Immigration Law – Professor Volpp – Fall 2009
General Policy Issues
Should we follow a “hard on the outside, soft on the inside” model?
Should there be a SOL on deportation?
What is it in the law that gave us access to be in the country?
disaggregate immigration from national security paradigm
Who are foreign-born US residents?
1/3 naturalized citizens
1/3 LPRs
1/3 undocumented
Are any immigration controls morally defensible?
What should be the mission of immigration policy? Strategies to achieve it?
What are the consequences of immigration? Of immigration policy?
Which family-based and labor-based priorities are optimal?
Should national origin play a role in the immigrant selection?
How many/which refugees, asylum-seekers?
Criteria for nonimmigrant visas?
Hierarchy of rights:
Citizens
LPR
Nonimmigrant
Undocumented
i. Who is closest to the citizen in terms of legal status defines who has most rights; does this make sense?
ii. What about doing it in other ways, eg:
1. duration of presence
2. strength of ties/stakes
a. relationships
b. home ownership
c. employment
d. children
e. community ties
3. status (supra)
4. At different times, different values trump
Institutions
Who regulates immigration?
Used to be state/town-regulated, not federal
Colonial legislatures passed laws excluding immigrants (paupers, criminals, members of unpopular religious sects)
Federalization began with concern about limiting Asian immigration
Homeland Security (most former INS responsibilities here; issues federal regs, 8 CFR)
Bound by BIA decisions, AG modifications of BIA decisions
Border patrol split into two programs
i. Enforcement
1. CBP—border enforcement (incl. inland ports of entry (airports))
2. ICE—interior enforcement. Investigations, intelligence, detention, some parts of deportation process, registration of noncitizens, etc.
ii. USCIS—service. Applications for immigration benefits throughout the US and a few offices overseas
Criticisms:
i. Too much emphasis on enforcement
ii. Underfunded (everyone agrees)
DOJ (issues federal regs, 8 CFR)
EOIR (Exec office of immig review): Adjudication of removal proceedings. 3 units hq in Falls Church, VA:
i. Office of Chief Immigration Judge (coordinates work of immigration judges throughout US, who preside over removal hearings)
1. Immigration judges often have a history of working for immigration enforcement
2. SF is the most immigrant-friendly court; proceedings are inconsistent across regions
3. if person loses, goes through BIA proceedings, still under DOJ
ii. BIA: appeals from immig judges and USCIS decisions
1. AG can review these decisions
2. Appeals go to federal circuit courts
a. 41% of workload before 9th circuit is immigration cases
3. decisions binding on immig judges & DHS officers
iii. OCAHO (Office of Chief Administrative Hearing Officer): evidentiary hearings re: unauthorized employment of noncitizens, job discrimination
Department of State
i. Issues/denies visas to people outside US (under DHS review)
ii. Educational exchanges
iii. Refugee affairs
Department of Labor
i. Employment-based visas
Dept of Health & Human Services
i. ORR: unaccompanied noncitizen children
ii. Public Health Service: health-based admissibility decisions
Major laws
History of both qualitative and numerical restrictions
1875: convicts, prostitutes barred
1882: Chinese Exclusion Act (repealed 1943); act that bars lunatics, idiots, convicts, ppl likely to be a public charge
1917: literacy test, Asiatic barred zone
1918: allows deportation of subversive aliens w/o time limit
1921: introduction of national quotas (made permanent in 1924)
INA (1952 + amendments)
Title 8 of US code
1980: refugee act
1990: immigration act
1996: Antiterrorism and effective death penalty act (AEDPA) (new crime-related deportation grounds)
1996: IIRIRA
Homeland Security Act (2002) Dissolves INS, codifies AG’s power to direct & regulate EOIR, incl
1.
The Constitution & Immigration
Federal immigration power
Constitution has “plenary” power over immigration; its decisions on a matter are final.
E.g., it can discriminate in ways that would be illegal in domestic law, or restrict speech
Evolution of plenary power doctrine
SCOTUS strikes down individual states’ attempts to exclude aliens
SCOTUS upholds federal exclusion statute under congressional power to regulate international commerce
SCOTUS upholds federal exclusion power based on inherent sovereignty of any nation (not based on Constitution)
SCOTUS adopts plenary power doctrine
SCOTUS extends, reaffirms, but also qualifies plenary power doctrine
Rationales behind plenary power doctrine
Political question (foreign affairs)
Noncitizen is a “guest” not a full member of society (implies privileges, not rights)
Constitutional protections would give citizens unfair advantage bc they already have protections under intl law
Noncitizens lack allegiances needed to merit Con law protection
Inherent sovereignty
Constitution inapplicable outside US (exclusion only)
Deportation of certain noncitizens in
th century), why couldn’t states legislate?
1. policy: need for uniform admission policies
2. Policy: don’t want states to piss off our allies (p 131)
ii. Remaining scope of state power is unclear
iii. Policy: What constitutes immigration regulation vs. other regulation of noncitizens?
Constitutional Rights of Immigrants: Procedural due process
Ekiu v. US (SCOTUS 1892). Japanese woman joining her husband excluded because she may become a public charge. SCOTUS characterizes this as part of foreign relations, war power, naturalization. Rule: Judiciary cannot review decisions to exclude people who have never been admitted to the U.S. No due process for such people.
Note:courts have sometimes extended some con law protections to citizens and even noncitizens living abroad. P. 151.
Fong Yue Ting v.US (SCOTUS 1893). Chinese laborers cannot produce white witness to attest to residence prior to Chinese Exclusion Act. Challenge constitutionality of white witness requirement. Reason for requirement: Chinese will not be reliable witnesses for each other. Also, they do not take the oath seriously. Deportation is not punishment; presence = privilege. Revocable license theory. Under Ekiu, the political branches have power to exclude; dissenters do not like the conflation of exclusion and deportation (people w/in the US are subj to Con law). Rule: Unreviewable deportation, no due process. (later rev’d)
Still good law insofar as holding that international law permits deportation of even lawfully admitted immigrants, and that US lodges that power with fed govt.
Brewer dissent notes that “person” (5th amendment) protects everyone, holds that “person” (14th amendment) should, too. Views deportation as punishment.
i. Due process required even when “punishment” is not at stake. 153-4. (Deprivation of life, liberty, property. “Property” = legitimate claim to property, not just unilateral expectation of it.)
ii. What process is due? Balance 3 Eldridge factors:
1. private interest affected by the action
2. risk of erroneous deprivation of that interest through the procedure used/probable value of additional safeguards
3. Govt interest (eg administrative burdens) in not offering those safeguards
