PROFESSOR WILLIAM STOCK – – IMMIGRATION OUTLINE – – SPRING 2009
– Immigrant Types:
o Labor Migrants – menial + low-paying jobs
§ Means of entry:
· many cross border by foot
· overstay tourist visa
· use one of the family reunification preferences (e.g. after marrying US citizen or permanent resident)
· admitted as contract laborer under H-2 non-immigrants
o Professional Immigrants – professionals with advanced degrees or aliens of exceptional ability
§ Assimilate quickly because of occupational success and absence of strong ethnic networks to reinforce origin
· Unlike regular immigrants, refugees and asylees generally barred from returning to home countries
· H1-B – technical specialty workers – programmers, engineers, medical personnel
o Entrepreneurial Immigrants – utilize relations with their ethnic group to create enclaves of ethnic businesses (e.g. Koreatown in LA)
– Pre-immigration policy – Congress kept open borders to provide labor and capital. Earliest federal statutes prohibiting immigration of lunatics and criminals. Chinese exclusion laws because first federal immigration statutes subject to judicial scrutiny.
Chae Chan Ping
– S: Gold-rush led to influx of Chinese immigrants; US placed a moratorium on immigration of laborers from China; Chae was returning to US when denied reentry; Chae argues license to travel into US is irrevocable w/o due process
– R: Congress has plenary power to oversee immigration matters.
o Preservation of independence and security against foreign aggression are the highest duties of every nation; other considerations are subordinate
o It must have power to maintain and protect the US
§ Control of immigration is within scope
§ Irrevocable license would sacrifice piece of sovereignty
o Constitutionally enumerated Basis. Necessary and proper clause enables congress to exercise means to carry out its enumerated powers; Potential sources of Congress’ enumerated power over immigration:
§ Commerce power – Edwards – migration is commerce
§ Naturalization – distinction between physical entry and entry into political community of US (i.e. full rights of naturalized citizens)
§ War Power – right to expel enemy alien, but not all immigrants
§ Migration and Importation Clauses – immigration control power prohibited prior 1808; may imply authorization to prohibit post 1808
§ Foreign Affairs Power – immigration control within scope
§ Inherent Power – power to exclude foreigners is incident to sovereignty
· Curtiss-Wright – power to regulate flow of noncitizens is inherent in the concept of sovereignty
o Constructional and Structural (Constitution) Bases.
§ Rule of necessity – if the US government could not control immigration, the US would be to that extent – subject to the control of another power
· (1) self-preservation – open borders risks nation unable to govern itself because sovereignty in the hands of aliens
· (2) self-definition – regulation critical to the process of national self-definition
– S: Chinese laundries ordered closed by state law, other laundries allowed open.
– R: 14th amendment protections apply broadly to citizens and non-citizens; similar constitutional treatment is afforded on non-immigration matters
o Old reasoning was that 14th amendment only applies to action of states not to the FG. (This analysis would not work today)
– Deportation – Removal of noncitizens within US
– Expulsion – Exclusion of noncitizens at border, seeking to enter
Fong Yue Ting
– S: Government required Chinese immigrants already in the US to obtain certificate of residence from government officer stating their legal entitlement to US residence; person caught without certificate – deported unless at least one credible white witness could testify that immigrant was lawful resident and that he had valid reason not to have certificate. Fong, though a permanent resident for over 10 years, did not register and was arrested before deported.
– R1: Congress has plenary power over immigration
o right to expel and permit aliens
§ right to provide a system of registration and identification of members of a class within the country and to carry out the system by all proper means
– R2: order of deportation is not a punishment for crime; thus no right to trial and guarantees against unreasonable searches and cruel punishments don’t apply
– Dissent: The majority’s rule allows Congress to carve out segments of society to exercise such powers against – – no check on Congress’ power
Nishimura – court held that the decision of one official authorized by statute is conclusive against his right to admission (only subject to review of higher officer not court) – could not be reviewed on habeas corpus.
– S: The Exclusion Act imposed imprisonment at hard labor and deportation on Chinese convicted of illegal presence. Wong charged under Act.
– R: Imprisonment at hard labor without right to jury trial violates 5th (due process and jury trial) and 6th amendment (cruel and unusual) guarantees.
o Congress may deport without cause (Fong Yue Ting) but imprisonment at hard labor is an infamous crime, as defined by the legislature – – jury trial necessary to establish guilt
– Dept of State – embassies or consulates – authority outside of US
– Dept of Homeland Security (DHS)– authority inside US
o Services – approval/denial of application filed by would-be migrants
o Enforcement – patrolling border, investigating violations, arrest violators
§ Customs and Border Protection (CBP) responsible for: (1) border enforcement component of screening people and cargo, examine documents and other evidence of entitlement to enter; (2) border patrol – prevent unauthorized entries and apprehend violators
§ Immigration and Customs Enforcement (ICE) – responsibl
Nguyen (jus sanguinis)
– S: Nguyen born out of wedlock by US citizen and Vietnamese citizen. Nguyen became lawful permanent resident at age six, raised by US citizen (father). At 22, Nguyen was guilty of assault, and INS sought deportation because per INA 309 – – to attain citizenship – while the child is under 18 – the father must have acknowledged paternity of the child.
– R: Gender based classification (i.e. requirement of father to acknowledge paternity) is consistent with equal protection guarantees.
o Such classification withstands equal protection scrutiny if it serves compelling governmental interests and is narrowly tailored to achieve those interests
§ Government interests: ensuring biological relationship with father exists, citizen-parent and child have opportunity to develop relationship as parent-child and as US citizens
– Basic Substantive Provisions of Naturalization
o Residence and Physical Presence –
§ §316(a) – To become naturalized, must: (1) reside in US continuously for 5 years as LPR (2) during 5 years immediately before filing petition – physical presence in US for at least half the time (3) reside within district in which he or she filed petition for at least 3 months (4) applicant must reside in US continuously from date of petition to time of admission to citizenship
· Purpose is to break foreign attachments and integrate into US national community
· Temporary absences under 6 months don’t break continuity of residence; more than 6 months but less than 12 – rebuttable presumption of breaking continuity; 12 months or more – breaks continuity as a matter of law
§ Spouses of US citizens only need three years before filing naturalization petition – §319
§ Applicants generally must be 18 years old – §334(b)(1)
· Most children who are naturalized obtain citizenship when one of the parents is naturalized – “derivative citizenship” – child must have been admitted as a permanent resident and reside with parent §320
o English language proficiency – read, write, and speak – §312(a)(1)
§ Exempt for 50 years old + lawful permanent resident for 20 years
§ Exempt for 55 years old + lawful permanent resident for 15 years
o Knowledge of Civics and History
§ Appreciate government and history of US – – §312(a)(2)
o Good Moral Character
§ List of acts that establish lack of good moral character