Immigration Law AudioLearn: A Course Outline

IMMIGRATION LAW

Table of Contents

INTRODUCTION .......................................................................................................................... 1 I. THE HISTORICAL AND PHILOSOPHICAL BASIS FOR IMMIGRATION ......................... 3 Why Do People Immigrate? ............................................................................................................................ 3 How Have Americans Historically Responded to Immigration? .................................................................... 4 Modern immigration laws are still shaped by all of these factors. .................................................................. 6

II. CONSTITUTIONAL LAW ....................................................................................................... 9 III. CITIZENSHIP AND THE U.S. CONSTITUTION ............................................................... 13 Birthright Citizenship .................................................................................................................................... 13 1. Right of the Soil ........................................................................................................................................ 13 2. Right of the Blood aka Citizenship "Jus Sangunis"................................................................................... 15 QUESTIONS AND ANSWERS ................................................................................................................... 17

IV. NATURALIZATION ............................................................................................................. 19 A. Eligibility Requirements ........................................................................................................................... 19 B. Plenary Power and the Right to Exclude .................................................................................................. 20 C. From Exclusion to Deportation................................................................................................................. 21 Takeaway: ..................................................................................................................................................... 22 So what is Current Law? ............................................................................................................................... 24

V. ADMISSIONS ......................................................................................................................... 25 Qualifying Immigrant Categories and Grounds of Inadmissibility of Immigrants ........................................ 25 Legal Permanent Residents ........................................................................................................................... 26 Four Main Categories for Immigration to the US ......................................................................................... 26 Employer-Based Immigration ....................................................................................................................... 27 Employment-Based Immigration Preferences ............................................................................................... 30 Diversity Immigration ................................................................................................................................... 31 The Problem of Domestic Violence: ............................................................................................................. 37

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Chevron Rules for Statutory Interpretation ................................................................................................... 40 Case Example: Yuen Fong Young ................................................................................................................ 40 Investors as Immigrants................................................................................................................................. 41 Employment-Based Immigration .................................................................................................................. 41 Easing the Task of Labor Certification – Or Avoiding it Altogether ............................................................ 50 QUESTIONS AND ANSWERS ................................................................................................................... 54

VI. NONIMMIGRANTS .............................................................................................................. 57 A. Procedural Paths to Non-Immigrant Status in the US .............................................................................. 57 B. The Problem of Immigrant Intent ............................................................................................................. 57 C. Foreign Students ....................................................................................................................................... 58 D. Business and Entrepreneurial Nonimmigrants ......................................................................................... 61 E. Nonimmigrant Categories and Free Trade Agreements ............................................................................ 66 F. Law Enforcement-Related or Victim Visas: ............................................................................................. 67 QUESTIONS AND ANSWERS ................................................................................................................... 69

VII. INADMISSIBILITY GROUNDS ......................................................................................... 71 A. General Inadmissibility Grounds .............................................................................................................. 71 B. History and Overview of the Line Between Deportability and Inadmissibility ........................................ 71 Takeaway ...................................................................................................................................................... 76 Terrorist Activity ........................................................................................................................................... 77 Definition of "Engaging in Terrorist Activity" .............................................................................................. 78 Categories of Terrorist Organizations ........................................................................................................... 78 Takeaway and Case Study ............................................................................................................................. 79 QUESTIONS AND ANSWERS ................................................................................................................... 81

VIII. ADMISSION PROCEDURES ............................................................................................ 83 Modern Admission Procedures ..................................................................................................................... 83 Exceptions to the Visa Requirement ............................................................................................................. 83 Admission at the Port of Entry ...................................................................................................................... 84

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Immigrant Admissions .................................................................................................................................. 85 Adjustment of Status ..................................................................................................................................... 87 Parole............................................................................................................................................................. 90 Efficiency and Security after the September 11 Terror Attacks .................................................................... 90 NEXUS ......................................................................................................................................................... 91 SENTRI ......................................................................................................................................................... 91 National Security ........................................................................................................................................... 91

IX. REMOVAL............................................................................................................................. 95 Expedited Removal ....................................................................................................................................... 95 Why Would There Be Deferred Action? ....................................................................................................... 99 Cancellation of Removal for Permanent Residents ..................................................................................... 100 Cancellation of Removal for Nonpermanent Residents .............................................................................. 101 Unauthorized Migrants in the United States................................................................................................ 103 QUESTIONS AND ANSWERS ................................................................................................................. 113

X. QUIZ SECTION .................................................................................................................... 115 QUIZ -SECTION I: THE HISTORICAL AND PHILOSOPHICAL BASIS FOR IMMIGRATION ........ 115 QUIZ- SECTION II: CONSTITUTIONAL LAW ...................................................................................... 117 QUIZ - SECTION III: CITIZENSHIP AND THE U.S. CONSTITUTION................................................ 119 QUIZ - SECTION IV: NATURALIZATION ............................................................................................. 121 QUIZ - SECTION V: ADMISSIONS ......................................................................................................... 124 QUIZ - SECTION VI: NONIMMIGRANTS .............................................................................................. 127 QUIZ – SECTION VII: INADMISSIBILITY GROUNDS ........................................................................ 130 QUIZ – SECTION VIII: ADMISSION PROCEDURES ............................................................................ 134 QUIZ - SECTION IX: REMOVAL ............................................................................................................ 138

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INTRODUCTION Perhaps no nation has been as defined by immigration as the United States of America. The United States is a fusion of people from all around the world, and historically, the USA has had the most open immigration policy in the world. That does not mean that American immigration laws are without complexity or controversy. In fact, immigration in America is governed by many different federal agencies and many legal schemes. Today, immigration law touches nearly every area of American life – from labor to politics, news to entertainment, criminal justice, and even sports. Immigration is also a main priority for the Trump administration that was elected in 2016. The implications for American immigration law are serious and wide-reaching.

This outline covers the historical, cultural and legal framework of immigration law. By the end of this talk, you will be able to answer the following questions: •

What political, social and historical events have shaped American immigration policy?

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What are the sources of the federal government's power to regulate citizenship and immigration?

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Which agencies and courts regulate immigration?

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What rules apply to legal permanent residents and temporary residents?

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How do people apply and become approved for immigration to the US?

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What rights and restrictions are imposed on unauthorized migrants?

At the end of each section, there will be ten questions and answers that will help you focus on the main takeaways for your studies.

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[Pause] Your goals when studying immigration law are to be able to thoughtfully explain the sources of American law, and apply the laws to fact patterns about people who are want to remain in or immigrate to America. If you can do both of these things successfully, you will score well on your exams.

Let's get started!

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I. THE HISTORICAL AND PHILOSOPHICAL BASIS FOR IMMIGRATION Why Do People Immigrate?

In this section, we will explore the reasons for immigration. Why do people leave their country of residence to find a new country? The answer is found in what are called "Push and Pull factors." When people decide to migrate from one country to another, it is usually because something pulls them to a new place. Alternatively, there could be something pushes people away from the country where they already live.

Push Factors Push factors are forces that drive people away from their homes. Push factors relate to the person's home location and include negative things like a lack of jobs; famine, drought and other environmental concerns; poor medical care; war; and religious persecution. The history of migration to America is full of examples of push factors, like the Irish potato famine; the displacement caused by World War II, which included people fleeing both the Nazis and communist regimes; the fall of Cuba to communists; and the Vietnam War. All of these world events caused mass displacement and made living in certain countries very difficult.

Pull Factors Pull factors are advantages that the new country has over the old one. These are commonly things like better economic conditions; more religious freedom; better health care and educational opportunities; and a stable government which is not at war.

Historically, the U.S. has had very high pull factors for people around the world. The U.S. has long been recognized for having high quality of living, with fewer class stratifications than other countries, which enables people to be more upwardly mobile. One of the most common reasons for migration to America is the desire of American employers to hire foreign workers. In the 1990s, the U.S. needed more skilled foreign workers, and immigration law changed to allow

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the flow of more skilled workers and their families. This is an example of the law changing to make the pull factors even more attractive.

[Pause] To think about this plays out, imagine you live in a country where your community is at the center of a bitter land dispute between two warlords. There are many acts of violence, with local citizens caught in the crossfire. The flow of money and jobs are controlled by warlords, rather than by traditional employers. A famine made it nearly impossible to farm. Your family is expected to choose sides and is subject to extortion by local officials. Schools are open and closed according to the whims of these local rulers. You are Christian but your spouse is Muslim.

Your children are exposed to vicious taunts because of their parents' religious backgrounds.

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If your family can get a Visa to immigrate to the United States, you can relocate to a safe community, work at a regular job and send your children to school without interruption.

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This was the situation that created a burst of immigration from Somalia and Ethiopia to the U.S. and other countries. In 1991, the Somalian government was overthrown, leaving the country in chaos. Various warlords fought a civil war. Famine created a lack of food resources. As a result, Somali refugees sought safe havens in other countries, like America.

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In January of 2017, a married Somali couple who are both Christian and Muslim are awaiting refugee paperwork that would re-locate them and their five children to America.

As you review US immigration laws, imagine the different procedures that would open or close the door to immigration for this family.

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How Have Americans Historically Responded to Immigration?

Now that we've considered what drives people to leave their homeland, let's examine how America's cultural response to immigration shapes immigration law. In times where land is abundant, and labor is needed, Americans tend to be more welcoming of immigrants. American

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policy during these times tends to be more lenient toward the arrival of newcomers. Conversely, when economic times are tough, or the country is at war, America tends to become more fearful of immigrants, and the immigration laws follow suit.

These trends are also reflected in America's long debate about how much immigrants should assimilate into American culture. One side of the debate says "immigrants should leave their culture behind and fully assimilate into American life." The other side says "we cannot force our culture on foreign nationals and we should allow their culture to become part of ours." The historical examples of immigration to America show that both sides have had an impact on how immigrants shape American culture and lose their own cultures.

American perception of assimilation is impacted by other factors as well, such as race, ethnicity and religion. At different periods of American history, certain groups have been targeted on this basis. For example: •

In the early 19th century, the Potato Famine pushed many Irish out of Ireland. The Irish were stereotyped as "lazy" "stupid" and "drunkards" upon first arrival in America.

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Religion also played a role in negative perception of certain immigrants. Many Americans once believed Irish and Italian Catholics would never be able to assimilate into the U.S. Martin Scorsese's 2003 movie, Gangs of New York, has scenes showing the kind of anti-Catholic nativism and anti-Irish prejudice of the time.

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Similar factors impacted Chinese immigrants, who once told that their culture was so different that they could never become good Americans. We will explore the many cases dealing with Chinese immigrants later in this unit.

Immigration policy often changes to reflect the prejudices of the times. Consider these examples: •

In the early 20th century, German immigrants living in America suddenly found themselves targets of anti-German laws during World War I.

Laws were passed

prohibiting German language education, changing street names, and attacking GermanAmerican cultural institutions. President Woodrow Wilson looked down on people who

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he termed "hyphenated Americans," whose loyalty was allegedly divided. Immigration from Germany was hotly debated.

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A similar backlash occurred during World War II, when Americans created internment camps for Japanese-Americans.

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Immigration policy has at times targeted people of certain political persuasion, and people with mental and physical disabilities.

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Modern immigration laws are still shaped by all of these factors.

Over the last 30 years, America has adjusted its immigration laws in response to these situations. Here is a brief overview of how the law has evolved: •

For example, in 1986, Congress passed the Immigration Marriage Fraud Amendments (IM-F-A), in order to deter people from marrying U.S. citizens just to enter or stay in the country legally. Once again, this development was actually treated in a movie. The 1990 romantic comedy Green Card tells the humorous tale of a sham marriage between a Frenchman and an American who come together so the man can remain in America legally… Predictably, the two fall in love!

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In 1990, Congress wanted to increase immigration of skilled workers. It passed a law allowing immigration for foreign nationals with extraordinary ability in certain fields that were prized by American employers. The 1990 Act also increased the ability of families to reunite in America by enabling immigrants to sponsor additional family members.

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In 1994, Congress regulated trade with Canada and Mexico by coming up with the North American Free Trade Act (NAFTA). Despite the law's intention, Mexico's economy did not improve under NAFTA, in large part because corporations could get even cheaper labor in China. Mexican farmers struggle to compete with their Canadian and American counterparts, who are heavily subsidized, which drove workers to bigger cities in Mexico, and eventually, to the USA.

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In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (A-E-D-PA), in response to the first World Trade Center bombing and other events. Among other things, AEDPA made it easier to remove illegal immigrants involved in criminal activity.

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The 1996 Congress also restrict illegal immigrants from eligibility for certain benefits.

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And in 2001, there were significant changes to US immigration law as a result of the 9/11 terrorist attacks. These many changes will be treated in a later unit.

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II. CONSTITUTIONAL LAW In this section, we will discuss the Constitutional Foundations of Immigration Law. The federal government has exclusive power to regulate immigration in the United States. Supreme Court decisions have established that states cannot have their own immigration laws. If every state had its own immigration laws, it would create a complicated and contradictory patchwork of regulations, leading to conflicts between the states and between the states and foreign countries.

However, immigration is not explicitly addressed in the U.S. Constitution. So what are the sources of the federal government's immigration powers?

Naturalization Let's begin with Article 1, § 8, clause 4, of the United States Constitution, which grants Congress the power to establish a "uniform Rule of Naturalization." This means that individual states cannot bestow citizenship. That is the province of Congress alone. Remember, immigration is the process of migrating to the United States. Naturalization is the process of becoming a citizen.

Commerce Clause The Commerce Clause, Article I, § 8, clause 3, gives Congress the power "to regulate Commerce with foreign Nations, and among the several States." Congress has the sole authority to regulate trade with foreign nations. The Commerce Clause has been used to limit the states' ability to regulate any area which touches on this area, such as taxes on immigrants or foreign nationals going through U.S. ports.

Migration and Importation Clause The Migration and Importation Clause in Article I, § 9, clause 1, of the Constitution has also been considered a grant of power to Congress to regulate immigration. Under this clause,

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Congress was given power over migration and importation after 1808. However, today some scholars interpret this clause as an attempt to bar Congress from stopping the slave trade, and nothing more.

War Power The War Power, found in Article I, § 8, clause 11, gives Congress the authority to "declare war." The War Power clause has been used to authorize the exclusion and expulsion of enemy aliens. For example, when Congress passed the Alien and Sedition Acts, it granted this power to the President.

National Sovereignty The Supreme Court eventually decided that the power to regulate immigration was centered on the sovereign power of a nation to determine who is permitted to enter the country and who must stay out.

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Inherent Plenary Powers So what is national sovereignty under this framework? It relies on the idea that nations have certain inherent plenary powers. So what is "plenary power?" Plenary power is the nation's authority to act, or choose not to act, in a certain area. For purposes of immigration, plenary power means the nation has the right to take action on people arriving at its borders, without judicial review.

Chinese Exclusion Cases The most important cases establishing the plenary powers of the United States government are the Chinese Exclusion cases of the late 19th century. At the time, the United States was grappling with what to do about Chinese immigrants, who had been imported as cheap labor during the building of the transcontinental railroads. After the railroads were built, Congress

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sought to stop Chinese immigration by banning the immigration of Chinese laborers for 10 years.

Chinese nationals who wanted to leave the U.S. needed a certificate to get back in. This set the stage for cases like Chae Chan Ping versus the USA. Chae Chan Ping vs. the United States of America (1889): Chae Chan Ping, who had lived in the United States for 12 years, obtained one of these certificates and went to China to visit family. But, right before Ping planned to return, a new law went into effect banning the return of anyone, regardless of whether they held a certificate.

The holdings of Chae Chan Ping established the "plenary power" doctrine in the context of immigration law. There are three key holdings to remember. (1) The US has the power to regulate immigration under international law. (2) The power to regulate immigration is vested in the federal not state government. And (3), the political branches of the federal government have plenary power to regulate immigration, including the power to exclude people at the border without judicial review.

Justice Fields' opinion explained that the power to regulate who comes into the country is inherent in national sovereignty. His explanation of the "rule of necessity" which means that the provisions necessary to implement a document are inherent in the document itself, is accepted as canon. This, Fields said, was not controversial. The ability to grant citizenship by necessity requires the ability to say who can become part of the community.

The upshot for Chae Chan Ping? The United States government had the power to bar him from entry into the country.

What's the takeaway from Ping and the other Chinese Exclusion cases? The plenary power doctrine went on to become the cornerstone of federal law governing both American Indian nations and external colonies such as Puerto Rico and Guam. This same plenary power is wielded by the U.S. government today in its efforts to deport and imprison certain foreign nationals without trial.

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