Monday, September 15, 2008
· Sources and Limits of Immigration Power
· Chief Justice Warren says it’s “nothing less than the right to have rights.”
· Constitutional sources of power:
§ Naturalization Power (“establish an uniform Rule of Naturalization”)
§ War Power (“power to declare War”)
§ Foreign Affairs Power (“The US, in their relation to foreign countries and their subjects or citizens, are one nation …”)
· Immigration is a national issue because it has national implications
· The 1866 Civil Rights Act provided that “all persons born in the US and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the US.”
· OTOH, 14th amendment reads: “All persons born or naturalized in the US, and subjec to the jurisdiction thereof, are citizens of the US and of the State wherein they reside.”
§ Difference: in Civil Rights Act of 1866, naturalized persons are not included, and there are qualifications on those who were born, like they must not be “subject to foreign power,” Indians were not included. Act also excluded some whom the US had jurisdiction over. Also did not mean they were citizens of a particular state.
o Plenary power doctrine: Congress has plenary power to exclude foreigners beause their stay is a license that is revokable at the Congress’s whim. Congress’s plenary power is justified by its duty to protect citizens against foreign aggression, encroachment and the principle of sovereignty itself. If nations object to this policy, they must petition the head of government.
§ Chae Chan Ping, p 197
· Before this case, people could come and go into the US by way of Burlingame Treaty. Congress then passed the Scott Act that excluded all Chinese people, whether they had permit to return or not. Ping had a permit to return, he’d been here for 12 years, went to China to visit, Congress passed Act, he came back and was denied admission at the border.
“The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source.”
o Majority holds that Congress retains plenary power over LPRs as well, and there is no difference between exclusion and deportation. However, dissent holds that LPRs have a stake in the nation, and therefore avail themselves of our laws and constitution. Deportation is a punishment because the alien is forced to abandon his stake in the US, and therefore due process should be applied.
§ Fong Yue Ting p 214
Fong couldn’t prove he was an LPR b/c he couldn’t produce one “credible” witness (a white witness) to vouch for him. Fong is removed because Congress has plenary power, but dissent says he had stake and exclusion is punishment, so due process should apply.
Brewer: “I rest my dissent on three propositions: First, that the persons against whom the penalties of the act of 1892 are directed are persons lawfully residing within the US; secondly, that as such they are within th eprotection of the Constitution, and secured by its guarantees against oppression and wrong; and, third, that [the Act] deprives them of liberty and imposes punishment without due process of law, and in disregard of constitutional guarantees …” p 220
ANALYSIS of where constitutional rights end
How much of a stake do you have in America?
Reside here, have kids, house, job, business, then high stake. If you haven’t been admitted, or have just gotten here, then small stake.
Are you inside US, or outside applying?
Inside US, you’re settled here and removal is a punishment. Outside the US, we’re not taking anything away from you.
If stake is high/inside the US/are an LPR, more likely to have due process and harder to throw out.
· Benefits of citizenship:
Taxes (LPRs too, b/c we want money)
Selective service (LPRs too b/c they receive protection, so they have a stake, and we need soldiers)
· Definition of Citizenship at Birth and Loss of Citizenship
· Acquisition of Citizenship
Two ways to get it, jus soli and derivation (jus sanguinis, or naturalization)
· Jus Soli
o Under jus soli, all children born within the territory of the US acquire citizenship by birth under the fourteenth amendment, with the exception of children born to diplomats or enemies, but not resident aliens (except Indians). While congress is empowered to define naturali
nt to relinquish citizenship is proven by a preponderance of the evidence, citizenship can be relinquished. The burden of proof is that of clear, convincing and unequivocal, which is high because loss of all rights is at stake. That standard applies to loss of green card LPRs.
§ Vance p 133
D was born in US, had US and Mexican citizenship, and at 22, while a student in Monterrey, Mexico, he executed an application for a certificate of Mexican nationality swearing “adherence, obedience, and submission to the laws and authorities of the Mexican Republic” and “expressly renouncing US citizenship as well as any submission, obedience, and loyalty to any foreign government, especially to that of the USA.” That was good enough to lose citizenship.
More on expatriation on p 144
· Admission to US: Categories and Procedures (Adjustment of Status);
· Family Immigration Pecking Order
· Immediate relative 201(b)(2)(A)
No quotas, visa is always available, and they can apply even if they overstayed a visa, as long as they’re not EWI.
Includes spouses, children, and if petitioner is over 21, parents too.
A person is defined as a “child” if under 21 and unmarried. Includes stepchildren and legitimated children as long as relationship was established before child turned 18, and adopted if adoption occurred before 16.
Spouse must be at least 18
· Family Sponsored (quota) 203(a)
§ Preference 1 23,400 for Unmarried Sons and Daughters of USCs
· (if petitioner is a “child,” i.e. under 21, it’s an immediate relative and visa is always available)
§ 114,200 for spouses and unmarried sons and daughters of LPRs.
· Preference 2A Spouses and Children of LPRs (under 21) will get no less than 77 %
· Preference 2B Unmarried Sons and Daughters of LPRs (over 21)
§ Preference 3 23,400 for Married Sons and Maried Daughters of USCs
§ Preference 4 65,000 for Brothers and Sisters of USCs (Sibligns, parents married and sons and daughters of LPRs don’t get in)