This Article analyzes the rights of unauthorized migrants and elucidates how these noncitizens are incompletely but importantly integrated into the U.S. legal system. I examine four topics: (1) state and local laws targeting unauthorized migrants, (2) workplace rights and remedies, (3) suppression of evidence from an unlawful search or seizure, and (4) the right to effective counsel in immigration court.

These four inquiries show how unauthorized migrants—though unable to assert individual rights as directly as U.S. citizens in the same circumstances—can nevertheless assert rights indirectly and obliquely by making transsubstantive arguments that fall into five general patterns. The first is an institutional competence argument that the wrong decisionmaker acted. The second is an argument that an unauthorized migrant was wronged by a comparatively culpable person. The third is a citizen proxy argument that sustaining an unauthorized migrant’s claim will protect a U.S. citizen or lawful permanent resident. The fourth is that an unauthorized migrant may be unable to challenge the substance of a decision, yet may mount a successful procedural surrogate challenge to the way that decision was reached. The fifth is a phantom norm argument that, even if a government action withstands constitutional challenge, it violates a statute or regulation.

These patterns illustrate how typical doctrinal relationships and litigation strategies—for example, choosing between equal protection and preemption arguments, or between seeking redress for harms to individuals and harms to groups—shift significantly for unauthorized migrants. These patterns of oblique rights reflect a pervasive national ambivalence about immigration outside the law.

In current debates about undocumented or illegal immigration, three themes have emerged as central: the meaning of unlawful presence, the role of states and cities, and the integration of immigrants. This Essay’s starting premise is that a reappraisal of these themes is essential to a conceptual roadmap of this difficult area of law and policy.

This Essay argues that it is too narrow and too shallow to examine any of the three themes in isolation, as is typically done. Rather, each theme pairs up with another to reveal and elucidate a more fundamental question. The meaning of unlawful presence is connected to the role of states and cities; together they illuminate enforcement authority in immigration law. The role of states and cities combines with the integration of immigrants to show how communities that include immigrants are built. The meaning of unlawful presence and the integration of immigrants jointly shed light on how we think about the dimension of time in immigration law, and especially how we balance lessons from the past, present, and future.

The conceptual roadmap generated by this new look at immigration outside the law is important for two reasons. First, it explains why disagreements often run deep, and it reorients debate around more productive questions. Second, it shows why finding common ground will require looking at broader questions of international and domestic economic development as well as domestic educational policy.