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Immigration Law
University of Toledo School of Law
Hacker, Elizabeth

Elizabeth Hacker, Immigration, Spring 2010

Foundations of Immigration Power
Constitutional Sources
Immigration is one of the Enumerated Powers.
Plenary Power doctrine: Congress has complete power, w/0 checks & balances
–> the States have no power to enforce federal immigration law
Fong Yue Ting v. US (1893): Court has the power to review the manner of exercise of the plenary power.
∆s who have taken no steps toward citizenship are subject to Congress’s power.
No due process req. where ∆ not incarcerated.
Wong Wing v. US (1896): Immigrants placed in jail must have due process.
Immigration History
Chinese Exclusion Act (1882): prevented Chinese immigration, despite treaties
Scott Act (1888): Chinese who had left could no longer return
Ping v. US (1889): Challenged the Scott Act; lost.
“Failure to assimilate is essentially a danger to peace and security.”
Affirmed plenary power; this rule is still followed.
Ekiu v. US (1892): Imm. detained at border has right to seek habeas corpus.
However, don’t need a fact finding re: what the imm. officer considered; just a cursory review of the facts to determine whether due process is violated.

Citizenship
Legal Basis
Civil Rights Act (1866): everyone born in the US –> full citizen
14th Amendment Privileges and Immunities (1868): Rights for born and naturalized citizens.
Can only lose citizenship by voluntary renunciation or fraud in the naturalization process.
Chinese Exclusion Act (1882): prevented Chinese immigration, despite treaties
“Plenary power doctrine”: SC upheld Congress’s power over imm.
Immigration Act of 1924: placed # limits on imm. from various countries.
Acquisition of Citizenship by Birth
Jus soli: right of land/ground by birth
Born in the US, where subject to US jurisdiction –> citizen
Does not apply where no US jur., e.g., embassies
Jus sanguinis: right of blood
At least one parent is a citizen –> might be
Limits:
Physical presence of the parent prior to child’s birth
§ 301: reqs. for # of years parent lived in US
US v. Wong Kim Ark (1898): Congress can’t regulate citizenship by birth
Can’t deny citizenship to someone born in the US to imm. parents
Even where the parents were tourists or unauthorized migrants.
The law at the time of the child’s birth controls; see chart.
§ 309: citizen father where out of wedlock, need to establish more:
C&C evidence of blood relationship, $ support of child, etc.
Naturalization
i.e., derivation of citizenship
Requirements to Obtain Citizenship:
Residence and Presence
Legally admitted for permanent residence
Have lived in US for 5+ years
Physically present in US for at least 2.5 years immediately before application
Where married to US citizen, residency req. is 3 years
Age 18 +
English proficiency test
Good moral character
Permanent bar: aggravated felony conviction/plea w/ 180 + days
Perjury, crimes against humanity, smuggling, etc.
Even where immunity asserted!
Watch for political affiliation — can circumvent w/ duress
Knowledge of Constitution, civics, and history
Denaturalization (Loss of Citizenship)
§ 340: denaturalization justified where naturalization was:
Illegally procured
Procured by concealment of a material fact or willful misrepresentation
No statutory ground req

Federal Bureau of Investigation (FBI)
Background checks for all applicants
Department of Labor
Board of Alien Labor Certification Appeals (BALCA)
Employment and Training Administration (ETA)
Wage and Hour Division (WHD)
Department of Health and Human Services (HHS)
Public Health Service (PHS)
Certifies medical grounds of inadmissibility
Certifies MDs who determine health status for visa
renewal/adjustment
Social Security Administration (SSA)
Issues social security cards to immigrants
Determines benefit eligibility for LPRs
Office of Refugee Resettlement (ORR)
Resettles refugees
Handles unaccompanied minors –> foster care, etc.
Department of State
Consular Affairs
Tracks visa issuance via embassies and domestic visa centers
Places quotas and tracks # of special visas issued
Determines whether may adjust status or must apply abroad
Bureau of Population, Refugees, and Migration (PRM)
Formulates domestic policy and works abroad
Bureau of Educational and Cultural Affairs (ECA)

Admission Procedures
Non-Immigrant Admissions
Visa application now requires an interview
Period of Validity
What listed on visa is not for a continuous stay
Many visas allow multiple entries
Some exceptions exist for special IDs for Canada, the Bahamas, etc.
Visa Waivers
Applies to:
Europe