Introduction Excerpt for Unauthorized Love
Introduction
“SO, HOW LONG BEFORE they become a citizen? It’s automatic, right?” You would be hard-pressed to find a US citizen married to a non-US citizen who has never been asked this question. Many Americans believe this is the case. I certainly did. That is why I was baffled—then appalled—when my dear friend, Camille, called to tell me that the US government was deporting her husband, Giovanni. “How could this happen?” I asked. “You’re a US citizen!” Camille’s citizenship, it turns out, was not enough. Not enough to help Giovanni become a citizen. Not even enough to save him from indefinite banishment from the United States.
The US Supreme Court confirmed this unfortunate truth in Kerry v. Din (2015), stating unequivocally that there is no “constitutional right to live in the United States with [one’s] spouse.”1 Yet “family reunification”—an entitlement in US immigration law that enables US citizens and legal permanent residents to extend legal immigrant status to some immediate family members—has served as the foundation of US immigration policy since its inception.2 Hundreds of thousands of US citizens successfully sponsor their spouses for legal immigration status (with a pathway to citizenship) every year. Why wasn’t that true for Camille, too?
Over nearly a decade of searching, I have come to learn that, rather than being an exception, an accident, or an anomaly, Camille’s experience of governmental rejection and family separation is as central to US immigration policy as family reunification.3 Every year, the US government rejects the reunification requests of thousands of mixed-citizenship American couples based on “disqualifying” traits of the citizen, her partner, and/or their relationship. From the state’s perspective, though, excluded families have not been rejected, nor have any of their citizen members. Family reunification denials only affect “unworthy” or “unqualified” individuals, precisely because (non)citizenship and (un)authorized status are, technically, individual-level statuses. In matters of citizenship and immigration, the state deals with individuals, not families. As the majority in Kerry v. Din declared:
There is a “simple distinction between government action that directly affects a citizen’s legal rights, or imposes a direct restraint on his liberty, and action that is directed against a third party and affects the citizen only indirectly or incidentally.”[4] The Government has not refused to recognize [the US citizen’s] marriage to [the noncitizen], and [the US citizen] remains free to live with her husband anywhere in the world that both individuals are permitted to reside. And the Government has not expelled [the US citizen] from the country. It has simply . . . denied [the noncitizen] admission into the country.5
Rooted in the individualistic logic of modern citizenship, this decision declares that the citizen’s rights have not been affected, as she continues to have free access to her country and her spouse. But the implication of this decision—one that is never explicitly stated—is that a citizen in this circumstance is unable to live in her country of citizenship and live with her spouse at the same time. Although the US Supreme Court has confirmed the citizen’s right to residence in US national territory6 and all individuals’ (citizens and noncitizens) right to marriage,7 it maintains that those rights are not mutually inclusive. According to this logic, denying a spouse legal entry to the US (or legal status and protection from deportation once living inside the US) does not preclude the citizen’s access to her country and all the individual-level benefits of her citizenship, nor does it prevent her from being able to live with her spouse. The government has “simply” exercised its right to prohibit an individual from legally entering its territory.
This rationalization, grounded in the individual boundaries of citizenship, isolates identities and relationships that, in everyday life, cannot be separated. The conflict that arises from this policy focus on individualism rather than interdependency creates problems for both families and the government. Mixed-citizenship couples’ position at the crossroads of immigration, citizenship, and family law reveals the limits of our individualistic formulation of (non)citizenship and its consequences, which jeopardize the stability of the state, mixed-citizenship families, and society at large.
Mixed-citizenship couples embody a basic, yet infinitely consequential, conflict for the modern nation-state. On the one hand, states need families. Families continue to serve as the central organizing unit of society, a key locus through which a state’s members are cared for, socialized, counted, and controlled. It is therefore in the state’s best interest to recognize and support families whose members include citizens.8 Excluding a family with at least one citizen member could generate multiple problems for the state, primarily because the state’s responsibility to its citizen remains in effect even if she has been excluded from the country (literally or figuratively) alongside her family.
On the other hand, states want as much specificity as possible in determining which individuals “belong”—in other words, who they are willing to claim as their own. In an increasingly globalized and interconnected world, states’ long-term viability depends upon their ability to identify their members and distinguish them from nonmembers.9 This is particularly important given states’ increasing obligations to their citizens, including a growing list of civil, political, and social rights they promise their members.10 Using family (rather than individual) status to determine state membership could lead a country to formally acknowledge and accept responsibility for individuals it otherwise would not choose to claim. But accepting only some family members, and limiting the reach of the related rights and protections granted to those individuals, jeopardizes the well-being of citizens and destabilizes the family unit upon which the state remains wholly dependent.
The United States has tried both approaches to resolving the individual-family citizenship conflict. Spanning from the mid-nineteenth to the early twentieth century, US citizenship law prioritized family over individuality in determining citizenship, automatically granting citizenship to the noncitizen wives of US citizen men. (For a shorter span of time, the US government also automatically stripped the citizenship of US citizen women married to noncitizen men.)11 This approach to citizenship ensured that all family members had the same citizenship status, effectively eliminating the mixed-citizenship couple problem.12 During this time, adult males were generally the only citizens who could make a direct claim on the state; thus, the wholesale acceptance or rejection of a family based on the male head-of-household’s citizenship followed the logic of the citizenship regime at that time.13
Women’s suffrage and other equal rights movements pushed the US (and other nation-states) to expand citizenship rights and extend them directly to women and children.14 This expansion of rights proved to be a double-edged sword for mixed-citizenship couples.15 Once every family member could make a direct claim on the state for their citizenship rights, the meaning and content of citizenship shifted, prompting a significant change in the way the US government deals with mixed-citizenship families. Where noncitizen wives once automatically obtained citizenship through marriage, now mixed-citizenship couples must apply for legal status benefits through family reunification. For couples that choose to apply, the citizen, noncitizen, and their marital relationship undergo scrutiny to determine their “worthiness” before they can access legal status. For couples that choose not to apply, the citizen’s family relationship and its effects on her life remain invisible—and irrelevant—to the state.16
Notes
1. Kerry v. Din 2015: 1.
2. Lee 2013; Abrams 2007, 2013; Colon-Navarro 2007.
3. Abrego 2014.
4. O’Bannon v. Town Court Nursing Center 1980.
5. Kerry v. Din 2015: 14–15.
6. Ng Fung Ho v. White 1922: 259; Baumgartner v. United States 1944: 322.
7. In re Chung Toy Ho and Wong Choy Sin 1890: 398; Obergefell v. Hodges 2015: 576.
8. For this reason, many federal policies in the US—encompassing everything from tax and estate law to housing and health care regulations—all contain measures that explicitly benefit families over individuals.
9. Joppke 1998, 2010; Muría and Chavez 2011.
10. Herzog 2011; Marshall [1949] 1998.
11. Bredbenner 1998; Cott 1998.
2. It is important to reiterate that only some mixed-citizenship families—those of adult male US citizens—qualified for this automatic family-level citizenship program. At best, US citizen women in mixed-citizenship marriages maintained their legal citizenship status with limited practical access to the benefits of citizenship; at worst, they lost their citizenship altogether (Volpp 2006; Bredbenner 1998).
13. Women’s and children’s “derivative” citizenship flowed from that of their husbands and fathers.
14. Bredbenner 1998; Cott 1998.
15. Chacón 2007; López 2008.
16. At least with regard to immigration and citizenship issues.