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Immigration Law
SUNY Buffalo Law School
Su, Rick

Fall 2014
       I.            An Overview of U.S. Immigration: History and Theories
A.   Four major waves of immigration
         1.     Pre-Revolutionary Period (1500s-1800)
a.     Mainly English speaking protestants in Middle America
b.    Mainly Spanish/Portuguese in the South
c.     Mainly French in Canada
d.    Mainly German/Dutch in NY/PA
e.     There was very few regulations in place as this immigration was happening
f.      Most of pre-Revolutionary immigration law existed on the emigration side, whether or not you could leave your country. People were “subjects,” not “citizens.”
g.     Immigration law was very local. Question was not, “can I live in America,” but rather “can I live in this town?”
         2.     Post Revolutionary (1820-60)
a.     German/Irish Catholics start coming larger droves because of economic reasons in Europe
b.    Entered country that was primarily protestant, which did not believe “new immigrants” could assimilate into US society
c.     US thinking was obedience to no one, where as Catholics were subjects of the pope
d.    Thought was Irish were unskilled and uneducated therefore detrimental to society
e.     Germans couldn’t speak or read English, big obstacle to assimilation
f.      Cities started to form, beginnings of the industrial revolution. Irish would carve outwards in the cities, and begin creating mini-societies (neighborhoods). Germans would do the same, but more so in ruraler areas. Very insular behavior
g.     Immigration became one of the hottest issues of the day, very politicized (Know-Nothing Party, nativism). Was intertwined with temperance movement.
h.    Wanted to remove immigrants from political process by regulating naturalization
i.       No federal regulation of immigration, but a proliferation of states regulation
         3.     Post Civil War (1890-1920)
a.     Chinese came first, on the West Coast
b.    Easter Europeans and Italians on the East Coast, as well as Jews
c.     These new immigrants were now thought of as the whipping boys. Thought of as criminals, inclined to criminal behavior. Though of as biologically and culturally inferior
d.    They were less desirable than the native-born or earlier immigrant groups
e.     Chines were outright barred from entering eventually
f.      Literary tests were implemented after nearly 30 years of debating. Had to, at first, read and write in your native tongue as a prerequisite
g.     National Origins Act (1921, President Harding)
i.      Established a ceiling on European immigration and limited the number of immigrants of each nationality to 3% of the number of foreign born persons of that nationality resident in the US at the time of the 1890 census
ii.    Didn’t want the new immigrants, wanted to socially engineer in favor of the older immigrant groups
         4.     Modern Period (1965-Present)
a.     Civil Rights Era, Cold War thinking
b.    Heaving immigration quotas was recognized as very bad both at home and abroad
c.     Asians, Africans lots of South/Central Americans
d.    Until now, there was no quota from Western Hemisphere
e.     Drastic liberalization for Asians/Africans, first time restrictions were placed on the Americas
f.      20k from each country in Eastern Hemisphere max, and a total max of 160k
g.     120k from Western Hemisphere, no specific country limits
    II.            The Sources of Federal Immigration Powers
A.    Does Congress have the power to regulate immigration?
         1.     Where is that power found in the constitution?
a.     Enumerated Powers
i.      Commerce power – Art. I, § 8, cl. 3: Transportation of persons is ‘commerce’
ii.    The War Power – Art. I, § 8, cl. 11: Authority to stop enemeny aliens, and to expel them, consistently upheld by the courts
iii.  Naturalization Power – Art. I, § 8, cl. 4: Close to immigration but distinguished.
·         Physical entry is to territory, as citizenship is to political community
iv.  Migration and Importation – Art. I, §, cl. 1:
·         More thought of as allowing Slave Trade until 1808
·         Prohibited migration/importation meddling until 1808
v.    Foreign Affairs Power
·         No explicit mention of this power in the Constitution
·         Must be found “through bold extrapolation from the Constitution as a whole.”
         2.     The Foundation Cases
a.     Chae Chan Ping v. US (Field, J. 1889)
i.      Landmark case outlines federal government as the sole power to regulate immigration founded in inherent sovereignty not necessarily in a constitutional provision
ii.    Immigration power is a “penumbra”
b.    Fong Yue Ting v. US (Gray, J. 1893)
i.      Due Process only applies when criminality is involved, not on the civil side of immigration.
ii.    Additionally, legislative/executive can regulate immigration, not the courts
iii.  The constitution doesn’t apply to non-

  Any decision made by EOIR is technically the decision of the Attorney General
iii.  Levels of review within the Executive Office of Immigration Review
·         Attorney General (optional) (supreme)
o   Before, after and during a review process, the Attorney General can jump in
o   Rare, but when AG wants to establish a new rule, the AG will snatch it and write the decision, establishing new precedent
o   Precedent is not statute, but rather only AG/DOJ policy
·         Board of immigration Appeals (BIA) (appellate)
o   Operates like an appellate court
o   If an immigrant or ICE don’t agree with IJ, then BIA picks it up
o   No fact finding, just review
·         Immigration Judges (like the district court in federal system)
o   The cases whenever an appeal is made in the DHS realm of the immigration process
o   Completely overworked, extension of AG
o   Fact finding
iv.  Further Recourse is available in the Court of Appeals
·         The basis of jurisdiction is Habeas Corpus
·         CoA only reviews if there is a violation of a Constitutional provision
·         “Did DOJ violate Constitution in handling of this case?”
v.    Chevron (1984)
·         Supreme Court case that held if there are multiple reasonable decisions on a statute, then the court must defer to the reasonable decision of the agency applied the statute
·         So AG and BIA decisions, if reasonable, rule the roost above CoA decisions
vi.  Brand X (2005)
·         If a statute has 2 interpretations, then agency’s interpretation wins
·         But if the agency has not made a decision yet, then the CoA makes a de novo decision
·         But then, if an agency then makes a decision on a statute, gives power to agencies to overrule CoA
vii.These cases have opened a new discussion of the importance of the role of CoA in the immigration appeal process
viii.   When would the DOJ have to listen to CoA?
·         CoA has one weapon: “unreasonable agency decisions”