Immigration
law: an overview
Federal immigration law determines
whether a person is an alien, the rights, duties, and obligations associated
with being an alien in the United States, and how aliens gain residence or
citizenship within the United States. It also provides the means by which
certain aliens can become legally naturalized citizens with full rights of
citizenship. Immigration law serves as a gatekeeper for the nation's border,
determining who may enter, how long they may stay, and when they must leave.
Congress has complete authority over
immigration. Presidential power does not extend beyond refugee policy. Except
for questions regarding aliens' constitutional rights, the courts have
generally found the immigration issue as non-justiciable.
States have limited legislative
authority regarding immigration, and 28 U.S.C. § 1251 details the full extent of state jurisdiction.
Generally, 28 U.S.C. § 994 details the federal sentencing guidelines for illegal
entry into the country.
By controlling the visa process, the federal government can
achieve the goals of its immigration policies. There are two types of visas: immigrant visas and nonimmigrant
visas. The government primarily issues nonimmigrant visas to tourists and
temporary business visitors. The government divides nonimmigrant visas into
eighteen different types, but for most types, does not impose a cap on the
number that may be granted in a year. Only a few categories of non-immigrant
visas allow their holders to work in the United States. Immigrant visas, on the
other hand, permit their holders to stay in the United States permanently and
eventually to apply for citizenship. Aliens with immigrant visas can also work
in the United States. Congress limits the quantity of immigrant visas, which
numbered 675,000 in 1995. Many immigrant visas remain subject to per-country
caps.
Early history of American immigration
law
Congress's first attempt to set
immigration policy came in 1790 with the enactment of the Naturalization Act of 1790. This Act restricted
naturalization to "free white persons" of "good moral
character" and required the applicant to have lived in the country for two
years prior to becoming naturalized. In 1795 an amendment increased the residency requirement to five years.
The five-year requirement remains on the books to this day.
Upon ratification of the Fourteenth Amendment, all children born within the United
States received citizenship at birth. In 1870 Congress broadened
naturalization laws to allow African-Americans the right to become naturalized
citizens. Asian Americans, however, did not receive such a right for many
years. Xenophobia from an influx of Asians between 1850 and 1882 prompted
Congress to pass the Chinese Exclusion Act, which restricted further Chinese
immigration.
In 1921 Congress passed the Emergency
Immigration Act, creating national immigration quotas, which gave way to the Immigration Act of 1924, capping the number of
permissible immigrants from each country in a manner proportional to the
number already living within the United States. The aggregate number
from the eastern hemisphere could not eclipse 154,227
immigrants. Franklin D. Roosevelt's Administration essentially closed to
the country to immigration essentially during the Great
depression, drastically reducing the numbers per country that
could enter the United States.
Modern immigration law
The Immigration and Nationality Act of 1952 (INA), also known as the McCarran-Walter
Act, eliminated all race-based quotas, replacing them with purely
nationality-based quotas. The INA continues to influence the field of
American immigration law. To enforce the quotas, the INA created the
Immigration and Naturalization Service (INS). The INS served as the
federal agency that enforced these caps for remainder of the 20th
century.
When Congress passed the INA, it
defined an "alien" as any person lacking citizenship or
status as a national of the United States. Different categories of aliens
include resident and nonresident, immigrant and nonimmigrant, and documented
and undocumented ("illegal"). The terms "documented" and
"undocumented" refer to whether an arriving alien has the proper
records and identification for admission into the U.S. Having the proper
records and identification typically requires the alien to possess a valid,
unexpired passport and either a visa, border crossing identification card,
permanent resident card, or a reentry permit. The INA expressly refuses
stowaway aliens entry into the U.S.
The need to curtail illegal immigration
prompted Congress to enact the Immigration Reform and Control Act (IRCA) of 1986. The IRCA toughened criminal
sanctions for employers who hired illegal aliens, denied illegal aliens
federally funded welfare benefits, and legitimized some aliens through an amnesty
program. The Immigration Marriage Fraud Amendments of 1986 sought to limit the practice
of marrying to obtain citizenship. The Immigration Act of 1990 thoroughly revamped the INA by
equalizing the allocation of visas across foreign nations, eliminating archaic
rules, and encouraging worldwide immigration.
The Illegal Immigration Reform and Immigrant Responsibility
Act (IIRIRA) of 1996 revolutionized the process of alien entry into the
United States. The IIRIRA eliminated the term "entry," replacing it with
"admission." An application for admission occurs whenever an
alien arrives in the U.S. regardless of whether the arrival occurs at a
designated port-of-entry. Applicants at either designated ports or otherwise
must submit to an inspection by U.S. customs, even if the applicant possesses
an immigrant visa. The IIRIRA also employs the term "arriving alien"
to describe applicant aliens attempting to enter the U.S., regardless of
whether they arrive at a designated port, a non-designated point on the border,
or are located in U.S. waters and brought to shore.
Post-9/11 reform
On March 1, 2003, the Department of Homeland
Security opened, replacing the INS. The Bush Administration had designed
the Department of Homeland Security to foster increased intelligence sharing
and dialogue between agencies responsible for responding to domestic
emergencies, such as natural disasters and domestic terrorism. Within the
Department, three different agencies - U.S. Customs and Border Enforcement
(CBE), U.S. Citizenship and Immigration Services (USCIS), and U.S. Immigration
and Customs Enforcement (ICE) - now handle the duties formerly held by the
INS. Currently, the CBE handles the INS's border patrol duties, the USCIS
handles the INS's naturalization, asylum, and permanent residence functions,
and the ICE handles the INS's deportation, intelligence, and investigatory functions.
Refugee and asylum seekers
The Refugee Act of 1980 defines the
U.S. laws relating to refugee immigrants. Under the Refugee Act, the term
"refugee" refers to aliens with a fear of
persecution upon returning to their homelands, stemming from their religion,
race, nationality, membership in certain social groups, or political
opinions. Anyone who delivers a missing American POW or MIA soldier
receives refugee status from the United States.
The United States, however, denies
refugee status to any alien who actively persecuted individuals of a certain
race, political opinion, religion, nationality, or members of a certain social
group. As a matter of public policy, the government also typically
refuses refugee applicants previously convicted of murderer. For
refugees who have "firmly resettled" in another country, the United
States will deny a request for refugee admission. The government
considers refugees "firmly resettled" if the refugees have received
an offer of citizenship, permanent residency, or some other permanent status
from a foreign country.
Under international law, the Geneva
Convention, or the laws
of the United States, foreign citizens who have become disillusioned with their
homeland cannot take temporary refuge within the United States. The
Refugee Act of 1980 specifically leaves out temporary refuge as a form of
refugee status that the U.S. government will recognize.
To qualify for refugee status under the
persecution provision, the refugee applicant must prove actual fear. A
proof of actual fear requires meeting both a subjective and an objective
test. The subjective test requires that the refugee actually have an
honest and genuine fear of being persecuted for some immutable trait, such as
religion, race, and nationality. Seekers of asylum must show a fear that membership in a
social or political group has caused past persecution or has caused a
well-founded fear that persecution will occur upon returning. The
applicant meets the objective standard by showing credible and direct evidence
that a reasonable possibility of persecution exists upon the applicant's return
to the homeland.
The President retains the ultimate
decision making authority when determining the number of refugees to allow into
the country during a given year.
Deportation
Deportation refers to the official removal of an
alien from the United States. The U.S. government can initiate
deportation proceedings against aliens admitted under the INA that commit an
aggravated felony within the United States after being admitted. An
alien's failure to register a change of address renders the alien deportable,
unless the failure resulted from an excusable circumstance or mistake. If
the government determines that a particular alien gained entry into the country
through the use of a falsified document or otherwise fraudulent means, the
government has the grounds to deport.
Other common grounds for deportation
include the following: aiding or encouraging another alien to enter the country
illegally; engaging in marriage fraud to gain U.S. admission; participating in
an activity that threatens the U.S.'s national security; voting unlawfully; and
failing to update the government with a residential address every three months,
regardless of whether the address has changed. The last of these policies
served as the grounds for the government to deport 2,000 Pakistanis following
the September 11th attacks.
If the government brings a proceeding
for deportation because of fraud or falsification, the government bears the
burden of proving by clear and convincing evidence that alleged falsification
or fraud occurred and that the falsification or fraud proved material to the
granting of admission to the alien. Upon such a proof, the government has
established a rebuttable presumption that the alien gained admission through
material falsification or fraud. To rebut the presumption, the alien must
demonstrate by a preponderance of the evidence that admission would have been granted
even without the falsification or fraud.
Source:http://www.law.cornell.edu/wex/immigration
Comments
Congress determines how many legal immigrants
may enter the US. In 1989 that number
doubled from about 500 thousand to about 1 million. Since 1989, that number has
remained above 1 million a year. In
1993, Congress passed NAFTA resulting in the off-shoring of American jobs, but
Congress also left immigration above 1 million a year. Immigration has been
excessive for 25 years and has built up to about 40 million in that time. In
the same period, jobs have vanished. Our low workforce participation rate for
US citizens who are working age indicates that 37% of US citizens are without
jobs; that’s about 92 million Americans who need jobs.
During the Great Depression, Congress shut
down immigration for several years. Jobs began to appear around 1940 due to
World War II. It’s time to drastically
reduce immigration again until at least half of these 92 million are employed. That’s the immigration reform we now need.
Congress could still authorize enough H1b
visas for engineers if we do not have them in the citizen population and Congress
could still authorize seasonal guest workers to work on farms, but the rest
need to stay at home for a few years.
A sign should be hung on the Statue of
Liberty that says: “Closed for Repairs”.
Norb Leahy, Dunwoody GA Tea Party Leader
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