Citizenship connotes membership in a state, which entitle members to the basic
rights and opportunities afforded by the states.
Difficulties in defining membership.
o Chronological Model
o Concentric Models
OK regarding politics & legal rights, but doesn‘t take
loyalty & allegiance into account
Gives rights to workers, but gives less rights to nonworkers
(what about law students, retirees)
The empty core problem
Citizenship as an instrument of social closure.
o Cz has unqualified right to enter & remain in the state and rights (such as
suffrage, hold office, jury duty & military service)
o Preservation of security and fiscal interests
B. Dual Nationality
When it Can Arise:
o Birth in the U.S. to immigrant parents
o Birth outside the U.S. to a child with U.S. citizen and a foreign parent
o Naturalization with a renunciation requirement, but renunciation not
recognized by country of origin
o Naturalization, loss and resumption of citizenship
INA § 337. Oath of renunciation and allegiance
o ―One at a time‖ norm
―Dual Citizenship is a problem.‖
o Conflicts of loyalty, which are inconsistent with the unitary allegiance
normally required for citizenship
o Potentially serious conflicts in times of war.
―Dual Citizenship should be embraced.‖
o Economic Connections
o Remote prospect of war
o People don‘t affiliate with the flag; they affiliate with family, their
profession, etc. (Post 9/11, I’d argue against this)
C. Methods of Obtaining Citizenship
Birth Jus Sanguinis
U.S. National Swain Island
Not U.S. Citizen
Foreign National LPR
14th Amendment. ―All persons born or naturalized in the U.S. AND subject to
the jurisdiction thereof are citizens of the U.S.‖
4 ways to obtain citizenship:
o Birth in the U.S. or its territories
o Birth outside the U.S. to a U.S. parent
o Naturalization of a parent while a child is under 18 years old
o ―Right of Land‖
o Exceptions. Tourists, Foreign diplomats, alien enemies in hostile
occupation, Foreign Warships while in U.S. territorial waters
o Court held Native Americans were not citizens because they weren‘t
‗subject to the jurisdiction of.‘
o Narrow interpretation of ‗subject to the jurisdiction thereof.‘
Wong Kim Ark. (1895)
o Child born in the U.S. to Chinese parents was a citizen by virtue of the
o Broadened the interpretation of ‗subject to the jurisdiction thereof‘
o If Wong Kim Ark had come out the other way, citizenship would have
been denied to thousands of persons of Western European desent
o ―Right of Blood‖
o Transmission Process. The transmitter must have citizenship to pass it on.
―Citizenship‖ includes transmitting ideas, experiences, culture...
o Policy. Avoids indefinite perpetuation of U.S. citizenship just sanguinis
within families that have lost touch with American roots.
o INA § 301(c), (d), (e), (g), (h)
(c) Both parents = citizens; child = citizen IF 1 parent has had a
U.S. residence before the child‘s birth
(d), (e) 1 parent = citizen; child = citizen IF Cz parent physically
present in U.S. for a continuous period of 1 year before the child‘s
(g) 1 parent = citizen; child = citizen IF Cz parent spent 5 years in
U.S., at least 2 years after age 14.
(h) Persons born abroad before May 24, 1934. …
o INA § 309. Children born out of wedlock.
Jus Sanguinis extended to a child born outside the U.S. and out of
wedlock to a U.S. citizen MOTHER but a child born abroad out of
wedlock to a U.S. citizen FATHER attains citizenship at birth
ONLY if a number of additional conditions are met.
o Facts. Child born out of wedlock in Vietnam to a U.S. Cz father and a
Vietnamese mother. When he was age 6, he came to the U.S., became an
LPR and lived with father in TX. At age 22, convicted in TX state court,
INS ordered him deported. His father appealed (standing).
o Equal Protection Issue. Had the child‘s mother been an unmarried Cz,
he would have been a Cz also. Since the child‘s father was an unmarried
Cz, § 309(a) requirements needed to be met.
o Applying Heightened Scrutiny, the Court found nothing irrational or
improper in having gender-based differences in requirements.
The importance of assuring that a biological parent-child
―America is not a descent based people.‖ – something other than
blood is needed to transmit citizenship
o In addition, Nguyen had a different way to citizenship, but his criminal
offenses screwed things up. Could have gone the §§ 312, 316 route.
o Dissent. § 309(a)‘s intent was to prevent fraudulent conveyances of
citizenship. In this case, it‘s being used to impose stricter standards on Cz
fathers than on Cz mothers.
Married § 301(g) Residence (5 years, 2 after 14)
Unmarried § 301(g) Residence (5 years, 2 after 14)
§ 309(a) Paternity (Affirmative Steps)
U.S. Cz Transmittor
Married § 301(g) Residence (5 years, 2 after 14)
Unmarried § 301(e) Residence (1 year continuous)
1) Residence & Physical Presence
a. INA § 316(a)
i. Continuous residence in U.S. for 5 years as LPR
ii. During 5 years before filing, physical presence in U.S. for at least
iii. Residence in district where petition filed for 3 months.
b. Purpose: to create reasonable period of ‗probation‘ to enable candidates to
discard foreign attachment, learn principles of U.S. gov‘t system and
identify with national community
i. Legal Residence Necessary
ii. Exception to physical residence requirement: U.S. gov‘t service,
U.S. institution research, U.S. corporation foreign trade/commerce,
public int‘l org of which U.S. is a member
iii. BUT, before seeking exception, applicant needs to continuously
reside in U.S. for 1 year or more
a. INA § 334(b)(1) generally need to be 18 years old
b. INA § 322 child status – derivative citizen
Parents can obtain certificate of citizenship for
children who somehow didn‘t otherwise obtain US
3) Literacy & Educational Requirements
a. INA § 312(a)(1)
i. Applicant must be able to read, write, speak and understand simple
ii. Exceptions: physical inability, older than age 50 at time of filing
and LPR for 20 years or older than age 55 at time of filing and
LPR for 15 years
b. INA § 312(a)(2)
i. Knowledge and understanding of fundamentals of history and
principles and form of gov‘t. Generally applied leniently (2 or 3
opportunities to pass)
Local Legal Culture: This could be very relaxed and it could be very
Lecture 10/2/01 – Language Requirements Debate
4) Good Moral Character
a. INA § 316(a)
i. During 5 years before filing, applicant must show they have been
and still are a person of good moral character.
b. Learned Hand this test is incapable of exact definition
c. INA § 101(f). If you‘re on this list, no good moral character
i. Habitual drunkard, poor, AIDS, gambling, fraud, convicted and
jailed for 180 days or more, aggravated felony
5) Attachment to Constitutional Principles
a. INA § 316(a)
i. Applicant must show ‗attached to the principles of the Constitution
and well disposed to the good order & happiness of the U.S.‘
b. Community, representative democracy, Bill of Rights, willingness to
accept the basic social premises that change only be affected in an orderly
manner, hope for future progress and prosperity
6) Oath of Allegiance to United States
a. INA § 337 – pledge:
i. Support and bear true faith and allegiance to Constitution
ii. Renounce all allegiance to any foreign state/sovereign
iii. Support and defend Constitution and U.S. laws against all foreign
and domestic enemies
iv. Bear arms on behalf or the U.S. when required by law
1) OR perform non-combative armed forces service
2) OR perform civilian work of national importance when
required by law
Relaxed Naturalization Requirements for Particular Applicants:
INA § 319
o Spouses of U.S. citizens can apply after married for 3 years
INA §§ 322, 337(a)
o Children of U.S. citizens
INA §§ 328, 329
o Current or former members of the armed forces
INA § 313. Prohibition upon the naturalization of persons opposed to
government or law, or who favor totalitarian forms of government.
o No naturalization if
o INA § 313(a)(4). Communist or totalitarian party members and those who
advocate overthrowing the U.S. gov‘t by force or violence or
o INA § 313 (d). Applicant MAY qualify for naturalization of they can
show that the membership or affiliation occurred & terminated before
applicant was age 16 OR membership or affiliation was by operation of
law or for purposes of obtaining employment, food or other essentials.
o Grzymala-Siedlecki v. US. Enrollment in the Polish Naval Academy,
which automatically conferred Communist Party membership, didn‘t
disqualify Π from naturalization where college education was necessary
for earning a livelihood.
o Rowoldt v. Perfetto. ―Meaningful Association‖ is an awareness of the
party‘s political aspect.
o Exceptions to Prohibition on Naturalization.
a. INA § 313 (c)
i. Applicant MAY escape the preclusion statute if 10 years has
passed between membership in a subversive org or the act of
advocating overthrow of the gov‘t and the filing of the
b. INA § 314
i. If applicant desert U.S. armed forces or leaves the country to
dodge draft AND convicted of that offence, permanently precluded
c. INA § 315(a)
i. Alien seeking/obtaining armed forces exemption on the grounds
that he/she is an alien is permanently ineligible for citizenship
UNLESS have served in military of country with treaty with the
Jurisdiction. 1990 Act conferred both the decision on naturalization and the
oath of allegiance upon the AG (INS)
INA § 310: Basic administrative procedure & judicial review provisions
(federal district court gets de novo review of denials of naturalization)
INA § 335: Examination of application for naturalization.
o Form N-400
o INS officer makes a formal determination to grant or deny
Must state reason why if denied
INA § 336: Hearing before an immigration officer if application is denied @
As an immigration attorney, you want to get your client AWAY FROM THE
INS and INTO THE COURT SYSTEM
Price v. U.S. INS (1994)
Facts. Price (UK citizen) refused to list all organizations with which he has
ever been affiliated in his petition for naturalization. Claimed AG didn‘t have
statutory authority to require such a list & that such authority would be
INA § 335(a), (b). Attorney General has authority to require an applicant for
naturalization to aver all facts which in the opinion of the AG may be material
to the applicant‘s naturalization & to designate INS employees to take
testimony concerning any matter touching or in any way affecting the
admissibility of any petitioner for naturalization. AG HAS VERY BROAD
o Level of deference to administrative (and Congressional) authority
in interpreting immigration rights
o Standard of Review of AG‘s authority‖facially legitimate and
bona fide‖ –Kleindienst
Reasonable to assume that knowing the organizations with which a petitioner
is associated will be relevant to 1 or more of the requirements for citizenship.
―Because a petitioner might be mistaken about whether an organization is of
the type prohibited by § 313(a) & because Q. 18 could reasonably reveal
information relevant to other requirements for naturalization, the AG‘s
decision that Q.18 is relevant to determining qualification for naturalization is
facially legit and bona fide.‖
Dissent. In this specific case, the alien resident was here for 30 years and
conducted himself like an American for a very long time. ―Beyond excluding
persons committed to subversion or terror or under the orders of a foreign
gov‘t, there‘s no conceivable way the gov‘t can measure a person‘s
character.‖ Unconstitutional b/c infringes on right of free association.
# of Naturalization Petitions Increased Substantially. Factors:
# of immigrants legalized under 1986 Act became eligible for citizenship
1992 – INS introduced new LPR ~ valid in 10 year increments
Anti-immigrant rhetoric of mid-1990s led some immigrants to seek security of
1996 Welfare Act sparked a demand for naturalizations immigrants sought to
preserve their access to the social safety net
II. The Federal Immigration Power
A. History & Themes
o How are the present perceptions of current immigrants similar/different
i.e. assimilation, English language
o Business & Economy
i.e. how do businesses cycles affect immigration moods?
Politics/Labor Movements/Anti-Immigrant Sentiment?
o Political Alignments
Business groups & Ethnic groups vs. 100%ers, labor orgs
o National Origins Formula
1924-65: gears # of people let into U.S. based who‘s here now,
using 1911 demographic statistics.
o Conceptual Change written in by 1996 Act.
Anti-Terrorism & Effective Death Penalty Act
Illegal Immigrant Reform and Immigrant Responsibility Act.
B. Sources of Immigration Power
o The Commerce Power
o Congress has the power ‗to regulate Commerce with foreign Nations, and
among the several States.’
o The Supreme Court has held that migration is commerce.
o The Naturalization Power
o Congress has the power ‗to establish a uniform Rule of Naturalization.‘
o Power to naturalize does NOT necessarily imply the power to regulate the
admission of aliens who may eventually be eligible for naturalization.
There‘s a distinction between regulation of the physical entry of aliens
into the territory of the U.S. and regulation of the entry into the political
community of the U.S. through the extension of full political rights to
o The War Power
o Congress has the power ‗to declare war.‘
o Federal gov‘t has the authority to stop the entry of enemy aliens and to
expel enemy aliens from residing in the U.S.
o The Migration and Importation Clause
o The Migration or Importation of such Persons as any of the States now
existing shall think proper to admit, shall not be prohibited by the
Congress prior to the Year 1808.
o Slavery. Even though this clause seems to authorize congressional power
to prohibit immigration after 1808 and probably to regulate it as well, it‘s
interpreted as prohibiting congressional attempts to stop the slave trade
o Migration v. Importation—Legislative Intent. ‗Migration’ was intended to
refer to the movement of slaves among the States, while ‗Importation’
referred to the initial entrance of the slave into the U.S. OR the regulation
of immigration by blacks—‗when the free black man came here, he
migrated; when the slave came, he was imported.
o The Foreign Affairs Power
o Immigration decisions are clearly part of the conduct of American foreign
Chy Lung v. Freeman, 92 U.S. 275 (1875). The federal gov‘t‘s power to
conduct foreign affairs, whether or not it justifies federal regulation of
immigration, has led the courts to invalidate state statutes that attempt to
regulate immigration. The passage of laws, which concern the admission of
citizens and subjects of foreign nations to out shores, belongs to Congress,
and not to the States.
o Inherent powers seem to owe their existence to pre-Constitutional sources
o U.S. v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). The source of
the federal gov‘t‘s foreign affairs powers derives not from the
Constitution, but from the fact of independence itself. As a result of the
separation from Great Britain by the colonies acting as a unit, the powers
of external sovereignty passed from the Crown not to the colonies
severally, but to the colonies in their collective and corporate capacity as
the United States of America.
This notion that Constructional and Structural Arguments
o The Rule of Necessity. Perhaps to lose control of one‘s border is to
‗defeat the venture at hand‘ by losing our ability to achieve the objects for
which the Constitution was established, ‗to ensure domestic tranquility,
provide for the common defense, promote the general welfare.‘
o A Structural Justification. Self Preservation—to be a sovereign nation, a
people must have control over their territory. A nation of open borders
runs the risk of not being able to govern itself because its sovereignty is in
the hands of the other nations of the world. Self Definition—by deciding
whom we permit to enter the country, we say much about who we are as a
C. The Plenary Power Doctrine
Chae Chan Ping (Chinese Exclusion Case)
o Fountainhead case giving federal gov’t authority to regulate immigration.
o Facts. A Chinese laborer, who entered the U.S. in 1875, visited China in
1887. Before leaving, he got a certificate pursuant to the 1882 & 1884
Acts. When he returned after the 1888 Act, he was denied re-admission
even though he possessed a certificate. He sued, alleging the 1888 Act
violated the Constitution and conflicted with the Burlingame and 1880
o ―Chinese laborers are not U.S. citizens; they’re aliens and the U.S. gov’t
can exclude aliens from its territory is not open to controversy.‖
o Reasons. Preserve independence; give security against foreign aggression
o If the U.S. gov‘t, through its legislative dep‘t, considers the presence of
foreigners of a different race in this country, who will not assimilate with
us, to be dangerous to its peace and security, their exclusion is not to be
stayed because at the time there are no actual hostilities with the nation of
which the foreigners are subjects.‖
o Whatever license Chinese laborers may have obtained, previous to the
1888 Act, to return to the U.S. after their departure, is held at the will of
the gov‘t, revocable at any time, at its pleasure.
Plenary Power Doctrine:
o Source of Sovereign‘s Power
To regulate immigrationwar/self-defense
Enumerated Powers. Commerce, Naturalization & War Clauses
Inherent Powers. ―Pre-Constitution‖ self-defense, self-definition
o Power vests to the Federal Government (Not State), via the Constitution
o Power = Political; no judicial review
Power of self-defense is political and is beyond judicial reach.
There are some immigration laws that rise to the level of self-
defense (BUT most do not)
Yick Wo v. Hopkins. (1886). Three years before Chae Chan Ping, the Supreme
Court held that the equal protection clause protected Chinese nationals against
discriminatory enforcement of a San Francisco ordinance regulating laundries.
o Suggests that aliens and citizens receive similar (but not identical)
constitutional treatment in nonimmigration matters.
14 Amendment is NOT confined to the protection of citizens. ―Nor shall any
state deprive ANY PERSON of life, liberty, or property without due process of
law; nor deny to ANY PERSON within its jurisdiction the equal protection of the
How is the Plenary Power Limited?
Foreign Nationals U.S. Citizens
Immigration Law 4-Court on shaky ground 3-Low judicial power
Chae Chan Ping Kleindeist
Wing Wong Fiallo
Other Law 2-Court very comfortable 1-Strong Judicial Review
As an immigration lawyer, argue that you are in box 1 and far away from box 4 OR that
your case is similar to Wong Wing
Fong Yue Ting. (1893)
o Facts. A Chinese laborer couldn‘t get white people who could vouch for
him. Having failed to establish legal residence by at least one credible
white witness, as required by statute, the judge ordered him deported.
Majority. Nations can expel or deport foreigners—this right is absolute and
o ‖The right of a nation to expel or deport foreigners, who have not been
naturalized or taken any steps towards becoming citizens of the country, is
as absolute and unqualified as the right to prohibit and prevent their
entrance into the country. Congress has broad authority to create rules of
Dissent. Cruel & Unusual Punishment. Due process rights of the deported.
Fong Yue Ting (con)
Plenary Power. Since Chae Chan Ping, the court calmed down a bit and
reviewed more carefully. They began to see and think about the many
complexities of the Plenary Power Doctrine and realized that it’s about more than
INA § 237. Under current law, aliens may be deported (1) for conduct occurring
prior to their entry, (2) if they were excludable at time of entry, and (3) for
conduct occurring after a lawful entry.
Wong Wing v. United States (1896).
Struck down the part of the 1892 Act that provided that any Chinese citizen
judged to be in the U.S. illegally ‗shall be imprisoned at hard labor for a period of
not exceeding one year and thereafter removed from the U.S.‘ Court says you
must have a jury trial before a Chinese citizen can be punished.
Plenary Power. There are limits to what Congress can do to foreign
nationals AND the court says it is their job to draw the limits.
o ―We think it would be plainly competent for Congress to declare the act of
an alien in remaining unlawfully within the U.S. to be an offense,
punishable by fine or imprisonment, if such offense were to be established
by a judicial trial. But when Congress sees fit to further promote such a
policy by subjecting the persons of such aliens to infamous punishment at
hard labor, or by confiscating their property, we think such legislation, to
be valid, must provide for a judicial trial to establish guilt of the accused.‖
D. Institutional Players – Federal Agencies & Courts
INA §§ 103, 104. Enabling statutes for administrative structure.
o INS. Main f(x) ~ adjudicate application s for various benefits under the
o EOIR. IJs. Take care of removals (exception – expedited removal)
o BIA. Handles appeals from IJ decisions on removal proceedings
o DOS. Issues visas and passports. Political in function.
o DOL. Labor certification for applicable employment-based categories
o BALCA. ―The Supreme Court of Labor Issues‖
o The Court System. INA § 242 limits the role of the courts.
No judicial review in crime-related deportation grounds, certain
waivers, and relief from removal and discretionary adjustment to
A. The Decision to Migrate
Trujillo says neither of these models is exhaustive, nor should be used in
policymaking—they‘re under explanatory. Helpful to get a general sense.
Boras. Economic Model.
o Supporter of the push/pull theory.
―Immigrants consider the relative economic strengths of the
sending/receiving countries & what the countries can do to alter
the immigrant‘s decision, in order to get the ―right‖ choice.
Bernie says the economic incentive to move from a low income
countryhigh income country must be substantial enough to
compensate an individual for moving/being separated from family
Making heroic assumptions. The migrant is not an isolated
rational actor, seeking to maximize his/her self-interest. The
migrant takes family, community, and history into consideration
too. In addition, the migrant does not have full & perfect
information. Often, s/he is NOT fully aware of the economic
situations in both countries.
Portes & Borocz. Sociological Model.
o Supporter of ―cultures continuity‖ to explain migration.
Migrants come because of economic conditions in both the sending
and receiving countries, but also come because there are
established ethnic communities in the U.S., which serve as a
financial, professional, social and cultural support network.
Portes & Rumbaut
o The basic reason migrants come to the U.S. is the gap between life
aspirations and expectation and the means to fulfill them in the sending
o 1965 – end of national origins formula. Beginning of multiculturism
o The problem of brain drain. Does the U.S. owe a duty to the countries
from which high-quality migrants come from to deter them from leaving
their countries and not helping their economies & contributing to the U.S.
o Seepage of market mentality from U.S. to other countries.
B. Admission Categories and Backlogs
How to Get a Green Card:
1. Petitioner must be in the United States (spouse, employer)
a. Beneficiary – foreign national who plans to immigrate. No right against
the U.S. gov‘t. If petitioner stops the process, no recourse.
2. If Petitioner = Family Member, file visa petition with INS in U.S. (Form I-130)
If Petitioner = Employer, file visa petition w/ DOL to obtain labor certification
If nonimmigrant already in U.S. = can adjust status to LPR, if qualified, without
having to return to home country, under § 245
If qualified undocumented, may be possible to adjust status under § 245(i)
3. If approved, INS endorses it & its forwarded to DOS National Visa Center/INS
office (if adjusting status)
4. DOS notifies consulate where alien is expecting to apply for the visa
5. A visa will be available if either the visa allocation priority date is current OR if
the alien is an immediate relative (no quota, no wait)
o If alien‘s visa allocation priority date is current, the alien is sent ‗Packet 3‘
6. Alien has visa interview (typically 2-4 months after completing packet 3)
7. If consul finds alien admissible, immigrant visa is issued, valid for 6 mo. (INA §
8. If immigration officer @ port of entry finds no disqualifications, gives alien
―LPR‖ stamp in passport & forwards papers to INS for Alien Registration Reciept
Card (I-551 ~ green card)
Entry # limits; § 212(a) Nonimmigrant
Undocumented Migration EWIs
Family-based see below
Employment-based see below
Admits immigrants from countries not currently well represented in the immigrant
o Trujillo says like National Origins Formula—let‘s have more Europeans
and Africans and less Mexicans and Asians
INA § 203(c)
Low Threshold Requirements:
o At least a high school education or its equivalent OR
o 2 years of training or experience w/in 5 years before applying.
Lottery—winners can bring their immediate families.
o ALWAYS BUY A TICKET TO THE DIVERSITY LOTTERY
Diversity visa lottery and per country limits places extra burdens on certain
individuals—Mexico and the Philippines
Per Country Limits
INA § 202
Total # of immigrant visas available to natives of any single foreign state may not
exceed 7% of the total # of such visas available that year.
Visa Chart. Allows you to guess how long a wait your client will have.
o Client‘s priority date?
o Client‘s country of origin?
o Client‘s preference classification?
C. The Impact of Admission
Immigrants play a dominant roll in population growth
Multiple ancestry is increasing
Immigration produces net gains for domestic residents
If immigrants remain different from native born, they can affect the rate of
Biggest losers of immigration are recent immigrates and African-Americans
The wage gap (less gap for Asians and Europeans; more gap for Mexicans)
Policy favoring admitting the young & educated and excluding the old
D. Family-based immigration & Marriage Fraud
Family Preferences, INA § 203(a)
1st Preference—Unmarried sons/daughters of US Czs
o Ceiling – 23,400
2 Preference—Spouses, unmarried sons/daughters of LPRs
o (a) Spouses and children under 21
o (b) Children over 21
o Ceiling – 114,200
Family Preferences (con.)
3rd Preference—Married sons/daughters of US Cz
o Ceiling – 23,400
4 Preference—Brothers/sisters of US Cz
o Ceiling – 65,000
―Children‖ include stepchildren, legitimated (if relationship established before
child reached age 18), adopted (if adoption occurred before child was age 16), and
illegitimate (w/ certain qualifications) children.
―Immediate Relatives‖ are not subject to numerical ceiling.
o Children, spouses, and parents of a citizen, except that, in the case of the
parent, the citizen shall be at least age 21.
Family members of aliens who enter under a preference category DO NOT have
to wait until the alien successfully petitions for them under a different preference
category. ―Follow to join‖ under INA § 203(d)
o Followers to join can come whenever, so long as they meet the statutory
requirements. (i.e. they must exist at the time of filing)
Policy: Family reunification; avoid separating nuclear families.
o Economic policy – family acts like an insurance plan.
NIVs to fill gap when waiting in line:
o K-visa – for fiancées or newly-wed spouses of Cz and their minor children
o V-visa – only applicable for 2A category AND must have been in line
Immediate Relative of Citizen INA § 201(B); K visa
Family-based Admission 4 Family-Preference Categories INA § 203(d); V visa
Following to Join INA § 203(d)
Fiallo v. Bell.
Facts. Unwed natural father & his illegitimate offspring sought a special
immigration preference by virtue of a special relationship to a citizen or LPR
child or parent.
INA § 101(b)(1)(D). ―Child‖ – unmarried person, under 21 years of age, who is
a legitimate or legitimated child, a stepchild, an adopted child, or an illegitimate
child seeking preference by virtue of his relationship with his natural mother.
INA § 101(b)(2). ―Parent‖ – qualifies as a parent on the basis of the person‘s
relationship with a child.
Natural father of an illegitimate child who is either a Cz or LPR is NOT
entitled to preferential treatment as a parent.
Plenary Power. Very Robust. Court held consistent with the Plenary Power
Doctrine. Whenever immigrants or immigration law is involved, the Plenary
Power Doctrine serves as a carte blanche.
Fiallo v. Bell (con.)
Footnote 5. Our cases reflect acceptance of a limited judicial responsibility
under the Constitution even with respect to the power of Congress to regulate the
admission and exclusion of aliens, and there is no occasion to consider in this
case whether there may be action of the Congress with respect to aliens that are
so essentially political in character as to be nonjusticiable.
o Suggests there is a limit to the Plenary Power Doctrine, even if it‘s not
applied in this case. No mention of where the line is.
Is this marriage ‗it?‘
o Examine the form
Legit marriage where celebrated? (foreign family law)
Legit marriage where received? (public policy, fam. law, recog. in state?)
o Examine the intent of the parties at the point of marriage
o Check up
Strong. Marriage in fact.
Weak. Marriage in law. Has marriage been legally terminated?
Bark v. INS
Facts. IJ shot Bark down and said marriage was a sham b/c separated and
admitted to quarreling and separating. (Reversed)
Conduct of the parties after marriage is relevant only to the extent that it
bears upon their subjective state of mind at the time they were married.
The appropriate question is ―Did the petitioner and his wife INTEND to
establish a life together at the time of their marriage?‖
Sham Marriages & the Ethical Responsibilities of an Attorney
Attorneys can be suspended or disbarred if willfully misinform or deceive DOJ
about any material & relevant fact.
MR 1.6: Confidentiality, regarding all information related to the representation,
whatever the source.
MR 1.2(d): Attorney can‘t assist a client in conduct the lawyer knows or
reasonably should know is criminal or fraudulent.
Dabaghian v. Civiletti
Facts. Iranian Cz married US Cz in 9/79. In 10/79, he applied for adjustment of
status under INA § 245. Granted. Same day, separated from wife. 2 weeks later,
divorced wife. 8 months later, married Iranian Cz. AG moved under INA § 246
to rescind the adjustment of status on the ground that Dabaghian hadn‘t been
eligible for it when it was granted.
Court ruled in favor of Dabaghian. If marriage isn‘t a sham or fraudulent
from its inception, it‘s valid for the purposes of determining eligibility for
adjustment of status under INA § 245.
Dabaghian v. Civiletti (con.)
―Factually Dead Test‖ would trench on constitutional values and privacy rights.
Was Dabaghian the spouse of a US Cz at the time of adjustment of status? YES.
INA § 201(b) – no exception for marriages that the INS thinks are ‗factually
dead‘ at the time of adjustment.
If divorced as of date the immigration benefit granted, petition may NOT be
If legally separated, immigration benefits may not be granted.
Sham Divorces. Formal dissolution of marriage bonds for the sole purpose of
claiming benefits that are only available to unmarried persons, like family-based
2nd preference visas.
Matter of Aldecoactalora. Sham divorces aren‘t recognized. Goes against
Immigration Marriage Fraud Amendments of 1986.
INA § 216. All persons who obtain LPR status based on a marriage that‘s less
than 2 years old at the time receive such status on a conditional basis.
(Conditional period=2 years)
INA § 216(e). Within last 90 days of 2-year period, both spouses must petition
INS to have conditional status removed, although under certain circumstances the
alien may secure a waiver to the requirement of a joint filing.
INS can either remove the conditional status INA §§ 216(c), (d)(1)full LPR
status OR not remove the conditional statusdeportable under INA §
K Visas & Marriage Fraud
Strengthen the restriction on future immigration of persons who have ever been
involved in marriage fraud.
Criminal sanctions for involvement in marriage fraud
Harder for aliens in deportation proceedings to cure their problems with 11th hour
The Problem of Spousal Abuse
Petitioning spouse has significant power that can be used to perpetuate abuse.
INA §216(c)(4)(C): waiver for battered spouses
INA § 204(a)(1)(A)(iii): permit a battered spouse who‘s eligible for family-based
immigration based on marriage to file a petition on her own behalf for LPR status
Marriage must have been bona fide.
INA § 237(a)(2)(E): deportation ground for persons convicted of a crime of
domestic abuse or found in violation of protective orders.
E. Employment-based immigration
Employment Preferences, INA § 203(b)
1st Preference—Priority Workers
o Extraordinary ability see 8 CFR § 204.5(h)
o Outstanding professors & researchers see 8 CFR § 204.5(i)
o Executives (see INA § 101(a)(44)) see 8 CFR § 204.5(j)
o NO labor certification required
o Ceiling – 40,000
2 Preference—Professionals holding advanced degrees or persons of
exceptional ability; see 8 CFR § 204.5(k)
o Petition must be filed by employer OR waived by the AG ‗in the national
interest.‘ (Note: ‘in the national interest’ is an essay writing contest)
o LABOR CERTIFICATION REQUIRED; INA § 204(b)
o Ceiling – 40,000
3 Preference—B.A. degree & skilled and unskilled workers who would fill
positions workers; see 8 CFR § 204.5(l)
o LABOR CERTIFICATION REQUIRED; INA § 204(b)
o Ceiling – 30,000
o ―Other Workers‖ – 10,000
4 Preference—Special immigrants; see 8 CFR § 204.5(m)
o Includes religious workers, non-governmental organizations
o Defined in INA § 101(a)(27)(C) thru (J)
o NO labor certification required
o Ceiling – 10,000
o INA § 203(b)(5).
o Requires creation of no fewer than 10 jobs for U.S. workers AND $1
o NO labor certification required
o No preexisting network necessary
o Ceiling – 10,000
o (+) We provide preferences for those who come to fill jobs for which
American workers are unavailable; why not provide a preference for aliens
who would create jobs for American workers?
o (-) The rich should not be able to buy their way into the country
Visa petition must be field by employer already in the U.S.
Policy. Augment the economy.
INA § 212(a)(5)(A): Labor Certification
o INA § 204(b). The labor cert. requirement is a prerequisite that must be
satisfied by every entering immigrant in the employment-based 2nd and 3rd
o Labor Certification must be secured from the DOL
Schedule A. Lists occupations judged chronically short of
qualified U.S. workers. If you‘re on this list, you‘re in.
Schedule B. Lists occupations that have sufficient U.S. workers
and for which a labor certification won‘t be issued.
If the alien‘s occupation doesn‘t appear on either schedule, then
the employer must initiate the individual certification process and
demonstrate the manifold requirements.
Good faith recruitment efforts aimed at qualified U.S.
Interviewed interested U.S. workers and rejected any such
applicants for lawful, job-related reasons
Offered the ―prevailing wage‖ and is capable of paying that
Job requirements are not unduly restrictive
o Certification establishes:
A shortage of available and qualified workers exists in the alien‘s
field at the place of intended employment
The hiring of the offered terms wouldn‘t adversely affect the
wages or working conditions of other workers.
o Does NOT affect family-sponsored preferences, even if they intend to
compete with American workers in fields already well supplied.
o Application is filed by the employer @ local Job Service office
o ―No‖ ―Notice of Findings.‖ Can appeal to ―Final Determination.
Administrative Review (BALCA) and judicial review available
o ―Yes‖ approval communicated to the consular officer in the alien‘s
country for ultimate processing of the immigrant visa.
In the Matter of Information Industries, Inc. (BALCA)
Facts. The employer required a B.S. in Engineering and a M.S. in Computer
Science. The Certifying Officer found the requirement of 2 degrees was unduly
Either you must allege the 3 safe harbor requirements in § 656.21 OR that you
have a business necessity exception to the requirements.
Safe Harbor Requirements. Normally required for a job in the U.S., defined in
the DOT, not requiring a language other than English.
Information Industries (con.)
―Business Necessity‖ Test. The employer must demonstrate that the job
requirements bear a reasonable relationship to the occupation in the context
of the employer‘s business and are essential to perform in a reasonable manner,
the job duties as described by the employer.
Possible reforms of the immigrant admission system
Protect business interest or protecting labor interest or family reunification?
Fill high-tech jobs w/ immigrants or solve by improving U.S. labor market thru
Trend towards giving visas to people who will improve the economy & away
from family reunification.
INA § 204(j). Allows an immigrant to take H1B visa from Employer 1 in State 1
to Employer 2 in State 2. Doesn‘t affect LPR status.
o Policy. U.S. needs more high skill workers—we want them in the U.S.
and we want them to stay in the U.S.
o Wants family-based admissions that give priority to nuclear family
members-spouses and minor children of U.S. citizens; parents of U.S.
citizens; and spouses and minor children of LPRs-and include a backlog
clearance program to permit the most expeditions entry of the spouses and
minor children of LPRs
o Skill-based admissions policies that enhance opportunities for the entry of
highly skilled immigrants, particularly those with advanced degrees, and
eliminate the category for admission of unskilled workers.
o Wants flexible immigration policy to admit primarily persons who can fill
job vacancies for which qualified citizens and resident aliens are
o The guiding principle should be what immigrants can do for this country,
not what this country can do for immigrants.
o Legal entry should be restricted to skilled and educated immigrants
because the U.S. already has an abundance of unskilled and poorly
prepared would-be workers.
INA § 214(b) – presumed to be an immigrant UNLESS prove otherwise.
CULTURE OF SUSPICION.
INA § 101(a)(15). NIV Preference Categories
o B – Temporary Visitors for Business and Pleasure
B-1 – Business
B-2 – Pleasure
Valid for 1 year; renewable in 6 mo. increments.
Procedure. The alien initiates the process overseas; no petition on
his or her behalf need be filed with the INS; no labor certification
Catch-all provision. Used to admit nonimmigrant aliens for
business-related purposes where other nonimmigrant
classifications are not applicable.
o E – Treaty Traders and Investors
E-1 – Treaty Traders & their spouses and children
Must be international trade between U.S. and the treaty
E-2 – Treaty Investors & their spouses and children
There must be an international agreement
Valid for 1 year; renewable indefinitely, so long as the alien
continues to undertake the activities for which the visa was
Procedure. The alien initiates the process (no preliminary petition
by a sponsoring entity needed).
E visa holders need not retain a foreign residence that they do
not intend to abandon.
o F – Academic Students
F-1 – Academic Student
F-2 – Spouses and children of academic students
Valid for duration of status as a student or for the time necessary to
complete the course of study
o H – Temporary Workers
H-1B – Aliens coming temporarily to fill a job that‘s itself
Must have a bachelor‘s or higher degree
Must be coming to provide services in a specialty
occupation, as defined in INA § 214(i).
No labor certification needed
INA § 212(n) – must have attestation
Valid for 3 years; renewable up to 6 years total
MAY LEGITIMATELY ENTER US UNDER H-1B VISA & AT
THE SAME TIME, LAWFULLY SEEK TO BECOME AN LPR
Quota – 195,000 (for 2002)
These visas are PORTABLE—can take from employer 1 to
Policy for Advantages. Technology Sector wants to keep
them here and happy.
H-2A – Seasonal Agricultural Workers
Need labor certification
Mostly in East Coast & NW Pacific (i.e., where
undocumenteds are not)
H-2B – Temporary Nonagricultural Worker
Aliens coming temporarily to fill a temporary job
Available ONLY IF no one in the U.S. can be found to
perform this service or labor – INA § 214(c)
Valid for 1 year; extendable up to 3 years
Quota – (?)
H-4 – Alien Spouses & Minor Children following to join
CANNOT work, unless specified otherwise
o K –Fiancé(e) or children of U.S. citizens
Must be coming to the U.S. solely to conclude a valid marriage w/
a U.S. Cz
U.S. Cz must file a petition
Valid for 90 days
INA § 214(d). Requirement that the alien fiancé(e) and the U.S.
Cz have previously met in person within 2 years before the date of
filing the petition and have a bona fide intention to marry…
The AG may waive the personal meeting requirement.
CANNOT adjust status to any other NIV classification
o L – Intra-Company Transferees
L-1 – Intra-Company Transferees
Must ―render services in a capacity that‘s managerial,
executive, or involves specialized knowledge.‖
INA § 101(a)(44) – ‗managerial‘ and ‗executive‘
INA § 214(c)(2)(B) – ‗specialized knowledge‘
o must be about the firm
L-2 – Spouses & Children
Used by foreign companies with mergers and acquisitions
These visas are FIRM SPECIFIC
Valid for 3 years; expandable to 7 years
o O & P – Aliens with Extraordinary Abilities & Entertainers
Athletes & Entertainers, their supporting cast, spouses, and kids
MAY LEGITIMATELY ENTER US UNDER H-1B VISA & AT THE
SAME TIME, LAWFULLY SEEK TO BECOME AN LPR
o V – Aliens Waiting in Line
Alien who has been waiting in line for at least 3 years for
o NAFTA – if client can‘t get NIV, may still be able to get in here
Allows 4 categories of Canadian and Mexican citizens to enter the
US as nonimmigrants if they are ‗businesspersons‘
B-1 business visitors
E-1 traders and investors
E-2 intra-company transferees
TN professionals; parallels H-1B visas
Dual Intent Doctrine. An alien is not a bona fide nonimmigrant if intent from
the beginning is to remain in the US permanently.
How to Get a Nonimmigrant Visa:
o Most important issue – Whether the alien truly has a home in the
foreign country to which s/he intends to return.
o Applicible Statutes & Forms:
INA §§ 214, 221(a)-(b), (f)-(h), 222(c)-(g), 248
I-766 – Employment Authorization Document – EAD
What NIV gets from INS to permit him to work
o Procedure—2 paths possible:
o Nonimmigrant applies for visa at a consulate overseasthe visa serves to
authorize travel to the US in order to apply for admission at the port of
entryafter entry, the category and expiration date shown in the
admission documents (I-94) issued at the border or later modified or
extended at an INS office, determine the rights and limitations attached to
the nonimmigrant entry, regardless of what might have been shown on the
INA § 217 – If from 1 of 26 countries with low visa abuse rate, can
enter under this program, but waive all rights to extend stay,
change NIV status under INA § 248 or to adjust to LPR status
under 245A once in U.S., right to review of a finding of
inadmissibility or deportability.
o An alien who has been lawfully admitted as a nonimmigrant and who is
maintaining that status, changes to a different nonimmigrant status under
INA § 248
Reform Proposals for Temporary Admissions Programs - Policy
o (+). Tourism and travel generating $ and jobs, foreign students and
workers enriching the cultural, social and scientific life of the U.S., allows
for information gathering, tracking and information sharing (post 9/11)
o (-). Aliens who fail to depart at the end of their legal stay, when aliens
present unfair competition to U.S. workers.
A. The Basics:
3 Themes of Inadmissibility:
o What substantive harms is the U.S. trying to prevent against?
o What procedure should be used?
o What is the role of the courts?
INA § 212(a) – Excludable Aliens
Applies to any alien who has not been properly admitted into the U.S.
o Aliens who have been admitted have more procedural rights than those
persons who have not been officially accepted.
o Note: grounds for removal only apply after an alien has been inspected and
Ineligible to receive visas and ineligible to be admitted to the U.S.
Key Question – Has the alien been admitted or is s/he seeking admission?
Re-entry Doctrine – INA § 101(a)(13)(C). Defines when an LPR won‘t be
regarded as ‗seeking admission into the U.S.‘ and lists exceptions
Fleuti – ‗an innocent, casual and brief excursion by an LPR outside the U.S.‘s
borders may not have been intended as a departure disruptive of his LPR status
and therefore may not subject him to the consequences of an ‗entry‘ into the
country on his return.‘
o Codified in INA § 101(a)(13)(C)
Collado – (BIA) DR Cz; LPR for 25 years; received a suspended sentence for
statutory rape as a kid. Held to be seeking admission (inadmissible).
o Generally, an LPR won‘t be regarded as seeking admission.
o Policy. It‘d be inconsistent w/ provisions‘ nature to create a second
category of LPRs who may be regarded as seeking admission, depending
on a set of criteria that would be developed on a case-by-case basis.
Richardson – (S.D.N.Y.) Rejected BIA‘s reading of § 101(a)(13)(C) conditions—
‗Application of those conditions is up to the IJ in removal proceedings, at which
time, the alien & the INS can argue factors relevant to Fleuti
Agent DOL INS Examiner DOS Consulate INS Inspector DOJ
Action Labor Cert. Visa Petition Visa Issuance, Border Entry, Border Patrol -
INA § 203(b) Inadmissibility Removal Expedited
IJ / BIA
INA § 212(a)(2) – Criminal and Related Grounds
o Inadmissibility Elements
Conviction of certain crimes:
Crime involving moral turpitude
Multiple Criminal Convictions
Aggregate sentences were 5 years or more
Controlled Substance Traffickers
Also – prostitution, trafficking in persons…
o Inadmissibility Exceptions
If committed when the alien was under age 18 and the
crime was committed more than 5 years before the visa
application date, OR
The maximum penalty possible didn‘t exceed 1 year of
imprisonment and the alien wasn‘t sentenced to more than
INA § 212(h)
AG has discretion to waive inadmissibility for certain categories.
No waiver for aggravated felony, murder, and torture. No Judicial
If spouse, parent, son or daughter of Cz or LPR, ―extreme hardship
to the Cz or LPR‖ provision may apply
C. Immigration Control
New immigration control grounds in 1996 Act
o Creates incentives to leave the U.S. voluntarily, rather that staying
o Problems. Vast majority of aliens don‘t have future benefits & don‘t have
knowledge of this
INA § 212(a)(6)(A)(i) – pre-1996
o Inadmissible undocumenteds (Aliens who haven’t been admitted or paroled)
If overstayer INA § 222(g) applies
o Penalty. Lifetime exclusion
INA § 212(a)(9) – 1996
o Inadmissibility undocumenteds and overstayers
o (A) – Certain Aliens Previously Removed – banned for
o (B) – Aliens Unlawfully Present
o Penalty. Bans
If previously removed – 5, 10 or 20 year ban
If could be removed – 3, 10 year ban
o Policy. Gives EWIs & overstayers an incentive to leave voluntarily,
rather than staying unlawfully. I.e., Gets rid of undocumented aliens
without driving them into an underground economy. Bad for them; Bad
for U.S. workers
Detection. It doesn‘t affect undocumented aliens unless they screw
Bans undocumented aliens by criminalizing their presence
Greenwood – S.Ct. said cannot criminalize presence
INA § 212(a)(6)(C).
o Any alien who by fraud or willfully misrepresenting a material fact, seeks
to procure (or has sought to procure or has procured) a visa, other
documentation, or admission into the U.S. or other benefit is inadmissible.
Policy. Prevent aliens from attempting to fraudulently enter the U.S. and when
discovered, proceed w/ application as if nothing has happened.
Penalty. Expedited Removal. Only for fraud, document misrepresentation
o Exception. Asylum seekers
o No relief; no way to get around the 5 year ban.
o X<30: presumed misrepresentation if enter on B-2 & w/in 30 days start
looking to change status (schooling/unauthorized employment)
o 30<X<60: no presumption of misrepresentation. CO must have
reasonable belief for misrepresentation to be ineligible.
o 60<X: no presumed misrepresentation.
o As immigration lawyer, advise client to wait at least 60 days before
E. National Security
INA § 212(a)(3)
o Inadmissible if want to enter the U.S. to violate any U.S. law or engage in
any activity which is in opposition to or the control or overthrow of the
gov‘t by force, violence, or other unlawful means.
o (B) Terrorist Activities
o (C) Foreign Policy
o (D) Immigrant Membership in Totalitarian Party (N/A to NIVs)
Problems w/ inadmissibility for reasons of national security
o Procedural – most national security information is confidential. The law
must preserve surveillance missions & do justice w/ regard to citizens.
Policy. The prevention of:
o Violent activity (terrorist activity)
o Prevent admissions that would provoke overseas violence
o Prevent admissions that would support ideological offensive affronts
o Prevent the signal that the U.S. approves of a person, idea, …
o Prevent the spread of objectionable material to the U.S.
Kleindienst v. Mandel
Aliens have no constitutional right to be admitted into the U.S.
U.S. citizens have no right to insist that aliens be admitted to the country so that
ideas may be exchanged.
Congress‘ plenary power to control immigration supersedes a citizen‘s right to
receive information under the 1st Amendment.
Kleindienst v. Mandel (con.)
Standard of Review. ―facially legitimate and bona fide.‖
Marshall‘s Dissent. Content-based restriction of speech. What‘s the difference
between stopping Mandel at the border b/c we disagree with what he says and
stopping a citizen at the border and finding October Manifesto in his bag?!?
Trujillo Note. To challenge a statute geared towards nonimmigrants, you must
get a citizen‘s rights involved to get around the standing problem. This is the
problem today w/ attempts to challenge INA § 235(a).
F. Public Charge
INA § 212(a)(4)
o Inadmissible if likely at any time to become a public charge
o Factors to consider: alien‘s age, health, family status, assets, resources,
financial status, and affidavit of support
Affidavits of support are legally enforceable, as of 1996. INA § 213A
o Policy. Gives the gov‘t insurance that the applicant won‘t go on welfare.
o Sponsors must support own hh, PLUS all sponsored immigrants at a
minimum of 125% of federal poverty line for the entire period of
Forms: I-864 & I-864A
G. Public Health
INA § 212(a)(1)
o Applies to both immigrants and nonimmigrants
o Communicable Diseases, including AIDS
o Waivers for Public Health:
INA § 212(g)(1)(A). Applicable to ―aliens‖ More onerous—HHS
must be consulted.
INA § 212(d)(3). Catch-all for NIVs (except National Security)
H. Adjustment of Status
INA § 245
Way to get around traveling overseas to adjust from NIV Immigrant in the
classic fashion from a consular officer
AG has discretion to deny adjustment of status (Jain)
Requirements – INA §245(a)-(c)
o Must be inspected & admitted OR paroled
o Application (I-485)
o Must be eligible to receive immigrant visa
o Must be admissible to U.S. for LPR status
o Immigrant visa must be immediately available to him when his application
Ineligible for Adjustment of Status
o Terrorist, alien crewman, ‗transit w/out visa‘…
o If worked w/out authorization b/f filing or otherwise violated terms of
Exception – immediate relatives & special immigrants who have
engaged in unauthorized employment or otherwise violate terms of
NIV continue to be eligible to adjust status under § 245(a)
o If in unlawful immigration status when filing
o Failed to maintain continuous lawful status since entry into U.S.
o Parolees & others allowed to be present in U.S. w/out NIV (employment-
based immigrants ONLY)
If denied Adjustment of Status…
o May renew adjustment application b/f IJ during removal proceedings
o NOT DQ‘d from LPR status so long as qualified for an immigrant visa &
aren‘t inadmissible. Just have to use the usual immigrant visa process.
INA § 245(i)
o Lets undocumented aliens adjust, so long as they qualify; regardless of
what § 212(a)(6)(A)(i) says.
Note: INA § 212(a)(9)(b) establishes 3 & 10 year bans.
o Eligible for V visa while waiting in line
o Issue. Fairness. Some people have been waiting in line a long time.
This just lets you butt in line.
INA § 246 – Adjustment of status can be rescinded if (within 5 years) the AG
discovers the person wasn‘t eligible for such adjustment of status.
Allows an alien to travel away from the border & detention facilities, yet still
remain subject to exclusion proceedings.
1996 Act – parole for ‗emergency reasons or reasons deemed strictly in the public
interest‘ w/ case-by-case basis for urgent humanitarian reasons or significant
Examples – permits medical treatment, allows for appearance in
litigation/criminal proceedings, prevents inhumane separation of families
(humanitarian reasons), and permits release pending adjudication of an
Excludable Applicants for entry
Post-1996 Removal Applicants
Pre-1996, situs mattered, after 1996, situs is irrelevant
Removal – expulsion of an alien who has already been admitted to the U.S.
Grounds for removal apply only after an alien has been inspected and admitted.
o EWIs →inadmissible
INA § 237(a)
o Aliens who were inadmissible at time of entry or adjustment of status or
have violated status
o Aliens who have committed criminal offenses
o Aliens who have failed to register or falsified documents
o Aliens who were subject to security and related grounds
o Aliens who have become a public charge
o Aliens who have unlawfully voted.
INS may remove an alien for conduct, which was not a ground for removal at the
time the alien committed the act.
o Removal for acts that weren‘t grounds for removal when committed
doesn‘t violate the constitutional prohibition against ex post facto laws.
In theory, removal is not a criminal punishment, but a civil proceeding to rid
the U.S. of statutorily defined undesirables
o Plenary Power – Congress can expel and remove aliens.
o Harisiades. That Congress allows aliens to enter the U.S. is a matter of
permission and tolerance. The government‘s power to terminate
hospitality ha been asserted by this court since the question first arose.
o Removal penalizes the alien, as it forces her/him to leave home, job,
friends, and family. ―Removal may result in loss of both property and life;
or all that makes life worth living.‖ -Ng Fung Ho (1922) In addition, a
removed alien is barred for 5 years from entering the U.S. unless s/he
obtains special permission to reenter. INA § 212.
Facts. Greek national, been in U.S. since age 13. Joined Communist/Worker‘s
Party. Party discontinued membership. He was ordered deported b/c had been a
member of an organization which advocates overthrow of the gov‘t by force or
5th Amendment Claim. ―LPR = Cz, when it comes to remaining in the country.‖
o Plenary Power Doctrine. Gov‘t‘s power to terminate hospitality. Weapon
of defense & reprisal confirmed by international law as a power inherent
in every sovereign state. Will defer to Congress.
1 Amendment Claim. ―Joining an organization that advocates overthrowing
the gov‘t by force & violence is freedom of speech, press & assembly.‖
o No. Freedom to advocate/promote Communism means by ballot box. It
does not include the practice/incitement of violence.
Ex Post Facto Claim. 1920 law.
o These aliens haven‘t been caught unaware by a change in the law.
The U.S can deport LPRs for being members of the Communist Party at any time.
Trujillo Note.  ―Bias‖ –everyone who comes here wants be a citizen
o Trujillo says this is wrong. Not every who comes here is interested in
the political advantages of being a citizen. Many come here to reap
educational and economic benefits.
Murphy (in Bridges v. Wixon)
Basic problem with rights held by non-citizens:
Gov‘t precluded from enjoining/imprisoning an alien for exercising freedom of
speech. However, the gov‘t is free to deport him for exercising that very same
freedom. An alien would be fully clothed in constitutional rights when defending
himself in a court of law, but would be stripped of those rights when deportation
officials encircle him.
o Alien CANNOT be enjoined from speaking, HOWEVER, CAN be
deported for speaking.
American-Arab Anti-Discrimination Committee v. Reno (1999)
Facts. INS wants to remove 8—2 LPRs & 6 NIVs who are members of the
AADC/Popular Front for the Liberation of Palestine. Removal grounds
Earlier Decision. (C. Dist. CA) Removal grounds held unconstitutional.
o Harisiades used to apply 1st Amendment standard (citizens = noncitizens)
o Shows the proposition describing noncitizen rights is convoluted
―1st Amendment Covers All‖
Earlier AADC decision
―No 1st Amendment Rights‖
S. Ct. AADC decision
o Scalia. A foreign national does not have a right to argue the INS‘s
selective enforcement is triggered by the foreign national‘s exercise of the
1st Amendment Right to Free Speech. ―All visa overstayers violate
immigration law by their presence. We can only get at some of them. The
reason we select them for removal is irrelevant b/c they are in ongoing
violation of the law.‖
Counter-Arguments to Selective Enforcement.
o Didn‘t say aliens have NO constitutional rights. Just said it wasn‘t
unconstitutional to selectively enforce removal grounds.
o S. Ct. did NOT grant cert. on selective enforcement. Scalia and the
majority answered the ―selective enforcement‖ question even though the
question was not briefed and argued! (Ginsburg & Souter dissents)
VI. USA Patriot Act
Adds new grounds of inadmissibility for representatives of foreign terrorist
organizations or any group that publicly endorses acts of terrorist activity, and
spouses and children of aliens who are inadmissible on any of the terrorism-
New unreviewable authority of Sec. of State to designate any group, foreign or
domestic, as a terrorist organization
Fundraising, solicitation for membership, or material support of groups that are
designated terrorist organizations are removable offenses
o Without regard to whether such activities were in furtherance of actual
o Together with broad definition of ‘terrorism,’ non-citizens who provide
assistance (like paying membership dues) to groups like the WTO
protesters, the Vieques protesters, PETA, could run the risk of detention
AG can certify an alien as a terrorist if have reasonable grounds to believe and
requires mandatory detention of a certified alien
o Detention must be reviewed every 6 months and is allowed only upon a
showing that ―the release of the alien will endanger the national security of
the U.S. or the safety of the community or any person‖
INS can detain a suspected terrorist alien for 7 days before bringing immigration
or criminal charges.
o Charges need not have anything to do with terrorism
o Detention authority is based on vague and unspecified predictions of
threats to the national security
o Detention could be indefinite, if non-citizen is stateless, their country of
origin refuses to accept them, or they are granted relief from deportation
because they would be tortured if they were returned to their country of
Provides habeas review of detention
―Voluntary Questioning‖ ~ Racial Profiling
o If submit to the voluntary questioning, the discovery of an immigration
violation could lead to detention without bond.
o Perhaps ―no bond‖ proviso should be used only when the immigration
violation calls to question the intent of the individual and is something
other than a clear technical error, which could be either the fault of the
individual, his school, or his employer.
Expansive definition of terrorism:
o Covers virtually any violent activity
o Could ensnare many non-citizens who have done nothing wrong based on
the basis of their political beliefs and associations.
VII. Bush‘s ―Military Order‖
Provides for potentially indefinite detention of any non-citizen accused of
terrorism, and permits trial of such defendants in a military commission with a
provision purporting to preclude all judicial review.
Exceeds the President‘s constitutional authority:
o Issued without Congressional authorization and without a declaration of
war (Congress has power via the War Clause)
o The Military Order permits indefinite detention of non-citizens suspected
of terrorism with no provision for recourse to the courts, a power that the
Administration sought, but was denied, by Congress in the USA Patriot
Act. The act requires that non-citizens suspected of terrorism be charged
with a crime or grounds for removal form the country within 7 days of
being detained. It expressly permits judicial review of the detention by
habeas corpus. The President‘s action is directly contrary to Congress‘s
own considered view of the subject.
Overly broad scope
o Applies far beyond a narrow class of Al Qaeda.
o Applies retroactively
o No time limit
Regular courts have so far proven successful in prosecuting terrorism cases
o Special statutes and rules exist to protect national security and to address
other challenges of terrorism cases, like preserving the safety of jurors and
o Successful prosecution of terrorists in the past (original WTC bombing,
NYC tunnel plot, U.S. embassies bombing in Africa)
Military tribunals, if authorized by Congress, may only be used constitutionally
against clear identified ―unlawful enemy belligerents‖ (much narrower than ―all
persons accused of terrorism crimes‖)
Military tribunals, if authorized by Congress, must comply with basic
international and constitutional due process standards.
o Zadvydas – the Due Process Clause applies to all persons within the U.S.,
including aliens, whether their presence here is lawful, unlawful,
temporary, or permanent.
o This has complicated efforts to extradite suspected terrorists from Spain
and other European countries