Boswell- Immigration Law- Spring 2012
Themes/ Fundamental Points
I. A person will not be allowed to immigrate if they are going to be a burden
A. Typically, it will be harder for people who do not have money to immigrate and many forms of residency preclude people with prison records
II. Standing in line is a standard activity in the immigration process
A. When INS grants asylum, they’re sending a message that it’s okay to cut in line, but there has to be a good reason
III. US immigration law has a policy of uniting family members
A. Spouses, parents or children of people who have been admitted into the US will usually be granted more leniency in their applications
IV. The laws punish people who lie
A. The worst type of fraud is fraud committed against a US official
B. For example, see Phinpathya: D lied about being the wife of a person who had a valid student visa so she could return to the country. Because she obtained a visa on false pretenses, the agency said that she was a person of bad moral character. This hurt her request for suspension of deportation
V. Unless the person is born or naturalized in the US, no person has a right to be here
VI. Asylum law and TPS are the only aspect of immigration law that follows the creed “give us your tired, your hungry, and your weak.’
A. Asylum is intended to protect the weak
B. TPS doesn’t always follow this because it is merely temporary
VII. Inadmissibility grounds for long term permanent residents (LPRs) is based on the notion, that there are no laws for us to throw you out on, but if you decide to leave to leave we have laws that won’t let you back in
VIII. NOTE: Be careful in applying cases! Facts/ situation matter.
A. If there are distinguishing factors, make sure to note them.
The Legislative Process and Enactment of a Statute
I. Administrative Procedure Act
A. Congress could tame the Executive Branch by requiring that certain procedures be followed when regulations are to be enacted
B. Each agency has a code of federal regulations
C. When an agency issues a formal decision, it must follow the ‘Notice and Comment’ procedure
1. Issue notice of the regulation in the federal register
2. Comment period, during which the public can comment on the regulation
3. Agency then responds to the serious comments
a. Either extends the comment period, modifies the regulation or promulgates the registration
b. It then has the force of law and doesn’t fall under Mead
D. An agency’s rule must match up with the authority that Congress has given them.
Statutory Interpretation
I. Introduction
A. Administrative agencies interpret statutes and write legislation
B. How do courts communicate with the legislature?
1. They write an opinion/ judgment
2. Case and controversy
a. The court puts its interpretation through the controversy it’s presented with
C. Has Congress spoken directly to the precise question?
1. If not, the reviewing court may not impose its own construction
a. The court must ask if the agency’s interpretation is based on a permissible construction of the statute
D. Courts will strain to interpret a statute so that it is not unconstitutional
E. In analyzing whether one interpretation will be given over another, the court will look to the legislative history
II. Interpreting a statute
A. FIRST STEP: Establish that the court has jurisdiction.
1. This can either be a major issue or something to raise and dismiss
B. Look to the plain meaning
1. INS v Phinpathya
a. Applies ONLY to statutes!
2. Exception:
a. Goes against legislative intent
b. Produces extreme or ridiculous results
3. While courts will normally interpret a statute by its plain meaning, if in applying that language, a court would be divested of JDX, such an interpretation will only be followed where the intent is explicit (Gonzalez)
C. Look at legislative history
D. If the above two fail, apply the cannons of construction
1. Spirit of the statute
a. What did Congress intent to achieve by enacting the intent?
2. Statutes in derogation of the common law are to be read narrowly
a. Interpret the statute narrowly if it looks like it will contradict case law/common law
b. Provides stability, maintains stare decisis
3. Remedial statutes are to be read broadly
a. These are statutes that are designed to help people out
4. Criminal statutes are to be read narrowly
a. We don’t deal with criminal statutes in this class
b. Prevents due process problems
5. Statutes should avoid constitutional questions
a. Courts really don’t want to deal with constitutional questions
6. Statutes relating to the same subject matter are to be construed together
a. The goal is to make sure statutes flow in the same direction
7. The general language of a statute is limited by specific phrases that have proceeded the general language
a. The specific definitions build on each other
8. Explicit exceptions are deemed exclusive
a. Just look/ apply the exceptions in that part; don’t put it in the context of the whole statute
9. Words and phrases that have received judicial construction before enactment are to be understood according to that construction
a. If there is a conflict, defer to the judicial interpretation of the judicial view had been established before the passage of the statute
10. A statute should be construed such that none of its terms are redundant
a. Don’t interpret a term in such a way that the interpretation makes language in the s
in its consideration, validity of its reasoning, it consistency with earlier and later pronouncements, and all these factors which give it power to persuade, if lacking power to control
i. Decisions are persuasive, but not necessarily binding
b. Applied to informal decisions
i. Directives, letters, memos, etc.
· Usually not verbal and not published in any specific way. May not appear in any place where the public will have access to it
· Can try to access it by exercising rights endowed by the Freedom of Information Act (FOIA)
o Some agencies have been trying to be more transparent, may
ii. Field Manuals
· Tells the officer how to handle case. They look at these more often than they look at the CFR because that’s how their bosses judge them
· Also available through FOIA, sometimes on the agency’s website
c. If agency is using an informal decision as a defense to a challenge, the court will ask the agency for persuasion. Looks at the informal decisions for their persuasive value
2. Chevron Deference (see Chevron)
a. Applies to formal decisions
i. Regulations: very formalized, tells you what the agency’s position is and binds them
· They can’t go outside the regulations
ii. Decisions made by Board of Immigration Appeals (BIA)
· Looks over immigration judge decisions, also interpret the statute
· Have limited jurisdiction
o They hear cases in removal proceedings
· They have broader JDX, review decisions by immigration judges
· Adjudication by immigration judges are not the same, but the decisions from the BIA are the same as formal regulations
o Because the board reviews the immigration judges’ decisions. The immigration judges interpret the statute but ultimately the BIA issues decisions that represent the stance of the agency
b. Given if the decision is not ultra vires, it’s not in direct violation of the statute and is made with the proper procedure, the court will give it Chevron deference
i. However, there are challenges to be made to regulations
· Regulations can be ultra vires (no statutory authority for the regulation), in violation of the statute, or an over interpretation of the statute
· Agency that doesn’t follow the proper procedures of the regulation
