New York University Public Law and Legal Theory Working Papers

Document Type



21 Georg. Imm. L. J. 201 (2007)


As Congress considers immigration reform, public debate has focused on border enforcement and whether the undocumented should be provided with a “path to citizenship.” Underlying this debate is a tacit assumption that issues of border enforcement center on persons who lack a legal status to reside in the United States or who are attempting to evade immigration authorities. The border looms large, however, for millions of immigrants who have a legal status or who have fully presented themselves to immigration authorities in their efforts to obtain permanent status. For these immigrants, short term travel, including a trip of a few days to attend a family funeral, can lead to a permanent bar to readmission. As a result, the border operates invisibly as a force that keeps immigrants in their homes in the United States and stops them from traveling.

This paper examines how current immigration law restricts travel by noncitizens, including travel by lawful permanent residents and the spouses of United States citizens. It shows that as a result of the inter-working of various statutory and regulatory interpretations, these restrictions permeate the overall statutory and regulatory scheme governing noncitizens. At that same time, the restrictions generally lack any articulated rationale. Some were enacted without explanation. Others are carryovers from past legislative schemes. This paper proceeds to examine the individual and governmental interests implicated by these policies. Finally, it looks at the role that could be played by the courts, agencies and Congress in achieving a more humane and rational system for regulating travel.

Date of Authorship for this Version

August 2006