 Evenly a professor here at the school, I'm very briefly going to just go over a few of the just as what people who didn't have been in the yesterday's panels. First, the event is being recorded, so just keep this in mind whenever you raise your hand and ask questions, it will be available on the web as we move forward. Second, if any of you need access to the internet and are not affiliated with UCI, just let me or any of you who are registered will be able to attend these now and they'll get you online. Third, we encourage you during the downtime of the school to school. We are only in our third year of existence, our second year of regular students, and we're very excited to actually have guests here at the show-off facilities, and I especially encourage you after lunch to go visit a library, it's a beautiful space, and there are rocking chairs, and we just doze off and soak in all the wonderful things we've discussed before. We're getting a little bit of a late start, obviously. Originally we were sent to conclude at the first panel, but given our late start, we will conclude at the end of the day, and with that, I'll turn it over to the ladies. Welcome everyone to our Claims to Membership panel, and I just want to start by thanking Stephen again for all of his organizing work and putting this wonderful symposium together, and I particularly appreciate the opportunity to participate and engage with this particular panel and the wonderful papers that we have on it, and I just also want to stress how wonderful it is to have our law school here, to have our wonderful colleagues here in the law school, and the law students are fantastic. I don't know how many people have had a chance to interact with them, but there are a number of them here, there were a number yesterday, and they're really, really, really wonderful. So let me turn to our particular panel. The Claims to Membership panel certainly addresses persistent puzzles. Namely, what are the basis for membership? What forms does membership take? How does granting membership to staff simultaneously repudiate others? And are there alternatives? Alternative forms of membership alternative means of deciding that preserve both human dignity and societal cohesion. I'm going to introduce each of our speakers, and I'll talk for about 15 minutes, and then we'll have time for questions and answers. Christina Burnett is Associate Professor of Law and Milton Handler Fellow at Columbia Law School. She co-edited the Volume Foreign in a Domestic Sense, Puerto Rico, American Expansion and the Constitution, which was published by Duke University Press in 2001. She's published a number of articles on the constitutional implications of American territorial expansion. She holds degrees from Princeton, Cambridge, and Yale, and today she's going to be speaking about the invention of nationality, empire, and the law of citizenship. Hiroshi Monomira is the Susan Westberg Prager Professor of Law at UCLA Law. He's the co-author of two immigration case books, and a number of other folks have read these. Immigration and Citizenship Process and Policy and Forest Migration, Law, and Policy. This book, Americans and Waiting, the Law Story of Immigration and Citizenship in the United States was published by Oxford University Press, and it won the Professional and Scholarly Publishing Award for the Association of American Publishers and was selected as the year's best book in long legal studies and was chosen by the U.S. Department of State and suggested reading lists for Foreign Service Officers, which I, that's really interesting. Lenny Folt is, which is not a comment on your book, Lenny Folt is Professor of Law at the UC Berkeley School, oh, I'm sorry, Anne, let me take the title of your presentation, is Who Belongs in Law, Birth, Rights, Citizenship, the Dream Act, and Legalization. And Lenny Folt is Professor of Law at UC Berkeley, the School of Law. After graduating from Columbia Law School, she quit for Judge Salton E. Henderson of the Northern District of California. She's received multiple awards, including the Derek A. Bell Jr. Award, presented by the ALS Minority Section, two Rockefeller Foundation Humanities Scholarships, a McCarthy Foundation Individual Research and Writing Grant, and she's delivered a number of important talks, including James A. Thomas Lecture at Yale Law School, a lecture at NYU Law School, and Columbia Law School. Our presentation today is on membership through recidiation. So I will take the microphone, or does, is that one turned on? So do I? So do I? So I want to join the course of Voices, thanking Stephen Lee for all the work he put into this conference, and for inviting me to be a part of it. Just to check on claims she did nothing, I'm going to thank her anyway for whatever it is she didn't do. And I want to thank UC Irvine Law School as well for hosting it, Brittany Rodriguez, for being so incredible at dealing with all the logistics, and all of you for being here. So this paper, the Invention of Nationality, Empire on the Wall of Citizenship, is an early foray into what I think will be a history of nationality under international law of uncertain scope as of yet. Those of you who had a chance to look at the paper know it's very rough, early draft. Really what I do in this paper is look at a set of discussions of nationality in international law treatises in the 19th century, where I feel like I found some interesting stuff. What I'm looking at in particular is the way in which these treatises tease apart the concepts of citizenship and nationality. And they do so in an era of American and European imperial expansion and colonial governance, and in a manner that is completely entangled with that colonial governance. And so this is something I'm trying to sort through. It's a truism that citizenship is a constitutional concept and nationality is an international concept. But the terms are often used interchangeably. Often authors will say these are different, but we're going to use them interchangeably. And so I wanted to dig into why they're different. I wanted to think about why we keep having two different concepts if we can use them interchangeably. How far can we go in using them interchangeably? What are the roots of this and what does it mean when we can't use them interchangeably? Even before starting this particular project, I knew that this distinction between citizenship and nationality had emerged in the U.S. context in the era of U.S. empire, the era of U.S. formal empire. That is the moment around 1898 when the United States took sovereignty over places that it didn't intend necessarily to admit into statehood, Puerto Rico and the Philippines and Guam, and later took some other places. So in this moment, this distinction comes into being, and that is all about empire in that context. So this is my effort to kind of look beyond the U.S. context and see where this story fits in. And I have found that it is a story about the formation of international law itself, its emergence in its modern form. So I'm going to talk about that. In particular, I think the story I'm telling is a story about the way in which the emergence of this distinction between citizenship and nationality is symptomatic, exemplary of the mutually constitutive and mutually legitimating relationship between empire and international law in a certain period of time. It is also, hopefully, going to be a story about actual people and their lives. I like to speak to myself as a historian, so I want to tell stories about people. There are not a lot of people in the current version of the paper, but there is one. And I'm going to start with her story. This is a story I've written about in more detail elsewhere. I'm going to tell you about it so that you see what the motivation behind this paper is. So I'll start with that story, and then I'll turn to the tree. This is telling what I'm seeing there, and hopefully you can help me figure out where I go from here. So first, the story. The story is the story behind the case of Gonzalez v. Williams in 1904, U.S. Supreme Court decision in which the court considered the citizenship status of the inhabitants of Puerto Rico and, by implication, the Philippines. So the story begins with a woman called Isabel Gonzalez, a young woman who is pregnant. She's 20 years old. She travels from Puerto Rico to New York in 1903, and she stopped at Ellis Island and excluded on the ground that she was likely to become a public charge. She has family in New York. Her aunt, her uncle, her brother all come to Ellis Island to try to get her released. They say that they will take charge of her, that she will not become a public charge, that there's no reason she would, but that they will make sure she doesn't, if for some reason she can't support herself. The immigration authorities want to know where the husband is. So there's these transcripts of these discussions. You want her husband to come and get her. Eventually it comes out that in fact there is no husband, but there's a man she is going to marry, who is the father of the child. Her brother, who was feeling talkative for some mysterious reason, explains that the guy might not really want to marry her, but don't worry, we're going to make him marry her. And the immigration authorities don't like it. And so they say, no, she can't come in. Isabel Gonzalez herself argued that she, and this is recoverable through the sources, she's not even the transcripts of voices within these transcripts, but there are letters in the sources of hers. She argued that she was a U.S. citizen. There was no reason to stop her at Ellis Island. She was a U.S. citizen. Immigration authorities didn't have jurisdiction over her at all. She said because she was a native inhabitant of Puerto Rico, and Puerto Rico had been annexed by the United States just a few years before. And by virtue of the operation of international constitutional law, she was supposed to be a citizen. So what was the issue? She filed Hayley's petition. Her aunt and uncle found her a lawyer who soon found some powerful allies. There were lawyers who were interested in getting involved in the litigation over the status of the new territories. These were very important cases at the time, and the allies she not surprisingly ended up finding was an international lawyer called Frederick Kudair. He had litigated the first round of the insular cases, which are the 1901 cases that considered the status of the new territory. So they didn't address the inhabitants specifically. They addressed the territories, and famously held that the new territories annexed in 1898 were foreign to the United States in a domestic sense. So the port came from a sort of intermediate status, not part of the United States, but not foreign territory. This was all out of the debate about what to do with these places if you weren't going to make them states, right? So Kudair had been involved in that litigation, and he jumped on board for this litigation, took her case to the court, and they won a partial victory. The court held that the inhabitants of Puerto Rico were not aliens, so there's that term, aliens under the immigration statute then enforced. But it did not reach the question everyone thought it was going to reach, which was the constitutional question of whether they were citizens under the 14th Amendment, which as you all know, makes persons born or naturalized in the United States. Citizens of the United States, okay? So the question of whether the United States and the 14th Amendment included those new territories was looming for the court to answer, and the court sidestepped it, said as far as we're concerned, she's not an alien under the current immigration statute, and so she's not subject to the jurisdiction of immigration authorities. We're not going to whether she's a citizen. So for Isabel Gonzales, this was very much a partial victory because she wanted to be recognized as a U.S. citizen, but she was allowed to enter New York. This puzzle of the U.S. citizenship of the inhabitants of the U.S. territories remains unresolved. It is still not decided whether or not the United States in the 14th Amendment includes them, which is kind of interesting because we all think of subject to the jurisdiction thereof, that phrase in the United States, in the 14th Amendment, as the limiting clause, and in fact, for the purposes of the unappropriated territories, this is how these places are known, not incorporated into the United States, it's actually the United States that's the limiting clause of the 14th Amendment because it does not appear to include them, but it's not subject. Okay, so that's this case. The court, by holding that she was neither alien nor citizen, opened the door to an intermediate status, which emerged, developed into the status of the non-citizen U.S. national, a status that still exists in U.S. law today. Kudair, being Isabel Gonzalez's lawyer, had argued mainly that she was a U.S. citizen, he made the argument that she was making, but he had made, like a good lawyer, an argument in the alternative, he suspecting probably that the court was not going to call her a citizen if Congress had not already done so. Okay, so I guess I forgot to mention that after the annexation of Puerto Rico, Congress did not, obviously, pick this up right and confer U.S. citizenship on the inhabitants of the new territories, and this was a break with past practice, the Western territories that the United States had conquered throughout the 19th century. All those, all the people in those territories had been made citizens pretty much right away, but at this moment in 1898, Congress declined to give citizenship to the inhabitants of Puerto Rico and the Philippines, called them citizens of Puerto Rico and citizens of the Philippines instead. Nobody knew what that meant, and nobody knew what that meant even after Gonzales being willing. So Kudair had argued, of course, she's a citizen, but in the alternative, he argued, if you don't want to call her a citizen, you should call her a national, and he was very explicit about this being a term that would be useful for giving effect to something that might otherwise be controversial, troubling, unacceptable, right? He said, you know, we have a word for what she is. She is a subject. She is a person who owes allegiance and gets protection, but she doesn't get any rights necessarily. That's what subjects are. We all know what subjects are, but we don't talk about people that way in this era of constitutional republics. He was, one doesn't have to sort of dig through. He just says this. He says, call her a national instead. It's this new term. It's the vanguard now. The international lawyers are all using it. It's very useful. The international lawyers are using it to describe what empires do all over the world. And what it does is, it gives you a way of talking about people that you don't necessarily want to give rights, but you want to assert sovereignty over. So this is perfect for us. So, you know, I could have just, I suppose stopped there, but I wanted to kind of chase down those references that he was talking about and see what was going on. But he, Kudair himself, lays out this dynamic that I described. Court did not adopt the term. It just adopted his logic. So it said, in its opinion, she is an American, but she is not a citizen. Which prompted letters both published and published from Puerto Rico and saying, how can you be an American and not be a citizen? You've never heard such a thing. Well, of course, there were samples of that in American history, but it wasn't supposed to be possible really after the 14th Amendment. It turned out it was possible in a new way. So let me turn to those sources that Kudair was talking about. The sources. Basically, I'm just briefly going to describe what I see in these sources and give you a few quotes from the paper to support what I see happening in them. There are three moves in the sources. First, there's a definition of a distinction or the identification of this distinction between citizenship as a domestic concept and nationality as an international concept. Then there's an effort to show how international law is especially well suited to dealing with certain problems relating to membership that don't have anything to do with domestic rights. There are problems that arise at borders, where there's conflict among nations about what to do with people or where there are imperial problems to deal with. Then the sources declare the domestic problems off limits to international law. We're not interested in rights here. We're interested in international law. What's going on here, and really the larger project that this comes out of, is there's an effort to build a modern international law. I think my larger project was more about international law and the late 19th century development of an international law profession and the teaching international law in law schools and all that kind of stuff. That's what I see happening here. I use the development of an international law of nationality as an example of the way in which the construction of international law depends on putting certain issues off limits and in that sense, in some sense, giving them legitimacy. The first step, defining the distinct concepts, I'll use the example of the treatise writer Kruger cited most frequently in his briefs, George Havordam, who wrote a treatise on nationality in which he said, again explicitly, we need a concept to describe what these empires are doing so that we can then use international law to manage what these empires, to intervene in what empires are doing, to deal with the problems that arise among these imperial powers. He described what he was referring to as naked nationality, nationality to new. So he said, everything concerning nationality depends on the interior organization of the constitution of equality, except when it comes to naked nationality, naked nationality belongs to international law, he said. By everything, he explained, he meant the rights and obligations of citizenship, which he said ordinarily flow from nationality, but as Michelle C. said, do not have a necessary or essential link to nationality. So let's bracket all that rights stuff and deal with naked nationality. And then to illustrate what he meant, he drew on imperial practices in particular, the colonial, French colonial governance, where he gave examples of the stripping down of membership in order to declare sovereignty over people without any rights implications. So one example that he emphasized was the example of Algeria, where a segment of the population in 1865 declared France a non-citoyan, so French but not citizens. This was prominent among his examples in his brief in the Dallas, which maybe were the perfect idea that she was American but not a citizen. So as you can see, part of what's at stake in this work is challenges to American exceptionalism, historical historians and more, but here's yet another example of the way in which the United States was drawing from and participating in the late 19th century European imperialist practices that we have tended not to think of in the United States as being quite a part of. So that's the first step, distinguished between the two concepts. We need naked nationality, that's what we have to work with. Second move, right, show how international law is suited to resolving certain problems using this building block of naked nationality. So armed with this concept, Cogordon and others worked to build an international law of nationality by articulating the rules applicable to stripped down or naked nationality, and these are rules that we know, so everyone should have a nationality, no one should have more than one, everyone should have the right to change their nationality, no one should lose a prior nationality until they get a new one. Everyone should have more than one, everyone should be educated or appear in every treatise in some form or another. Everyone should have one, no one should have more than one, everyone should be able to change it and continuity, you should lose your previous one until you have a new one. So the treatise is sort of trying to lay out one of the basic things we can say about naked nationality, about getting into domestic issues of rights. Territorial annexation, as I've suggested and as is obvious, was one sort of fertile source of nationality related rules. For instance, a change in sovereignty affects a change in the nationality of the inhabitants, this was something that international law writers looked at and Pirates did this in some form or another, or arguments about whether a plebiscite was necessary, there were arguments about whether or not a change in the territory status implied a change in the inhabitants status or whether these two things had to be considered differently. Yes, and right, and so here we see, right, this will play out in Anzala's case, she said she was drawing on this knowledge somehow, right, she said change in territory, change in my nationality and the court said sure, it just doesn't give you citizenship, which wasn't the move that had been expected. Another role was that the inhabitants of Spanish territory should have the right of election to choose the citizenship of the former sovereign or of the new one. The US had offered this choice in the past in Mexico when it took that territory and Alaska when it took that territory with exceptions for the native inhabitants who were always conceived of, right, as semi-civilized or uncivilized savages living in tribes or whatever so there was this exception for people we don't know what to do with and so they in the trees were exempted from the right of election, well with Puerto Rico and the Philippines exception became the rule. The native inhabitants, which is basically almost everybody in Puerto Rico was left in a limbo and not given the right of election, the only Spaniards who had the right of election in these territories were the ones who had been formed in Spain. Third move, insulating from domestic scrutiny, you better have to rush through this one because this is really the crux of it, but I'll just give you a couple of quotations which is what I was going to do anyway. This is all coldly calculated. Okay, so and this is, so here's something else at stake, right, at stake, American Inceptionism, at stake. This notion that we have that the late 19th century was the heyday of strict territorial sovereignty, right, and that now we've somehow discovered that territorial sovereignty is a fiction, well as it happens in the late 19th century, the era of period of expansion and colonization, far from an era in which anybody thought anything so simple as nation-states are need-territorily-bounded, billiard-vault type entities. On the contrary, and here's one example of thinking around sovereignty and boundaries. This is John Westlake, his international, very influential, international law treatise. He writes, the exclusion of international law from relations between the king number of India and the native states under his suzerainty, which we have seen to be the imperial principle, requires the frank adoption of international law up to the point at which the empire, including those states in India, is marked off as one of its units, okay. So international law doesn't stop at the nation-state boundary, it stops at the imperial boundary, okay. That idea then operating in the following passage, I've just got a couple more moments, probably here right now. All right. The status, writes Westlake again, of member or national is not limited for international purposes by the fact that for internal purposes, distinctions may be drawn between different classes of the population, none of which have any tie to any other state, okay. And then you give these examples, name and rights of citizen are refused by the French to Algerians, same thing with the United States and the Indians and Filipinos, this is this phenomenon we see everywhere, right. Since such differences, that is domestic differences in rights and status, give no footing for the exercise of any foreign authority within the territory, the classes characterized by them must be embraced as against other states, by the state which assumes the exclusive authority over them. They are not aliens, they are nationals, okay. So I had a couple of other great quotes, but with a sign that says zero minutes in front of me. I'm going to leave you with that one, which is probably the best one I have of that move from first international stops at the imperial boundary to then we need this term national to, you know, to put off limits to ourselves, this phenomenon of international hierarchy, why not out of some like evil plan to press people, although pressing people is possibly part of the project. Naturally not, that's part of the project and one has to think historically about this, right. But the idea that you need to set this stuff aside in order to give international law the authority that it deserves in its realm, that's very much an operation here and so I will leave you with the thought that I'm not sure where I'm taking it but I wonder to what extent we can see these imperial legacies in our current legal frameworks and wonder what we can do with this history to enlighten ourselves about how the ways the legal categories we use operate today. Thank you. I'd also like to thank Jenna Kern, Brittany, and Steve especially. This is really a wonderful event. Thanks for bringing us all here to see this. It's exciting to be, it's not just there's symposia, but this is the first law we're supposed to use here and it's I've never been involved in Volume 1 of anything before so it's exciting. So I want to think of what Christina is in her project which is really exploring the zone that we have between citizens or what we might think of as full citizens and not second class citizens and other forms of belonging for such a status. I'm going to move it forward I guess the present day and really I think address the same topic but in a somewhat different way. So I need to spend just a few minutes framing this where this work is coming from. It's a work in progress which is sort of embarrassing to say because I'm saying this is about this Friday for about five years. It starts with the book that Susan mentioned, America's Leading and this was a book really about how we treated I suppose legal immigrants over the last two or three years and it's a way of thinking about I think the fundamental dilemma of immigration law which is the whole idea of equality or in quotes you know on citizens which is really the question here that Christina is raising in a slightly different form which is that of equal belonging but this is a different part of this dilemma which is how can we think about equality and equality, we initially committed to equality but then have a line between citizenship and citizens and non-systems which of course is an equality to begin with and one of the ways I think about this and come to think about this is that it really depends on how the transition is negotiated between immigrants and citizens. We're going to have access to citizenship that's supposed to be proposed and that changes very much the moral quotient of what borders if their borders are permeable. So in this other book so I developed these three ideas some of you may have heard me talk about many times but it's this idea that if you look back over American history there are several types of claims that are being made or have been made to belonging, claims to membership and one of them is the idea that it's based on sort of some commitment or some contract, some kind of promises of expectations, reliance, notice things like immigrants promise not to go on welfare or visa says you just leave the thing with the harvest we give you a license to come in we can develop a license so that's what I'm calling a gracious contract in this other book and then maybe affiliation is a very different concept even though they both in terms of contract overstating the visa they have claims based on their state, their tithes, their taxes these are all familiar terms and the term they're not usually but I think the concepts are familiar and perhaps even obvious that we hear this the burden of that book is to really talk about immigration as transition which I think was much more seriously taken much more seriously in the 19th century at least with regard to immigrants and citizenship the idea that we're treating immigrants from the day they get here is that they will be U.S. citizens and that's the title of the book Americans and Waiting so this project is really a very different one or built on this and it really starts with the idea that there are it's really as how much of a supply is to people who are undocumented or illegal or unauthorized whatever term you prefer to use can these concepts be used without the law and that's so here's what I sort of worked out at least tentatively, I'm interested in your criticism and comments on this is that what about unauthorized migrants so there's a couple ways to think about this and there if I think about all the arguments that are being made, the claims to membership one of them I think there are a lot of pragmatic arguments I'll give you the illustrations of this here let me just start with just sort of the overall framework I think there are pragmatic arguments being made and I'm going to distinguish those preparedness arguments in other words, pragmatic arguments are arguments such as if we don't provide legal status to people they will they will not be treated as society or they will do bad things there are some of the distinguished preparedness arguments which I think do draw upon these ideas I mentioned one could argue that someone who was a child who came to this country or was brought to this country has not really broken any sort of contract that would be an example of a contract based argument for legal status for unauthorized migrants I want to distinguish that from what we often hear which is that people have contributed to this country that's a fairness argument or why undocumented women stand it's just very generalized and oversimplified but I just want to think about this as a way of count the ideas that we often hear in today in this course of immigration as contract immigration affiliation how they might apply or how they might overlay on to the things you read in this paper about the Dream Act, the legalization and a number of other things so my sense of this is that if you think about the immigration contract or affiliation arguments and you combine the fairness arguments and pragmatic arguments also I mean they do overlap as the circle suggests then you really can start saying that if there are strong arguments based on pragmatics or consequences for legalization if there are strong arguments for fairness for legalization that maybe that there are ties and stake in this country there may also be the idea that there is some sort of an understanding that migrant workers even those who are coming out of the long war in the same sense invited or brought here that's one way you can construe what it might be to have an immigration contract but here, you know that's the idea of them that if they're unionized and assembly based on this combination of arguments of pragmatic and fairness arguments then that's really at the point in which you should start thinking of them as Americans in waiting I think of the phrase Americans in waiting in the context of it turns out that the public of Toronto, the head of Indian War made a big speech in Washington DC and he got up there and he said he said, you know, undocumented immigrants they're Americans in waiting so I don't know, I was kind of thrilled to use that phrase but maybe it was very humbling in this sense because maybe you realize how everything we do as a legal academic we think that some of our other write stuff that shows up immediately but I just really realized that it's really what our students do that matters because I mentioned this one of my students outside that I was that the public of Toronto used this phrase on the Washington wall and she said so it's really her it wasn't me okay, so here's what I want to do I just want to lay out a way of thinking about the arguments that we hear and read whether it's in New York Times or Fox News or just a blog somewhere and think about past the lawful immigration status which I might as well retitle claims to membership so here's a simple make things okay, I'll talk about the Dream Act a little bit and then sort of let's think about the arguments that are made for the Dream Act okay and disclaimer that I don't oversimplify I just want this to be suggestive of ways to think about different claims to membership that are made four different things and that these claims are different from each other in terms of the pragmatic in fairness so I mean we often hear the reason you need to have past the Dream Act is you have to create another class in this society I mean I think that's a pragmatic argument there's also a more affirmative way of thinking about it is that this is going to tap into the capital whether it be through formal higher educational but you also hear fairness arguments tithing the US that would be an affiliation based argument but you also hear the innocence argument which I think it was a contract based argument and also one that there's no breach because there were kids when they were talking now broad legalization what I want to post to you was a question is how do these arguments differ from the arguments for legalization in broad scale and I think I want to think about this both as a conceptual matter but also as a challenge to people who advocate for both things how do you argue for the Dream Act if that's your point of view politically how do you argue for the Dream Act if it's not so subtle or not so subtle way undercut the claim or the case for claims for membership in the context of broad legalization so birthright citizenship is an interesting comparison I'm going to fill in some things that may not be a lot of what do you call what do you call it interesting I mean I think a lot of the arguments for this birthright citizenship are very much part of that I think the conceptuality is a strong similarity between birthright citizenship and the Dream Act and interestingly the political posture and the legal posture is very different because of course the Dream Act isn't law but it's very interesting that you see the same kind of arguments again I don't need this to be complete or even that precise as much as it is to suggest ways of understanding over here this is something that's a little bit less intuitive which is how do we think about refugees refugees in some sense are also unauthorized migrants or illegal aliens in the sense that they arrive without papers but we've so normalized our treatment of refugees that we don't even think of it as a membership but it's interesting that one of the primary arguments for refugees is that now there are a bunch of them I'm only going to list one which is sort of to think about the international effects of our services as an aspect of foreign policy but there's a fairness argument you need to protect and it may be that it overrides in a breach if someone comes here in violation of the law they'd welcome the immigration contract in that sense but you could also say well the fairness is really that their their guardianship seems to override the breach let me raise a couple more and then I think my final view case by case relief it turns out why do we use case by case relief technically I'm thinking of things like cancellation removal are we trying to tap into capital or is that why there are other things but we often want to make an argument the reason we can't be pragmatically we thank people legal status after they've been in the country for 10 years and is that they represent a resource but we also recognize their ties in that state this is an affiliation based argument we also could say that that overrides in a breach that's a contract-based way of arguing for removal you could also make smaller scale changes and this is a sort of an analogous to the DREAM Act in the sense that I'm thinking about things that are argued for that are not yet law and yet seem to draw on the same sort of political coalitions as the DREAM Act it's a small scale changes and I'll be a little technical here this could be restoration of 245R this could be relaxing removal this could be increasing the second thing it could be eliminating three and ten year bars from multiple presidents what do we do these things is it that because we're trying to prevent underclass people who are relegated to this status in some sense in christianist terminology they're americans but they're not but in a different sense than the nationality citizenship distinction and this is a way of tapping human capital especially because many of these smaller scale changes would give grant removal status to individuals who actually come closest to qualifying into the current system for example those who qualify by being a native alpha of a US citizen but are barred from adjustment of status because of the same bar to be an example of human capital that's not being tapped there's also fairness arguments here these are indivisible ties in that state that's an affiliation based argument this is where I get a little trick here it's sort of is there an innocent base argument for some of these folks is that because there is an immigration contract that people were invited here to take jobs or in fact there's been no breach because laborers were invited here and that's our history of the management of labor migration especially low age labor migration especially from latin america or the circumstances of individuals who were invited so then I get to brought to scale legalization which is you want to look very familiar it just picks up some of these other themes and in many ways up here in terms of pragmatic argument I suppose you could make similar arguments in Dream Act but I think they come up slightly differently because instead of talking about people who are going to be in higher education or in the military it's a much more generalized sort of idea that we need certain members of the workforce and then the fairness arguments are also very similar but they're similar but they're different ties in that state I'm going to compare these arguments to the Dream Act argument because I think the politically the most complicated things is the example I gave earlier that if you believe in the Dream Act and you want to advocate for it you want to claim for broad scale legalization and here's I think where another place where this is interesting is that are the innocence claims people who would be legalized in their broad scale legalization are those innocence claims different from the claims of the kids intuitively one might say yes what often here is that maybe those kids were brought here they didn't make the choice but I've also read the argument that violence and who will break the law as adults are innocence just as innocent this is a this is also the argument that the people who come would be beneficiary of broad scale legalization is they're being breached in contract because the contract was supposed to come here but they were supposed to come here outside the law and one could argue their argument is made that that's really the fact that the US and then finally the idea that if there is a breach it is overridden by the ties in that space so this is just a way maybe an oversimplified or oversilized way of thinking about this but this is I just really want to understand a couple things here that I'll close by sort of highlighting one is the idea that there are different kinds of arguments that are made that's one point the second point is that of the fairness arguments I think that many of them draw upon sort of notions of contract agreement promises expectations and some draw on the ties and it's useful to think about it here from people in that light and then the third point I'm trying to make is to not only compare the DREAM Act well to really compare the DREAM Act and invite that and to also compare those two with broad legalization which is somewhat similar but I think even though what I put up on the slide is actually similar to these terms and sort of the power of these terms and even the relevance varies from one to the other and then the final point I'm trying to do with this presentation is to suggest that we don't often think about these three things in the middle here, refugees and all the changes in the same way but we're not taught to not just because they're conceptually parallel but also because it's often said that legalization it's often said that legalization or implied legalization is an extraordinary event well maybe it is with regard to broad scale legalization it's a place in America in 1986 but certainly the idea that we take people who came without papers and then somehow make them legal so much so that we that we can think about it that way such as refugees I think that's what we're thinking about too because that's also a very powerful idea when the claims made that people are coming illegally I mean that's why in some sense it's always been true and we have different ways of dealing with that so I'll stop there wonderful people from Berkeley from Berkeley so what I'm going to present to you I know my fellow panelists described their work as work in progress but this is really work in progress this is entirely new this is in its infancy or maybe it's even a side note I basically wrote this for this conference nobody else has ever looked at this before told me anything about this before although I realize I'm actually sitting here and thinking about the reflections of Christina Perotchi about how to work 50 different things that they've been thinking about that this particular new project actually does link to work I've been thinking about for a long time in particular about the ramifications the moral, the legal, the political ramifications of using stereotypes in particular about cultures in the service of one's own legal claims criminal context so cultural defenses and I've also written a little bit about this actually for a symposium Perotchi organized was at UNC in a previous life about deploying stereotypes about particular cultures in advocacy for immigrant workers so I'm preoccupied I guess in some ways and I think all of us who are academics realize there's certain kinds of questions and means that each of us are preoccupied so I see this as a companion case to what Perotchi presented which gives us affirmative reasons on which a state might ground membership for persons belonging is in question and I actually think hearing this again Perotchi is such a beautiful person but his view of the world is very positive and affirmative and his theory actually reflects this and so this talk in making the argument that membership of devalued groups happens through the repudiation of devalued others presents us a more unhappy most beautiful side of that process we don't have to talk about this during my 15 minutes and I think this talk is an implicit dialogue with Christina's wonderful work and in particular a move that she details in a piece she published about the work of what she calls the elite of the colonial periphery and a particular man named Dehe Tao perhaps nobody sure how to pronounce his name where he tries to ground potential American citizenship for the Americans against the specter of the full of you know so in a forthcoming book titled Beyond Ethical Obligation Criminality and Alienability Lisa Marie Cacho's preoccupation is explaining the condition of those she calls quote ineligible for personhood these are the people who are so devalued they are considered to be what she calls living non-beings people without inalienable rights so to be ineligible for persons that she writes this is a form of social debt those in this category are unrecognizable as living persons this kind of argument is in some way similar to Judith Butler's writing in her book precarious life where she asks in the context of recent global violence who counts as human what lives count as lives and finally what makes for a grievable life who is a grievable human but what is specific to Cacho's argument is her argument as to what happens when devalued persons argue for legal recognition or human rights these attempts to ascribe social value she asserts always require quote the devaluation of another who is always of color and more often than not also poor criminalized subredated legally vulnerable and unprotected close quote so Cacho's intervention is to demand that we understand these dynamics in the form of a comparative analytic that the idea of one social value necessary for arguing legal recognition and demanding the enforcement of rights is built upon the others potentially and presumably permanent location in social debt this comparative is not always about explicitly comparing to racial groups instead as she writes it can be through abstract reference to characteristics or identity groups as to what we are or what we are not and race is not the only signifier for devaluation obviously gender sexuality, nationality, citizenship class function to differentially devalue people within agreed groups as well as between them in her book Cacho shows us how this comparative analytic functions describes examples of media reports about the marches of spring 2006 the national mass mobilization of the rights movement and in particular she points to writing about the marches which she says aggravated tensions between and among racial groups through focusing upon interlocking discourses of punitively black criminality and Latino Latino illegality so for example articles favorably representing the immigrants rights movement attempted to de-link illegality and criminality by representing undocumented immigrants as part working and family oriented displaying a respectable domesticity through ties to properly gendered and sexual and nuclear families against the vision of young African American men characterized as socially deviant and punitively criminal so both discourses about illegality and criminality center on respectability and Latinos and African Americans are compelled to disavow and deny criminal and illegal populations in order to represent themselves as fitting the standards of respectability now political theorist Christina Beltran writing about the same immigrant rights movement points to particular signs that were seen during the marches and she describes these signs as quote an effort to gain recognition as subjects who contribute to rather than harm the larger society now the signs she points to were I'm a worker, not a criminal human beings are never illegal justice and dignity for everyone and we are not terrorists but reading these signs through Cacho's lens helps us see that perhaps like Sesame Street two of these things are not like the others two of them invoke universalist language about everyone and human beings the other two explicitly differentiate the bearer of the sign from another class of beings who are demarcated as harmful or demarcated and presentably worthy of the evaluation of criminals and terrorists now of course we know these signs are an attempt to speak against popular denomination that to be undocumented is to be a law breaker and to engage in a criminal act even though we know civil criminal etc or that terrorists have entered or overstayed the United States because of the failure of this country to secure its borders against illegal aliens at the same time implicit racialized other who is being disavowed through the rejection of the criminal and the terrorists so in thinking about this I feel like the more I look the more I see that this is this recidiation of a devalued other is in fact a common process if not the common process and I've come up with some examples that I thought I would share with you it's a very long history of groups attempting to claim membership for the process so let me just give you a few examples and I hope you will tell me when I might have time okay so for one example the historian Nair Shah has written a book about the history of San Francisco's Chinatown called Contagious Divide Epidemics and Race in San Francisco's Chinatown and what he describes is a shift from where the Chinese as a class of people were perceived as a site of disgust and disease to the 1930s and 40s in San Francisco were finally seen as deserving citizens and his argument is that Chinese Americans only became allowed to be seen as deserving citizens through efforts to highlight those Chinese persons who had adapted to middle class norms in consumer taste hygiene and respectable domesticity so this strategy had dire consequences for the Chinese male bachelors in Chinatown who were ignored in the quest for welfare resources and housing entitlements for the American family community in particular he describes a housing project in San Francisco's Chinatown called Ping Yan which was the first public housing project planned in the United States for Chinese families it was opened in 1951 it was hailed as a triumph of the modernization of Chinatown and it was built both literally and metaphorically through the eviction of the Chinese bachelors it was built on the site where they had been living physically from that site and then they were told that they were ineligible to apply to live in the public housing project which was only open to nuclear families so there's this whole population of Chinese bachelors who had integrated who were unable to form heteronormative family formations who had to be cast aside in the move to belong so Nain Shah argues Chinese immigrants were allowed to become citizens they were allowed to claim full membership belonging by demonstrating that they would engage in proper conduct distinguishing themselves both from internal aliens these Chinese bachelors and external aliens Chinese and China so to gain acceptance two categories of Chinese people were created the modern and assimilated and ignorant them backward as another example we could consider Devin Carvado and Miki Gulati's work on what they call the good black bad black problem arguing that for at least some employers the ideal black employee for a firm that professes a commitment to both quality and racial diversity this is what they call the post brown law firm or post brown firm the ideal black employee is one who's identified black with respect to phenotype but unconventionally black with respect to conduct or social behavior so from the employer's perspective this employee looks black but acts white or at least does not act too black so good blacks negate racial stereotypes bad blacks activate them good blacks are palatable bad blacks are not so the thrust of their argument is that they want to shift the focus when we think about discrimination from identity status to reformative content of identity how people inhabit their identities makes a difference and there are lots of caveats that have to make in this argument they're not suggesting there's some authentic way to express identity they're not making normative judgments about people's self presentation choices in fact they also are saying they're not suggesting that people are always self-consciously engaging in identity performances but at the same time they're describing a kind of interlocking process of performing audience which is presumptively based on the idea of a good or employable black because there is a bad or unemployable one for thinking about the idea of repudiation as an intergroup process so those two last examples were intergroup what about intergroup early cases show individuals or communities who are choosing whether to differentiate themselves from repudiated groups not just in terms of negative characteristics associated with those groups but as to whether or not they wanted to be included within one of those groups in particular their cases were groups that were liminal to the black white divide had to decide whether they would be considered black or white who would they affiliate with who would they be legally recognized and looked under in terms of status or their treatment so we could look to Sora Han here at UCI her vehement critique of the failure of certain Asian American legal scholars to recognize that Asian Americans have positioned themselves within the American racial landscape as anti-black in an effort to obtain rights and membership in particular she looks at the Bum-Lum case Bum-Lum versus Rice where this important considering equal protection claim brought by Chinese children for their exclusion from the white only high school where the plaintiffs did not challenge the management of separate schools for white and colored children and instead relied upon that bifurcated system impressing for their claim saying we don't want to be schooled with colored children if it is a danger to the dominant race the white race to have this experience you should recognize it is also a danger to us this pattern is obvious as well in the prerequisite cases that Ian Hennie Lopez writes about by law where 51 of the 52 litigants he examines made the argument they should be considered white under the racial prerequisite for naturalization one has to be either a free white person as of 1790 or as of 1870 of African descent or nativity so there were two choices here and 51 of 52 said consider me white rather than an African descent or nativity and as you know it's perhaps just had to do with the geographic specificity of being of African nativity or descent perhaps white is more fluid as a concept at the same time he says this was also probably about the desire not to be legally recognized as a subordinated category of citizen and today that idea might seem strange how could a Chinese person or a Japanese person argue that I am you know white or black but we have this naturalized sense today of these fixed racial categories so one could also look at temporary attempts to claim rights in contexts which are wholly outside of immigration or citizenship so I think for example the Innocence Project one might say that the Innocence Project movement takes as its implicit devalued other to be guilty and as Carol and Jordan Stiker write the focus on innocence in the capital context diverts focus from non-innocence related issues such as discrimination and adequate representation and excessive punishment now obviously concerns about executing the innocent have struck a tremendous chord in popular sentiment and produced a wave of critical attention focused on the death penalty at the same time it's very likely I think that this Innocence Revolution will in fact perhaps stabilize the death penalty by prompting adoption of reforms only intended to risk reduce the risk of executing innocence right so the focus on innocence presumptively suggests that the guilty as guilty deserve the status quo a more complicated example of this in the contemporary context is the marriage equality movement so here we find Russell Robinson arguing that if you look at the marriage equality movement there's a repudiation of blackness both in terms of who's the face of the gay marriage movement in terms of being primarily white but it's actually really interestingly complicated but it also points to this idea of a sign seeing a protest in black in other words we as gay rights movement persons are inheriting the civil rights struggle of African Americans so there's simultaneously this repudiation and this embrace repudiation of the disavowed parts of what people might associate with African Americans and embrace of what are considered the positive balances the civil rights history so perhaps the most immediate example for us as integration scholars may be the most painful example for some of us is the whole sex experience which seemed the unsuccessful attempt to secure a conditional status for dream actresses which seemed to require descriptions that positively contrasted dreamers against their comprehensive integration reform benefit counterparts dreamers were portrayed as innocent in quite new language here through non-fault of their own, brought her as children deserving as students deserving through providing future military service and their counterparts ability adults here through their own fault exercising their own agency not contributing other than through their own civil labor although this is a complicated argument and as we've seen with Hiroshi's argument contributing through labor can also possibly constitute a basis for membership although as Shannon Gleason has suggested it's membership in the form of providing unskilled labor and not more anyway so there are lots of there's a little bit of information I could give you about people have done research interviewing after city and youth in terms of how they had to negotiate or walk this fine line in advocating for themselves without rejecting their students and ways that that has been rejected. Now of course narratives are always used in advocacy we know this term Susan Coutine's wonderful work and your honor has also been writing about this that there are ways in which applicants always have to distinguish themselves as more deserving or more needy so maybe this is just a story that the need to perceive and the need to appeal to presumptively broadly held values values of neoliberalism, heteronormative family formation, assimilation into American values with the discarded and repudiated those who kind of show that they embrace these values and they're just this kind of collateral damage as this group emerges to get their claim and claims for rights or redress from a political body all of us do have to differentiate themselves right they're saying there's a group of us we're defining who this group is right through our numbers and through our characteristics we are different and this is why we need rights or redress right that's actually something that always has to happen but I'm thinking about the decision to pick Rosa Parks as the face of the respectable civil rights movement rather than the pregnant teenager who also refused to sit in the back of the box like does it have to be this way right is this process inevitable so long as we live in the world that grounds value as we do and I look forward to hearing her thoughts I think I'll sit here you can hear me yes okay um thank you for these wonderful papers I thought that what I would do um is just comment really briefly on interstitutes between them because I think that people across or hearing together really raise a number of interesting issues um and then I want to pose three questions one for each panelist but I'm going to pose them out once and let them decide whether to respond or just open it up for everyone so um um these papers all look at intermediate status of one form or another and offer us a rich terminology for thinking about those statuses um and the relationships between them so that's that's what I want to focus on um in Christina's paper I was really struck by the notion of carving out spaces and the way that doing so obscures attention to what happens within those spaces that are carved out which sounds related to what Leti's talking about in terms of the ways that drawing boundaries around eligibility simultaneously impales the affiliation of the ineligible so that was one connection um I was also really struck by the notion of naked nationality um which is sort of an amazing term I hadn't heard of anyone else who knows it but I didn't um and I thought it's interesting to think about you know the relationship between that kind of reduction apparently of a particular status of pure and simple I think that was the phrase used in the quote too the relationship between that notion that you could treat something naked or pure and simple and in a complex um partiality that Hiroshi's um referring to in his analysis um and I thought it's interesting too to think of the way that social death which is a term that came up in Leti's paper it's to sort of social life and it's inversion social death right so there's a continuum perhaps rather than I guess can you be alive partially alive and partially dead would be another question but um that comes up in you know how do we understand the national you know are they socially dead are they socially properly alive how do we understand you know the status of people who are potentially eligible for the Dream Act or you know other in-between folks are writing about and I thought I thought it's interesting too to pull out um a sentence that was in Hiroshi's paper that I think relates to the other two papers I don't know who read the sentence but it's on page 16 um the sentence is what man in the circle seemed like immigrants inherent resistance to integration may in actuality be Americans own skepticism reflected back and I thought it's interesting to think about both skepticism and reflection in relation to the other two papers um how do we think about skepticism and reflection in relation to repudiation um if we're just interesting is repudiation a form of reflection you know and also um in relation to nationality as Cristina was discussing um in those imperial contexts reflection is kind of interesting to think about and so I just wanted to raise like I said a question for each panel if I'm going to do it all at once um in for Cristina one thing that I was thinking about in as I was reading your paper is the relation what is the relationship between the sort of annexation and the status of people that were annexed or in those annexed territories and current practices of the size of the territory for immigration purposes which is another territorial practice right where people are there but they're not they don't have their presence isn't registered you know such as in Australia or in the and secondly I've been working on deportation so some of my questions including having done interviews with people who were deported so some of my questions come from there I was really struck by the symptom of nakedness appear in a simple status and how do we think of is there such a thing as naked in unit because I started to think about the partiality we think of we think of or really I ask people myself often I might lump together undocumented people nationals outside of the United States people that don't have any recognized real status at this point but in fact those people are differentiated right I mean there's people that are outside of the United States never came who never have don't have any particular claim that are nationals in other countries there's people like the Russian regime undocumented people here who have started the claiming or a strong claim perhaps and then there's people that were deported they can't they're in a very different position they have a prior record but they're leave of you know so I don't know is it useful to think of is there a pure and simple version of anyone with that even useful verse do we need to differentiate that side of the non-never in its most extreme form and for Hiroshi I was thinking about a couple of things many things but just sort of two to bring up I was thinking about what your paper suggests regarding revocability because you detail all these different ways that people could say claims but the question now is for claiming and if you think of people that get deported who range from people well they're within that group and including legal permanent residents get deported right so I thought it might be interesting to think about the nature of those claims the basis for those claims and what's revocable and what isn't because if you violate a contract that suggests in terms of a contract that has been broken therefore the contract is no longer valid on the other hand is affiliation revocable and that's I think for people that get deported who lived in the United States for a long time you know there's still the phrase that continued Americans and non-citizens they didn't even like it they felt it was clean they were American in a cultural sense of the term and whether the multiplicity perhaps of contracts the contract in the case of someone who gets deported after a criminal conviction there's at least two contracts which is a criminal position where they violated that version of the social contract and then there's the other kind of contract which you're talking about membership and I don't know if those are just sleepers or the same and then lastly for Letty in reading your paper at first I was thinking that it's pushing us to a universal rights are based because how can you make a distinction without any kind of you're saying any kind of argument that one can make about what can you see defined as the undisturbing right so does that push us to a universal where we're going to say oh well humanity is the basis for membership and who are you to study these issues as well but then I thought especially listening to the paper today it's not so I wonder well this is a question is it really about the universality of the basis for rights or membership or a different kind of pains making that that we can either maybe identify examples of or maybe thought of yet that doesn't tell making this distinction is that about something other than a universal so private stock and give you guys a choice if you find me to each other or my comments or we can open it up and you can go to 20 after so I'd love to say something about the first question I need to mull over the second question more but in terms of the relationship between this phenomenon I described and excising territory for immigration purposes I've given a lot of thought to the relationship between this phenomenon of devising an intermediate status for persons on annex territory and excising territory for arranging purposes myself not having thought all that much about the immigration purposes but that illusion I made to the insular cases right so this is the creation of a status that is known for having established territory subject to a sovereignty but not encompassed by the constitution and therefore in which people don't enjoy full rights and that's one dimension of it but I've written about how this creation of an immediate status for territory is in my view even more about or at any rate also about the creation of territory that is excisable so at a sort of post civil war moment in which the United States are coherent and disintegratable whole is quite important in American history there's this expansion to territory that we're not sure what we're going to do with and I have a piece in my show that they're passing through these cases that are all about the importance of being able to take territory and then get rid of it get rid of it fully and also hold bay all kinds of responsibilities and commitments that might come with sovereignty regardless of whether you extend the constitution or not and this is a period in which empires are devising statuses like sovereignty without annexation, occupation without sovereignty so that's one time occupation without sovereignty, whatever, what's that there are all kinds of ways of qualifying extensions of control that are about in the end creating anything from law free zone to exceptional zone where decisions about what law applies and what law doesn't apply can be made on a case by case basis as the need arises depending on the emergency so that's where Guantanamo comes from this is something we all know this move with respect to people is really in the end the same thing the status of national in the end is retained for Filipinos when the decision that they will someday be independent is confirmed by Congress officially in statute we're going to give you an independent we're not making any decisions in Puerto Rico, Puerto Ricans do get citizenship in 1917 and that comes with a decision you're probably not going to get independence, now what you're going to get is that you're still not clear that this bifurcation is all about distinguishing that temporary commitment where you can withhold commitment and both sort of union and formal rights that's the nationality track and the citizenship so I think it's completely entangled with the creation of extraterritorial zones of exceptional legal consequence and naked alienation I have to think about it, I have to say it's just amazing what obvious stuff like has been brought forward for me that I hadn't quite thought through of course naked nationality is all about natives in the obvious you don't think of your citizens your citizens were napers right they're never naked, they were citizens are clothed and so naked nationality I mean it's relevant for people whose bodies are relevant to their partial membership status something that I have not told you about but I need to think about naked alienation then and what that would be one of your answer or at least a partial answer to your question season but also I'm thinking that my answer would also serve as an answer to naked alienation so also so first of all I mean a lot of what my project is about is saying that in alienation for people at least in this country the country is never naked and there are different types of non-naked alienation that people can be alien in a formal sense but have claims so maybe that's obvious but I just want to make that point but I really like the when you raised the term naked alienation I actually spotted a case that was in the Supreme Court in 2001 a case called the Davis versus Davis because I think that that really raises this question because that case involved two people actually who had been primitive residents in the United States and had been a final ruler so they really had them all claim to formal legal status in this country they were being courted or criminal convictions and so if you look at the Breyer opinion for the majority it was a five to four decision so if you look at Breyer for the majority and then you look particularly at the Scalia of the Senate one of the things that stands out immediately is that Breyer is really focusing very much on the fact that even though the criminal residents have been revoked that these people are permanent residents and Scalia basically writes the opinion as if someone who's been ordered to court the rest will treat him as if they've been here so in that sense I think Scalia is really arguing for a reversion to make the alienation in context and Breyer is in a sense one who can criticize his opinion and I suppose conceptually is overlooking that particular fact that had a final ruler but the reason I really want to connect that to your question directed towards me on revocability is because it seems to me those are kind of the same question in the sense that I really like the suggestion of the people who have been courted because I can see how you have that as another example of what I'm trying to do that it actually poses the contrast between the types of arguments in much sharper relief because one could argue that the affiliation of the ties in this country are no weaker but that they contrast more with a less robust contract based argument so that's just a embryonic thought about this but I do think it was a negative image idea and persons deported pose a really interesting case for what I'm trying to do I want to say those were incredible comments and the whole thing like reflection or creation it's like you're ready and the naked alien just like you're creating these little tropes that I think will live on so I actually don't want to respond directly I'd love to hear from the audience particularly another clinician here I'm really curious what everybody but also including especially perhaps clinicians think about the business question right is it possible to make these claims without recubiating of the value group but I had a quick thought for Hiroshi which was I don't know if people saw that article in your Times a little while ago about Arizona as this incredibly high refugee receiving state and it was this question when you have your chart like this and I know you love charts and grids you could do like maybe even a 3D because I don't know I don't have a relationship to one another so I might just okay comments, questions, yeah I had a question, oh sorry for Hiroshi is there, I haven't read the paper is there a longer, a wider version of the matrix that has sort of other legalizations because it might give you some more analytical traction if you think about sort of other sort of conscious or unconscious decisions and you know registry comes to mind I mean one of the sort of I guess contract I mean I'm not a lawyer but contract based arguments around that was we had failed as a society we just didn't record these people so you know we need some way of knowing who they are and that's important to all of us to know who they are so you know we create a registry then I think when it's extended there's some geopolitical questions and then since you include birthright citizenship which I assume sort of implicitly from the chart birthright citizenship for children of the undocumented or at least that's the focus here you know some marriage to a US citizen who has traditionally been a path out of undocumented status I mean you since there was a lot of similarity which may have been the point but I wonder if thinking more broadly about legalizations in the US you know if you're helped by having sort of other arguments that have been made in unique historical circumstances or I guess in the case of marriage you know one that's been there all along well the short answer is yes I think there are many others there's an extended version of the matrix both yes there's an extended version and there are examples I think Susan's work for example in the CARA I think is very interesting in this case more generally I think that in addition there are other dimensions to this I mean there's certainly a dimension of scale for example I think that for example you could take and unpack each of the innocence let's say each of the quotients that you end up with in these arguments is a very for example by scale comparing broad scale legalization with the DMAG for example that has a sort of that dimension as well I mean this really is like a four dimensional grid so so just very briefly I fantastically interest in papers and I know that Hiroshi's one is where I want to just ask a quick question of Christina because what I found really striking about your description is how you made the case for how the international lodgers Prudence helped feed into the way the court resolved its particular dilemma in the Marcellus case but it also struck me that there could have been a formalistic way for the court to import the notion of naked nationality and reach really quite a different result a result where essentially Marcellus loses where the idea of naked nationality is defined to me that as long as an empire doesn't create these problems for other empires by not regulating its own nationals then it can do whatever it wants to to its nationals because naked nationality means there really are no rights so as long as you stay in the empire and you go back to Puerto Rico then the US has fulfilled its obligations so my question is what then filled in the additional concepts so it wasn't quite naked nationality but it was partially clothed nationality I don't know, V-Streme nationality the point is something that got you beyond simply the idea of you're a national so you can do whatever you want to which results in staying in the empire so tell me if this is responsive there's a couple things it's a statutory decision so it leaves the door open to doing whatever you want the door wasn't closed to that in fact there was an invitation to come to the court and we legislate if it disagreed with this outcome then the constitutional question would arise and you already had precedent that said Puerto Rico is not part of the United States for territorial purposes so it wouldn't be hard then to say and not for the 14th Amendment either so that doors open the second thing, I hope this is also responsive is that Puerto Rican workers were migrating to the United States and in fact had been with no problem as it happens there had been a change in the rules when as the government has arrived so I wouldn't call it entirely coincidental that she's the person who gets stopped because among the rules that are in operation at the Salon War stopped every pregnant woman but there have also been a change in the rules with respect to Puerto Ricans don't treat them as if they can come in without restriction anymore start stopping them but before then Puerto Rican workers had been coming in and of course it was interesting that it continued to come in so I'm sure that was at play as well so door opened to a change for sure and incentives to give them I suppose partially closed there's a partially closed element to it I'm dedicated unsuccessfully to the nationality I attempted to ask the person any questions but actually I'm not accepting any invitation kind of rounded out so thinking about this question about universality is there a way in practice to advocate for those who are not poster children without something intention of accreditation falling over to a universalism I wonder maybe just a rhetorical matter but a universalism everyone is special in their own way I have to think of your colleague Amy Chua when you say that phrase I don't even know what I'm trying to remember she said oh you're surely not saying what was that Lulu is different from I'm sorry sometimes we're so preoccupied with the tiger mother those are the references first conversation weeks the first time I ever went into immigration quotas with minority students for around 28 criminal convictions and some of the aggravated felonies and though obviously you might say well that's exactly that's who one should be thinking hard about because he's the one who gets repudiated against by so many other people the other thing he was a Vietnam veteran who was disabled and so you say well you're just saying the easy ones you know there's plenty of convictions without you know and all of these conditions for drug use take some of the violent crime and true risk and so forth but in my experience I'm trying to tell stories about people and again mostly practicing for those who can't get help anywhere else they're repudiated against it seems that they're still away you're always defining yourself in relation to others but it need not be a repudiation of others it can be to say that there's a special story for each person to be told and maybe that's not different maybe it's just a rhetorical matter but I wonder if there's any space there short of we're all human that kind of universalism to say we're all special in our own ways even if some of us have characteristics that others might repudiate that helps at all Susan you mentioned how all three panelists were addressing issues of intermediate statuses of one sort or another including devalued groups and the repudiation of devalued groups and the case that came to my mind I was wondering if all three panels might respond to it is a case that issues from another legacy of 1898 the case of Cuba Guantanamo comes from that military occupation et cetera et cetera ties of singular intimacy as President McKinney put it in the title he fast forward eight decades in 1980 no sooner had Jimmy Carter finished signing the Refugee Act of 1980 125,000 Marialitos start coming by boat to Miami there's no status for them there was no word for them the government finally came up with the term entrant comma status pending and they remained that entrant comma status pending status for years they then became a devalued group because then the Cubans in Miami didn't want to be associated with the Marialitos and the Marialitos were a way of defining who was the good Cuban and who was the bad Cuban the Marialitos are all supposed to be criminals, gay, communist mental asylum patients and so in a matter of years at the same time 15 to 25,000 Haitian both people were arriving as well and that was creating another situation of how to distinguish the one from the other by the early 90s there were cases literally 17 Haitians and 16 Americans arriving in a boat from the Bahamas and as soon as they were literally in the same boat but as soon as they arrived the Cubans were separated to be given a green card within a year the Haitians were sent to Chrome Detention Center to be deported and out of that comes yet another category of nationality the dry foot nationality and wet foot nationality which is another kind of very interesting devalued and intermediate styles that I was wondering how you would consider those within the frames of each of your respective papers the Assili question is one that didn't get brought up but that is for example in the Russian way when I used the term refugees I meant to include a number of things and one of them and I'll give some specific examples that was sort of the emergence of refugee programs after World War II but another one I had in mind was the fact that but also I had in mind in this response the earlier question about different examples I had to keep an adjustment act in mind but it's interesting to think about in terms of different phases of Cuban immigration to this country with Margaritos and then what happened in the 60s I think of that as very much fitting into this you know if you think about sort of dimensions of what I'm trying to do I mean certainly there's a normalization process that is going on here where I think that people who are perceived as illegal at one stage historical stage that are against themselves in some sort of way now I do agree that much of that doesn't matter not just political argument but also cultural acceptance it does involve some of the in many cases it involves refugiation in that sense I mean this is the I am a cynic part I'm not sure yet in some sense and I'm glad Susan quoted that sentence and wrote about how the skepticism because in some sense I don't agree that I don't disagree that the refugiation is very much actually what happens and to some extent I'm intending my project as a sense of plea to for example advocates of the DREAM Act to be very aware of the issues that you raised so we have how many more questions I had like three, four why don't we collect all the questions because we really are almost out of time and then we'll see if we have time for response to the questions that will at least be posed just a two points I guess at the panel for Christina I really like have you ever seen James Knatziger has an article in the 80s of looking at why common law in the United States looks at the tale in Boudin as justifications for self-preservation and the fact of the treatises from that time saying that the court is just getting it wrong but he does it very nicely in a logical sense but let's look at these international law treatises and see how we're just doing it wrong right now we're selectively choosing which international law treatises to point to what we want in our jurisdiction and then along those lines for I guess the whole panel is it easier to get claims to membership through natural law or common law through statutory or positive risk law because if we look at Christina's project we have this idea where in the late 19th century, early 20th century is when we start becoming more statutory whether it's Puerto Rico or more statutory whether it's the INA and when we look at these claims about issues now that I've talked about is there's no statutes there there is if you're talking about the BTA or the MCA but what we're really dealing with these issues seems to be like in the more they came with Clark v. Martinez which is what the parole should funnel and so are these claims to membership easier or more difficult if it's natural common law or maybe positive statutory law let's go to the next question Carmen can we kind of so I interviewed a Filipino a person a Filipino government who places Filipino workers overseas and he said something very interesting to me he said to me when they approach government to try to get Filipinos to migrate they forget about the notion of Americans in waiting or any notion that there are any membership possibilities they recognize the reality that when they do this course it's all over the country and having made that recognition strategically what you do is in other words I mean I'm not stating it very clearly but essentially the argument would be that the reputation of the strategy isn't really going to help you very much anymore and what really of the failure of the Dream Act would be that we want to but we only want one of our terms there are millions more who are willing to take the terms that we are offering and and that category of arguments is no longer available and these are the terms to which we will and in fact one reading of what Christina said is I mean clearly it's not totally analogous but one reading of what Christina said when two areas of the analogy and then the alternative what two areas essentially sees we know that you may want for particular purposes am I making sense so if that's the case repudiation strategy isn't really going to help you anymore because it's all about contract yes it did it's mostly for erosion we almost always think about equality as treating people the same or similarly situated but there's another aspect of equality that we almost never talking about which is treating people for different research as differently which involves drawing and justifying distinctions and so I'm wondering and those distinctions can be justified on pragmatic grounds or on fairness grounds perhaps on other grounds as well so I'm wondering whether your grid is going to include pragmatic and unfairness arguments with respect to each of those policy changes I think you should both for analytic and sensual clarity but also because if you want this grid to enrich the political debate you need to recognize the arguments on the other side for the arguments for drawing distinctions none of these is a race or religion or ethnicity but on other grounds there may be justice on pragmatic work and then I think there was one more question for the three papers I was wondering how you might deal with like military service both in the case of Philippines about how Filipinos were taken into the U.S. Navy and how that might change their citizenship status and in the case of the other two papers about how military service is one way to distinguish yourself or to become a citizen No, it is about being a citizen I think that maybe we should wrap up without getting responses to these wonderful questions because we don't want to take time away from the next panel right, so let's go ahead and wrap up thank you and hopefully we'll see you again