Ragini Shah

SHAH PP

8/11/2008 2:50 PM

SHARING THE AMERICAN DREAM:
TOWARDS FORMALIZING THE STATUS OF
LONG-TERM RESIDENT UNDOCUMENTED
CHILDREN IN THE UNITED STATES

Ragini Shah*

ABSTRACT
The legal status of the estimated 1.8 million undocumented
young persons currently in the United States is a pressing issue
that must be addressed by lawyers and policymakers in the near
future. These youngpeople arrived in the United States at a very
young age, yet do not have, and cannot obtain, lawful immigration
status. This article examines their complex position and advocates
statutory reforms that better account for their unique
developmental and cultural attachments to the United States. This
article surveys the history of U.S. immigration policies in relation
to undocumented youth aswell as current reform proposals to
argue that there is a long-standing tradition of recognizing the
*

Assistant Clinical Professor of Law, Suffolk University Law School. I would
like to thank participants at the 2006 Immigration Law Teachers Workshop
for their comments on earlier versions of this work, particularly David
Thronson, whose insights helped focus and sharpen my arguments.Thanks
also to participants in the Associates in Law Workshops at Columbia Law
School for their comments on much earlier drafts. Special thanks to Jane
Spinak for her unceasing support. I am indebted to Scott Akehurst Moore for
his valuable research assistance.

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long-term ties of undocumented persons to theUnited States.
Drawing upon the personal experience of the author as an active
practitioner in this field as well as social science literature, this
article shows that an undocumented youth’s attachment to his or
her place of residence is an essential feature of his or her identity.
Using these insights, it concludes with proposals to amend the
immigration and naturalization rules to conformto both historical
practice in the United States and evolving norms of citizenship.

I.

INTRODUCTION

“Every year, U.S. high schools graduate approximately
65,000 [undocumented] immigrant students. Brought to
this country as young children, they have grown up in
American K-12 schools and share our culture and
values. Like their U.S.-born peers, they dream of
pursuing higher education.Unfortunately, due to their
immigration status, they are barred from the
opportunities that make a college education affordable—
in-state tuition rates, state and federal grants and loans,
most private scholarships, and the ability to legally work
their way through college. In effect, they are denied the
1
opportunity to share in the ‘American Dream.’”

One of the emerging issues inimmigration policy is the
status of young people who come to the United States at a very
young age but who do not have and cannot obtain lawful
immigration status. This article examines the complex and
contradictory position of undocumented children2 in the United
1.
National Council of La Raza, Policies, DREAM Act, http://www.nclr.
org/content/policy/detail/1331/ (last visited Feb. 3, 2008).2.
I use the term “undocumented child” or “undocumented youth” to
refer to foreign-born children or youth living in the United States without
authorization. I prefer this term to “illegal alien,” which is a colloquial phrase
though it includes the term “alien” used in the Immigration and Nationality
Act. For further analysis of the term “illegal alien,” see Gerald L. Neuman,
Strangers to theConstitution: Immigrants, Borders, and Fundamental Law
177 (1996). When using the terms “child,” “youth,” and “young person” in
this article, I refer to people under the age of 21. This is consistent with the
definition of “child” used in the Immigration and Nationality Act, 8 U.S.C. §
1101(b) (2006), and in determining whether someone is eligible for various
forms of immigration relief as...