I. Chapter 2: Immigration & the Constitution
A. Migration and Importation Clause: Provision of the Constitution that allows Congress to develop laws pertaining to naturalization. (Art I § 9).
B. Head Money Cases: Congress is allowed to regulate basically anything (including immigration) when commerce is involved, even remotely
C. War Clause: Congress is allowed to regulate alien enemies coming into the country.
D. **Major Theory that there is a basic sovereign right for the Federal Government to control its borders.
1. Chae Chan Ping v. US: Held that there is a basic sovereign right for the US to create laws limiting those entering the country. Also, that even though there was a treaty in place in this case, the law came later in time and so the law is to be honored.
2. Ekiu v. US: Denied a woman entry into the US b/c she was going to be a “public charge.” She filed for habeas corpus, and the court said that executive officers have the discretionary power to accept or deny people into the US.
3. Fong Yue Ting v. US: Law that said Chinese were allowed to stay in US if you were already here, but you needed to get a certificate of residence, and if you didn’t you could be subject to deportation. You had a right to appeal, but you needed, among other things, two white witnesses on your behalf. 3 Chinese men challenged the act based on constitutionality (b/c of the white witnesses) and the court said that was fine, it was not a trial in the proper sense. **Basically you’re not denying people due process all together, but b/c a civil matter, whatever Congress gives you is your due process.
4. Shaughnessy v. US ex rel. Mezei: Mezei was held up in Romania trying to get an exit permit, and ended up being outside the US for over a year. When finally reached US they didn’t want to let him back in, and he could not get admission to any other country. Question was whether they could continue to hold this person, if they had already been deported, but could not find another country to take him? Court looked to congressional intent, and said yes.
5. Yamataya v. Fisher: Woman was admitted into the US, but was found later that she would become a public charge, so admission revoked, as long as she was inadmissible from the time of arrival. Question of whether or not it was a violation of due process? Court said that the investigation was not an arbitrary process, and the record showed that she had notice of a hearing to determine inadmissibility, and she was in fact inadmissible at the time of entry, so absolutely no violation, and the investigation process was fair.
6. Harisiades v. Shaughnessy: 3 LPR’s, all part of the communist party, subject to removal. They invoked their first amendment rights, and said that it was an ex post facto law. This was not a criminal proceeding so no ex post facto, and immigration has nothing to do with the 1st amendment. Said as long as there was some sort of due process or hearing, then it was ok.
7. Francis v. INS: Francis was in the US, for over 7 yrs as LPR and committed a crime, and wanted the opportunity to apply for a waiver, the same as the individuals being admitted to the US, and the court agreed. Said was denial of Due Process if he was not given the same opportunity.
8. INS v. Chadha: Law gave congress a veto power over admission of individuals as LPR’s, and court said Congress could not have that power.
9. Zadvydas v. Davis: Individual had an order for deportation, but he could not be removed to anywhere. After the expiration of removal period (3 mos) he was still kept in custody by INS and was then allowed to file for habeas corpus. Court said that if you cannot remove the person, you are required to release them, but you can condition the release.
10. Demore v. Hyung Joon Kim: In a situation similar to Zadvydas, but here was pre-hearing, when the individual was an aggravated felon, they did not need to be released on bond pending the removal proceedings. As long as the individual was not being held indefinitely, and was pre-hearing, they did not need to issue a bond and could hold at least until hearing finalized.
II. Chapter 3: Immigrants (Family and Employment Based)
A. Family Based:
1. Congress has set limits on how many immigrants can come into the US annually.
i. Total: 675,000
a. Family Based:480,000
b. Employment Based: 140,000
c. Diversity: 55,000 (with 5,000given to individuals from central America and Eastern Europe)
ii. Each Country gets 7% of the total number of citizens that can immigrate (26,620)
iii. Certain individuals are not subject to a quota – immediate relatives of a U.S. Citizen (USC).
a. Spouse – husband and/or wife (man/woman relationships only)
b. Child – single and under the age of 21, natural born child, step-child living with the parentand who was under the age of 18 at the time of the marriage, adopted children living with the parent at least 2 years and was under the age of 16 at time of adoption. If they are legitimated before 18 then can be considered child of the father, if illegitimate and living with mother and father has developed relationship with child
c. Parent – individual must be at least 21 yrs of age to petition for their parent (preventing a person from coming into the US to give birth to their child and that child being able to immediately petition on their behalf.
d. Others not subject to quotas – refugees, individuals granted asylum, and refugees and asylees granted adjustment of status.
2. 4 Family Based Preferences (visas will become available quicker)
i. Unmarried Child or Parent of a USC – if Visa app is submitted before child turns 21, under Child Status Protection Act, the child’s status is protected if they turn 21 during the application approval period.
ii. Two LPR categories
a. Children or Spouses of LPR’s
b. Unmarried Sons or Daughters of a LPR
iii. Married Son or Daughter of USC
iv. Siblings of USC
3. Family-Based Visa Petition (client is the petitioner) –
i. Form I-130 filled out
iv. Proof of bona-fide relationship
a. Spousal Relationship requires more investigation than others (know examples of things that can prove real spousal relationship)
b. Need to show clear and convincing evidence of a bona-fide marriage – not entered into for the purposes of getting citizenship
c. Unskilled labor – not seasonal or temporary at which there is no one else to perform
iv. Special Immigrants – individuals who fall in the categories that are unique. Someone returning from a temporary visit (under 1 yr) with temporary status; or one who was a citizen who is applying for reacquisition.
a. Someone becoming a permanent resident to be a minister
b. Immigrant who was a former employee of US government abroad or panama canal company
c. J Visa 101 – immigrant declared a dependant or placed in custody of a department of the state due to abandonment or abuse etc. (child under 18 made a ward of the court can become a permanent resident)
v. Individual who is willing ot invest $1M in a new or existing business as risk capital. If they want to invest in an area which is distressed, they can get away with investing only $500,000. If they can demonstrate that the money has been invested, they can apply.
2. A labor certification establishes 2 things:
i. A shortage of workers in that particular area, and
ii. Granting this person a visa will not adversely affect the wages and conditions of those similarly situated.
C. Diversity (lottery):
1. In 1990 decided to give out 50,000 Visas according to the percentages that they were given out in previous years in regional areas.
2. When name is drawn, person is then eligivle to come to the uS, as long as they meet certain criteria in order to be able to come in.
3. Certain things are waived in this matter too.
4. If by the end of the next fiscal year, they have not done what is required of them, then they’ve lost their opportunity, b/c they’ve failed the meet their requirements.
III. Chapter 4: Commercial and Non-Commercial Categories of Non-Immigrants (All Under Section 101(a)(15):
A. Generally speaking the rule is that an individual who has nonimmigrant status, must demonstrate that they have foreign status that they have no intention of abandoning – if a person wants to be a visitor and wants to obtain a visitors visa, must show that the have a job, home, family, something that he would want to go back to **Must have a foreign residence that they have no intention of abandoning.
B. Certain nonimmigrant statuses that may also have an avenue through which they can become a resident
C. I-539 asks the govt to allow you to stay in the US longer or to change from nonimmigrant to another type of status (BUT if you are not lawfully in the US you will not be allowed to change status)
D. I-129 – application for an nonimmigrant worker