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Immigration Law
SUNY Buffalo Law School
Miller, Teresa A.

Immigration Law
Fall 2006


History of Immigration Law pgs 145-169

Treaty of Paris in 1783- U.S. was recognized as an independent nation.
1790- Congress passed a series of acts regulating naturalization
1795- A new naturalization act imposed more stringent requirements including a five-year residency requirement for citizenship and the renunciation of not only allegiances but titles of nobility.
1798- Law passed that raised the residency requirement to 14 years.
Alien Enemies Act and Alien Friends Act (1798)- gave the president powers to deport any alien whom he considered dangerous to the welfare of the nation.
1802- Naturalization Act re-established provisions of the 1795 Act- 5 year residency requirement.
1819- Law requiring ship captains to supply list of passengers’ information.
1840s- Irish and German Catholics started to immigrate.
“Order of the Star-Spangled Banner” and “Know-Nothing Party”- allegiance to save the U.S. from alleged dangers for immigration.
1890s- Immigrants from new areas started to arrive- Irish and Italian
1882- Chinese Exclusion Act (when railroad system was completed)- also excluded lunatics, idiots, convicts and those liable to become a public charge
1875- Act excluded prostitutes and alien convicts
1891- Bill provided for medical inspection of all arrivals
1906- Naturalization Act of 1906- the courts retained the ultimate authority to grant or deny citizenship. English language proficiency was made a basis of citizenship. Official certificate of lawful admission, two citizen witnesses.
1909- Dillingham Commission began its work to prove that immigrants were “inferior.”
1911- Dillingham Commission published the work saying that immigrants were inferior.
1917- After U.S. entered WWI, Congress enacted legislation that made literacy a requirement for entry. It also codified the list of aliens to be excluded, and banned most immigration from Asia.
1915- Americanization Movement- making immigrants more “American”
1921- National origin quotas- establishing a ceiling on European immigration
National Origins Act (1924)- provided an annual limit of 150,000 Europeans and complete exclusion of Japanese. It developed quotas based on the contribution of each nationality to the overall U.S. population rather than on the foreign-born population – using the 1890 census instead of the 1910 (thereby excluding the new immigrants).
1930s- Great Depression- more people leaving than entering the U.S.
1939- Cruelest action in U.S. immigration- defeated bill to rescue 20,000 children from Nazi Germany because it would “surpass the German quota.”
Bracero Program- U.S. and Mexico agreement designed to fill the wartime employment needs of the U.S. (WWII).
War Brides Act (1946)- permitted wives, husbands and children of members of the armed forces to immigrate to the U.S.
Refugee Fair Share Law (1960)- temporary program for admission of WWII refugees. It gave the Attorney General a mandate to use his parole authority to admit eligible refugee- escapees.
Immigration and Nationality Act(1952)- consolidated previous immigration laws into one statute. It preserved the national quota system. Established a system of preferences for skilled worker and the relatives of U.S. citizens and permanent aliens. It repealed Japanese exclusion. Racial qualifications for naturalization were completely eliminated.
Immigration and Nationality Act Amendments of 1965- abolished national origins formula. Preference would be given to reuniting families and to bringing those who had certain desirable or needed abilities.
1968- Congress amended the 1965 Amendments to put a ceiling on immigration from Western Hemisphere- closing the “Good Neighbor” policy- as prejudice against South Americans grew.
The Refugee Act of 1980- designed to correct the deficiencies of U.S. refugee policy by providing ongoing mechanisms for the admission and aid of refugees (instead of just letting the AG decide)- 100% reimbursement to States that aided refugees during the first 36 months.
Immigration Reform and Control Act (1986)- attack on undocumented immigration. Penalties on employers that hired illegals, etc.
Immigration Marriage Fraud Amendments (1986)- designed to curtail sham marriages.
Immigration Act of 1990- expanded employment-based immigration, additional visa numbers for some family-based categories, etc. It transferred authority over naturalization from the judiciary to the Attorney General.

Antiterrorism and Effective Death Penalty Act of 1996, Illegal Immigration Reform and Immigration Responsibility Act of 1996, Personal Responsibility and Work Opportunity Reconciliation Act (1996)

No legislation since 1996 has changed the basic structure of the Immigration and Nationality Act.

The Concept of Citizenship & the Constitution pgs. 1-34

Immigration and Naturalization Act- the primary federal immigration statute, which is codified in Title 8 of the US Code.
Department of Homeland Security- primary federal agency charged with administering and enforcing the INA (with lesser roles for the Department of Justice and the Department of State)

Two ways we can represent membership:

Chronological (or horizontal): process begins by getting visa, entering US, establishing residence and then getting citizenship.
Cocentric circles: Citizens in the innermost circle and nonresidents filling out the outer.

Citizenship: internally inclusive and externally exclusive. Only citizens have an unqualified right to enter (and remain in) the territory of a state. Citizenship is an instrument and object of closure.

The territorial state has a basic interest in being able to control the flow of persons across its borders- it does not expel citizens because of the modern state-system- a person cannot be expelled fro one territory without being expelled into another.
Ascription- Every state ascribes its citizenship to certain persons at birth (Administrative convenience). Rules of ascription vary among states, but most use birthplace or parental citizenship or both as indicator s or membership. (Germany and Switzerland do citizenship on the basis of descent alone.)

The alternative- a system of voluntary or contractual citizenship would leave individuals unassigned until their actual social attachments and personal preferences became clear.

Naturalization: Persons to whom the citizenship of a state is not ascribed at birth may be able to acquire it later in life through naturalization.

At one pole, naturalization is a purely discretionary decision of the state- that need not be excused and can be very difficult (i.e. Switzerland and Germany.)
At the other pole, all candidates meeting certain clearly specified conditions are naturalized- naturalization would be expected (i.e. U.S. and Canada are more towards the end of this pole).

Closure against noncitizens occurs in two stages:

Free access to the territory and to certain benefits and activities within it is reserved to citizens; and
Access to citizenship is reserved to persons meeting certain qualifying conditions.

Loss of citizenship
o Voluntarily relinquishment – voluntarily commit the following acts with the intent to revoke your citizenship:
· Obtaining naturalization in a foreign state after the age of 18;
· Serving in the military in a foreign country;
· Make a formal renunciation of citizenship before a consular/ambassador;
· Commit treason against the U.S.
· The Attorney General has to start action against you to denaturalize you.
o Denaturalization
· Lose through a state court proceeding;
· Criminal conviction against you for fraudulently obtaining naturalization;
· Administrative process initiated by Attorney General began to correct or amend naturalization;
· If naturalization was granted f

nship is viewed with disfavor. Dual citizenship happens in four scenarios:

Birth in the U.S. to immigrant parents
Birth outside the U.S. to one parent who is a U.S. citizen and another who is a foreigner
Naturalization with a renunciation requirement, but renunciation not recognized by country of origin
Naturalization, loss of citizenship, and resumption of citizenship

The existence of plural citizenships is a function of the unwillingness of the international community to establish international norms on the acquisition and maintenance of citizenship.
States have ways to limit plural citizenship:

Naturalization- requiring applicants to renounce prior allegiances
Jus soli and jus sanguinis- require that a person elect one citizenship at the at time of majority
Naturalization- country of origin may deem it expatriating and country granting naturalization may require renunciation of prior citizenship- documentary proof.

Jus Sanguinis and Gender Discrimination pgs. 34-69

Until 1934, statutory law allowed the transmission of citizenship jure sanguinis by U.S. citizen fathers but not mothers. – this change was not retroactive
Wauchope v. U.S. Dep’t of State: lady born in 1911 to American mother and Canadian father sued and won- court determined that its holding should apply retroactively as gender discrimination violated modern equal protection principles.
The jus sanguinis rules also include a provision that disadvantages men. Section 309 extends citizenship at birth to a child born outside the U.S and out of wedlock to a U.S. citizen mother (provided the mother has a some point been physically in the U.S. for a continuous period of 1 year); but a child born abroad and out of wedlock to a U.S. citizen father attains citizenship at birth only if a number of additional conditions are met

Nguyen v. INS

INA § 309 imposes different requirement for a child’s acquisition of citizenship (out of wedlock) depending whether the American parent is the father or the mother. The issue is whether the statutory distinction is consistent with the equal protection guarantee embedded in the Due Process Clause of the Fifth Amendment.
Nguyen was born in Vietnam to American father and Vietnamese mother out of wedlock. He came to live with his father in the U.S. when he was 6 yrs old- he became a lawful permanent resident.
After pleading guilty to two counts of sexual assault of a child, INS decided to deport Nguyen. He then attempted to establish his American citizenship
For a gender-based classification to withstand equal protection scrutiny, I must be established “at least that the challenged classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.”
Unlike the mother, the unmarried father cannot control where the child will be born.
Citizen fathers and/or their children have 18 years to satisfy the requirements of 309(a)(4)
309(a)(4) requires 3 affirmative steps if the citizen parent is the father: