Select Page

Immigration Law
University of Iowa School of Law
Elias, Stella Burch

Elias, Immigration Law, Fall 2013
Part IA: The Big Picture/Introduction
1)      Overview of Immigration Law
A)    Immigration Law: Federal Administration Law
B)    Principle Statute: Immigration Nationality Act of 1952 (INA)
C)    2 Classes of Humans: (1) Citizens; (2) Aliens
1)      Ways to become US Citizen
(A)    Birth: Born on US soil or 1 US parent
(B)    Naturalization
(i)   Requirements
(a)    LPR: lawful permanent resident (green card holder)
(b)   Reside in US for 5 years (but if married to US citizen it is 3 years
(c)    Physical presence (5 years and can’t spend more than 180 consecutive days outside)
(d)   Civics test
(e)    Age (usually age of majority)
(f)    Good moral character
D)    2 Classes of Noncitizens
1)      Immigrants
2)      Nonimmigrants
(A)    Examples of Immigrants:
(i)   Family reunification, employment, refugees, diversity
(B)    Examples of nonimmigrants
(i)   Tourists, business, temporary workers, students
E)     Exclusion of Noncitizens:
1)      Overstay Visa; Visa violation; Crime; National security grounds; Undocumented
F)     Agencies in Charge of Regulating Immigration: Organization Chart on [5] 1)      Department of Homeland Security (DHS): Homeland Security Act of 2002 created it
(A)    Customs and Border Protection (CBP): all ports of entry (land borders, airports, and seaports
(B)    Immigration and Customs Enforcement (ICE): functions mainly in the interior—responsible for investigations, intelligence-gathering, detention, certain elements of the deportation process, the registration of noncitizens, and other interior enforcement operations
(C)    U.S. Citizenship and Immigrant Services (USCIS): handles a variety of applications for immigration benefits
2)      DOJ: Executive Office for Immigration Review (EOIR): Runs the immigration court system (system of tribunals → administrative)
(A)    Office of the Chief Immigration Judge (OCIJ): presides over removal hearings
(B)    Board of Immigration Appeals (BIA): hears the appeals from immigration courts as well as certain USCIS decisions
(C)    Office of the Chief Administrative Hearing Officer (OCAHO): conducts evidentiary hearings in certain cases that involve the unauthorized employment of noncitizens and cases that involve certain forms of job discrimination
3)      Department of State:
(A)     Most notably issues or denies visas to noncitizens wishing to enter the US
(B)    Also through educational exchange programs
(C)    Refugee and asylum issues as well
4)      Department of Labor
(A)    When a noncitizen seeks admission on the basis of occupational qualifications
5)      Department of Health and Human Services
(A)    Office of Refugee Resettlement (ORR): responsible for unaccompanied noncitizen children
(B)    Public Health Service makes the necessary medical judgments when a noncitizen is alleged to be inadmissible on health-related grounds
2)      The Immigration Debate: Goals, Strategies, and Impact
A)    Advantages of open borders
1)      Opportunity: develop potential
(A)    Eliminate social waste because people would not have to focus on getting out of poverty—bullshit
2)      Right to flee bad situations
3)      Cross border solidarity building
4)      Net gains for receiving country
B)    Advantages of restrictions
1)      National security
2)      Concerns about welfare forum shopping
3)      Overwhelming receiving country’s resources
4)      Communication and stability issues
5)      Low skill workers will reduce wages
6)      Moral obligation to domestic country
7)      Brain drain on leaving country
C)    US admits  very few people (5%) based on desirable skills; Canada is much different
1)      The US immigration policy since the reform may have been bad for distributive justice by worsening income equalities by admitting large numbers of poor people.
(A)    The poor immigrants are better off for having been allowed to immigrate, but the burdens of funding some welfare programs are increased, and those programs may be less politically popular as a consequence
D)    Immigration: Race, Culture, and Language
1)      Europe embraces assimilation
2)      US is much more schizophrenic in its approach
(A)    1921-1965: immigration was based on proportion that was already with the objective to preserve the ethnic composition
(B)    1965: Heart Celler Amendment: replaced old system with national origin quotas
3)      Types of diversity immigration fosters:
(A)    Language, political beliefs, cultural beliefs, national origin, age, competition, innovation
(B)    Benefits of Assimilation: stability and communication
4)      Government policy options:
(A)    Diversity: More open policy; liberal policies for students to stay; encourage bi-lingual; religious tolerance
(B)    Assimilation: National language requirement; borders/walls
Part IB: Immigration and the Constitution
1)      Sources of the Federal Immigration Power
A)    Key Point from this section:
1)      The Fed has the power to regulate immigration (not the states), and the Fed has the power to regulate immigration as it sees fit
(A)    Never explicitly overruled (Chinese Exclusion case)
(B)    Essentially the Court said it seemed like a political issue and should be left to the political branches (Baker v. Car illustrates what a political question is)
B)    Enumerated Powers
1)      Commerce Clause: Article I § 8 cl. 3 Congress may “regulate commerce with foreign nations and amongst the several states”
(A)    1st Theory: since the Fed can regulate commerce with foreign nations, it can regulate immigration
(i)   Passenger Cases (1849): the Court invalidated state attempts to regulate immigration (NY and MA imposed head taxes on certain categories of arriving noncitizen passengers)
(a)    Court decided that these state actions infringed upon exclusively federal power
(ii) Henderson v. Mayor of NY (1876): Court struck down a state statute requiring the master of a vessel to choose between paying taxes on arriving noncitizen passengers or posting bonds
(iii) Head Money Cases (1884): 1st time the Court considered the constitutionality of a federal statute that regulated immigration
(a)    Unanimously upheld the statute (collect 50 cents from each passenger disembarking age 8 and up; case was only about applying to minors
1.      Transportation of persons is commerce for purposes of the commerce clause
(B)    2nd Theory: Commerce clause permits congress to regulate activities substantially affecting interstate commerce
(i)   Even when indirect
(ii) Wickard theory: wheat case where farmer couldn’t grow wheat for own consumption 
2)      The Migration or Importation Clause: Article 1 § 9 cl. 1: “The Migration or Importation of such persons as any of the States now existing shall think proper to permit, shall not be prohibited by the Congress to the year 1808
(A)    This refers to the slave trade (Passenger Cases make this clear) and much less frequently used for the Fed’s regulation of immigration
3)      Naturalization Clause: Article I § 8 cl. 4: authorizes Congress “to establish a uniform Rule of Naturalization”
(A)    Remember the difference between immigration and naturalization
4)      The War Clause: Arti

s that power in the federal government
(i)   Within the federal government, the Constitution vests that power in the political branches (not the courts)
2)      Deportation power is sovereign in nature and sovereign powers are subject to few, if any, constitutional restraints and constitutionality of deportation→  political question
3)      Gov. may decide what forms of evidence is reasonably required to justify deportation
4)      Deportation is a civil penalty and not criminal and therefore these Ps have not been denied due process
(A)    Dissent: Slippery slope argument; deportation is a punishment/criminal; denies that there is an arbitrary and unrestrained power to banish residents
(B)    First case to invoke principle of plenary congressional power in deportation context
E)     Where we are currently at: Development of the Doctrine
1)      Head Money Cases (1884): Court held that commerce clause empowers Congress to regulate immigration (nothing in those cases spoke to the constitutional limits on that congressional power)
2)      Chinese Exclusion Case (1889): Court held that power to regulate immigration was inherent in national sovereignty: Congress needs no enumerated power (again, nothing about constitutional limits, the focus is on constitutional authorization of power)
(A)    a returning noncitizen was being excluded at the port of entry
3)      Ekiu (1892): Congress need not worry about procedural due process (individual rights limitation)
(A)    a noncitizen seeking initial entry was excluded
4)      Ting (1893): a resident noncitizen was being deported
3)      Limits to the Federal Immigration Power: Procedural Due Process
A)    The post-Ekiu decisions generally held only that due process does not require judicial fact finding
1)      Didn’t repeat the sweeping words of Ekiu that “as to noncitizens seeking admission, the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.”
B)    Exclusion Cases
1)      Knauff v. Shaughnessy [155] (noncitizen wife of US citizen excluded without hearing under administrative regulation that permitted the AG to bypass a hearing upon finding from confidential information the person was inadmissible; Stuck at Ellis Island for 3 years
(A)    Passport Act of 1918: The AG, acting for the President, may shut out aliens whose “entry would be prejudicial to the interests of the US.” And he may exclude without a hearing when the exclusion is based on confidential information the disclosure of which may be prejudicial to the public interest.
(B)    Holding: Admission is a privilege and not a right, and exclusion of a noncitizen is a fundamental sovereign act inherent in the executive power to control the foreign affairs of the nation
(i)   “Whatever the procedure now authorized by Congress is, it is due process as far as an alien denied entry is concerned.”