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

2 key issues for the semester
– Immigration
o Who can come to the country? Who is physically allowed to enter the country?
o How long may they stay?
o Under what circumstances must they leave?
– Citizenship
o Who is a citizen and what does that mean?
o What are the rules of inclusion and exclusion?
o What rights are associated with citizenship?

Why have citizenship?
– Every citizen has at least one country that will always take them
– the country knows who they do and do not have obligations to (protection, etc.)
– don’t want divided loyalties

– as first enacted did not define who qualified as a citizen

Dred Scott
– denied citizenship to non-whites

Civil Rights Act of 1866
– all persons born in US, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the US

14th Amendment
– Current Citizenship Rule
o Jus Soli
§ All persons born or naturalized and subject to the jurisdiction thereof are citizens of the US and the state wherein they reside
§ Exceptions
· Children born the foreign ambassadors are not US citizens on birth within the US
· Children of persons from an occupying country born in the US are not citizens

Jus Sanguinis
– many European and other countries use this
– children born to citizens are citizens themselves
– US applies this to the children of US citizens born abroad

Elk v. Wilkins [15] – native Indians are not US citizens because they are not subject to the jurisdiction of the US
– This has been overruled legislatively by Congress by adding Native Americans born in the US as citizens

Chinese Exclusion Act 1882
– Chinese persons could not be naturalized as citizens

Wong Kim Ark
– persons born in the US to Chinese immigrants, illegal or not, are US citizens

Shuck & Smith versus Gerald Newman
– S&S are stretching to make their argument because it does not fit within the language of the 14th Amendments
o Newman – under the common meaning of jurisdiction the children of illegal immigrants are under US jurisdiction, you cannot validly argue otherwise

Is it a good or bad thing to allow children of illegal aliens born in the US to be citizens
– the children of illegal aliens as well as illegal aliens themselves have greatly contributed to the success and economy of the US
– allowing their children to become citizens fosters the desire to be citizens and an acceptance within the community of those children as citizens
o other countries often have a problem with the children of immigrants not wanting to become citizens because their policies make them feel like outsiders

Pg 34 Problems
– 1. yes, if parents are currently citizens of the US and one of the two parents has ever had residence in the US (301(c))
o We don’t want a class of ex-patriots who can transmit US citizenship to their descendants indefinitely, this rule serves to prevent that
– 2. If the father can meet the requirements of 309(a) then they do not need to be married for the child to acquire citizenship
o (1) Prove that he is the genetic father
o (3) Agree in writing that he will financially support the child
o (4) Certify under oath that he is the child’s father
– 2b. If he has not lived or been physically present in the US for 5+ years (non-continuous) then he cannot meet the requirements of 301(g) and the child cannot obtain US citizenship at birth.

Nguyen v. INS
– Facts
o Child born to Vietnamese mother and American father in Vietnam with military.
o Child lives with father and later Vietnamese girlfriend for some time
o Child then moves to US with father and resides in Texas at age 6
o Child commits multiple crimes/felonies and INS wants to deport
o Child’s father did not take formal legal steps to get him citizenship before he was 18, nor did he sign an oath stating he was the child’s father before he was 18
– Ruling
o The sex discrimination making it harder for a child with an unmarried US father to get citizenship than a child with an unmarried US mother, where the other parent is not a US citizen, is constitutional and legitimat

itted aggravated felony – ever
o prostitutes
o smugglers
o multiple convictions
o illegal gambling activities
o falsely receiving immigration benefits
o during relevant periods went to jail for more than 6 mo
o etc

– cannot be granted citizenship if convicted of a drug law
– cannot be granted citizenship if convicted of a crime involving moral turpitude during the relevant period (5 year residence)
o involves lying, theft, etc.
– (3)(b)(3)
o Defines terrorism
– (3)(b)(4)
o It is terrorist activity to give money to any org that the Secretary of State has designated as a terrorist organization
– If the Sec. of State has not designated it as a terrorist organization then there must be some evidence that the person knew the organization was affiliated with terrorist activity

– Dept of Homeland Security (DHS) does not have to limit itself to the past 5 years in determining if the person is of good moral character

– you may be deported for involvement in terrorist activities

Requirement of English “fluency”
– not a difficult test, does not require real fluency

Immigration Categories
– family sponsored immigrants
o family initiates the immigration application/petition
§ certifies that they are a family member
o CIS must then approve the visa petition
o The application is then reviewed to see if the immigrant is disqualified under the INA
– employment based immigrants
o potential employer initiates the immigration application/petition
must get labor certification from Secretary of Labor which certifies that there are not sufficient workers in the area already