safeguard private and public pursuits of happiness. Lockes work suggests that states should play an active role in protecting the rights of the individual. This protective state is created by the people through social contract for the mutual preservation of lives, liberties and estates which ultimately lead to public happiness.6 The social contract between individuals to create a state is clearly manifested in the formation of the United States. The colonists in the New World shifted from their legal rights as Englishmen and adopted early liberal notions of natural rights as a claim to establish their

Smith, Roger. 1988. The American Creed and American Identity: The Limits of Liberal Citizenship in the United States. The Western Political Quarterly. Vol. 41, Issue 2; pp. 225-251
6

Ibid

10

democracy.7 According to the colonists, these fundamental rights were constantly tarnished by the British Empire. These principles and concerns were evident in the formation of the Declaration of Independence in 1776. With the formation of a new nation, the founding fathers integrated early liberal principles by affirming that all men are created equal and that governments are formed to secure inalienable rights to life, liberty and the pursuit of happiness.8 The declaration of independence illustrates that the founding fathers were forced to seek independence in response to the actions by Great Britain.9 The reasons for seeking independence by the colonists from Great Britain are important because it strengthens the idea that early liberal Lockean principles influenced the path toward independence. The declaration of independence was a reaction against British imperial policies regarding taxation and frontier policy. These issues were encountered by the colonies as a result of conflicting events leading up to the French and Indian War/ Seven Years War (1754-1763). The result of the war provided Great Britain with enormous territorial gains in North America.10 The imposition of taxes on colonists to pay for the war through the Townsend Acts (1767) and Stamp Act (1765) resulted in increased colonial resentment against the overreaching British Empire. Since the colonists did not have direct representatives in Great Britain, they refused the levied taxes and pushed for the slogan, no taxation without representation. The dispute regarding taxation and territory expansion

Ibid

Charters of Freedom. (2011). Declaration of Independence. Retrieved March 5, 2012, from: http://www.archives.gov/exhibits/charters/declaration.html
9

Ibid

10

Office of the Historian. (2009). French and Indian War/Seven Years War. Retrieved from: http://history.state.gov/milestones/1750-1775/FrenchIndianWar

11

limitations were critical to the decision by the colonies to form a state responsive to early liberal principles. Although the work of John Locke describes the support of natural and universal human rights, his work appears to have contradictions. Locke generally believed that people would come together politically into communities characterized by a common language, familial, geographic and national origins.11 In his work, The Second Treatise of Civil Government John Locke states that, men being free, as has been said, by nature, are free, equal, and independent12 This quote is important because it appears that John Locke did not intend to incorporate women or minorities in this particular declaration. It is believed that the declaration was meant to favor white property owning males only. If John Locke never intended to include women and minorities in his discourse, is an argument in support of marginalized groups based on his principles of any relevance? An argument for the support of universal human rights may seem hypocritical and inconsistent. The answer lies in the state of continuous change of American society. The United States has made great strides throughout history to extend full membership to underrepresented and marginalized groups. Some examples include the Thirteenth (1865), Fourteenth (1867), Nineteenth Amendments (1920), The Snyder Act (1924), Civil Rights Act (1964) and the Voting Rights Act (1965). The progress is an example of evolving liberal ideas and principles. Even if John Locke did not intend his work to apply to women and other marginalized populations, his

11

Seliger, M. 1969. Locke, Liberalism, and Nationalism. In J. Yolton, ed., John Locke: Problems and Perspectives, Cambridge: Cambridge University Press 12 Locke, J. 1690. The Second Treatise of Civil Government. Jon Roland, ed. Constitution Society

12

early concepts of liberalism have evolved to respond to the needs of groups in the struggle for full membership. The evolving ideas are evident in the very first international concern for human rights in modern history during the Congress of Vienna in 1815. This congress introduced a proclamation for the freedom of religion, the condemnation of slavery and a general discussion of civil and political rights. A second international representation is the creation of the Universal Declaration of Human Rights by the United Nations in 1948. At the end of World War II, the United Nations acknowledged that the United Nations Charter was deficient in responding to the rights of all individuals. The rights under this declaration included peoples of the member states and peoples under their jurisdiction. This declaration expressed the rights to which all human beings are inherently entitled regardless of race, color, sex, language, political opinion, national or social origin, property, birth or other status. Some of the rights outlined in the declaration include the right to life, liberty, security of person, freedom from slavery and equal recognition under the law. 13 Given the progressive movement toward more inclusive policy, the early liberal interpretation of John Locke seems to be, in principle, responsive to the needs of all individuals. Although there will always be limitations imposed on groups, their claim for full membership could be based on liberal ideas and principles which seem to adapt to the needs of marginalized populations. The second interpretation of national identity which shapes citizenship is republicanism. This interpretation is most notably attributed to Baron de Montesquieu and his argument for the single family idea. This single family idea states that republics had to be raised like a family

13

United Nations. The Universal Declaration of Human Rights. Retrieved from: http://www.un.org/en/documents/udhr/index.shtml#a26

13

with education in patriotism and civic virtue. It also advocated for the censorship of dissenting ideas, a single religion and strict constraints on the addition of aliens to the citizenry.14 According to Montesquieu, the single family idea can only be achieved in a small republic with a homogeneous population.15 A large population would lead to multiple differences, which may in turn harm and deteriorate the collective. The case for a small homogenous population is necessary because it allows for the function of government in protecting the public. The protection of the public comes in the form of favoring institutions and practices that make collective self-government a pursuit of common good for the community. The republican model has often been viewed as an alternative to the liberal interpretation. The distinguishing characteristic to this position is that it insists upon a small homogenous republic. It is believed that if citizens identified with fellow citizens at every level, then could there be a true sense of community. This demand has often been used as a pretext for exclusionary movements within a nation. The belief that all individuals must connect in every social, cultural, religious, ethnic, and economic manner, brings complications to a diverse society. Given the demands of the republican interpretation of national identity, how is this perspective relevant in a diverse society like the United States? It is inconceivable to attempt and articulate republican ideals in a state where diversity is embedded in society. A third interpretation of American identity which closely resembles republicanism is communitarianism. Communitarianism is a result of a 19th century republican branch

14

Montesquieu, Baron de. 1748. The Spirit of the Laws. Jon Roland, ed. Constitution Society

15

Smith, Roger. 1988. The American Creed and American Identity: The Limits of Liberal Citizenship in the United States. The Western Political Quarterly. Vol. 41, Issue 2; pp. 225-251

14

highlighting civic membership. The communitarian perspective emphasizes loyalty to the political community and its byproducts. Canadian philosopher Charles Taylor is a contributing academic to this idea that social institutions are important for the development of individual meaning and identity. It also affirms that individuals are social beings defined by communities to which they belong. The thought of a communal entity brought about the movement to institute programs for economic security such as social welfare programs targeted at the general population but especially dependents at the turn of the 20th century. In the context of a communitarian perspective, dependents are considered to be the elderly, children, disabled and unemployed. The term dependent has a different definition in the communitarian perspective and in the United States. The communitarian interpretation equates dependents to those who should be taken care of by society because society has a moral responsibility to do so. While in communitarianism, this form of aid is seen as compassionate and necessary, contemporary American opinion sees this as counterproductive. American society labels social welfare institutions as handouts which are a failure and a burden to the economic stability of the country.16 (Alastair MacIntyre, Michael Walzer, Benjamin Barber) The Communitarianism perspective has its greatest distinction with liberalism. Charles Taylor criticized liberalism for relying on the self and neglecting the significance of obligation to the community. While liberalism can be viewed as a reaction to authoritarianism and oppressive government, communitarianism can be considered a reaction to excessive individualism. Contrary to the views of liberalism, communitarianism states that humans are social beings not defined by their individual will or self-interest, but rather by the various communities people are

16

Murray, Charles A. 1984. Loosing Ground: American Social Policy. 1950-1980. Basic Books; New York; NY

15

part of and the way people interact with member of that particular community.17 For this reason membership comes with certain responsibilities to the community. In the communitarian perspective, the common good triumphs over the individualistic self. According to Roger Smith, American history and culture has been marked only by the liberal and republican traditions, but also by what he calls ethno-cultural Americanism. Ethnocultural Americanism has a focus on an organic community living in a common political and cultural territory. In the United States context it rest on the belief that Americans have unique characteristics descendent from their Anglo-Saxon ancestors. It seeks to identify American nationality with a particular identity. This common identity is seen through an Anglo-Saxon perspective that shaped the new world. This distinct characteristic put them above all else who were seen as unfit for self-government. Ethno-cultural Americanism identifies membership through culture and customs such as ethnicity, religion, or a particular gender or racial order, grounding its judgments on religious terms. A key author adopting the idea of ethno-cultural Americanism is Samuel P Huntington. Although Huntington considers himself a social scientist studying politics and not a political scientist, his views are relevant in the immigration and cultural debate.18 In his book, Immigration and the United States, Samuel Huntington supports a concept he calls the American Creed. The American Creed is the product of a distinct Anglo-Protestant culture granted by the founding fathers. The primary elements in the culture include the English language, Christianity, religious commitment, English concepts of the rule of law, rights of

17

Bell, Daniel. (1993). Communitarianism and Its Critics. Oxford University Press, USA Interview Samuel Huntington, Difficulties With Adjustment: On True and False Prophecies. Russian Politics and Law, vol. 44, no. 1, JanuaryFebruary 2006, pp. 2341
18

16

individuals, work ethic and the belief that humans have the ability and duty to create a heaven on earth.19 Huntington argues that Anglo-Protestant culture has been central to American identity for three centuries. These Anglo-Protestant traditions have provided the United States with the rights of liberty, equality, law and individual rights. Huntington also believes that all Americans should recommit themselves to the Anglo-Protestant culture, traditions and values because those were the teachings of the founding fathers. A second author whose ideas support the idea of ethno-cultural Americanism is John Jay. John Jay is an important character because he was a founder of the United States and served as one of the first Supreme Court justices from 1789 to 1795. In the second Federalist papers, John Jay described Americans as a band of brethren descended from the same ancestors with the same language, religion, government ideals, manners and customs. Jay was attempting to counter the Anti-Federalist idea that the formation of a single republic among diverse colonies was impossible without sacrificing freedom.20 Jays argument made a connection between the unity of a state and their common Anglo-Saxon, Protestant and Northern European heritage. The statement by John Jay is important because it made an assumption that these characteristics are what it means to be an American. The work of John Jay is unique because it reflects the struggle between Federalists and Anti-Federalists.21 While Federalists were more commonly associated with liberal ideals, the

19

Huntington, Samuel P. (2004). Who Are We? The Challenges to Americas National Identity. New York, NY: Simon & Schuster
20

Storing, H. 1981. What the Anti-Federalists Were For. Chicago: University of California Press

17

Anti-Federalists were associated with the republican principles. The struggle between Federalist and Anti-Federalists climaxed during the American Civil War (1861-1865). The outcome of the Civil War would lead to the creation of the state in where the powers of the federal government triumphed over local governments. The realizations of a strong federal government after the Civil War lead to a famed unity of individuals in the United States grounded in part on ethnocultural characteristics. The republican and ethno-cultural American forms for national identity have shaped exclusions in immigration policy on the basis of nationality and race. The first exclusion prompted in policy is the Chinese Exclusion Act 1882 which barred Chinese and other Asians from immigration and naturalization. The after World War I. Questions were asked if the birthrates of immigrant groups would outpace birthright of white Americans and whether immigrants bring diseases to the United States. Prior to WWI, ideas such as biological essentialism and eugenics were granted a form of validity. It is unfortunate that while race is proven to be constructed, there still exists an ethno-racial criterion for different populations throughout history22. The fear of white America being diluted by immigrants who were racially and culturally inferior created a climate in which restrictive immigration policies were passed in 1921 and 1924. These laws imposed quotas to dramatically restrict immigration from Southern and Eastern Europe. The same principles were also seen during the enactment of the Chinese Exclusion Act of 1882. In contemporary policy, there are still exclusionary forces behind building border fences, passing English only propositions, eliminating bilingual education for the

22

Haney, Lopez, I.F., 1996. White by law: the legal construction of race. New York: New York University Press

18

purpose to limit the number of undesirable immigrants.23 It was not until later, the idea that race is socially and legally constructed rather than scientifically, genetically, or biologically intended. The idea to maintain a governable homogenous society with common characteristics created exclusions based on republican and ethno-cultural American forms of national identity I miss the paragraph you had in here before, which talked about how republican and especially ethno-cultural Americanism shaped much of our immigration policy over time. I think it is an important point, and a good logical transition to Carens. I hope you still have it! It could be shortened. The piece by Mae Ngai I mentioned could be cited here, even if you dont have time to read the whole thing. Ill attach it to my email. In evaluating how various philosophical traditions engage the notion of citizenship and the membership of groups like undocumented students, it is particularly useful to consider the author Joseph Carens, who draws some on both communitarian and liberal though. He considers residence a valid claim for citizenship. Carens is a proponent of the idea that irregular immigrants should be granted a path toward citizenship if they have been settled in the United States for a long time. The longer the stay of the individual, the stronger the moral claim to remain in the country. Individuals who have been raised in a particular society become members of that society. Similar to the communitarian perspective, Carnes believes that people are social beings defined by communities to which they belong. A persons social membership does not depend on legal membership. It is unjust to identify individuals with a society they were never part of. Instead, a person who has lived in the United States for fifteen years, getting an

23

Streich, Gregory W. 2009. Discourses of American National Identity: Echoes and Lessons From the 1910s-1920s. Citizenship Studies. Vol. 13, Iss. 3; pp. 267-287

19

education, working and building social connections is part of society and has a moral claim for membership. The time a person stays in the United States contributes to their civic participation and overall social membership. Their social membership should outweigh the importance of enforcing immigration restrictions. The right of states to apprehend and deport immigrants erodes as people spend a longer time in the United States.24 Joseph Carens provides the argument that laws, including immigration laws are only occasionally enforced to maintain order at a sufficient level. Immigration laws are not in the same degree of severity to those of murder and theft. They are more closely related to automobile traffic laws. When an individual commits a driving violation, the individual does not remain a criminal forever. According to Carens, a person residing for a minimum of five years with without any criminal convictions should be provided with full membership. The application of this theory suggests that states should restrain from grating occasional amnesties. Instead, states should establish an individual right for individuals to switch their status from nonimmigrant status to legal residency after a period of five to seven years.25 The literature provided is important because it contributes to the themes of national identity and their influence in the definition of citizenship. This literature relates to the main question because it creates connections between interpretations of national identity and exclusions of marginalized populations in the United States. My analysis toward a solution to

24

Carens, Joseph H. 2009. The Case For Amnesty. Boston Review. Retrieved from http://bostonreview.net/BR34.3/carens.php

25

Ibid

20

the inclusion problem for undocumented students will draw upon a liberal and communitarian ideologies. Although they seem to be conflict, the communitarian perspective will be drawn from a civic participation approach in relation to the residence claim provided by Joseph Carens. In order to demonstrate the civic participation and social membership tied with liberalism, we must first properly identify an undocumented student.

21

Chapter 3 IDENTIFICATION OF AN UNDOCUMENTED STUDENT In order to properly form a solution to the inclusion problem, a definition of an undocumented should be provided. An undocumented student is a foreign born individual who entered the geographical boundaries of the United States as a minor (under the age of 16) without legal documentation. Although it is commonly known that a minor is under the age of 18, the definition proposed does not include individuals who arrive after the age of 16. This is an important factor because the definition is meant to target those who enrolled in primary and secondary school in the United States. The importance of this education is a critical factor to the identification of an undocumented student. These individuals arrived to the United States at no fault of their own and are mere victims to the actions committed by their parents. Even if they hold no personal responsibility for their migration, they are now legally excluded in the country they were raised in. They are not eligible for most scholarships, cannot obtain a drivers license, and are barred from legal employment. This population has already integrated in society and think of themselves as American; however, they have no path toward obtaining citizenship. Although the age of arrival is limited to those arriving before the age of 16, there is no age limit set on this definition. There are many individuals who are currently in their 20s and even 30s who were brought to the United States before the age of 16. This group must be included in the definition because there has been no legislation that would provide them citizenship. These older individuals were residing in the United States after the enactment of the
22

Immigration Reform and Control Act (1986) and thus cannot claim residency under this legislative policy. The IRCA was a policy enacted during the presidency of Ronald Reagan intended to target employers and those who were residing in the United States without legal documentation. The policy provided legalization to undocumented individuals who had been continuously unlawfully present in the United States since 1982. The highlights of this legalization included the legalization of certain agricultural workers, sanctions for employers who knowingly hired undocumented workers and increase police enforcement of the United States/Mexico border.26 Since 1986, there has been no similar policy for undocumented students to receive legal immigration status. Would an individual be included under the definition if they arrived to the United States legally but overstayed the conditions of their visa? Unfortunately students who overstayed the conditions of their visa cannot be included in this definition. The primary reason is that they were never brought to the United States without their knowledge at an early age. Students with these visas have generally never been part of the American educational system or society. To enter the United States as a foreign student, one must first pass an application process. Even if they were brought to the United States at an early age, the conditions of the visa sets educational institution and economic requirements that are unattainable by undocumented students. The two student visas available are F-1 and M-1. An F-1 visa is for children who want to attend secondary school (9-12) in the United States. In order for a student to get this type of visa, they must have applied and been accepted to a school. Confirmation is provided by the school

26

U.S. Citizenship and Immigration Services.(2011). Immigration Control and Reform Act of 1986 (IRCA). Retrieved from: http://www.uscis.gov/portal/site/uscis

23

through an I-20 form. The requirement for this visa states that these students must pay the school system the full, unsubsidized, per capital cost. In addition, it explicitly notes that they cannot attend public elementary schools or publicly funded adult education programs. The M-1 visa is intended for foreign students wishing to pursue vocational or non-academic studies. These too are confirmed by the United States embassy or consulate with a form I-2027. These students must confirm that they are in good economic standing and demonstrate they can support themselves while they reside in the United States. In contrast, the majority of undocumented students under the proposed definition come from a low income background and never had the opportunity to apply and pay the full cost of tuition to an academic institution from their country of birth. The emphasis on primary and secondary education is very important because it provides a path toward the attainment of higher socio-economic status. There is a common belief among natives and immigrants that education promotes and provides opportunities for future career objectives. More importantly, education is essential to the claim of undocumented students because it shapes a form of belonging and integration in the United States. There are currently approximately 65,000 undocumented students graduating high school every year without the possibility to continue their career goals.28 As a country who values education it should come as a surprise that those who attend and perform well in the education system are not supported in the land of opportunity.

27 28

U.S. Department of State. (2011). Student Visas. Retrieved from: http://travel.state.gov/ Ramirez, Eddy. 2008. The Crash Course In Citizenship. U.S. News & World Report. Vol. 145, Iss. 4; pp. 46-47

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It is difficult to gather data on undocumented students because there are ethical and legal concerns about doing research involving children and youth. There is an ethical commitment in the area of research to keep the immigration status of the youth private. According to estimates, the children of the undocumented population residing in the United States make up 8% of newborns and 7% of school age individuals. Among the estimated 5.5 million children growing up with undocumented parents, approximately 1 million are themselves undocumented.29 These students arrive to the United States from all corners of the world. Although the majority of the undocumented students arrive from Latin America and Asia, the definition and inclusion problem consist of others as well. Field studies have shown that immigrant students (first generation) educated in the United States are more likely than natives, second-generation and foreign-schooled individuals to aspire and seek admission to four year colleges rather than community colleges. However due to their exclusion from financial aid programs and having the lowest income in the study, they are forced to attend community colleges or join the low wage workforce.30 Additional studies have been conducted regarding the dropout rates for immigrant generations. The study conducted showed results three generations: first generation (foreign-born children with foreign born parents), second generation (United States born children with foreign-born parents) and native students (United States-born children with United States-born parents). The long term educational attainment trajectories were observed with data provided by the National

29

Suarez-Orozco, Carolina; Yoshikawa, Hirokazu; Teranishi, Robert T; Suarez-Orozco, Marcelo M. 2011. Growing Up in the Shadows: The Developmental Implications of Unauthorized Status. Harvard Educational Review. Vol. 81, Issue 3
30

Conway, Katherine M. 2010. Educational Aspirations in an Urban Community College: Difference Between Immigrants and Native Student Groups. Community College Review. Vol 37, Iss. 3; pp. 209-242.

25

Longitudinal Study of Adolescent Health (Add Health). The population observed included a representative sample of adolescents in grades 7 through 12 from 19994-1995. Their trajectories were evaluated using capital models. The capital models that influence educational attainment in immigrant and native youth are human capital, cultural capital, school-level social capital and community-level social capital. Human capital is the practical knowledge, skills and learned experiences that shape the individual. In this study, human capital referred to work participation and English proficiency. Cultural capital is the predisposition of family mediated values that facilitate and promote the attainment of higher education. School capital is simply described as the school environment. Community capital is the neighborhood conditions because they shape the level of opportunity for adolescents. The differences in dropout rates vary on the levels of capital each student had available to them. The results of the study showed that those who possessed low levels of human capital had a higher dropout rate, but if cultural capital was added, first generation students had lower dropout rates then the other groups.31 First generation students were more likely than other groups to transform cultural capital into academic success in the United States. The dropout rates are lowest among immigrant children and highest among native youth. This study demonstrates that first generation immigrant students hold a strong value in education. The emphasis in education can be attributed to immigrant parents stressing the need for a better life to their children and identifying education as the key. In order to address the inclusion problem of the undocumented students, I provided a concise definition to correctly respond to the needs of this population. It is important to note that

31

Perreira, Krista M; Harris, Kathleen M; Lee, Dohoon. Making it in America: High School Completion by Immigrant and Native Youth. Demography. Vol. 43, Iss. 3; p. 511-535

26

the undocumented student population varies in age, ethnicity and gender. The emphasis in primary and secondary education is critical because it represents a form of social integration in the United States. Although there is limited amount of data on undocumented students, their graduating numbers and motivating academic objectives should be enough to properly address and find a solution to their inclusion problem.

27

Chapter 4 The Inclusion Problem Throughout the history of the United States, the political system continuously minimized liberal elements and defined American identity on other exclusionary interpretations. In many instances the combinations of the various forms of national identity allowed exclusionary forms to triumph over the definition of citizenship. These interpretations and their mixtures have long shaped anti-immigrant sentiment and legislation. The solution to their inclusion problem for undocumented students lays in making a moral claim for citizenship through residence while incorporating liberal and communitarian interpretations of American identity. The importance of the struggle for full membership for undocumented students is evident in their social inclusion within the area of education. The United States Supreme Court in its decision of Plyler v. Doe in 1982 asserted that states could not discriminate against undocumented students based on their legal status. The case was decided through the equal protection clause of the 14th amendment and concluded that undocumented children are people and had a right to primary and secondary school education.32 The issue revolved around the idea that children without legal status were human beings and deserved to receive an education in the

32

Chicago-Kent College of Law. Plyler v. Doe. Retrieved from: http://www.oyez.org/cases/1980-1989/1981/1981_80_1538

28

state where they would be residing. The decision to provide education regardless of immigration status granted a form of inclusion through social integration, but created exclusions by not providing legal membership. This exclusion comes with the inability to obtain legal immigration status in order to further their studies, work or even create a life in the United States. The bases for granting primary and secondary school education resonates with the idea of universal human rights proposed by liberal philosophy. Since primary and secondary school education is a basic right for all minors in the United States, granting them this right showed that undocumented students have a base for claiming social membership under an evolving liberal interpretation of American identity. As noted in the early liberal interpretation ideas, the federal government safeguarded the human rights of minors to primary and secondary education. With the help of this education, they developed social membership through residence, social connections, language and economics. The availability of education for undocumented students is an example of the evolving liberal ideals. This action furthers the claim for liberal principles because the early liberal interpretation of American noted that states should play an active role in protecting the rights of all individuals. An important factor contributing to exclusion is the social construction and issue framing that directly affects legislation and court decisions. Social construction is a perfect example to demonstrate exclusionary forms of national identity at work. The issue regarding undocumented student does not focus on the question of whether they are positive members for society. Unfortunately, the primary concern is that this population entered the country while undermining immigration laws, constructing them first and foremost as illegal without taking into consideration their personal character or circumstances. Social constructions revolving around a
29

legal presence in the United States is a faade which has been observed throughout history in order to preserve exclusionary American forms of citizenship. An example dealing with the social construction of undocumented students follows the debate whether to provide in state tuition to college students. This issue can be seen in the states of Kansas and Arkansas. Kansas allowed undocumented students to receive instate tuition under legislation H.B. 200 signed by Governor Kathleen Sebelius in 2003. In 2005, Arkansas approved H.B. 1525 in the state House of Representatives but failed in the Senate. The different outcomes were a result of the manner in which the issue was presented. Kansas focused on positive evaluations of undocumented high school students, portraying them as emerging citizens and professionals. In contrast, the Arkansas debate centered on the states jurisdictional authority to enact immigration policy.33 While Kansas approached the issue in a social and moral perspective, Arkansas approached the issue on constitutional grounds. Even if Arkansas directed their attention to the conflict of constitutional capacity, they should have provided instate tuition if they approached the issue with a liberal/communitarian perspective. Issues and debates arise in regard to undocumented students because federal legislation or a definitive court ruling does not exist. For this reason, policy recommendation in the area of federal policy will be proposed. In order to provide a valid claim for in state tuition, the state of Kansas introduced the concept of proto-citizens to describe undocumented students. The proto-citizen argument

33

Reich, Gary and Jay Barth. 2010. Educating Citizens or Defying Federal Authority? A Comparative Study of In-State Tuition for Undocumented Students. Policy Studies Journal. Vol. 38, Issue. 3; pg. 419-444

30

states that individuals are member of the economic and social society. They would continue to be residents of the state regardless of immigration policy. This concept was introduced after lawmakers in Kansas argued that the cost of providing in-state tuition would be offset by the productivity of the college bound undocumented student. In addition, this proposal was supported with notions of the United States being the land of opportunity and emphasized the importance of their hard work and personal responsibility. This concept resonates with the idea of Joseph Carens and the communitarian perspective because it concludes that individuals are residents of that particular state and have gained community membership and identity. Their inclusion in social membership is measured by their residence and not by birth in the particular state. Another supporting claim for full membership is evident in the area of civic participation. This civic engagement is defined as providing a social service, activism, tutoring, and functionary work. The research on civic participation shows that families, educational institutions, and organizations play an important part in influencing youth to be civically engaged. When schools organize volunteer opportunities, students are more likely to participate.34 For this reason the access to educational institutions is important because it develops and promotes the civic participation of the youth within their communities. School is the primary social atmosphere in where students join organizations and become civically engaged. A study showed that 90% of undocumented students surveyed ranging from elementary to college engaged in some form of civic participation. The data showed that in

34

Perez, William; Espinoza, Roberta; Ramos, Karina; Coronado, Heidi; Cortes, Richard.2010. Civic Engagement Patterns of Undocumented Mexican Students. Journal of Hispanic Higher Education. pp. 245-265

31

elementary, 38% were civically engaged; it later increased in middle school to 41% and continued to increase to 73% during high school. More specifically, 7% provided social services, 3% were involved with activism, 29% tutored and 55% performed functional work. Of the total active, 34% reported spending 40 hours per year doing volunteer work. Research has shown that youth who are civically involved continue to do so as adults.35 This data demonstrates that despite feelings of rejection because of their undocumented status, these students continue to be civically engaged. Although the study was conducted based on the Latin students, it demonstrates the civic engagement of the general undocumented student population. The concept of civic participation is closely related to the interpretations of liberalism and communitarianism. As a result of Plyler v. Doe, undocumented students are able to attend school and become part of groups and organizations that promote civic participation. The liberal interpretation that prompted this decision in education rights has provided undocumented students a pathway from which to be actively involved in their communities. The civic participation demonstrates that students are social members of their given communities. This activity is essential to the personal self because it determines and contributes to their personal identification to a given society. The work of Joseph Carens contributes to this assessment because it indicates that the residence of an individual allows them to have social membership. Within this claim of residence, a person is expressive of communitarianism ideals because their civic participation demonstrates the responsibility to their given communities.

35

ibid

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Chapter 5 POTENTIAL CRITIQUE In order to properly support the argument for liberal and communitarian interpretations as a solution to the inclusion problem we must also provide the arguments against extending full membership to undocumented students. These critiques must be identified and provide whether they reflect other schools of thought. It is important to provide opposing viewpoints and identify their deficiencies in providing full membership necessary in a progressive society. The Americans for Legal Immigration Political Action Committee have vigorously opposed colleges offering admission and discounted tuition to undocumented students. They believe that at a time of economic hardships, there needs to be a focus only on American citizens. The Federation of American Immigration Reform (FAIR) added that in-state tuition should be a benefit only to legally present and citizen students because taxpayers support the institutions.36 This critique has a focus on a republican perception and challenges the communitarian position of granting in-state tuition. The belief that education should be provided only to citizens is an exclusion attempting to create an enclosed society. Independent of whether we believe that higher education is a privilege or a right, the critique is exclusionary in principle. The claim basically states that even if undocumented students form part of the social community,

36

Ramirez, Eddy. 2008. The Crash Course In Citizenship. U.S. News & World Report. Vol. 145, Iss. 4; pp. 46-4

33

they are not legally protection under state law to receive in-state tuition. It is contradictory that an undocumented student is considered a member of society under penal code of the state and is still excluded from equal access to education. There are currently thirteen states that allow undocumented students to pay in state tuition. The states provide this opportunity to students because they are physical residents of the state. They have lived in their respective states for many years, even before they applied to post-secondary institutions. An undocumented student who resides in a state is not the same as a student who moves from one state to another. Students from neighboring states cannot claim in state tuition in a different state for the obvious fact that they have not resided long enough in that particular state. There is also a belief that undocumented student admitted to community colleges and universities take up seats of U.S. citizen. Undocumented students are not admitted to universities based on their legal status. They are accepted as a result of their academic achievements. They compete with other students who, like them, attended primary and secondary school in the United States. As previously states, undocumented first generation students tend to do better academically than citizens. They apply to four year colleges at a much higher rate than the rest. Some critics claim that undocumented students should leave the country and reapply for admission into the United States. The idea that undocumented students should return to their country of birth and reapply is extreme. Those under the proposed definition of an undocumented student arrived to the United States as minors and hold no blame for decisions made by their parents. They also hold no personal ties to their country of birth and already think of themselves as American. Forcing these students to leave the country is equivalent to stripping
34

someone of their U.S. citizenship and forcing them to apply for reentry. Even if this proposal was taken seriously, the application process for entry in the United States is broken. The visa allocation system for work and school permits is no longer functional. The current wait for business-sponsored green card requests is six to twenty years. This is an unrealistic amount of time to hire new employees.37 Under current immigration law, if an individual is instructed to leave the United States by an immigration judge, they would have to wait ten years before they could attempt reentry. This critique also has bases on republican ideals of national identity. The republican foundations support the exclusion of foreign born individuals out of fear to disintegrate the collective. Their expulsion from the United States only to have them wait an undetermined amount of time for reentry and basing the decision on historically radicalized immigration policies is exclusive. Although this critique does not go as far as to imply superiority as would the ethno-cultural interpretation, it aims to reduce diversity. There are people who also claim that undocumented students are inherently different than the rest of American society in terms of ethnicity, culture and values. This critique most represents the ethno-cultural interpretation of American identity. This may support a system that tries to formulate an imagined community with the ability to rule, regulate and enforce culture boundaries. The important thing to know is that citizenship is comprised of two sides; one legal, the other cultural. The legal aspect is the relationship between the individual and the state. The cultural citizenship aspect is distinction in sense of belonging, entitlement and influence in different communities. This sense of cultural constitutes the manner in which people struggle to

37

Suarez-Orozco, Carolina; Yoshikawa, Hirokazu; Teranishi, Robert T; Suarez-Orozco, Marcelo M. 2011. Growing Up in the Shadows: The Developmental Implications of Unauthorized Status. Harvard Educational Review. Vol. 81, Issue 3

35

maintain their rights and be different without compromising their right to participate in the states democratic process. While individuals have their own ethnic and cultural identification, this form of identity should not interfere with the legal citizenship of an individual.38 There has historically been a sentiment that the meaning of American is associated with being fully white and having the same culture. Although individuals may have a different cultural background, they must be provided legal membership in order to participate in the nation state democratic process. The critique proposed against extending full membership is absurd because the United States is a diverse society with progressive liberal features extending full membership to other groups. The assessment that citizenship is comprised of legal and cultural membership is important because it demonstrates the need for each individual to practice their cultural heritage while at the same time practicing their legal membership in the state. The United States is a melting pot with many distinct cultures and ideas. The interpretations of republicanism, communitarianism and ethno-cultural Americanism fail to realize that the individual along with his own personal characteristics is what makes up America. It is possible to maintain ones own personal social and cultural characteristics while at the same time exercising your right to vote, work and participate in the overall means of democracy. The critiques exposed by anti-immigrant groups and others vary in their basis but they all form part of the exclusionary forms of national identity. Although it is important to introduce critiques against extending full membership, it is equally important in identifying their

38

Meeks, Eric V. 2007. Border Citizens. University of Texas Press. Austin, Texas

36

exclusionary intentions. The critiques are examples of the many claims expressed during the legislation of immigration policy. These and many more critiques were presented during the proposed Dream Act legislation in 2010. Now that we have provided samples of possible critiques, we can assess policy recommendations directed at undocumented students.

Chapter 7 POLICY RECOMMENDATIONS A legislative approach is necessary to attain to the needs of undocumented students. The policy recommendation will be developed in relation to proposed and active legislation. There are factors in the Development, Relief and Education for Alien Minors (DREAM Act) that can be adjusted to respond accordingly to the needs of undocumented students. The Dream Act (H.R. 6497), as introduced in December 7, 2010 would provide conditional nonimmigrant status to undocumented students. Individuals with conditional nonimmigrant status could lawfully live and work in the United States. They would be eligible to receive some tax refundable credits, social security, Medicare and federal student loans.39 Undocumented students could quality for conditional nonimmigrant status if they: Were less than 16 years of age when they entered the country Lived in the United States for at least five years prior to the bills enactment

39

Congressional Budget Office. (2010). Development, Relief , and Education for Alien Minors Act of 2010. Retrieved from: http://www.cbo.gov/ftpdocs/120xx/doc12015/hr6497.pdf

37

Are high school graduates or current students who have been admitted to an institution of higher education or have a general education certificate degree (GED)

The conditional nonimmigrant status would be divided into two time periods. The initial status would have an application fee of $600 and would be valid for a period of five years. During this time, the individual must earn a degree from an institution of higher education, complete two years toward a college degree or serve at least two years in the military. If these requirements are met, the individual could extend their conditional nonimmigrant status for another five years. After ten years, they would be eligible to apply for permanent legal residency. A permanent legal resident must wait an additional three years to apply for citizenship.40 Although there have been several versions of the DREAM Act, H.R. 6497 provides a more comprehensive outline for constructing a solution for undocumented students. The Dream Act (H.R. 6497) crates a path toward providing legal residency and ultimately the opportunity to obtain citizenship. However, under the conditions of the Dream Act, an individual would have to wait a total of ten years to apply for permanent residency and a total of thirteen years to apply for citizenship. Instead, I would recommend providing nonimmigrant status to minors within the first three years of entering the country. This is necessary because many minors are in need of medical insurance, services and care. This could add to a healthier society and minimize emergency healthcare costs. In addition, since the age is stated at younger than 16, it would give undocumented students the opportunity to apply for colleges by the time they graduate high school. These are the only major modifications to the currently proposed

40

Palacios, Moses. 2010. The Dream Act Explained. Journal of College Admission.

38

federal Dream Act that would be necessary. The federal Dream Act has been consistently introduced to a vote in the House of Representative and the Senate along with other bills attached and failed. It is essential for the Dream Act to be voted upon as a standalone bill. This may give it more of a possibility to pass in Congress. In order to bring change through legislative proposal and reach a bipartisan solution, there needs to be group representation. The policy process contains two parts; one is the perception of who the policy will be directed to, determining whether this population is powerful or weak. The second factor is determining the policy targets are good or bad people. Those who are at an advantage are the powerful because they are generally positively constructed in the public sphere. This is important because this leads policy makers to derive clear political opportunities favorable to powerful populations and burdens to the negatively constructed or powerless groups. Since undocumented students provide little to no political payoffs, their needs are disregarded and classified as unimportant. Although we can propose numerous legislative recommendations, there needs to be active groups and legislative individuals representing undocumented students in order to stabilize injustice. Legislative individuals include congressmen and other figures that can represent marginalized populations in the public sphere. The activism of legal groups is necessary for the democratic process and to increase political liberty and human well-being.41 Only through the representation of active legal groups, can excluded groups like undocumented students ever form part of a successful legislative movement that will lead to legislative success.

41

Dahl, Robert A (1982). Dilemmas of Pluralist Democracy, Autonomy vs. Control. Yale

University

39

Chapter 8 Conclusion The different forms of national identity and citizenship play a significant role in the inclusion problem of undocumented students. This can be seen in the historical exclusions of groups who were born inside the United States but were not granted full membership. This phenomenon could be seen in the exclusion patterns of women and undocumented students. The application of liberal principles to the idea of an evolving society can be applied to the idea that the United States constitution is also subject to change. Liberal ideas can be employed to claim basic rights by every human being in the United States regardless of race, gender, sexual orientation and even immigration status. The same claim can be made by undocumented students and other marginalized groups. The claim for legal membership can come through constitution of the United States because it is a claim toward life, liberties and pursuit of happiness. The essential rights in the constitution are all phrased in terms of the people. These universal rights now hold a canon of truth and make no distinctions by legal status. The other interpretations of American identity are irrelevant to the need of undocumented students. The republican, communitarian and ethno-cultural interpretations all attempt to create
40

a homogenous society through the use of small republic or religion (what does the right through residency that Carens proposes fit? Your earlier suggested this was key). In a realistic perspective, there is no plausible manner in which government representatives can naturally or immediately respond to the needs of undocumented students. For this reason, groups are needed in a democracy to represent the needs of underrepresented populations such as undocumented students. (what are the prospects for a view of citizenship grounded in liberal universal principles as well as the principles of residency to gain ascendance in the US? Do we have any precedents to go on?) Exclusionary forms of national identity such as republicanism and ethno-cultural Americanism have been implemented in American policies throughout the history of the United States. These interpretations have played a significant role in the formation of immigration policy. The desire to maintain a homogenous society with common characteristics served as the basis to provide admission to citizenship based on race, religion, culture and gender. In addition, debates arose in the ability of immigrants to assimilate and learn English. Questions were asked if the birthrates of immigrant groups will outpace birthright of white Americans and whether immigrants bring diseases to the United States. Prior to WWI, ideas such as biological essentialism and eugenics were granted a form of validity. Today, current scholarship has proved that race is socially and legally constructed and not scientifically, genetically, or biologically different. It is unfortunate that an ethno-racial criterion supporting population

41

differences were common in legislation up until 196542. The fear of white America being diluted by immigrants who were racially and culturally inferior created a climate in which restrictive immigration policies were passed in 1921 and 1924. These laws imposed quotas to dramatically restrict immigration from Southern and Eastern Europe. The same principles were also seen during the enactment of the Chinese Exclusion Act of 1882. In contemporary policy, there are still exclusionary forces behind building border fences, passing English only propositions, eliminating bilingual education for the purpose to limit the number of undesirable immigrants 43.

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