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Immigration Law
University of Denver School of Law
Campbell, Kristina M.

Jus Sanguinis­- transmission of US nationality to children born abroad by American parents. (It is a form of birthright citizenship).
· Unlike jus soli, birthright citizenship under jus sanguinis is not provided for in the Fourteenth Amendment to the Constitution.
· Authority: Title III of the INA
o INA §§301(c), (d), (e), (g), (h); and
o INA §309 (children born out of wedlock).
§ If both parents are citizens= Child acquires citizenship at birth (provided only that one of the parents had a residence in the US at some time prior thereto (303(c)).
§ IF one parent is a noncitizen,
· the citizen parent must have been physically present in the US for a total of 5 years prior to birth; AND
· At least 2 of the 5 years of physical presence must have been after the parent attained the age of 14.

· Jus sanguinis citizenship is much more complicated than jus soli citizenship, by virtue of the fact that it has been modified extensively over the years by congress

o Rogers v. Bellei (1971)
§ The US Supreme Court held that Congress retained the power to impose a residence requirement as a condition subsequent for children born abroad to be birthright citizens under the principle of jus sanguinis.
· Note: at the time of Bellei, the physical presence requirement was much more stringent than current rule (citizen had to be physically present in the US for 5 years between that ages of 14 and 28)
· INA 309- Born out of Wedlock
(a) the provisions of 301 (c), (d), (e), and (g) shall apply to children born out of wedlock if
(1) a blood relationship between the person and the father is established by clear and convincing evidence,
(2) the father had the nationality the United States at the time of the person’s birth
(3) the father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and
(4) while the person is under the age of 18 years-
(A) the person is legitimated under the person’s residence or domicile
(B) the father acknowledges paternity of the person in writing under oath, OR
(C) the paternity of the person is established by adjudication of a competent court.
(c) A US Citizen Mother of a child out of wedlock only needs to have been physically present in the US for a continuous period of 1 year to confer jus sanguinis citizenship.

Naturalization
· Statutory Authority
o INA §§311-331, and 337 (eligibility)
o §101(f)- good moral character
Generally Applicants must demonstrate
Ø Residence and Physical Presence (usually 5 years) (§316(a))
Ø Must be over 18 year of age (§334(b)(1))
Ø English Language proficiency (§312(a)(1))
Ø Knowledge of US civics and history (§312(a)(2))
Ø Good Moral Character (§316(a); but see §§101(f) and 316(e); and
Ø Attachment to Constitutional Principles (§316(a))

Plenary Power
· The Chinese Exclusion laws passed in the late 1800’s
o The first of these laws stated: “the coming of Chinese laborers into this country endangers the good order of certain localities.”
§ Chae Chan Ping v. US
· Ping was a laborer who settled in US prior to Chinese Exclusion laws.
· He visited China and had a certificate of re-entry that would have allowed him to reenter the US BUT the laws were changed when he was abroad.
· Under the Scott Act he was excludable (at the border)
o HOLDINGS
(1.)The US has the power to regulate immigration under international law.
(2.)The power to regulate immigration is vested in the federal not state the gov.
(3.)The political branches of the federal government have plenary power to regulate immigration/ exclude (at the border) without judicial review.

§ Yick Wo v. Hopkins
· City of San Fran. Passed ordinance regulating Laundromats.
· Because of the ordinance, 200 Chinese Laundromats were closed while 60 white Laundromats were kept open
· Yick Wo brought an Equal Protections claim.
o Court agreed that this was an equal protections violation.
§ NOTE: This case deals with immigrants already in the country while Ping was outside the country.
· Location matters for rights you have (inside- yes) (Border or outside=no, you need to use your countries political influence to make change)

o Sources of the Federal Immigration Power
Ø Commerce Clause- immigration = part of commerce w/ foreign countries (movement of people= Commerce)
Ø The Naturalization Power = Power to grant citizenship does not necessarily imply power to restrict immigration, but has been interpreted this way
Ø The War Power = Allows Congress to regulate presence of enemies in US, but use of power to exclude others is questionable
Ø The Migration and Importation Clause prohibits Congress from controlling immigration until 1808 (slavery compromise); implies power to regulate immigration after 1808 (or is it limited to slavery?)
Ø Foreign Affair Power. Power to regulate immigration is inherent in regulation of foreign affairs; but some immigration regulations have contradicted foreign policy objectives
Ø Inherent power= Justice Fields writes in the Chinese Exclusion case that the “power to exclude foreigners is an incident of sovereignty belonging to the government of the US, as a part of those sovereign powers delegated by the Constitution.
o Constructional/structural arguments: Rule of necessity (provisions necessary to implement a document are inherent in the document) is accepted canon; Structure of gov’t requires making certain inferences in order to preserve gov’t; Immigration power is obvious – didn’t need to be stated (controversial); Ability to grant citizenship requires ability to say who can become part of the community

· From Exclusion to Deportation
o Fong Yue Ting v. US:
§ There Chinese laborers were held by federal authorities for not having certificates of residence and filed Writs of Habeas Corp.
§ Supreme Court give ruling when the Chinese had been here for at least 14 years.
· Holding: The law is valid and doesn’t offend the Constitution.
o The law is valid based on US sovereignty and reasonable b/c Chinese do not respect oaths
o Refusal of citizenship and deportation do not constitute punishment; deportation does not deprive of life, liberty or property.
§ Constitutional protections of jury trial, against unreasonable searches and cruel/unusual punishments do not apply.
o Right to deport aliens who have not taken steps toward becoming citizens is as absolute as right to prevent entry
§ Note: This is beginning of Deportation is not a punishment. If unlawful presence was a criminal offense, they would have had a claim.
· Dissent (Brewer): This case penalizes people lawfully residing in the US; constitutional protections should apply; the Act deprives of liberty and inflicts punishment w/o due process of law. Yick Wo, EP, DP, 4th (search & seizure), 5th (DP), 6th (jury trial), and 8th (cruel & unusual) Amdmts all point to this law being invalid. Deportation is punishment.
· Dissent (Field): dist b/t power to exclude (valid) and power to deport. This case is different from Chinese Exclusion – gov’t has right to exclude, but not to deport arbitrarily law violates DP; Alien & Sedition Act of 1798 allowed removal of aliens dangerous to peace & safety – but was universally condemned as violative of 4th Amdmt. (Field suggested court-packing plan to change result of this case).
· Dissent (Fuller): This is not a political Q. Foreign affairs power does not allow gov’t to arbitrarily deal w/ people lawfully in the US. This inflicts punishment w/o trial. The law is inconsistent w/ the nature of our gov’t and conflicts w/ written const.
NOTE: Current law: Aliens can be deported if prohibited conduct prior to entry is discovered after entry (e.g. they were Nazi’s (237(a)(4)(D)); they were excludable at time of entry (237(a)(1)(A)); or they are convicted of a crime of moral turpitude (237(a)(2)(A))
§ Wong Wing v. US, US 1896 (pg. 230)
· Provision of 1892 Immigration Act that allowed imprisonment/hard labor and deportation of Chinese illegal immigrants w/o trial by jury is invalid. Hard labor is punishment, and not allowed w/o trial. Detention and deportation, however, are valid. Also would be invalid to confiscate aliens’ property w/o due process
o Note: this case is dealing with imprisonment not detention (detentions prior to deportation do not violate the constitution)

· From Fung Yue Ting the dissents and majority illustrate 4 different models for tensions between Congressional Power and Constitutional Due Process.
1) Plenary Power Model- Congress’s power is unlimited (no distinction on location)
2) Due Process Model- due process applies whenever the US government is subjecting them to Federal Authority.
3) The Location Model- Border Interior Distinction
4) The Stake Model- Deprivation of what has been acquired is key for Due Process Protection.

QUALIFYING IMMIGRANT CATEG

receive an immigrant visa, provided they meet the criteria for admission in §203(c)(2) – a high school diploma or 2 years work experience
· Per-country ceiling limit of 3,500 diversity visas for each country (§203(c)(1)(E)(v)

Family Reunification
· More the 1/3 of immigrants who enter the US do so on the basis of their marriage to a USC or LPR
· The Term “spouse” is not defined in the INA
· Whether or not a “marriage is valid and recognized for immigration purposes is usually judged “by the law of the place it was celebrated.

Case: Adams v. Howerton
2 step analysis to determine if the marriage is recognized for immigration purposes
1) Whether the marriage is valid under state law
2) Whether the state approved marriage qualifies under the INA
i. Federal law INA will always trump
Holding: gay marriage not permitted under INA
Dicta: arranged marriages that were not consummated are not permitted under the INA

I. Sham Marriages
– to combat people getting married just to get into the US Congress passed IMFA Immigration Marriage Fraud Amendments to the INA
· INA §216, which created conditional resident status for individuals who become LPR’s based on marriages that is less that 2 years old at the time the petition is filed
· This condition applies equally to the spouses of LPR’s (who come in under 203(a)(2)) and Citizens (who are immediate relatives)
· The conditional LPR status lasts for 2 years
o At the end of the 2 year period, both spouses (Except in limited circumstances, waver for extreme hardship) must affirmatively petition to have the conditional LPR status removed within 90 days.
o DHS will remove the conditional status and the alien spouse will become a regular LPR if, after 2 years, the marriage was valid and has not ended (INA §216(c), (d)1)
o Conversely, if DHS determines that marriage was fraudulent or that it has ended within the 2 year condition time frame, they may terminate the LPR status (INA §216(b)(1))
o Additionally, if the petition to remove the conditional status is not filed within the 90 day time frame, DHS can terminate (Revoke) the alien spouse’s LPR status and initiate deportation proceedings (216(c)(2)
o IMFA also provides for criminal sanctions for those who engage in marriage fraud for immigration purposes (INA§275(c))

II. Adoption-Young v. Reno
· The Chevron Rule for reviewing an agency’s interpretation of a statutes
(1.)Whether Congress has directly spoken on the precise question at issue
(2.)If the statute is silent or ambiguous then, whether the agency’s interpretation is a permissible construction of the statute
Congress hasn’t spoken specifically held whether adoption severs the relationship between an adopted child and her biological brothers and sisters.
Because INS says adoption severs the relationship between biological siblings, then it does.
This is done to prevent fraud. Adopt 1 child then have that child bring over siblings. Who would then sponsor the original parents.

Nonimmigrants
A nonimmigrant is a noncitizen who seeks entry to the US for a specific purpose to be accomplished during a temporary stay. Qualifying categories for nonimmigrants are set forth as part of the statutory definition of immigrant. INA §101(a)(15).
101(a)(15) works in concert with INA §214(b), which states that “every alien… shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer… that he is entitled to a nonimmigrant status under section 101(a)(15).

§ Categories