Learn more about Professor Banks's background and scholarship here.
How did you come to be interested in Immigration Law?
I became interested in immigration law when I was living in The Hague as a legal advisor at the Iran-U.S. Claims Tribunal. I moved there shortly after Pim Fortuym was assassinated. Fortuym was the leader of a political party that had been critical of immigration and immigrant incorporation in The Netherlands. As I followed the story I became interested in the various ways in which individuals of Turkish and Moroccan descent were perceived as foreigners rather than members of the Dutch community regardless of where they were born or how long they had lived in The Netherlands.
You previously worked at The Hague in the Iran-United States Claim Tribunal. Tell us about that work.
I spent three years at the Tribunal working for Judge Gabrielle Kirk McDonald. I found the work incredibly fascinating because the cases that were left to be decided were contract disputes between the governments of the United States of America and the Islamic Republic of Iran. I researched Iranian, American, and international law governing a variety of contract issues.
Your most recent scholarship focuses on “cultural citizenship.” Can you tell us what that term means and the focus of your research on it?
Cultural citizenship refers to the idea that access to the legal status of citizen is dependent upon adhering to mainstream American culture—values, norms, and practices. Tying citizenship status to culture is not inherently illegitimate, but my research examines the problematic ways in which American culture has been operationalized and how individuals’ and groups’ values, norms, and practices have been and continue to be evaluated.
This term the Supreme Court is hearing a case about child citizenship and distinctions that are drawn between whether the child’s mother or father is a citizen. Can you tell us about that case and how it relates to your scholarly work?
The case is Lynch v. Morales-Santana. While the Fourteenth Amendment guarantees that all individuals born within the United States are U.S. citizens, the children of U.S. citizens born abroad is governed by federal statute. Luis Ramon Morales-Santana was born in the Dominican Republic to a U.S. citizen father and a Dominican Republic citizen mother. The federal statute governing citizenship at the time stated that children born abroad out-of-wedlock to U.S. citizen fathers were U.S. citizens at birth if the father had resided in the United States, or one of its outlying possessions, for ten years before the birth of the child, and five of those years had to be after the age of 14. The same statue only required U.S. citizen mothers to reside in the United States, or one of its outlying possessions, for one year before the birth of the child in order for the child to be a U.S. citizen at birth.
Morales-Santana’s father was a United States citizen and resided in Puerto Rico from his birth on March 19, 1900 until February 27, 1919. He was twenty days short of satisfying the five-year residence requirement after the age of 14. Consequently, Morales-Santana is not a U.S. citizen. Morales-Santana argues that the different requirements for U.S. citizen mothers and fathers to transmit U.S. citizenship to their children born abroad and out-of-wedlock violates the Fifth Amendment’s guarantee of equal protection.
The Second Circuit agreed and concluded that this is an equal protection violation. This is a notable holding because previous circuit courts and the Supreme Court have upheld different requirements for U.S. citizen mothers and fathers to transmit U.S. citizenship to their children born abroad.
This case raises issues about how one becomes a formal full member of the American polity. My research focuses on how such membership is allocated in the United States, what legal rights are dependent upon the membership status of citizen, what role citizenship status should have in allocating legal rights, and what strategies have been successful in expanding individual and groups access to United States citizenship.
Many countries, including the United States, are grappling with the Syrian refugee crisis. What are the major challenges for the United States and are we headed down the right path?
European countries, particularly those in Southern Europe, face challenges related to large numbers of individuals from Syria and surrounding areas seeking safe haven in Europe. The major challenges for the United States are different. Within the United States concerns have been raised that terrorists passing as asylum seekers will gain entry to the United States. These concerns seem to ignore the significant security screening that refugees go through before being allowed to enter the United States.
Our historical approach of working with the United Nations High Commissioner for Refugees and using U.S. law and policy to identify refugees for resettlement in the United States reflects U.S. values and principles. Our laws and policies enable us to not only determine who is eligible to be a refugee, but who within that group satisfies our public safety and national security requirements.
What do you see as the next major issues in Immigration Law that will confront the Supreme Court, Congress, and the President?
One issue that is gaining increasing attention is access to counsel in immigration proceedings. While individuals in immigration proceedings have a right to counsel, they do not have a right to government-provided counsel. There is no public defender’s office for immigration court. While there are many pro bono immigration attorneys, the need far outstrips the supply. There are a growing number of initiatives at the federal and local level to increase immigrants’ access to legal counsel for immigration proceedings.
During the presidential campaign President-Elect Trump spoke about banning all Muslims from entering the United States and rapidly deporting all unauthorized migrants. Both of these issues implicate constitutional concerns regarding equal protection and due process, but it is unclear what, if anything, will be done to implement these ideas.
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