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Immigration Law
South Texas College of Law Houston
Rempell, Scott

Immigration Law Outline
       Professor Rempell
                Spring 2016
 
 
Immigration Terminology
 
Alien: any person not a citizen or national of the US
Immigrant: someone who has the intent to come to the US permanently
Nonimmigrant: person who does not have that intent to remain in the US permanently
Petitioner/beneficiary: petitioner that files on behalf of an individual that will be a beneficiary
 
 
HISTORY OF US IMMIGRATION
A brief History of US immigration
During 1700’s no federal immigration law existed; simply excluded group of people
Territorial Expansion in the 1800’s caused the influx of people to migrate into the US
1803—Haitian Rebellion—the only time that slaves had a succession where their rebellion led to a formation of a state
push-pull factors why people wanted to get out of Europe.
PULL FACTORS
 
economic opportunity
population growth
PUSH FACTORS
agricultural changes
crop failures industrial revolution
religious and political turmoil
 
During the 1870-900: the immigration population mostly came from European immigrants through Ellis Island
The other large population was from Asian immigrants through Angel Island (California)
The smallest population of immigrants was of Latin American Immigrants
Irish and Germans: groups specifically targeted because of religion and whether they would give their allegiance to the US or if they would maintain their allegiance to the Pope (Catholics)
 
Chinese Exclusion Act of 1882: excluded Chinese laborers for about 10 years
Also animosity towards people in the Philippines
 
Immigration Act of 1924:
Post WWI—then there’s a demographic change as to who is migrating into the US.
During 1880 everyone’s coming from Europe, then people start coming from South and Eastern part of Europe
This act says that there’s no immigration from Asia-Pacific Triangle
They also institute:
Quotas: there is a set number and no more people can come in than the number of people limited that can come from a particular country
How they set these?
The annual quota was set at 2% of foreign born persons resided in the US (ex in 1880 there were 100 people residing in the US from Italy, then there could only be 2 people that could come in from Italy)
Now, who gets to come? (familial ties, skills, this gave birth to the preference system)
 
Preferences: the two main types—economics and family based (spouses or parents of people that were already in the US)
Only eastern Hemisphere had the quota system in place
Western hemisphere (Central and South America) no quota in place because not many people were coming from there
 
Consular control system: formerly known as INS, now the Department of State has taken over
The people have to get visas before they can come into the US
Asian-Pacific Immigration ban
Immigration Act of 1952
This is post WWII: entering into the Cold War (Anti-communism)
What it did?
Quota system remained
Antecedent of modern day preference system
Repeal of Asian Pacific Triangle Exclusion laws
Numerous grounds for Exclusion and deportation
 
The origins of Contemporary Asylum and Refugee Law
1964: United Nations
1947: international refugee organization
1948: universal declaration of human rights
1951: UN High Commissioner Refugees (UNHCR)
1951: Convention related to the status of refugees
Subsequent development
1965: abolition of national origins quotas
1976: ceilings and preferences applied to Western Hemisphere
1980: Refugee Act
this is based on political and social concerns at that time
you break, you buy—post Vietnam damage the US made
Changes to law and migration
During the 1970’s-1980’s there was a border crisis that caused an increase in immigration
 
Central American Conflict in 1980’s
There were dictatorial individuals running a lot of the countries and the administration was propping them up and running the money—because they were fighting the rebel groups that had Marxist terrorists, the US was fighting proxy wars that the US thought would be essentially fall to following Fidel Castro
 
IRCA (Immigration Reform and Control Act of 1986) [republican administration spearheaded this] Main features of 1986 Act
Employer Sanctions
Enhance border security
Amnesty: this only applied to people that were in the US prior to 1982
They hoped that this would help with the people that were already here, and then they would secure/control the borders
This allowed about 3 Million ppl to get green card with LPR
 
Immigration Act of 1990 (IMMACT 90)
Increased annual immigration cap
Expanded employment based immigration
Labor certification: when have to show that bringing an individual from a foreign country will not displace an American from getting a job
Made diversity immigration permanent
 
Post IMMACT90
Negative perception of immigration control some political centrism
1996:
Antiterrorism and Effective Death Penalty Act
Illegal Immigration Reform and Immigration Responsibility Act
Most stringent immigration law passed
Its effects?
Expanded crimes that constitute “aggravated felonies” and crimes involving “moral turpitude”
Expedites deportation for those convicted of aggravated felonies
Barred admission of those deported for aggravated felony
Limits judicial review
Makes relief from deportation harder to obtain
Post September 11
Protectionist view—wanted to limit who was coming into the US
 
Current Environment
Comprehensive Immigration Reform
Political climate
Security concerns
Alternative to comprehensive immigration reform
 
DAPA
Notable migratory emergencies
IE, families and UACs form Northern Triangle
Security-based concerns
Incidents in Europe
 
SUMMARY OF ABOVE
History of Immigration
Certain types of persons always excluded
Economics influences need for acceptance of foreign labor
Changing classes of others
Race/ethnicity/nationality/religion/viewpoint
Influenced by current events and migratory patterns
Interrelationship b/w immigration and security
Growth of quotas, preferences, external controls
This led to the adjudication of visas
Enhancement of exclusion grounds, growth of deportability grounds
 
 
 
Federal Immigration Powers and Sources of Immigration Law
Theories of immigration
Economic considerations
Reality and perception
Risk allocation
Cultural considerations
Cultural links caused by globalization
Social considerations
Contacts, familial, or otherwise
Migratory networks
Security considerations
Failed or weak states, lawlessness
Legal considerations
Probability of depor

overview
Sources of law (Title 8 USC—any law that pertains to immigration law)
Federal
The constitution of the US
Federal Statutes
Federal Administrative regulations and decisions
Federal court decisions
State constitutions
State statutes
State administrative regulations and decisions
State court decisions
 
EX: government passes the law that can’t bring in Marijuana. So, who enforces the law—the the DEA enforces the law
Other hypo: Sources of US citizens can obtain green cards—there are administrative agencies that implement these laws
 
Administrative agencies (I.e. the bureaucracy)
Carry out the laws passed by congress
Fill in the details of the law
Complexity of administrative state
If authorized, can issue regulations or interpret and create law through adjudication
 
How agencies create laws?
Regulations
Statute must authorize
Limited to agency’s area of expertise
Supposed to “fill in gaps” of statute
Cannot contradict statute
How a regulation gets created?
Statute
Proposed rule (FR)
Comments from public
Final Rule (FR)—maybe some modifications
Final rule codified (CFR)
CFR is organized like the USC—the CFR numbers (title 8), and at USC is 8 CFR
 
Informal Rulemaking
Agencies may provide rules and guidance if normally, such as
Policy memorandum
agency manuals
Internal guidance
Formal notice and comment period not required
Adjudication
# of issues requiring adjudication is based on a matter of necessity
decisions can usually be appealed can eventually obtain judicial review
 
Administrative Adjudication: How it looks in immigration cases
There are 300,000 cases in immigration court handled by the DOJ
50,000 of the cases are appealed to the Board of Immigration Appeal
If needs to be further appealed, there are about 10,000 cases that make it into the federal courts of appeals
 
Judicial Review
Exhaustion required
Must raise issue at the lower courts
Factual findings: highly deferential
Questions of law: de novo, but…
CHEVRON DEFERENCE: a principal of administrative law requiring courts to defer to interpretations of statutes made by those government agencies charged with enforcing them, unless such interpretations are unreasonable. Thus, even if a court finds that another interpretation is reasonable, or even better than the agency’s interpretation, it must defer to the agency’s reasonable interpretation.
How it works:
Step 1: has congress unambiguously expressed its intent
if yes, then control
Step 2: if not, court defers to agency unless interpretation arbitrary, capricious or manifestly contrary to the statue