Hudson Immigration Outline Spring 2014
OVERVIEW OF UNITED STATES IMMIGRATION LAW
A. Terminology
1. Aliens = all persons who are not US nationals
a. Too offensive/divisive? Promotion and solidification of racial and cultural stereotypes?
b. Book will use the term “noncitizen”
2. Immigrants = LPRs
3. Non-immigrants =Tourists
4. Removal
a. Exclusion and deportation
B. General Regulation of immigrati
C. Nationality
1. According to the INA: Every person is either:
a. An alien or
b. A national;
i. Within “nationals” – there are
1. Citizens and non-citizens
2. Non-citizen national is someone from American Samoa or Swains Island – very small and the distinction rarely matters
ii. Most common way to obtain citizenship is through birth in the USA, though some provisions of the INA bestow citizenship through descent
1. (so a child born abroad to one/two citizen parents is a citizen)
c. People who obtain citizenship sometime after birth:
i. Naturalized;
ii. Naturalization is something for which one must affirmatively apply
iii. Usually have to become an LPR, then reside in the USA for 5 years and then satisfy other requirements (citizenship test)
d. Acquired citizenship may be lost:
i. Naturalization may be revoked bc of defects in the original order
e. Citizenship (naturalized or birth) may be revoked through expatriation
D. The admission of Noncitizens to the U.S.
1. Non-immigrants vs. Immigrants
a. Non-immigrants: Those who fall within a specific enumerated category of temporary entrants
i. tourists, business men, students, temp workers
b. Immigrants: Everyone else who is a noncitizen – including LPRs and NonLPRs
2. The admission of non-immigrants is numerically restricted. 2 Reqs to qualify for admission
a. Must fit within one of the statutory pigeonholes most of which require an intent to leave the USA by the end of the authorized time period
b. Must not fit within any “inadmissibility” grounds – unless inadmissibility is waived
3. Admission for immigrants:
a. Mainly: family reunification, employment and “diversity”
i. Two types of quotas for each:
1. No more than a specified number may be admitted worldwide in a given fiscal year for each category.
2. The law limits the number of immigrants who may be admitted from a single country in a given fiscal year
ii. Numerical limits are subject to several exceptions:
1. Certain close relatives – immediate family members – are exempt from numerical constraints
2. Refugees fleeing statutorily defined forms of persecution at home are admitted under a separate quota system
iii. General quotas
1. The INA gives “preference” to various categories of immigrants [Admission is not awarded on a first-come, first-served basis]
a. (ie – family member preference for those not considered immediate relatives, occupational skills to fill economic needs and diversity immigrants from countries that have sent relatively few immigrants to the USA in recent years — MUST fit into one of these categories as a non-citizen in order to immigrate)
iv. Process
1. Family:
a. Files visa petition with USCIS; if it is approved then the beneficiary may apply for a visa at whichever US consulate serves the applicable region of his or her home country. Consular officer at that office determines whether there are any inadmissibility grounds; when it is approved, the consulate issues an immigrant visas
2. Employment:
a. Very similar, but for some jobs, immigrant must first obtain from the Department certification that the job he/she proposes to take is one for which there are not enough qualified US workers available and that the entrant's employment will not adversely affect the wages and working conditions of US workers.
3. Refugees:
a. Required to show a well-founded fear of persecution on account of race, religion, nationality, membership in a particular group or political opinion” — and can be admitted under two programs.
i. Overseas refugee program (fill out paperwork for asylum abroad)
ii. Asylum (apply for asylum within USA)
E. Expulsion
1. INA lists many grounds for the removal of deportable citizens – reflects a range of national concerns relating to economics, crime, health, morality, politics and national security. There are waivers but eligibility for these waivers have shrunk considerably in recent years.
2. When non-citizens in the US are removed, it is usually b/c they overstayed or otherwise violated the terms of their non-immigrant visas, or b/c they never were admitted and are not admissible.
3. Most apprehended by the government are expelled through voluntary departure
F. Other Sanctions
1. INA and provisions of other federal statutes establish a range of civil and criminal sanctions for immigration-related misconduct.
2. Employment based sanctions usually are imposed through Immigration Reform and Control Act of 1986 (IRCA) — punishes employers and certain others for knowingly employing noncitizens who are not authorized to work
CHAPTER 1: THE IMMIGRATION DEBATE: GOALS, STRATEGIES, AND IMPACT
A. The Moral Dimensions of Immigration Control
1. Moral considerations that reflect the individual interests of would be immigrants should be relevant and a nation’s immigration policy should not be simply viewed as an instrument for promoting the welfare of its own citizens.
a. Kwame Anthony Appiah:
i. We don’t have the same obligations to strangers that we have to our nearest and dearest
b. Cristina M. Rodriguez:
i. Some noncitizens are entitled to the same respect as citizens because of the increased of international interdependence.
ii. Migration is the prod
2nd Theory: “Interstate Commerce clause permits Congress to regulate activities substantially affecting interstate commerce—even when the effects are indirect
iii. Affecting Commerce Theory: Immigration affects international commerce
b. The Migration or Importance Clause
i. Article I, § 9, cl. 1 of the Constitution
c. The Naturalization Clause
i. Article I, § 8, cl. 4 authorizes Congress to establish an uniform Rule of Naturalization.
d. The War Clause
i. Article I, § 8, cl. 11 Congress has the power to declare war.’
4. Implied Constitutional Powers:
a. Does the Constitution create federal immigration power by general implication?
b. Chae Chan Ping v. United States (Exclusion case)
Chae Chan Ping v. United States (Exclusion case)
· Facts: Appellant was a noncitizen who immigrated from China to the U.S. in 1875. In 1887 Appellant left to China with a certificate that allowed him to return to the US. While in China, Congress passed a law that discontinued the certificate program and prohibited the return of even those Chinese laborers who had already received certificates. Appellant returned from China a week after the law was passed and was excluded from the U.S.
o Appellant raised 2 arguments: The law violated a 1880 treaty bw U.S. and China, and that the law violated the Constitution.
· Issue: Whether the Act of 1888 is valid even though it violates existing treaties between the US and China and of rights vested under the laws of Congress?
· Holding: Justice Fields Majority: Yes. The October 1888 Act is valid. Whatever permit the Chinese laborers may have obtained previous to the act are revocable at the will of the government at any time.
o The act is not invalid just because it directly contradicts prior treaties
o The court is only to interpret and apply the act to cases as they are presented for determination
o The US has the right to exclude foreigners at any time
· Reasoning: (1) Incident of Sovereignty (inherent power) a nation can pick who can enter the nation. (2) “License” the Chinese people had a privilege and privileges can be taken away. (3) This is a political question.
· Notes:
o Can be cited for:
§ Congressional decision to enact the statute was conclusive on the supposition that it was constitutional
§ Language: political department of the government
§ Court disclaiming its power to decide constitutionality of the statute
· Goes against Marbury v. Madison – courts are ultimate arbiters
o Still good law and is cited re: the breadth of Congress to exclude citizens
