Select Page

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

Immigration Weinberg Fall 2017

Chapter 1: Citizenship

Section A: The Concept of Citizenship

Reasons for Domestic Closure: power to exclude; modern idea of nation-state; legitimacy (cannot claim legitimacy as governing on behalf of a particular nation w/o having a rule saying what that nation is); loyalty/security; protect resource distribution/fiscal & occupational competition interest
Access to Citizenship

Ascription: happens @ birth à presumption of membership if born here; no period of uncertainty; administrative convenience
Naturalization: citizenship acquired later in life via conditions set by the nation-state

Access restricted by rules of immigration as naturalization requires period of in-state residency

Section B: Citizenship and the Constitution

(Pre-14th Amendment) No constitutional definition of “citizenship” means it is what the legislature and courts say it is
14th Amendment: “All persons born or naturalized in the US, and subject to the jurisdiction thereof, are citizens of the US and the State in which they reside.”

AND “any person” in US (not just “citizens”) is entitled to DP and equal protection of law (elsewhere in amendment)

Purpose: overturns Dred Scott decision and consent requirement to citizenship

Section C: Acquisition of Nationality by Birth

Jus Soli: conferral of nationality based on birth w/in the national territory
US v. Wong Kim Ark: D born in SF to Chinese non-citizen parents. D visits China later in life, is denied re-entry to US.

P’s claim: Rules of citizenship are jus sanguinis; D is a Chinese citizen. @ Birth he was not “subject to the jurisdiction thereof” of US b/c his parents retained allegiance to China.
HELD: D is born in US which makes him a USC.

RULE: Just b/c Congress has the power to determine a naturalization process [and exclude Chinese citizens from entering this country and naturalizing via the new Chinese Exclusion Act] does NOT give them the power to take citizenship away (which was given by birthright) in contradiction of the 14th Amendment.

Bottom line: If you are born within the US and subject to the authority of the government, you are a USC regardless of the status of your parents.
What does it mean to be “subject to the jurisdiction thereof?” It does not exclude many, only:

Children born to alien enemies during hostile invasion
Children of foreign diplomats here as diplomats

Jus Sanguinis: Right of blood; nationality based on descent, regardless of place of birth

INA § 301: Nationals and USCs at birth (these rules are not retroactive; if client born in 1954, the law of that year applies) p. 461. For those born outside US territory:

(c): both parents USCs à one parent must have had a residence in US prior to birth
(d): one USC parent, one national parent à USC parent has been in US continuously for one year prior to birth
(g): one alien parent, one USC parent à USC parent was physically present in US for period(s) totaling not less than 5 years, at least 2 of them before 14y/o

INA § 308: Nationals of US at birth (same rules as § 301 where at least one parent is a national). p. 465
INA § 309: Children born out of wedlock p. 465

If born to USC or national father outside US: (a)(4) CC evidence of blood relationship, & father had US nationality at time of child’s birth, & father (unless deceased) agrees in writing to provide financial support until child is 18, & while under 18 the child has been legitimated under law, the father acknowledges paternity in writing under oath or the paternity is established by a court.
If born to USC or national mother outside US: (after 1952) § 309(c): mother had to be physically present in US (or outlying possessions) for continuous period of one year; be a US national at time of child’s birth
Sometimes § 309 is better route if it will be impossible to meet residency requirements of §§ 301, 303 (so… don’t get married)

Nguyen v. INS: P born in Saigon to USC dad and alien mother. P travels to US w/dad. At 22, he tries to prove citizenship to prevent deportation after he commits a crime but he cannot fulfill the requirements of § 309(a) (4) – legitimation; a declaration of paternity under Oath by father; or by court order of paternity, which must be completed before age 18. If he had been born to USC mother, no affirmative acts would have been required other than mother had one year continuous presence in US.

ISSUE: Does 309(a) (4) violate equal protection? NO
HELD: Proof of paternity is substantially related to legit. Gov’t interest à establish relationship w/USC parent and, thus, w/US.
Bottom line: Being born to a USC mother out of wedlock is easiest way to be considered USC if you are born outside US territory.

NOTE: Had INA § 320 been in effect, Nguyen would have been safe: child born outside US automatically becomes USC when: one parent is USC; child is under 18; & child resides in US as LPR in legal & physical custody of USC parent.

Section D: Naturalization

The Basic Substantive Provisions

INA §310: Basic administrative procedure
INA § 335: examination of application for naturalization
INA §336: hearing before an immigration officer if application is denied at examination stage.

INA § 316: Requirements of Naturalization p. 470 there are five requirements

(a) Resided continuously in US as LPR for 5 years

Must have been physically present in US at least half of that time; resided in district in which you filed a petition for at least 3 months; resided continuously in US from time of application until time of admission to citizenship

(b)Absences

Less than 6 months: no problem
6 months – one year: rebuttable presumption of break in continuity
One year+: break in continuity as a matter of law

UNLESS away pursuant to duty under K w/US gov’t, institution of research, or corporation, or religious organization

May apply to be away w/o breaking continuity
Must be in US continuous for one year prior to leaving

(C) Good Moral Character: 5 years preceding date of application

INA § 101(f): per se NOT GMC (p. 45). The list is NOT-exhaustive: illegal gambler, drunkard, aggregate jail time of 180 days, Aggravated Felony, etc.
316(e): AG allowed to look beyond 5 year period

(d) Attachment to Constitutional Principles

Precluded:

INA § 313: “Meaningful association” w/Communist party, totalitarian group, violent gov’t overthrow group UNLESS involuntary member
INA § 314: Draft dodger and/or deserter

Oath of allegiance/renunciation of former loyalties

INA § 337: Unless shown by C&C evidence one is opposed to bearing arms for religious reasons

(e) INA § 312: English Language proficiency/ knowledge of civics and history

Exceptions to language proficiency: LPRs over 50 who have been living in US for periods totaling 20 years; LPRs over 55 living here for 15 years; unable to b/c of physical or developmental impairment
“Special consideration” given to LPRs over 65 who have been living here for 20 years w/regard to knowledge of civics/history

INA § 319: Residency requirement relaxed to 3 years for spouses of USCs. 3 years residence, living in marital union, required.
INA § 320: Derivative citizenship à child under 18 is automatically naturalized when one parent is as long as child entered country as LPR.
INA § 328: Naturalization via service in military; residency/presence requirements are waived or relaxed
INA § 334: One can apply for naturalization 3 months before meeting residency req. Must be 18

Section E: Dual Nationality

Disfavored b/c of competing loyalties; arises in US context in 4 situations:

Birth in US to immigrant parents (where country of origin retains jus sanguinis rules)
Birth outside US to one USC parent and another who is a foreigner
Naturalization w/a renunciation requirement that is not recognized in country of origin
Naturalization, loss of citizenship, and resumption of citizenship

Chapter 2: Foundations of the Immigration Power

Section A: A Brief History of Immigration to US

Evolution of US Immigration Policy

Pre-Revolution: No restrictions
1830s-40s: Push back against Catholics
1882: Chinese Exclusion Act (CEA)
1890s: Push back against Italians and Jews

Claims that new immigrants were mentally and physically inferior, criminals, diseased, incapable of assimilation

1924: National Origins Quotas: implemented based on ethnic population of US in 1890; favo

asylums)

Procedure

Visa petition filed by US family member OR prospective employer

Family member: files petition w/USCIS w/proof of relationship (marriage or birth certs.)
Employer: files documents w/DOL to obtain labor cert., then files petition w/USCIS along w/proof of ability to pay stated wages

Petition is approved by USCIS and transmitted to consulate in non-citizen’s country

If non-citizen is already in US w/lawful non-immigrant status, he may apply to a USCIS office in US for adjustment of status

SPECIAL NOTE: No immigrant subject to quotas may receive a visa (OR become LPR via adjustment of status) until his priority date is current per visa bulletin

Priority date = date when first relevant document was properly filed w/appropriate agency (visa petition for FB categories & application for labor cert. for some EB categories).
NOTE: Conversion from one preference category is ok and you can still keep original priority date.

Ex: USC father petitions for 26 y/o daughter (thus, she is not a child and not an immediate relative), on June 1, 2005. She is waiting for her priority date to be current and gets married in the meantime. She is no longer FB-1 but now FB-3. Despite her status change, she can still keep the June 1, 2005 priority date (but the delays might be longer than if she was still in FB-1)

Family-Sponsored Immigration: INA § 203(a)

4 preference categories – unlimited admission of immediate relatives of USC plus 226,000 family slots

(1) Unmarried sons and daughters of USCs – FB-1 (23.4k)
(2) Spouses and unmarried sons and unmarried daughters of LPRs – FB-2(114.2k)

Qualified immigrants

(a) Who are the spouses or children of LPR (77% of quota)

“child” = under 21 and unmarried per INA § 101(b)(2)
Child Status Protection Act (relative age of a statutory child):

If immediate relative petition, age is fixed as of the filing of the petition.
If person is minor child of LPR and the LPR naturalizes, child becomes immediate relative and age is fixed at time of parent’s adjustment/naturalization
For FS-2A categories and for derivative beneficiaries (203(d)), the child’s age is determined as of the date the relevant category becomes current, reduced by the amount of time the visa petition was pending.
Must apply for visa or adjustment w/in one year of the date when the category becomes current or else lose the benefit of these anti-age-out rules.

(b) Who are the unmarried sons or unmarried daughters (but not child) of LPR (23% of quota)

(3) Married sons and married daughters of USC – FB-3 (23.4k)

INA § 203(d) prevents break-up of married son/daughter’s own family by allowing for their spouse or child to be admitted in the same preference category (Derivative beneficiary) – treats them as following to join at any time after the principal immigrant becomes the LPR. LPR after acquired the spouse and children must use the second preference category. This benefit applies only if the relationship exists at the time the principal immigrant was admitted as LPR.

(4) Brothers and sisters of USC over 21 – FB-4 (65k)

OR as immediate relative: INA § 201(2)(A)(i) (NO QUOTAS – UNLIMITED)

Spouses, children, and parents (in case of parents, if petitioning USC is 21+) of a USC
This category is BEST b/c no quota à entitled to a visa subject only to processing delay