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Immigration Law
Wayne State University Law School
Weinberg, Jonathan T.

Immigration Law
Fall 2009, Professor Weinberg
 
Citizenship
·         The status of citizens in US carries with it all the rights and privileges embodied in the constitution.  
·         Although some provisions protect only citizens, such as the Privileges and Immunities clause of Article IV and the Fourteenth Amendment.  
·         Citizens can vote and hold public office and they are not subject to removal.  
Citizenship and the Constitution
·         Constitution does not define citizenship but framers believed that retaining a citizenship status has some significance.  
·         1866 civil rights act- all persons born on US soil are citizens.   
·         14th amendment- all persons born or naturalized in the US, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.   
o   It is seen today as a floor rather than a ceiling; they can add to whom is a citizen
·         Distinction b/w citizen and non-citizen:   suspect classifications.   Discrimination is appropriate only if states have compelling reasons for it. 
·         Very few cities have allowed non-citizens to vote for local elections
·         There is nothing in the constitution that requires the state to disallow non-citizens from voting.
o   Local communities have allowed it; states, however, have not.  
How to acquire US citizenship at birth (two theories):  
·         US citizenship may be acquired either at birth or through naturalization subsequent to birth.   US laws governing the acquisition of citizenship at birth embody two legal principles:
·         Jus soli (the law of the soil): Common law rule in which the place of a person’s birth determines citizenship.    In addition to common law, this principle is embodies in the 14th amendment and the various US citizenship and nationality statutes.   
o   Subject to the jurisdiction thereof had different interpretations.  
o   US. v. Wong Kim Ark: the govt. contended that the rule of jus sanguinis determined nationality in the US.   The ct. however, held that 14th amendment and civil rights act of 1866 has explicitly reaffirmed that fundamental principle of citizenship by birth within the dominion.  
o   The words “subject to the jurisdiction thereof’ provide for exceptions to the general rule of jus soli. This phrase has been used to exclude: 1) children of diplomat parents; 2) children born to enemy forces engaged in hostile occupation
o   Back in the days, they used to use the words “subject to the jurisdiction thereof” to exclude native Americans and African Americans (See Elk v. Wilkins).  
§ The citizenship Act of 1924 established the citizenship status of native Americans born in the US
·         Jus sanguinis (the law of the bloodline)- a concept of Roman or civil law under which a person’s citizenship is determined by citizenship of one or both parents.   This rule, is frequently called citizenship by descent, is not embodies in the US constitution (14th amendment), but such citizenship is granted through statute (INA 301 ©, (d), (e), (g), and H, and 308 (2), (4) and 309.
o   If both parents are citizens, the child acquires citizenship at birth if at least one of the parents had a residence in the united States at some pt.      
·          
Dual nationality
·         Children born abroad to US citizen parents may acquire dual citizenship at birth.  
·         Some argue that dual citizenship may result in loyalty problems b/c they may be subject to multiple or inconsistent obligations
·         Dual nationality may become an issue at time of war.  
·         Today, however, there is an increasing acceptance of dual nationality which reflects the changes in the nature of immigration
Methods of obtaining citizenship
There are 4 ways to obtain citizenship
1)      by birth in the US or its territories
2)      by birth outside the US to US parents
3)      by naturalization
4)      by naturalization of a parent while the child is under 18 years old
Nationality At birth and by collective naturalization [301-309] ·         all persons born in the US and subject to its jurisdiction automatically acquire citizenship. INA 301 (a).   This principle of common law was codified by the Fourteenth Amendment.   INA 301 (b)
·         US citizen if born in the US and member of Indian, Eskimo, Aleutian, or some other aboriginal tribe INA 301(b)
o   Provided that the citizenship does not impair the rights of such persons to tribal or other property
Birth in the Territories of the US [see statutes] ·         302- Persons born in Puerto Rico on or after April 11, 1899
o   If born after 4/11/1899-1/13/1941 and subject to the jurisdiction of US and residing on 1/13/1941 in PR or any other US territory, then US citizen
o   All persons born in PR on 1/13/1941 and afterwards, and subject to US jurisdiction Us are citizens of US at birth.  
·         303- Person born in Canal Zone or Panama on or after 2/26/1904
·         304- persons born in Alaska on or after 3/30/1867
·         305- persons born in Hawaii
·         306- persons living in and born in the virgin island
·         307- persons living in and born in guam
Birth Outside the United States [301 ©] ·         Individuals born abroad of US citizen parents can acquire us citizenship.
·         This acquired form of citizenship is controlled by statute, rather than by the Constitution or 14th amendment.  
·         The statute requires the citizen parent to have lived in the US prior to the child’s birth.
o   This limitation prevents citizenship by descent for individuals whose parents have never lived in the US and thus have little contact with the country
·         If one of the parents is a US citizen and has been physically present in the US or its outlying possessions for a continuous period of one year prior to the kid’s birth and the other parent is a US national then the kid is a citizen.   See INA 308. It distinguishes between a citizen and a national. 
o   The US differentiates between national and citizen.   All US citizens are US nationals, but not all US nationals are US citizens.   
o   A U.S. national is someone who is a native of American Samoa or Swain’s Island (people that live in the outlying possessions).
o   There are almost no US nationals left.      
·         See 301 (g)
·         f) person without known parents found in the US while under the age of five and before he is 21 and there is no showing that ….????
Children born out of Wedlock [INA 301 and INA 309; both apply] ·         A child born out of wedlock abroad acquires citizenship at birth if his or her mother is a US citizen who resided in the US for one year prior to the child’s birth.   INA 309 © check statute for accuracy
·         Such a child can, however, only acquire through a US citizen father if the father agrees in writing to provide financial support for the child until the child’s eighteenth birthday and acknowledges paternity by one of three specified methods before the child turns 18. INA 309 (A)
o   1) the person is legitimated under the law of the person’s residence or domicile; OR
o   2) the father acknowledges paternity of the person in writing under oath; OR
o   3) the paternity of the person is established by adjudication of competent court.  
·         Finally, the father has to also show that a blood relationship between kid and dad exist by clear and convincing evidence. 
·         Nuguyen v. INS- challenged the constitutionality of imposing additional requirements on fathers who wish to transmit their citizenship to their children born out of wedlock. Ct. said tough luck b/c the father failed to establish paternity before the kid attained the age of 18. Supreme Court said that this did not violate the equal protection clause b/c its requirements are substantially related to the important government interest of assuring that there is a genuine connection between the father, the child, and the United States.   
Citizenship by Naturalization
·         Historical development
o   First attempt to naturalize foreigners was through Naturalization Act of 1790
o   However, many years later, the Chinese Exclusion Act was passed to stop the immigration of Chinese people.  
o   T

to a crime of moral turpitude; a person involved in prostitution, smuggling of a person, or drug trafficking, except for a single conviction involving possession of no more than 30 grams of marijuana; a polygamist; or non-citizen who was previously removed.  
§ 3) illegal gamblers
§ 4) one who has given false testimony for the purpose of obtaining any benefits under the act; or
§ 5) a person who has been convicted and jailed for 180 days or more, regardless of whether the offense was committed within this period.  
o   Furthermore, a conviction at any time for an aggravated felony precludes a finding that a person has good moral character. INA 101 (f).   [see problem in casebook] § Aggravated felony includes murder, rape, sexual abuse of a minor, drug trafficking, offenses related to prostitution and child pornography, and theft offenses or crimes of violence carrying a sentence of at least one year. INA 101 (a) (43).
§ Federal law rather than state law controls in determining what is considered aggravated felony
o   Even crimes that do not rise to the level of an aggravated felony can serve as a bar to naturalization.  
o   An applicant who admits to committing a crime of moral turpitude or a controlled substance violation will be found not to possess good moral character even if never charged, indicted, arrested or convicted of a crime.  
§ Burglary is a crime of moral turpitude.  
·         5) attachment to constitutional principles
o   Applicants must show that they are attached to the principles of the constitution of the US, and well disposed to the good order of happiness of the US.  
o   Individuals belonging to the communist party or other totalitarian groups and persons who advocate the overthrow of the us government by force or violence or other unconstitutional means may not obtain naturalization.   INA 313 (a) (4)
o   Applicants may escape the preclusion statute if more than ten years have passed since they were members of the subversive organization. INA 313 ©.  
o   Past members of the communist party who have made a contribution to national security of US may be exempted from exclusion. INA 314 (e).  
o   INA 314 permanently precludes the naturalization of anyone who, during the time that the us has been or shall be at war, deserts the US armed forces or leaves the country with the intent of avoiding the military draft, and is convicted of that offense by a court-martial or court of competent jurisdiction. INA 314
o   INA 315 (a) provides that non-citizens who seek or obtain exemption from service in the US armed forces on the ground that they are not citizens become permanently ineligible for citizenship, unless they had served in the military of a country that has a treaty with the US
·         6) Oath of allegiance to the US
o   337 (a) of the INA requires that applicants pledge
§ 1) to support and bear true faith and allegiance to the constitution of the US;
§ 2) to renounce all allegiance to any foreign state or sovereign;
§ 3) to support and defend the constitution and laws of the us against all enemies, foreign and domestic; and
§ 4) to bear arms on behalf of the us when required by law, or to perform noncombatant service in the armed forces, or to perform civilian work of national importance when required by law.