final thesis final project(1)

7/31/2019 Final Thesis Final Project(1)

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Undocumented Students:Creating a Path towardCitizenship

A d v i s o r : K r i s t e n H i l l M a h e r

M a d e l i n e B a e r

D e p a r t m e n t o f P o l i t i c a l

S c i e n c e

C o l l e g e o f A r t s a n d L e t t e r s

S a n D i e g o S t a t e U n i v e r s i t y

Undergraduate Thesis

By

Omar Issai Rivera

Spring 2012


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Acknowledgements


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Abstract

The inclusion problem is the legal exclusion encountered by marginalized groups in a

particular society. The problem arises when a group resides in society and is integrated

culturally or economically and still lack full legal membership. This phenomenon can be seen in

the issue surrounding undocumented students. The inclusion problem of undocumented students

is not new to the judicial and legislative systems of the United States. In its decision of Plyler v.

Doe in 1982, the judiciary allowed undocumented students to receive primary and secondary

education, while the legislative branch has constantly failed to provide a path toward citizenship.

Undocumented students are brought to the United States at no fault of their own, raised as

members and excluded from legal membership after high school graduation. Given how these

students have been included and excluded in the United States, how can they be extended full

membership? I will demonstrate how providing a path toward citizenship is the appropriate

manner on which to reach a solution to their inclusion problem for undocumented students.

The analysis will use a normative approach to describe the bases on granting citizenship.

The different interpretations of American identity such as liberal, republican, communitarian and

ethno-cultural Americanism will be described because they influence the social and legal

behavior of inclusion in the United States. The extent to which these theories apply to

immigration and more importantly undocumented students will be explored. My claim for full

membership is based on the idea that residence, along with liberal and communitarian

interpretations of national identity should be the criteria for providing citizenship to

undocumented students.


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This topic is important because it provides a different perspective in approaching and

creating conclusions about undocumented students. It demonstrates the manner in which

historical exclusionary forms of American identity have shaped legislation and public opinion.

This can be seen in the struggle for inclusion of subordinates groups such as women and African

Americans. The similarities between these groups and undocumented students lie in their

marginalization and exclusion from legal membership. It is important to note that this project is

only intended to demonstrate the issues faced by undocumented students. It is not intended to

argue for or against a position in the area of immigration. Although this issue overlaps with the

general theme of immigration, this project has a focus on a more specific group within the

debate. I will demonstrate how undocumented students are unique when approaching the issue

of immigration.


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Chapter 1

INTRODUCTION

The inclusion problem is a political and social issue that needs to be confronted by

marginalized populations in the United States. The desire for inclusion has been demonstrated in

the historical struggles of women and African Americans1. The central themes of citizenship and

national identity that plagued these populations now resonate with the issues confronted by

undocumented students. Although each struggle had its own characteristics, the fight for

inclusion through legal and social membership remains the same.

The limits on inclusion of undocumented students are more comparable to the inclusion

problem encountered by women and African Americans. These groups also lived within the

United States and integrated in American society and yet lacked full legal membership. An

example showing the legal exclusion of women can be seen in Bradwell vs. Illinois (1873). The

state of Illinois did not allow Myra Bradwell into the state law bar due to her gender. Supreme

Court Justice Samuel F. Miller stated that the admittance into the bar was a state privilege and

not something based on citizenship. The Supreme Court stated that the privileges and immunities

clause of the fourteenth amendment did not include the right to practice a profession. The

decision was justified by Justice Joseph Bradley by stating that women were destined to be

protected by men and thus belonged in a domestic sphere.2 The court case maintained womens

social membership through education, social connections and economic integration (although

unequal) but rejected their legal membership by denying equal rights under the United States

1There are other historically marginalized groups such as Asians, Eastern Europeans.2U.S. Supreme Court. 2012.Bradwell vs. State of Illinois, 83 U.S. 130 (1872). Retrieved from:http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=83&invol=130


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constitution. The problems encountered by African Americans are another example to the

exclusions imposed to socially integrated members of society. The issue of African Americans

is more complex due to their initial struggle for social membership prior to legal membership.

African Americans were constantly being denied equal protection under the United States

constitution. The social and legal exclusion was evident during chattel slavery, Jim Crow

segregation and the civil rights movement. Even after the end of slavery as a result of the

Emancipation Proclamation (1863) and the Fourteenth Amendment (1867), African Americans

struggled for social and legal rights in the areas of education, public accommodation, voting

rights and equal rights. Their struggle continued until the Civil Rights Act (1964) and the Voting

Rights Act (1965) which granted a form of legal membership. Women, African Americans and

undocumented students have all been an integral part of American society, included socially

through education, social connections and/or economics, and yet excluded from legal citizenship

at some point in their history.

In order to better understand the inclusion problem of undocumented students, there are

terms that need to be defined. The word inclusion or the act of being included refers to being

recognized or represented within a category. In the context of this paper the category refers to

American society. A citizen is used to describe an individual vested with rights and privileges

of a particular state. A member is a person living within a society, presumably granted

inclusion through social and legal rights in accordance with the definition of citizenship.

Because it is possible to have social without legal membership (or vice versa) the concept of

full membership will be used to describe and individual having both social and legal

membership. There are currently various terms associated with undocumented students. Some

references have a negative connotation while others hold neutral intent. The terms alien and


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illegal will not be used because they are closely associated with criminality.3 The term

undocumented is more accurate because students have no form of legal documentation in

accordance with United States immigration laws.

This project will use normative theory to analyze the inclusion problem of undocumented

students. A normative analysis approach uses theory to evaluate how conditions ought to be.

The normative analysis in this paper will depend on the academic work of scholars in the areas

of citizenship and American identity. The different interpretations of American identity as

presented in the work of Roger Smith are liberal, republican, and ethno-cultural Americanism.4

A fourth interpretation of American identity discussed in this paper is communitarianism. The

interpretations are represented in the works of John Locke, Baron de Montesquieu, Samuel

Huntington and Charles Taylor. In addition to the forms of national identity, I will draw

particularly on the work of Joseph Carens, who argues that residence is a valid claim for

citizenship. Joseph Carens is relevant to this issue because his claim of community membership

holds features of a communitarian interpretation of national identity. This paper will challenge

exclusionary notions of citizenship and propose a new foundation for inclusion based on liberal

and communitarian ideals.

In order to address the issues of undocumented students, the category must first be clearly

defined. When someone hears the words undocumented students, they often assume it is a

self-explanatory concept. However, this population is not readily recognizable because they

3Suarez-Orozco, Carolina; Yoshikawa, Hirokazu; Teranishi, Robert T; Suarez-Orozco, Marcelo M. 2011. Growing Up in theShadows: The Developmental Implications of Unauthorized Status. Harvard Educational Review. Vol. 81, Issue 3 4Smith, Roger. 1988. The American Creed and American Identity: The Limits of Liberal Citizenship in the United States.The Western Political Quarterly. Vol. 41, Issue 2; pp. 225-251


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cannot be distinguished from the general population. Contrary to public opinion, undocumented

students share many similarities with American-born individuals. For this reason, claiming that

undocumented students are distinct from the social norm is similar to identifying a needle in a

haystack.

Once we have defined the undocumented student, this population will be discussed in

relation to their data. The data is important because it illustrates the characteristics of this

population in American society. The data incorporates factors such as economics (e.g. taxes,

revenues, wages and employment) and demographics (e.g. population, ethnicity). This data will

show the contrast in characteristics of undocumented students and U.S. citizens in the areas of

education and civic participation.

After identifying the central themes, literature, population and data, a direct connection

must be made between the literature and undocumented students. The literature must be relevant

to the inclusion problem encountered by this population. How does the work of John Locke

relate to the everyday struggle of an undocumented high school graduate? I will be making these

connections in order to reflect on the manner in which this population has encountered

limitations on their social and legal membership and to arrive at an appropriate solution. While

it is important to form a personal path toward a solution, it is equally important to deliberate

opposing arguments. The integration of opposing viewpoints and their refutations will serve as

examples and references to strengthen the argument to extend citizenship to undocumented

students.

The final component of the paper will incorporate personal recommendations to provide

a path toward citizenship for undocumented students. I will provide policy recommendations in


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consideration of proposed and active legislation at the local and federal level (e.g. Dream Act,

A.B. 130 (CA), A.B. 131 (CA), H.B. 200(KS), H.B. 1525 (AR) and IRCA). The

recommendations do not run into conflict with the premise of this paper because while the

normative analysis demonstrates how conditions ought to be, the recommendations provides an

active approach to directly solving the issue through legislative initiative.

Chapter 2

LITERATURE: NATIONAL IDENTITY & CITIZENSHIP


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The literature is intended to present material relevant to the themes of national identity

and citizenship. The scholars presented in the literature will facilitate the analysis toward

solving the inclusion problem of undocumented students. Since the analysis of this paper is

based on the different forms of American identity that define citizenship, the literature will show

how these interpretations shape the exclusions of populations in the historical and contemporary

political eras.

The early liberal interpretation of national identity is most commonly associated with the

Enlightenment and authors such as John Locke. This interpretation closely identified with

fundamental beliefs for universal human rights, religious tolerance, commerce and the support

for science.5 These ideas, as advocated by the John Locke, suggest that a democracy must have

notions of individual rights to life, liberty and property. In order for these elements to prevail, it

is the responsibility of the state to safeguard private and public pursuits of happiness. Lockes

work suggests that states should play an active role in protecting the rights of the individual.

This protective state is created by the people through social contract for the mutual preservation

of lives, liberties and estates which ultimately lead to public happiness.6

The social contract between individuals to create a state is clearly manifested in the

formation of the United States. The colonists in the New World shifted from their legal rights as

Englishmen and adopted early liberal notions of natural rights as a claim to establish their

5Smith, Roger. 1988. The American Creed and American Identity: The Limits of Liberal Citizenship in the United States.The Western Political Quarterly. Vol. 41, Issue 2; pp. 225-251

6 Ibid


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democracy.7 According to the colonists, these fundamental rights were constantly tarnished by

the British Empire. These principles and concerns were evident in the formation of the

Declaration of Independence in 1776. With the formation of a new nation, the founding fathers

integrated early liberal principles by affirming that all men are created equal and that

governments are formed to secure inalienable rights to life, liberty and the pursuit of happiness.8

The declaration of independence illustrates that the founding fathers were forced to seek

independence in response to the actions by Great Britain.9 The reasons for seeking independence

by the colonists from Great Britain are important because it strengthens the idea that early liberal

Lockean principles influenced the path toward independence. The declaration of independence

was a reaction against British imperial policies regarding taxation and frontier policy. These

issues were encountered by the colonies as a result of conflicting events leading up to the French

and Indian War/ Seven Years War (1754-1763). The result of the war provided Great Britain

with enormous territorial gains in North America.10 The imposition of taxes on colonists to pay

for the war through the Townsend Acts (1767) and Stamp Act (1765) resulted in increased

colonial resentment against the overreaching British Empire. Since the colonists did not have

direct representatives in Great Britain, they refused the levied taxes and pushed for the slogan,

no taxation without representation. The dispute regarding taxation and territory expansion

7 Ibid8Charters of Freedom. (2011). Declaration of Independence. Retrieved March 5, 2012, from:http://www.archives.gov/exhibits/charters/declaration.html

9 Ibid10Office of the Historian. (2009). French and Indian War/Seven Years War. Retrieved from:http://history.state.gov/milestones/1750-1775/FrenchIndianWar


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limitations were critical to the decision by the colonies to form a state responsive to early liberal

principles.

Although the work of John Locke describes the support of natural and universal human

rights, his work appears to have contradictions. Locke generally believed that people would

come together politically into communities characterized by a common language, familial,

geographic and national origins.11 In his work, The Second Treatise of Civil Government John

Locke states that, men being free, as has been said, by nature, are free, equal, and

independent12 This quote is important because it appears that John Locke did not intend to

incorporate women or minorities in this particular declaration. It is believed that the declaration

was meant to favor white property owning males only. If John Locke never intended to include

women and minorities in his discourse, is an argument in support of marginalized groups based

on his principles of any relevance? An argument for the support of universal human rights may

seem hypocritical and inconsistent.

The answer lies in the state of continuous change of American society. The United States

has made great strides throughout history to extend full membership to underrepresented and

marginalized groups. Some examples include the Thirteenth (1865), Fourteenth (1867),

Nineteenth Amendments (1920), The Snyder Act (1924), Civil Rights Act (1964) and the Voting

Rights Act (1965). The progress is an example of evolving liberal ideas and principles. Even if

John Locke did not intend his work to apply to women and other marginalized populations, his

11Seliger, M. 1969. Locke, Liberalism, and Nationalism. In J. Yolton, ed.,John Locke: Problems and Perspectives,Cambridge: Cambridge University Press12Locke, J. 1690. The Second Treatise of Civil Government. Jon Roland, ed. Constitution Society


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early concepts of liberalism have evolved to respond to the needs of groups in the struggle for

full membership. The evolving ideas are evident in the very first international concern for

human rights in modern history during the Congress of Vienna in 1815. This congress

introduced a proclamation for the freedom of religion, the condemnation of slavery and a general

discussion of civil and political rights. A second international representation is the creation of

the Universal Declaration of Human Rights by the United Nations in 1948. At the end of World

War II, the United Nations acknowledged that the United Nations Charter was deficient in

responding to the rights of all individuals. The rights under this declaration included peoples of

the member states and peoples under their jurisdiction. This declaration expressed the rights to

which all human beings are inherently entitled regardless of race, color, sex, language, political

opinion, national or social origin, property, birth or other status. Some of the rights outlined in

the declaration include the right to life, liberty, security of person, freedom from slavery and

equal recognition under the law. 13 Given the progressive movement toward more inclusive

policy, the early liberal interpretation of John Locke seems to be, in principle, responsive to the

needs of all individuals. Although there will always be limitations imposed on groups, their

claim for full membership could be based on liberal ideas and principles which seem to adapt to

the needs of marginalized populations.

The second interpretation of national identity which shapes citizenship is republicanism.

This interpretation is most notably attributed to Baron de Montesquieu and his argument for the

single family idea. This single family idea states that republics had to be raised like a family

13United Nations. The Universal Declaration of Human Rights. Retrieved from:

http://www.un.org/en/documents/udhr/index.shtml#a26


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with education in patriotism and civic virtue. It also advocated for the censorship of dissenting

ideas, a single religion and strict constraints on the addition of aliens to the citizenry.14

According to Montesquieu, the single family idea can only be achieved in a small republic with a

homogeneous population.15 A large population would lead to multiple differences, which may in

turn harm and deteriorate the collective. The case for a small homogenous population is

necessary because it allows for the function of government in protecting the public. The

protection of the public comes in the form of favoring institutions and practices that make

collective self-government a pursuit of common good for the community.

The republican model has often been viewed as an alternative to the liberal interpretation.

The distinguishing characteristic to this position is that it insists upon a small homogenous

republic. It is believed that if citizens identified with fellow citizens at every level, then could

there be a true sense of community. This demand has often been used as a pretext for

exclusionary movements within a nation. The belief that all individuals must connect in every

social, cultural, religious, ethnic, and economic manner, brings complications to a diverse

society. Given the demands of the republican interpretation of national identity, how is this

perspective relevant in a diverse society like the United States? It is inconceivable to attempt

and articulate republican ideals in a state where diversity is embedded in society.

A third interpretation of American identity which closely resembles republicanism is

communitarianism. Communitarianism is a result of a 19th century republican branch

14Montesquieu, Baron de. 1748. The Spirit of the Laws. Jon Roland, ed. Constitution Society

15Smith, Roger. 1988. The American Creed and American Identity: The Limits of Liberal Citizenship in the United States.

The Western Political Quarterly. Vol. 41, Issue 2; pp. 225-251


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highlighting civic membership. The communitarian perspective emphasizes loyalty to the

political community and its byproducts. Canadian philosopher Charles Taylor is a contributing

academic to this idea that social institutions are important for the development of individual

meaning and identity. It also affirms that individuals are social beings defined by communities to

which they belong. The thought of a communal entity brought about the movement to institute

programs for economic security such as social welfare programs targeted at the general

population but especially dependents at the turn of the 20th century. In the context of a

communitarian perspective, dependents are considered to be the elderly, children, disabled and

unemployed. The term dependent has a different definition in the communitarian perspective

and in the United States. The communitarian interpretation equates dependents to those who

should be taken care of by society because society has a moral responsibility to do so. While in

communitarianism, this form of aid is seen as compassionate and necessary, contemporary

American opinion sees this as counterproductive. American society labels social welfare

institutions as handouts which are a failure and a burden to the economic stability of the

country.16 (Alastair MacIntyre, Michael Walzer, Benjamin Barber)

The Communitarianism perspective has its greatest distinction with liberalism. Charles

Taylor criticized liberalism for relying on the self and neglecting the significance of obligation to

the community. While liberalism can be viewed as a reaction to authoritarianism and oppressive

government, communitarianism can be considered a reaction to excessive individualism.

Contrary to the views of liberalism, communitarianism states that humans are social beings not

defined by their individual will or self-interest, but rather by the various communities people are

16Murray, Charles A. 1984.Loosing Ground: American Social Policy. 1950-1980. Basic Books; New York; NY


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part of and the way people interact with member of that particular community.17 For this reason

membership comes with certain responsibilities to the community. In the communitarian

perspective, the common good triumphs over the individualistic self.

According to Roger Smith, American history and culture has been marked only by the

liberal and republican traditions, but also by what he calls ethno-cultural Americanism. Ethno-

cultural Americanism has a focus on an organic community living in a common political and

cultural territory. In the United States context it rest on the belief that Americans have unique

characteristics descendent from their Anglo-Saxon ancestors. It seeks to identify American

nationality with a particular identity. This common identity is seen through an Anglo-Saxon

perspective that shaped the new world. This distinct characteristic put them above all else who

were seen as unfit for self-government. Ethno-cultural Americanism identifies membership

through culture and customs such as ethnicity, religion, or a particular gender or racial order,

grounding its judgments on religious terms.

A key author adopting the idea of ethno-cultural Americanism is Samuel P Huntington.

Although Huntington considers himself a social scientist studying politics and not a political

scientist, his views are relevant in the immigration and cultural debate.18 In his book,

Immigration and the United States, Samuel Huntington supports a concept he calls the

American Creed. The American Creed is the product of a distinct Anglo-Protestant culture

granted by the founding fathers. The primary elements in the culture include the English

language, Christianity, religious commitment, English concepts of the rule of law, rights of

17Bell, Daniel. (1993). Communitarianism and Its Critics. Oxford University Press, USA18Interview Samuel Huntington, Difficulties With Adjustment: On True and False Prophecies. Russian Politics and Law, vol.44, no. 1, JanuaryFebruary 2006, pp. 2341


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individuals, work ethic and the belief that humans have the ability and duty to create a heaven on

earth.19 Huntington argues that Anglo-Protestant culture has been central to American identity

for three centuries. These Anglo-Protestant traditions have provided the United States with the

rights of liberty, equality, law and individual rights. Huntington also believes that all Americans

should recommit themselves to the Anglo-Protestant culture, traditions and values because those

were the teachings of the founding fathers.

A second author whose ideas support the idea of ethno-cultural Americanism is John Jay.

John Jay is an important character because he was a founder of the United States and served as

one of the first Supreme Court justices from 1789 to 1795. In the second Federalist papers, John

Jay described Americans as a band of brethren descended from the same ancestors with the same

language, religion, government ideals, manners and customs. Jay was attempting to counter the

Anti-Federalist idea that the formation of a single republic among diverse colonies was

impossible without sacrificing freedom.20 Jays argument made a connection between the unity

of a state and their common Anglo-Saxon, Protestant and Northern European heritage. The

statement by John Jay is important because it made an assumption that these characteristics are

what it means to be an American.

The work of John Jay is unique because it reflects the struggle between Federalists and

Anti-Federalists.21 While Federalists were more commonly associated with liberal ideals, the

19Huntington, Samuel P. (2004). Who Are We? The Challenges to Americas National Identity. New York, NY: Simon &Schuster20Storing, H. 1981. What the Anti-Federalists Were For. Chicago: University of California Press


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Anti-Federalists were associated with the republican principles. The struggle between Federalist

and Anti-Federalists climaxed during the American Civil War (1861-1865). The outcome of the

Civil War would lead to the creation of the state in where the powers of the federal government

triumphed over local governments. The realizations of a strong federal government after the

Civil War lead to a famed unity of individuals in the United States grounded in part on ethno-

cultural characteristics.

The republican and ethno-cultural American forms for national identity have shaped

exclusions in immigration policy on the basis of nationality and race. The first exclusion

prompted in policy is the Chinese Exclusion Act 1882 which barred Chinese and other Asians

from immigration and naturalization. The after World War I. Questions were asked if the

birthrates of immigrant groups would outpace birthright of white Americans and whether

immigrants bring diseases to the United States. Prior to WWI, ideas such as biological

essentialism and eugenics were granted a form of validity. It is unfortunate that while race is

proven to be constructed, there still exists an ethno-racial criterion for different populations

throughout history22. The fear of white America being diluted by immigrants who were racially

and culturally inferior created a climate in which restrictive immigration policies were passed in

1921 and 1924. These laws imposed quotas to dramatically restrict immigration from Southern

and Eastern Europe. The same principles were also seen during the enactment of the Chinese

Exclusion Act of 1882. In contemporary policy, there are still exclusionary forces behind

building border fences, passing English only propositions, eliminating bilingual education for the

22Haney, Lopez, I.F., 1996. White by law: the legal construction of race. New York: New York University Press


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education, working and building social connections is part of society and has a moral claim for

membership. The time a person stays in the United States contributes to their civic participation

and overall social membership. Their social membership should outweigh the importance of

enforcing immigration restrictions. The right of states to apprehend and deport immigrants

erodes as people spend a longer time in the United States.24

Joseph Carens provides the argument that laws, including immigration laws are only

occasionally enforced to maintain order at a sufficient level. Immigration laws are not in the

same degree of severity to those of murder and theft. They are more closely related to

automobile traffic laws. When an individual commits a driving violation, the individual does not

remain a criminal forever. According to Carens, a person residing for a minimum of five years

with without any criminal convictions should be provided with full membership. The application

of this theory suggests that states should restrain from grating occasional amnesties. Instead,

states should establish an individual right for individuals to switch their status from

nonimmigrant status to legal residency after a period of five to seven years.25

The literature provided is important because it contributes to the themes of national

identity and their influence in the definition of citizenship. This literature relates to the main

question because it creates connections between interpretations of national identity and

exclusions of marginalized populations in the United States. My analysis toward a solution to

24Carens, Joseph H. 2009. The Case For Amnesty. Boston Review. Retrieved from http://bostonreview.net/BR34.3/carens.php

25Ibid
http://bostonreview.net/BR34.3/carens.phphttp://bostonreview.net/BR34.3/carens.phphttp://bostonreview.net/BR34.3/carens.php


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the inclusion problem for undocumented students will draw upon a liberal and communitarian

ideologies. Although they seem to be conflict, the communitarian perspective will be drawn from

a civic participation approach in relation to the residence claim provided by Joseph Carens. In

order to demonstrate the civic participation and social membership tied with liberalism, we must

first properly identify an undocumented student.


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Chapter 3

IDENTIFICATION OF AN UNDOCUMENTED STUDENT

In order to properly form a solution to the inclusion problem, a definition of an

undocumented should be provided. An undocumented student is a foreign born individual who

entered the geographical boundaries of the United States as a minor (under the age of 16) without

legal documentation. Although it is commonly known that a minor is under the age of 18, the

definition proposed does not include individuals who arrive after the age of 16. This is an

important factor because the definition is meant to target those who enrolled in primary and

secondary school in the United States. The importance of this education is a critical factor to the

identification of an undocumented student. These individuals arrived to the United States at no

fault of their own and are mere victims to the actions committed by their parents. Even if they

hold no personal responsibility for their migration, they are now legally excluded in the country

they were raised in. They are not eligible for most scholarships, cannot obtain a drivers license,

and are barred from legal employment. This population has already integrated in society and

think of themselves as American; however, they have no path toward obtaining citizenship.

Although the age of arrival is limited to those arriving before the age of 16, there is no

age limit set on this definition. There are many individuals who are currently in their 20s and

even 30s who were brought to the United States before the age of 16. This group must be

included in the definition because there has been no legislation that would provide them

citizenship. These older individuals were residing in the United States after the enactment of the


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Immigration Reform and Control Act (1986) and thus cannot claim residency under this

legislative policy. The IRCA was a policy enacted during the presidency of Ronald Reagan

intended to target employers and those who were residing in the United States without legal

documentation. The policy provided legalization to undocumented individuals who had been

continuously unlawfully present in the United States since 1982. The highlights of this

legalization included the legalization of certain agricultural workers, sanctions for employers

who knowingly hired undocumented workers and increase police enforcement of the United

States/Mexico border.26 Since 1986, there has been no similar policy for undocumented students

to receive legal immigration status.

Would an individual be included under the definition if they arrived to the United States

legally but overstayed the conditions of their visa? Unfortunately students who overstayed the

conditions of their visa cannot be included in this definition. The primary reason is that they

were never brought to the United States without their knowledge at an early age. Students with

these visas have generally never been part of the American educational system or society. To

enter the United States as a foreign student, one must first pass an application process. Even if

they were brought to the United States at an early age, the conditions of the visa sets educational

institution and economic requirements that are unattainable by undocumented students. The two

student visas available are F-1 and M-1. An F-1 visa is for children who want to attend

secondary school (9-12) in the United States. In order for a student to get this type of visa, they

must have applied and been accepted to a school. Confirmation is provided by the school

26U.S. Citizenship and Immigration Services.(2011). Immigration Control and Reform Act of 1986 (IRCA). Retrieved from:http://www.uscis.gov/portal/site/uscis


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through an I-20 form. The requirement for this visa states that these students must pay the

school system the full, unsubsidized, per capital cost. In addition, it explicitly notes that they

cannot attend public elementary schools or publicly funded adult education programs. The M-1

visa is intended for foreign students wishing to pursue vocational or non-academic studies.

These too are confirmed by the United States embassy or consulate with a form I-2027. These

students must confirm that they are in good economic standing and demonstrate they can support

themselves while they reside in the United States. In contrast, the majority of undocumented

students under the proposed definition come from a low income background and never had the

opportunity to apply and pay the full cost of tuition to an academic institution from their country

of birth.

The emphasis on primary and secondary education is very important because it provides

a path toward the attainment of higher socio-economic status. There is a common belief among

natives and immigrants that education promotes and provides opportunities for future career

objectives. More importantly, education is essential to the claim of undocumented students

because it shapes a form of belonging and integration in the United States. There are currently

approximately 65,000 undocumented students graduating high school every year without the

possibility to continue their career goals.28 As a country who values education it should come as

a surprise that those who attend and perform well in the education system are not supported in

the land of opportunity.

27U.S. Department of State. (2011). Student Visas. Retrieved from: http://travel.state.gov/28Ramirez, Eddy. 2008. The Crash Course In Citizenship. U.S. News & World Report. Vol. 145, Iss. 4; pp. 46-47


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Longitudinal Study of Adolescent Health (Add Health). The population observed included a

representative sample of adolescents in grades 7 through 12 from 19994-1995. Their trajectories

were evaluated using capital models. The capital models that influence educational attainment in

immigrant and native youth are human capital, cultural capital, school-level social capital and

community-level social capital. Human capital is the practical knowledge, skills and learned

experiences that shape the individual. In this study, human capital referred to work participation

and English proficiency. Cultural capital is the predisposition of family mediated values that

facilitate and promote the attainment of higher education. School capital is simply described as

the school environment. Community capital is the neighborhood conditions because they shape

the level of opportunity for adolescents. The differences in dropout rates vary on the levels of

capital each student had available to them. The results of the study showed that those who

possessed low levels of human capital had a higher dropout rate, but if cultural capital was

added, first generation students had lower dropout rates then the other groups.31 First generation

students were more likely than other groups to transform cultural capital into academic success

in the United States. The dropout rates are lowest among immigrant children and highest among

native youth. This study demonstrates that first generation immigrant students hold a strong

value in education. The emphasis in education can be attributed to immigrant parents stressing

the need for a better life to their children and identifying education as the key.

In order to address the inclusion problem of the undocumented students, I provided a

concise definition to correctly respond to the needs of this population. It is important to note that

31Perreira, Krista M; Harris, Kathleen M; Lee, Dohoon. Making it in America: High School Completion by Immigrant andNative Youth. Demography. Vol. 43, Iss. 3; p. 511-535


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the undocumented student population varies in age, ethnicity and gender. The emphasis in

primary and secondary education is critical because it represents a form of social integration in

the United States. Although there is limited amount of data on undocumented students, their

graduating numbers and motivating academic objectives should be enough to properly address

and find a solution to their inclusion problem.


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Chapter 4

The Inclusion Problem

Throughout the history of the United States, the political system continuously minimized

liberal elements and defined American identity on other exclusionary interpretations. In many

instances the combinations of the various forms of national identity allowed exclusionary forms

to triumph over the definition of citizenship. These interpretations and their mixtures have long

shaped anti-immigrant sentiment and legislation. The solution to their inclusion problem for

undocumented students lays in making a moral claim for citizenship through residence while

incorporating liberal and communitarian interpretations of American identity.

The importance of the struggle for full membership for undocumented students is evident

in their social inclusion within the area of education. The United States Supreme Court in its

decision of Plyler v. Doe in 1982 asserted that states could not discriminate against

undocumented students based on their legal status. The case was decided through the equal

protection clause of the 14th amendment and concluded that undocumented children are people

and had a right to primary and secondary school education.32 The issue revolved around the idea

that children without legal status were human beings and deserved to receive an education in the

32Chicago-Kent College of Law. Plyler v. Doe. Retrieved from: http://www.oyez.org/cases/1980-1989/1981/1981_80_1538
http://www.oyez.org/cases/1980-1989/1981/1981_80_1538http://www.oyez.org/cases/1980-1989/1981/1981_80_1538http://www.oyez.org/cases/1980-1989/1981/1981_80_1538


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state where they would be residing. The decision to provide education regardless of immigration

status granted a form of inclusion through social integration, but created exclusions by not

providing legal membership. This exclusion comes with the inability to obtain legal immigration

status in order to further their studies, work or even create a life in the United States.

The bases for granting primary and secondary school education resonates with the idea of

universal human rights proposed by liberal philosophy. Since primary and secondary school

education is a basic right for all minors in the United States, granting them this right showed that

undocumented students have a base for claiming social membership under an evolving liberal

interpretation of American identity. As noted in the early liberal interpretation ideas, the federal

government safeguarded the human rights of minors to primary and secondary education. With

the help of this education, they developed social membership through residence, social

connections, language and economics. The availability of education for undocumented students

is an example of the evolving liberal ideals. This action furthers the claim for liberal principles

because the early liberal interpretation of American noted that states should play an active role in

protecting the rights of all individuals.

An important factor contributing to exclusion is the social construction and issue framing

that directly affects legislation and court decisions. Social construction is a perfect example to

demonstrate exclusionary forms of national identity at work. The issue regarding undocumented

student does not focus on the question of whether they are positive members for society.

Unfortunately, the primary concern is that this population entered the country while undermining

immigration laws, constructing them first and foremost as illegal without taking into

consideration their personal character or circumstances. Social constructions revolving around a


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states that individuals are member of the economic and social society. They would continue to

be residents of the state regardless of immigration policy. This concept was introduced after

lawmakers in Kansas argued that the cost of providing in-state tuition would be offset by the

productivity of the college bound undocumented student. In addition, this proposal was

supported with notions of the United States being the land of opportunity and emphasized the

importance of their hard work and personal responsibility. This concept resonates with the idea

of Joseph Carens and the communitarian perspective because it concludes that individuals are

residents of that particular state and have gained community membership and identity. Their

inclusion in social membership is measured by their residence and not by birth in the particular

state.

Another supporting claim for full membership is evident in the area of civic participation.

This civic engagement is defined as providing a social service, activism, tutoring, and

functionary work. The research on civic participation shows that families, educational

institutions, and organizations play an important part in influencing youth to be civically

engaged. When schools organize volunteer opportunities, students are more likely to

participate.34 For this reason the access to educational institutions is important because it

develops and promotes the civic participation of the youth within their communities. School is

the primary social atmosphere in where students join organizations and become civically

engaged. A study showed that 90% of undocumented students surveyed ranging from

elementary to college engaged in some form of civic participation. The data showed that in

34Perez, William; Espinoza, Roberta; Ramos, Karina; Coronado, Heidi; Cortes, Richard.2010. Civic Engagement Patterns ofUndocumented Mexican Students. Journal of Hispanic Higher Education. pp. 245-265


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elementary, 38% were civically engaged; it later increased in middle school to 41% and

continued to increase to 73% during high school. More specifically, 7% provided social

services, 3% were involved with activism, 29% tutored and 55% performed functional work. Of

the total active, 34% reported spending 40 hours per year doing volunteer work. Research has

shown that youth who are civically involved continue to do so as adults.35 This data

demonstrates that despite feelings of rejection because of their undocumented status, these

students continue to be civically engaged. Although the study was conducted based on the Latin

students, it demonstrates the civic engagement of the general undocumented student population.

The concept of civic participation is closely related to the interpretations of liberalism

and communitarianism. As a result of Plyler v. Doe, undocumented students are able to attend

school and become part of groups and organizations that promote civic participation. The

liberal interpretation that prompted this decision in education rights has provided undocumented

students a pathway from which to be actively involved in their communities. The civic

participation demonstrates that students are social members of their given communities. This

activity is essential to the personal self because it determines and contributes to their personal

identification to a given society. The work of Joseph Carens contributes to this assessment

because it indicates that the residence of an individual allows them to have social membership.

Within this claim of residence, a person is expressive of communitarianism ideals because their

civic participation demonstrates the responsibility to their given communities.

35 ibid


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Chapter 5

POTENTIAL CRITIQUE

In order to properly support the argument for liberal and communitarian interpretations as

a solution to the inclusion problem we must also provide the arguments against extending full

membership to undocumented students. These critiques must be identified and provide whether

they reflect other schools of thought. It is important to provide opposing viewpoints and identify

their deficiencies in providing full membership necessary in a progressive society.

The Americans for Legal Immigration Political Action Committee have vigorously

opposed colleges offering admission and discounted tuition to undocumented students. They

believe that at a time of economic hardships, there needs to be a focus only on American

citizens. The Federation of American Immigration Reform (FAIR) added that in-state tuition

should be a benefit only to legally present and citizen students because taxpayers support the

institutions.36 This critique has a focus on a republican perception and challenges the

communitarian position of granting in-state tuition. The belief that education should be provided

only to citizens is an exclusion attempting to create an enclosed society. Independent of whether

we believe that higher education is a privilege or a right, the critique is exclusionary in principle.

The claim basically states that even if undocumented students form part of the social community,

36Ramirez, Eddy. 2008. The Crash Course In Citizenship. U.S. News & World Report. Vol. 145, Iss. 4; pp. 46-4


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they are not legally protection under state law to receive in-state tuition. It is contradictory that

an undocumented student is considered a member of society under penal code of the state and

is still excluded from equal access to education. There are currently thirteen states that allow

undocumented students to pay in state tuition. The states provide this opportunity to students

because they are physical residents of the state. They have lived in their respective states for

many years, even before they applied to post-secondary institutions. An undocumented student

who resides in a state is not the same as a student who moves from one state to another. Students

from neighboring states cannot claim in state tuition in a different state for the obvious fact that

they have not resided long enough in that particular state.

There is also a belief that undocumented student admitted to community colleges and

universities take up seats of U.S. citizen. Undocumented students are not admitted to

universities based on their legal status. They are accepted as a result of their academic

achievements. They compete with other students who, like them, attended primary and

secondary school in the United States. As previously states, undocumented first generation

students tend to do better academically than citizens. They apply to four year colleges at a much

higher rate than the rest.

Some critics claim that undocumented students should leave the country and reapply for

admission into the United States. The idea that undocumented students should return to their

country of birth and reapply is extreme. Those under the proposed definition of an

undocumented student arrived to the United States as minors and hold no blame for decisions

made by their parents. They also hold no personal ties to their country of birth and already think

of themselves as American. Forcing these students to leave the country is equivalent to stripping


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someone of their U.S. citizenship and forcing them to apply for reentry. Even if this proposal

was taken seriously, the application process for entry in the United States is broken. The visa

allocation system for work and school permits is no longer functional. The current wait for

business-sponsored green card requests is six to twenty years. This is an unrealistic amount of

time to hire new employees.37 Under current immigration law, if an individual is instructed to

leave the United States by an immigration judge, they would have to wait ten years before they

could attempt reentry. This critique also has bases on republican ideals of national identity. The

republican foundations support the exclusion of foreign born individuals out of fear to

disintegrate the collective. Their expulsion from the United States only to have them wait an

undetermined amount of time for reentry and basing the decision on historically radicalized

immigration policies is exclusive. Although this critique does not go as far as to imply

superiority as would the ethno-cultural interpretation, it aims to reduce diversity.

There are people who also claim that undocumented students are inherently different than

the rest of American society in terms of ethnicity, culture and values. This critique most

represents the ethno-cultural interpretation of American identity. This may support a system that

tries to formulate an imagined community with the ability to rule, regulate and enforce culture

boundaries. The important thing to know is that citizenship is comprised of two sides; one legal,

the other cultural. The legal aspect is the relationship between the individual and the state. The

cultural citizenship aspect is distinction in sense of belonging, entitlement and influence in

different communities. This sense of cultural constitutes the manner in which people struggle to

37Suarez-Orozco, Carolina; Yoshikawa, Hirokazu; Teranishi, Robert T; Suarez-Orozco, Marcelo M. 2011. Growing Up in theShadows: The Developmental Implications of Unauthorized Status. Harvard Educational Review. Vol. 81, Issue 3


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maintain their rights and be different without compromising their right to participate in the

states democratic process. While individuals have their own ethnic and cultural identification,

this form of identity should not interfere with the legal citizenship of an individual. 38 There has

historically been a sentiment that the meaning of American is associated with being fully white

and having the same culture. Although individuals may have a different cultural background,

they must be provided legal membership in order to participate in the nation state democratic

process. The critique proposed against extending full membership is absurd because the United

States is a diverse society with progressive liberal features extending full membership to other

groups.

The assessment that citizenship is comprised of legal and cultural membership is

important because it demonstrates the need for each individual to practice their cultural heritage

while at the same time practicing their legal membership in the state. The United States is a

melting pot with many distinct cultures and ideas. The interpretations of republicanism,

communitarianism and ethno-cultural Americanism fail to realize that the individual along with

his own personal characteristics is what makes up America. It is possible to maintain ones own

personal social and cultural characteristics while at the same time exercising your right to vote,

work and participate in the overall means of democracy.

The critiques exposed by anti-immigrant groups and others vary in their basis but they all

form part of the exclusionary forms of national identity. Although it is important to introduce

critiques against extending full membership, it is equally important in identifying their

38Meeks, Eric V. 2007. Border Citizens. University of Texas Press. Austin, Texas


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exclusionary intentions. The critiques are examples of the many claims expressed during the

legislation of immigration policy. These and many more critiques were presented during the

proposed Dream Act legislation in 2010. Now that we have provided samples of possible

critiques, we can assess policy recommendations directed at undocumented students.

Chapter 7

POLICY RECOMMENDATIONS

A legislative approach is necessary to attain to the needs of undocumented students. The

policy recommendation will be developed in relation to proposed and active legislation. There

are factors in the Development, Relief and Education for Alien Minors (DREAM Act) that can

be adjusted to respond accordingly to the needs of undocumented students. The Dream Act

(H.R. 6497), as introduced in December 7, 2010 would provide conditional nonimmigrant status

to undocumented students. Individuals with conditional nonimmigrant status could lawfully live

and work in the United States. They would be eligible to receive some tax refundable credits,

social security, Medicare and federal student loans.39 Undocumented students could quality for

conditional nonimmigrant status if they:

- Were less than 16 years of age when they entered the country

- Lived in the United States for at least five years prior to the bills enactment

39Congressional Budget Office. (2010).Development, Relief , and Education for Alien Minors Act of 2010. Retrieved from:http://www.cbo.gov/ftpdocs/120xx/doc12015/hr6497.pdf
http://www.cbo.gov/ftpdocs/120xx/doc12015/hr6497.pdfhttp://www.cbo.gov/ftpdocs/120xx/doc12015/hr6497.pdfhttp://www.cbo.gov/ftpdocs/120xx/doc12015/hr6497.pdf


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- Are high school graduates or current students who have been admitted to an institution of

higher education or have a general education certificate degree (GED)

The conditional nonimmigrant status would be divided into two time periods. The initial status

would have an application fee of $600 and would be valid for a period of five years. During this

time, the individual must earn a degree from an institution of higher education, complete two

years toward a college degree or serve at least two years in the military. If these requirements

are met, the individual could extend their conditional nonimmigrant status for another five years.

After ten years, they would be eligible to apply for permanent legal residency. A permanent

legal resident must wait an additional three years to apply for citizenship.40 Although there have

been several versions of the DREAM Act, H.R. 6497 provides a more comprehensive outline for

constructing a solution for undocumented students.

The Dream Act (H.R. 6497) crates a path toward providing legal residency and ultimately

the opportunity to obtain citizenship. However, under the conditions of the Dream Act, an

individual would have to wait a total of ten years to apply for permanent residency and a total of

thirteen years to apply for citizenship. Instead, I would recommend providing nonimmigrant

status to minors within the first three years of entering the country. This is necessary because

many minors are in need of medical insurance, services and care. This could add to a healthier

society and minimize emergency healthcare costs. In addition, since the age is stated at younger

than 16, it would give undocumented students the opportunity to apply for colleges by the time

they graduate high school. These are the only major modifications to the currently proposed

40Palacios, Moses. 2010. The Dream Act Explained.Journal of College Admission.


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federal Dream Act that would be necessary. The federal Dream Act has been consistently

introduced to a vote in the House of Representative and the Senate along with other bills attached

and failed. It is essential for the Dream Act to be voted upon as a standalone bill. This may give

it more of a possibility to pass in Congress. In order to bring change through legislative proposal

and reach a bipartisan solution, there needs to be group representation.

The policy process contains two parts; one is the perception of who the policy will be

directed to, determining whether this population is powerful or weak. The second factor is

determining the policy targets are good or bad people. Those who are at an advantage are the

powerful because they are generally positively constructed in the public sphere. This is

important because this leads policy makers to derive clear political opportunities favorable to

powerful populations and burdens to the negatively constructed or powerless groups. Since

undocumented students provide little to no political payoffs, their needs are disregarded and

classified as unimportant. Although we can propose numerous legislative recommendations,

there needs to be active groups and legislative individuals representing undocumented students in

order to stabilize injustice. Legislative individuals include congressmen and other figures that

can represent marginalized populations in the public sphere. The activism of legal groups is

necessary for the democratic process and to increase political liberty and human well-being.41

Only through the representation of active legal groups, can excluded groups like undocumented

students ever form part of a successful legislative movement that will lead to legislative success.

41Dahl, Robert A (1982).Dilemmas of Pluralist Democracy, Autonomy vs. Control. Yale University


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Chapter 8

Conclusion

The different forms of national identity and citizenship play a significant role in the

inclusion problem of undocumented students. This can be seen in the historical exclusions of

groups who were born inside the United States but were not granted full membership. This

phenomenon could be seen in the exclusion patterns of women and undocumented students.

The application of liberal principles to the idea of an evolving society can be applied to

the idea that the United States constitution is also subject to change. Liberal ideas can be

employed to claim basic rights by every human being in the United States regardless of race,

gender, sexual orientation and even immigration status. The same claim can be made by

undocumented students and other marginalized groups. The claim for legal membership can

come through constitution of the United States because it is a claim toward life, liberties and

pursuit of happiness. The essential rights in the constitution are all phrased in terms of the

people. These universal rights now hold a canon of truth and make no distinctions by legal

status.

The other interpretations of American identity are irrelevant to the need of undocumented

students. The republican, communitarian and ethno-cultural interpretations all attempt to create


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a homogenous society through the use of small republic or religion (what does the right through

residency that Carens proposes fit? Your earlier suggested this was key).

In a realistic perspective, there is no plausible manner in which government

representatives can naturally or immediately respond to the needs of undocumented students.

For this reason, groups are needed in a democracy to represent the needs of underrepresented

populations such as undocumented students.

(what are the prospects for a view of citizenship grounded in liberal universal principles

as well as the principles of residency to gain ascendance in the US? Do we have any precedents

to go on?)

Exclusionary forms of national identity such as republicanism and ethno-cultural

Americanism have been implemented in American policies throughout the history of the United

States. These interpretations have played a significant role in the formation of immigration

policy. The desire to maintain a homogenous society with common characteristics served as the

basis to provide admission to citizenship based on race, religion, culture and gender. In addition,

debates arose in the ability of immigrants to assimilate and learn English. Questions were asked

if the birthrates of immigrant groups will outpace birthright of white Americans and whether

immigrants bring diseases to the United States. Prior to WWI, ideas such as biological

essentialism and eugenics were granted a form of validity. Today, current scholarship has

proved that race is socially and legally constructed and not scientifically, genetically, or

biologically different. It is unfortunate that an ethno-racial criterion supporting population


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differences were common in legislation up until 196542. The fear of white America being diluted

by immigrants who were racially and culturally inferior created a climate in which restrictive

immigration policies were passed in 1921 and 1924. These laws imposed quotas to dramatically

restrict immigration from Southern and Eastern Europe. The same principles were also seen

during the enactment of the Chinese Exclusion Act of 1882. In contemporary policy, there are

still exclusionary forces behind building border fences, passing English only propositions,

eliminating bilingual education for the purpose to limit the number of undesirable immigrants43.

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