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Overview Constitutional Issues Immigrant Non Immigrant Priorities Outline

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This is an extract of our Overview Constitutional Issues Immigrant Non Immigrant Priorities document, which we sell as part of our Immigration Law Outlines collection written by the top tier of University Of Washington School Of Law students.

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OVERVIEW, CONSTITUTIONAL ISSUES, IMMIGRANT & NONIMMIGRANT PRIORITIES I. Sources of Immigration Law A. Immigration and Nationality Act (INA) (1952) B. Title 8 of U.S. Code and regulations in 8 CFR II. Immigration Status A. Only Applicable to Aliens B. Category of Admission

1. Admission - Inadmissibility a. Even if you qualify for immigrant or non-immigrant category, you must

also be admissible i. You CANNOT fall under any inadmissibility grounds - INA SS212(a)
??Consular offices check abroad and officers check at border

2. Removal - Deportability a. 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 SS237 III. Who Enforces Immigration Law?
A. State Department

1. Regulates and enforces immigration laws overseas for foreign nationals trying to enter the U.S. a. DHS retains right to review decisions of the consular officers

2. Within the U.S. it oversees educational exchange programs and refugee affairs B. DHS

1. Enforces and regulates immigration within the U.S.

2. USCIS - United States Citizenship and Immigration Service a. Administratively regulates Non-Citizens with issues such as visa application processing

3. ICE - Immigrations and Customs Enforcement a. Enforcement of immigration laws and regulations within U.S.

4. CBP - Customs and Border Patrol a. Immigration Enforcement along U.S. borders C. DOL

1. Regulates employment related immigration D. HHS

1. Regulates public health issues related to immigration and refugee resettlement through two departments a. Office of Refugee Resettlement i. Also responsible for unaccompanied minors b. Public Health Service E. DOJ

1. Through EOIR (Executive Office of Immigration Review) adjudicates cases involving a. Alien's right to remain in US (Removal Hearings) b. Unauthorized hiring of aliens c. Employment Discrimination against aliens

2. Three Units of EOIR a. OCIJ - Office of the Chief Immigration Judge

i. Oversees immigration judges who adjudicate removal hearings ii. Decisions NOT BINDING precedent b. BIA - Board of Immigration Appeals i. Hears appeals from IJs and USCIS decisions ii. Decisions are BINDING & PRECEDENT iii. Judicial Review of BIA decisions can be done by: 1) Federal COA;

2) SCOTUS c. OCAHO - Office of the Chief Administrative Hearing Officer i. Adjudicates unauthorized employment of aliens and job

discrimination against aliens I. Plenary Power A. Congress has PLENARY powers over exclusion and removal or aliens B. NO JUDICIAL REVIEW: Special Judicial Restraint exercised by SCOTUS:

"Over no conceivable subject is the legislative power of Congress more complete" C. Plenary Powers of Congress Include:

1. Discrimination on race, gender, legitimacy

2. Restriction of political speech

3. Disregard procedural due process when excluding aliens II. Sources of the Federal Immigration Power A. Commerce Clause (U.S. Const. Article I, SS 8, cl. 3)

1. Congress may "regulate commerce with foreign nations"

2. Congressional power to regulate activities substantially affecting interstate commerce EVEN if effect is indirect (Wickard v. Filburn) B. The Migration or Importation Clause (U.S. Const. Article I, SS 9, cl. 1)

1. Congress can prohibit "migration or importation of" persons beginning in 1808 (Reference to Slave Trade) C. The Naturalization Clause (U.S. Const. Article I, SS 8, cl. 4)

1. Congress is authorized to "establish a uniform rule of naturalization" D. The War Clause (U.S. Const. Article 1, SS 8, cl. 11)

1. Congress has the power to "declare war" E. Implied Powers: Chinese Exclusion Case (1889): Does statute revoking validity of Ping's immigration certificate violate US-China treaty, and does revocation of Ping's right to land violate Constitution?

1. Treaty Issue: Last action in time controls, therefore, the statute nullifies contradictory points of the US-China treaty

2. Constitutional Issue: Federal power to revoke right to land drawn from: 1) Commerce Clause (Foreign Affairs Power); 2) National Security Interest; 3) Sovereignty/Independence (U.S. not subject to foreign control over entry into it) III. Beyond the Constitution A. Curtiss-Wright's (1936) Extra-Constitutional Theory of Federal Power over External Affairs

1. Sovereignty passed from Britain to U.S. at independence to States in their collective capacity

2. Constitution only intended to reallocate powers States already possessed in individual capacities

3. So ALL sovereign power remained with Federal Government and NO Federal sovereign power dependent on Constitutional grant IV. Residual State Power

A. State Preemption by Federal: Test ? Compare scope of Federal and State

actions B. What State regulation IS ACCEPTABLE? Power to exclude certain classes of

undesirable immigrants not expressly prohibited in absence of federal legislation V. Plenary Power Doctrine: Congressional exercise of exclusion power NOT reviewable for compliance with constitutionally protected individual rights A. Harisiades v. Shaughnessy (1952): Permanent Residency confers VESTED RIGHT equal to that of citizenship to remain in country and to Constitutional Protection

1. Vested Right Defense a. LPRs failed to naturalize and thus, as foreign citizens, retained rights under international law that U.S. Citizens do not have

2. Due Process a. Exercise of power to deport under prohibition on Communist membership reasonable b. Judiciary can't decide whom to exclude because this is a POLITICAL QUESTION c. 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 st

3. 1 Amendment Argument a. The First Amendment does not protect speech inciting violence and government overthrow VI. Constitutional Challenges A. Generally: Appears that SCOTUS is barring any consideration of individual rights limitations in the Federal Exclusionary power on the basis of sovereignty and they seem to be making individual rights limitations a political question not open for judicial review B. Equal Protection

1. Fiallo v. Bell (1977): INA did not permit immigration benefits to be conferred on alien children of US Citizen fathers born out of wedlock; Fathers and children argued this violated equal protection; Court held that held that Congressional power is largely immune from judicial control even Equal Protection claims

2. Nguyen v. INS (2001): Court found plenary Congressional power allowed Congress to discriminate against fathers in certain laws that established citizenship by descent because of 1) a potential for paternity fraud; and 2) a mother carries and gives birth to the child and more likely to create close bond with the child C. Procedural Due Process

1. Generally: Clearly required in expulsion cases and most cases involving exclusion of returning LPRs a. EX ? Plasencia ? LPRs have procedural due process rights for review of admission denials

2. Standard for Procedural Due Process a. There must be an interest: i. Liberty Interest: those privileges long recognized as essential to the orderly pursuit of happiness by free men

ii. Property Interest: requires a "legitimate claim of entitlement" not

just unilateral expectation AND the entitlement must arise from independent legal source outside the Constitution b. If there is an interest, than apply the MATHEWS v. ELDRIDGE Balancing test i. Private interest affected by official action ii. Risk of erroneous deprivation of interest through procedures used and probable value of any additional/substitute procedural safeguards iii. Government interest including function involved and fiscal and administrative burdens posed by additional/substitute procedural safeguards c. Eldridge Test does NOT require full evidentiary hearing, only a process reflective of the financial and administrative costs to the government d. Aliens must STILL meet substantive requirements of entry

3. Procedural Due Process a. Knauff v. Shaughnessy (1950): Court rejected due process rights/protections for entering aliens: "Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned" b. Entering Aliens: Mezei (1953): Mezei is an entrant alien for constitutional purposes because of his two year absence, marking a "clear break" in his continuous presence; Because Mezei was denied admission to U.S. NO RIGHTS are being violated by his continued exclusion on Ellis Island and the fact that other countries also deny him is no problem to U.S. c. Returing LPR's: Plasencia (1982): Plasencia could invoke due process clause privileges for review of denial of admission because he was an LPR and his trip was not lengthy D. Due Process/Indefinite Detention: Courts have shown willingness to consider Constitutional limitations on plenary power doctrine where indefinite detention is challenged

1. Zadvydas v. Davis (2001): Admitted aliens ordered removed, but cannot be removed to another country; to challenge their detention after 6 months; Court construed INA SS 241(a)(6) which says that the AG may detain an alien and "may be detained beyond the removal period and, if released, shall be subject to [certain] terms of supervision." a. HELD: In order to avoid 5th Amendment Due Process constitutional question about indefinite detention, Court holds that SS 241(a)(6) contains an implicit "reasonable time" limitation. The reasonable time is 6 months and if the alien provides good reason to believe that there is no significant likelihood of removal, the AG must respond with evidence rebutting that presumption, otherwise detention is no longer reasonable

2. Clark v. Martinez (2005) a. Extends Zadvydas to inadmissible (never admitted) aliens based on doctrine of constitutional avoidance

3. Demore v. Hyung Joon Kim (2003)

a. Mandatory detention for entire duration of removal proceedings was

upheld as Constitutional because unlike Zadvydas removal was a possibility and the detention wasn't indefinite b. For those who pose danger to society or flight risk - INA SS 236(c) E. First Amendment

1. Some authority states that immigration statutes are subject to same First Amendment as other statutes, but there is NO CONCLUSIVE authority a. EX ? SCOTUS applied 1st Amendment to INA provisions in Harisiades to find deportable speech NOT PROTECTED under Amendment. b. BUT: SCOTUS may have restricted 1st Amendment by holding aliens barred from bringing selective prosecution claims (Reno) F. First Amendment in Deportation Context

1. Harisiades: SCOTUS fond that the First Amendment did NOT apply to the defendants because they had participated in non-protected speech

2. Meese (Cal 1989):Aliens found deportable on basis of support for Popular Front for the Liberation of Palestine (PFLP): INA SS 241(a)(6)(D, F, G, H)
? Prohibited advocating world Communism a. District Court rejected government contention that plenary power doctrine overruled a 1st Amendment protection in a deportation context; Court applied general 1st Amendment protection test and found INA provisions substantially overbroad b. Court held that deportability violated aliens' 1st Amendment rights because their support for PFLP didn't amount to inciting imminent lawless action

3. Reno v. American-Arab Anti-Discrimination (1999): Same aliens from Meese returned to court at the Federal Level after INS recharged them deportable under different INA provisions; They claimed "selected prosecution" because the government was NOT seeking to deport other similarly situated aliens with technical immigration violations a. HELD: deportable aliens NOT entitled to defense of selective prosecution b. Decision seems to deny selective prosecution defense even to LPRs c. BUT: Court left open the possibility that a prosecution could reflect discrimination "so outrageous that the foregoing considerations can be overcome."

4. Kleindienst v. Mandel (1972): Alien was a Marxist Scholar who has barred entry under statutory provision prohibiting those advocating "doctrines of world communism"; Citizens sued on grounds of deprivation of their 1st Amendment rights a. SCOTUS implicitly held INA inadmissibility statute to be Constitutional: AG could deny a statutory inadmissibility (exclusion) waiver whenever there was a "facially legitimate and bona fide reason" for doing so VII. Preemption A. I. Admission of Non-Citizens A. Non-Immigrants (Temporary Entrants) ? Tourists, Students, Temp Workers


2. Two Major Requirements

a. Fall w/in a statutory category (for non-immigrants most require to

leave U.S.) b. NOT fall w/in inadmissibility grounds OR qualify under waiver

3. Most non-immigrants apply for a visa directly with consulate abroad a. Once admitted through USCIS they can sometimes i. Alter the length of stay ii. Change status to other non-immigrant category iii. Adjust status to immigrant (LPR) B. Immigrants

1. Two Categories a. LPR b. Undocumented Immigrants that were not lawfully admitted

2. LPR's Rights a. Reside permanently in the U.S. unless they are found removable b. Work in the U.S.

3. Must meet same major requirements as Non-Immigrants a. Three Major Statutory Categories: 1) Family Sponsored; 2)

Employment Based; 3) Diversity b. All Three Categories divided into PREFERENCES: Immigrants can

only migrate if they qualify under preference category

4. Quotas Limit a. Overall number to admit for category annually worldwide b. Number to admit from a single country annually

5. QUOTAS EXCEPTIONS a. Immediate relatives of U.S. Citizens are unlimited b. Refugees are admitted under a different quota system C. Asylees & Refugees

1. Asylees ? Refugees seeking admission from within the U.S. or at a port of


2. Refugees ? Refugees who apply from outside the U.S. D. Adjustment of Status

1. Admission as an Immigrant (LPR) from w/in the U.S. II. Expulsion A. Deportability Grounds somewhat similar to inadmissibility grounds

1. Used to be called Deportation and now called REMOVAL B. Most common types of Removal

1. Overstay of Non-Immigrant Visa

2. Violation of terms of Non-Immigrant Visa

3. Never Admitted into the U.S.

4. Criminal Conviction unrelated to immigration system C. Means of Removal

1. Informal ? Voluntary Departure

2. Formal ? Removal Hearing

3. 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 ? ICE can also appeal) c. Barring some exceptions, alien can also obtain judicial review of BIA

decision in Federal Circuit Courts or even SCOTUS. III. Other Sanctions

A. IRCA - Immigration Reform and Control Act of 1986

1. Punishes employers for violation immigration laws a. Knowingly employing aliens not authorized to work b. Hiring without verifying immigration paperwork

2. Punishes employers for discriminating against immigrants or non-

immigrants a. On basis of National Origin b. On basis of Citizenship Status B. Related Criminal Offenses

1. Illegal Entry, Transporting, Smuggling, Harboring unlawful aliens C. Civil penalties for commercial carriers who transport improperly documented aliens IV. Benefits to LPR Status A. Green Card: 1) Demonstrates authorization to work; 2) Most non-immigrants NOT authorized to work; 3) Proof of Permanent Legal Status in US; 4) May receive some government benefits; 5) May NATURALIZE after initial qualifying period V. Quotas and Preferences A. Admission Categories: To be an immigrant you must have positive credentials that fit into one of the admission categories: Family, Employment, Diversity B. Immigrants Exempt from General Quotas:

1. Spouse, parents, and children of U.S. Citizens a. For parent, citizen must be 21 or older ? INA SS 201(b)(2)(A)(i) b. Children must be under 21 and unmarried ? INA SS 101(b)(1)

2. LPRs returning from temporary visits abroad - INA SS 101(a)(27)(A), 201(b) (1)(A)

3. Certain former U.S. Citizens - INA SS 101(a)(27)(B), 201(b)(1)(A)

4. Children born to LPRs temporarily abroad - INA SS 201(b)(2)(B)

5. Recipients of certain forms of discretionary relief from removal - INA SS
201(b)(1)(C, D, E)

6. Refugees - INA SS 201(b)(1)(B): But subject to different numerical restrictions

7. Parolees: Secretary of HS has discretion to parole alien into the US temporarily - INA SS 212(d)(5): Typically used for aliens needing to enter the US for urgent personal reasons or to allow applicants for admission to remain at large while admissibility determination is pending. Legally parolee remains outside US, not admitted

8. Special Groups admitted ad hoc by Congress - INA SS 201(b)(1)(C) a. One time, limited number immigrant visas to underrepresented countries b. Congress has also awarded to aliens coming as part of unusual immigration C. Immigrants Subject to Quotas:

1. Generally: 1 or 2 caps may be present for a prospective immigrant. Always an ANNUAL CAP for each category Also, some categories have PER COUNTRY LIMITS

2. Family Sponsored Immigrants: a. Not as close as immediate relatives - INA SS 203(a) b. Total annual worldwide limit: 480,000 BUT (Take away immediate relatives admitted in the previous year + children born to LPRs

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