#9140 - Overview Constitutional Issues Immigrant Non Immigrant Priorities - Immigration Law

OVERVIEW, CONSTITUTIONAL ISSUES, IMMIGRANT & NON-IMMIGRANT PRIORITIES

1. Sources of Immigration Law

   1. Immigration and Nationality Act (INA) (1952)

   2. Title 8 of U.S. Code and regulations in 8 CFR

2. Immigration Status

   1. Only Applicable to Aliens

   2. Category of Admission

      1. Admission – Inadmissibility

         1. Even if you qualify for immigrant or non-immigrant category, you must also be admissible

            1. You CANNOT fall under any inadmissibility grounds - INA §212(a)

               • Consular offices check abroad and officers check at border

      2. 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

3. Who Enforces Immigration Law?

   1. State Department

      1. Regulates and enforces immigration laws overseas for foreign nationals trying to enter the U.S.

         1. DHS retains right to review decisions of the consular officers

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

   2. DHS

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

      2. USCIS – United States Citizenship and Immigration Service

         1. Administratively regulates Non-Citizens with issues such as visa application processing

      3. ICE – Immigrations and Customs Enforcement

         1. Enforcement of immigration laws and regulations within U.S.

      4. CBP – Customs and Border Patrol

         1. Immigration Enforcement along U.S. borders

   3. DOL

      1. Regulates employment related immigration

   4. HHS

      1. Regulates public health issues related to immigration and refugee resettlement through two departments

         1. Office of Refugee Resettlement

            1. Also responsible for unaccompanied minors

         2. Public Health Service

   5. DOJ

      1. Through EOIR (Executive Office of Immigration Review) adjudicates cases involving

         1. Alien’s right to remain in US (Removal Hearings)

         2. Unauthorized hiring of aliens

         3. Employment Discrimination against aliens

      2. Three Units of EOIR

         1. OCIJ – Office of the Chief Immigration Judge

            1. Oversees immigration judges who adjudicate removal hearings

            2. Decisions NOT BINDING precedent

         2. 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: 1) Federal COA; 2) SCOTUS

         3. OCAHO – Office of the Chief Administrative Hearing Officer

            1. Adjudicates unauthorized employment of aliens and job discrimination against aliens

1. Plenary Power

   1. Congress has PLENARY powers over exclusion and removal or aliens

   2. NO JUDICIAL REVIEW: Special Judicial Restraint exercised by SCOTUS: “Over no conceivable subject is the legislative power of Congress more complete”

   3. Plenary Powers of Congress Include:

      1. Discrimination on race, gender, legitimacy

      2. Restriction of political speech

      3. Disregard procedural due process when excluding aliens

2. Sources of the Federal Immigration Power

   1. Commerce Clause (U.S. Const. Article I, § 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)

   2. The Migration or Importation Clause (U.S. Const. Article I, § 9, cl. 1)

      1. Congress can prohibit “migration or importation of” persons beginning in 1808 (Reference to Slave Trade)

   3. The Naturalization Clause (U.S. Const. Article I, § 8, cl. 4)

      1. Congress is authorized to “establish a uniform rule of naturalization”

   4. The War Clause (U.S. Const. Article 1, § 8, cl. 11)

      1. Congress has the power to “declare war”

   5. 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)

3. Beyond the Constitution

   1. 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

4. Residual State Power

   1. State Preemption by Federal: Test Compare scope of Federal and State actions

   2. What State regulation IS ACCEPTABLE? Power to exclude certain classes of undesirable immigrants not expressly prohibited in absence of federal legislation

5. Plenary Power Doctrine: Congressional exercise of exclusion power NOT reviewable for compliance with constitutionally protected individual rights

   1. 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

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

      2. Due Process

         1. Exercise of power to deport under prohibition on Communist membership reasonable

         2. Judiciary can’t decide whom to exclude because this is a POLITICAL QUESTION

         3. 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

      3. 1^st Amendment Argument

         1. The First Amendment does not protect speech inciting violence and government overthrow

6. Constitutional Challenges

   1. 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

   2. 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

   3. Procedural Due Process

      1. Generally: Clearly required in expulsion cases and most cases involving exclusion of returning LPRs

         1. EX Plasencia LPRs have procedural due process rights for review of admission denials

      2. Standard for Procedural Due Process

         1. There must be an interest:

            1. Liberty Interest: those privileges long recognized as essential to the orderly pursuit of happiness by free men

            2. Property Interest: requires a “legitimate claim of entitlement” not just unilateral expectation AND the entitlement must arise from independent legal source outside the Constitution

         2. If there is an interest, than apply the MATHEWS v. ELDRIDGE Balancing test

            1. Private interest affected by official action

            2. Risk of erroneous deprivation of interest through procedures used and probable value of any additional/substitute procedural safeguards

            3. Government interest including function involved and fiscal and administrative burdens posed by additional/substitute procedural safeguards

         3. Eldridge Test does NOT require full evidentiary hearing, only a process reflective of the financial and administrative costs to the government

         4. Aliens must STILL meet substantive requirements of entry

      3. Procedural Due Process

         1. 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”

         2. 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.

         3. 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

   4. 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 § 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.”

         1. HELD: In order to avoid 5^th Amendment Due Process constitutional question about indefinite detention, Court holds that § 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)

         1. Extends Zadvydas to inadmissible (never admitted) aliens based on doctrine of constitutional...