Immigration Outline Churgin Fall 2011
Overview
· Department of the Treasury initially handled immigration. Head tax funded immigration stations for most of 19th Century. Public health programs located in Dept. of Treasury. Treasury has nothing to do with immigration now.
· State Dept. also had hand in immigration. Original treaties with provisions stating people could freely move from country to country. Promoted commercial relations among nations.
· U.S. adopted isolationist policy after WWI. For the first time, U.S. required that individuals apply to come to the U.S. If someone is not admitted, transportation provider (boat or plane company) has to provide transportation back to home country.
· State Dept. system set up consulates that processed people and issued visas. To come to the U.S. from 1921 to 1924, you had to have a visa issued to you. Consulates were located in various places abroad.
o A visa doesn’t guarantee your admission to the U.S. You are screened again once you arrive. A visa is the first step.
· Before 9/11, to save money, State Dept. closed many consular offices to save money. Level of scrutiny greatly diminished.
o After 9/11, process is much more difficult to people wishing to enter U.S., and extra costs are placed on those seeking admission.
o There is still no real review of a decision of a consular official. No appellate process to continue through once you’ve been rejected. No jurisdiction to review consular denial.
§ There is a visa waiver program for people from countries with which the U.S. has a good relationship and are trusted to return to their home countries without enforcement.
· Western Europe and Japan count. Argentina used to be, but they got kicked out. List is ever changing.
§ Millions of visas are issued.
· Nonimmigrant visas are for people who do not wish to become permanent residences (tourists, business visitors, students, etc.)
· Immigrant visas are for those wishing to stay in the U.S.
· Department of Homeland Security
o Immigration and Naturalization Service was moved here. Broke up INS into parts.
o Congress has made no effort to regularize its own structure.
o USCIS – United States Citizenship and Immigration Services
§ Apply for citizenship here. File petitions for yourself and beneficiaries.
§ Has offices throughout many of the states but not all of them. TX has multiple offices.
· There are also regional centers. Some of the work is online and the regional centers do a lot of the initial processing.
o Two Enforcement Agencies
§ ICE – Immigration and Customs Enforcement
· Enforces immigration laws. Implements discretionary orders from President.
· Has trial attorneys who represent government in removal proceedings. Used to be called “exclusion” if you weren’t admitted and “deportation” if you got kicked out. It is now called “removal” across the board.
§ CBP – Customs and Border Protection
· At ports of entry. To come into the U.S., you must go through this sector.
· Customs was moved to DHS fighting and screaming. Customs and Border Patrol don’t get along. Customs service has been around for almost forever, and they didn’t want to be associated with Border Patrol and vice versa.
· Border Patrol has increased exponentially since DHS was created.
· Not all checkpoints are on the border.
· Roving checkpoints can be set up wherever Border Patrol sees fit.
· Department of Justice
o Used to have INS. Adjudicatory office stayed, known as the Executive Office of Immigration Review – EOIR.
§ Board of Immigration Appeals is found here. Reviews decisions of individual immigration judges. Judges and members of the BIA are appointed by the Attorney General.
§ Immigration Judges are placed regionally around the country. There is one in San Antonio.
§ BIA is located in Virginia. BIA sits in panels of 3 or 1.
o Office of Immigration Litigation – OIL
§ Part of the civil division. Represents Dept. in immigration litigation in the court of appeals.
· Department of Labor
o People coming to work sometimes need special permission to do so.
o Looks at prevailing wage rates, solicitation for the job, conditions of employment, reason employer needs an employee who speaks a certain language, etc.
o Labor certification process is a disaster! Takes years.
August 31
· Alien and Sedition Acts
o Repealed. Borders were wide open at this point.
o New law required a certificate (manifest) saying what the ship was carrying. Became a great genealogical source. Only federal requirement concerning immigration at the time. (There were some slavery laws that did affect who entered the country.)
o States entered the picture since the federal government hadn’t imposed anything. N.Y. saw immigration as a possible source of revenue and imposed a head tax. Massachusetts agreed.
§ Supreme Court found state head tax unconstitutional.
· FCN Treaties
o “Friendship, Commerce, Navigation”
§ One standard provision is free movement of individuals engaged in these three activities.
o The Senate has a role in treaties. A treaty is consummated when the ratification takes place.
o Are treaties self-executing?
· U.S. had such a treaty with China, but then came the Chinese Exclusion Act.
o Chinese were mostly in California, and CA didn’t like it. CA asked for a statute banning immigration from China. Got the Chinese Exclusion Act passed. Rest of the country didn’t really know what was going on with the Chinese.
o When a statute is passed and a treaty is passed, whatever was passed later counts and applies. Statute overpowered treaty!
o Exclusion Act allowed Chinese who were already here to stay. Just banned new immigration.
o Chinese could not naturalize at this time, but if a child of two Chinese immigrants was born in the U.S., the child was a citizen of the U.S.
· Question was then – Does the U.S. have the power to do this?
o No explicit provision in Article 1 of the Constitution dealing with immigration.
§ The Commerce Clause – Article 1, Section 8, Clause 3
§ Importation Clause – Article 1, Section 9, Clause 1
§ Naturalization Clause, Article 1, Section 8, Clause 4
§ Implied Constitutional Powers
o As a country, America has inherent powers that allow it to restrict who comes and stays in the country.
o States may have some right to affect immigration, but once Congress has spoken, the states have little power to act.
· Plenary Power Doctrine
o When Congress acts (and sometimes the executive) in the area of immigration, Congress is
er.” You have no status.
§ You are usually allowed to work.
o Some suspicion that Mezei was a Communist, but not a danger. Knauff had no association with Communism.
§ Mezei was paroled and lived here until his death.
Landon v. Plasencia – 1982, p. 164
· LPR attempting to smuggle people into the U.S. She is caught and put in removal proceedings.
o Government treats her as a new immigrant.
§ She argues she is entitled to due process, but because she had left for two days, the government says she gets no credit for having lived here before.
· S.C. found that this is not Mezei. Unlike him, Plasencia does have a protected interest according to the regulations of INS. She was only gone for a short period of time and has a presumption that she can return to the U.S.
o As a result, she has a protected interest. She wanted a full deportation hearing. S.C. says no! She does have the right to present evidence, and the government bore the burden of proof.
· Modern S.C. case that indicated that people knocking at the door have some due process protection based on the regulations of the INS.
· Due Process
o Procedural
§ From the 5th Amendment. Applies to the federal government.
§ What is the protected interest?
· Look to Constitution, court decisions, statutes, and regulations.
§ If yes, what process is due?
Detention of Excluded Noncitizens
· In 1980, there was unrest in Cuba. Castro said that anyone who wanted to leave Cuba could do so, but you have to find a boat at the port of Mariel. 100,000 people left Cuba. The government emptied prisons and mental hospitals and made people taking normal citizens take these outcasts as well.
· U.S. paroled these people into the U.S. and put them in detention. The U.S. released them from detention as it screened them. U.S. had almost no information on these people, but parole was revoked from many criminals.
· Executive is not allowed to technically use this power in this way today, but they probably still could do it.
Removal, formerly known as Deportation
Yamataya v. Fisher (Japanese Immigrant Case) – 1903, p. 171
· Yamataya was admitted and then deported because she was believed to be destitute and a burden to society.
· S.C. says we never said you get no due process. You do get due process! But, not really. Yamataya didn’t even know she was being interviewed for possible deportation and barely understood English, if at all. She was allowed to present her case, so she had enough.
o S.C. indicated that immigrants have due process rights. Right to a hearing, to present evidence, to know charges – but not really!
