Copyright 2015 Carolina Academic Press, LLC. All rights reserved. UNDERSTANDING IMMIGRATION LAW Second Edition

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1 UNDERSTANDING IMMIGRATION LAW Second Edition

2 LexisNexis Law School Publishing Advisory Board Paul Caron Professor of Law Pepperdine University School of Law Bridgette Carr Clinical Professor of Law University of Michigan Law School Steven I. Friedland Professor of Law and Senior Scholar Elon University School of Law Carole Goldberg Jonathan D. Varat Distinguished Professor of Law UCLA School of Law Oliver Goodenough Professor of Law Vermont Law School John Sprankling Distinguished Professor of Law McGeorge School of Law

3 UNDERSTANDING IMMIGRATION LAW Second Edition Kevin R. Johnson Dean and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies University of California, Davis Raquel Aldana Associate Dean for Faculty Scholarship, Professor of Law, and Director of the Inter-American Program University of the Pacific McGeorge School of Law Bill Ong Hing Professor of Law University of San Francisco Professor of Law Emeritus University of California, Davis Leticia M. Saucedo Professor of Law University of California, Davis Enid Trucios-Haynes Professor of Law Brandeis School of Law, Louisville

4 ISBN: ebook ISBN: Library of Congress Cataloging-in-Publication Data Understanding immigration law / Kevin R. Johnson, Dean and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies University of California, Davis [and four others]. Second edition. pages cm Includes index. ISBN (softbound) 1. Emigration and immigration law United States. 2. United States Emigration and immigration Government policy. 3. Immigration enforcement United States. I. Johnson, Kevin R., author. KF4819.U dc This publication is designed to provide authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under license. Matthew Bender and the Matthew Bender Flame Design are registered trademarks of Matthew Bender Properties Inc. Copyright 2015 Matthew Bender & Company, Inc., a member of LexisNexis. All Rights Reserved. No copyright is claimed by LexisNexis or Matthew Bender & Company, Inc., in the text of statutes, regulations, and excerpts from court opinions quoted within this work. Permission to copy material may be licensed for a fee from the Copyright Clearance Center, 222 Rosewood Drive, Danvers, Mass , telephone (978) NOTE TO USERS To ensure that you are using the latest materials available in this area, please be sure to periodically check the LexisNexis Law School web site for downloadable updates and supplements at Editorial Offices 630 Central Ave., New Providence, NJ (908) Mission St., San Francisco, CA (415) (2015 Pub.3240)

5 Preface In preparing the first edition of Understanding Immigration Law, we faced a formidable set of challenges. Commencing work on the second edition, we, to our surprise, found that the challenges may have become even more formidable. First, this book analyzes one of the most disputed public policy issues facing the United States. A heated national debate over immigration reform has spanned the 15 years of the new millennium, with no end in sight. Its contentiousness is a function of the complex, important, and, in certain respects, personal issues implicated by the policy choices that the nation must make. Immigration law and policy responds to a number of competing demands and interests that touch on contested conceptions of national identity, class and socioeconomic status, and related issues. Simply finding the proper tone to encourage rational discussion of the legitimate differences of opinion can at times prove to be challenging. Second, U.S. immigration law is incredibly complex. Part of the law s complexity arises from the fact that it deviates in important respects from mainstream public law, a characteristic known as immigration exceptionalism. As the Supreme Court has emphasized, [i]n the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens. Mathews v. Diaz, 426 U.S. 67, (1976). The fundamental question of the role of the judiciary in reviewing the constitutionality of immigration laws remains in dispute. The Supreme Court has never overruled its foundational decisions upholding immigration laws that were racially discriminatory. See, e.g., Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581 (1889). It has not disturbed the ruling that the courts lack the power to review the constitutionality of the substantive immigration admissions criteria passed by Congress. See Gabriel J. Chin, Segregation s Last Stronghold: Race Discrimination and the Constitutional Law of Immigration, 46 UCLA L. REV. 1 (1998). Indeed, it remains contested whether the U.S. Constitution applies to the review of the immigration laws and what precise protections it extends to noncitizens. Put simply, immigration exceptionalism requires a fair amount of explanation. Nor is the Immigration & Nationality Act of 1952 (INA), which is the centerpiece of American immigration law, known for its accessibility to students and lawyers. To the contrary, only the much-maligned Internal Revenue Code rivals the intricate, lengthy, and all too often obtuse INA. See Castro-O Ryan v. INS, 847 F.2d 1307, 1312 (9th Cir. 1988) ( With only a small degree of hyperbole, the immigration laws have been termed second only to the Internal Revenue Code in complexity. ) (citation omitted); Lok v. INS, 548 F.2d 37, 38 (2d Cir. 1977) (stating that U.S. immigration laws resemble King Minos s labyrinth in ancient Crete ). Consequently, explaining concisely and clearly the statute s complexities and nuances requires great care and attention. In addition, striking a balance in one volume between simplifying while not dumbing down the fundamentals of U.S. immigration law proves to be difficult. Seeing the forest through the trees often proves most difficult for both the expert in, as well as the newcomer to, immigration law. We strive throughout Understanding Immigration Law to provide the reader with the basics of immigration law without getting lost in the minutiae. To exacerbate the complexities of immigration law, Congress amends the Immigration & Nationality Act (INA) just about every year, with the changes slowly making the law iii

6 Preface lengthier and more complex, if not clearer and easier to understand. Moreover, the immigration bureaucracy (see Chapter 5) regularly promulgates new regulations and amends existing ones. The courts and the Board of Immigration Appeals issue many opinions in immigration cases. Changes in the law, including the Supreme Court s decision in Arizona v. United States, 132 S. Ct (2012) and the Obama administration s announcement in 2012 of the Deferred Action for Childhood Arrivals program (and its controversial expansion in 2014), which provides relief to certain undocumented immigrants, see Chapter 12, required extensive changes from the first edition of Understanding Immigration Law. Scholars must work diligently to just keep up with the frequent changes in this highly technical body of law. Change in the law perhaps even wholesale comprehensive immigration reform in the near future is a distinct possibility. Discussion of immigration reform has been in the air for well over a decade. Massive changes in the law can come with little notice. In 1990, to the surprise of many informed observers, Congress overhauled the immigration laws and expanded lawful immigration. In 1996, Congress passed far-reaching, reforms that one informed observer characterized as the most radical reform of immigration law in decades or perhaps ever. PETER H. SCHUCK, CITIZENS, STRANGERS, AND IN- BETWEENS 143 (1998). Within months of September 11, 2001, Congress passed the USA PATRIOT Act, which added tough new immigration provisions ostensibly designed to combat terrorism. Since publication of the first edition in 2009, rumblings in Congress of comprehensive immigration reform repeatedly have come and gone. Although much-debated, Congress has failed to pass a major immigration reform package. It also has been unable to pass any of the versions of the DREAM Act introduced in Congress that would have benefited undocumented college students. See Chapter 18. The inability of Congress to enact immigration reform legislation has contributed to the long-running, and often over-heated, national debate over immigration. President Obama s 2014 executive action, including expansion of the deferred action program, provoked great controversy and is tangled in legal challenges. A growing number of state and local governments have passed laws designed to facilitate enforcement of the immigration laws. Chapter 4, which has been substantially revised since the first edition, critically reviews the constitutionality of such efforts, and whether they intrude on the federal power to regulate immigration. Current events also regularly transform the immigration landscape. In 2014, for example, public attention and the Obama Administration focused on the much-publicized increase in unaccompanied minors from Central America. See Frances Robles, Fleeing Gangs, Children Head to U.S. Border, N.Y. TIMES, July 9, We attempt to integrate such developments into Understanding Immigration Law but cannot always predict how significant and lasting they will be. Despite the many challenges, the second edition of Understanding Immigration Law strives to lay out the basics of U.S. immigration law in a way accessible to newcomers to the field. Readers can judge whether we met our goal. The early chapters of this volume offer background about the intellectual, historical, and constitutional foundations of U.S. immigration law. They also identify factors that have historically fueled migration to the United States, including the economic pull of jobs and family in the United States and the push of economic hardship, political iv

7 Preface instability, and other aspects of life in the sending country. The middle chapters provide a capsule summary of the law concerning admissions and removals under the Immigration and Nationality Act, as amended, and implementing regulations. We end with a chapter making some tentative speculations about the future of U.S. immigration law. Understanding Immigration Law has been designed to be used by students as a supplement to the most-widely adopted immigration law casebooks, including STEPHEN H. LEGOMSKY & CRISTINA M. RODRÍGUEZ, IMMIGRATION AND REFUGEE LAW AND POLICY (5th ed. 2009), THOMAS ALEXANDER ALEINIKOFF, DAVID A. MARTIN, HIROSHI MOTOMURA & MARYELLEN FULLERTON, IMMIGRATION AND CITIZENSHIP: PROCESS AND POLICY (7th ed. 2012), and other leading immigration law casebooks. The background to leading Supreme Court immigration decisions can be found in IMMIGRATION STORIES (David A. Martin & Peter H. Schuck eds., 2005). Immigration is the topic of many websites and blogs. For up-to-date immigration law news and analysis, visit the Immigration Prof blog, immigration/, which is managed by two co-authors (Kevin R. Johnson and Bill Hing) of Understanding Immigration Law. LexisNexis Immigration Law Newsroom ( lexisnexis.com/legalnewsroom/immigration/default.aspx) also provides comprehensive immigration news, court decisions, and other immigration materials. A Note on Terminology Although not defined in the Immigration & Nationality Act, the emotion-laden phrase illegal aliens often is employed in the public debate over immigration. See generally MAE M. NGAL, IMPOSSIBLE SUBJECTS: ILLEGAL ALIENS AND THE MAKING OF MODERN AMERICA (2004). Because the lawfulness of the status of some undocumented immigrants is not always clear, characterizing them as illegal is not entirely accurate. Restrictionists frequently decry illegal aliens and advocate their mass deportation from the United States. The use of the very term illegal aliens ordinarily betrays a restrictionist bias in the speaker. We avoid use of the term in this book. Similarly, the term alien, although literally the DNA of the INA, which addresses in general terms the treatment of aliens, as opposed to citizens, has negative connotations. See Kevin R. Johnson, Aliens and the U.S. Immigration Laws: The Social and Legal Construction of Nonpersons, 28 U. MIAMI INTER-AM. L. REV. 263 ( ); D. Carolina Nuñez, War of the Words: Aliens, Immigrants, Citizens, and the Language of Exclusion, 2013 BYU L. REV Because the term aliens is effectively the organizing term of the entire immigration statute, we must employ it, although we strive to do so carefully and sensitively throughout. Kevin R. Johnson Raquel Aldana Bill Ong Hing Leticia M. Saucedo Enid Trucios-Haynes v

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9 Chapter 1 UNDERSTANDING AND EVALUATING U.S. IMMIGRATION LAW AND POLICY A. THE MORALITY OF IMMIGRATION RESTRICTIONS B. NATIONAL SOVEREIGNTY AND BORDERS Expansive Notions of National Sovereignty Borders and Border Controls The Social Contract and Community Membership C. INTERNATIONAL HUMAN RIGHTS LIMITATIONS ON SOVEREIGN POWER OVER BORDERS The Rights of Immigrants a. A Right to Migrate? b. The Stake Theory A Sliding Scale of Rights for Noncitizens Refugees D. DETERMINANTS OF MIGRATION: THE TRADITIONAL PUSH AND PULL FACTOR ANALYSIS Economics a. Push: Poverty and Limited Economic Opportunity b. Pull: The Demand for Labor Pull: Family Reunification Push: Migration Pressures Generated by U.S. Foreign Policy E. THE IMPACTS OF IMMIGRATION ON THE UNITED STATES Economic Impacts The Labor Market Economic Benefits for Employers and Business Benefits to Immigrant Workers Aggregate Benefits to the National Economy Does Increased Immigration Enforcement Make Economic Sense? The Economic Costs of Immigration a. Downward Wage Pressures b. Wage Costs to Minorities c. Increased Economic Inequality Public Benefits Social and Cultural Impacts a. Illegal Aliens and the Influence of Racism, Nativism, Etc b. National Identity c. National Security Anxieties Crime Environmental Costs vii

10 Chapter 2 THE EVOLUTION OF U.S. IMMIGRATION LAW AND POLICY A. COLONIAL IMMIGRATION B. EARLY STATE AND FEDERAL IMMIGRATION LAW AND POLICY Criminals Paupers Blacks Religious Views Unorthodox Views C. ENSLAVEMENT OF AFRICAN WORKERS AS FORCED IMMIGRATION POLICY D. THE RISE OF COMPREHENSIVE FEDERAL REGULATION: THE CHINESE EXCLUSION ERA AND BEYOND The Evolution of Chinese Exclusion The Gentlemen s Agreement with Japan Filipinos and Asian Indians E. THE NATIONAL ORIGINS QUOTA SYSTEM F. THE IMMIGRATION AND NATIONALITY ACT OF G. THE IMMIGRATION REFORM AND CONTROL ACT OF 1986 (IRCA) Reasons Given for Legalization a. No Alternative to Legalization b. Spread INS Resources c. Elimination of the Underclass d. Equity, Fairness, Dignity, Compassion, and Reality Intent of the Special Agricultural Worker Program What Legalization Entailed Employer Sanctions H. THE 1965 AMENDMENTS AND THE IMMIGRATION ACT OF The 1965 Framework for Selection Restraints on Mexican Immigration in the 1970s Affirmative Action for Western Europeans: Diversity in the 1980s and 1990s Debating Foreign Professional Workers More Visas for Temporary Workers: the H-1B Category I. IMMIGRATION REFORM IN Antiterrorism and Effective Death Penalty Act of Welfare Reform Illegal Immigration Reform and Immigrant Responsibility Act J. NATIONAL SECURITY AND POST-9/11 MEASURES viii

11 K. THE JEKYLL AND HYDE OBAMA ERA Secure Communities ICE Detainers Detention Prosecutorial Discretion DACA Same-Sex, Binational Couples L. THE PUSH FOR IMMIGRATION REFORM Chapter 3 THE FEDERAL IMMIGRATION POWER A. THE CONSTITUTIONAL POWER TO REGULATE IMMIGRATION Enumerated Powers a. The Naturalization Power b. The Commerce Power c. Migration and Importation Clause d. War Power and the National Government s Obligation to Protect the States Against Invasion e. Immigration-Related Provisions in the Contemporary Public Debate f. Summary Implied Powers a. Foreign Affairs Power b. Necessity and Structural Justifications B. THE SCOPE OF THE FEDERAL POWER TO REGULATE IMMIGRATION The Plenary Power Doctrine Federal Preemption of State and Local Immigration Enforcement Laws Constitutional Protections for Immigrants a. Individual Rights i. Procedural Due Process ii. Substantive Due Process iii. Equal Protection b. Separation of Powers i. Congressional Limits on Judicial Review ii. INS v. Chadha Chapter 4 IMMIGRATION FEDERALISM A. THE ALIEN LAND LAWS B. FIREARM ALIENAGE RESTRICTIONS ix

12 C. ALIENAGE SUFFRAGE AND OTHER TYPES OF ALIENAGE POLITICAL PARTICIPATION D. ALIENS AND JURY SERVICE E. THE SPECIAL PUBLIC INTEREST DOCTRINE F. THE POLITICAL-FUNCTION EXCEPTION G. PROFESSIONAL OR OCCUPATIONAL LICENSES AND NONCITIZENS H. PRIVATE EMPLOYMENT I. PUBLIC BENEFITS J. PUBLIC EDUCATION K-12 Education Higher Education K. WORKER RIGHTS State Employment and Labor Laws Day Laborers L. DRIVER S LICENSES M. LANDLORD/TENANT IMMIGRATION ORDINANCES N. THE OFFICIAL ENGLISH/ENGLISH-ONLY LAWS O. LOCAL IMMIGRATION ENFORCEMENT P. FAMILY LAW Q. CONCLUSION Chapter 5 IMMIGRATION ACTORS: FEDERAL AGENCIES AND COURTS A. THE POLITICAL BRANCHES OF THE FEDERAL GOVERNMENT IN REGULATING IMMIGRATION Congress The President and Executive Branch B. THE ADMINISTRATIVE STRUCTURE OF IMMIGRATION LAW A Brief History of the Rise and Fall of the INS Department of Homeland Security a. Citizenship and Immigration Services USCIS b. Immigration and Customs Enforcement ICE c. Customs and Border Protection CBP Department of State Department of Justice a. Immigration Courts b. Board of Immigration Appeals Department of Labor Department of Health and Human Services Office of Refugee Resettlement x

13 C. THE JUDICIAL ROLE IN IMMIGRATION LAW Chapter 6 JUDICIAL REVIEW A. THE NEED FOR JUDICIAL REVIEW The Immigration Agencies The Immigration Courts and the Board of Immigration Appeals a. BIA Streamlining b. Bias in the Immigration Courts? The Curious Response of Congress: Restrictions on Judicial Review B. CONSTITUTIONAL SCOPE OF, AND LIMITS ON, JUDICIAL REVIEW OF IMMIGRATION DECISIONS The Constitutional Right to Judicial Review a. Admission i. The General Rule ii. Returning Lawful Permanent Residents: Landon v. Plasencia (1982) b. Removal C. LIMITS ON JUDICIAL REVIEW Plenary Power Over Noncitizens Seeking Admission a. Removal Grounds for Noncitizens b. Discrimination Against Noncitizens in the United States c. Gender Distinctions in the Nationality Laws Agency Deference a. Fact Finding b. Chevron Deference D. JUDICIAL REVIEW UNDER THE IMMIGRATION AND NATIONALITY ACT A Brief History of Judicial Review Limits: Court Stripping Provisions of Immigration Reform Legislation a. Questions of Law (Review) or Fact (No Review) b. Standards of Review c. Commencing Proceedings and Stays of Removals d. Class Actions e. Habeas Corpus The Nuts-and-Bolts of Judicial Review a. The Petition for Review in the Court of Appeals b. Exhaustion of Administrative Remedies c. Exceptions to Judicial Review i. The Rule of Consular Absolutism ii. Expedited Removal xi

14 iii. Criminal Grounds for Removal iv. Exercises of Discretion Chapter 7 IMMIGRANT VISAS A. THE FUNDAMENTALS Worldwide Quotas and Preference Categories a. Family-Sponsored Visas b. Employment-Based Visas Per-Country Ceilings and the Visa Bulletin B. FAMILY IMMIGRATION Marriage-Based Immigration Domestic Violence Other Family Members Special Immigrant Juvenile Status C. EMPLOYMENT-BASED PREFERENCE CATEGORIES Priority Workers (EB-1) Members of the Professions with Advanced Degrees and Noncitizens with Exceptional Ability (EB-2) Skilled Workers, Professionals and Other [Unskilled] Workers (EB-3) Employment Creation [Investor] Visas (EB-5) Labor Certification D. CERTAIN SPECIAL IMMIGRANTS (EB-4) E. DIVERSITY VISAS AS SET FORTH IN INA 203(C) F. ASYLEES AND REFUGEES Chapter 8 NONIMMIGRANT VISAS A. FAMILY The V Visa The Fiancée Visa: K Visa B. BUSINESS, EMPLOYMENT, AND COMMERCIAL Temporary Visitors for Business or Pleasure Visas for Business Personnel a. The Professional Visas: H-1, L, O, and P b. Lesser Skilled Workers: H-2 Visas c. Treaty Traders and Investors, and Free Trade Agreement Professionals: The E and TN Visas d. Other Workers: I, Q, and R Visas C. EDUCATIONAL: STUDENTS AND SCHOLARS D. HUMAN TRAFFICKING AND OTHER VICTIMS OF VIOLENCE T Visas xii

15 2. U Visas E. OTHER NONIMMIGRANT VISAS Chapter 9 INADMISSIBILITY GROUNDS AND WAIVERS A. IMMIGRATION CONTROL Smugglers and Traffickers of Aliens Visa Fraud Document Fraud False Claim to U.S. Citizenship Stowaways Unlawful Presence in the United States Prior Removal or Deportation B POLITICAL AND NATIONAL SECURITY C. CRIMINAL Moral Turpitude Crime Narcotics and Marijuana Multiple Criminal Convictions Prostitution and Commercialized Vice D. ECONOMIC PUBLIC CHARGE E. PUBLIC HEALTH AND MORALS Communicable Diseases Failure to Prove Vaccinations Mental or Physical Disorder Drug Addicts and Drug Abusers F. SPECIAL RULES Asylum and Refugee Status a. Persecution of Others b. Conviction of a Particularly Serious Crime c. Commission of a Serious Non-Political Crime d. Danger to U.S. Security e. Firm Resettlement or Offer of Safe Haven Domestic Violence Special Juvenile Status Nonimmigrant Visas Chapter 10 ASYLUM, WITHHOLDING OF REMOVAL, CONVENTION AGAINST TORTURE AND TEMPORARY PROTECTED STATUS A. THE DEFINITION OF REFUGEE B. THE STANDARDS FOR ASYLUM Fear of Persecution xiii

16 2. Well-Founded Fear On Account of a. Race, Religion, or Nationality b. Political Opinion c. Membership in a Particular Social Group Unable or Unwilling to Return C. HUMANITARIAN ASYLUM D. WITHHOLDING OF REMOVAL E. CONVENTION AGAINST TORTURE RELIEF F. BARS TO ELIGIBILITY G. TEMPORARY PROTECTED STATUS (TPS) Chapter 11 ADMISSION PROCEDURES A. OVERVIEW B. NONIMMIGRANTS Nonimmigrant Visa Applications and Admissions Exceptions to the Visa Requirement a. Visa Waiver Program Admissions b. Western Hemisphere Admissions Nonimmigrant Visa Petitions C. IMMIGRANTS Immigrant Visa Petitions a. Processing Delays Immigrant Visa Consular Processing a. Review of Visa Denials Adjustment of Status a. Adjustment Under 245(i) D. ACTUAL ADMISSION Admissions at the Border Expedited Removal a. Credible Fear Determinations Before an Immigration Judge Detention and Parole Chapter 12 REMOVAL A. GENERAL CONSIDERATIONS History and Theory of Deportation The 1996 Law a. Bars to Admissibility b. Expedited Removal c. Removal Proceedings xiv

17 d. Cancellation of Removal e. Meaning of Entry and Admission B. REMOVAL GROUNDS AND WAIVERS Immigration Control Grounds a. Correcting Errors in Admission upon Entry b. Post-Entry Immigration Control Criminal Grounds a. Crimes Involving Moral Turpitude b. Aggravated Felonies i. The Categorical Approach ii. The Modified Categorical Approach c. Controlled Substances, Firearms, Domestic Violence, and Other Crimes d. Defining a Conviction Other Removal Grounds C. RELIEF FROM REMOVAL Lasting Relief a. Cancellation of Removal i. Lawful Permanent Residents (Cancellation of Removal Part A) ii. Nonpermanent Residents (Cancellation of Removal Part B) iii. Victims of Domestic Violence iv. NACARA b. Adjustment of Status c. Asylum, Withholding of Removal and Convention Against Torture d. Registry (INA 249; 8 U.S.C. 1259) e. Private Bills Limited Relief a. Deferred Action and Prosecutorial Discretion b. Voluntary Departure c. Stays of Removal Chapter 13 THE REMOVAL PROCESS A. OVERVIEW OF THE REMOVAL PROCESS B. THE REMOVAL HEARING Notice to Appear Bond and Detention Legal Representation Evidence, Burden of Proof and Hearing Procedures a. Hearing Procedures xv

18 b. Evidence c. Burden of Proof and Standard of Proof Administrative Review Judicial Review C. MOTIONS TO REOPEN OR RECONSIDER D. SPECIAL REMOVAL PROCEDURES Criminal Cases a. Prison Hearings b. Administrative Removal c. Stipulated Removal d. Judicial Removal In Absentia Removal Reinstatement of Removal Crew Members National Security E. DETENTION Pending Removal After an Order of Removal Indefinite Detention Chapter 14 ENFORCEMENT AGAINST UNDOCUMENTED IMMIGRANTS A. UNDOCUMENTED IMMIGRATION B. AT THE U.S./MEXICO BORDER Creation and Expansion of the Border Patrol Operation Gatekeeper a. Development of Operation Gatekeeper b. Results of Operation Gatekeeper The Secure Fence Act of Operation Streamline C. HUMAN TRAFFICKING D. LEGALIZATION Amnesty Under IRCA (1986) a. Amnesty for Persons Residing in the United States Since Before January 1, b. Amnesty Program for Special Agricultural Workers (SAW) Cubans and Haitians (1986) Nicaraguans and Cubans (1997) a. NACARA Provisions for Nicaraguans and Cubans Haitians (1998) Proposed Legalization Programs xvi

19 a. AgJOBS b. Hagel-Daschle c. Goodlatte-Chambliss d. SOLVE Act e. Arizona Bill f. McCain-Kennedy g. Hagel-Martinez h. DREAM Act i. Border Security, Economic Opportunity and Immigration Modernization Act of E. ENFORCEMENT AT PORTS OF ENTRY The Automated Entry-Exit System U.S.-Visit NSEERS and Special Registration F. INTERIOR ENFORCEMENT OF THE IMMIGRATION LAWS Employer Sanctions Detection Strategies a. Petitions b. Criminal Custody c. Workplace Sweeps d. Silent Raids e. Criminal Alien Removal Initiative f. National Security i. SEVIS and Other Student-Related Programs ii. The Penttbom Investigation The Scope of Enforcement Powers a. Interrogations b. Stops and Arrests i. Immigration Checkpoints ii. Racial Profiling c. Search and Seizure d. Detention e. Mandatory Detention During Removal Proceedings f. Mandatory Detention After a Final Order of Removal g. Mandatory Detention for Suspected Terrorists Chapter 15 CRIMMIGRATION A. FEDERAL IMMIGRATION CRIMES The Expansion or Enhancement of Old Immigration Crimes a. Entry/Re-Entry b. Harboring, Smuggling, Aiding and Abetting, and Transporting xvii

20 Undocumented Immigrants c. Human Trafficking The Creation of New Federal Immigration Crimes a. Border Crimes in the U.S. Workplace b. Immigration Marriage Fraud c. Citizenship-Related Crimes The Use of Non-Immigrant Crimes to Target Immigrants a. Identity Theft b. Targeting the Terrorist Immigrant for Material Support c. Targeting Humanitarian Workers for Prosecution B. THE PADILLA DUE PROCESS REVOLUTION? Padilla s Story and Holding The Meaning of Padilla Beyond Padilla? C. CRIMINALIZATION OF IMMIGRATION VIOLATIONS AND IMMIGRANTS State Immigration Crimes that Mirror Federal Immigration Crimes a. Employer Sanctions b. Human Trafficking c. Harboring, Transporting, and Smuggling d. Identity Theft Laws State Immigration Crimes that Innovate Beyond Federal Immigration Crimes a. Housing b. Trespass/Unlawful Presence c. Driving While Undocumented d. Bail Restrictions D. CONCLUSION Chapter 16 THE RIGHTS AND RESPONSIBILITIES OF IMMIGRANTS A. PUBLIC BENEFITS B. HEALTHCARE C. GENERAL EMPLOYMENT-RELATED RIGHTS AND BENEFITS D. EMPLOYMENT AND LICENSES State Restrictions Federal Restrictions E. EMPLOYMENT DISCRIMINATION F. NATIONAL ORIGIN DISCRIMINATION xviii

21 G. INCOME TAX CONSIDERATIONS H. EDUCATION BENEFITS I. BENEFITS FOR DACA RECIPIENTS Chapter 17 CITIZENSHIP A. THE MEANING OF CITIZENSHIP B. ACQUIRING CITIZENSHIP Jus Solis a. Its Origins b. Birthright Citizenship for Undocumented Children c. Native Americans and Their Birthright Citizenship d. Birthright Citizenship and the Territories e. The Meaning of Natural Born Citizenship by Descent for Children Born Abroad a. Its Origins b. The Statute c. Gender Discrimination Citizenship Through Naturalization a. Its Origins b. The Statute Lawful Permanent Residence Residence and Physical Presence Good Moral Character Age English Language Knowledge of Civics Political or Ideological Requirements Attachment to the Principles of the U.S. Constitution c. Adjudication and Judicial Review d. Military Naturalization C. DUAL NATIONALITY D. EXPATRIATION OR LOSS OF CITIZENSHIP The History of Expatriation Laws Constitutional Scrutiny of Expatriation Statutes The Current Law E. DENATURALIZATION Chapter 18 THE FUTURE OF AMERICAN IMMIGRATION LAW A. IMMIGRATION IN THE SUPREME COURT The Future of the Plenary Power Doctrine xix

22 2. The Roberts Court s Approach to Immigration Cases: Careful Textual Analysis and Agency Deference B. IMMIGRATION REFORM IN CONGRESS The Status Quo a. Undocumented Immigration b. Labor Exploitation c. Human Trafficking and Death on the Border d. A Disrespected Immigration Bureaucracy e. The Need for Reform Constraints on Reform a. National Security Concerns b. Popular Fed of the Proverbial Floodgates Recent Proposals for Immigration Reform a. The DREAM Act b. Prosecutorial Discretion, Deferred Action for Childhood Arrivals, and the 2014 Expansion of Deferred Action Future Possibilities for Reform Increased Economic Integration of Canada, Mexico, and the United States a. The European Union b. The Political Feasibility of a Regional Arrangement c. The Costs of a Regional Migration Arrangement d. A Possible North American Union C. CONCLUSION: THE FUTURE OF U.S. IMMIGRATION LAW Table of Cases TC-1 Index I-1 xx