IMMIGRATION OVERVIEW – Brown – Fall 2011
I. Citizens are NOT subject to Immigration Control
a. Can travel freely
b. Can break U.S. Laws without fear of effect on immigration status
II. Sources of Immigration Law
a. Immigration and Nationality Act (INA)
i. Federal Statutory Law
b. Federal Court Precedent
i. SCOTUS
ii. Federal Courts of Appeals (Circuit Courts)
iii. Board of Immigration Appeals (BIA)
1. Administrative Appeal Court under DOJ
c. INA and Immigration Agency Regulations in the Code of Federal Regulations
i. Established by federal agencies concerned with Immigration
III. Persons
a. Immigrant
i. LPR à Alien admitted for permanent residence
ii. Immigrant Intent à Remain PERMANENTLY in the U.S.
iii. Eligible to naturalize after several years of residence
iv. Major Statutory Categories
1. Family Sponsored
2. Employment Based
3. Diversity
b. Non-Immigrant
i. Alien admitted for temporary, specific purpose
ii. Non-Immigrant Intent à Remain TEMPORARILY in the U.S. and then leave
iii. Major Categories
1. Tourist (B-2)
2. Student (F-1, J-1)
c. Undocumented Immigrant
i. Two ways of becoming undocumented
1. Entered illegally (Without Inspection at the Border)
2. Overstayed Non-Immigrant Visa (Went out of status)
IV. Immigration Status
a. Only Applicable to Aliens
b. Category of Admission
i. Admission – Inadmissibility
1. Even if you qualify for immigrant or non-immigrant category, you must also be admissible
a. You CANNOT fall under any inadmissibility grounds - INA §212(a)
i. Consular offices check abroad and officers check at border
ii. Removal – Deportability
1. To Stay in the U.S. as an alien, you must NOT ONLY maintain legal immigration status, but also AVOID falling under any deportability grounds – INA §237
V. Who Enforces Immigration Law?
a. Federal Government
i. Different Federal Agencies regulate different steps and spheres of immigration
1. State Department
a. Regulates and enforces immigration laws overseas for foreign nationals trying to enter the U.S.
i. DHS retains right to review decisions of the consular officers
b. Within the U.S. it oversees educational exchange programs and refugee affairs
2. DHS
a. Enforces and regulates immigration within the U.S.
b. USCIS – United States Citizenship and Immigration Service
i. Administratively regulates Non-Citizens with issues such as visa application processing
c. ICE – Immigrations and Customs Enforcement
i. Enforcement of immigration laws and regulations within U.S.
d. CBP – Customs and Border Patrol
i. Immigration Enforcement along U.S. borders
3. DOL
a. Regulates employment related immigration
4. HHS
a. Regulates public health issues related to immigration and refugee resettlement through two departments
i. Office of Refugee Resettlement
1. Also responsible for unaccompanied minors
ii. Public Health Service
5. DOJ
a. Through EOIR (Executive Office of Immigration Review) adjudicates cases involving
i. Alien’s right to remain in US (Removal Hearings)
ii. Unauthorized hiring of aliens
iii. Employment Discrimination against aliens
b. Three Units of EOIR
i. OCIJ – Office of the Chief Immigration Judge
1. Oversees immigration judges who adjudicate removal hearings
2. Decisions NOT BINDING precedent
ii. BIA – Board of Immigration Appeals
1. Hears appeals from IJs and USCIS decisions
2. Decisions are BINDING & PRECEDENT
3. Judicial Review of BIA decisions can be done by:
a. Federal Circuit Courts of Appeals
b. SCOTUS
iii. OCAHO – Office of the Chief Administrative Hearing Officer
1. Adjudicates unauthorized employment of aliens and job discrimination against aliens
VI. Legal Terminology
a. INA à Immigration and Nationality Act (1952)
i. Title 8 of U.S. Code and regulations in 8 CFR
1. Except regulations for DOS in 22 CFR, DOL in 20 CFR, and DHS Organization in 6 CFR
b. Alien à Any non-citizen of the U.S.
VII. Changes in Immigration Policy Through Time
a. 1940-2003 à AG responsible for Immigration
i. Created INS within DOJ
1. Functions of INS Included
a. Law enforcement, inspection
b. Prosecution, detention of non-citizens
c. Applications for immigration benefits
b. 9/11 led to Homeland Security Act (HSA) and DHS
i. HAS dissolved INS and created DHS
VIII. Nationality
a. A U.S. Citizen = U.S. National
i. EXCEPT à Natives of American Samoa and Swains Island
b. Three Ways of Becoming a Citizen
i. Being Born in U.S. soil
ii. Being born abroad to 1 or 2 Citizenship parents
1. Exceptions exist depending on physical presence of citizen parents in U.S. and marital status
iii. Naturalizing
1. LPR for 5 years
2. Pass a literacy and citizenship test
3. Must show attachment to Constitutional Principles of U.S. and good moral character
c. Losing U.S. Citizenship
i. ANY citizen can voluntarily give up citizenship through expatration
ii. Naturalized citizens can lose citizenship if defects found in original order
1. Applications for Immigration benefits on path to citizenship (visas, permanent residency) and includes fraud
d. Legal Consequences of Citizenship
i. Can be transmitted OR can sponsor family members for admission into the U.S.
ii. Voting and Political Rights
iii. Tax, Military, and Jury Obligations
iv. Protection against Extradition for Crime
v. Eligibility for
1. Government Funded Programs
2. Government Jobs
3. Certain Occupations
vi. Freedom of Movement
IX. Admission of Non-Citizens
a. Non-Immigrants (Temporary Entrants) à Tourists, Students, Temp Workers
i. NO QUOTAS
ii. Two Major Requirements
1. Fall w/in a statutory category (for non-immigrants most require to leave U.S.)
2. NOT fall w/in inadmissibility grounds OR qualify under waiver
iii. Most non-immigrants apply for a visa directly with consulate abroad
1. Once admitted through USCIS they can sometimes
a. Alter the length of stay
b. Change status to other non-immigrant category
c. Adjust status to immigrant (LPR)
b. Immigrants
i. Two Categories
1. LPR
2. Undocumented Immigrants that were not lawfully admitted
ii. LPR’s Rights
1. Reside permanently in the U.S. unless they are found removable
2. Work in the U.S.
iii. Must meet same major requirements as Non-Immigrants
1. Three Major Statutory Categories
a. Family Sponsored
b. Employment Based
c. Diversity
2. All Three Categories divided into preferences!
a. Immigrants can only migrate if they qualify under preference category
iv. Quotas Limit
1. Overall number to admit for category annually worldwide
2. Number to admit from a single country annually
v. QUOTAS EXCEPTIONS
1. Immediate relatives of U.S. Citizens are unlimited
2. Refugees are admitted under a different quota system
c. Asylees & Refugees
i. Asylees à Refugees seeking admission from within the U.S. or at a port of entry
ii. Refugees à Refugees who apply from outside the U.S.
d. Adjustment of Status
i. Admission as an Immigrant (LPR) from w/in the U.S.
X. Expulsion
a. Deportability Grounds somewhat similar to inadmissibility grounds
i. Used to be called Deportation and now called REMOVAL
b. Most common types of Removal
i. Overstay of Non-Immigrant Visa
ii. Violation of terms of Non-Immigrant Visa
iii. Never Admitted into the U.S.
iv. Criminal Conviction unrelated to immigration system
c. Means of Removal
i. Informal à Voluntary Departure
ii. Formal à Removal Hearing
1. Advantages of going to a Removal Hearing
a. Can determine eligibility for forms of discretionary relief from removal (asylum, voluntary departure)
b. Can be appealed to BIA by alien (NOTE à ICE can also appeal)
c. Barring some exceptions, alien can also obtain judicial review of BIA decision in Federal Circuit Courts or even SCOTUS.
XI. Other Sanctions
a. IRCA – Immigration Reform and Control Act of 1986
i. Punishes employers for violation immigration laws
1. Knowingly employing aliens not authorized to work
2. Hiring without verifying immigration paperwork
ii. Punishes employers for discriminating against immigrants or non-immigrants
1. On basis of National Origin
2. On basis of Citizenship Status
b. Related Criminal Offenses
i. Illegal Entry, Transporting, Smuggling, Harboring unlawful aliens
c. Civil penalties for commercial carriers who transport improperly documented aliens
IMMIGRATION & THE CONSTITUTION à FEDERAL POWER
I. Plenary Power
a. Congress has PLENARY powers over exclusion and removal or aliens
i. Plenary à FINAL, NO JUDICIAL REVIEW
1. Special Judicial Restraint exercised by SCOTUS
a. SCOTUS à “Over no conceivable subject is the legislative power of Congress more complete”
ii. Plenary Powers of Congress Include:
1. Discrimination on race, gender, legitimacy
2. Restriction of political speech
3. Disregard procedural due process when excluding aliens
iii. Created by leap from Federalism cases to cases involving individual rights
1. SCOTUS struck down state attempts to exclude aliens
a. Constitution only gave this power to Federal Government
b. Court relied on Federalism argument to uphold federal exclusion statute as valid exercise of power to regulate interstate commerce
c. Court then found exclusion power inherent in national sovereignty NOT dependent on any constitutional grant
d. Court adopted PLENARY POWER DOCTRINE
b. Plenary Power Doctrine
i. Congressional exercise of exclusion power NOT reviewable for compliance with constitutionally protected individual rights
1. Court today has both extended and qualified various aspects of exclusionary power
ii. Harisiades v. Shaughnessy (1952 – Class 4)
1. Defenses
a. Permanent Residency confers VESTED RIGHT equal to that of citizenship to remain in country and to Constitutional Protection
b. If power to deport the defendants exist, it cannot be found to be a reasonable exercise of that power and it violates substantive due process
2. Court’s Holding
a. Vested Right Defense
i. LPRs failed to naturalize and thus, as foreign citizens, retained rights under international law that U.S. Citizens do not have
1. Diplomatic Protection of Home Country
2. Protection from Conscription for Military Service
3. Treaty Privileges
b. Due Process
i. Exercise of power to deport under prohibition on Communist membership reasonable
1. Judiciary can’t decide whom to exclude because this is a POLITICAL QUESTION
2. US Citizens are sent out of the country based on the threat posed by communism and LPRs don’t deserve greater protection from hardship than citizens
c. 1st Amendment Argument
i. The First Amendment does not protect speech inciting violence and government overthrow
3. Dissent (Douglas & Black)
a. Reject Font Yue Ting (1893) giving Congress absolute power over deportation
i. Right to Remain should be a Due Process Right of LPRs
iii. Fiallo v. Bell (1977 – Class 4)
1. INA did not permit immigration benefits to be conferred on alien children of US Citizen fathers born out of wedlock
a. Fathers and children argued this violated equal protection
2. Court stated that they had previously accepted limited judicial responsibility under the Constitution even with respect to Congressional power to regulate admission and exclusion of aliens (Limited Judicial Review Power over Immigration)
iv. Nguyen v. INS (2001 – Class 4)
1. Court found plenary Congressional power allowed Congress to discriminate against fathers in certain laws that established citizenship by descent
a. Potential for paternity fraud
b. Mother carries and gives birth to the child and more likely to create close bond with the child
v. Jean v. Nelson (11th Cir 1984 – Class 4)
1. Aliens in exclusion proceedings have NO Constitutional rights that pertain to immigration, even when challenging detention
vi. 7 Rationales for Doctrine
1. Political Question b/c foreign affairs implicated
2. Alien a guest, so presence is a privilege NOT a right
3. Constitutional protection is an unfair advantage for aliens already protected by international law
4. Aliens lack allegiance necessary for Constitutional protection
5. Inherent sovereign source of Congress’ plenary power protects its exercise from constitutional review
6. Alien seeking admission to U.S. is legally outside the U.S.
7. Removal of aliens is poetic justice for U.S. citizens sent abroad to fight Communism (DOESN’T APPLY ANYMORE)
c. Three Building Blocks of Plenary Congressional Power OVER IMMIGRATION
i. Chinese Exclusion Case à Inherent Federal Power to exclude aliens
ii. Ekiu à Rejection of Due Process Limits on exercise of Federal Power to exclude aliens
iii. Fong Yue Ting à Extended principles of inherent Federal Power and rejection of due process limits to deportation
d. CRACKS ON THE PLENARY POWER DOCTRINE
i. Francis v. INS (2nd Cir 1976 – 5th Class)
1. 10 years after admission as an LPR, Francis was convicted of a marijuana possession and put in deportation proceedings
a. Applied for discretionary relief allowing AG to grant discretionary relief to deportable alien who had left the U.S. and was then applying for admission to return
i. Denied because he had never departed, but then Francis petitioned for Court of Appeals review
2. Appeals court applied Fiallo rationale of limited judicial review for the rationality of the provision
a. Rational Basis Test
i. Court found NO rationality in provision that gave relief solely on basis of physical absence from UF
e. Qualifications to the Plenary Power Doctrine
i. THE LAST THING YOU WANT TO ARGUE IS THE CONSTITUTIONAL BASIS FOR A CASE
ii. Avoidance
1. Courts will often interpret immigration statutes favorably to aliens in order to
a. Avoid having to decide Constitutional questions involving the statute AND
b. Escape the harsh results of the Plenary Power Doctrine
iii. Habeas Corpus
1. Courts formerly recognized alien’s rights to judicial review of removal orders through writs of habeas corpus
a. HOWEVER, Real ID Act of 2005 § 106(a)(2)
i. It amended INA to bar judicial review of removal orders via habeas corpus means
2. Judicial review of removal orders restricted to Federal Appellate Review
a. Procedures in INA §§ 242(b)(9) & (g)
iv. Procedural Due Process
1. Clearly required in expulsion cases and most cases involving exclusion of returning LPRs
a. EX à Plasencia à LPRs have procedural due process rights for review of admission denials
2. Lower courts classify due process challenges as procedural (even when they may be substantive) in order to avoid plenary power doctrine.
v. Rational Basis Test
1. Lower courts often translate plenary power doctrine into a rational basis test, even when equal protection or substantive due process is involved