Cuban Controversy

[Scarberry, Mark]

I once considered writing an article suggesting the confluence of two
fundamental rights might create a new one. I suppose a child has a
fundamental right to be raised by his or her parents (at least if they are
willing). And I suppose US citizens have the fundamental right to reside in
the US. Putting the two together, a child who is a US citizen might have the
right to require the US to admit his or her parents, who then could not be
deported until the child reached majority. But after mentioning the idea to
a few people, I was convinced that the Court would never go for it.

The genesis of the idea was a news story several years ago about wives and
children of Philippine army veterans who had fought against the Japanese.
Here is the story as I can best remember it. The veterans were promised US
citizenship if they took up arms against the Japanese, but the US was very
slow in coming through on the promise. The veterans were admitted to the US
(with their wives), and of course then the children born here were US
citizens. But when veterans died not yet having obtained US citizenship,
their wives were subject to deportation, with the practical effect that very
young US citizens were forced to leave the country.

Perhaps Elian's case is one in which (if Congress granted Elian
citizenship), some judicial or administrative precedent could be set with
regard to the right of US citizen children to be raised in the US by their
parents (at least if the parents are willing to come to the US). Perhaps
there would need to be some sort of fraud exception for cases in which the
child was a US citizen only because of an illegal entry into the US by a
pregnant noncitizen, but perhaps not.

Mark S. Scarberry
Pepperdine University School of Law
mark.scarberry at pepperdine.edu


-----Original Message-----
From: Sandy Levinson [mailto:LEVINSON at JURIS.LAW.NYU.EDU]
Sent: Tuesday, January 11, 2000 4:35 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Cuban Controversy


Mark Scarberry's suggestion is very interesting.  I do wonder (and this time
I'm not being merely rhetorical) what general US policy is with regard to
parents who might wish to join their children in the US.  I certainly do
know that the United States regularly deports parents even if that means, as
a practical fact, that their US-citizen children have no real alternative
but to follow them to places where their lives will be far grimmer than in
the US.

If it weren't the case that the US is given plenary authority to do whatever
it wants vis-a-vis immigration, it seems clear that our "policy" of deciding
who gets in and who does not violates a host of equal protection norms.
There is no defense for the preference given Cubans (an affirmative action
policy if ever there is one) other than their political clout.  (No one can
seriously argue that Cuba is more of a tyranny than China, the country that
everyone except Gary Bauer (to his credit, at least in terms of consistency
with his overall position) is eager to trade and collaborate with.  I won't
say anymore about this aspect because it is obviously not really law-related
(except insofar as we care about how laws actually are created and
maintained).  Aren't Cubans, incidentally, basically now a "class of one"
insofar as they uniquely are selected out for spectacularly favorable
treatment?

Incidentally, I find it interesting that no one has responded to my earlier
postings by defending the fairness of the Miami process.  Does silence mean
consent to the proposition that "the rule of law" is a sham so far as the
Florida state judicial structure is concerned?

Sandy