Immigration Law
I. Constitutional Foundations of Immigration and Citizenship Law
A. Foundations of Congress’s Plenary Immigration Power (Chapter 2)
1. The Chinese Exclusion Case and the Sources of Federal Immigration Power
a. Chinese Immigration
i. Burlingame Treaty 1868: treaty w/China wherein US accepted Chi immi and the Chi gov’t accepted emigration – was a crime to leave.
1. “inherent and inalienable right of man to change his home and allegiance and also the mutual advantage of fee migration and emigration of [Amer and Chi] citizens for the purposes of curiosity, of trade or PR”
2. US was interested in cheap labor
3. Suppl Treaty 1880: US can regulate, limit or suspend” immi of Chi laborers whenever entry affects or threatens to affect interests of country
ii. Chinese Exclusion Act 1882: enacted a 10yr moratorium on immi of Chi laborers
1. Hard to enforce b/c hard to determine who was here before effective date (Nov 17, 1880)
2. Req’d showing certificate if returning to US that said were here before date
3. Chi merchants, teachers, students, or travelers exempt from exclusion
4. Scott Act 1888: congress responded to federal judges making entry req’ts more laxed by barring Chi immi’s even if have certificate.
iii. Chinese Exclusion Case: chi laborer who cam in 1875, went to visit fam, but denied entry when returned. Court held: the federal power to exclude non-citizens is an incident of nat’l sovereignty. Inherent sovereign power to regulate immi clearly resides w/fed gov’t.
1. Every nat’l gov’t has inherent authority to protect nat’l public interest
2. Immi matter of vital nat’l concern
3. Role of fed gov’t to oversee matters of nat’l concern while province of states to govern local matter
b. Constitutional Framework:
i. Enumerated Powers: areas where fed gov’t may const. draw authority
1. Commerce Power: Const Art.1, § 8, cl.3
a. Provides congress power to “regulate commerce w/foreign nations”
b. USSC in Passenger Cases invoked Commerce Clause to ban the levy of fees upon foreigners wishing to disembark at state ports.
i. Court invalidated state immi fees even though congress had yet to implement any relevant fed reg
ii. Court reasoned Congress exclusively controlled foreign affairs and foreign commerce even when not exercised
2. Naturalization Power: Const Art.1, § 8, cl.4
a. Specifically grants Congress power to establish “uniform Rule of naturalization”
i. By expressly granting prevents confusion as to whether States can bestow citizenship
b. Does not explicitedly provide power to deny admission or remove non-citizens
c. Nishimura Ekiu v. US: cites power to establish uniform rule of naturalization; the power to declare war, and to provide and maintain armies and navies; and power to make all laws necessary and proper
3. War Power: Const. Art.I, § 8, cl.11
a. Gives Congress authority to “declare war”
b. Authorizes exclusion or expulsion of enemy aliens
4. Migration and Importation Clause: Const. Art.I, § 9, cl.1
a. “Migration or Importation of such person as any of the States now existing shall think proper to admit, shall not be prohibited by Congress prior to 1808.”
b. Could be construed to imply that after 1808 congress would have power to migration and importation
c. Prevailing interpretation was to prevent congress from stopping slave trade
5. Foreign Affairs Power:
a. No explicit mention in the const.
b. Congress is given power to regulate commerce w/foreign nations, define offenses against nations, declare war, Pres has power to make treaties – but not to deal w/foreign affairs
c. Courts have struck down state statutes regarding immi b/c say that power is for congress b/c states could embroil US in disastrous quarrels w/other nations.
ii. Inherent Power
1. US v. Curtiss-Wright: court clearly distinguished b/t powers delegated to fed gov’t in Const. and inherent sovereign powers.
a. Delegated powers over internal affairs were carved from general mass of legislative powers prev. governed by States
b. States never possessed int’l powers – these were transferred to ‘”union of states” – thus vested in nat’l gov’t before Const.
iii. Constructional and Structural Arguments
1. Rule of Necessity: suggest that b/c fed power over immi is necessary to the successful operation of const., this power may be interpolated into the const.
2. Structural Justification: draw inference of power from structure of const. as a whole rather than from individual clauses.
a. 2 major structural arguments:
i. Power to regulate immi is essential to nation’s “self-preservation” b/c w/o control over territory gov’t would be unable to govern itself and its borders effectively and make subj to other nations.
ii. Power to regulate immi is essntial to process of nat’l “self-definition” b/c by determining who will comprise nation and participate in creating nation’s identity, immi laws constitute a process of self-def itself.
2. The Chinese Exclusion Laws and Equal Protection
a. Yick Wo v. Hopkins: SF ordinance regulating laundries – effectively closes all of chi laundries. Court held: that EP clauses protected chin nat’ls against discriminatory enforcement of SF ordinance.
i. Rights of P are not less b/c they are aliens and subj to Emperor of China
ii. 14th amend says “any person” – these provisions are universal in their application to all person w/in territorial jurisdiction w/o regard to race, color, or nat’lity
b. Yick Wo suggests that noncitizens and citizens receive similar const. treatment in non-immigration matters.
c. 14th amend only applies to state action not fed action – may be reason why not invoked in Chinese Exclusion Case
3. From Exclusion to Deportation
a. Exclusion: process of preventing non-citizens form gaining entry into country
b. Deportation: (1) removal of non-citizens already w/in the US (expulsion); (2) physical removal to another country of any non-citizen inside US (excluded)
i. 1892 Act – authorized deportation of any chi alien unlawfully in the US
1. alien who failed to obtain cert. could be “arrested and taken before judge who duty it shall be to order that he be deported from US”
2. could escape deportation only by demo that “by reason of accident, sickness or other unavoidable cause, he has been unable to procure his cert.” – also needed 1 credible whi witness
c. Fong Yue Ting v. US: P was arrested and could not get req’d whi witness. Court held: that the power to expel or deport non-citizens rests upon the same ground as the exclusion power and is =ly “absolute and unqualified”
i. Congress has right to send non-citizens elsewhere if have just cause to fear that they will corrupt the manner of the citizens
ii. Immi and naturalization, like foreign policy, encompass an area where congress maintains almost plenary power and judiciary has very ltd responsibility.
1. Congress has the power prescribe the evidence that shall be rec’d and effect of that evidence in the courts of its own gov’t
4. Deportation & Punishment
a. Fong Yue Ting: Order of deportation is not a punishment for crime therefore the provisions of the const., securing right of trial by jury, prohibiting unreasonable search and seizures, and cruel and unusual punishment; have no application.”
i. BUT doesn’t mean can imprison non-citizens w/o DP
b. Wong Wing v. US: 1892 Act says any chi any US illegal can be imprisoned for hard labor. Court held: provision was invalid b/c can’t imprison alien w/o judicial trial.
i. Detention or temp confinement as part of the means necessary to give effect to provisions for exclusion or expulsion of aliens is valid
1. Not imprisonment in the legal sense
2. Gives time to figure out true character of alien and make arrangements for deportation
ii. Congress can declare act of alien in remaining unlawfully w/US an offense, punishable by fine or imprisonment if such offence were established by judicial trial
c. Federal Power to exclude/deport is:
i. Absolute
1. No torture of the excluded
2. DP applies at certain stages of limits
3. Some form of DP limits deportation
ii. Exclusive
1. States/localities providing benefits/burdens to non-citizen
2. Sanctuary law – won’t ask about immi status w/in SF, CA
3. 287(g) agreements – agreements w/fed gov’t wherein they agree to use local law enforcements to enforce immi law
4. it is clear that States do act on immi issues even when not supposed to
iii. Not subj to judicial review
1. Court willing to consider some questions of fund fairness/DP concerns
2. Court will interpret INA
iv. Greater political constraints
1. Repeal racial classifications
2. Const. norms developed in other areas may permeate into immi
5. Moral Constraints on the Exercise of Immigration Power
a. Is exclusion/deportation justifiable?
i. King: No. Should be helping aliens who want to immi.
ii. Walzer: Yes. 1000 petty fortresses, value membership, necessary for int’l order
iii. Carens: No. liberalism is part of the culture. Citiizens/Aliens are of = moral wroth. Global utilitarianism. Free trade/movement.
B. Alienage Law (Chapter 9)
1. State v. Federal Restrictions on Public Benefits
a. Generally
i. Under Us federal system a state could const. treat citizens and non-citizens differently in order to protect a “spec. public interest” in its common prop resources.
ii. Although special public interest is applied broadly some cases where court refused
1. Takahashi v. Fish & Game: CA barred issuance of commercial fishing license to any person ineligible for citizenship. Court held: court rejected the argument that CA was owner-trustee of all fish in its coastal waters.
a. Nondiscrimination principle applies to residence in any state by “all persons lawfully in this country.”
b. “any person ineligible for citizenship” made the statute a race-based law rather than a law that discriminated against non-citizens generally
b. State laws
i. States may not usurp fed power over immi – courts will invalidate state statutes that conflict w/fed policy
ii. Graham v. Richardson: non-citizen denied welfare benefits. Court held: non-citizens as a group constitute a discrete and insular minority deserving of heightened judicial protection and that alienage is subj to SS under EP.
1. To permit state legislatures to adopt divergent laws on the subj of citizenship req’ts would appear to contravene this explicit const. req’t of uniformity.
2. Conflict b/t the burdensome state regulation and decision by fed authorities to grant residency privileges to affected non-citizens.
3. Court laid to rest “spec. public interest” doctrine and right-privilege distinction
c. Federal laws
i. Graham says not addressing citizenship req’t for fed benefits.
ii. Resident aliens posses recognized const. rights but when pitted against fed power to regulate immi – these right provide little protection.
1. Mathews v. Diaz: statute that discriminates against 2-classes of non-citizens where alien denied fed med insurance. Court held: statute valid b/c it was not wholly irrational – court invokes power of congress over immi/naturalization as well as pol Q doctrine
a. Any rule of const law that would inhibit flexibility of pol branches of gov’t to respond to pol branches of gov’t to respond to changing world conditions should be adopted only w/greatest caution.
i. Pol Q doctrine dictate narrow std of review for decision by Congress and Pres in area of immi/naturalization.
b. The exercise of its broad power over naturalization and immi, congress regularly makes rules that would be unacceptable if applied to citizens.
iii. Guarantee of of EP inferred under 5th amend has little meaning for LPR’s
1. Court refuses to restrain fed gov’t in any area relating to non-citizens
iv. B/c congressional power is viewed as encompassing “regulation of the relation of the relationship b/t the US and alien visitors,” those justifications for deferring to Congress and Exec on matters of immi have apparently been extended to any fed actions that affect non-citizens.
d. Limits on Fed Alienage laws
i. Where classification is on basis of alienage court has declared that EP component of 5th is not co-extensive w/that of 14th
ii. Hampton v. Mow Sun Wong: regulation that excludes non-citizens from civil service commissions. Court held: when fed gov’t asserts overriding nat’l interest justification for discriminatory rule which would violate EP if adopted by a state, DP req’s that ther be a legitimate basis for presuming that the rule was actually intended to serve that interest.
1. If agency which promulgated rule has direct responsibility for fostering/protecting interest – reasonable to presume asserted interest was reason for rule.
2. If rule expressly mandated by congress or pres. – can be presumed that any interest might rationally be served by rule
3. 5th amend and 14th differ b/c there may be overriding nat’l interests which justify selective fed legislation that would be unacceptable for an individual state.
a. Only where fed gov’t acts very much like a state, must it adhere to stds applicable to the states
b. Plenary fed power does not allow any agent of fed gov’t to discriminate b/t non-citizens and citizens
4. Nat’l interest creating an incentive for non-citizens to be naturalized was sufficient to justify the rule
2. Equal Protection or Preemption?
a. States tht have attemptd to regulate concurrently in a field already occupied by fed statute will be struck down under doctrine of preemption.
i. Hines v. Davidowitz: PA registration provisions. Court held: fed law in a specific area may even preclude consistent state regulations – Federal Alien Registration Act preempted PA statute.
b. Mere existence of fed immigration power doesn’t automatically preclude state regulation affecting non-citizens
i. DeCanas v. Bica: CA statute prohibiting employer from knowingly employing undoc worker. Court held: not every state enactment which in any way deals w/aliens is a regulation of immi and thus per se preempted by this const. immi power, whether latent or exercised.
1. Nature of subj matter doesn’t compel a conclusion of exclusive fed control
a. CA statute didn’t cover ground specifically addressed by INA
b. Congress seemed to authorize concurrent state legislation in the area regulated by state law
c. Fed interest not predominant in a situation in which state law is fashioned to remedy local problems