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

Stella Elias

Immigration

Fall 2013

A. Overview

Immigration=federal administrative law

Principal statute=INA

Agencies

· Department of Homeland Security—created in 2002 with the Homeland Security Act; has three bureaus (two enforcement and one service)

o Customs and Border Patrol (CBP)—control ports of entry

o US Immigration and Customs Enforcement (ICE)—control interior 100 miles inside the border

o US Citizenship and Immigration Services (USCIS)—deal with people getting visas, immigration benefits

· Department of Justice (EOIR; Executive Office of Immigration Review)

· Office of Chief Immigration Judge (OCIJ; organize judges)

· Board of Immigration Appeals (BIA)—Falls Church, Virginia; hears appeals from the IJ and USCIS decisions (BIA decisions are binding on IJ’s)

· Office of Chief Administrative Hearing Officer (OCAHO)—evidentiary hearings in cases involving immigrants coming to work, employers, conducting investigations of unauthorized employment

· State Department—historically always issued visas; exchange programs and educational programs, also, refugee and asylum issues

· Department of Labor—non-citizens coming to work, labor certification process

· Department of Health and Human Services

· Office of Refugee Resettlement (ORR)

· Public Health Service—makes medical judgments based on medical inadmissibility

B. The Immigration Debate: Goals, Strategies, and Impact

Nationality and Citizenship

Two classes of people—citizens and aliens (non-citizens)

Ways to become a US citizen

1. Birth

a. Jus soli—born on US soil

b. Jus sanguinis—via descent

2. Naturalization

Requirements for Naturalization

1. Must first be an LPR (US is permanent home, domicile)

2. Reside in US for at least five years (three years if married to a US citizen

3. Physical presence (can’t be gone more than 180 continuous days)

4. Civics test

5. Age

6. Good moral character

Citizenship Confers These Rights:

· Right to vote

· Tax obligations

· Military service obligations

· Jury obligations

· Extradition consequences

· Eligibility for public benefits

· Eligibility for government jobs

· No immigration restrictions

· Ability to sponsor noncitizen family members to come to the US

Admission of Noncitizens

1. Nonimmigrants:

· Tourists

· Students

· Temporary workers

· Business visitors

Requirements:

· Must leave US within authorized period, must not be inadmissible (crime crimes, national security, etc.)

· Must not become a public charge

· No quotas or limits

2. Immigrants:

· Family reunification

· Employment

· Diversity

· Refugees

· Quotas apply

Exceptions:

· Immediate relatives of US citizens

· Refugees have separate quotas

Preference categories:

· Family relationships to LPR’s

· Economic reasons

· Few immigrants from specific countries

· Like nonimmigrants, they must not be inadmissible

Applications are made by filling out visa applications abroad, or an application for “adjustment of status” for people already in the country (Refugee and asylum apps are different)

Expulsion of Noncitizens

Grounds listed in the INA include:

· Overstay of nonimmigrant visa

· Violation of nonimmigrant visa terms

· Criminal convictions for immigrants

· National security grounds

1965 Hart-Sellers Act

Changed the former policy and instead emphasized reunification

The law introduced quotas

C. Immigration and the Constitution

Enumerated Constitutional Powers

Commerce Clause, Art. 1, Sec. 8, Cl. 3

Congress may “regulate commerce with foreign nations, and among the several states…”

Two distinction theories:

1. Head taxes imposed on non-citizens in Passenger Cases struck down state statutes as usurpation of federal power

2. Large scale immigration substantially affects interstate commerce

Theory 1: International commerce is regulated by the federal government.

The Passenger Cases (1849), p. 116

NY and MA imposed head taxes on passengers arriving in the US

Issue: Did state actions infringe an exclusively federal power?

Holding: Yes, NY and MA actions usurped federal power to regulate with foreign nations

Dissent: Can’t treat people like commerce (except for slaves)

Henderson v. NY (1876), p. 117

NY statute required masters between paying taxes on certain arriving noncitizens or posting bonds

Issue: Did this infringe on exclusively federal power?

Holding: Yes, commerce with foreign nations means commerce between citizens of the US and citizens of foreign nations

Headmoney Cases (1884), p. 117

Federal officer could collect 50¢ from each noncitizen passenger disembarking

· Court upheld as valid the congressional power to regulate commerce with other nations

· Interstate movement of people is federal issue, which affects interstate commerce

· Also affects international commerce clause (can regulate substantial affects of commerce)

Issue: Can Congress regulate immigration via federal statute?

Holding: Yes, Power does not belong to the states, but rests exclusively with the federal government; Congress can regulate immigration as a part of commerce with foreign nations

Theory 2: Interstate Commerce is regulated by the federal government. The interstate commerce clause permits Congress to regulate activities “substantially affecting” interstate commerce, even when the effects are “indirect.” It is enough when those activities are substantial when combined with many other similar activities.

1. Migration or Importation Clause: Art. 1 Sec. 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 prior to the year 1808

· Language suggests that Congress may prohibit or restrict migration and importation after 1808

· Central concern of this clause was the slave trade, not migration regulation

2. Naturalization Clause: Art. 1 Sec. 8 Cl. 4: Intended to establish a uniform Rule of Naturalization

· Immigration and naturalization are not synonymous- admission and expulsion are different form obtaining citizenship

· Lawful admission as a permanent resident is a prerequisite to naturalization under the INS

3. War Clause: Art. 1 Sec. 8 Cl. 11: Congress has the power to declare war

· Power to regulate “alien enemies” or nationals of cou

few, if any, constitutional restraints

Brewer Dissent

Three propositions—Sec. 6 of Act of 1892 applies to:

o 1) Persons lawfully residing in the US

o 2) Persons within the protection of the Constitution and secured by its guarantees against oppression and wrong

o 3) The Act deprives plaintiffs of liberty and imposes punishment without due process in violation of 4th, 5th, 6th, and 8th Amendments

· Denies that there is an arbitrary and unrestrained power to banish residents- not the power to banish nonimmigrants or undocumented persons. Also does not say Congress may not deport LPRs, only that such power is not unlimited

· Deportation is a punishment (there is a difference between deportation and exclusion) focuses on more negative consequences of deportation

· The statute is directed at the Chinese in this case, but could just as easily be exercised against another group (Slippery Slope argument)

Field Dissent

· There is a wide and essential difference between legislation for excluding Chinese at ports of entry and legislation deporting those who have acquired residence

· 4th Amendment violation

Doctrinal Development

· Head Money Cases (1884): Court held that commerce clause empowers Congress to regulate immigration.

o Nothing in those cases spoke to constitutional limits on that congressional power.

· Chinese Exclusion Cases (1889): Court held that power to regulate immigration was inherent in national sovereignty. Congress needs no enumerated power. In this case, a returning noncitizen was being denied at port of entry.

o Again, nothing about constitutional limits, the focus is on constitutional authorization of power.

· Ekiu (1892): Congress need not worry about procedural due process. In Ekiu, a noncitizen seeking initial entry was being excluded.

o Individual rights limitation.

· Fong Yue Ting: A resident noncitizen was being deported

Procedural Due Process in Exclusion and Deportation Cases

The Exclusion Cases

United State ex rel. Knauff v. Shaughnessy (1950)

Ellen Knauff, noncitizen wife of a US citizen, was deemed inadmissible based on “confidential information” under Passport Act of 1918.

Issue: Whether administrative regulation permitted the AG to bypass a hearing when “confidential information” was at issue. Knauff was stuck on Ellis Island for 3 years, and brought a DP challenge.

Holding: Admission is a privilege 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. Whatever the procedure now authorized by Congress is, it is due process as far as an alien denied entry is concerned