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Immigration Law
University of California, Hastings School of Law
Boswell, Richard A.

Immigration Outline



Treaties: law of the land. Same level as statutes. If there is a conflict between statutes and treaties, then it’s whatever happened more recently (last in time rule).
Statute: Immigration and Nationality Act (INA) – McCarin Walter Act of 1952 as amended
Regulation: Code of Federal Regulations (CFR) – every time you change a law and add on an agency, you feed the lawyer but hurt the people.

Department of Homeland Security – responsible for enforcement of immigration laws from the border and within US
Department of Justice- adjudicatory arm on immigration questions
Dept of State – Consulate Offices – to work overseas and decide if someone gets a visa
Dept of Labor- part of the immigration control is to protect US workers, so the Dept of Labor is involved. Has to determine the person coming into US will not take away a job from someone in US. (known as the labor certification process)
Department of Health and Human Services – to protect us from communicable diseases from other nations (ex. SARS), scientist who knows what’s dangerous and what’s not (physically, or psychologically)

Policy Instructions/Manuals

OI’s – operating instructions
FAM – foreign affairs manual
TAG – technical assistance guide – for the dept of labor

Decisional Law

Supreme Court
US Circuit Courts – limited jurisdiction: only to applicants there
US District Courts – limited jurisdiction: only to applicants there
Agency Decisions (DHS) – not reviewable.

In administrative law, look at the administrative record – the only thing to look at is what the agency had before it. When the court is looking at this case, only look to see if there was abusive discretion by the immigration judge to deny the motion to reopen. NOT about due process

Very hard burden to prove – should have made all the types of relief available to him at the beginning – hearing before the immigration judge.
Look at: Is court more willing to look at it as a matter of discretion, or as a matter of law? Courts don’t want to be constantly overturning agency’s determination.

Bureau of Citizenship & Immigration Services (BCIS) Director
Bureau of Immigration and Customs Enforcement (BICE)
Bureau of Customs & Border Protection (BCBP) – border control

BCIS, BICE Local Offices
Lower Level Employees

Attorney General (DOJ – Executive Office of Immigration Review): first chance a person usually has contact with a lawyer

BIA – Board of Immigration Appeals – national application.
Immigration Judge: as a general (theoretical) rule, to deport someone, government cannot just do that. The person has to see an immigration judge.

Department of State (DOS)

Secretary of State
Consular Officers –
Administrative Law Judges (on certain passport issues)

Passport is the only thing that tells you you are an American citizen – other documents mean nothing.

Department of Labor (DOL)

Labor Certification Appeal Board – to decide why a labor application has been denied
Regional Certifying Officers –
State Employment Certification Offices – starts here

Nationality vs. citizenship:

NATIONALITY – identity, ethnicity, language and culture. Certain duties and rights.
Citizenship – more of a construct of how nations deal with one another: who can come in, who can’t, who’s a citizen, who’s not. Under Int’l law, each country is responsible for their own citizens. Therefore only states can bring suits under int’l law. Relevant in protection, travel, and will not be denied admission to that country.


Outside US – overseas
American counsul – apply for visa (some bypass the process here)

Visa: travel document that allows them to come into the USA, can only be issued by a US counsel. Can be many forms:

Nonimmigrant –no intention of staying for a long time
Immigrant – want to stay here for longer because of family, job
Refugee – fit within a certain category of people, interview and given refugee travel document

Travel, Arrive at USA Border – apply to come in (or snuck across border)

Inspection—to be qualified for the visa that was given to you, and allow you to come in (or turn you back)

Those who snuck across – did not go through inspection. However, as long as they are IN the US – have some 14th amendment rights.

tates for not paying you. There are also other federal remedies.

Statutes under Employment Discrimination: Where employers are found to violate law, cannot limit the information to be used in removal for the employee.

Fair Labor Standards Act (FLSA) – focus on the quality of life: protect even if you are not union employees. Protected even without employment authorization

In FLSA proceedings, not required to divulge alienage –it’s not relevant to the question of whether there was a violation of the statute.
Required work at detention facility not violation – re: immigration detention facility case where someone was getting paid $1 a day for their work. Court ruled that in detention facility, it doesn’t apply. In other respects it does.

National Labor Relations Act – concern with organizing: protects organized union rights, voting, collective bargaining – give mechanism for working and voting.

Undocumented persons are considered “workers” – unfair labor practice to scare undocumented workers, so use this so they are eligible to sign union records
Immigration has “strike regulations” – regulations that prohibit certain immigration activities where there is a strike going on because of the intimidation and influence of the organization effort.
Not entitled to back pay but may collect payment up to dismissal from work – a worker may be paid for the work that they did, up until when they were removed. But cannot collect for anything after the time that they were removed from the job if they are undocumented.
No protection from removal proceedings –info obtained and turned over to immigration services for removal services cannot be quashed. Important to exclusionary rule –

Title VII

Protection from national origin discrimination. Remain protected even for undocumented persons and may recover back pay as long as in the US