Immigration 101

For now, a work in progress…

A HISTORY

From the beginning of the human race, people have moved.  When resources are scarce or the population becomes overcrowded in one area, there is always a group of people ready and willing to give it a go somewhere else.  Here’s a look at how that has affected our little corner of the world.

Pre-1790: Until 1790, there were no Federal laws addressing immigration.

Naturalization Act of 1790: The first law to establish requirements for citizenship.  The law limited citizenship to “white persons” and established a two year waiting period for naturalization, although this was changed to five years in 1795.

Nativism of the 1830s & 1840s: Highlighted by the Know Nothing Party, a nativist movement began as a reaction to large waves of Catholic immigrants during this time period.  The movement advocated limiting the number of Catholic, and later Chinese, immigrants.  While no immigration legislation was passed during this this period, it arguably set the stage for the U.S. immigration debate for decades to come and many of the arguments used then can still be seen today.

The Passenger Cases: In 1949, the Supreme Court held that it was the power of the federal government, not the states, to regulate immigration.

The 14th Amendment: Established for the first time that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof” are citizens and are to be accorded equal protection of the law.

Act of March 3, 1875: Excluded convicts and prostitutes.

Act of August 3, 1882: Imposed a head tax on “aliens” and excluded idiots, lunatics, convicts and those likely to become a public charge.

The Chinese Exclusion Act of 1882: Provided for the excluded of individuals from China.  The legislation was upheld as constitutional in 1889 and was enforced for more than 60 years.  More restrictions followed, including laws mandating the exclusion of immigrants based on health, crime, poverty and polygamy.

Immigration Act of March 3, 1903: Included the exclusion of epileptics, professional beggars and anarchists.

Immigration Act of February 20, 1907: Excluded “feeble minded children,” those with tuberculosis and others.

Immigration Act of 1917: Barred from admission those from the “Asiatic Barred Zone,” or those from the regions stretching from Afghanistan to the Pacific Ocean, with the exception of those from Japan and the Philippines.

National Origins Quota Act of 1924: The Act made permanent quotas that had been in place since 1921 and lowered the annual quota of immigrants allowed into the country to 150,000.

Tydings-McDuffie Act of 1934: Restricted Filipino migration to the United States to 50 persons per year.

Repatriation Campaign of the 1930s: One of the first major attempts to remove Mexican citizens and Mexican-Americans from the United States.  Nearly a half-million Mexican-Americans, including U.S. citizens, were deported under the program.

Alien Registration Act of 1940 (Smith Act): Increased government powers to exclude subversives and criminals. 

SOURCES OF CURRENT IMMIGRATION LAW

The McCarran-Walter Act of 1952: Officially known as the Immigration and Nationality Act (INA), this Act established the modern legal framework with regards to immigration.  Although amended on several occasions, the INA is still the controlling immigration law of the United States today.

Amendments to the INA:

• 1950s: After the passage of the INA, the rest of the 1950s saw piecemeal legislation addressing refugees, registry, judicial review grounds of inadmissibility and deportation and relief from deportation.
• Immigration Act of 1965: Broad reform, including (1) the elimination of the national-origin quota system; (2) the creation of a separate category for immediate relatives of U.S. citizens and lawful permanent residents; (3) the removal of restrictions relating to persons from Asia; (4) the prohibition of discrimination based on race, sex, nationality, place of birth, or residence; (5) establishment of an annual quota system outside of the Western Hemisphere of 170,000 and the prohibition of more than 20,000 persons from any single state; (6) restriction of immigration from the Western Hemisphere to 120,000; (7) the reformulation of the preference system based on family relationships and skills in allocating immigrant visas; (8) the establishment of a Select Commission on Western Hemisphere Immigration
• 1970s & 1980s: Separate quotas for the Eastern & Western Hemispheres were abandoned and replaced with a world-wide quota of 290,000.  Legislation allowing for the adjustment of status of refugees who had been paroled into the United States prior to September 30, 1980 was also passed.  The Simpson-Mazzoli bills provided for the blanket amnesty of agricultural workers who had been present in the country since 1982.
• Early 1990s: IMMACT90 set world-wide immigration quotas at 700,000 and the diversity visa lottery was established.  The period was also marked by a flurry of specialized legislation for those having served honorably in the United States military as well as for scientists and engineers
• Antiterrorism and Effective Death Penalty Act of 1996: Established a special deportation procedure for persons considered to be terrorists, created an expedited exclusion process to remove certain persons arriving in the United States without a hearing and limited judicial review and habeas corpus relief.
• Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA): Broadened the definitions of “conviction” and “aggravated felony.”  IIRAIRA also eliminated numerous forms of relief that had been previously available for aliens convicted of aggravated felonies, created mandatory detention provisions and further limited judicial review.  Most importantly, IIRAIRA reorganized the framework for the removal of aliens.  For example, the procedures of excludability and deportability were combined into “removal” proceedings.
• Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA): Allows for the special adjustment of status for Nicaraguans and Cubans  who have been in the United States since 1995.  Also allows certain Salvadorans and Guatemalans who had been members of a class action challenging immigration laws as violating their due process, as well as certain Eastern Europeans, to take advantage of pre-IIRAIRA lower burdens of deportation relief.
• 2000: Saw the creation of the “U” and “T” visas for victims of human trafficking and substantial mental and physical abuse as a result of criminal activity.  Also saw the extension of the expanded adjustment of status provisions enacted in 1997 and the creation of a nonimmigrant “V” visa for spouses and children of permanent residents who, because of backlogs, had been forced to wait more than four years to receive their status.
• Post-9/11: Saw the termination of the INS and the consolidation of immigration agencies under the Department of Homeland Security under the Homeland Security Act of 2002, as well as an increase in immigration agents and the development of a system for verifying the identity of persons applying for a visa or entering the country through the Patriot Act.
• REAL ID Act of 2005: Made broad judicial review and jurisdictional changes, moving the review of removal orders based on constitutional or question of law claims to the federal appellate courts.  Judicial review had previously been performed by the U.S. district courts.  Also included numerous amendments to the judicial review of asylum law

Other Sources of Immigration Law

• The INA broadly defines immigration laws to include both the INA and “all laws, conventions, and treaties of the United States relating to the immigration, exclusion, deportation, expulsion, or removal of aliens.  INA 101(a)(17).
• Title 8 of the Federal Code of Regulations: The meat of immigration law.  Provides supportive and interpretative information with regards to INA provisions.
• Federal Register Publications
• Federal Court Decisions: It is not very often that a federal court of appeals or the Supreme Court hear immigration issues, immigration law severely limits judicial review, but when they do, their decisions are binding in their respective circuits if the court of appeals, and nation-wide if the Supreme Court.
• Administrative Decisions: Decisions of federal agencies charged with administering immigration, such as the Executive Office for Immigration Review (EOIR) through administrative courts like the immigration courts and the Board of Immigration Appeals or memorandums issued by agency directors such as the attorney general or the directors of the Department of Homeland Security.  Many of these decisions are binding, and are incorporated into the immigration law of the United States.
• Handbooks and Guides: Many immigration agencies publish handbooks to advise their employees in administering immigration laws.  For example, the U.S. Citizenship and Immigration Services (USCIS) has published the Adjudicator’s Field Manual and EOIR has published the Immigration Judge Benchbook.  Both manuals establish intra-agency policies and are a strong indication of how the immigration laws should be applied.

CATEGORIES OF IMMIGRANTS

Alien: Not an extraterrestrial.  Any person who is not a citizen or national of the United States.  Only aliens are subject to immigration laws.  Even an LPR is considered aliens until he or she becomes a citizen.  As aliens, LPRs are still subject to immigration laws, including all grounds for removal.

Immigrant:

Nonimmigrant:

Undocumented Alien:

Lawful Permanent Resident: Also known as a Green Card.

Naturalized Citizen:

Refugee:

Employment Authorization Document (EAD): A U.S. Citizenship & Immigration Services document evidencing the right of certain aliens to accept employment in the United States.  The EAD can be associated with a variety of immigrant and non-immigrant applications and classifications.

ADMISSION INTO THE UNITED STATES

Admission: The process of allowing someone to physically and legally be in the United States.  At a port of entry, a person may be inspected and admitted or paroled into the United States.  Instead of being admitted, an alien may be placed in removal proceedings or removed through expedited removal.  Once an individual is admitted, a number of legal rights attach.

Advance Parole: A determination by U.S. Citizenship and Immigration Services to allow a person physically present in the United States who has a pending application for status to depart the United States on a temporary journey overseas and then to continue to maintain the application for when the person returns to the United States.  A person granted advance parole is treated as seeking admission upon his or her return to the United States.  It is easier to understand advance parole when you understand that leaving the United States without advance parole is considered an abandonment of whatever application might have been pending at the time of departure.

Border Crossing Card (BCC): An identity card issued to an alien who is lawfully admitted for permanent residence, or to an alien who is a resident of Mexico or Canada, by a consular officer or an immigration officer for the purpose of crossing the border from Canada or Mexico.  Mexican visitors to the United States receive a border crossing card regardless of whether they are traveling to the border region or beyond.

VISA CATEGORIES

Diversity Visa Lottery: Part of IMMACT90, the diversity lottery was established to promote immigration from traditionally underrepresented countries.

CHANGING IMMIGRANT OR NON-IMMIGRANT STATUS

Employment Authorization Document (EAD): Commonly known as a “work permit,” there is actually no such thing.  Citizens, nationals and lawful permanent residents (LPR) are automatically authorized to seek employment and to be employed in the United States.  Certain nonimmigrant visa categories include employment authorization in the United States possibly with or without limitation to a particular employer.  Those with some form of refugee status, including asylum or temporary protected status (TPS) may also apply for employment authorization, as well as some who have found themselves in removal proceedings.  Virtually all employment authorization for nonimmigrants or undocumented aliens is limited as to time, if not to the nature of the employer or employment.

MYTHS

REMOVAL PROCEEDINGS AND IMMIGRATION COURT

Cancellation of Removal: There are two forms of Cancellation of Removal, and both are discretionary forms of relief for those who find themselves in removal proceedings.  First, the removal of a lawful permanent resident may be cancelled if that person (1) has been a permanent resident for at least five years; (2) has resided continuously in the United States for at least seven years after having been admitted in any status; and (3) has not been convicted of an aggravated felony.  For all those who are not lawful permanent residents, it is necessary to show (1) continuous physical presence in the United States for at least ten years immediately preceding the date of the Notice to Appear; (2) good moral character; (3) an absence of convictions for certain offenses; and (4) that removal would result in exceptional and extremely unusual hardship to the applicant’s U.S. citizen or lawful permanent resident spouse, child, or parent.

Expedited Removal: A procedure established by IIRIRA that authorized ICE  to quickly remove certain inadmissible aliens from the country.  The authority covers aliens who are inadmissible because they have no entry documents or because they have used counterfeit, altered, or otherwise fraudulent or improper documents.  The authority covers aliens who arrive in, attempt to enter, or have entered the U.S. without having been admitted or paroled by an immigration officer at a port of entry.  ICE has the authority to order the removal, and the alien is not referred to an immigration judge except under certain circumstances after an alien makes a claim to legal status in the U.S. or demonstrates a credible fear of persecution if returned to his or her home country.

Prosecutorial Discretion: Discretion is found in many sections of the INA and throughout the American legal system in general.  Prosecutorial discretion is the ability of law enforcement officers, prosecutors and others a legal system to prioritize the application of the law.  While politically controversial with regards to immigration, the concept has been applied for centuries in our legal system.  A famous example is the 5-10 rule for speeding.  Many believe that police officers typically do not pull people over for speeding unless they are going more than five miles per hour over the speed limit within city limits or ten miles per hour over the speed limit on the highway.  If such is the case, then police officers are exercising their discretion not to pull a driver over even though he or she is breaking the speed limit.  The same holds true in immigration removal proceedings.  Immigration enforcement officers and trial attorneys have the discretion to weigh certain mitigating factors in order to determine whether they actually want to place an immigrant in removal proceedings.  The policy of prosecutorial discretion in immigration law was bolstered by a series of memos in 2011.

FAMILY BASED IMMIGRATION

Adjustment of Status: In a nutshell, this is the process of obtaining lawful permanent resident (LPR) status in the United States without having to leave to do so.  This is distinguishable from “change of status,” where a nonimmigrant changes from one nonimmigrant classification to another, and “consular processing,” where an individual must leave the United States in order to become an LPR.  The AOS option is unavailable to most, but not all, individuals who have entered the United States without inspection (EWI), or who have committed immigration violations while in the United States.

Affidavit of Support (Form I-864): A declaration made by a U.S. citizen or LPR who resides in the United States and who will provide financial support to an alien who is seeking to enter the United States or adjust status.  This affidavit is directly linked to the prohibition against admitting individuals who are likely to become a public charge.  Where the affidavit of support deals with an intending immigrant, the so-called “sponsor,” or declarant, must earn demonstrate earnings at 125% or higher of the Federal Poverty Guidelines.  If necessary, co-sponsor’s are allowed to assist.

Consular Processing: The process of applying for an immigrant visa at a U.S. consular post outside the United States for prospective immigrants who are outside the United States or who are ineligible to adjust status in the United States.

Discretion: The term “discretion” is found throughout the INA and indicates that whether or not a person might be eligible for a particular immigration benefit is a matter that is left to the sound exercise of judgment by the agency or officer involved.  As a general rule, when a benefit is conferred or denied subject to discretion, a reviewing court will allow the agency great deference.

SELF PETITIONERS

Diversity Lottery: The name given to the immigrant visa lottery program founded in 1990 in order to increase the diversity in the pool of immigrants to the United States.  The program makes 55,000 visas available to prospective immigrants from countries and regions that send a low number of immigrants to the United States.  There is no necessity that the applicants for the program have U.S. citizen or LPR relatives.  The program is administered by the Department of State.  Those who “win” an immigrant visa are eligible to enter as LPRs.

EMPLOYMENT BASED IMMIGRATION

REFUGEE RELIEF

Asylum: A discretionary benefit afforded to certain individuals inside the United States who are able to demonstrate that they are unable to return to their home country on account of persecution or a well-founded fear of persecution based on their race, religion, nationality, membership in a particular social group, or political opinion.  One year after receiving asylum status, the asylee may apply for lawful permanent residence.  The REAL ID Act of 2005 altered the standards and evidentiary burdens governing application for asylum, withholding of removal and other discretionary grants of relief from removal.  The Act requires applicants to demonstrate that one of the enumerated grounds was or will be “at least one central reason” for their persecution, and allows immigration judges to require credible asylum applicants to obtain corroborating evidence “unless the applicant does not have the evidence and cannot reasonably obtain the evidence.”  Individuals must apply for asylum within one year of entering the U.S.  Changed circumstances may allow an individual to apply more than one year after entry, but there is no guarantee an application will be allowed.

Exchange Visitor: A foreign national who comes temporarily to the United States as a participant in a program approved by the secretary of state for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, or receiving training.

CITIZENSHIP

Derivative Citizenship: A form of citizenship conveyed to children when their parents naturalize, or in certain circumstances,  to foreign born children adopted by U.S. citizen parents.

Dual Nationality: Dual nationality is most easily described as the simultaneous possession of two citizenships.  Dual nationality can occur by birth in one country to citizens of another country, by marriage to a foreign national, and by foreign naturalization.  Dual nationality is not favored under U.S. law, but the U.S. does not require relinquishment of citizenship in another country in order to be a full-fledged U.S. citizen.  Some countries do not accept dual citizenship and require relinquishment of former citizenship upon naturalization in the U.S.

CRIMMIGRATION

Aggravated Felony (AggFel): Any one of a number of crimes specifically defined in INA 101(a)(43), that may make a person removable.  Having been convicted of an aggravated felony creates a multitude of problems for those dealing with asylum, inadmissibility, removal and judicial review.  An aggravated felon is ineligible for most forms of immigration relief, and following completion of his or her sentence, will likely be placed in an expeditious process for removal.  Interestingly, for immigration purposes, an individual does not have to be have been convicted of an actual felony in order to be an aggravated felon.  Many misdemeanors may also be considered aggravated felonies under the INA.

Crime Involving Moral Turpitude (CIMT): An offense that serves as a ground of inadmissibility or removal.  In other words, CIMTs can cause major problems for anyone desiring protection from removal or entry into the United States.  The statutory explanation of CIMTs and their affect on immigration benefits can be found at INA 212(a)(2)(A)(i)(I).  Understanding what constitutes a CIMT can be confusing, as illustrated by the Department of State’s definition,  indicating that a conviction will involve moral turpitude if one or more of the elements of that offense have been determined to involve moral turpitude.  CIMTs can include, but are not limited to, any form of fraud, larceny or intent to harm people or things.

CREDITS

Boswell, Richard A. Essentials of Immigration Law, 2nd Edition, American Immigration Lawyers Association, 2009.

Johnson, Kevin R. The Forgotten “Repatriation” of Persons of Mexican Ancestry and Lessons for the “War on Terror,” Pace Law Review, September 1, 2005.  http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1038&context=lawrev.