Immigration Law Outline
University of Connecticut School of Law
HISTORY OF IMMIGRATION
o Economy (demand and supply for jobs)
o Biases/ racism
o Using immigrants as scapegoats for all of U.S. problem
· Federal regulation of immigration started with the end of Civil War in U.S.
· 1830-1860 – first wave of northern Europe immigrants, Germans, but also Irish
· 1875 – page law (first real immigration law that excluded certain immigrants – excluded criminals and prostitutes.
· 1882 – Chinese exclusion act. First effort to limit immigration from China.
· 1921- – quota system introduced.
· After world War II, the borders have opened up.
· 1950s – quota system amended. 150,000 from Eastern hemisphere. Western hemisphere did not have a quota system.
· 1965 – racist quota system is abolished
· There are still quotas.
· Immediate family members (spouses parents and children of U.S. citizens) don’t go through quota system.
· 1950s-1980s – pretty open system of immigration
· 1986 – immigration policy began to change to tighten up.
· 1988 – “aggravated felonies” are created
· 1990s – lottery system is created. Citizens of countries that don’t send a lot of immigrant to U.S. get to participate in a lottery.
· 1996 – Big Year – for anti -immigration laws
· 9/11 and Homeland Security – both meant restrictions on immigration. Greater grounds for deportations.
· 2005 – VoWa – Violence against women act
STRUCUTRE OF THE GOVERNMENT
· 3 major parts – CBO, ICE and USCIC
· Department of Homeland Security
o Customs and Border Protection (CBP)
§ Responsible for border enforcement, screening both, people and cargo
§ Patrols areas between authorized border entry points to prevent unauthorized entry
§ Inspectors at airports
o Immigration and Customs Enforcement (ICE)
§ Responsible for interior enforcement of customs and immigration laws
· Locate individuals who are in U.S. illegally and charge them
§ Immigration investigations seeks to identify and remove non-citizen who are in the US in violation of the law
§ Operate detention centers
§ Also trial attorneys who prosecute deportation cases are under ICE
o US Citizens and Immigrations Services (USCIS)
§ Adjudicating applications for various benefits
· Ex: applying for extension of stay or adjustment of status
· Actual officers have wide discretion in deciding whether an application is complete, accurate, credible and in compliance with all law.
§ Has an administrative appeal unit for appeals related to work visas
§ 4 regional offices
§ Separate asylum cops of officers.
§ EX. When you file for a green card, you go before USCIS
o So, enforcement is disconnected from benefits under DHS. Lack of communication between the two.
· Attorney General Department of Justice
o Immigration Judges (IJ)
§ Immigration Judges primarily hear removal proceedings cases. Also, do bond hearings. They can also grant asylums, or grant a green card.
§ Removal cases starts when there is a chargeable document. Then the judge decides whether someone is removable as charged.
o Board of Immigration Appeals (BIA)
§1003.1 noncitizens found removable have the right to appeal to the Board of Immigration Appeals.
§ Decisions could be reviewed and overturned by the AG.
§ Board decides which if its decisions are precedent for immigration courts
§ 14 members
§ If someone loses with BIA, you could go to federal circuit court of appeals to appeal.
· Department of State
o Bureau of Consular Affairs (Consular offices are stationed worldwide to make visa decisions)
§ visa issuance
· Note visas are issued according to regulations published by the DHS
· Bureau doesn’t have to let you know why the visa application was denied.
· The issuance of visas is considered discretionary and is unlikely to be overturned on appeal on even found to be under the judiciaries jurisdiction
o There is an internal review system where the supervisor will examine a visa app.
o Bureau of Population, Refugees and Migration
§ Deals with giving assistance to refugee camps in first asylum countries
§ Admissions to the US though organized refugee resettlement programs
o Bureau of education and Cultural Affairs
§ Has a host programs designed to enhance the understanding between Americans and other cultures (ex: Fulbright program)
· Department of Labor
o Responsible for issuing labor certification and also involved in work visas
· Department of Health
o Public Health Service – deals with admission grounds related to health (medical exams)
o Office of Refugee Resettlement – provides certain benefits to certain groups
· Courts (2nd Circuit)
o They don’t look at discretionary decisions
CONSTITUTIONAL REQUIREMENTS and IMMIGRATION FOUNDATION CASES
U.S. power to regulate immigration:
· Not expressly granted under Constitution but,
· Federal power to regulate immigration is inherent to the sovereign of the United States (foreign affairs power)
o Ping v. United States – Chinese exclusion act case that deals with who has the power to regulate immigration (president, congress or courts?). Ping was coming back to U.S. when the act banning Chinese immigrants was passed. Ping argued that the law was unconstitutional. Court said the law was valid and federal government has the power the regulate foreign affairs. So, Congress has the power to regulate immigration. But what are its limits?
· Commerce Power
· Naturalization power (congress has power to establish naturalization)
o But that is not used for immigration power anymore.
· War power
o Congress has the power to declare war and stop entry of enemy aliens
o This is still cited and is good law.
· Migration and Importation Clause
ce by the coast guard. Kwong also had a pending naturalization application.
§ The Court majority seemed to feel that aliens in Kwong’s situation should be entitled to due process protections.
o Mezi – defendant lived in U.S. for 25 years. Then went behind the iron curtain in order to visit ill mother for 19 months. When returned, he was treated as seeking admission. Was kept on Ellis Island for months because no one would accept him. The difference with Chew was that Mezi was member of the communist like party and he went behind the iron curtain during Cold War.
§ Court: “Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned. And because the action of the executive officer under such authority is final and conclusive, the Attorney General cannot be compelled to disclose the evidence underlying his determinations in an exclusion case.”
o Landon v. Plasencia — Plasencia, originally from El Salador, was an LPR living in U.S. She then went to Mexico and tried to smuggle some aliens across the border. Plasencia first argued that she should have been put in deportation. That’s because those in deportation do get due process. Court said she was fine to be in exclusion rather than deportation, but she still deserved constitutional due process rights. Court said that more Due Process is owed to an LPR seeking return admission, but did not say exactly how much Due Process is owed. Must apply Matthews v. Eldridge 3-part balancing test:
§ 1) The interests of the individual in retaining their property, and the injury threatened by the official action
Here Plasencia risked her liberty, her job and her life in U.S. as she knew it
2) The risk of error through the procedures used and probable value, if any, of additional or substitute procedural safeguards;
3) The costs and administrative burden of the additional process, and the interests of the government in efficient adjudication
Government interest is always that of efficient administration of the immigration laws at the border.
· TAKEWAY (CLASS): to determine whether due process applies, ask:
o What was D’s status? If LPR, due process probably applies. Has D been admitted to U.S. already?
o If they left, length of time out of the country and what were they doing outside the country
o What family ties are here?
o Reliance on U.S. government to leave and come back (like Chew with coast guard?