Immigration Law Outline

Immigration Law   Fall 2016 Professor Evan George
CITIZENSHIP
 
Membership in a nation state is fundamental to protection under international law
States have laws defining who are full members (citizens) and who are not
A. Acquisition of Nationality by Birth
 
Jus Sanguinis
Citizenship conferred through one’s parents (right of blood or “law of descent”)
Conferral of nationality based on descent, irrespective of the place of birth
Sources:
No constitutional basis
Statutes:
[INA §301(c)-(h)]: Jus sanguinis by acquisition
[INA §309]: Just sanguinis by acquisition for unwed couples
Definitions:
Child [INA §101(c)] Unmarried
Under 21
Legitimated under law of child or father’s residence or domicile before child turns 16, and child is in legal custody of legitimating parent
Child adopted under age 16, and in legal custody of adopting parent(s)
Does NOT include stepchildren
Types of acquisition [INA §322] Child of two USCs
For children born on/after November 14, 1986
One parent must have resided in US prior to child’s birth
Time can be very brief
Intent is irrelevant [INA §101(a)(33)] Residence means “principal, actual dwelling place in fact, without regard to intent
Child of one USC and one alien parent
For children born on/after November 14, 1986
USC parent must have
Been physical present in US for 5 continuous years before child was born, 2 of which were after the age of 14
No requirement that years are consecutive
Child of one USC and one alien, if born out of wedlock [INA §309] Child born out of wedlock to USC mother
Mother had US nationality at time of birth
Mother was continuously present in US or outlying possessions for continuous period of one year prior to birth of child
Presumption that mothers is true mother of the child
Child born out of wedlock to USC father
Father had US nationality at time of birth
Father was continuously present in US or outlying possessions for continuous period of one year prior to birth of child
Morales-Santana v. Lynch: Used to be that fathers had to be present for 10 years. Court held this was a violation of Equal Protection. Fathers and mothers are similarly situated with respect to how long they should be present in the US prior to the child’s birth.
Clear and convincing evidence of blood relationship
Father has agreed in writing to support child until age 18
Before 18, child is legitimated OR father states in writing that he is father OR paternity is established in court
Nguyen v. INS: Court held that the requirement for fathers to acknowledge their paternity did not violate equal protection. When a child, born overseas and out of wedlock to parents consisting of a USC and non-citizen, seeks US citizenship, governmental general classifications that require more stringent proof of citizen parents’ paternity than maternity are constitutional based on the inherent biological differences between ben and women.
 
Jus Soli
Birthright (right of land or “law of the soil”)
Conferral of nationality based on birth within the national territory
Not the law of most countries of the world
Sources:
UK common law
Post-Civil War civil rights acts
14th Amendment
“All persons born . . . in the United States, and subject to the jurisdiction thereof, are citizen of the US”
Statutes:
[INA §301(a)]: Jus soli
[INA §301(b)]: Jus soli for Indians
Also [INA §302-308]: Jus soli for birth in territories
Wong Kim Ark – jus soli test case
Art was born to Chinese parents in California, but left the US to get some paperwork from China. Denied entry upon return because statute had been passed making him excludable as “laborer of Mongolian race”
Issue: Does Art have citizenship? Must be free white person to naturalize.
Arguments:
Ark: Framers (14th) opposed prejudice by race and pretension by caste.
Any interpretation creating caste would undermine 14th Amendment (e.g., 3rd generation immigrants could not naturalize, corrosive effect on society).
Always subjected himself to jurisdiction of United States, has been taxed, recognized, and treated as USC.
Government: Common law interpretation of 14th Amendment would be awful, create “rag-tag of humanity.”
Holding: Yes, Ark is a citizen. Looked to English common law (jus soli). Said Ark was sufficiently subject to US jurisdiction because born here.
Rule: Every person born in the United States is a citizen of the United States, no matter the citizenship of his or her parents. 
Child Citizenship Act of 2000 (CCA)
Effective date: February 27, 2001
For those born abroad but residing in the US
Child becomes a USC when the following requirements are met: [INA §320] Has at least 1 parent who is a USC (by birth or naturalization)
Is under 18 years old
Admitted as or adjusted status to LPR
Residing permanently in the USA and in legal custody of USC parent
Includes adopted children
Does not include stepchildren
No application for naturalization required – automatic
 
Dual Nationality
Under jus soli and jus sanguinis rules, some children at birth are citizens of more than one country – the state where they are born and the state of their parents’ nationality
If the parents are from different countries, the child may possess citizenship in three states
B. Naturalization
In addition to acquiring citizenship at birth, individuals can seek a new citizenship later in life
The Constitution expressly grants C