7 J. Gender Race & Just. 201 (2003)
Decoupling Terrorist from Immigrant: An Enhanced Role for the Federal Courts Post 9/11

handle is hein.journals/jgrj7 and id is 207 raw text is: Decoupling Terrorist from Immigrant:
An Enhanced Role for the Federal Courts
Post 9/11
Victor C. Romero*
Immigration law is traditionally understood to encompass the rules that
govern foreign citizens' entry into and departure from the United States, and
may therefore be seen as an important domestic arm of the nation's foreign
policy power. Immigration law is the exclusive purview of the federal
governmentt While there are times when federal law might have unintended
effects upon    noncitizens,2 as a    vehicle   for effectuating   foreign  policy,
immigration law can serve as an effective complement. For example, if the U.S.
declares war on Iraq, it might make sense to exclude all Iraqi citizens from
immigrating to the United States, not just for our own citizens' security, but for
theirs as well.
But what should our immigration laws say when the object of our foreign
policy is not another nation, but a multinational guerrilla movement such as al-
Qaeda? How does the U.S. balance its national security concerns against fair
treatment of the individual noncitizens affected by its immigration laws? Just
last year, Congress passed a law requiring greater scrutiny of visa applications
. Professor of Law, Penn State, The Dickinson School of Law. B.A. Swarthmore; J.D., University of
Southern California. E-mail: VCRI@PSU.EDU. This essay grows out of remarks I gave at the
University of Iowa College of Law for The Journal of Gender, Race & Justice's Symposium,
American Presence Abroad: U.S. Foreign Policy & Its Implications on Gender, Race & Justice; I
thank Kevin Sul and Nettie Dennis for inviting me to participate. I would also like to thank Raquel
Aldana-Pindell, Sameer Ashar, and Kevin Johnson for useful advice on an early draft of this piece;
Barbara Brunner for her invaluable research assistance; and most especially, my wife, Corie, my
children, Ryan and Julia, and my family in the Philippines for their constant love and support. All
errors that remain are mine alone.
1. See, e.g., Edye v. Robertson, 112 U.S. 580 (1884) (upholding a federal statute regulating
immigration as a constitutional exercise of the foreign commerce clause power). With the recent
passage of federal legislation in the areas of welfare reform and crime that have arguably devolved
some power over alienage to the states, a recent New York University symposium has asked whether
such devolution of immigration power is desirable. See, e.g., Victor C. Romero, Devolution and
Discrimination, 58 N.Y.U. ANN. SURV. AM. L. 377 (2002) (analyzing the effect of immigration
devolution on people of color and gays and lesbians).
2. See, e.g., Victor C. Romero, Equal Protection Held Hostage: Ransoming the
Constitutionality of the Hostage Taking Act, 91 Nw. U. L. REV. 573 (1997) (arguing that federal
hostage kidnapping statute violates the equal protection rights of noncitizens when invoked in
garden-variety domestic kidnapping cases).

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