Dual Sources of Influences on Latino Political Identity: Mexico’s Dual Nationality Policy and the...

ARTICLE

DUAL SOURCES OF INFLUENCE ON LATINO POLITICAL IDENTITY: MEXICO'S

DUAL NATIONALITY POLICY AND THE DREAM ACT*

RENE GALINDO,'* CHRISTINA MEDINA*** & X6CHITL CHAVEZ****

SUMMARY

I. INTRODUCTION 77

II. LATINO CULTURAL CITIZENSHIP 79

in. DUAL CITIZENSHIP AND DUAL NATIONALITY 84

IV. NATIONAL LOYALTY 86

V. THE DREAM ACT 90A. The PVilson Four 90B. A Colorado Example 91C States Enact Their Own DREAM Acts 91D. Significant Local Impact 92E. Proposed Federal DREAM Act 93F. Support for the DREAM Act 94G. Overcoming Opposition 95H. Significance of the DREAM Act to the Latino Community 96

The research support made possible through a grant from the Spencer Foundation is gratefully acknowledged. Theviews expressed are solely those of the authors.

Associate Professor in the School of Education at the University of Colorado at Denver and Health Sciences Center;Ph.D. in Education, The Ohio State University, 1990.

Adjunct Professor of Political Science, Community College of Aurora, Colorado and Red Rocks Community Collegein Golden. Colorado; Master of Public Administration, The Graduate School of Public Affairs, University of Colorado at Denver,1998; current Ph.D. student at the Graduate School of Public Affairs, University of Colorado at Denver and Health SciencesCenter.

" " . Master of Arts, The Teresa Lozano Long Institute for Latin American Studies, The University of Texas at Austin,2004; current Ph.D. student in the Cultural Anthropology doctoral program at the University of California Santa Cruz.

75

76 TEXAS HISPANIC JOURNAL OF LAW & POLICY [Vol. 11:75

VI. CONCLUSION 98

2005] DUAL SOURCES OF INFLUENCE ON LATINO POLTTICAL IDENTITY 11

I. INTRODUCTION

The political identities of Latinos in the United States are shaped by policies developedboth in the United States and in the immigrant sending countries that attest to the binational andtransnational character of their lives.' Two examples of this dual source of policy are the proposedfederal legislation, the Development, Relief, and Education for Alien Minors Act (DREAM Act)and Mexico's dual nationality policy.^ These two policies provide fertile ground for an examinationof Latino identity politics, since they both directly address the political status of Latinos. The aimsofthe DREAM Act are to remove the high cost of out-of-state tuition rates as a barrier to the highereducation of undocumented students and to make them eligible for legal permanent residence. TheDREAM Act takes up where the United States Supreme Court ease Plyler v. Doe^ left off bymaking it easier for undocumented students to pursue higher education and a place within theworkforce as legal residents. Mexico's dual nationality legislation also alters the political status ofMexicans residing in the United States. Those who qualify can apply for U.S. citizenship knowingthat they keep most of their rights as Mexican nationals.

The DREAM Act and Mexico's dual nationality policy facilitate the incorporation ofimmigrants into society by addressing the dilemma that undocumented students face and thebinational experience of Mexican immigrants. Both of these policies aim at facilitating theinclusion of immigrants into society. They stand in contrast with other policies, such as the state-leve! anti-bilingual education and English-only policies, which are exclusionary and restrictionistic.The contrasting aims of restrictionistic policies with the DREAM Act and Mexico's dual nationalitypolicy illustrate heightened tensions around national identity that are a reaetion to the demographicchanges brought about by Latino immigration.

The dual source of policy influence on Latino political identity along with heightenedtensions around immigration call for a rec one eptual ization ofthe place of Latinos' multiple culturaland political identities within the national fabric. The notion of Latino cultural citizenshipcontributes a new perspective by including cultural identity in the understanding of citizenship andextending its meaning beyond legal terms.* Additionally, citizenship is also understood

1. Maria de los Angeles Torres, Transnational Political and Cultural Identities: Crossing Theoretic Borders, inBORDERLESS BORDERS: U.S. LATINOS, LATIN AMERICANS, AND THE PARADOX OF INTERDEPENDENCE 169, 181-82 (FrankBotiilla et al. eds., 1998).

2. Paula Gutierrez, Mexico's Dual Nationality Amendments: They Do Not Undermine U.S. Citizens' Allegiance andLoyalty or U.S. Political Sovereignty', 19 LOY. L.A. INT'L & COMP. L.J. 999, 1007-10 (1997) {Mexico's dual nationalitylegislation, known as "'la no perdida de nacionalidad" (the no loss of nationality), was passed by the Mexican congress inDecember of 1996).

3. 457 U.S. 202(1982).

4. See William V. Fiores with Rina Benmayor, Introduction: Constructing Cultural Citizenship, in LATINO CULTURAL


metaphorically as the recognition of multiple cultural identities within the nation.'' The notion ofLatino cultural citizenship incorporates the multiple political and cultural identities of Latinos inorder to resist assimilationism and the historic exclusion of a Latino identity from definitions ofnational identity.

The multifaceted view of citizenship promoted by the concept of Latino cultural citizenshipis complemented in the legal arena by the dual nationality legislation enacted by the Mexicancongress. Mexicans living abroad who qualify for dual nationality can maintain multiple nationalaffiliations and do not have to choose between nationalities. Both the notion of Latino culturalcitizenship and dual nationality challenge the one nation/one language/one culture/one identityassumption behind the monolithic and restrictionist view of national identity espoused by nativismand assimilationism and that is promoted through anti-immigrant and anti-bilingual educationinitiatives.*"

The plight of the undocumented is especially instructive in documenting the need for abroader view of citizenship that is understood in terms of societal membership. The undocumentedare caught between legal definitions of citizenship, which exclude them from the nation, and theircontributions, such as their labor, which benefit the nation. The distinction between documentedand undocumented migration has been employed to exploit Mexican labor and stigmatize Mexicanmigrant workers in the United States^ Selective enforcement of the law, coordinated with seasonallabor demand, has long supported a revolving door policy where deportations are followed byimportation of Mexican labor. Across time the selective enforcement of law has contributed to theracialization and linkage of "illegal alien" with "Mexican." This has functioned to create acommodity identity that constructs "a people reducible to the disposability of their labor for a price[and] has become central to the racialization of all Mexicans/Chicanos and other Latinos (regardlessof immigration status or even U.S. citizenship)."** In the past, the consequences of this commodityidentity have been deportations of Mexicans with no regard for status as legal residents or U.S.citizens by birth, and a dual-wage labor structure that paid Mexicans lower wages than others forthe same work.* The term "Mexican" not only became pejorative, but also came to symbolize

CITIZENSHIP: CLAIMING IDENTITY, SPACE, AND RIGHTS 1 (William v . Flores & Rina Benmayor eds., 1997) [hereinafter

Constructing Cultural Citizenship].

5. James Cohen, Value Judgments and Political Assessments About National Models of Citizenship: The U.S. and FrenchCa^e?, in CULTURAL IDENTITY AND THE NATION STATE 109 (Carole. Gould & Pasquale Paquino eds.. 2001).

6. See Juan F. Perea, Demography and Distrust: An Essay on American Languages. Cultural Pluralism, and OfficialEnglish, 77 MlNN. L. REV. 269, 340-41 (1992).

7. See Nicholas De Genova, Migrant "Illegality " and Deportability in Everyday Life., 31 ANN. REV. Of ANTHROPOLOGY419(2002).

8. /(/.at 433.

9. Id.; see also CARLOS G. V^LEZ-IBANEZ, BORDER VISIONS: MEXICAN CULTURES OF THE SOUTHWEST UNITED STATES87 (1996) (characterizing commodity identity as a devalued commodity that is coupled with a devalued cultural identity that wascreated by others).

2005] DUAL SOURCES OF INFLUENCE ON LATINO POLITICAL IDENTITY 79

Mexican-origin people as foreigners despite their long history in the southwest. The plight of theundocumented is central to questions of Latino cultural citizenship and to Latino political identity ingeneral since Latinos face the constant risk of being profiled as "illegal aliens.""

Latino cultural citizenship is intended to recognize the unique national and politicalidentities of Latinos including those of the undocumented. Before an examination of theimplications of these policies for Latino identity politics is presented. Latino cultural citizenship isdiscussed. The topic of Latino cultural citizenship is followed by a discussion ofthe specific issuesthat dual nationality and the DREAM Act raise concerning the inclusion or exclusion of Latinoswithin the national fabric and from their participation in critical arenas sueh as higher education.

11. LAT[NO CULTURAL CITIZENSHIP

Transnationalism and globalization have weakened the geographic borders that separatednation-states raising implications for the understanding of citizenship.'^ Geographic borders thatonce marked boundaries between nations have been replaced by political borders that markdistinctions between citizens and non-citizens living in the same nation. The shift from geographicto political borders has been accompanied by a lack of analytic categories that go beyond thenation-state and its legal category of citizenship to understand this transition. New categories areneeded to envision how political identity and societal membership should be understood in an era oftransnationalism and political borders.'^ The notion of Latino cultural citizenship addresses this gapby proposing a conceptualization of citizenship that is not bound by national geographic bordersand whieh incorporates the different political statuses that are present in Latino communities.'''Citizenship is regulated by the state and traditionally has been restricted to membership in one state.However, transnational immigrants are affiliated with more than one state and their lives blur thetraditional distinctions between home and host country. In addition to immigrants in general, theplight of the undocumented is especially instructive in recognizing the limitations of traditionalviews of citizenship and the need for a broader understanding of societal membership. The notionof Latino cultural citizenship contributes towards understanding a societal membership that reflectsthe political borders faced by Latinos.

10. Id.

11. See Adalberto Aguirre Jr., Profiling Mexican American Identity, 47 AM. BEHAV. SCIENTIST 928, 933 (2004); see alsoICatsuyuki Murata. The (Re)Shaping ofLatino/Chicano Ethnicity through the Inclusion/Exclusion of Undocumented Immigrants:The CaseofLULAC's Ethno-polilics, 39.2 AM, STUD. I N T ' L 4 (2001).

12. 5eeEngin F, Isin, Introduction to DEMOCRACY. CITIZENSHIP AND THE GLOBAL CiTY 1, 1-21 (Engin F. Isin, ed.,2000),

13. iS^e de los Angeles Torres, 5w/7ro note I, at 170-73,

14. Constructing Cultural Citizenship, supra note 4, at 16-17.


Latino cultural citizenship is a concept that addresses the tensions involved iti describingthe identity and national membership of Latinos living in the United States.'^ These tensionsitivolve the either-or scenarios where Latinos have been expected to choose among their multipleidentities. They have been expected to assimilate linguistically atid culturally as part of theAmericanization process in which maintenance of linguistic-cultural traits and ethnic activities maybe viewed as evidence of a lack of political loyalty to the nation. The expectation has been thatMexican-origin Latinos, for example, must choose between identifying as Mexican or American butnot as both is illustrated in a recent example from Foreign Policy, "[tjhere is no Americano dream.There is only the American dream created by an Anglo-Protestant society. Mexican Americans willshare in that dream and in that society only if they dream in English.""' A contrasting view ispresented by Renato Rosaldo: "[w]e are American citizens; we are supposed to be part of thisnation. What we want is a space, the freedom to be American citizens and still be what we are."'^Latino cultural citizenship links cultural identity with citizenship in order to reflect the experiencesof Latinos in the United States.

According to Blanca Silverstrini, culture is a crucial aspect to everyone's identity,especially Latinos as a minority group, since "[c]ulture provides . . . a sense of belonging to acommunity, a feeling of entitlement, the energy to face everyday adversities, and a rationale forresistance to a larger world in which members of minority groups feel like aliens in spite of beingcitizens."'^ Silverstrini states that Latinos use cultural symbols and rituals when they move to newcommunities to construct new identities.'^ She defmes cultural citizenship as, "the way peopleorganize their values, their beliefs about their rights, and their practices based on their sense ofcultural belonging rather thati on their formal status as citizens of a tiation."^" According to WilliamV. Flores, for Latinos livitig in the United States, cultural citizenship defmes a virtual syncretism ofnative cultures and lifestyles from Latin America with those gained from the new experiences ofliving in this country. They are able to retain past cultural forms while creating completely newones. Thus, their identity claims and sense of citizenship also change. The multiple identitiesconstructed by Latinos in the United States have been aptly called border identities. Theyconstantly change, emerge at the margins, defme themselves as hybrid creations of distinct forces.

15. Id.

16. Samuel P. Huntington, The Hi.spanic Challenge, Foreign Pol'y, Mar./Apr. 2004, availahle athttp://www.sulekha.com/news/nhc.aspx?cid=329686 (last visited Feb. 27, 2005).

17. Blanca G. Silvestrini, "The World We Enter When Claiming Rights ": Latinos and Their Que.st for Cuhure, in LATINOCULTURAL CITIZENSHIP: CLAIMING IDENTITY, SPACE, AND RIGHTS 39, 44 (William V. Flores & Rina Benmayor eds., 1997)

(quoting RENATO ROSALDO. CULTURE AND TRUTH: THE REMAKING OF SOCIAL ANALYSIS 198 (1989)).

18. Id. 3.t 43.

19. See id.

20. Id. at 44.

2\. William V. Flores, Citizens vs. Citizenry: Undocumented Immigrants and Latino Cultural Citizenship, in LATINOCULTURAL CITIZENSHIP 255,262 (William V. Flores & Rina Benmayor eds., 1997) [hereinafter Citizens vs. Citizenry].

2005] DUAL SOURCES OF INFLUENCE ON LA TINO POLITICAL IDENTITY 81

and may imply multiple loyalties. " Latinos have access to two worlds with the ability to speak twolanguages and appreciate two cultures. However, this hybridity is complex because Latinos aresimultaneously in both and yet may be considered by some to belong to neither and thus not fullyaccepted or welcome in either. Therefore, this unique multiple and hybrid identity forces Latinos inthe United States to claim their own identity space.̂ ^ This space and identity is what the term"Latino cultural citizenship" intends to capture.

Citizenship has traditionally been understood in legal terms as the rights and responsibilitiesof an exclusive membership within the nation-state.'" Citizenship has had a history of exclusionand historically was associated with men who were land owners. All others who were not of theprivileged class would not be considered citizens and therefore disenfranchised. Citizenship wasoriginally exclusionary and was used to discriminate on the basis of race, class, and gender.̂ ^However, recently it has also been understood metaphorically as modes of recognition and non-recognition of distinct identities within the national fabric."^ This broader defmition of citizenshipis especially productive for understanding the relationships between Latinos and citizenship becauseit highlights the historical pattern of the non-recognition of the multiple cultural and politicalidentities of Latinos within conceptions of American national identity. The bilingual, bicultural,and transnational identities of Latinos in the United States have traditionally been interpreted asforeign to a narrow and monolithic view of American national identity and have been targetedacross time by subtractive assimilationist policies developed to eliminate Latino culture and theSpanish language.^^ A broader definition of citizenship is also productive because the legaldistinction between documented and undocumented status does not recognize the historical andtransnational cross-border experiences of Latinos. Nor does it account for how membership isdefmed within Latino communities where families may be comprised of both documented andundocumented members.^^

Full political membership in a nation-state is usually obtained through citizenship status. Inthe United States, the discourse surrounding citizenship is at often times limited to concepts of"legal" status and formal membership in the nation-state. Access to societal benefits comes withcitizenship and current sentiment is to restrict benefits to non-citizens. For instance, the PersonalResponsibility and Work Opportunity Reconciliation Act of 1996 excluded food stamps to legalresidents who were non-citizens.̂ "^ Nevertheless, full citizenship-in terms of full acceptance-has

22. de los Angeles Torres, supra note 1, at 169.

23. Citizens vs. Citizenry, supra note 21, at 257.

24. See Constructing Cultural Citizenship, supra note 4.

25. Isin, supra note 12, at 4,

26. Cohen, supra note 5, at 109.

27. See Perea, supra note 6, at 340.

28. See Constructing Cultural Citizenship, supra note 4.

29. LEO R. CHAVEZ, COVERING IMMIGRATION: POPULAR IMAGES AND THE POLITICS OF THE NATION 193 (2001).


been systematically denied to Latinos and other ethnic groups, treating them as second-classcitizens useflil for low-wage labor. The assimilation espoused by the Americanization movement ofthe early twentieth century was not often extended to Latinos who faced segregationist attitudes andpolicies rather than opportunities to incorporate into American society. According to Rodolfo de laGarza, "[i]nstead of encouraging Mexican-Americans to integrate, American social, educational,and economic institutions erected barriers that contributed greatly to the maintenance and expansionof ethnically distinct Mexican-origin communities."^" The segregation experienced by the Latinocommunity is illustrated by California's Lemon Grove case of 1935, which was one ofthe firstschool desegregation court cases."" In light of the contradictions between popular demands thatLatinos assimilate and the historic realities of segregation and discrimination. Latino theorists havereeoneeptualized the implications of a broadly defined notion of citizenship for Latinos in theUnited States in terms that reject the historic assimilationist ideology.^^

A striking contrast between current Latino immigrants and those from the tum-of-thecentury is transnational ism and the dilemmas faced by undocumented workers—"[cjheapertransportation and new laws make it easier today to maintain a strong sense of connection to one'scountry of origin. Many more of today's immigrants are illegal, and therefore face structuralbarriers that were unknown to most migrants a century ago."^^ The transnational experience is notconsistent with "one nation-one identity" because immigrants maintain strong political andeconomic ties to their home countries. It is precisely the ties to both countries that help to ease thetransition into a new territory. This has called into question the political loyalty of Latinoimmigrants and their willingness to assimilate into the mainstream. However, data on languageacquisition, intermarriage, and labor market status reveals that for the most part, today's immigrantsand their children are joining the mainstream at roughly the same rate as their late-nineteenth andearly-twentieth-century predecessors. '̂* Richard Alba and Victor Nee suggest that assimilationremains a potent force and even among Latinos, language maintenance is very low, especially bythe third generation.^^

The tensions of Latino political identity addressed by Latino cultural citizenship are clearly

30. Rodolfo de la Garza, As American as Tamale Pie: Mexican-American Political Mobilization and the Loyalty Question,in MEXICAN-AMERICANS IN COMPARATIVE PERSPECTIVE 227, 238 (Walker Conner ed., 1985).

31 . Robert R. Alvarez, Jr., The Lemon Grove Incident: The Nation 's First Successful Desegregation Court Case, 32.2 J.OF SAN DIEGO HIST. (1986), available ai http://sandiegohistory.org/joijmal/86spHng/lemongrove.htm (last visited Apr. 6, 2005).

32. See de la Garza, supra note 30; see also Renato Rosaldo, Cultural Citizenship. Inequality, and Multiculturalism, inLATINO CULTURAL CITIZENSHIP: CLAIMING IDENTITY, SPACE, AND RIGHTS 27, 27-28 (William V. Flores & Rina Benmayoreds., 1997).

33. David Glenn, Scholars Cook Up A New Melting Pot: Questioning Old Models of Assimilation. Social ScientistsExamine the Experience of Recent Latin American Immigrants 50.23 CHRON. OF HIGHER EDUC, Feb. 13, 2004, at AlO, availahleal http://chronicle.com/free/v50/i23/23aG1001.htm (last visited Feb. 27. 2005).

34. Id. {quoting RJCHARD ALBA & VICTOR NEE, REMAKING THE AMERICAN MAINSTREAM: ASSIMILATION ANDCONTEMPORARY IMMIGRATION (2003)).

35. Id.

2005] DUAL SOURCES OF INFLUENCE ON LA TINO POLITICAL IDENTITY

visible in the lives of young undocumented Latinos who were brought to the United States by theirparents as infants. They are caught between the two-the country of origin and the country ofsettlement. Although they are not legal citizens, they were raised and educated in United States andconsider it to be their home country. However, they constantly face the possibility of deportationsince they have limited legal claims for continued residency in the United States due to theirundocumented status. Two examples of such eases illustrate the dilemmas that youngundocumented Latinos face and the disjuncture between their personal histories of residence in theUnited States with their undocumented political status that makes them deportable. The firstexample is a federal court ruling from the Ninth Circuit Court.

The United States Ninth Circuit Court, in its 2003 decision in Munoz v. Ashcroft, held thatJose Didiel Muiioz was a removable alien that had no right to remain in the United States under anylegal provision.^* Munoz was brought to the United States by his mother in 1980 when he was oneyear old and had resided in the United States for twenty-three years. He had not been back toGuatemala since his departure. Munoz applied for asylum in 1997 after turning 18, but was foundineligible and was ordered to appear for a removal hearing. The Ninth Circuit Court agreed withthe Board of Immigration Appeals and rejected Muiioz's claim that his good character, longstandingresidence, ties to family in the United States, good faith effort to legalize his status, and lack of tiesto another country gave him substantive due process right to remain in the United States." JudgeRichard Clifton acknowledged that Mufioz presented a case of unique circumstances, but said thatcongressional power over aliens was paramount. The court also rejected a claim that Munoz wascovered by the Nicaragua Adjustment and Central American Relief Aet (NACARA) of *̂*

The second example illustrates the constant threat of deportation that young undocumentedLatinos face. The Garcia brothers, Eduardo and Edgar, grew up in Sanford, a small town of 750 insouthern Colorado. They were brought to the United States by their parents at a young age;Eduardo, 22-years-old, was brought across the Mexican border on his mother's shoulders when hewas 3. Both brothers were well known in the small town of Sanford and were popular in highschool, where they lettered in three sports. The two brothers were stopped by the police for a

36. Munoz V. Ashcroft, 339 F.3d 950. 958-59 (9* Cir. 2003).

37. Kenneth Ofgang, Ninth Circuit Panel Expresses Reluctance, hut Rules Guatemalan Raised in U.S. Has No Right to^iemain. METROPOLITAN NEWS ENTERPRISE (Los Angeles), Aug. 11, 2003. a t ! .

38. Nicaraguan Adjustment and Central American Relief Act Pub. L. No. 105-100, 111 Stat. 2160. tit. 11 (1997) asamended by Pub. L. No. 105-139, 111 Stat. 2644 (1997) (codified as amended 8 U.S.C.A. §§ 1101 Note, 1151 Note, 1153 Note.1229b. 1229b Note, 1255 Note (1997). ("On November 19. 1997. President William J. Clinton signed the NicaraguanAdjustment and Central American Relief Act (NACARA). Pub. L. 105-100(111 Stat. 2160,2193). The NACARA regulationswere published as a final rule in the Federal Register on March 24. 2000. at 65 FR 15846. This rule explains how the INS (nowBCIS) implemented section 202 of NACARA by establishing procedures for certain nationals of Nicaragua and Cuba who havebeen residing in the United States to become lawful permanent residents of this coutitry. The rule allowed certain Nicaraguansand Cubans to apply for lawful permanent resident status wilhout having to first apply for an immigrant visa at a United Statesconsulate abroad. It also waived many ofthe usual requirements for this benefit. Nicaraguans and Cubans who wished to applyfor lawful permanent residence under NACARA had until March 31, 2000 to file for adjustment of status under NACARASection 202." See U.S. Visa Online Services, availahle at http://www.usvisafast.com (last visited Apr. 4, 2005)),


broken taillight and were arrested when they could not produce a driver's license or proof ofcitizenship. Four days after the traffic stop, the Garcia brothers were deported in the same clothesin which they were arrested. They found themselves baek in Mexico for the first time since theywere brought to the United States. People in the town of Sanford rallied around the plight oftheGarcia brothers and created a legal defense fund. They also made calls to congressmen, but to noavail. The Sanford High School coach commented on the plight ofthe Garcia brothers, "[t]heseyoung men are as American as the people who arrested them. The law is basically trying to do theright thing, but it doesn't fit every situation . . . . It needs to take account ofthe fact that they grewup here, that this is their home." ** In both of these examples of young undocumented Latinos,strong arguments can be made in support of their continued residence in the United States.However, current laws override those arguments.

The complexity of Latino identity politics, which has been developing for Mexican-origincommunities in the United States since the 1846 Mexican American war, has increased even furtherdue to the recent introduction of Mexico's dual nationality legislation. For the first time, theMexican govemment has formally recognized the binational identity of Mexican nationals living inthe United States. The accommodation on the part ofthe Mexican govemment to the unique historyof Mexicans in the United States was not a simple task, but one that required many changes to theMexican constitution in order to make dual nationality possible.''"

III. DUAL CITIZENSHIP AND DUAL NATIONALITY

Latino cultural citizenship is a recent effort to construct a Latino-specific conception ofAmerican identity that incorporates Latino culture and identity. An older tradition of addressingmultiple national identities from a legal perspective is dual citizenship. Dual citizenship is the legalrecognition of multiple national identities and affiliations. Although only tolerated and not formallyrecognized by United States federal policy, its existence counters the assimiiationist ideology of onenation/one language/one culture/ and one identity. Unlike Latino cultural citizenship, the multipleidentities that dual citizenship addresses are not a combination cultural and national identity, but area combination of formally recognized membership in two nations. Latino cultural citizenship isconcemed with the nexus of minority cultural identity within a larger dominant national culturewhile dual citizenship is concemed with the legal rights inherent in membership in two nations.

Although dual nationality is similar to dual citizenship, there are important differences.Nationality refers to the formal legal status of state membership, while citizenship, on the other

39. Michael Riley, A Stop hy Police Ends an All-American Life for Two Brothers Who Grew Up in the U.S. Illegally.Amid Outrage From Family and Their Hometown, the Brothers Now Struggle to Build New Lives in Mexico. Deportation KillsDream, DENV, POST. Nov. 14, 2003, at A-01 (hereinafter Stop hy Police Ends an All-American Life].

40. Gutienez, supra note 2. at 1007-08.


hand delineates, "the specific character of a member's rights and duties within the national pohty."'^'While dual nationality allows individuals to hold memberships in two (or more) countries, it doesnot necessarily entail access to all the rights and benefits that are granted to citizens, such as votingor the right to hold a public office. Dual nationality has recently received attention in the media dueto the Mexican government's creation of a dual nationality policy in 1998 for Mexicans livingabroad. Many other Latin American countries have recently recognized dual nationality''^ and atleast a dozen others recognize a limited form of dual nationality shared only with treatysignatories.''^

Mexico's dual nationality policy enables the Mexican government to maintain ties with itscitizens or their children bom in the United States. Mexico's policy has impacted the experience ofcitizenship for Mexicans living in the United States in at least the following three ways. First, it hasencouraged continued or renewed political attachment to Mexico and increased the possibility ofreturn migration. Second, it has encouraged economic re-investment through immigrantremittances since dual-national immigrants retain the right to own property in Mexico. Third, dualnationality has encouraged Mexican nationals to take the final step to naturalize in the United Statessince it eliminates some of the costs previously associated with becoming an American citizen, suchas loss of family inheritances and property in Mexico.''^ Most importantly, it has made it possiblefor Mexicans to maintain their affiliations to both Mexico and the United States. To Mexico'sbenefit, once Mexican nationals abroad naturalize as citizens of their receiving countries, they canalso function as effective lobbyists on issues of importance to Mexico such as immigration. At thesame time, the United States benefits from greater numbers of naturalized immigrants who obtainthe ability to vote and participate in the democratic political process.

Dual nationality is seen as congruent with membership in the Americanpolity. [R]eceiving countries like the United States have an interest inseeing to it that new immigrants become full members of the polity, sincetheir political, economic and social marginality weakens democraticinstitutions. Since for immigrants dual nationality can be a means toreconcile memberships in both their countries of residence and of origin,dual nationality is likely to lead to higher naturalization rates in the

41. Michael Jones-Correa, Under Two Flags: Dual Nationality in Latin American and Its Consequences for Naturalizationin the United States. 35 INT'L MIGRATION REV. 997, 998 (2001) (quoting Miriam Feldblum & Douglas Klusmeyer, Immigrantsand Citizenship Today: A Comparative Perspective, 2 RES. PERSP. ON MIGRATION 3 (Migration Pol'y Inst., Washington. D.C.,1999)} [hereinafter Under Two Flags].

42. Among the Latin American countries that recognize dual nationality are Brazil, Colombia. Costa Rica, the DominicanRepublic, Ecuador, El Salvador, Mexico, Panama, Peru, and Uruguay. Id. at 998.

43. For example. Guatemala recognizes a limited form of dual nationality with other countries in Central America and anumber of countries recognize dual nationality with Spain. A number of Caribbean basic nations also recognize dual nationality,includmg Antigua. Barbados, Belize, Dominica, Grenada, Jamaica, St. Kitts, St. Lucia, St. Vincent, the Grenadines, Trinidad, andTobago. W. at 998-99.

44. Gutierrez, supra note 2, at 1009.


United States."^

Dual nationality encourages Mexicans who arc currently legally living and working in theUnited States to naturalize. Estimates of the number of Mexicans eligible for dual nationality rangefrom 1.5 to 5 million.'*''

The new balance of incentives created by this law, coupled with legal andpoliey developments in the United States that are prompting record levelsof aliens to petition for naturalization, strongly implies that the number ofMexicans seeking to naturalize will be much larger than would bepredicted from the group's traditionally low rate of naturalization in theUnited States."47

In the past, the fear of completely severing their ties with Mexico has deterred Mexicans fromtaking the final step of becoming a United States citizen. As a policy issue, dual nationality is notwithout its critics since it raises the old question of whether multiple national affiliations lead todivided national loyalties and to the devaluing of citizenship.

IV. NATIONAL LOYALTY

Immigrants' identification with their homelands has contributed to perceptions that they areunwilling to assimilate and has led to accusations of immigrants holding divided national loyalties.Given their large numbers and the visible presence of the Spanish language, Mexican-origin peoplehave faced charges of disloyalty for maintaining their language and culture and for identifying withtheir homelands. The complexities surrounding their national identity have not only led todiscrimination and segregation, but also to repatriation.'*^

Historically various sorts of tensions concerning dual nationality laws have arisen,especially in times of great hostility or war. The main concern was a fear of disloyal andunsympathetic citizens that was prompted by elevated levels of nativism that arise during times ofdemographic shifts or economic troubles. For example, during World War I nativism flourished

45. Under Two Flags, supra note 41, at 1014.

46. Peter Schuck, Plural Citizenships, in DUAL NATIONALITY, SOCIAL RIGHTS AND FEDERAL CITIZENSHIP IN THE U.S.A N D E U R 0 P E : T H E REINVENTION OF CITIZENSHIP 61. 67 (Randall Hansen & Patric Weil eds., 2002).

47. Id. (also pointing out that some observers doubt that the new Mexican law will significantly affect naturalization ratesin the United States, while arguing that discrimination against noncitizens in the United States is a more important factor drivingnaturalizations). See Dual Citizenship. Domestic Politics and the Naturalization Rales of Latino Immigrants in the U.S., PolicyBrief, The University of Texas at San Antonio Tomas Rivera Center for Student Success, June 1996.

48. Myron Weiner, Transborder Peoples, in MEXICAN-AMERICANS IN COMPARATIVE PERSPECTIVE 130. 131 (WalkerConnor ed., 1985); Stephan Themstorm, Loyalties: Dual and Divided, in HARVARD ENCYCLOPEDIA OF AMERICAN ETHNICGROUPS 676 (Ann Orlov & Oscar Handlin eds., 1980).


and the suspicion of hyphenated Americans was prevalent. A hyphenated immigrant, for example aGerman-American, was regarded as having divided loyahies.'̂ ^ Strong anti-German sentimentprompted increased Americanization efforts that called for an individual commitment to the UnitedStates above commitment to a collective ethnic identity.

As a result of the loyalty question, nations have hesitated to recognize dual nationality.However, according to Michael Jones-Correa, dual citizenship is not harmful and, on the contrary,may be beneficial to the nation. He states, "[o]ld worries about conflicting jurisdictions and thepossibility of dual loyalties during war seem less relevant in a world where international ties haveproliferated and where the likelihood of war among liberal states seems remote."^" While PeterSchuck's viewpoint is that naturalized citizens will prove disloyal or unreliable, Jones-Correa offersthe viewpoint that evidence indicates otherwise. He writes, "[f]rom our earliest wars, immigrants,resident aliens, and what would now be called illegal immigrants have fought and died for thiscountry. . . .If anything does, this record in war demonstrates that having attachments to othercountries does not preclude dying for this one."^' The participation of Latinos serving in the UnitedStates armed forces symbolizes that one can have ties to one country, but still remain loyal toanother. The current war with Iraq illustrates Latinos' involvement in the military service and howthe offer of citizenship was used as an incentive for military service.

Military service has been an indicator of political loyalty for Latinos where they are over-represented in Medal of Honor winners.^^ During the second war with Iraq, Latinos were over-represented in hazardous United States military assignments. While Latinos comprised 9.5 percentofthe enlisted personnel, they represented 17.5 percent of front line personnel.^^ In the second warwith Iraq, Latinos had suffered a casualty rate of more than 13 percent by August of 2003." '̂' Inspite of the service of Latino immigrants in the war with Iraq, columnist Guillermo Martinezpointed out the irony concerning the wives and families of some Latinos who died in Iraq whocould be deported because they were undocumented.''^

49. Phillip Gleason, American Identity and Americanization, in HARVARD ENCYCLOPEDIA OF AMERICAN ErHNlC GROUPS31, 40 (Ann Orlov, & Oscar Handlin eds.. 1980).

50. MICHAEL JONES-CORREA, BETWEEN TWO NATIONS: THE POLITICAL PREDICAMENT OF LATINOS IN NEW YORK CITY

193 (1998) [hereinafter BETWEEN TWO NATIONS: THE POLITICAL PREDICAMENT].

51. See Michael Jones-Correa, Why Immigrants Want Dual Citizenship (And We Should Too): A Response to PeterSchuck. in IMMIGRATION AND CITIZENSHIP IN THE TWENTY-FlRST CENTURY 193, 194 (Noah M. Pickus ed.. 1998) (writing inresponse to Peter Schuck's chapter presented al the Duke University Workshop on Citizenship and Naturalization, Oct. 30-Nov.1, 1997).

52. See The Medal of Honor. Congressional Medal of Honor-Hispanic Military Heroes: 42 Hispanic Medal of HonorRecipients, at hnp://www.medaiofhonor.com/recipients/hispanic.html (last visited Feb. 23, 2005).

53. Adriana Carrera. Analysis: Hispanic Conscientious Objectors, THE WASH. TIMES, Apr. I, 2004, available athttp://washingtontimes.com/upi-breaking/20040401-051856-4812r.htm (last visited Feb. 23, 2005).

54. Id.

55. Guillermo Martinez, Equal Rights for Latino Heroes: U.S. Citizenship Benefits Should Extend to Families, HISP.MAG., May 2003, at 76, available at http://www.hispaniconline.coni/magazine/2003/may/Forum/ (last visited Feb. 23, 2005).

TEXAS HISPANIC JOURNAL OF LAW & POLICY [Vol. 11:75

In the case of some Latino immigrants who died in the war in Iraq, like Pfc. DiegoFernando Rincon, who received citizenship posthumously, the granting of citizenship was symbolicyet carried with it no benefits for their survivors.^^ In another case, 25-year-old Juan Cabral waskilled by a roadside bomb in Iraq. He received a military funeral in Ogden, Utah and was awardeda Bronze Star, a second Purple Heart, a promotion to sergeant, and the U.S. citizenship that he wasdue to receive in a few months. However, his mother, Angela Cabral, faced deportation and waspermanently barred from re-entering the United States due to an arrest for the possession ofmethamphetamines. She was a legal resident and had resided in the United States for twenty-fiveyears, having become a legal resident in 1989. She stated that the drugs belonged to the owner ofthe car that she was driving. Juan had extended his enlistment to get his citizenship and wassurvived by his wife and two children.^' Mrs. Cabral stated that his certificate of citizenship did notmean anything and that he should have received it when he was alive.̂ **

The Military and Citizenship Act sponsored by Representative Hilda Solis, a Democratfrom EI Monte, California, was a response to the increased attention of the military service ofimtnigrants in the war in Iraq.̂ '̂ The Act made permanent the change originally introduced throughan Executive Order, signed by President George W. Bush in July 2002, which expedited citizenshipfor immigrants serving in the military since September 11, 2001 and reduced the waiting period formilitary personnel to become citizens from three years to one.^" The Act made the process ofgaining citizenship faster and easier for 37,000 military personnel and 12,000 reservists whoqualified. The legislation allowed swearing-in ceremonies to be held overseas and reduced thelength-of-service requirement from three years to one. Representative Solis stated that she wasmotivated to sponsor the legislation by the story of Francisco Martinez Flores, a 20-year-old Marinefrom Guadalajara, Mexico who died in combat in Iraq. He was not able to be naturalized becausehe was overseas.^'

Critics and opponents of dual nationality are not reluctant to express tbeir concem andhostility. This is primarily because Mexico's new law offers a difference in degree of its potentialimpact. While Mexico was not the first country to permit some form of dual nationality, anunprecedented number of immigrants will be affected by Mexico's new policy. More controversial,is the large number of children bom in the United States of Mexican immigrants who also becameeligible for official Mexican nationality. According to John J. Miller, "[t]he rise of dual nationality

56. Id.

57. Ann Imse, Mother Might Face Double Loss: Woman If^ose Son Was Killed in Iraq On Verge of Deportation, ROCKYMOUNTAIN NEWS (Denver), May 17. 2003, at 6A.

58. Rhina Guidos. A Place For Grieving. THE SALT LAKE TRIB,, Feb. 12. 2004, at Bl,

59. Daniel Hernandez. Military Citizenship Act Hailed: Families and Veterans Celebrate a NeM' Law that Eases theProcess of Naturalization for Immigrants in the Armed Services. L.A. TIMES, Dec. 4. 2003, at B3.

60. See generally Associated Press State and Local Wire, Rep. Solis Celebrates Citizenship Law for Immigrant Soldiers,Dec. 3, 2003.

61. Hernandez, 5u/tra note 59, at B3.


poses a significant challenge to the old idea that American citizenship is exclusive."^^ As Mexico'snew policy has taken full effect and many U.S. citizens are now claiming Mexican dual nationality,critics question whether dual nationality or the stronger status of dual citizenship that might followcould corrode American citizenship.^^ Columnist, Georgie Anne Geyer, deems dual nationality asthe cheapening or "[d]evaluation . . . of American citizenship."*^ She asserts that the assimilationprocess is not taking place like it ought to and that the United States is likely to become a nationlike, a "piece of real estate inhabited by large numbers of disparate people who have no [loyalty] to,or reverence for, the country's original principles."^^ Alienikoff, et. al., note that holding binationalallegiances may be condemned for representing a diminished commitment to the Americancommunity.'̂ ^ Figuratively speaking, one has attached herself with temporary cement, thusweakening the bond citizenship is supposed to ^̂

On the other hand, proponents for the recognition of dual nationality state opposing views."To the extent that dual nationality facilitates the incorporation of new immigrants, then it can beseen as strengthening, rather than weakening the practice of American citizenship."^** Furthermore,proponents of dual nationality and multiple identities argue that the old narrative of assimilationdoes not produce a satisfactory result for the push and pull forces that characterize the realities ofimmigrants living in an age of globalization and transnationalism. In an age of globalization, thestrict policing of national membership seems to be evermore futile and counterproductive.^^Proponents argue that dual nationality is simply the recognition of a changing world and that itshould not only be recognized by the international community, but embraced as it encourages theparticipation of immigrants in their multiple national polities.

Mexico's new dual nationality policy has received considerable attention given the largenumbers of Mexicans living in the United States who would qualify and also due to the redefinitionof national membership fTom one to two national polities. The dual nationality policy radicallyalters Mexican national political identity in the United States. Mexicans will no longer have tochoose one nationality over the other since the transnational reality of their experience has beenfmally formally recognized by the Mexican government. While dual nationality highlights access

62. John J. Miller, Loyalty Duel: Will the Rise of Dual Citizenship Create a World Without Patriotism? 50.9 NAT 'L REV.,May 18, 1998, at 32,

63. Woody West, The Two Faces of Dual Nationality: America Should Not Accept Mexico's New Law Allowing DualCitizenship, INSIGHT ON THE NEWS, June 15, 1998, at 48.

64. Georgie Anne Geyer, Mexican Leaders Encourage Split Loyalties, 11.8 THE AM. ENTERPRISE 23, 23-25 (2000).

65. W.at25.

66. See THOMAS A. ALEINIKOFF. ET. AL., IMMIGRATION, IMMIGRATION AND CITIZENSHIP: PROCESS AND POLICY 80-93(4'^ed. 1998).

67. Id. at 89.

68. BETWEEN TWO NATIONS: THE POLITICAL PREDICAMENT, supra note 50.

69. See Peter H. Schuck, The Re-Evaluation of American Citizenship, 12 GEO. IMMIGR. L.J. 1, 1-34 (1997); see also PeterJ. Spiro, Embracing Dual Nationality, in DUAL NATIONALITY, SOCIAL RIGHTS AND FEDERAL CITIZENSHIP IN THE U.S. AND

EUROPE (2002).


to the national polity and questions of national loyalty, the DREAM Act highlights access to the keysocial arena of higher education. Like Mexico's dual nationality policy, the DREAM Act alsoaddresses questions of political status and identity since qualified students will shift from anundocumented to a permanent legal resident status and will qualify for in-state tuition. The lives ofthe undocumented have been characterized as occupying a contradictory "space of nonexistence" inwhich their physical and social presence in a country is negated by a legal designation as illegal.™A feature of nonexistence is a forced orientation to the present that arises from the uncertaintiescreated by the possibility of deportation. The DREAM Act addresses this space of nonexistencethat complicates the planning that is required to gain admission into higher education.

V. THE DREAM ACT

A. The Wilson Four

In June 2002, four talented Phoenix high school students facing deportation to Mexicomade national news headlines. The students from Wilson Charter High School, dubbed "TheWilson Four" by supporters, were on a school field trip to compete in an international solar-powered boat competition in upstate New York. They were detained by the United StatesImmigration and Naturalization Service (INS) for questioning after attempting to cross theCanadian border while on a sightseeing excursion to Niagara Falls.'' One of those students,Yuliana Huicochea, faced deportation although she was 4 years old when her parents brought her tothe United States. She considers herself an American and said, "[d]eep down, 1 know where myroots are, but this is my country. This is where I went to school. 1 don't see me living anywhereelse."'^ All four students graduated from Wilson Charter High School; Huicochea and two others ofthe four students, Oscar Corona and Jaime Damian went on to attend Phoenix College in Arizona.The fourth student, Luis Nava, enrolled at Arizona State University where he held a 3.42 grade-point average. In September 2003, a United States immigration judge in Phoenix stayed their orderof deportation and granted the four students until November 28, 2003 to prepare their case,essentially giving them a shot at gaining lawful residency through pending DREAM Act legislationin Congress.^"' Meanwhile, their immigration hearing hangs over their heads, as the four studentscontinue to fear deportation despite the fact that all of them have resided in the United States sincethey were small children. Their struggle to remain in Phoenix, Arizona highlights the dilemma of

70. See De Genova, supra note 7.71. Daniel Gonzalez, Deportation Decision Nears: Immigration Judge Holds Fates of 4 United States-Raised Residents in

Hands. THE ARIZ. REPUBLIC, Nov. 28, 2003. at B1.72. Id.

73. Daniel Gonzalez et al,, DREAM Act Could Legalize Migrants: The House has a Similar Bill Called the StudentAdjustment Act, TUCSON CITIZEN, Aug. 14, 2003, available athttp://www.tucsoncitizen.coni/index.php?page=local&story_id=081403al_immigrantI4 (last visited Apr. 11,2005).


deportation that many innocent and successful Latino students face.

B. A Colorado Example

In Colorado, Jesus Apodaca, an 18-year-old honor student featured in a Denver Post coverstory, became a marked person when his situation was made public. Aspiring to pursue a degree incomputer information systems at the University of Colorado at Denver, Apodaca stated that hecould not afford the cost of attendance at a state university since he is ineligible to receive financialaid and must pay out-of-state college tuition rates. Days after the Denver Post ran its story onJesus, an anonymous donor offered to pay his first semester's tuition. In the article, Apodacaopenly admitted that his family had been living in the United States illegally for five years. Inresponse to his admission, U.S. House Representative Tom Tancredo, a Republican servingColorado's 6'̂ District, requested the INS in Denver that Apodaca and any other undocumentedfamily members be deported immediately. Tancredo's request sparked great controversy since itwas unprecedented for a federal lawmaker to seek deportation of an individual or family. FormerColorado Governor Dick Lamm, who also favors stricter immigration laws, warned that targetingone family rather than overall immigration policy could backfire. Lamm said, "I think TomTancredo has shot himself in the foot. This violates people's sense of fairness. It's taking publicdebate to a personal level that I think is inappropriate and wrong."^^ While immigration opponentssupported Tancredo, immigration advocates argued that Apodaca had a right to speak out about thetuition issue without facing deportation. Soon after, U.S. Senator Ben Nighthorse Campbell, aColorado Republican, offered a bill that would have made Apodaca and his family legal permanentresidents. However, that bill died when Congress adjourned in 2002.̂ ^ Nighthorse Campbell alsoadmitted he was impacted by the enormous amount of hate mail he received on the issue. He said,"[ajfter I did that bill for the Apodaca youngster, which I still think was the right thing to do, I gotmore hate mail than you can imagine. It's like abortion or guns or gay marriage. People are drivenby ideological belief and there is practically no room for dialogue."'^

C. States Enact Their Own DREAM Acts

Individual states have taken the lead in implementing their own versions of the DREAMAct while Congress continues the debate over the federal version. Currently, there are eight statesthat have legislation in place that allows undocumented immigrant students to pay in-state tuition

74. Michael Riley, Tancredo Presses to Deport Student. Teen Here Illegally is 'Brazen' to Seek Aid, Lawmaker Says,DENV. POST, Sept, 13, 2002, at A-01 [hereinafleT Tancredo Presses to Deport Student].

75. Michael Riley, Campbell Bach Away From Immigrant Bill, DENV. POST, Nov. 21, 2003, at BOl [hereinafter CampbellBacks Away].

76. Id.


rates. Furthermore, the issue has been the topic of debate in twenty-one other state legislatures, aswell as in Congress/^ States such as Nebraska and North Carolina are considering crafting suchlegislation to better integrate their growing immigrant populations. While eaeh state has its ownprovisions, to be eligible, most of the states require students to be state residents, have attended ahigh school within the state for three years or more, have graduated from a state high school (orattained an equivalent certification), are currently attending, or having been accepted by a statecollege or university. Of the eight states with in-state tuition laws on their books, only two, Texasand Oklahoma, offer state financial aid to undocumented students while the state of Utah allows thestudents to qualify for only one of its need based scholarship programs.^^

D. Significant Local Impact

State legislation granting in-state tuition to immigrant students has had tremendous impactin terms of making higher education accessible in states like Califomia and Texas, which accountfor fifty-four percent of undocumented youth residents.̂ ** State legislators disagree over whetherpublic universities that charge undocumented immigrants in-state tuition violate a provision of theIllegal Immigration Reform and Immigrant Responsibility Act of 1996 which states, "an alien whois not lawfully present in the United States shall not be eligible on the basis of residence within aState (or political subdivision) for any postsecondary education benefits unless a citizen or nationalof the United States is eligible for such a benefit (in no less an amount, duration, and scope) withoutregard to whether the citizen or national is such a resident."*" Both the proposed federal DREAMAct and the state versions do not run afoul of the federal mandate because they hold undocumentedaliens to the higher three-year standard for establishing residency.^^ Also, many of these statesrequire undocumented students to have attended high school within the state for three yearsimmediately preceding graduating from high school.

While several states have passed laws to open the doors to institutions of higher educationpreviously closed to undocumented students, "[t]he governors of Maryland and Wisconsin have

77. Among them are Califomia, Illinois, Kansas, New York, Oklahoma, Texas, Utah, and Washington (TelephoneInterview with Melissa Lazarin, National Council of La Raza, (June 1, 2004)).

78. Karin Fischer, Illegal Immigrants Rarely Use Hard- Won Tuition Break: Some States Offer In-State Rates. But StudentsStill Have Trouble Paying, 51.16 CHRON. OF HIGHER EDUC. at A19 (2004) available at http://chronicle.com (last visited Apr. 7,2005).

79. Id.

80. Isis Artze, Some Doors Open. Others Close for Undocumented Students: Changes in N.Y.. California. Texas.Nebraska. THE HiSP. OUTLOOK IN HIGHER E D U C , Jan. 28, 2002, at 24.

81 Illegal Immigration Reform and Immigrant Responsibility Act of 1996 § 505, Limitation on Eligibility for PreferentialTreatment of Aliens Not Lawfully Present on the Basis of Residence for Higher Education Benefits, available athttp://www.visalaw.com/docs/IIIRA.htm! (last visited Feb. 23, 2005).

82. Press Release, Lorenzo A. Tmjillo. President, Colorado Hispanic Bar Association, CHBA Supports Education Bill(Apr. 22, 2004) available al http://www.chba.net/news.htm (last visited Feb. 23, 2005) [hereinafter CHBA Supports EducationBill].


taken a contrasting position and cited their inability to comply with the same provision as a reasonfor vetoing similar bills."**̂ In Kansas, the most recent state to enact the in-state-tuition legislation,opponents have filed a lawsuit charging that it not only violates the 1996 immigration law but alsothe equal-protection clause of the Fourteenth Amendment to the Unites States Constitution.^'' Yet,other states like Colorado have proposed legislation that would explicitly ban in-state tuition forundocumented students. House Bill 1187, sponsored by Senate President John Andrews (R-Centennial), cleared the Colorado House in March 2004 and was sent for review by the full Senatebut was eventually defeated by the time the legislative session adjourned on May 5, 2004. Thiscame after "lawmakers killed an earlier bill, HB 1132, sponsored by Colorado HouseRepresentative Val Vigil (D-Adams) that would have awarded the lower in-state tuition rates toundocumented college students. His measure would have allowed in-state tuition for students whohad attended at least three years of high school here, had graduated or had earned a GED."**̂ Thesetwo dueling bills and the committee approval of Andrew's HB 1187 over Vigil's HB 1132 areindicative of strong sentiment against recognizing the plight of undocumented students. Coloradoserves as an example of states that are crafting anti-immigrant policies that are restrictive at thesame time that pro-immigrant policies are emerging at both state and federal levels that wouldenhance the lives of Latinos living in the United States. Currently, "only two states, Mississippiand Alaska, have forbidden public colleges from spending state funds on tuition benefits forimmigrants without legal documents. One other state, Virginia, passed legislation prohibitingillegal immigrants from receiving resident tuition, but it was vetoed by Governor Mark R. Warner, aDemocrat."**^ The majority of fmancial-aid programs remain largely closed off to undocumentedimmigrants including work-study job programs.

E. Proposed Federal DREAM Act

The plight of undocumented students received national attention due to proposed federallegislation. The DREAM Act, first introduced as Senate Bill 1291 in August 2001 by SenatorsOrrin Hatch (R-Utah) and Richard Durbin (D-Illinois), would provide an opportunity for youngpeople who have lived in the United States for more than five years and are under the age of 21 toobtain legal immigration status and allow states to offer them in-state tuition rates. In July 2003,Senators Hatch and Durbin reintroduced yet another version of the federal DREAM Act (SenateBill 1545) which passed the Senate Judiciary Committee on October 23, 2003 with a strongbipartisan vote of 16-3. However, its proponents are far from claiming victory as the bill has

83. Eric Hoover, Immigrant Students Ask for a Chance A( College: The DREAM Act Would Let Them Pay In-State Tuition50.34 CHRON. OF HIGHER E D U C , Apr. 30, 2004, at Al, available at http://chronicle.com/weekly/v50/i34/34a00101.htm (lastvisited Feb. 28, 2005).

84. Fischer, supra note 78, at A19.

85. Peggy Lowe, House Passes Tuition Plan: Measure Excludes Illegal Immigrants From In-State Rates, RoCKYMOUNTAIN NEWS (Denver), Feb. 21, 2004, at 26A.

86. Fischer, supra note 78, at A19.

94 TEXAS HISPANIC JOURNAL OFLAW&POLICY [Vol. 11:75

become more controversial and heated debates over issues of immigration and post-September 11thnational security continue. While the bill addresses education, it has been perceived as animmigration reform matter. The last major action on the bill took place on February 9, 2004 bySenator Hatch who filed written Report No. 108-224 to move the Act onto the Senate floor for avote by the entire U.S. Senate where it was expected to received strong bipartisan support.However, the Act is still awaiting Senate floor action. The legislation was expected to bereintroduced in the Spring 2005.

The federal bill would also make undocumented students eligible for some types offinancial assistance. However, recent amendments to the bill would prohibit such students fromreceiving some forms of federal and state financial aid, including Pell Grants. Yet, anotheramendment to the bill, if adopted, would require colleges and universities to enter undocumentedstudents into the Student and Exchange Visitor Information System, the database implementedfollowing the September ll"' terrorist attacks on America that is now used to keep track ofinternational students studying in the United States.

The federal DREAM Act also contains a provision that the state version could not enact. Itwould also permit qualified students to apply for permanent legal residency. Included in the bill is atwo-step legalization process. Undocumented students would be eligible for legal temporaryresidency provided that they entered the United States before the age of 16, lived in the country forat least five years, maintained "good moral character" (meaning no convictions for specific crimes),and graduated from a United States high school or enrolled at a United States college. "After sixyears, they would be eligible to become permanent legal residents if they had completed at least twoyears of a bachelor's degree program or served for at least two years in the United Statesmilitary."^^

F. Support for the DREAM Act

Legislators like New York State Congressmen Adriano Espaillat, have praised the bill,claiming, "esto es un gran logro y debe establecer un patron a seguir los otros estados de lanacion."̂ ** (English translation: This is great accomplishment and a pattern should be established tofor other states of this nation to follow). "Rep[resentative] Lucille Roybal-Allard, a CaliforniaDemocrat, told a crowd of activists and students that the children of immigrants face hardships'through no fault of their own . . . . Exorbitant out-of-state tuition essentially bars most of thesequalified youth fi-om attending college,' said Ms. Roybal-Allard, a cosponsor of the StudentAdjustment Act, HR 1684, the DREAM Act's companion bill in the House of Representatives."****

87. Hoover, supra note 83, at Al .

88. Immigration General Information. Rehajas Universitarias A Indocumentados, athttp://www.univision.com/content/content.jhtml?cid=129441 (iast visited Feb. 28, 2005).

89. Hoover, supra note 83, at Al .


She further stated, "[t]hese children lose an educational opportunity to develop their talents and, intum, our country loses the benefits of their potential contributions as educated professionals andtaxpayers."™ Representatives Chris Cannon (R-Utah) and Howard Berman (D-Califomia) are alsocosponsors of the proposed legislation.

Proponents of current efforts to remove barriers to higher education for undocumentedstudents recall an earlier struggle for educational equity when the United States Supreme Courtruled in Plyler v. Doe that undocumented children could not be denied a free K-12 education inpublic schools.*" They argue that the same rationale applied by the United States Supreme Courtfor K-12 education in Plyler can be extended to higher education.''^ In Plyler, the Court held that allchildren must be afforded access to elementary and secondary school educations, regardless ofimmigration status because denying such access would unjustly punish children for the acts of theirparents.^' The High Court reasoned:

Education provides the basic tools by which individuals might leadeconomically productive lives to the benefit of us all. In summary,education has a fundamental role in maintaining the fabric of our society.We cannot ignore the significant social costs bome by our Nation whenselect groups are denied the means to absorb the values and skills uponwiiich our social order rests.̂94

Additional arguments in support of the Act include the positive fiscal impact of student'shigher incomes as the result of a higher education,^^ utilization of human resource thatundocumented students represent,^ higher education as an incentive to reduce the high Latino drop-out rate,̂ ^ as a reward for character and for successfully overcoming the challenges undocumentedstudents '̂ ^

G. Overcoming Opposition

Some legislators, as well as the Homeland Security Department's Bureau of Citizenship andImmigration Services, contend that the United States should deport illegal students, not grant them

90. Id.

91. See Plyler V. Doe, 457 U.S. 202, 215-30 (1982).

92. See id.

93. Id.

94. Id.

95. See DREAM Act, S. 1545, 108* Cong. (2003).

96. Id.

97. Stop by Police Ends an All-American Life, supra note 39, at A-01.

98. See Mufioz v. Ashcroft, 339 F.3d 950 (9th Cir. 2003).

96 TEXAS HISPANIC JOURNAL OF LAW <& POLICY [Vol. 11:75

tuition breaks.^^ In fall of 2003, Senator Jeff Sessions (R-Alabama) submitted written remarks tothe United States Senate Judiciary Committee predicting that the DREAM Act would promoteillegal immigration and called the bill "[a] cyclical nightmare for the rule of law in immigrationpolicy reform."'**^ Others claim the DREAM Act is simply unfair to Americans. Dan Stein,executive director of the Federation for American Immigration Reform, said, "[ijnvariably, whenparents break the law, children have to deal with the consequences. There are limited numbers ofin-state tuition spots in any state institution . . . it's extremely unfair to give an enormous advantageto these people who have no right to be here.""" Additional arguments against the DREAM Actclaim that it "is a massive illegal alien amnesty disguised as an educational initiative,"'"^ a middle-class subsidy for college for illegal aliens,'**^ an incentive for illegal entry in to the United States,"**and a reward for law breakers.'"^ O. Ricardo Pimentel, a writer for The Arizona Republic, respondsto the last claim: "[t]he popular argument that these are lawbreakers is really like blaming thechildren of the convict for the crime he committed. It's not too much of a stretch to say it'stantamount to putting them in prison with him."'"*' The reality is that many undocumented studentscame to this country with their parents as young children and had no role in their parent's decisionto enter the United States illegally.

H. Significance of the DREAM Act to the Latino Community

The DREAM Act is of great significance to the Latino community as it is public policy thatseeks to recognize a segment of American society, specifically young immigrants that havepreviously not been recognized due to their undocumented status. The federal DREAM Act is ofgreat importance to the Latino community and to the nation as a whole because it is a major steptoward improving immigrant's access to postsecondary educational opportunities. According toestimates by The Urban Institute, 65,000 immigrant students who have grown up in the UnitedStates, attended the same elementary and secondary schools as native-bom students, and excelled atthe same academic requirements as their classmates are unable to pursue a higher education."^^ TheDREAM Act mitigates two significant obstacles for promising immigrant students. "First, the

99. Hoover, supra note 83.

100. Id.

101. Id.

102. The "DREAM Act": Hatch-ing Expensive New Amnesty for Illegal Aliens, Federation for American ImmigrationReform, Oct. 23, 2003, available a(http://www.fairus.org/news/newsprint.cftn?ID=2194&c34 (last visited Feb. 28, 2005).

103. fd.

104. Press Release, League of United Latin American Citizens, Action Alert: LULAC Urges Passage of the DREAM Actand the Student Adjustment Act (Oct. 9, 2002) available at http://www.lulac.org/Issues/Alerts/Dream%20Act.html.

105. Id.

106. O. Ricardo Pimentel. Educate the Undocumented for Our Future and Theirs. THE ARIZ. REPUBLIC. July 9. 2002,available at http://www.azcentral.com/arizonarepublic/.

107. JEFFREY S. PASSEL, THE URBAN INST.. FURTHER DEMOGRAPHIC INFORMATION RELATING TO THE DREAM ACT

(Oct. 21, 2003), available at http://www.nilc.org/immlawpolicy/DREAM/DREAM_Demographics.pdf.


DREAM Act makes college more affordable by giving the states the discretion and flexibility todetermine whether to offer in-state tuition rates to undocumented immigrant students, who currentlyface immense barriers in financing an education."" '̂* Many undocumented immigrant students areaccepted into postsecondary institutions, but cannot afford to attend because they have to pay out-of-state or international tuition rates. "̂ ^ Currently, international student tuition rates tend to be threeto ten times higher than the in-state-tuition rate paid by legal residents and citizens, depending onthe college or university. For example, for the 2004-2005 academic school year, nonresidentstudent tuition rates in Colorado range from 182 to 437 percent higher than resident student tuitionrates. Second, the DREAM Act would permit qualified students to become temporary legalresidents, putting them on the path to permanent legal status and thus removing the constant threatof deportation.

Based on immigration trends, the denial of inclusion in social arenas such as highereducation and democratic participation disproportionately impacts the nation's Latino population.The INS reported in January 2003 that almost seventy percent of the total undocumented populationwas Mexican and that about two-thirds of all undocumented aliens who arrived in the late 1990s arefrom Mexico.'" Therefore, excluding and denying access to this growing segment of the UnitedStates population adversely affects the economic and social health of our nation.

The DREAM Act would provide undocumented immigrants the opportunity to obtainpermanent residency and thus have legal access to employment opportunities. With highereducation, students would have the opportunity to earn higher incomes and contribute to economicgrowth while at the same time, increasing self-sufficiency and reducing the potential fordependence on federal and state needs-based benefits and assistance. A 1999 "Rand Corporationstudy found that the average 30-year-old Mexican immigrant woman who graduated from collegerather than dropping out of high school would pay $5,300 more in taxes every year, while costingthe criminal justice and welfare systems $3,900 a year less.""^ Furthermore, an earlier 1995 RandCorporation study found, "if the U.S. could increase the college completion rate of 18 year oldLatinos by just three percentage points, projected Social Security and Medicare contributions wouldgrow by $600 million.""^ Overall, individual states and the nation as a whole will gain throughpayment of sales, property, and income taxes.

108. Press Release, National Council of La Raza, Hundreds Gather For "DREAM Commencement Ceremony" and DeliverMore Than 65,000 Petitions to President Bush in Support of The Dream Act (Apr. 19, 2004) available athttp://www.nclr.org/content/news/detail/2563 (last visited Feb. 18, 2005).

109. Miriam Catderon et al.. Slate of Hispanic America, National Council of La Raza (2004).

110. SPIROS PROTOPSALTIS, THE BELL POLICY CENTER, UNDOCUMENTED STUDENTS AND ACCESS TO HIGHER

EDUCATION: AN OVERVIEW OF FEDERAL AND STATE POLICY 1, 4 (Apr. 2005) available athttp://www.thebe!l.org/pdf/05_03UndocTuition,pd (last visited Apr. 28, 2005).

111. CHBA Supports Education Bill, supra note 82,

112. Campbell Backs Away, supra note 75, at BO I.

113. Editorial, The Dream of Education, L.A, TiMFS, Apr, 28, 2003, at BIO.


VI. CONCLUSION

The proposed DREAM Act and Mexico's dual nationality policy illustrate the dual sourceof influence on Latino political identity for both documented and undocumented immigrants. Thisdual source of influence in turn illustrates the complexity of Latino political identity that is shapednot only by federal policies, but also by policies that originate in the sending countries. Theseexamples of the dual source of policies come at a time when geographic borders have been replacedwith political borders as a result of globalization and transnationalism. The shift from geographic topolitical borders calls for new ways to understand national membership since traditionalconceptions of citizenship are not adequate for the Latino experience. The notion of Latino culturalcitizenship responds to such a need by proposing a view of national membership that recognizes alegitimate role for both documented and undocumented Latinos in society. It also proposes a viewof citizenship that combines cultural with political identity in order to recognize the bicultural-bilingual-binational identities of Latinos. Policies that address issues relevant to Latinos will not besuccessful if they operate from a narrow view of national identity and citizenship. The dilemmas ofundocumented students are a case in point. Both the DREAM Act and dual nationality are policiesthat challenge the boundaries established by political borders within the nation that distinguishbetween citizens and non-citizens, and between documented and undocumented immigrants.Mexico's dual nationality and the DREAM Act policies will contribute to a more highly educatedLatino community and to an electorate that is more representative of the country's Latinopopulation.

Dual Sources of Influences on Latino Political Identity: Mexico’s Dual Nationality Policy and the...

Documents

Transcript of Dual Sources of Influences on Latino Political Identity: Mexico’s Dual Nationality Policy and the...