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  1. Sources of federal immigration power.
  2. Sources of the power: it’s not enumerated so where does it come from?
  3. Inherent power? independence, incident of sovereignty (maybe about self-if), security (protect from influx and spies), int’l law (either confers authority or provides maxims to interpret const)
  4. Delegated power? commerce, treaty power (this isn’t a treaty), war power, naturalization (but doesn’t explain why can’t regulate people who won’t become citizens), migration & importation clause, republican guarantee clause, foreign affairs power
  5. if power turns on one of these, could be limited. E.g. naturalization power.
  6. Limitations
  7. Depends on where power comes from
  8. Exclusive to the fed gov, not states.
  9. Strength of power
  10. Ct doesn’t seem to look behind substantive exclusion policy.
  11. Not clear if b/c Congress has no restraints or b/c ct won’t enforce them b/c political question.
  12. Chinese excl case precursor of political Q doctrine, under which ct won’t step in if const clearly delegates to other branch or no judicially manageable standards to adjudicate
  13. Domain of the power
  14. Depends on territory: power at its strongest in early cases when person outside territory.
  15. Chinese Exclusion Case; he’s at the border but entry fiction says not really here.
  16. Yick Wo (statute requires stone houses for laundries, applies only to Chinese, ct strikes down on EP grounds)
  17. rights here b/c w/in the territory and not an immigration matter.
  18. Substantive power to exclude: Chinese Exclusion Case: Ping had certificate of reentry pursuant to treaty but statute makes it no good. Barred at reentry. Ct holds gov has plenary power over immigration and ct won’t second guess.
  19. Cases treat this case as about initial grant of authority and also restrictions on it. Not clear.
  20. Substantive power to deport:
  21. Fong Yue Ting (couldn’t find white witness so deported): power to deport is also plenary to the same extent power to exclude is. It’s a decision about immigration policy. Greater includes lesser idea in the majority.
  22. case does seem to say need some proc safeguards, but have subst latitude.
  23. still unclear which view of plenary power prevails. Brings up political Q: ct won’t intervene to second-guess Congress’s decision in the area.
  24. But obj: maybe ct not qualified to evaluate nat sec reason, but yes for something like race.
  25.  No DP or other const protections b/c deportation isn’t punishment.
  26. Dissents

Subst power / Why limits / Why unconst?
Field / Ambiguous (strange b/c he authored Chinese Exclusion Case) / Territory (lawful; with consent) / Lists amendments, due process. Parade of process horribles.
All think deportation is punishment (Sup Ct has since roundly rejected that idea; said deportation is not crim pun).
Therefore, since punishment, process required.
Could have used different idea: deprivation of interest, th4 require process.
Brewer / Ambiguous / Territory; lawful presence. But visitors/residents distinction; if have a family and participate in community, then limits (Stake) / Same
Fuller / Yes / Vested rights. / Same
Excludables / EWIs (Entrant w/out inspection; illegal undoc)
 deportation. / Deportables (Lawful Permanent Residents) who committed deportable act.
New name / Inadmissible / Inadmissible / deportable
Not entered, not admitted / Entered, not admitted / Entered.
(Qs about) Substantive (constraints) / No / ? (prob no rights) / No (Fong Yue Ting maj)
(Qs about) Procedural (constraints) / No / ? (prob no rights / No (Fong Yue Ting maj)
  1. Categories of aliens
  2. Congress changed law in 1996 (IIRIRA): one proceeding (removal) for everyone (Excl, dep, EWI).
  3. Also gets rid of excl/EWI categories.
  4. Excludables and EWIS  inadmissibles.
  5. Categories are inadmissibles and deportables.
  6. Q is whether you’ve been admitted. If no, inadmissibles, if yes deportables.
  7. Q whether statutory redefinition can alter the underlying Constitutional scheme.
  8. Treatment
  9. Possibilities are treat all the same, or give more or less protection to EWIs than to excludable aliens.
  10. Why give greater protection to undocumented immigrants than excludables?
  11. Maybe it’s about entrance. Once you’re in, have rights. Could have local families, lies, etc. Biz interest (bizs can rely on it)
  12. might want to protect them for themselves; moral obligation. The stake they have developed deserves protection
  13. need to protect those around her; family, etc.
  14. something more generally; protecting the community or the economy. Many EWIs have lived in US for decades and still subj to removal.
  15. Why treat them the same as excludables?
  16. Don’t incentivize people to avoid the inspection and sneak over the border.
  17. Territoriality: maybe depends on lawfulness.
  18. Stake: what if leave country and then return; are they excludables seeking admission, or deportable who just left. If person seeking admission, they have stake too.
  19. Why treat them worse?
  20. Integrity of judicial system, fairness, incentives. Not reward breaking the law.
  21. Familial connections of someone here leads to more unlawful immigration.
  22. other example: war brides from WWII.
  23. Q what criteria (fairness, stake/connection, territory) should we use to classify people.
  24. Other categories
  25. Parolees: get allowed to enter while admission pending. E.g. Cubans released to sponsors in US while application processed.
  26. Visa overstays
  27. People who have been ordered removed, but haven’t yet been removed.
  28. Could have other models of plenary power
  29. E.g. due process model: const always operates; procedural protection for all of these.
  30. Maybe stake model: look at political community
  1. Ethical/moral questions
  2. Carens and Walzer agree that meaning and value come from community.
  3. Walzer thinks distinctiveness good (clubs) and need formal closure and controlled immigration for it to happen.
  4. Carens thinks can keep distinctiveness with open borders (e.g. cities). Fundamental tradition of liberlism.
  5. Neither of these squares w/ the power in early cases: their analysis consistent w/ some limits on the power.
  6. Admissions and Admissibility
  7. Admin structure
  8. DHS has most of enforcement now.
  9. DOJ retains IJs and BIA. AG has final word.
  10. Courts also involved through habeas and admin review
  11. Admissibility
  12. Immigrants and non-immigrants distinction
  13. Immigrants become LawfulPermanentResidents (LPRs)
  14. Non-immigrants are persons permitted to enter country temporarily.
  15. 1924 first numerical restrictions codified in National Quota system. Big Europe quota, based on number of people from that country already in US. Attempts to preserve ethnic composition of the US. And didn’t allow immigration from countries like Japan; laws said can’t come if not eligible to become citizens. Law only allowed “free white persons”
  16. 1965: Congress begins to unwind the distinctions, abolish distinctions btw hemisphere.
  17. Preferences:
  18. Family
  19. immediate relatives always exempt from the preferences
  20. Employment
  21. Diversity
  22. Refugee
  23. limits set annually
  24. preference categories are backlogged. Family category: have to have filed 23 years ago to bring sister into country from Philippines.
  25. Modern power to exclude: Fiallo v. Bell
  26. Facts
  27. INA grants special immigration preference to children and parents of citizens and LPR.
  28. “children” defined: if you’re illegit child seeking preference based on relationship w/ father, not eligible; but w/ mother yes. Also fathers of illegitimate children can’t seek the preference while mothers can.
  29. Appellants are 3 pairs of fathers and sons.
  30. Standard of review
  31. although ct says won’t second-guess decisions of Congress in immigration area, it does engage in some review.
  32. New tier below rational basis. Seems to require facially legitimate and bona fide reason (supplied by ct here—paternity pf issues, less close ties). No fit testing.
  33. Overtly racist or arbitrary reason wouldn’t work.
  34. Marshall dissent wants more review b/c rights of citizens involved. Under this reading, old cases about standing (aliens can’t challenge gov’s exercise of plenary power on const grounds) but different when citizens involved.
  35. we said: “distinction related to immigration” can’t be the standard b/c could build wall on Mex border and take land w/out compensation from US citizens then.
  36. Application of Fiallo in lower cts: Jean v. Nelson (11th Cir)
  37. Haitian detainees challenge decision not to parole on EP grounds.
  38. Ct seems to say no proc or substantive rights, using entry fiction to say they aren’t really here.
  39. remands on admin law Q of how the executive applied the power that was delegated.
  40. SCt affirms on nonconstitutional grounds.
  41. Marshall dissents, doesn’t question plenary power but says procedural constraints operate. Challenge here is to selective detention  procedural.
  42. Cites Wong Wing, Russian Fleet, Yick Wo line.
  43. power is plenary on immigration law: Q remains what is immigration law. Is the process by which it is carried out included?
  44. This is an open Q about scope of plenary power.
  45. Family reunification: marriage
  46. Principal way of becoming admissible is family connection. INA § 201(b) makes spouses of LPRs admissible and exempts them from numerical limitations
  47. Q who counts as spouse.
  48. Definition of marriage
  49. Adams v. Howerton (9th Cir): homosexuals marry in Colorado to get immigration status.
  50. Ct uses 2-part test:
  51. Whether marriage valid under state law
  52. Whether spouse w/in meaning of immigration statute.
  53. Here answer to 1st Q not clear.
  54. Using state law in the immigration context is strange.
  55. But fed gov can’t develop own substantive family law.
  56. Can lead to immigration benefits varying depending on state where application filed.
  57. 2nd part: ct looks at Websters. Q whether Lawrence changes things.
  58. Ct grants Chevron deference to INS’s construction of the statute.
  59. Maybe b/c delegated to them or institutional competency issue. Agencies have refined process, notice-and-comment rulemaking.
  60. 2nd part might fall under plenary power, get very deferential Fiallo review.
  61. Sham marriages
  62. Bark (Korean marries sweetheart but separated later; Q is intent at the time not whether separated later); Dabaghian (applies for adjustment based on marriage which was “dead in fact” when adjustment granted)
  63. Ct says what counts is validity of the marriage at the time of the marriage
  64. Factors include intending to live together, etc, all at the time
  65. Ct bases this on Roe privacy cases line.
  66. Q why Const rights suddenly important here when exclusion involve. Why not just invoke PP?
  67. maybe cases about procedure, just how to prove the marriage, not substance.
  68. Inadmissibility
  69. IIRIRA redrew the line (see chart).
  70. Inadmissibility grounds generally broader than deportability grounds (health related).
  71. 212a grounds: crimes, health related.
  72. but interplay b/c 1 deportability ground is inadmissible at time of entry (237a1a)
  73. not clear why need this? What if was for being Communist and that’s no longer ground and wasn’t told at the time? Seems like the provision is anti-fraud, but there are other provisions that are anti-fraud so why need this one?
  74. if admissible, often barred from entry for 10 ys.
  75. Some things alien can do. Get the vaccine, wait 10 ys.
  76. Waiver
  77. if inadmissible, can still get a waiver
  78. 212h and i: all discretionary
  79. 212i waives 212a6C fraudulent misrepresentation finding. Requires extreme hardship to citizen or LPR/citizen spouse or parent.
  80. 212h: can waive drug grounds for single marijuana possession w/ no other serious crime.
  81. includes extreme hardship, usually to others.
  82. Cervantes-Gonzales: ct weighs factors to determine hardship
  83. Family separation, financial hardship (maybe), language barriers and contacts w/ country spouse is going to.
  84. For majority, timing of marriage (during procedings) matters. Q if parties’ expectations should control.
  85. Today only marriages b4 proceedings initiated count.
  86. Deportation (and relief)
  87. Constraints on power to deport
  88. Bottom line: doesn’t seem like there are any more than on power to exclude.
  89. Bugajewitz (deported for prostitution):
  90. case says deportation not punishment so normal crim law things don’t apply.
  91. Also says ex post facto clause won’t apply in immigration context. Retroactive application not voided by ex post facto clause in immigration context.
  92. Retroactivity in general: presumption against retroactivity in statutes. That applies to immigration context as well; when doesn’t say anything, presume not retroactive.
  93. But holdings limited.
  94. Don’t say no proc protection in immigration context; just that not normal ones. We know no jury trial right, confrontation rights.
  95. Doesn’t mean retroactivity not an issue. There are nonconstitutional presumptions in many domestic law contexts: presume statute not retroactive.
  96. Q does this presumption apply in immigration, or because of plenary power n/a?
  97. Harisiades: rejects 1st Am claim but doesn’t say 1st Am doesn’t apply; ambiguous.
  98. Reno v. AADC (LA8): originally try to deport 8 for membership in gp advocating communism (PFLP). Eventually only 2 non-LPRs. They file selective prosecution claim.
  99. Dist Ct and 9th Cir hold 1st Am rights apply since civil proceeding. Seems like territorial conception, also community based.
  100. Punishment issue not relevant to 1st Am Qs. Would be to other rights. Like Marshall standing argument.
  101. Sup Ct reverses.
  102. Rejects appeal on jurisd grounds. Says no 1st Am issue.
  103. Rationales
  104. Unlawful presence b/c visa violation
  105. Concern w/ disclosing nat sec reasons. Maybe fear of surreptitious foreign policy making or institutional competence issue.
  106. Deportation not punishment
  107. In the end looks like Fiallo review but no clear answer on whether law based on impermissible motive would be ok.
  108. 237: deportability grounds
  109. categories
  110. immigration control
  111. criminal offense
  112. documentation violation
  113. public charge, vote unlawfully
  114. national security grounds
  115. most prominent: immigration enforcement and crime-related.
  116. Apply to whom? Only people who have already been admitted. Not for someone arriving at border or in the country unlawfully.
  117. Q: some deportation grounds broader than inadmissibility (e.g. aggravated felony not bar to admission but it is grounds for deportation).
  118. Does this lead to illegals treated more favorably? Escape the deportation ground b/c not admitted.
  119. BUT automatically deportable b/c inadmissible at time of entry.
  120. Waiver 237a1H: some people inadmissible when entered don’t become deportable. Easier to prove than waiver of inadmissibility for person arriving at the border.
  121. Doesn’t this encourage people to enter unlawfully to get better treatment? Idea they have ties to community now.
  122. Crime-related grounds
  123. Moral turpitude statute 237(2)(A)(i)
  124. 1st Q what is moral turpitude in general?
  125. Common understandings and pratices; social mores define it.
  126. This was enough to survive vagueness challenge.
  127. 2nd: how decide if particular crime qualifies? Ct makes categorical determination.
  128. Why categorical approach? Would need mini-trial o/w. But problems w/ disparities in state statutes. Rape is crime of moral turpitude but statutes define in different ways.
  129. Maybe instead, could create huge list of crimes that qualify or defer to agency determination?
  130. Statute requires max possible sentence for the crime > 1yr.
  131. But lesser offenses in same statute that get much smaller sentence get covered, whereas other state might have 2 statutes.
  132. Goldeshtein: convicted of structuring domestic financial transactions to avoid currency reports.
  133. Ct says not crime of moral turpitude, in part b/c no fraud or scienter required.
  134. drug-related convictions
  135. Flores-Arrellano: held deportable for single conviction of being under the influence of methamphetamine. Argues use shouldn’t be covered; doesn’t work
  136. deportable under 237(a)(2)(B)(1): any alien convicted of violation (consp, attempt) any law… relating to a controlled substance. Exception for mj possession.
  137. Here there is small evidentiary hearing in front of IJ.
  138. Clear in this case Congress didn’t think covering use when modified statute. Not clear which way to draw the inference.
  139. More deference to Congress here.
  140. Aggravated felony
  141. probably the most important one today.
  142. Guerrero-Perez convicted of sexual abuse of a minor misdemeanor. Q if it qualifies as aggravated felony.
  143. Aggravated felony 237(a)(2)(3). Def’n of agg felony p 237. 101a43a: murder, rape or sexual abuse of a minor.
  144. Q how how define felony. It’s crime carrying max prison term (even if not actually imposed) > 1 yr. Q if that includes misdemeanors
  145. Ejusdem generis arg (murder rape and sexual assault)? But that can go other way since murder, rape are never misdemeanors.
  146. Arg for excluding misd: uniformity (shouldn’t depend on where you live), rule of lenity, language (term of art), etc
  147. ban on reentry
  148. if deported for crime, ban on reentry, for life for aggravated felony.
  149. If you return, prison sentence. Often 2ys, but up to 20 if had committed aggravated felony.
  150. This is true after served your full sentence and after were deported.
  151. Waivers for inadmissibility: 212(h), 208:
  152. (for deportability (240A))
  153. if committed aggravated felony, ineligible for waiver or for asylum.
  154. also deprived of judicial review.
  155. Relief from removal: cancellation
  156. INA 240A governs waiver.
  157. (a): permanent residents: admitted for > 5 ys, resided > 7, no aggravated felony (no requirement of hardship)
  158. (b): nonpermanent residents: require 10 ys of physical presence, good moral character, not big conviction, extreme unusual hardship to US citizen or LPR.
  159. Gonzalez-Recinas: mother fell under (b). Deemed eligible b/c had extreme and unusual hardship. 6 children, some of whom didn’t speak Spanish, no support network in Mexico.
  160. Hernandez hypo p 599 (see notes)
  161. Admissions procedures, removal procedures, immigration enforcement (procedural aspect of PP)
  162. Constitutional foundations: entry
  163. Knauff: war bride detained at Ellis Island, excluded by AG on grounds of national security (235A today)
  164. She claims PDP applies, entitles her to hearing and notice of charges. Choice says no. 3 rationales:
  165. Plenary power (conception Const doesn’t apply)
  166. Maybe doesn’t apply b/c not member of the Constitutional community?
  167. maybe territory is the issue. Entry fiction: she’s not in US
  168. then ct says PDP applies; it’s just whatever Congress says it is.
  169. ct doesn’t find constitutionally protected liberty or property interest interest.
  170. claim might have been property interest based on marriage.
  171. Not clear holding. Says admission privileged, relies on PP, hints deportation might be different.
  172. Kwong Hai Chew
  173. LPR w/ pending citizenship app travels on ship then excluded.
  174. Cts assimilates his status to LPRs and holds he gets PDP hearing and notice
  175. Constitutional avoidance involved; reads statute not to include him.
  176. Time on ship counts towards naturalization. Also reliance on gov factor.
  177. Mezei
  178. US LPR for 25 ys; tries to go to Roumania but stranded in Hungary 19 months; can’t get back in for nat sec reasons.
  179. What’s the difference w/ Chew? Maybe time, legal fiction (he actually departed), territory/community (but he had big ties)
  180. He is indefinitely detained at Ellis Isl b/c no country will take him. Doesn’t seem to make difference.
  181. Jackson dissent: liberty interest at stake. PDP applies like on/off switch (all protections or none)