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

Immigration Law Outline
 
Important questionsà Who is a citizen? What does it mean to be a US citizen? Who can come to this country as an immigrant, visitor, etc? When can non-citizens be forced to leave the US? What’s the right balance between openness & national security?
 
Ch 1 – Citizenship
 
o    Citizenship comes with rights and obligations that must be abided by in order to maintain full membership
o    Citizens have unconditional rights to entry, reentry and residence—something that non-citizens do not have. Some privileged non-citizens, those formally accepted as immigrants or settlers are probationary residents and subject to deportation and exclusion in certain circumstances
o    Access to Citizenship
o    Ascription- Every state ascribes its citizenship to certain persons at birth. Done for administrative convenience-ascription at birth makes possible clear and unambiguous assignment of individuals to states without a period of uncertainty
§ At birth, certain persons have higher chance of forming close attachments and loyalties to a particular society or state that are supposed to underlie citizenship
o    Naturalization- Candidate must fulfill certain purely conditions, but even if these are fulfilled, the state must judge whether or not the grant of citizenship is in its own best interests
§ Negative decision from the state doesn’t have to be justified and cant be appealedàfinal!
Membership issue à citizenship divides country into “we” & “them”
Who are the “we”? what are the rules? What does “membership” get you?
Citizens v. non-citizens Rights
Citizen Rights
Can sue in Art 3 courts
Right to vote
Exception: Voting right may be extended to noncitizens in a local election
Tacoma park, MD: allows anyone (noncitizens) to vote even under 18
Can be a member of congress, president
Financial assistance in some cases (unemployment, etc.)
Will not be deported unless you renounce your citizenship
Noncitizen rights
Equal protection clause
Due process clause
Brubaker (p 2)
Every American citizen is either a former immigrant or the descendant of an immigrant (except Native Americans) à so you or your family had to be allowed to come here
Why citizenship? What is so good about it?
Provides legitimacy for the gov à citizenship has instrumental goals. Legitimizes the interests of the particular members of a state. Gov serves the members of its state so a boundary is created with who the gov works to serve and who isn’t served by the gov. Citizenship is also a means to display political and social loyalty.
à most important reason why it’s better to be a citizen? à can’t be deported, b/c you have a right to be here. Citizen’s presence is unconditional.  (if you’re naturalized, they might be able to deport you for obtaining citizenship by fraud, etc); non-citizens are only here on sufferance & can be forced to leave for certain reasons
Brubaker’s point à citizenship plays a major role à it’s part of the doctrine of the modern nation state, which exists for & is a representation of “the people” (specific people à the “Americans”)
Citizens view citizenship as belonging to a group & being separate from another group.
 
 
Citizenship & the Constitution
à US Constitution as originally drafted didn’t say who got to be a citizen & who didn’t; didn’t answer basic questions about acquisition, distribution, and loss of citizenship or what rights came with citizenship, it didn’t even give Congress the power to say who could be a citizen (except for naturalization provisions) by birthright
led to Dred Scott à Court ruled that citizenship (birthright esp) excluded blacks (free or slave). This was the law until 1868 when the definition of citizenship was finally written in the text of the 14th amendment Section 1: All persons born or naturalized in the US and subject to the jurisdiction thereof are citizens of the US and of the state wherein they reside.
Dual Nationality P 90
o    Fairly common and uncontroversial in the US but disfavored in other countries bc of a problem with people being more loyal to one country opposed to another.
o    Plural citizenship in the US arises in 4 situations:
o    Birth in the US to immigrant parents- a citizen of country A moves to the US and has a child. The child is a dual citizen if country A has jus sanguinis rules that recognize the child as citizen of A.
o    Birth outside the US to one parent who is a US citizen and another who is a foreigner- A citizen of the US marries a citizen of country A and has a child in country A. If the US citizen maintains the ties to the US necessary for the transmission of citizenship jure sanguinis, the child is a citizen of both country A and the US.
o    Naturalization with a renunciation requirement, but renunciation not recognized by country of origin- A citizen of country A naturalizes in the US. Even though the naturalization oath demands renunciation of other citizenships, country A does not deem naturalization elsewhere as expatriating the citizen.
o    Naturalization, loss of citizenship, and resumption of citizenship. – a citizen of country A naturalizes in the US. Country A deems them to have lost citizenship but provides for the resumption of citizenship.
Acquisition of Nationality by Birth
Who gets to be a citizen? What are the rules?
Jus solià right of land: if you’re born w/in US territory, you’re a US citizen à most US citizens this way
Exceptions
Child born to foreign diplomats with diplomatic immunity (not subject to US laws)
Born to a soldier of an occupying power
Jus sanguinisàright of blood: if you’re born to US citizen parent(s), you’re a US citizen à very small # this way. Nationality based on descent, irrespective of the place of birth.
à so a child of an illegal immigrant, or a foreign tourist, born in the US is automatically a US citizen through Jus soli.
Jus Soli
Doctrinal à who do the 14th am rules cover & who don’t they cover? à “all persons born in US” is clear; so only “subject to j-d thereof” is unclear
Elk v Wilkins (1884) (p 15) à Court held that Native Americans weren’t US citizens b/c not they are not “completely” subject to j-d of US à b/c tribes were officially considered independent sovereign nations. The issue was that someone born on US territory but a member of a tribe was subject to tribal law and not US law.
Congress overruled this legislatively—this is still birthright citizenship, not naturalization. Congress created additional categories of birthright citizenship to include all Native Americans born w/in US territory, despite their tribal membership.  
Wong Kim Ark (1895) (p 17): establishes “universal citizenship by birth” p
I: Are children of Chinese citizens born in the US, US citizens? YES
At the time, Chinese people couldn’t naturalize. Only free white people and persons of African nativity or descent could. Arg against Wong is that his parents aren’t citizens and they aren’t subject to the jurisdiction of the US, but rather to the Emperor in China.
H: The constitutional text says you are a citizen unless not subject to the US jurisdiction. The Ct rejected that certain racial groups are by that virtue not subject to US jurisdiction and found that any person born in the US (regardless of parents’ citizenship) would be a US citizen.  “Subject to the jurisdiction” is given a broad reading  – not restricted by race.
Schuck & Smith Article P 30 : they argue that children of illegal immigrants shouldn’t be given birthright citizenship b/c not “subject to j-d of US”
bottom line à very hard to justify S & S argument as a matter of const’l doctrine à incorrect way to interpret 14th Am in light of text & history à accepted view is that Constitution mandates a broad interpretation of jus soli (born here = citizen)
Policy à is this a good way to establish citizenship?
no European country has a jus soli rule like ours à don’t grant citizenship to illegal immigrants’ kids & much more strict about granting citizenship to legal immigrants’ kids
à on a basic level, who do we think is the “us” & the “them”?  Currently the Constitution is interpreted as requiring that anyone born w/in geographic confines of US is the “us”
 Martin Article:  big advantages to saying everyone born here is “us” b/c it helps to assimilate
Europe: non-citizen children of immigrants know that they are “them” (France)
Jus Sanguinis
Citizenship by blood. If one or both parents is a citizen, but you weren’t born in US, you’re still a citizen (most of the time). This comes from statute not the constitution (unlike jus soli). Statute has been changed numerous times & changes aren’t retroactive àMust check the law at the time of birth, not necessarily the current law. Note: the rules changed in 1978, so be aware of this date if the child is born prior to then on the exam.  
The current jus sanguinis rules are set forth in INA 301(c), (d), (e), (g), (h); and 309.
o    §301 married couples and unwed couples who comply with §309
Both Parents US Citizens 301c: Child born outside the US becomes a citizen if:
Both parents are US citizens AND
At least one of the citizen parents has ever had residence in the US prior to the birth.
Residence Defined: the place of general abode.
General abode means principle actual dwelling place in fact
Policy: do not want citizenship to continue on indefinitely with no contact with the US, which is why there is the US residency requirement.
One parent US Citizen and the other National (not citizen) 301 (d): Child born outside US becomes citizen if:
Citizen parent was physically present in US for continuous period of one year prior to birth of child AND other parent is a national, but not a citizen to the US.
Child born in outlying possession of US to one Citizen parent 301 (e): Child becomes citizen if:
Child born in outlying possession (American Samoa) of the US of parents one of whom is US citizen who has been physically present in US or one of its outlying possessions for a continuous period of one year at any time prior to birth of child.
US Citizen and Alien 301g: Child born outside the US becomes a citizen if:
US Citizen Parent was physically present (not necessarily residence) in the US prior to birth at least 5 years (does not need to be continuous).
2 of the 5 yrs must have been after attaining age 14.
Person born before noon in 1934 to alien father and citizen mother 301(h): Child becomes citizen if:
He is born before noon May 24, 1934, outside the limits and jurisdiction of the US of an alien father and a citizen mother who, prior to child’s birth had resided in the US.
o    §

as LPR)
Reside continuously for at least 5 years immediately prior to application
Physically present for at least half the time
2) Reside continuously in the US for the time your application is processed (application to admission)
3) Good Moral character: Attached to the principals of the US
(b) Absences
Temporary absences do not break continuity
Opportunity to rebut any absence from 6 mos to 1 yr
Absence > 1 yr breaks the continuity of the residence
(e) Determination of Good Moral Character (burden on the applicant)
§316a requires good moral character
§316e states how moral character is determined
Good moral character at ANY time. The atty general may look beyond just the past 5 yrs preceding the application filing (if not listed in §101f which requires a bad character finding, 101f3 only allows looking 5 yrs prior)
§ 101f defines who is not a person of good moral character (limited to 5yrs prior ONLY)
Someone who is or was
(f)(1): a habitual drunkard
(f)(3): §212(a) person – Moral Turpitude (prostitute, smugglers, drug offenders, multiple convictions, fraud)
 (f)(4) illegal gambling
(f)(7) in jail for greater than 6 mos (for any offense)
(f)(8): at any time convicted of an aggravated felony (at any time)
101(a)(43) defines aggravated felonies – murder, rape, drug trafficking, crimes of violence which imprison for > 1yr, theft, burglary [see 37 supp] Aggravated felony conviction = a complete bar to naturalization bc deportation
Or “for other reasons” at the discretion of the agency
(f) Persons making extraordinary contributions to national security
Other provisions relevant to Naturalization:
§ 312(a)(1) English language requirement
must speak, read, & write English (exceptions for people > 50 yo meeting certain residence reqs)
à it’s currently a given that English is required; no challenges
à is this a good req (to know English)? à what if you’re highly educated in another language?
US doesn’t actually have an “official” language (not in Constitution or any statute) à but everything important in the US is conducted in English, including the naturalization reqs
à always comes back to the definition of who the “we” is à too parochial or ok?
§ 312(a)(2) knowledge & understanding of US civics & history
atty gen can cut you slack if you’re over 65
100 questions they can ask; give you a book from which you can study
§ 312 (b) (1) requirements of (a) don’t apply to those with physical, mental, developmental disability
§ 312(b)(2) subsection (a)(1) doesn’t apply to those who on the date of filing the app (A) are over 50 years and living in the US for periods totaling at least 20 years as an LPR or (B) who is over 55 and has been living in the US as an LPR for periods totaling 15 years.
§ 313 Prohibition upon the naturalization of persons opposed to government or law: may bar naturalization if client is determined to be an advocate or affiliated with the terrorist group
No person shall be naturalized if
(a)1: opposition to organized government
(a)2-6: affiliation with a terrorist organization is a bar as well
What is terrorist activity – very broad
§212a3B4 – soliciting funds or giving support to a designated terrorist organization is sufficient
1) Did the secretary designate the organization as terrorist OR
2) Even if not designated, did the person know (scienter) of the terrorist ties
This statute looks 10 years into the past 313c
Other consequences: 237a4B – can be deported for terrorist activity and deportation means you cannot be naturalized
§ 319 Married persons (3 yrs for naturalization instead of 5 yrs)
Requirements
1) Spouse is a US Citizen
2) Reside continuously after being lawfully admitted for permanent residence for at least 3 years
3) During the 3 yrs immediately before filing for citizenship be living in marital union with the citizen spouse AND
4) The citizen spouse has to be physically present for at least ½ that time and reside in the state of application for at least 3 months
§ 334 Application for naturalization
The application for naturalization may be filed up to 3 months before the date the application or would otherwise meet the continuous residence requirement under §316 or §319