Final Flashcards
A. Sources of Federal Immigration Power • Enumerated Powers o Oceanic Stream Nav. Co. v. Stranahan (1909) - o Commerce Clause - o Migration/Importation Clause
o Naturalization Clause along with the Necessary and Proper Clause
o War Powers Clause
- Power congress has is plenary and their power final!
- Regulation if “substantially affects” interstate commerce
• Implied Powers and the Anti Chinese Sentiment
o Chae Chan Ping (Chinese Exclusion Case) -
- Lawful worker left US and upon return was denied entry because the certificate program he was residing under had been revoked.
Court finds that that statue (Exclusion Law) and the treaty with China are on equal footing.
Court holds the Exclusion Law is constitutional because Congress validly passed it.
• Residual State Power
o Two reasons for federal government to control immigration, -
- foreign affairs relationships and uniformity.
B. Limits to the Federal Immigration Power
• Ekiu v. US -
o
- Non-citizen was excluded at the boarder because officer believed that she would become a public charge.
o Court held the administrative findings of fact are valid due process since they are acting within powers granted by Congress. Whatever Congress decides is due process is due process!
• Fong Yue Ting v. US -
o Matthews v. Ellridge 4 part Due Process Test
- Laborer in the deportation proceedings and challenged law under due process that would allow residency if white person vouched for residency.
o Court finds that Due Process applies but that Congress not the Courts decide what process is due
1- Private Interest
2- Risk of Erroneous Deprivation
3- Probative value of a substantial procedural safeguard
4- Government’s interest
• Knauff -
o
- Wife of citizen was excluded and brought due process claim
o Court finds Congress’s procedure is due process, whatever it may be.
o Admission is a privilege, not a right!
• Mezei -
- LPR was denied re-entry after 19 month visit to Romania. Was order excluded by AG based on national security and is essentially indefinitely detained on Ellis Island. Argued in habeas proceeding that he is entitled to process (some explanation)
o Court holds due process was not violated. Congress has largely immune power over immigration
o Holding has been limited to national security
• Plascencia -
- LPR left US for a few days to help illegal immigrants into the country and was then denied re-entry herself
o Court doesn’t look at if she should get due process instead how much is due
o Since she was only absent 2 days, she had procedural due process rights in exclusion
• Yamataya -
- Was in deportation proceedings and didn’t understand English, no translator given.
o Court finds that procedural due process applies, and she is entitled to process but the process she was given was sufficient
o Seems like the Court gives more review than in Fong Yue Ting
• Harisiades v. Shaughnessy -
- 3 LPR’s joined and resigned alliengence to communist party before Congress enacted a law that authorized deportation of people who wanted to overthrow the government.
o Three arguments:
5th Amendment DP- no fundamental rights are infringed because immigration is a privilege
1st Amendment- not violated because violent speech isn’t protected
Ex- post facto law- not retroactive because membership is a ground and technically ex-post facto only applies criminally!
o Court also found statute was legitimate and not arbitrary because of national security/safety.
• Fiallo v. Bell -
- Equal protection claim that father’s naturalization of children is discriminatory.
o Court finds equal protection applies (non-citizens) but not violated on rational basis
• Nguyen v. INS -
o Court upheld statute where only children of mother could establish citizenship
• Francis v. INS -
- Equal Protection claim that LPR’s cannot ask for relief but returning LPR’s can. Court applies min. scrutiny and strikes statute. “Failure to travel abroad” was not a rational factor.
o Court acknowledges that it can’t review decisions of standards between groups of people but can review decisions where individuals in a group are being disparately treated
• Keep in mind that it is easier to challenge the “process” not the actual decision who to admit or deport. EP claims are also not very successful
• INS v. Chada -
o Court finds that although Congress has plenary power, they must implement the power constitutionally
o Court strikes statute under separation of powers grounds
• Zacnydas v. Davis -
o Statute that allows for indefinite detention after removal order is challenged
o Court holds that there is a 6 month rule. The person can challenge that the removal won’t happen in the foreseeable future. If so, then he must be released.
o Difference from Mezei because this is deportation not exclusion
• Clark v. Martinez -
o When in exclusion proceedings, people can not be detained indefinitely. Not Mezei because not national security
• Demore v. Hyung Joon Kim -
o Court held pre-removal hearing t determine detention is not required. Congress can legislate in regards to aliens in ways that are unconstitutional to citizens.
A. Quotas and Preferences - • Exemptions from Quotas o 1- o 2- o 3- o 4- o 5- o 6- o 7- o 8-
1) Immediate relatives of US Citizens (children, spouses, and parents)
Child must be unmarried and under age 21
2) Returning LPR’s
3) Former US citizens
4) Children born abroad to LPR’s
5) Discretionary relief
6) Refugees
7) Parolees (not technically considered admitted)
8) Other congressional approved group exemptions
• General Quota Categories for Permanent Status (INA § 201)
o 1-
o 2-
o 3-
o 4-
o * See p. 255 and 258 for problem examples
1) Family Sponsored immigrants (480,000 minus INA § 201(c))
2) Employment
3) Diversity
4) Refugees
• Preference for Family Sponsored Categories (INA § 203(a)) o 1- o 2- o 3- o 4-
1) Unmarried children over age 21 of citizens
2) Spouses and unmarried children of LPR’s
3) Married children of citizens
4) siblings of citizens who are over age 21
• Employment based Categories (INA § 203(b)) o 1- o 2- o 3- o 4- o 5-
1) Priority (extraordinary ability)
2) Advanced degrees (exceptional ability)
3) Skilled workers
4) Special Immigrants (skilled workers)
5) Investors
B. Family Immigration
• Marriages
o Adams v. Howerton -
Two step process for immediate relative § 201(b) -
1 -
2 -
Keep in mind that after Windsor, -
- Court looks at dictionary meaning of spouse (opposite sex) and that INA explicitly excludes gay non-citizens (uses Chevron) and holds § 201(b) is constitutional under rational basis equal protection and due process.
Deals with plenary power because it’s a decision about who to exclude not who can marry!
1- is marriage valid under state law?
2- does the marriage qualify under § 201(b)?
- this case may come out different because benefits conferred on hetrosexual couples are also applied to gay couples.
o Fraudulent Marriages
§ 216 IMFA, Spousal Conditional LPR -
For marriages under 2 years old
See also § 204(a)(2)(a) for other conditions
• Other family members
o Matter of Mourillon -
- There must be a “common parent” under § 101(b)(1)(c)
Common mother was established as a step-parent relationship and the relationship was not terminated upon death or divorce because the children maintained the relationship
After case, “child” definition has changed and illegitimate children are included if there’s a bona fide relationship
C. Employment Based Immigration • 5 Preference Categories § 203(b) o o o o o
- Priority
- Advanced degrees
- Skilled workers
- Special immigrants
- Commercial Enterprise
• Business Necessity
o Marion Graham -
- Court found overnight and live-in requirement for a housekeeper/nanny was unduly restrictive and not a business necessity!
o Business necessity showing must be made for:
1) -
2) -
3) -
- Requirement not normally required
- Not listed on ONET
- Foreign language
o To establish business necessity employer must show:
1) -
2) -
1) Reasonable relation between duties and occupation
2) Duties are essential to perform the job in a reasonable manner
o Tel-Ko Electronics -
o If 1 qualified American worker applies -
- Court granted certification to worker who would be speaking to Korean speaking customers 95% of the time
- then he gets the job over a foreigner!
D. Diversity Immigrants -
• number available -
• Eligibility -
• Statute -
- 55,000 visas available
- Certain countries are ineligible
- INA § 203(c)(2)
A. Commercial Categories • Business Visitors (B-1) o Requirements 1) - 2) - 3) -
1) 6 months to 1 year
2) no intent to abandon homeland
3) no labor certifications
o Bricklayers v. Meese-
Post Bricklayers-
Under Hiro, -
Company was issued B-1 visas based on INS operational instruction for workers to assemble purchased machinery. American union argued that assembly was skilled work and H- visas should have been issued.
Court does not defer to agency’s interpretation because statute not ambiguous and holds that H-visas should have been issued
- Allows foreigners to “supervise” construction but not perform it
- labor incidental to commerce is ok!
