Foreword to the 2025 Ira C. Rothgerber Jr. Conference: Immigration & National Borders

by Pratheepan Gulasekaramin Issue 3, Print, Volume 97on Posted on

Open PDF in Browser: Pratheepan Gulasekaram,* Foreword to the 2025 Ira C. Rothgerber Jr. Conference: Immigration & National Borders

The heightened salience of immigration enforcement compelled the Byron R. White Center to select The Regulation of National Borders as the topic for the 33rd Annual Ira C. Rothgerber Jr. Conference in Constitutional Law.[1] Geographically, borders demarcate international boundaries and identify the perimeter of nation states. The need to control borders is used to justify immigration enforcement regimes that separate the “us”—those who may lay claim to belonging in America—from the “them”—those who can be imprisoned and banished. Donald Trump’s reelection has once again centered questions about how we welcome and exclude individuals from our national community, but these debates over border regulation are evergreen. For decades and through multiple presidential administrations, border control and immigration enforcement have been defining policy concerns, and they promise to remain so for decades to come. For these reasons, the Byron R. White Center invited the nation’s leading experts on border and immigration policy to provide perspectives on this question: What is a fair, realistic, and sustainable immigration policy?

It is of course a daunting and complex question on which we, as a polity, deeply disagree. The aim of the conference therefore was not to provide definitive answers but to contextualize the myriad factors, stakeholders, and moral and political commitments that must be reconciled in order to push us toward an achievable and fair reconsideration of immigration policy.

Professor Hiroshi Motomura’s keynote address, Borders and Belonging, highlighted the central questions, challenges, and opportunities for border regulation. Transcribed and reprinted here as the keynote in this Symposium Issue, Motomura’s work asks us to step outside the conventional debate and reframe discussions around border regulation. Rather than ask how to deal with the immigration “crisis,” which inherently casts immigrants as “outsiders” and “invaders,” Motomura invites us to consider immigration as a source of prosperity.[2] So conceived, immigration and border control policy become ways of harnessing and sharing in the benefits that immigration brings.

Motomura’s deceptively simple claim masks a complex set of ideas. His recent book,[3] upon which his remarks were based, does not push for open borders. Instead, he argues that “borders can work for good” by providing a basis for belonging, shared culture, and economic flourishing.[4] At the same time, however, borders can “mask injustices” and normalize cruelty and discrimination.[5] Thus, a crucial first step in harnessing the border’s positive effects is to identify and rectify the myriad harms that draconian border control and harsh immigration enforcement can hide.

Beyond his larger reorientation of immigration as a source of shared prosperity, Motomura’s keynote in this Issue forces readers to question their basic assumptions about the purpose of immigration and border control law. One underappreciated concern he identifies is that our current fixation with the border and border control fails to fully respect the “humanity” and “belonging” claims of both migrants and those who are already part of our national community.[6] His insights regarding claims of belonging are especially impactful. Too often, Motomura argues, border control is conceived as a way to separate those with deep and enduring connections to the country from outsiders who do not have any connection at all.[7] Motomura critiques this binary, noting that it silences the claims of those core members of our national community—even citizens or permanent residents—who maintain robust connections to individuals and communities outside our borders. Thus, he shows how the forces of immigration law and border control operate to distinguish between members of our national community just as much, if not more, than they separate the “us” on the inside from the “them” on the outside.[8] Seen through this lens, the humanity and belonging claims of those pursuing humanitarian protections become at once more nuanced and multifaceted. Motomura notes that asylum seekers work, study, and raise families.[9] As such, he challenges us to ask whether migrants who are compelled to leave their homes and seek refuge elsewhere are really that different from the types of migrants our nation historically has welcomed.

Motomura’s reframing set the stage for responses from several of the nation’s other leading experts on immigration and border policy. The first conference panel, featuring Alexander Aleinikoff,[10] Paulina Arnold,[11] and Ayelet Shachar,[12] compared the belonging and humanity claims of those forced to migrate with those who migrate by choice. A second group of panelists, Juliet Stumpf,[13] Violeta Chapin,[14] Ahilan Arulanantham,[15] and Lisa Martinez,[16] then addressed the experience of migrants who remain in the United States and face threat of deportation because of their lack of immigration status. Finally, a third group of panelists, Daniel Tichenor,[17] César Cuauhtémoc García Hernández,[18] and Stephen Lee,[19] concluded the conference by reimagining realistic possibilities for immigration and border regulation in the future. In this Issue, we are privileged to feature essays by four of those experts: Lisa Martinez, Stephen Lee, Juliet Stumpf, and Daniel Tichenor.

Sociologist Lisa Martinez coins the term “constricted legality” to describe the precarious status of Deferred Action for Childhood Arrivals (DACA) recipients, who may have the strongest belonging claims of any group of noncitizens.[20] Martinez’s interviews with DACA recipients reveal they experience a social reality different from those with other liminal immigration statuses. They at once benefit from greater access to opportunities than other immigrants while simultaneously living with a constant sense of exclusion and anxiety, knowing that their ultimate social, economic, and educational integration depends on the whims of presidential administrations.[21] Yet, this is the precise group of individuals who may have the most to contribute to the shared prosperity that Motomura prompts us to consider. DACA recipients are “already part of the American fabric,”[22] insofar as most hail from mixed-status families with U.S. citizens and have been educated and working alongside citizens for years, if not decades. Even so, they live in legal limbo, knowing that at any time they might become the objects of enforcement. And, despite spending a long time in the United States, usually studying and working here, their ability to imagine a long‑term future here remains in peril due to their constricted legal and social reality.

The time restrictions DACA recipients face—the age limitations that qualify them for the program in the first place and the bounded duration of its benefits—are a particularly poignant example of the broader phenomenon Stephen Lee explores in Attachment Policies in Immigration Law.[23] Lee’s essay theorizes the ways in which immigration law relies on indicia of a noncitizen’s perceived attachment to the United States for various benefits and relief from removal.[24]

Lee also catalogues the many anti‑attachment policies in statutes and regulations, such as immigration law’s “stop‑time” rule, which empowers the federal government to limit noncitizens’ counting of their time in the country, thus disrupting their ability to access certain immigration benefits and relief. These anti‑attachment policies can eliminate or undermine noncitizens’ ability to establish belonging, sometimes despite lengthy and deep connections to their neighborhoods and workplaces. Lee highlights these oppositional valences to show that “despite the commonsense and intuitive appeal of using the attachment principle” the concept “is a legal and political construction.”[25] In identifying attachment as an animating feature of immigration law—especially the discretionary programs centered on territorial presence or time spent in the United States—Lee argues for refined conversations about migrant vulnerability. Non-attachment justifications, like time‑based rules, permit officials to defend immigration policy as inclusive and fair‑minded, while obscuring the ways in which it “seeks to frustrate the ability of migrants to move freely through society, to form relationships, and to build lives.”[26] In response to Motomura’s provocative keynote then, Lee’s essay forces us to ask, “How does immigration law unfairly delimit a noncitizens’ claim of belonging?”

Just as Lee draws attention to the manipulation of attachment principles by immigration authorities, Juliet Stumpf focuses us on the decision‑makers themselves: Those who determine whether noncitizens have violated border and immigration controls and whether those transgressions merit punishment and banishment. In The Crimmigrators, Stumpf identifies the myriad of actors who serve as decision‑makers in immigration enforcement, from the different actors within the Department of Homeland Security, to local police officers, to prosecutors, to state DMV clerks.[27] Explaining the role of these varied “crimmigrators,” Stumpf argues that the choice of decision‑maker can shift immigration enforcement from an inclusionary to exclusionary valence and vice versa.[28] Sometimes immigration statutes and administrative regulations can create new crimmigrators, incorporating previously unaffiliated actors into immigration enforcement regimes.[29] Further, she shows that the choice of decision‑maker can effectively control the choice of legal regime, with both the decision‑maker and choice of law often determining outcome. In essence, to vindicate both the claims of humanity and belonging Motomura urges, Stumpf asks us to rethink the “who” that immigration law empowers to determine rights and privileges.

While the variety of actors Stumpf identifies require sustained attention, Daniel Tichenor’s essay centers on the most prominent singular decision‑maker in immigration and border policy: the president. In Unbridled: Immigration and the Prerogative Presidency, Tichenor explains the source and present state of the president’s outsized role in shaping immigration policy.[30] Tichenor, bringing his political science background to bear, notes that the increase in executive resources for border and immigration control, along with decades‑long congressional gridlock, have empowered presidents to more robustly use administrative and executive authority to fashion immigration policy without constraint. This steady accretion, he argues, has led to our current moment of “unbridled” executive control, with Donald Trump pushing—and perhaps exceeding—the boundaries of his authority with his invocation of the Alien Enemies Act of 1798 and Cold War‑era provisions of the 1952 Immigration and Nationality Act to justify draconian enforcement tactics.[31] Tichenor warns that this “expansion of unfettered executive power is one of the most important American constitutional and political developments of the past quarter century.”[32] Tichenor asks to consider how a sufficiently motivated president, acting without legal constraints as the crimmigrator in chief, might seriously undermine the claims of humanity and belonging Motomura identifies as the basis for reimagined immigration policy.

These five contributions in this Symposium Issue highlight the possibilities for reimagined border and immigration policy, while simultaneously identifying critical challenges to that reorientation. As Motomura urges at the conclusion of his keynote, our purpose here is not to resolve the deep and complex debates over realistic and sustainable immigration policy, but to provide the kindling to spark nuanced and productive conversations about it.[33] The concerns identified by these authors—the types of claims that deserve attention, the liminal legal and social existence of certain vulnerable populations, the underappreciated attachment policies that determine inclusion and exclusion, the panoply of decision‑makers and their inherent influence on outcomes for vulnerable populations, and the increasingly central role of the American president in determining the direction of U.S. immigration policy—provide an important starting point for those discussions.

 

*Professor of Law & Director, Byron R. White Center for the Study of American Constitutional Law, University of Colorado Law School. Thank you to the panelists who traveled to Colorado Law to share their insights, and especially to former Colorado Law professor Hiroshi Motomura (now UCLA Law) who delivered the conference keynote. My sincere thanks to Lindley Bell and the Byron White Center Student Fellows who made the Rothgerber Conference possible. Thanks as well to Clara Yardley (CU Law ‘26) and the editorial staff of the Colorado Law Review. Finally, thanks as always to the family and estate of Ira C. Rothgerber, Jr., whose generous bequest funds the Byron R. White Center and the annual Rothgerber Conference in Constitutional Law.

  1. See Ira C. Rothgerber Jr. Conference, Colorado Law, https://www.colorado.edu/law/research/byron-white-center/rothgerber [https://perma.cc/UED8-ZCQU]. ↑
  2. Hiroshi Motomura, Borders and Belonging, 97 U. Colo. L. Rev. 893, 899 (2026). ↑
  3. Hiroshi Motomura, Borders and Belonging: Toward a Fair Immigration Policy (2025). ↑
  4. Id. at 15. ↑
  5. Id. at 3. ↑
  6. Motomura, supra note 2 at 903. ↑
  7. Id. at 901. ↑
  8. Id. at 900. ↑
  9. Id. at 905–06. ↑
  10. Executive Dean, The New School for Social Research, former UN Deputy High Commissioner for Refugees and former Dean of Georgetown University Law Center. ↑
  11. Associate Professor, University of Michigan Law School. ↑
  12. Irving G. and Eleanor D. Tragen Chair in Comparative Law, University of California Berkeley School of Law. See Ayelet Shacar, The Shifting Border: Legal Cartographies of Migration and Mobility (2020). ↑
  13. Edmund O. Belsheim Professor of Law, Lewis & Clark Law School. ↑
  14. Associate Dean for Community and Culture and Clinical Professor of Law, University of Colorado Law School. ↑
  15. Professor from Practice and Co‑Director of the Center for Immigration Law and Policy, UCLA School of Law. ↑
  16. Professor of Sociology, University of Denver. ↑
  17. Philip H. Knight Chair of Social Science and Director of the Program of Democratic Governance in the Wayne Morse Center for Law and Politics, University of Oregon. ↑
  18. Gregory H. Williams Chair in Civil Rights and Civil Liberties, Moritz School of Law at The Ohio State University. ↑
  19. Professor of Law, University of California Irvine School of Law. ↑
  20. Lisa M. Martinez, Constricted Legality: DACA Recipients, Belonging, and the Limits of Immigration Law, 97 U. Colo. L. Rev. 909, 915 (2026). ↑
  21. Id. at 912, 945. ↑
  22. Id. at 954. ↑
  23. Stephen Lee, Attachment Policies in Immigration Law, 97 U. Colo. L. Rev. 957 (2026). ↑
  24. Lee explains that attachments are loosely defined through “family ties within or economic contributions to the United States.” Id. at 957. ↑
  25. Id. at 977. ↑
  26. I d. ↑
  27. Juliet P. Stumpf, The Crimmigrators, 97 U. Colo. L. Rev. 997 (2026). ↑
  28. Id. at 1002. ↑
  29. See id. at 1018. ↑
  30. Daniel Tichenor, Unbridled: Immigration and the Prerogative Presidency, 97 U. Colo. L. Rev 1047 (2026). ↑
  31. Id. at 1053. ↑
  32. Id. at 1083. ↑
  33. Motomura, supra note 2, at 907. ↑