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Immigration Law
St. Thomas University, Florida School of Law
Vastine, Michael S.

Immigration Law
Vastine
Summer 2017
 
1 Class
 
Chapter 1: The Immigration Debate: Goals, Strategies, and Impact. (11-22)
 
A. The History (12-22)
Professor Kerry Abrams suggested that “immigration” history should be broadened to include (a) intra-national migrations; and (b) legal devices other than direct restrictions for influencing the size and composition of a population.
[1] 1776-1875: One Hundred Years of Open Frontier (open gates)
Period of unimpeded immigration. New settlers were important to the young nation and immigrants were welcomed. An early attempt at restriction was the Alien Act of 1798 (unpopular, lasted 2 years), a part of the Alien and Sedition Laws, which authorized the President to expel from the US any alien he deemed dangerous. During 1864, Congress passed legislation to encourage immigration. Even in this period, there were groups counseling restriction and they were more popular during economic depression.
States statutes were declared unconstitutional by Supreme Court b/c they were an invasion to the exclusive federal power to regulate foreign commerce.
[2] 1875-1917: Institution of Federal Controls on Immigration
An 1875 prohibiting convicts and prostitutes were followed by the first general immigration statute of 1882, the act imposed a head tax of 50 C. and excluded idiots, lunatics, convicts, and persons likely to become a public charge. The Chinese Exclusion Act was also enacted, but it was repealed in 1943.
In 1885 and 1887, Congress passed Contract labor laws to avoid importing cheap labor. The new immigrants were coming from Southern and Eastern Europe (before Northern).
[3] 1917-1924: Solidification of Restrictive Immigration Policies (qualitative/numerical limitations)
In 1917 (qualitative restriction) Congress passed a revision of immigration laws. The most controversial innovations were the literacy test, Asiatic Barred Zone to shut out Orientals (Japan not included).
The Anarchist Act of 1918 expanded the provisions for deportation of subversive aliens and authorized their exclusion w/o time limitations.
Until now the laws dealt with the quality of the aliens who sought to enter, there were no attempts to limit the number of entrants.
The Quota Law of 1921 introduced for the first time the numerical limitations on immigration, it allocated quotas to each nationality of 3% of the foreign born persons of that nationality residing in the US, for an annual total of 350K.
Congress enacted a permanent policy of numerical restrictions in 1924. Quota immigrants were limited to 150k per year (curtailed of immigrant form Southern and Eastern Europe). However, natives from Western countries could enter w/o numerical restrictions. Aliens seeking to enter were required to obtain immigration visas from American consuls overseas. Those who entered in violation of the visa and quota requirements were deportable w/o time limitations. Another provision aimed at Orientals barred all aliens ineligible to citizenship.
A prior Act limited naturalization to “free white persons”. In Ozawa v. US, the Supreme Court held that persons of Japanese descent were non-white and therefore ineligible for citizenship.
[4] 1924-1952 Legislation (relaxation of prevailing restrictions)
The Displaced Persons Act. Of 1948 (amend. in 1950) was a humanitarian program which brought over 400k refugees in 3 ½ years admitted under a system that mortgaged the quotas for their countries.
Another relaxation benefited the alien’s spouses, children, and fiancées of WW II American servicemen facilitating their admission to US. Under the War Bride Act 180k aliens were admitted to the US and for 5k under the Fiancées Act.
The Immigration and Nationality Act of 1952 (15)
 
President Truman castigated the national origin system, severity of deportation, and denaturalization. However, the McCarran-Walter bill became law when Congress overrode the P’s veto, and it was enacted on June 27, 1952.
Immigration and Quotas
Every alien seeking to enter the US was deemed an immigrant unless he established he was a nonimmigrant. A nonimmigrant is one who comes temporarily. The principal classes exempted from numerical restrictions were alien spouses, children of American citizens, returning lawful residents, and natives of the Western hemisphere countries.
The act established annual quotas based on a system of national origins for immigrants who came from all countries except those in the Western Hemisphere. It enacted special racial quotas for Asians. Also, the law had preferences w/n the quotas for immigrants w/ specialized skills and certain relatives of American citizens and of resident aliens.
Legislative Activity after 1952
 
After President Kennedy’s death, his proposals for reform of the immigration laws were adopted by President Johnson and he enacted a revision in 1965 which abolished the national origins quota system.
The 1961 amendments included the elimination of 2k visas that could be issued for countries in the Asia Pacific Triangle.
The 1965 Amendments
Congress enacted changes on legislation to eliminate discriminations based on race or national origin. Also, the 1965 amendments were restrictive, imposing additional limitations on the entry of persons seeking to perform labor and restrictions on the entry of aliens from the Western hemisphere.
The major revisions of the 1965 enactment were:
Ended the national origins quota system, effective 06/30/1968.
Abolished special immigration restrictions related to Orientals and prohibited immigration discrimination based on race, sex, nationality, place of birth or residence.
Fixed a unified immigration quota, for areas outside the Western hemisphere of 170k annually. However, no more than 20k of these visas could be allocated to the natives of any single foreign state.
Established categories of immigrants exempt from the worldwide numerical restrictions like immediate relatives of US citizens like spouses and children of US citizens, and parents of US citizens who are at least 21 years of age. Special immigrants, formerly nonquota immigrants and aliens born in Western hemispheres countries.
Abolished the system of quotas priorities under the 1952 Act and established new priorities based on family relationships and selective skills, in issuing immigrant visas.
Ended the exemption of Western hemisphere natives, other than immediate relatives of American citizens, from numerical restrictions.
Barred the admission of most non-family immigrants if they were coming to perform skilled or unskilled labor unless the Secretary of Labor determined or certified that qualified workers were not available at the place of destination and that the employment of such prospective immigrants would not adversely affect wages and working conditions in the US.
Amendment enacted in 1976 and 1978 eliminated the remaining distinctions b/t Western and Eastern hemisphere immigrants. The Eastern hemisphere immigration criteria became applicable worldwide.
The Immigration Reform and Control Act of 1986 imposed sanctions on employers of undocumented workers; prohibitions on certain forms of discrimination, legalization, or amnesty; and agricultural workers.
The Immigration Marriage Fraud Amendment of 1986 to address fraud in marriages.
The Immigration Act of 1990
It’s the most important immigration statute in many years. Many objected that the act curtailed DP rights in deportation proceedings.
A publicized feature was the increase in the number of immigrants who will be admitted each year. The law established an annual limit for worldwide immigration of 700k for 3 years. It made a minimum of 480k visas available for family reunification, 140k visas for employment-based immigrants, and 55k visas for diversity immigrants.
The law also codified “temporary protected status,” a discretionary remedy designed for noncitizens who has fled war, natural disaster, or certain other dangers but who do not qualify for asylum. The Act also revamped the exclusion grounds (inadmissibility). It repealed a provision that was interpreted as excluding homosexuals, narrowed some of the ideological exclusion grounds, and added new exclusions grounds related to terrorism and to foreign policy. It made miscellaneous changes to the deportation grounds. It amended the conditional residence requirements for spouses and children by adding a specific waiver for certain spouses and children subjected to domestic violence.
The Act removed procedural safegua

nts. The court found that the law constituted an exercise of the police power and not a regulation of interstate commerce.
In the decades b/t the Civil War and the Chinese Exclusion case, the Court struck down many state laws regulating arriving vessels, on the ground that they interfered w federal powers and interests.
The passage of laws which concern the admission of citizens and subjects to foreign nations to our shores belongs to Congress, and not to the states. If it be otherwise, a single state can, at her pleasure, embroil us in disastrous quarrels w other nations.
The court’s holdings suggested that states could not directly exclude those immigrants who possessed characteristics they considered undesirable. In the Passenger Cases, at least 2 of the justices who voted to invalidate the state statutes taxing arriving passengers suggested that a state could constitutionally exclude noncitizens who were found to be lunatics and who did not post security against becoming public charges.
Today federal immigration law consists of a complex and comprehensive scheme to regulate most facets of immigrant movement. Most inquiries into the scope of the states’ police powers become matters of statutory preemption. The courts continue to emphasize that immigration regulation is an exclusively federal function under the constitution.
 
 
 
 
 
Limits to the Federal Immigration Power (115)    
Until 1996, the immigration statutes recognized a similar distinction; the government might “exclude” a noncitizen who sought to enter, and might “deport” a noncitizen who already entered and wished to remain. The IIRIRA abolished that terminology. Since 1996, the name of the proceeding in which both kinds of determinations are made is a “removal” proceeding. There are still separate grounds of “inadmissibility” and “deportability” for those who seek admission and those who have already been admitted. Use the words exclusion and deportation to distinguish the act of denying admission at a port entry from the act of expelling individuals from the interior.
The foundation Cases
The Chinese Exclusion cases: (1) sovereign powers, (2) license, and (3) political department.
Ekiu v. United States (Denied entry: exclusion) (DP) (Constitutional)
Supreme Court of the United States
142 U.S. 651 (1892)
Rule: The exclusion of an alien by an immigration official does not violate the Due Process Clause of the Fifth Amendment.
The decision of executive or administrative officers, acting w/n powers expressly conferred by Congress, are DP of law.
Facts: Nishimura Ekiu (plaintiff), a Japanese citizen, arrived in the United States by steamship. Ekiu told the immigration officer that her husband was living in the United States and would meet her at a hotel. The immigration officer did not believe Ekiu and denied her entry into the country on the ground that she was likely to become a public charge; that is, dependent on the government for support. Ekiu applied for habeas corpus. The circuit court denied her relief on the ground that courts did not have the right to reexamine administrative findings of fact, such as those made by immigration officials. Ekiu appealed, arguing that this interpretation of the statute denied her due process of law.
Issue: Does the exclusion of an alien into the United States by an immigration official violate the Due Process Clause of the Fifth Amendment?