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Immigration Law
Wayne State University Law School
Settlage, Rachel D.



Fall 2011

Day Two: p. 192-207

Chinese Emigration (p.194): early 1850’s to help build railroads. 1868 we signed Burlingame Treaty with China to allow for Chinese emigration. But in 1869 we were done w/the railroad. Chinese workers started to spread out. 1880 election, both platforms (D and R) supported renegotiation of treaty to restrict immigration. U.S, by supplemental treaty, could now regulate, limit, or suspend immigration of Chinese laborers whenever their entry or residence hurts either country. But the Chinese already in the US from 11/01/1880 could come and go as they please. Then in 1882, the first Chinese Exclusion Act, which stayed law until 1943. However, judges were real lenient and let people in who they thought, based on various proofs, lived in the US prior to 1880. They would let them in, so Congress passed the SCOTT ACT, which didn’t even let people in with valid proof, and that was the act that stranded Chae Chan Ping.

Chinese Exclusion Case – Chae Chan Ping v. United States (p.197) – Chae Chan came in 1875, went to visit China in 1887, which is post the 1882 moratorium that limited NEW chinese from coming. Before the Scott Act, a valid certificate showing you were in the U.S. before the 1882 act was put into place would get you back in. But the Scott Act was real nutty, and made it so that even with a valid certificate you may not be able to come back into the country. The court decided that exclusion is up to the political branch(es) of our government and is not subject to judicial review.

Constitutional Framework/Sources of [Congress’] Immigration Power (p.199)

Enumerated Powers: according to McCulloch v. Maryland, the federal government only has the powers enumerated to it by the constitution, and the powers “necessary and proper” to the execution of those delegated powers.

Commerce Power: migration is commerce. Federal government, not states, can regulate. (i.e charge noncitizens to enter, and if states pass Act saying “immigrants can’t come,” federal government can say that said act is an unconstitutional interference with commerce.

Naturalization Power – congress controls who can naturalize and who can’t

War Power – federal government can kick people out during a war

Migration & Importation Clause – “prior to 1808, congress can’t kick out people who the states have already let in.” This implies that after 1808, congress has that power. Point of this clause was to protect the slave trade, but the clause’s arms could and should stretch.

Foreign Affairs Power – from “congress has power to declare war w/other countries,” and “congress has power to regulate commerce w/other countries,” we have extrapolated “congress has ALL power relating to foreign affairs.” Some say all this should not be read into Constitution.

The (good) question is: were the Chinese Exclusion Laws intended as acts of foreign policy? Or were they passed despite foreign policy objectives w/China?

Inherent Power: a sovereign MUST have the power to regulate immigration. It’s just one of the accepted maxims of international law. But I thought the federal government’s powers were enumerated, not inherent? Curtiss-Wright case says we got those powers from Great Britain, which is also a non-enumerated power. This area is shaky.

Structural Power/Rule of Necessity: it is necessary to extrapolate that which is essential to prevent the defeat of our nation, the existence of which is the entire purpose of the constitution.

Day Two: p. 210-233

Equal Protection: Slaughterhouse cases made it seem like 14th amendment would only apply to blacks, but Yick Wo, which was decided three years before the Chinese Exclusion Case, said equal protection should apply to Chinese when it shot down a state law that only discriminated based on hostility towards the Chinese race. But then how come the Chinese Exclusion Laws weren’t declared invalid or unconstitutional? Well back then, the 14th amendment protected only against state discrimination, so the Chinese Exclusion Laws, which were Federal, were still validated. Today, the 5th amendment says even the feds can’t discriminate; still, Chinese Exclusion was about IMMIGRATION, whereas Yick Wo was about discrimination of people already here. So even today, Yick Wo is cool, and so would be Chinese (arab) Exclusion Laws.

Fong Yue Ting v. U.S. (p.214) – you need a white witness to say you’ve lived here, in order to gain a certificate in compliance with the 1882 moratorium. If you can’t get a white witness, you’ll get shipped, because a Chinese witness doesn’t take an “oath” very seriously. Nothing 2 do w/5th (due process) or 14th amend., since its not a right to be here, it’s a privilege, and so deportation is NOT a punishment. Dissent says: he’s subject to US laws, should be subject to US protections against deportation.

Paragraph on p.229: the book views stake (i.e. how long have you been here, and were you here legally, are you being DEPRIVED of a right à remember, citizenship is a privilege, not a right [refine this thought]) as more important than location, when determining whether or not you should get constitutional protections. So the book says the Chinese Exclusion Case and Fong Yue Ting should be looked at again and maybe redecided.

Deportation and Punishment (p.230)

Wong Wing v. US – You can kick em out without a hearing or a trial by jury, because due process is not granted to noncitizens (I think), because Congress has to be able to kick people out for all the reasons mentioned above (i.e. to protect its own sovereignty) and b/c kicking them out is not a punishment or a deprivation. But you cannot subject them to hard labor without a trial.

Three Components of the DHS

(i) Customs and Border Proection (CBP): Border screening of people and cargo. Inspect documents of entrants at 330 POE’s and at international airports. 98% get through right away. 2% referred to secondary inspection. Most of these get through. The few that don’t are either 1) removed pursuant to a formal removal order, or 2) allowed to go back home before the formal order, so long as the CBP permits.

(ii) Immigration and Customs Enforcement (ICE): Interior Enforcement of Immigration and Custom laws. Locates and arrests people illegally in the country; represents gov’t in removal proceedings; conducts efforts against fraud and smuggling; enforces laws against unauthorized employment of noncitizens; investigative arm of DHS. ICE’s removal operations handled by its Office of Enforcement and Removal (ERO); takes custody of those who have proceedings against them until their court dates, and the ERO also ships people out who have removal orders. Biggest priority are those with convictions.

(iii) Citizenship and Immigration Services (USCIS): Service side – adjudicates apps for various benefits, like “temporary visitor,” or an app for a student who came temporarily, but decided to marry a citizen and must apply for adjustment of status to LPR à at some point she can even petition for naturalization to become a US citizen. And if a citizen wants to bring their brother over here, they have to start the process w/US authorities. Usually, these cases aren’t handled in person – instead you just fill out the appropriate form and wait. Ombudsman helps deal with customer questions or grievances, but has no jurisdiction, its mainly a advisory office. USCIS also takes fingerprints and trains asylum workers.

Department of Justice

Immigration Judges – most removal proceedings must be held by an IJ. These judges also deal with Bond proceedings. In 1983, the DOJ moved IJs into a unit called the Executive Office for Immigration Review (EOIR). IJs and the BIA, prior to 2003’s HSA, both answered to the AG, which drew process/Separation of Power

tives) 2) spouses and unmarried sons and daughters of LPRs – preference goes to spouses and children under twenty-one, 3) married sons and daughters of U.S. citizens, 4) brothers and sisters of US citizens à consult the statutory definition of ‘child’ to see if the requisite sibling relationship is satisfied – needs to be a legal relationship.

Derivative Beneficiary: A principal’s (or a beneficiary’s) spouse or child may be admitted in the same preference category and in the same order of consideration. 203(d). These are known as derivative beneficiaries. You can only use 203(d) if you’re a spouse/child at the time of principal’s admission; future marriages/inceptions must use second preference.

Employment-Based: Five categories made by 1990 act, 1) priority workers with extraordinary ability, national acclaim, 2) professionals w/advanced degrees, who will help the US in science, art, business, etc. – they must be sought by an employer, unless AG waives the requirement in the national best interest, otherwise Labor Cert., 3) baccalaureate degrees, for skilled & unskilled workers who would fill positions for which there is a shortage of US workers, also requires Labor Cert., 4) special immigrants as defined by 101(a)(27)(C)-(M), like religious workers or former US workers, and 5) investors who’ll create 10 jobs in the US — $1,000,000 minimum investment, or 500,000k if investing in rural area. See p.304 for info on who can self-petition.

Diversity Immigrants: 203(c) – reserved for countries who don’t send many to America.

Print table 5.1

Day Four: p.313-334

Family-Based Admissions, in Detail

Plenary Power; Fiallo v. Bell – The provisions of the INA giving immigration preference to mothers of citizens but not unwed fathers are constitutional. With immigration, Congress can make rules that would be unacceptable if applied to citizens. Plenary Powers. Constitutional = “facially legitimate” and “bona-fide” test [defined in Mandel/Ramadan] used 2 decide (since Plenary power of Congress 2 define class of immigrants go into US). Reasons for exclusion do not encompass Constitutional rights of citizens, but that’s okay given plenary power of Congress to decide immigration flow. Congress free to draw distinctions between types of families it wants to; if they think that illegitimate children do not qualify for whatever reason, that’s up to them. Don’t have to know what Congress actually considered, just reasons why they could have legitimately come to this conclusion. This was kind of a “rational basis” test, or even a less demanding “facially legitimate and bonafide reason” test; Congress likes this, but eventually, we go to a test they don’t like as much, called a Strict Scrutiny test, where if its facially discriminatory, Congress better be able to show a strong national interest in upholding an unfair law. P.323, it also talks about stepchild relationships. INA 101(b)(1)(D) – now opposes Fiallo in that it allows for unmarried fathers if they have shown a parental relationship with the child, whereas before, the father of an illegitimate child was granted no familial immigration benefits for being a father.