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

Immigration & Nationality Outline (Weinberg)- Fall 2014


· History of Immigration

– Pre 1870- there were essentially no fed restraints on immigration other than the 1818 ban on slave trade

– But there were some restraints that states imposed—states didn’t want paupers- poor people who needed public support

– Lack of clarity about what government should be doing about immigration control

– 1875: immigration regulation became a federal government issue

– Despite much prejudice and racism early on, there were no legal restrictions to come to the US – free movement

– Anti-Chinese prejudice- a huge deal on the west coast- congress begins to pass laws restricting Chinese in 1862 and 1875.

ü Chinese Exclusion Act passed in 1882- bans the entry of anyone from China except for wealthy merchants. Followed by bans for Japanese and other Asians

– But still not many significant restrictions for whites moving to the US until the 1920s

– National Origins Act (NOA) of 1924- huge crucial change in American immigration law.

ü Largely driven by prejudice against Europeans- Italians and Jews.

ü What drives it—from the mid -1800s to the turn of the century, immigration changes.

ü Immigration in the mid -1800s= German, Irish, western and northern Europeans,

ü Huge amount of negative reaction

– From 1890-1915- the flow of immigrants come from Italy, eastern Europe, Poland—

ü Those people are seen by the northern and western Europeans as inferior and unassimilable

– NOA 1924 statute- each country gets assigned a yearly quota- depends on the country

ü Now we are no longer just limiting immigration from Asia, we are accepting up to 140,000 from certain parts of Europe and about 20,000 people from the rest of the world

– In 1965: NOA is repealed- The new system says every country gets 20,000 immigrants.

ü Big consequence: huge increase of immigrants from Asian countries

ü But this statute keeps the sharp numerical limitations on who can enter the country.

ü Pre 1924, immigration is limited only by the people who want to come

ü After 1924, there are sharp numerical limits- once your countries yearly immigration quota is met, that’s it.

ü After 1965, the numbers are different per country (20,000 for everyone). But once you hit 20,000 quota for a country, that’s it.

§ Preference categories are set up…who gets one of the 20,000 slots?

§ If you didn’t fall into resident, communist refugee from Mid East, close relative of citizen, married to citizen, employment in US, you were put in 8th category

§ 8th category= everyone else

§ After 1970- no one in 8th category gets in

§ So in 1990- category is eliminated

§ Post 1990 rules—the present: yearly limits of immigration in US plus without regard to quotas, you can’t come to US without falling into a preference category

– Mexico and US have a unique history

ü From the mid-1800s-early 1900s, no one sees a lot of reason to worry about the Mexican-American border

ü By early 1900s, there are labor shortages in the US

§ For the duration of WWI, Mexican workers are brought to US temporarily;

§ Huge migration from refugees to the US.

§ A combination of the aggressive demand in US and economic and political turmoil in Mexico…huge Mexican immigration— circular immigration (they go work in US and go back) in 1910 (peak in 1924)

ü Formation of US border patrol in 1924

ü Great depression- halves the size of the migrant population in the US

ü WWII- US needs cheap Mexican labor again… Bresara program created for temporary workers in agriculture

§ Many illegal Mexican immigrants…but were eventually filtered to the program

§ By late 1950s, about half a million people cross from Mexican to US as authorized

§ Bresara program ended in 1965- b/c the working conditions of migrant farm workers are deplorable and civil rights groups notice.

§ Problem- growers need cheap workers and Mexicans have also gotten used to coming to the US to make money.

o Lots of pressure to migrate except, Mexican is part of the national cap of 20,000.

o So, there is a sharp rise in illegal, mostly temporary immigration from Mexicans.

o Some border enforcement but not much

– Last major legal move: IRCA in 1986- some sense that the border is out of control. Designed to solve the immigration problem through:

ü Setting up a program to legalize long term illegal immigrants

ü Setting up program to legalize other undocumented farm workers

ü Attempting to close the border by increasing the budget and criminalizing employers for hiring people who aren’t allowed to be in US

ü IRCA doesn’t succeed—the border measures don’t stop migrants or employers

ü There are currently 11 or 12 million unauthorized immigrants in US



· Who is the “WE” in this country?

· What are the rules of exclusion and inclusion?

· What rights follow from being a US citizen?

· Brubaker Article: Citizenship as a Social Closure: (p. 81)- there is a connection between immigration law and citizenship

– Citizens are either those who immigrated to country or who’s forbearers immigrated and became residents (physically present in US)

– Big question: why citizenship? Why should we have this concept?

ü Would we be missing something if we abolished citizenship?

§ Citizenship gives the individual a “home”- can’t be deported

§ Citizenship fosters a unifying team spirit

§ The basic legitimating doctrine the modern nation state uses to justify its existence is the notion that the world is divided into citizens and noncitizens, and what the state is for, is the “us”—the state furthers the interest of a specific, bounded, unified group of people with something in common

o But this only makes sense if you have outsiders/a dividing line

· Ought to have pretty good rules about who is a citizen and who isn’t

– But US constitution until 1868 said nothing about who was a citizen and who wasn’t

– Lead to bad consequences…Dred Scott- citizenship excludes blacks

– 14th Amendment: all persons born in US and subject to jurisdiction thereof are citizens of the US

– Constitution gives some things you can get from being a citizen (being president, voting)…. none are as important as not getting deported no matter what you have done

ü If you are naturalized as a citizen, you are a citizen and can’t be deported

ü The people who can be deported are those who are living in the US who are not citizens- ex. student visas, lawful permanent resident, green cards

ü Caveat: natural born and naturalized citizens are different because a naturalized citizen is always vulnerable to the claim that his naturalization was fraudulent (hardly happen

· If they are not married, we use:

INA: § 309

(c) Notwithstanding the provision of subsection (a) of this section, a person born, after December 23, 1952, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person’s birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year

· This makes no sense…why write the rules this way

What if they are both US citizens but they are not married, and child born abroad:

· Can satisfy 309(a) or 309(c)

5 Part Rule Summary: Children Born Abroad

· Two US citizens, child born in wedlock. Child gets citizenship if both have residence

· One US citizen, one not, child born in wedlock. Citizen parent must satisfy 5 years

· Out of wedlock- both citizens. Can satisfy:

– 309(a)- father DNA test; financial support, or

– 309(c)- mother has nationality, continuous presence in US for one year

· Out of wedlock- dad citizen. Must satisfy 309(a)

· Out of wedlock- mom citizen. Must satisfy 309(c)

Gender Discrimination and Citizenship:

· 1993: the 9th Circuit says that gender discrimination for constitutionality was unconstitutional and it applied retrospectively (people could demonstrate that they would have been citizens prior to 1934 if the jus sanguinis rules had been written in gender-neutral terms

· Nguyen v. INS:

– If the Supreme Court is going to have different rules regarding citizenship for men and women, there needs to be a good reason for it.

– Held: Section 309 gender discrimination is fine… not a problem.

– Justice Kennedy said: 2 goals

· 1) Want to promote the goal that the punitive parent really is the genetic biological parent

ü Is there a connection between this goal and the way they wrote the statute?

ü It’s easy to tell who the mother of the child is. Not always easy to tell who the father is

§ 3 problems:

o Its already the case that 309(a)(1) sets as a requirement that the blood relationship between child and father be established by clear and convincing evidence (DNA test)

– So we don’t need 309(a)(4)

o It’s obvious that the mother is the mother

– But that’s not right… 15 years later, when the mother claims this baby is her child just b/c she claims she delivered it, doesn’t necessarily makes her the mother…no proof

o If we are worried about fraud…about the father saying that the baby is a citizen because father is, the provision doesn’t actually prevent fraud b/c all the father has to do is swear to it