Immigration
Price
Spring 2013
I. Citizenship
A. Jus soli – “right of land”
1. Wong Kim Ark – 14th Amend “subject to jx of” – interpret to include child of foreigners. Exeptions were diplomats, native americans, ppl conquering.
B. Jus sanguinis
1. INA 301 confers citizenship:
a. Both parents citizensà child will be citizen as long as one parent had residence sometime prior to birth. 301(c)
b. One parent noncitizenà citizen parent must be present in US for 5 yrs, including 2 after the age of 14, before birth. 301(g) (note, military bases and other included).
2. INA 309 – children born out of wedlock to citizen parent
a. Mothersà automatically if was present sometime for 1 yr continuously
b. Fathersà other conditions!
i. blood relationship by clear & convincing evid
ii. father must’ve had US nationality at time of child’s birth
iii. agree in writing to provide financial support until 18
iv. while child under 18
1. legitimated under law of his/her residence or domicile, or
2. Father acknowledge paternity of child in writing under oath, or
3. paternity established by court adjudication.
c. Nguyen v. US – upheld—substantially related to achievement of important gov’t objective.
i. Rationale—avoid “statelessness”; mother proof; mother ties to child, tied to country through this… Rested on assumptions of mother-child relationship
ii. O’Conner dissent – generalizations; narrative of men as irresponsible. Statute really just to avoid fraudulent cship.
d. “Codification of mama’s baby, daddy’s maybe” says Price
3. Sex discrim must meet intermediate scrutiny for EP.
C. Naturalization
1. Eligibility – §311 – no denied/abridged b/c of race/sex/marital status (note history of race discrim)
2. Requirements – §316 – (“probationary” period)
a. (a) Residence –must establish first to get process started!
i. Resided continuously in US for 5 years as LPR
ii. 5 years immediately before filing petition—present ½ the time.
iii. Resided within district of filing for at least 3 months.
iv. Must reside continuously in US from date of app to citizenship (short visit exceptions)
1. Legal residence – general abode where held LPR status (doesn’t consider intent). §101(a)(33) [not strict, don’t have to stay in abode each day]
2. (b) Absences
■ Temporary absences okay.
4 Less than 6 monthsà doesn’t affect continuous residence
4 More than 6 months but Less than 1 yr à presumptively breaks continuity
i. Overcome—show didn’t abandon residence
4 1 year or more à break continuity of residence as a matter of law (start over!).
i. May apply for exception (but have to stay 1 yr before granted)
ii. service to US gov’t
iii. US research institution
iv. US corporation
v. public international org, US member
vi. Religious org. §§316(b), 317.
3. (c) Physical presence
■ Exceptions to 1 yr absence don’t affect requirement to be physically present for ½ the 5-yr period, UNLESS US gov’t employee.
v. Spouses of US citizens – §319 – only have to live in US continuously for 3 yrs.
vi. Military—also relaxed residency reqs.
b. Age
i. At least 18. §334(b)(1)
1. Derivative citizenship—children when parents naturalized. §320.
c. English Language Proficiency
i. Understand to read, write, and speak words in ordinary usage. §312(a)(1)
ii. Exemptions:
1. Over 50, LPR total of 20 yrs
2. Over 55, LPR for 15 yrs.
3. Disability. §312(b)
iii. (Common language importance vs. not so important, discriminatory)
d. Knowledge of Civics & History
i. “knowledge and understanding of the fundamentals of the history, and of the principles and form of government, of the US” INA § 312(a)(3).
1. Waived for disabilities.
2. “Special consideration”—over 65, 20 yrs residence
3. Consider applicant’s background (i.e., education)
ii. Oral test. USCIS—new test—“integrated civics”
e. Good Moral Character
i. For 5 yrs preceding application. §316(a)
ii. Defined negativelyà non-exhaustive list of what’s NOT. §101(f)
1. Crimes of moral turpitude
2. Drug offenses
iii. Permanent ban—“Aggravated felony” (broader than many state defs). §101(f)(8) (defined in (a)(43)). à retroactive! (e.g., doesn’t matter if crime committed before this term added).
iv. Includes if been expunged / juvenile
f. Attachment to Constitutional Principles
i. “[1] attached to the principles of the Const. of the United States, and [2] well disposed to the good order and happiness of the United States.” §316(a).
1. Belief in representative democracy
2. Commitment to ideals embodied in Bill of Rights
3. Willingness to accept the basic social premise that change only be effected in an orderly manner.
■ Not incompatible with desire to change form of gov’t within limits of Const!
ii. 1950s statutes—communist party or totalitarian groups. “Advocates, teaches, or affiliated with … all opposition to organized gov’t.” pp. 70-71
iii. Schneiderman – considered whether member of Comm. Party was attached to Const. principles. Gov’t tried to void cship b/c found out didn’t answer question. Says question unconst.
1. Membership in communist party not inconsistent w/ const. ideals. 1st amend. stuff.
2. Dissent—not believing in democracy would show no attachment….
g. Oath of Allegiance
i. Renunciationà note big push to avoid dual citizenship that coincided w/ WWII.
h. Naturalization through service in Armed Services
i. Relaxes a lot of reqs! §§328-330 (unless dishonorably discharged.
3. Naturalization for Unauthorized Immigrants
a. Ruth Rubio-Martin – welcome mat theory. Important everyone protected by Constitution (“subject to jx”).
4. Naturalization Procedures
a. Immigration act of 1990
i. House committee reportsà streamline, easier for agency, not as many cases may go to judge.
ii. Lightened burden of courts; increased volumes of applicants
b. Process:
i. Give app to Dept. of Homeland Sec. officer. They interview you. à formal decision to affirm/deny
1. May investigate; call in for further interviews etc.
2. DENY?–> appeal to officer of equal or higher grade to original officer.
c. Price v. INS – applicant challenging question about past/present memberships & affiliations. Distinguish from Schneiderman in that this is a fundamental challenge to the type of question.
i. INS requires full disclosure on application (they decide what’s relevant).
ii. No right to be naturalized – residents don’t get all the same rights, don’t get to challenge application process. Reflects Congress’ broad power in this area.
iii. Naturalization can be like de novo review of entry (can review every req’ like first time).
iv. DISSENT—can’t distinguish b/w immigrants/citizens in applying Const. rights.
D. Dual Nationality
1. Aleinikoff – dual nationality is disfavored
a. Hague Convention – IL community’s interest in only single citizenship:
i. Diplomatic protection
ii. Military service
iii. voting rights
iv. divided loyalty (war, politics)
b. 4 situations where occurs in US:
i. (1) Birth in the US to immigrant parents.
ii. (2) Birth outside the US to one parent who is a US citizen and another who is a foreigner.
iii. (3) Naturalization with a renunciation requirement, but renunciation not recognize by country of origin.
iv. (4) Naturalization, loss of citizenship, and resumption of citizenship.
c. USA—no requirement to choose onà may be dual.
d. Rationale for allowing dual cship:
i. Keep track of ppl
ii. Expand world reach
iii. Expand econ relations (esp. if small country! keep t
1. naturalized in another country
2. takes routine oath of allegiance, or
3. accepts non-poicy level employemnet w/ foreign govt
ii. Need not submit intent/evidence to retain US citizenship.
iii. If §349(a) act is done, Consulate will simply ask if wish to relinquishà just say no!
II. Sources of the Federal Immigration Power
A. Intro
1. Const. includes no language expressly granting Congress authority to congrol immigration. Congress didn’t significantly limit until 1880s (and SCOTUS didn’t really address it until then).
a. First, excluded criminals, prostitutes, idiots, lunatics, and persons likely to become a public charge.
b. Chinese Exclusion Laws – (1880s/90s) – first SCOTUS examined.
c. Chinese Exclusion Case (Chae Chan Ping v. US) – Burlingame Treaty vs. Chinese Exclusion Act à last in time controls. Issue then, was it within power of Congress to pass Chinese Exclusion Act (1888)?
i. Court—May exclude aliens from territory. This is an incident of every independent nation, inherent power of a sovereign nation. Jx within territory is “exclusive and absolute.”
1. Preserve independenct, security against foreign aggression—highest duty of nation. Really no bounds on exercising such power.
ii. Power to exclude foreigners is an incident of sovereignty. Rigth anytime gov’t judges in best interests of nation.
B. Constitutional Framework
1. Enumerated powers
a. Gov’t is one of enumerated powers. May only exercise powers granted to it and what’s necessary and proper to do so. McCulloch v. Maryland
b. Consider to what extent this may limit fed power in immigration.
2. Commerce Power
a. Art. I, § 8, cl. 3 – “to regulate Commerce with foreign Nations, and among the several States.”
b. Edwards v. Cal. held that transportation of persons is commerce (even if not “commercial”).
c. This cl. ha been used to increase fed power, limit state in immigration.
3. Naturalization Power
a. Art I §8 cl. 4 – power “to establish an uniform Rule of Naturalization.”
b. Imply right to control entry?
4. War Power
a. Art I §8 cl. 11 – power to declare war.
b. Authority to stop enemy aliens…
5. Migration and Importation Clause
a. Art. I §9 cl. 1 – “The Migration or Importation of such persons as any of the states now existing shall think propert o admit, shall not be prohibited by Congress prior to the Yeaer 1808.”
b. Imply existence of power AFTER 1808?
c. Reference to stopping slave trade before 1808
d. Generally NOT interpreted to allow power to reg immig.
6. Foreign Affairs Power
a. Inherent in sovereign nation… no explicit mention in Const.
7. Inherent Power
a. Chinese Exclusion Case – “incident of sovereignty” to be able to exclude ppl?
b. Nishimura Ekiu
i. accepted maxim of international law
ii. inherent in sovereignty
iii. essential to preservation
c. Curtiss-Wright – found in independence itself. Enumerated powers only w respect to internal affairs! Powers of external sovereignty, retained these powers from Britain when got independ.
8. Constructional and Structural arguments
a. Rule of necessity
i. Infer imm. power as practical necessity to successful operation of Const.
b. Structural justification
i. Infer from structures and relationship screated by the constitution.
ii. Examine Const. as a whole, institutions it creates, how they relate.
iii. Primary purpose—establish system of gov’t for nation.
1. National self-preservation. To be sovereign nation, ppl must have control over territory.
2. National self-definition. Control how become citizen, in part defining our values.
