· Source of immigration law
o The constitution
o Immigration and Nationality Act
§ Title 8 of the code of fed. regs.
o Regulations passed by dept. of justice and dept. of homeland security
o Case law
o ‘soft law’, memos issued by dept. of homeland security and other branches of gov.
· Alien – anyone not a US citizen
· Immigrant – anyone coming to live here permanently
· A quick history
o 1875 – Act excluded convicts and prostitutes
§ Note before this time the individual states enacted laws that restricted immigration
o 1882 – this act excluded idiots, lunatics, or those likely to become a public charge
o 1891 – excluded low some and contagious diseases and individuals who committed crimes involving moral turpitude
o 1907 – almost 3 million immigrated to the US
o 1952 – this is our current immigration act but with amendments
o 1965 – national origins eliminated and replaced with country limits
§ However Cubans still have a special act called the dry feet rule
§ There is also a special temporary protected status. Individuals under this rule come from particular countries that are experiencing problems like war or natural disasters. These individuals may stay in the country while their country is on the list. However, most countries tend to stay on the list. (only one country has been removed)
o 1986 – When undocumented workers became a concern of Congress. The Immigration Reform and Control Act gave sanctions to employers and gave amnesty to people who had been here for a long time.
o 1986 – marriage fraud amendments
o 1986 – anti drug act increased the crimes for which a person could be deported
o 1988 –the category of aggravated felonies was created
o 1990 – Extended family and employment visas. Also created diversity visas
§ Diversity visas – is like the lottery. Every year people from designated countries (those countries that tend to send very few immigrants) can enter online for a lottery. To enter you must have your bachelors or equivalent work experience. If you win you and your family get to come.
o 1996 – Antiterrorism and ethnic death penalty act (was a reaction to the Ohio city bombing.)
o 1996 – Illegal immigration and reform act and the immigration responsibility act. These streamlined the deportation and put deadlines on asylum seekers. It also created expedited deportation.
o The Patriot Act had many immigration laws
o 2002 – Homeland security act changed the structure of immigration
o 2005 – the real ID act attempted to mandate the use of national ID
· 3 main themes
o It is the inheritable right of every nation to deport noncitizens from its borders
o Living in the US is a privilege not a right
o Deportation is not a punishment (therefore less DP is owed)
II. CONGRESS’ IMMIGRATION POWER
· No language specifically grants Congress the power to control immigration. Possible sources though include
o Commerce power – congress has used this power to override state action that imposed a tax on immigrants and pass federal action that did the same.
o The naturalization power – does the power to naturalized give the fed. the power to decide who can enter the country
o The war power – definitely gives congress the power to prevent enemy combatants from entering but does it extend beyond this.
o The migration and importation clause – this clause prohibited congress from prohibiting migration of individuals into state prior to 1808. Does this explicit denial of power before 1808 mean it is within Congress’ power after? (note the primary motivation was slavery)
o The foreign affairs power
rs that pose a threat to the property or safety of others
o –(iv) excludes drug abusers and addicts
o 212(g) waiver
§ Waiver is applicable to (i) when the alien is the spouse or child of a US citizen or LPR; has a son or daughter who is either a US citizen or LPR or is a VAWA petitioner and AG sets forth certain terms and conditions and perhaps a bond
§ Waiver is applicable to (ii) when the alien subsequently receives the vaccination, when a medical officer certifies receiving the vaccination would not be medically appropriate, or the AG publishes regs. That provide a waiver for religious or moral groups
§ Waiver is applicable to (iii) by allowing the alien to post a bond and following other terms and conditions set forth by the AG
· §212(a)(2) Criminal Related Grounds
o -(A)(i)(I) an alien who was convicted of or committed a crime involving moral turpitude or an attempt or conspiracy to commit such a crime
§ Crimes involving moral turpitude
· The exact definition of CIMT is unclear
o Serious crimes against person or property are deemed to involve moral turpitude
§ Factors to consider though include whether a person was hurt or threatened, whether it was morally wrong, and whether the was an intent to defraud or steel
o Ex: Murder, voluntary manslaughter, rape, kidnapping, arson, burglary, embezzlement…
§ In deciding whether a crime involves moral turpitude look at the statutory language and not the characteristics of the actual crime