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Immigration Law
University of South Carolina School of Law
Said, Wadie E.


A. Sources of Federal Immigration Power
1. Express constitutional powers
a. Commerce clause – regulation of commerce w/ foreign nations
1. Problem: doesn’t cover all forms of state regulation possibilities
b. Migration and Importation clause
1. Problem: clause historically about slaver, not immigration generally
c. Naturalization clause – power to establish uniform natz rules
1. Problem: deals with citizenship, different from immigration
d. War clause – power to regulate “enemy aliens”
1. Problem: not all immigrant regs involve influx of immigrants
2. Implied constitutional powers
a. Powers of a sovereign nation – necessary for a sovereign nation to have this power
1. Problem: our system might not be meant to mirror others
b. Penumbral right (structural argument) – C structure showed US gov’t was on par w/ other sovereign states, so must have intended to authorize federal gov’t to define who we are
1. Problem: everything not expressly enumerated in C is delegated to states, so framers should have included it if meant for federal gov’t
c. Obviousness theory – didn’t include in C b/c so obvious federal gov’t power
1. Problem: early policies reveal ambivalence and states did have a role in immigration, so not so obvious
3. Extra constitutional powers – federal gov’t need not rely on C at all
a. US v. Curtiss-Wright Export Corp – after independence, sovereignty rested on states as a “whole” – therefore, only rested w/ states in collective capacity, so passed to federal gov’t and unnecessary to look for express C power
b. Problem: didn’t necessarily want same system as British
4. Case law – clearly establishes federal gov’t has sole power of regulating immigration law
a. Chinese Exclusion Act case – cert validity revoked while П away
1. П challenged validity of Act’s revoking validity of certificates to come back into the US
2. Held: Congress has power to regulate immigration law as an incident of sovereignty
3. Reasons: Power of sovereign gov’t; structural arg this is type of power given to congress; means of self defense; broad war powers arg
4. Note: over time, Court rejects broad statement w/r/t no immigrant rights
b. Ekiu v. United States – П at border meeting spouse, denied entry
1. Issue: Is exclusion w/o review a due process violation?
2. Held: No. Congress has power to make immigration law and its designed procedure is not subject to review (for exclusion cases)
c. Fong Yeu Ting v. United States – white witness requirement
1. Issue: Does deportation procedure violate due process?
2. Held: No, Congress has same fundamental right to expel foreigners same as excluding them
3. Reason: Privilege, not a right, to be in US. Protections
of C don’t apply b/c deportation is not punishment, so no safeguards needed
d. Bottom line: Congressional power to reg immigration is plenary and judiciary very reluctant to review
e. Shaughnessy v. Mezei – П in US 25 yrs, left to take care of mother, detained at Ellis Island and other countries won’t accept
1. Issue: If physically present, is it still exclusion? Is П entitled to due process?
2. Held: Even though detained in US, still exclusion proceeding and not entitled to more due process than Congress provided
3. Limit: Kwong Hai Chew case – consent to leave on Am vessel, short period of time, so had due process rights – length of time gone from US matters
4. Dissent: Indefinite detention, so deprivation of liberty and needs due process – cross-ex
B. Limits to Federal Immigration Power
1. Procedural Due Process (exist for LPRs and deportation proceedings)
a. Landon v. Plasencia – П married to USC, left for weekend, entering back into US
1. Issue: Can П be excluded after leaving for weekend w/o due process?
2. Held: No, even though here in exclusion proceedings (trip not innocent b/c smuggling), still entitled to due process
3. Reason: Entitled to due process given length here (LPR status matters, interest at stake for individual, risk of erroneous deprivation, interest in gov’t using current standards (Matthews v. Eldridge test)
4. Note: Mezei not overturned; length of time determinative
5. Bottom line: LPRs in exclusion proceedings entitled to due process
b. Yamakaya v. Fischer – П admitted 4 days, found inadmissible, deportation proceedings
1. Issue: Does П in deportation proceeding have due process rights?
2. Held: Yes, procedural due process rights attach at deportation proceeding (something different about being inside the US; but low level of scrutiny
3. Reason: Congressional decisions can’t be arbitrary – change in belief Congress has plenary and unreviewable power. Needs opportunity to be heard re right to be in US. However, upon review, no violation (sufficient notice)
4. Bottom line: Once people are w/in the US (even if illegally), can’t arbitrarily throw them out. Need due process, but court will still be deferential
2. Substantive Due Process (little to no protection)
a. Harisiades v. Shaughnessy – previous communist members
1. Issue: Is statute allowing deportation of previous Communist members (LPRs) in violation of substantive due process?
2. Held: No. Statute is not discriminatory or arbitrary, so no substantive due process violation
3. Reason: good reasons for

lenary power to act in this area, but once it makes choices on who/how to exclude, can’t create irrational distinctions among same categories of individuals
4. Bottom line: reigning in of plenary powers doctrine; Congress has broad power, but has to follow certain procedures and if irrational, will be struck down. Cracks in plenary powers doctrine
b. Demore v. Kim, continued
1. Held: procedural due process sufficient b/c IJ determined deportable, still has possible claims to relief b/c not ordered deported; substantive due process sufficient congress doesn’t need to impose “least burdensome means” to accomplish goal
2. Bottom line: highly deferential – many noncitizens detained in the US
C. Review of rights
1. Deportation
a. Procedural Due Process – due process requirements in proceedings to deport noncitizens, but sometimes deferential to Congress
b. Substantive Due Process – sometimes lower courts characterize claim as procedural to recognize it, but tough argument otherwise
2. Exclusion
a. Procedural Due Process – generally, Congress has plenary power to exclude and courts won’t look at claims – except if returning LPR or statutory protection for detained noncitizens
b. Substantive Due Process – rational basis scrutiny for LPR claim, usually unwilling to challenge plenary power
A. Overview
1. Category of visas
a. Immigrant
1. Family based
2. Employment based
3. Diversity based
4. Refugees (side-door entry)
b. Nonimmigrant
1. fall within INA § 101(a)(15) categories
B. General Quotas and Preferences
1. Family-Based Immigration
a. Quotas:
1. 480,000 – # immediate relatives and children born to LPRs temporarily abroad in previous fiscal year + available employment based visas in last fiscal year not used
2. Minimum: 226,000
a. First Preference: Unmarried sons and daughters of USC
b. Second Preference: Spouses and children of LPRs (2A); unmarried sons and daughters of LPRs (2B)
1. 114,200 + unused firsts + amount by which total family sponsored visas exceeds 226,000
2. 77% goes to 2As
c. Third Preference: Married sons and daughters of USC