Immigration Law Outline

Professor Kalhan, Immigration Law, Fall 2014 Outline

· Introduction

· Core: immigration doctrine, theoretical and policy debates; pay attention to statutory language

· General factors: Two basic sets of structural factors to explain movement:

§ Country conditions that push people in general to leave country – push factors

· Lack of political/other freedoms & economic opp, poverty, US foreign policy

§ Conditions in another country that pull people to come to other country – pull factors

· Economic opp, rejoin fam, political/other freedoms, employment opp, better life

§ BUT many obstacles to migration and majority of people do not migrant

§ Distance, expense, comfort, difficulty

§ Changes in travel changed obstacles, Different categories of people now migrate

§ Migration supplemented by business, smugglers, traffickers, market conditions

· Particular factors:

§ Job skills, life goals, availability/access to resources, access to different networks of people

· Since 2001, many additional regulations imposed – immigration as a security concern

· Detention, deportability, terrorism-related, consequences for national security concerns

· Executive has been active on immigration issues:

· Used administrative tool to create relief for people in absence of congressional action

· Immigration and the Constitution – Sources of the Federal Immigration Power

· Normative rules of constitutional law do not apply to immigration law

o Congressional powers to exclude and deport aliens have been held to be plenary

§ Federal government has broad, exclusive power to regulate immigration

· Congress’s decisions are final, and congress can discriminate, restrict, disregard due process

o Court is powerless to judge constitutionality of congress’s acts

· Evolution of the plenary power doctrine regarding exclusion, in stages:

o Constitution entrusted immigration exclusively to the federal government, not states

o Constitution provides congressional power to regulate international commerce

o Exclusion power is inherent in the sovereignty of every nation & not dependent on constit’l grant

o Ct adopts PPD barring judiciary from reviewing statute for const’y when congress uses exclus’n pwr

o Court has extended and qualified the plenary power doctrine in various ways

· Policy Rationales of the Plenary Power Doctrine:

o Constitutionality of an immigration statute is a political question b/c foreign affairs are implicated

o Non-USCs are guests, not full member of society so presence is a privilege, not a right

o Const’l protection would give non-USCs unfair advantage since already have int’l law protections

o Noncitizens lack the allegiance essential to constitutional protection

o Inherent sovereign power to regulate imm insulates exercise of that power from const’l review

o Constitution inapplicable in exclusion because a noncitizen seeking admission is legally outside US

· Theories as to fed gov’t authorization to regulate immigration:

o Enumerated Powers

· Commerce Clause – Movement of human beings across national boundaries is commerce; Large-scale immigration substantially affects interstate and international commerce

· Migration or Importation Clause – Applied to slave trade

· Naturalization Clause – Congress est. uniform rule of natz, not admission/rejection of immigr.

· War Clause – Authorizes congress to regulate alien enemies

o Implied Constitutional Powers

· Set of theories can be used to extract a fed imm power from overall structure of constitution:

§ Structure of the constitution arguably suggests a general power to conduct foreign affairs, and immigration is just one specific aspect of that power.

§ Overall const’l structure reveals an intent to place fed gov’t of US on an equal footing with central gov’ts of other nations & other nations of the power to exclude noncitizens.

§ Framers must have intended to authorize fed gov’t to define who we are as a people.

§ Structure can also be distilled from the interaction of specific provisions.

· Procedural Due Process in Exclusion Cases

o Due process clause extends protection to any “person” – not limited to “citizen”

o Plenary power in exclusion process remains strong; Ct has never invalidated an immigration statute

o Strong DP for those inside the border – although reduced for EWIs

· Chae Chan Ping v United States (The Chinese Exclusion Case)

o Recognized inherent federal power to exclude noncitizens (did not consider individuals rights)

o P Chinese laborer left US w/ certificate to return; congress terminated program; P excluded.

o Three theories for holding congressional decision conclusive upon judiciary – no judicial review

· (1) Power of excluding foreigners is a sovereign power delegated by constitution; may exercise any time when, in the judgment of the gov’t, the interests of the country require it.

o But just b/c power of exclusion is an “incident of sovereignty” does not mean that courts should be barred from review

· (2) License Chinese laborers obtained prior to 1888 Act to return to US after departing is held at the will of the government, revocable at any time, at its pleasure.

o Distinction b/w privilege and right no longer exists – both can only be withdrawn by due process of law – now, due process of law is treated differently from the time of this case

· (3) Matters of exclusion are not questions for judicial determination; any complaint on the part of China must be made to political dept. which is alone competent to act on the subject.

o Not all immigration issues deal with foreign affairs – and here court does not explain why immigration is a political question

o Gov’t has powers to be exercised for protection & security, authority to determine when powers are to be used; Court is coming down on the side of implied constitutional powers

o Political branches have inherent power to exclude noncitizens when determined public interest req such exclusion; asserted in repeated instances, & never denied by exec or legis. depts.

· Immigration statutes/decisions not subject to review for constitutionality; Contra Marbury

o In exclusion context, court will largely not interfere – Plenary power doctrine is strong here

· Ekiu v United States

· No due process limits on the exercise of federal power to exclude noncitizens

· P from Japan excluded upon entry due to concern she would become a public charge

· Power to forbid entrance belongs to the political department, exercised thru treaties made by pres. or statutes enacted by congress, w/ const’l power to regulate commerce w/ foreign nations

· Not w/in province of judiciary to order that non-USCs enter US, in opposition to const’l & lawful measures of legislative & executive branches of nat’l gov’t

· Decisions of exec or admin officers acting w/in powers expressly conferred by congress are DP.

o Applies to decisions of non-USCs seeking entry; right to seek habeas corpus review but limited

o Courts says congress does not violate constitution by entrusting decisions to admin officials

· Post-Ekiu: decisions generally held only that due process does not require judicial fact-finding

· Fong Yue Ting v United States

· Extended the principles of the federal power from exclusion to deportation

· Three Chinese laborers arrested for failure to have req’d certificate of residence. None could produce credible white witness to testify on their behalf, as the statute’s alternative to a certificate.

· Power to exclude or expel aliens, being a power affected by int’l relations, is vested in political departments of gov’t. PPD from Chae as applicable to exclusion is extended here to deportation.

o Exclusion and deportation are logically inseparable – both within federal power to regulate

· Act is within the acknowledged power of legislature to prescribe the evidence which shall be received and the effect of that evidence in the courts of its own gov’t.

o Good law – int’l law permits deport of even LPRs & US const’l law lodges power in fed gov’t

· Const. applies to all in US – but not nec. to laws relating to imm, entering & remaining

· DISSENT: Act is penalizing people who are lawfully residing & domiciled in US, are w/in protection of const’n; deprives them of liberty, imposes punishment w/o DP of law – deportation is harsh.

o Large difference b/w legislation for exclusion & deportation of those who have acquired resid

o Deport is diff. b/c ppl in US have developed ties to community – individual interest greater in avoiding deportation than exclusion; More at stake in deportation – ripping people from homes, families, jobs, BUT stakes could be just as high for those entering

o Deportation as punishment: Does it meet theories of punishment, what are purposes?

· Shaughnessy v Mezei

· R permanently excluded from US on security grounds. Lived in US as LPR for 25 yrs., left for 18 m, no hearing upon return. Stranded at Ellis Island. No other countries will take him. Subject to indefinite detention; habeas petition filed.

· To admit alien barred from entry on security grounds nullifies purpose of exclusion proceeding.

o Noncitizen being excluded, as here, cannot invoke due process clause

o Largely no judicial review, as here – but court leaves door open to later judicial review

· Instance of national security claim interacting with the lack of judicial review

· INA permits removal w/o hearing for aliens seeking entry who are national security concerns

· BUT this is different for LPRs that are outside of US for less than 180 days

· DISSENT: Longtime LPR, deprived of liberty, not free to leave. LPR must be given fair hearing to test the claim that he is of a deportable class.

· Pazcoguin v Radcliffe

· Non-USC who seek