Foreign National = FN
I. CONSTITUTIONAL FOUNDATIONS
· Plenary Power & National Sovereignty
o Chinese exclusion laws, barring entry to prostitutes, idiots, lunatics and persons likely to become a public charge (i.e. the poor). These laws were the first immigration laws subject to judicial review.
o Chinese Exclusion Case: The first case where the Court held that the federal power to exclude non-citizens is an incident of national sovereignty. The Court reasoned that the national government has the inherent authority to protection the national public interest. The Court held that the inherent sovereign power to regulate immigration clearly resides in the federal government.
· The power to regulate immigration is essential for the following reasons:
ú Nation’s self-preservation;
§ To be a sovereign nation, a people must have control over its territory. Without such control, the country would be unable to govern itself and its borders effectively, and as a result, would be subject to the sovereignty of other nations.
ú National self-definition; and
§ Citizens of the nation formulate the nation’s identity.
ú Power over foreign affairs.
§ Constitutionally “implied power” of the executive over foreign affairs, which authorizes federal control over immigration.
· Plenary Congressional Power
o The plenary and unqualified power of the federal government to regulate immigration, naturalization and foreign policy belongs to Congress.
o Congress’ power comes from:
· Commerce Clause
· Naturalization Power
· War Power
· Foreign Affairs power
· Inherent Power
o Fong Yue Ting Case:
· Facts: Chinese immigrants sought petitioned for certificates of residence. They could not satisfy residence qualifications, which required them to present a white witnesses to attest that they had been in the country since 1892.
· Holding: The Court held that the power to expel or deport (now “remove”) non-citizens who take no steps to becoming naturalized – just as it is a fundamental right for them to exclude and deny entrance into the U.S. If you are permitted to remain in the U.S., then you are entitled to the safeguards of the Constitution, but you still remain subject to Congress’ right to expulsion for public interest matters.
ú Court has limited role in determining whether procedural requirements have been complied with by Congress. Court has no role to inquire into substantive decisions about who gets in and who doesn’t.
ú Court notes that banishment is not punishment.
o Wong Wing case: The Court struck down a Congressional statute that provided that any Chinese citizen judged to be in the U.S. illegally shall be imprisoned at hard labor and then removed from the U.S. Non-citizens charged in this category were not afforded a trial by jury. The Court held that Congress must provide a judicial trial to establish the guilt of the accused.
· Wing invalidated a federal statute, unlike Yick Wo, and one that related to immigration powers, so it might be taken to be a stronger articulation of the notion that aliens are members of the constitutional community, apart from the right to enter and remain in the country.
· State Regulations
o Doctrine of Preemption
· Restricts state attempts to regulate concurrently in a field already occupied by federal statute.
o State and Local Enforcement of Federal Immigration Laws
· §287(g) allows the federal government to give authority to state and local enforcement officials to carry out specified immigration law enforcement functions, under an agreement that provides for training and federal supervision of the state and local officers involved.
· §103(a)(10) allows the federal government to authorize state and local enforcement officers to perform the duties of federal immigration officers or employees, if there is an imminent or actual influx of foreign nationals which presents urgent circumstances that require immediate Federal response.
· Gonzalez v. City of Peoria: The Court found that the federal power over immigration does not necessarily preclude local enforcement of some provisions of the INA.
· Judicial Review of Immigration Laws
o Fiallo v. Bell: Court declined to expand scope of judicial review. [see pp. 505]
· Fiallo’s plenary power doctrine approach requires deference to congressional choice: immigration is how we define ourselves (see Michael Walzer) and we define ourselves through our regulation of marriage, so we should be allowed to keep homosexual marriages ou.
· Question arises of how to put Fiallo (which requires no judicial inquiry into substantive regulation of immigration by congress) together with something like Lawrence (and the whole Carolene Products framework, for that matter), which clearly requires that we weigh the gov’ts interests against individual claims about EP.
ú One way you could answer this is by saying that when you take the unfettered deference of Fiallo and put it together with the tier scrutiny regime you might just drop the level of scrutiny down a notch (say, from intermediate to rational basis, or from strict to intermediate).
ú Another thing you could do is to point to footnote 5 in Fiallo where the court says that it is not giving congress completely unfettered discretion and that it will reserve limited judicial responsibility etc. for congress’s line-drawing:
§ here it seems that even the Fiallo court is reserving its right to step in if it finds that congress is discriminating along racial or other equally offensive and impermissible lines.
§ A third and final approach would be to just point to Nguyen, which seems not to even make mention of the plenary power doctrine in that case and proceeds right on to applying t
’s application of intermediate scrutiny challenge this.
ú Douglas Dissent: Aliens have rights via their ties to us. Power to deport is implied (from naturalization) so it shouldn’t trump express rights of “person” of life and liberty and property. In case of national emergency where such drastic measures are really needed, govt must prove and demonstrate it.
II: IMMIGRANT PREFERENCE CATEGORIES
· Family-Sponsored Categories [§201(b)(2)(A); §203(a)]
o Immediate Relatives [§203(b)(2)(A)]
§ Spouses, unmarried children under 21 and parents of U.S. Citizens.
· No quota – no waiting.
· But reduces the annual qupta for other family-sponsored immigration categories. [§203(c)].
o Preference Allocation based on Family [§203(a)]
§ 1st Preference: Unmarried sons and daughters of U.S. Citizens.
§ 2nd Preference: Spouses & unmarried sons and daughters of LPRs.
· 2-A: Spouses and minor children;
· 2-B: Adult children – unmarried.
§ 3rd Preference: Married sons and daughters of U.S. Citizens.
§ 4th Preference: Brothers and sisters of U.S. Citizens.
o Derivative Adjustment [§203(d)]
§ Spouses and unmarried minor children are admitted in the same preference category with the same priority date as the principal FN.
· “After-acquired” spouses and children of LPR must use 2nd preference – not immediate relative.
§ If the petitioner naturalizes, the visa petition automatically converts to the newly appropriate category and retains the old priority date.
· Employment-Based Categories [§203(b)]
o Preference Categories
§ EB1: Extraordinary Ability, Outstanding professors and multinational executives.
§ EB2: Advanced degrees or Bachelor’s +5 years progressive experience and National Interest Waivers.
§ EB3: Bachelor’s degree or two years skilled experience.
§ EB4: Special Immigrants as defined in §101(a)(27)(C)-(J)
· Religious workers, former long-term employees of U.S. government or international organizations.
§ EB5: Investors
· Diversity Lottery [§203(c)]
o Grants visas by lottery to countries that send fewer numbers of immigrants.
o Ineligible countries: Brazil, Canada, China (mainland), Columbia, Dom. Republic, El Salvador, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, Peru, Poland, Russia, S Korea, UK (minus N Ireland), Vietnam.