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Immigration Outside the Law


In current debates about undocumented or illegal immigration, three themes have emerged as central: the meaning of unlawful presence, the role of states and cities, and the integration of immigrants. This Essay’s starting premise is that a reappraisal of these themes is essential to a conceptual roadmap of this difficult area of law and policy.

This Essay argues that it is too narrow and too shallow to examine any of the three themes in isolation, as is typically done. Rather, each theme pairs up with another to reveal and elucidate a more fundamental question. The meaning of unlawful presence is connected to the role of states and cities; together they illuminate enforcement authority in immigration law. The role of states and cities combines with the integration of immigrants to show how communities that include immigrants are built. The meaning of unlawful presence and the integration of immigrants jointly shed light on how we think about the dimension of time in immigration law, and especially how we balance lessons from the past, present, and future.

The conceptual roadmap generated by this new look at immigration outside the law is important for two reasons. First, it explains why disagreements often run deep, and it reorients debate around more productive questions. Second, it shows why finding common ground will require looking at broader questions of international and domestic economic development as well as domestic educational policy.

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