Texas A&M University School of Law Texas A&M Law Scholarship Faculty Scholarship 3-2012 Regrouping America: Immigration Policies and the Reduction of Prejudice Fatma E. Marouf Texas A&M University School of Law, [email protected] Follow this and additional works at: https://scholarship.law.tamu.edu/facscholar Part of the Law Commons Recommended Citation Fatma E. Marouf, Regrouping America: Immigration Policies and the Reduction of Prejudice, 15 Harv. Latino L. Rev. 129 (2012). Available at: https://scholarship.law.tamu.edu/facscholar/746 This Article is brought to you for free and open access by Texas A&M Law Scholarship. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Texas A&M Law Scholarship. For more information, please contact [email protected]. REGROUPING AMERICA: IMMIGRATION POLICIES AND THE REDUCTION OF PREJUDICE Fatma E. Marouf TABLE OF CONTENTS INTRODUCTION .................................................. 130 1. CONSTRUCTING Fuzzy CATEGORIES BASED ON IMMIGRATION STATUS AND THE POROUS BOUNDARIES BETWEEN THEM .... 133 II. SOCIAL CATEGORIZATION AND INTERGROUP RELATIONS ..... 138 A. The Relationship Between Social Categorization and Intergroup Bias, and Intergroup Conflict .............. 138 B. Categorization-BasedStrategies for Reducing Intergroup Bias .... ....................................... 142 III. EXAMINING U.S. IMMIGRATION POLICIES THROUGH THE LENS OF CATEGORIZATION-BASED STRATEGIES FOR REDUCING INTERGROUP BIAS ........................... ............ 144 A. Decategorization ................................ 144 1. Immigration Policies that Reinforce Collective Anonymity .................................. 145 2. From Mass Deportationto ProsecutorialDiscretion: Entering a New Era of Individualized Enforcement? ............................... 151 B. Recategorization................................ 155 1. The Challenge of Creating an Inclusive "American" Identity .................................... 157 2. Past Legalization Programs as PartialAttempts at Recategorization.. ........................... 163 C. Crossed Categorization ........................... 168 1. The Limitations of Relying on Victimhood as an Alternative Social Identity ...................... 172 2. Moving Past the Victim/Criminal Dichotomy ....... .175 a. Worker-Based Identities .................... 175 'Associate Professor of Law, University of Nevada, Las Vegas. JD, Harvard Law School; BA, Yale University. Many thanks to Mary Berkheiser, Ann Cammett, Michael Ka- gan, Kate Kruse, Elizabeth MacDowell, Angela Morrison, and Anne Traum for their thought- ful comments on drafts of this piece. I would also like to thank participants of the 2011 Emerging Immigration Law Scholars and Teachers Conference, who provided invaluable feed- back at an early stage, as well as participants of the 2011 Rocky Mountain Junior Scholars Forum for their helpful comments. I am grateful to Matthew Wright and the Wiener-Rogers Library for excellent research assistance. Deepest thanks also to Doris Watson and to my family for their encouragement and support. Any errors are my own. 130 Harvard Latino Law Review [Vol. 15 b. Student-Based Identities ..................... 178 IV. CONCLUSION ............................................ 181 INTRODUCTION Over the past two decades, the increasing diversity of immigrants has fueled fears over the fragmentation of America. Some commentators have taken extreme positions explicitly criticizing the changing racial composi- tion of the United States, such as Peter Brimelow, who contends that immi- grants undermine the nation's White "ethnic core."2 Others, like Samuel P. Huntington, have avoided the crucible of race by framing arguments in terms of culture, warning that Mexican immigration threatens a cohesive "American" national identity defined by "Anglo Protestant culture."' While these arguments ring of racism, reflecting an all too familiar angst that aliens are splintering America,4 concerns about social cohesion have also been raised by liberal academics, such as political scientist Robert Putnam, author of the bestseller Bowling Alone, who argues that "immigration and ethnic diversity challenge social solidarity and inhibit social capital."' Even the general public seems concerned with social cohesion, as nearly half the U.S. population agrees that "the growing number of newcomers from other coun- tries threaten traditional American customs and values." 6 Anxiety over the social fragmentation of America has become apparent not only through popular books, social science research, and public polls, but also through the Supreme Court's equal protection jurisprudence. The 'PETER BRIMELOW, ALIEN NATION: COMMON SENSE ABOUT AMERICA'S IMMIGRATION DISASTER 10, 232 (1995) (arguing that "the central challenge for modern, diversifying socie- ties" is the creation "of a new, broader sense of 'we"'). SAMUEL P. HUNTINGTON, WHO ARE WE? THE CHALLENGES To AMERICA'S NATIONAL IDENTITY 221-56 (2005) (blaming Latinos, especially Mexican-Americans, for the "cultural bifurcation" of the United States); see also ARTHUR M. SCHLESINGER JR., THE DISUNITING OF AMERICA: REFLECTIONS ON A MULTICULTURAL SOCIETY (1992) (arguing that multiculturalism is tearing apart the nation); PATRICK J. BUCHANAN, THE DEATH OF THE WEST: How DYING POPULATIONS AND IMMIGRANT INVASIONS IMPERIL OUR COUNTRY AND CIVILIZATION (2002); PATRICK J. BUCHANAN, STATE OF EMERGENCY: THE THIRD WORLD INVASION AND CONQUEST OF AMERICA (2006). ' Kevin R. Johnson & Bill Ong Hing, National Identity in a Multicultural Nation: The Challenge of Immigration Law and Immigrants, 103 MICH. L. REV. 1347 (2005) (critiquing Samuel Huntington's book, WHO ARE WE? THE CHALLENGES To AMERICA'S NATIONAL IDEN- TITY); Hiroshi Motomura, Whose Alien Nation?: Two Models of Constitutional Immigration Law, 94 MICH. L. REV. 1927, 1951 (1996) (book review) (reviewing Peter Brimelow's book, Alien Nation, and arguing that "us[ing] immigration policy to make America more white ... will splinter America like nothing else"). 5 ROBERT D. PUTNAM, BOWLING ALONE 138, 148, 150-51 (2000). 6 Benjamin Richard Knoll, Understanding the "New Nativism": Causes and Conse- quences for Immigration Policy Attitudes in the United States (2010) (unpublished Ph.D. dis- sertation, University of Iowa), availableat http://ir.uiowa.eduletd/532 (citing a 2006 study by the Pew Research Center and Pew Hispanic Center). Forty eight percent of respondents agreed with this statement. Id. (citing same Pew study). Moreover, 50% of respondents agreed that "our American way of life needs to be protected against foreign influence." Id. (citing same Pew study). 2012] "Regrouping America" 131 Court has long decried classifications that "'lead to a politics of racial hos- tility,' "' with swing Justices in particular voicing this concern. For example, Justice O'Connor has cautioned that benign racial classifications contribute to "an escalation of racial hostility and conflict"' and that "[riacial gerry- mandering, even for remedial purposes, may balkanize us into competing racial factions." 9 These statements echo Justice Powell's concerns in Bakke that affirmative action would "exacerbate racial and ethnic antagonisms rather than alleviate them."" Drawing on such opinions, Reva Sigel high- lights a novel perspective on equal protection that is "concerned with threats to social cohesion," which she calls "the antibalkanization perspective."" This perspective has also emerged in the context of classifications based on immigration status. In Plyler v. Doe, which held that undocu- mented immigrant children have the right to an elementary public education, the Supreme Court relied heavily on a social cohesion rationale, reasoning that public schools help "maintain[ ] the fabric of our society," 2 serving as "an important socializing institution, imparting those shared values through which social order and stability are maintained."' While concerns over bal- kanization appear primarily within equal protection cases, Kenji Yoshino shows how the same concern with social cohesion manifests on a much larger scale. He describes a broad shift by the Supreme Court away from traditional equal protection analysis altogether and towards a liberty-dignity analysis as a response to "pluralism anxiety" -anxiety about too many "new" and "newly visible" groups.14 Since concerns about cohesion based on race and based on immigration tend to go hand in hand, immigration scholars have long noted the need to take them seriously." This Article contributes to an emerging body of schol- arship related to the integration of immigrants by examining how current immigration policies deepen or diminish social divides and presenting a framework for analyzing proposed immigration reforms in terms of their impact on social cohesion.'" Specifically, the Article draws on social psy- City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989). Metro Broadcasting, Inc. v. F.C.C., 497 U.S. 547, 603 (1990) (O'Connor, J., dissenting) (holding that intermediate scrutiny should be applied to benign racial classifications), over- ruled by Adarand Constructors Inc. v. Pefa, 515 U.S. 200 (1995) (holding that strict scrutiny should be applied to federal laws using benign racial classifications). * Shaw v. Reno, 509 U.S. 630, 657 (1993). 1o Regents of University of California v. Bakke, 438 U.S. 265, 298-99 (1978). "Reva B. Siegel, From Colorblindness to Antibalkanization: An Emerging Ground of Decision in Race Equality Cases, 120 YALE L. J. 1278,