Select Page

Immigration Law
University of Connecticut School of Law
Redman, Renee C.

Immigration Redman
Fall 2009
 
Citizenship and Nationality                                                                            
August 26       Text pp. 1-30; 36-55; 146-56
 
Section A: The Concept of Citizenship
Rogers Brubaker, Citizenship as Social Closure
–          modern state is a membership organization
–          naturalization restricted to the qualified
–          citizenship is both instrument and object of closure
–          modern state is not only territorial, but also nation-state
–          viewpoint: exclusion of those politically unreliable
–          outsiders excluded because they are not acknowledged as insiders
Access to Citizenship
–          axiomatic for people to belong to some state
–          although globally inclusive, citizenship is locally exclusive
–          why is citizenship ascribed at birth? Administrative convenience
–          Extremes: US and Canada versus Switzerland (exclusive descent based)
–          Naturalization: may be open or expected of an individual
Notes and Questions
–          Theme: relationship of membership to citizenship
 
Section B. Citizenship and the Constitution
Citizenship – the right to have rights (Chief Justice Warren)
 
Dred Scott – an attempt to define citizenship of those born in sovereign America
 
What rights accompany American Citizenship?
 
Diverging points: citizenship extremely important (see 14th amendment) versus citizenship of minimal importance (citizenship is a legal construct – can be taken away at any time – Alex Bickel, p. 12)
 
Notes and Questions
–          use Brubaker framework – what are the underlying principles for various situations? (object or instrument of closure)
o   children of undocumented workers are citizens
o   new law authorizing only citizens to work as screeners
 
Section C. Acquisition of Nationality by Birth
 
Two Basic Acquisition of Nationality at Birth:
–          1) jus soli – right of land or ground
o   Chinese exclusion act – Chinese always excluded from naturalization
o   If parents can’t get citizenship, can person not be subject to jurisdiction of US at time of birth?
o   United States v. Wong Kim Ark (1898)
§ Native born Chinese denied entry after second visit to China – not on official visit
§ Issue: whether person born to parents – who are subject to a foreign power – with permanent domicile and engaged in no official business – is a citizen of the US pursuant to 14th amendment?
§ As long as not on official business (think: war occupier’s children not citizens of state) – then citizenship is not contested
§ “all persons born” general and not restricted by color or race – back to old English rationale
§ To deny citizenship to him is to deny citizenship to European ancestry
§ Dissent: focus on “not subject to any foreign power” – need to not have political jurisdiction of other government
o   Resulting conclusion: all born in US are citizens except for diplomats
 
–          2) jus sanguinis – right of blood – conferral of citizenship based on descent
 
Citizenship Without Consent
–          without merit
–          Five fallacy arguments:
o   1) Citizenship Clause inappropriate under consent-based theory
o   2) requires new interpretation of language “subject to jurisdiction”
o   3) claim that person is subject to jurisdiction only if owe no allegiances is wrong
o   4) Framers were not trying to add transformative new interpretation
o   5) Framers did not want confer citizenship to illegal because there were no illegal immigrants
 
Notes and Questions
–          without birthright citizenship, children of illegals will forever be mired as inferior, and will deprive them of self protection and self advancement
–          Other point: illegal aliens deprive taxpayers of money
–          Tom Tancredo: Limiting Birthright
o   “jurisdiction” of 14th means that a person owes something to the state
 
2. Jus Sanguinis
 
INA §§301(c) and 308
–          grants citizenship if either one or both parents are US citizens
–          if one parent not citizen, citizen parent must have been physically present in US before birth for five years
–          Issue: What type of contact with the US is required?
o   1) insufficient contact will result in no citizenship
o   2) from 1934-1968 – child had to establish own residence
–          to check citizenship, one must check effective law at time of birth
 
**p. 46 Problems**:
1) no citizenship – insufficient contact with the US
2)         a. he has to move to the US for child to obtain citizenship
            b. need to know French immigration law
3. Gender Discrimination and Jus Sanguinis
Wauchope – citizenship can be transferred to future generations if first generation met requirements
 
§309 – disadvantages men – child born out of wedlock for men requires additional conditions: 1) blood relation; 2) father US nationality; 3) father agrees to provide financial support; 4) under 18, child must be subject to law of domicile
 
Nguyen v. INS– establishes constitutionality of paternity requirement under §309(a)(4)
–          father difficult to prove paternity
–          whore father’s traveling abroad make it more likely for indiscretion – need additional proof to show fatherhood
–          Dissent: no guarantee that such a requirement fosters paternal relationship – undermines argument by asserting that majority relies on an overbroad sex-based generalization – just because mom’s are present, doesn’t guarantee relationship
 
p. 146-156
4. Citizenship Beyond the Nation-State
Linda Bosniak, Citizenship Denationalized, Ind. J. Global Legal Studies
Making Sense of Citizenship Debates:
–          1) citizenship as legal status
o   Increasing denationalization – look at EU efforts to construct regional citizenship
o   EU citizens enjoy political cross border power
o   Multi-nationalization of citizenship with influx of duel citizenship
–          2) citizenship as rights
o    
–          3) citizenship as political activity
o   Aristotle: citizen is man that both rules and is ruled
o   Expanded territorial nation-state gives inference to unspecified reach of political activity (i.e. NGO’s, human rights, etc…)
o    
–          4) citizenship as a form of collective identity and sentiment
o   The quality of belonging – identity presumed to be within boundaries
o   Rise of “transnational identities”
 
 
Naturalization, Dual Citizenship and Loss of Citizenship                                   
September 2    Text pp. 55-119; 133-146
 
Section D: Naturalization
1.         The Basic Substantive Provisions*** (problems)
a.                   Residence and Physical Presence
                                                              i.      §316: naturalization provisions
                                                            ii.      Alien needs to be LPR for at least 5 years
                                                          iii.      Continuous leave of absence cannot exceed six months except for special approved purposes
                                                          iv.      Presumption is that if you leave for more than 1 year, then you have abandoned your residence
                                                            v.      Standards are relaxed for military service
 
b.                  Age
                                                             

   Puerta filed and got naturalization, but was caught later with many aliases that he didn’t mention – can he be denaturalized?
2.      Brennan: proof by clear and convincing evidence of misrepresentation raises presumption of ineligibility, which is to be rebutted –
3.      Government did not link offense to statutory grounds for disqualification
                                                            ii.      INA §340(a) – concealment of material evidence; refusal to testify
1.      revoking citizenship for “illegal procured” citizenship, or concealment of material fact or willful misrepresentation
 
b.    ***Exercise: p. 112***
 
6. Expatriation
a.       Stringent standard required for proof of denaturalization – need to voluntarily commit the act, and intend to relinquish citizenship
                                                              i.      INA §349(a)
1.      obtain citizenship in foreign state
2.      take an oath in a foreign state
3.      serve it its armed forces
4.      accept employment by government of foreign state
b.      “involuntary expatriation” – loss of citizenship because of certain behavior (length of stay abroad, etc…)
c.       Vance v. Terrazas (1980)
                                                            ii.      Duel citizenship at birth between Mexico and US
                                                          iii.      Supreme Court says that renunciation has to be voluntary with intent that you are presumed to have renounced unless rebutted by preponderance of evidence
                                                          iv.      POLICY: Why does the state decide whether you renounced citizenship? Should it be left to individual?
State Department Approach
A person who:
1) is naturalized in a foreign country
2) takes a routine oath of allegiance; or
3) accepts non-policy level employment with a foreign government
§ if citizen wishes to retain citizenship, no need to submit evidence of intent to remain citizen
 
U.S. immigration history and sources of immigration power                    
September 9    Text pp. 157-237; Skim Text pp. 237-46
 
Chapter Two: Foundations of the Immigration Power
 
1. Evolution of US Immigration Policy
–          immigration used to be for religious toleration and political freedom
–          gates opened because of under-population
–          French Revolution resulted in stricter immigration laws
–          1830’s: Irish and German immigrants flowing from European depression
–          Urbanizing society brought conflict – groups began to oppose immigration
–          Then came the Jews and Chinese – even more disliked
–          1870’s depression brought about Chinese resentment
–          1895: Congress passed first ever Literacy Bill (passed again 1912 but vetoed)
–          Literacy requirement came back in 1917 and banned immigrants from Asia
–          Corporations jumped on English only bandwagon