updating brignoni-ponce - New York University School of Law

2008] UPDATING BRIGNONI-PONCE 581
grounds of health, criminal record, foreign policy concerns, or likelihood
of becoming a public charge. 78 Even if they are admissible, quotas
on the number of visas granted per year are listed per country and
can result in major backlogs, depending on the nationality of the applicant.
79 For example, as of February 2008, Mexican and Filipino applicants
who are unmarried sons or daughters of U.S. citizens and filed
their applications after 1993 are still waiting for visa numbers. 80 Of
course, if a noncitizen decides to come to the United States illegally
instead of waiting for the process to work, he or she would be subject
to removal proceedings if immigration enforcement officials ever
learned of his or her presence.
The terminology used in immigration supports these nativistic
notions. “Alien” is a common term in government to refer to noncitizens,
but this term carries negative connotations such as “contrary,
hostile, strange, [and] unsuitable,” and definitions such as “unlike
one’s own; strange” and “opposed; hostile.” 81 Similarly, the term “illegal”
frequently implies that undocumented immigrants are criminals
instead of in violation of civil law. 82 The names of Border Patrol operations
provide another prime example of nativistic language. Such
names include “Operation Return to Sender” (2006), implying that the
federal government is essentially placing a stamp on human beings,
and “Operation Predator” (2003) and “Operation Game Day” (2003),
which imply that apprehending immigrants is a game or a hunt. 83
78. Immigration and Nationality Act (INA) of 1990 § 212(a)(1)–(4), 8 U.S.C.
§ 1182(a)(1)–(4).
79. See INA §§ 201–202; U.S. Dep’t of State, Visa Bulletin for February 2008
(Feb. 2008), http://travel.state.gov/visa/frvi/bulletin/bulletin_3925.html.
80. U.S. Dep’t of State, Visa Bulletin for February 2008 (Feb. 2008), http://
travel.state.gov/visa/frvi/bulletin/bulletin_3925.html. Chinese and Indian applicants
in that category have available visa numbers if their applications were filed prior to
2002. Id.
81. Rodríguez, supra note 68, at 230–33 (noting that unlike their European counterparts,
immigrants from Mexico are known as “aliens”) (internal quotations omitted).
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82. NEVINS, supra note 77, at 9; see Berta Esperanza Hernández-Truyol, Reconciling
Rights in Collision: An International Human Rights Strategy, in IMMIGRANTS
OUT!: THE NEW NATIVISM AND THE ANTI-IMMIGRANT IMPULSE IN THE UNITED
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STATES, supra note 61, at 254, 254–55 (noting the use of Proposition 187’s use of the
term “illegal aliens” in order to promote fear of “others/outsiders”). Unless quoting
sources, I use the term “undocumented immigrants” or “undocumented population” to
describe the population who otherwise could be termed “illegal immigrant,” “illegal
alien,” “illegal,” or worse.
83. BORDER NETWORK FOR HUMAN RIGHTS, “BEHIND EVERY ABUSE ISA COMMU-
NITY”: U.S./MEXICO BORDER REPORT TO THE UNITED NATIONS HUMAN RIGHTS COM-
MITTEE REGARDING THE UNITED STATES’ COMPLIANCE WITH THE INTERNATIONAL
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COVENANT ON CIVIL AND POLITICAL RIGHTS 15 (2006), available at http://
www.borderaction.org/PDFs/BNHR_Report_to_HRC.pdf [hereinafter BNHR REPORT
TO UNHRC].