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Foreign-born persons who have not been naturalized to become U.S. citizens under federal law and the Constitution.
The federal immigration laws determine whether a person is an alien. Generally, a person born in a foreign country is an alien, but a child born in a foreign nation to parents who are U.S. citizens is a U.S. citizen. The term alien also refers to a native-born U.S. citizen who has relinquished U.S. citizenship by living and acquiring citizenship in another country. Aliens are categorized in several ways: resident and nonresident, immigrant and nonimmigrant, documented and undocumented ("illegal").
The United States welcomes a large number of aliens every year. Millions of foreign-born persons travel, work, and study in the country, and hundreds of thousands more choose to immigrate and become U.S. citizens. All of them are subject to federal immigration law. At the simplest level, the law serves as a gatekeeper for the nation's borders: it determines who may enter, how long they may stay, and when they must leave. In totality, of course, its scope far exceeds this simple purpose. Immigration law is concerned not only with borders but with what goes on inside them. It has much to say about the legal rights, duties, and obligations of aliens in the United States, which, in some respects, are different from those of citizens. Ultimately, it also provides the means by which certain aliens are naturalized as new citizens with all the rights of citizenship.
Congress has total authority over immigration. In the legislative branch of government, this power has no equal. The U.S. Supreme
Aliens and Civil Rights
Since the September 11th Attacks on the United States in 2001, the status of aliens physically within the United States or its territories has been decidedly more tenuous. Aliens (non–citizens owing political allegiance to another country) are generally afforded certain fundamental rights and protections under the U.S. Constitution. For example, the due process clause of the Fourteenth Amendment states, in relevant part, that "no person shall be deprived of life or liberty without due process of law." But other constitutional provisions reserve certain fundamental rights to citizens only; for example, the fifteenth and nineteenth amendments guarantee the right "of citizens of the United States" to vote.
International Law uses the term "alien enemy" to indicate a person who is the subject or citizen of a nation hostile to, or at war with, the nation in which the alien is found. The significance is that the person becomes, in time of war, impressed with the character of the enemy. However, the problem for many aliens in the United States is that, while their homeland may not be in a declared war with the United States, it may harbor terrorists or contribute to Terrorism in a manner that renders the distinction moot. How, then, does the United States treat aliens from those countries? As author Roberta Smith noted in her 1997 law journal article, "America Tries to Come to Terms With Terrorism: The United States Anti-Terrorism and Effective Death Penalty Act of 1996 v. British Anti-Terrorism Law and International Response":
"The Fundamental question facing the United States, a democratic society … is how can they constrain terrorism without jeopardizing their value systems (e.g., protecting constitutional and Civil Rights such as prohibitions against unreasonable searches and seizures, and protection of free speech)."
Prior to 2001, alleged terrorist attacks on the United States or on U.S. property included the 1993 bombing of the World Trade Center in New York City; the 1995 bombing of the Murrah Federal Building in Oklahoma City; the 1998 bombings of U.S. embassies in Kenya and Tanzania; the 1999 rocket shelling of U.S. buildings in Islamabad, Pakistan; and the 2000 attack on the U.S.S. Cole. Mostly in response to the Oklahoma bombing, Congress in 1996 passed the Antiterrorism and Effective Death Penalty Act (AEDPA), P.L. 104-132 (codified in scattered sections of 18 U.S.C.), and the Illegal Immigration and Reform and Immigration Responsibility Act (IIRIRA), P.L. 104-208 (codified as amended at 8 U.S.C. 1101). The AEDPA amended immigration laws and streamlined deportation procedures for aliens charged with terrorism.
Before these acts were passed, excludable aliens (those whose right to enter the United States was questioned by the Immigration and Naturalization Service [INS] prior to entry) were distinguished from deportable aliens (those whose entry into the United States was found to be illegal, or whose right to stay in the United States had terminated), and different correlative rights were attached to each. That distinction closely paralleled the terms of distinction between nonimmigrant aliens and illegal aliens. However, the AEDPA and IIRIRA muddied those distinctions, granting power to act against both illegal and immigrant aliens who fell under the acts' criteria.
For aliens, the distinction between punishable acts of terrorism and the constitutionally protected rights of association with, or support for, groups that historically advocate or engage in violence, was becoming increasingly nebulous. The AEDPA and IIRIRA permitted terrorism charges to be brought against an alien for any alleged association with an organization designated as terrorist by the Secretary of State. Moreover, charges of terrorism could rest entirely on confidential reports not disclosed to the subject alien. Likewise, the IIRIRA limited Judicial Review in deportation cases, even when the challenge to deportation rested on First or Fourteenth Amendment constitutional grounds.
Nonetheless, the U.S. Supreme Court, in Reno v. Arab Anti-discrimination Committee, 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d. 940 (US 1999), allowed the challenged AEDPA to stand. The Court again confronted AEDPA issues in Zadvydas v. Davis, 533 U.S. 678, 121 S. Ct. 249, 150 L.Ed.2d. 653 (US 2001), where a narrow majority ruled that deportable aliens with criminal records could not be detained indefinitely when their countries of nationality refused their return. The decision reaffirmed that Due Process Clause protections still existed for this narrowly defined class of persons who faced deportation.
In the wake of the September 2001 attacks, Congress passed the all-encompassing usa patriot act (formally, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act), H.R. 3162 (October 2001). The act, like the AEDPA, affects and amends several other provisions in the U.S. Code. Over 100 pages long, the act contains over 150 sections under ten titles. Of significance to aliens, Section 412 of the act provides for mandatory detention of suspected aliens. Aliens are suspect under the act for any of seven enumerated causes for detention. Further, certain aliens may be held for seven days without being charged and might possibly be detained indefinitely if deemed not removable. The section provides for limited judicial review of such detentions.
The act also required enhanced communications and sharing of data between the FBI, the Justice Department, and the State Department, making it easier to watch and track individuals. The Immigration and Naturalization Service (INS) feeds information into the FBI's crime database, particularly concerning aliens who have received final deportation orders but failed to show for their exit trip. Any subsequent entry of that person's name or data in any other legal system, even for minor traffic offenses, will trigger arrest and deportation. In 2002, the Justice Department announced that younger Middle Eastern men from nations with active al Qaida cells who have ignored deportation orders would be expelled first.
Another key provision of the act was the implementation of an electronic tracking system affecting foreign students. It also began intense review of visa applications of scientists, engineers, and students in technical fields. Many foreign students accepted into scientific or academic programs were ultimately denied visas. The Patriot Act also prohibited illegal aliens, among others, from having access to "select agents" that could be used for harmful purposes.
Following the release of information that seven of the 19 terrorists who boarded planes on September 11, 2001, held drivers' licenses from the Commonwealth of Virginia (although they were illegal aliens), many states began enacting laws to limit the issuance of drivers' licenses to those aliens whose immigration status was legal. Approximately 12 states had similar laws by the end of 2002 (California, Colorado, Florida, Iowa, Kentucky, Louisiana, Minnesota, New Jersey, Ohio, Pennsylvania, South Carolina, and Virginia).
In June 2003, an official U.S. Justice Department report from its inspector general was critical of the detainment of several aliens in the wake of the September 2001 attacks. The 198-page report cited major delays in informing the detainees of the reasons for their detention and criticized the unwritten "no bond" policy of detention. The report also mentioned harsh conditions of confinement and instances of verbal and physical abuse.
"Arab Americans, Civil Rights Leaders Criticize Deportation Initiative." 2002. Press Release. Knight Ridder Washington Bureau.
"Being on the Front Lines Against Terrorism." 2003. National Law Journal 25.
Cohen, Adam. 2002. "Immigration." Time 158, 159.
"Licenses Denoting Noncitizens Criticized." 2002. State Government News 45.
Martin, David A. 2001. "Graduated Application of Constitutional Protections for Aliens: The Real Meaning of Zadvydas v. Davis." Supreme Court Review.
Michaels, C. William, and Jennifer Van Bergen. 2002. "The USA Patriot Act: One Year Later." Truthout.Available online at <www.globalpolicy.org/wtc/liberties/2002/1114patriot.htm> (accessed July 14, 2003).
Mukerjee, Madhusree. 2003. "Boxed Out." Scientific American 288.
Ross, Susan Dente. 2001. "In the Shadow of Terror: The Illusive First Amendment Rights of Aliens." Comm. Law and Policy 6.
"U.S. Report Critical of 9/11 Detainee Treatment." CNN. Available online at <edition.cnn.com/2003/LAW/06/02/detainees/> (accessed on November 20, 2003).
Court has determined that "over no conceivable subject is the legislative power of Congress more complete" (Fiallo v. Bell, 430 U.S. 787, 97 S. Ct. 1473, 52 L. Ed. 2d 50 ). With a few notable exceptions concerning the right of aliens to constitutional protections, the courts have rarely intruded. Presidents have no inherent say; their influence is limited to policies on Refugees. Moreover, congressional authority preempts all state laws and regulations and even addresses the rights of aliens during wartime. In practical terms, these circumstances mean that immigration law is entirely the domain of federal lawmakers, whose say is usually final. Congress alone decides who will be welcomed or turned away, as well as what aliens may and may not do in the United States.
This authority has a long and controversial past. The first laws date to 1875, and their history is rife with discrimination. Lawmakers have always created barriers that favor some aliens over others. At one time, Chinese were not wanted; at others, Japanese; the list goes on and on. Only in the last half of the twentieth century were these widely divergent policies codified under a primary federal statute, the Immigration and Nationality Act (INA) (Pub. L. No. 414, ch. 477, 66 Stat. 163, codified as amended in scattered sections of 8 U.S.C.A., 18 U.S.C.A., 22U.S.C.A., 49 U.S.C.A., 50 App. U.S.C.A.), since 1952 the basic source of immigration law. For decades, the INA was easily tinkered with through amendments and bills. A dazzling number of political reasons made Congress create a patchwork of preferences, exceptions, and quotas, each reflecting who was wanted and who was not. Although somewhat less frequently toward the end of the twentieth century, national origin has often decided whether the United States admitted an alien.
Modern legislation has introduced significant changes. Reform has followed two distinct lines of thought: the need to stem illegal immigration, and the desire to make the law more fair for legal immigrants. Congress tackled the first issue in the Immigration Reform and Control Act of 1986 (IRCA) (Pub. L. No. 99-603, 100 Stat. 3359, codified as amended in scattered sections of the U.S.C.A.). The IRCA toughened criminal sanctions for employers who hire illegal aliens, denied these aliens federally funded Welfare benefits, and legitimized some aliens through an Amnesty program. Related legislation, the Immigration Marriage Fraud Amendments of 1986, 8 U.S.C.A. § 1101 note et seq., cracked down on the popular illegal practice of marrying to obtain citizenship. Fairness issues helped influence the second major reform, the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (codified in scattered sections of the U.S.C.A.). Thoroughly revamping the INA, the 1990 act allocated visas more evenly among foreign nations, eliminated archaic rules, and increased the level of worldwide immigration by 35 percent, to an annual level of 675,000.
The september 11th terrorists attacks on the United States led to a reorganization of the agencies responsible for carrying out the nation's immigration laws, as well as to several revisions in the immigration laws themselves. In 2002, Congress abolished the Immigration and Naturalization Service (INS), replacing it with the Bureau of Citizenship and Immigration Services (BCIS), a part of the Homeland Security Department (DHS). The move became effective March 1, 2003. The attacks also led to the enactment of a number of statutes that seek both to improve the immigration system and to help protect the United States from illegal aliens who may engage in terrorist activities on its soil. The goals of the new statutes were to accelerate immigration processes related to citizenship and benefits, to strengthen border patrol and enforcement, and to ensure detention and removal of illegal aliens.
Administrative Implementation of Immigration and Naturalization Laws
For many years, the INS was responsible for implementing many of the nation's immigration and naturalization laws. The terrorist attacks on September 11, 2001, along with a number of other incidents, led to harsh criticism of the agency. According to a number of lawmakers and other commentators, the INS was the worst managed agency in the federal government. Calls for reforming the agency led in 2002 to a call to abolish the agency. When Congress passed the Homeland Security Act of 2002, Pub.L. No. 107-296, 116 Stat. 2135 (codified as amended in scattered sections of 6 U.S.C.A.), it eliminated the agency and created the BCIS. The primary mission of the DHS is to prevent terrorist attacks, reduce the vulnerability of the United States to Terrorism, and minimize any damage and assist in any recovery should terror-ist attacks occur in the country.
The BCIS does not possess all of the powers that the INS once had. It focuses exclusively on immigration and citizenship issues regarding aliens in the United States. Among the agency's primary responsibilities are the review of petitions by aliens for entry or retention in the country, adjudication of Asylum and processing of refugees, implementation of naturalization procedures, and issuance and renewal of documents. Many of the law enforcement powers that the INS held have been removed from the BCIS, however.
Under the Homeland Security Act, a number of new agencies were created to carry out several other functions. Many of the responsibilities for preventing entry of terrorists into the United States, carrying out immigration enforcement functions, and other issues relating to the protection of U.S. borders were delegated to the Undersecretary for Border and Transportation Services. Other enforcement powers were given to the Bureau of Border Security Enforcement, which is responsible for the detention, investigation, and inspection of aliens under federal law.
Normally, aliens wishing to enter the United States first apply for a visa at one of the over two hundred U.S. consulates and embassies abroad. Visas are documents required for travel to most nations in the world. For example, U.S. citizens may not simply cross the borders of Germany or Zaire without a visa. Aliens, likewise, may not simply cross the borders into the United States; they have no inherent right to enter the country. A visa is the only legal means of entry. In a larger sense, it is the key to understanding the goals and practices of immigration law.
Two types of visas exist: immigrant visas and nonimmigrant visas. It is much easier to obtain nonimmigrant visas, which are primarily issued to tourists and temporary business visitors. In 1993, the INS admitted 21,447,000 nonimmigrants to the United States. Nonimmigrant visas are divided into eighteen main categories ranging from vacationers and diplomatic personnel to athletes, temporary workers, and students. Most categories do not have any numerical limitation. The reasoning is simple: nonimmigrants generally spend a short time and a lot of money in the United States, with obvious benefits for the nation's economic, social, and cultural life, and relatively few demands on its resources. The most significant issue in nonimmigrant visas is whether the alien may work in the United States without violating the terms of the visa.
Immigrants find visas much harder to obtain. Millions of aliens want to live and work in the United States and enjoy the benefits of U.S. citizenship, but only a fraction of them can. Congress sets numerical limits on most types of immigrant visas, under the theory that the country can realistically absorb only so many new people. The 1995 annual ceiling was 675,000, with flexibility for some categories. In addition, many immigrant visas are subject to per-country caps—roughly 25,000 per country, though some countries receive special allowances.
In law, aliens granted visas are said to have obtained entry. The term entry has a special meaning that is different from a mere "physical presence in the United States." An alien might cross the border but still be determined by authorities not to have entered the country. Entry means legal admittance and the freedom from official restraint. Its benefits are tangible: generally, aliens recognized by law to have gained entry have more rights than those who have not gained entry.
Welfare and Immigration
In 1875, the United States passed the first of many restrictive laws intended to keep out certain aliens. A powerful force behind federal legislation has always been widespread hostility toward some new arrivals. Disliking everything from skin color to habits of speech, appearance, and worship, citizens have consistently opposed certain immigrants: the Irish in the 1800s, Jews and Slavs in the early twentieth century, and Southeast Asians subsequently. Illegal aliens have upset many U.S. citizens for decades. Since the late 1980s, a new theme has entered public discussion: opposing Welfare benefits to legal immigrants.
Opponents of providing welfare for immigrants usually voiced such opposition within a general context of opposition to the welfare system. The influential conservative author George Will argued that aliens are brainwashed in much the same way as poor U.S. citizens—into believing that welfare is a normal way of life. "Today immigrants are received in a welfare culture that encourages an entitlement mentality," Will wrote. The notion of an "entitlement mentality" is well-established in the anti-welfare camp, where it is believed that government has erred by creating a mindset of casual acceptance among recipients of benefits. This view does not discriminate between citizens and aliens. It holds that welfare is equally wrong for both because it creates dependence over several generations and leads, as the prominent critic Charles Murray has asserted, to social ills such as crime, drug addiction, and illegitimate children. Moderates, such as President bill clinton, embrace this analysis to a degree, yet remain less inclined than conservatives to support eliminating welfare completely.
Welfare is a jumping-off point for a broader attack on federal immigration law. If welfare is a mistaken policy, it follows that any immigration policy that creates new dependents is itself flawed.
Does U.S. policy create new dependents? The major emphasis of the 1990 Immigration Act (Pub. L. 101–649, Nov. 29, 1990, 104 Stat. 4978) was on family unification: it stressed immigration by relatives of U.S. citizens and resident aliens, the majority of whom were generally granted visas as long as they did not become "public charges,"that is, welfare recipients. Immigrants were supposed to meet this requirement by having a sponsor family that would help feed, clothe, and care for them. Despite this requirement, federal data suggested that many immigrants became public charges anyway. In early 1995, the General Accounting Office (GAO) reported that 6 percent of legal immigrants were receiving assistance, as opposed to only 3.4 percent of citizens.
To the most outspoken critics, the United States was clearly welcoming the wrong immigrants. Instead of opening its doors to just anyone, they argued, the nation should be more selective. "Today's laws," Investor's Business Daily editorialized in 1995, "… perversely favor immigrants from the Third World over others with higher skills and greater under-standing of Western culture." The newspaper bemoaned this "low-skilled tide" for "push[ing] down the wages of poorer Americans." Not only did the conservative financial press make this argument; the left-wing magazine of opinion, The Nation, also repeated it, with a slightly different emphasis on race. Immigrants have "pushed blacks out of the marketplace altogether," the writer Wanda Coleman asserted in 1993. The economist Simon Kuznets and the author Peter Brimelow have tied the relative economic progress of African Americans to the dramatic decline in immigration between 1920 and 1965.
Some advocates of immigration reform went farther. The American Enterprise Institute, a neo-conservative think tank, called for dumping the family-reunification goal for a system based on "designer immigration": admitting better-educated immigrants. This case is made in detail in a 1995 book called The Immigration Wave: A Plea to Hold It Back, by Brimelow, himself an immigrant from England. Brimelow contended that the future is bleak: by the year 2050, the U.S. population will be nearly 400 million, and over one-third of it will be low-skilled immigrants who arrived after 1970. Unlike the one-third of the immigrant population that came during the great wave between 1890 and 1920 and then returned home, these men, women, and children will have stayed because of the welfare system. "The failures are no longer winnowed out," Brimelow wrote. "Instead, they are encouraged to stay—at the expense of the American taxpayer." Only a designer approach can prevent a "bureaucratically-regulated racial spoils system."
Of course, there was another side to the debate. Reviewing The Immigration Wave, the author Richard Bernstein criticized Brimelow for ignoring "the genuinely moving spectacle of millions of people making better lives for themselves in this country than they could in the countries they came from."Writing in the New York Times, Nathan Glazer expressed regret over an increasingly agitated tone in the debate: "[W]e will all have to keep our heads and remember that we all came from someplace else." Such sentiments have long informed arguments in favor of immigration—namely, that it is generous and humanitarian.
Sharper attacks on the reformers came from the political left. In 1993, the New Left Review defended immigration by blasting public selfishness in the form of "the fiscal constraints on public spending imposed by conservative, suburban voters." Instead of restricting immigration, the Progressive magazine urged President Clinton to "try to ease the economic deprivations and political persecutions the United States has fostered around the globe, which themselves have propelled much of the immigration to this country."
This debate set the stage for the changes in welfare for legal immigrants that were made in the 1990s. The reform efforts began in California: in 1994, nearly two-thirds of the state's voters passed Proposition 187 (CA Prop. 187, 1994 Cal. Legis. Serv. Prop. 187 [WEST]), a law intended to deny education and public assistance to illegal aliens. The biggest appeal of Proposition 187 was saving tax dollars. Concerns about heavy state expenditures prompted California and Florida to bring unsuccessful lawsuits in the early 1990s, demanding reimbursement from the federal government, alleging that the federal failure to enforce immigration laws had saddled the states with incredible debts. Although the proposition was not aimed at legal immigrants, its success with voters prompted some observers to regard it as a symptom of increasing intolerance toward immigration in general. However, a federal district court decision in 1995, League of United Latin American Citizensv. Wilson, 908 F.Supp. 755, C.D.Cal (1995), prevented it from going into effect, by ruling that most of the law was preempted by federal immigration law.
In 1996, the federal government passed the far-reaching welfare reform act known as the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) (Pub. L. 104–193 Aug. 22, 1996, 110 Stat. 2105). The new welfare law particularly affected immigrants. Under the law, immigrants who entered the United States legally after August 22, 1996, were prohibited for at least five years from receiving federal, non-emergency, means-tested benefits, including Medicaid and the services funded by federal block grants. Additionally, immigrants were barred from two other programs, Supplemental Security Income (SSI) and food stamps, until they either became United States citizens or worked in the country for 40 qualifying quarters (8 USCA § 1601 et. seq.).
The reforms did not stop there. After the five-year ban expired, it was up to the states to determine what welfare to give new immigrants. States had the option of denying non-emergency Medicaid to most new arrivals even after the five-year ban was over. States could also bar immigrants from participating in any of the benefit programs financed by Title XX block grants, such as Child Care, in-home assistance for disabled persons, and support services for abused and neglected children. Finally, states could exclude most current and future immigrants from other state-funded benefits, including Temporary Assistance for Needy Families.
Three groups of noncitizens were exempted from disqualification: (1) Refugees, Asylum seekers, and aliens granted withholding of deportation during the first five years after receiving the immigration benefit; (2) permanent resident aliens if they have worked 40 qualifying quarters as defined by the social security act; and (3) an alien and his or her family if the alien lawfully resides in the United States and is on active duty in the military or has received an honorable discharge. Proponents suggested a variety of reasons for enacting these reforms, most embodied in the arguments against welfare for immigrants listed above. Some also alluded to a monetary factor: the immigrant restrictions accounted for almost half the total federal savings from the welfare reform law.
The provisions of the PRWORA that deal with immigrants were generally seen as the harshest part of the act and were opposed by a wide variety of groups. President Bill Clinton, who signed the PRWORA into law, made it clear he dis-agreed with its provisions for cutting immigrant benefits and campaigned against them in the 1996 election. Immigrant rights groups filed Class Action lawsuits, and the state of Florida filed its own lawsuit, worried that its taxpayers would end up supporting immigrants who had been cut off from federal benefits.
As a result, Congress modified some of the harsher aspects of the law. As part of the Balanced Budget Act of 1997, the law restored SSI to those immigrants who were receiving SSI as of August 22, 1996. It also allowed immigrants residing in the United States on August 22, 1996, to be eligible for SSI if they became disabled in the future. New immigrants were still not eligible for SSI, nor would earlier immigrants be eligible in the future based on their age.
Then, in 1998, Congress decided to partially restore food stamps by reinstating eligibility for legal immigrant children and elderly persons who were legal immigrants as of August 22, 1996. This action readmitted approximately 250,000 immigrants who were excluded under the 1996 law. In addition, some states, such as Washington, have attempted to restore at least partial food stamp benefits to immigrants who were not covered by the 1998 legislation.
But other attempts to restore benefits at the federal level have failed, for example one in 2002. Interestingly, at least one study released by the Center for Immigrant Studies in 2003 claimed that the welfare reform act had failed to reduce immigrant usage of welfare programs. The study found that while immigrant usage of programs such as food stamps and Temporary Assistance for Needy Families had fallen, this had been offset by increased use of Medicare by immigrants, with the net percentage of immigrants using welfare programs remaining the same as it was before welfare reforms were passed in 1996.
Camarota, Steven A. 2003. "Back Where We Started: An Examination of Trends in Immigrant Welfare Use since Welfare Reform." Center for Immigration Studies (March).
Dodson, Marvin E. 2001. "Welfare Generosity and Location Choices among United States Immigrants." International Review of Law and Economics 21 (March).
McCurdy, Thomas, and Margaret O'Brien-Strain. 1998. "Reform Reversed? The Restoration of Welfare Benefits to Immigrants in California." Public Policy Institute of California.
Denial of entry is called exclusion. Dating from the earliest attempts to control immigration, this controversial concept holds that it is not in the national interest to admit some persons. Far-reaching grounds bar applicants for reasons related to health, crime, national security, and other variables. As part of the process for reviewing visa applications, consular officials decide whether any ground for exclusion applies. If the officials decide that none does, a visa may be granted, but entry is still not certain. The Bureau of Border Security Enforcement can decide otherwise when the alien actually attempts to cross the border. In practice, exclusion occurs every day.
Excluded aliens can argue their case in an exclusion hearing. This procedure differs greatly from a deportation hearing, which involves an alien who has already entered the United States. Deportation hearings are actually more advantageous: unlike exclusion proceedings, deportation hearings only follow from specific allegations and aliens subject to deportation have more forms of legal relief. In an exclusion hearing, the burden is always on the alien to prove his or her right to enter the United States. The alien is entitled to many attributes of procedural due process, and aliens who lose may also seek asylum (refuge or protection, usually for political reasons) in some instances.Excluded applicants seeking to cross the border may be kept in detention facilities until their hearings have been held. In some cases, officers may choose to release an alien on Parole pending further review. Parole allows an alien to travel away from the border and detention facilities temporarily, for reasons such as preventing the separation of families. As a limited right, parole is not equivalent to entry.
Each applicant for a nonimmigrant visa must demonstrate that she or he has no intention of immigrating. Generally, the application requires detailed information about the alien's native residence, place of employment, reason for traveling to the United States, and destination. Most non-immigrant visas do not have annual numerical limits, but the INA does restrict those for professionals to 65,000; temporary agricultural work-ers to 66,000; and performing athletes, artists, and entertainers to 25,000.
Nonimmigrant aliens apply for a visa from one of 18 categories, each assigned a letter, as follows:
A. Career diplomats;
B. Temporary visitors for business and pleasure;
C. Aliens in transit;
D. Crew members;
E. Treaty traders and investors;
G. International organization representatives;
H. Temporary workers;
I. Foreign media representatives;
J. Exchange program visitors;
K. Fiancées, fiancés, or children of U.S. citizens;
L. Intracompany transferees;
M. Students in nonacademic institutions;
N. Parents and children of special immigrants;
O. Aliens with extraordinary abilities;
Q. Participants in cultural exchange programs;
R. Religious workers. The visas are further categorized by numbers—for example, A-1, A-2, and so forth.
Aliens use specific procedures for the particular visa sought. Broadly speaking, these fall into three classes: (1) applications that do not require contact with anyone in the United States (visas A, B, C, D, E, G, I, and O); (2) applications that require proof of acceptance in an authorized program (visas F, J, M, and Q, and visas for special education trainees); and (3) applications that require approved petitions which provide the basis for the alien's presence in the United States (visas H, K, L, P, and R). Over half of all visas require supporting documents at the time of application. For example, an alien hoping to work temporarily in the United States as a regis-tered nurse needs an employer's petition to obtain an H-1A visa. Similarly, an alien planning to study at a university must present proof of acceptance at the university for an F-1 visa. An alien engaged to a U.S. citizen will never see a K visa—let alone get married—unless the citizen has filed a petition. In all cases, consular officials make the final decision. Generally, no Judicial Review is available.
Once admitted into the United States, aliens are inspected by Bureau of Border Security Enforcement officers, who give them a form I-94 indicating the length and terms of their stay. Most aliens ultimately return to their country of origin. Some wish to stay and immigrate. Generally, all nonimmigrant visa holders who are in the United States may apply to have their visa status adjusted to permanent-resident status, with the exception of crew member visa (visa D) holders. To qualify, the alien must have been inspected and admitted or paroled into the United States and must meet standard eligibility requirements for obtaining an immigrant visa, and an immigrant visa must be immediately available at the time the application is filed. In addition, the alien must not have been in an unlawful status or, with few exceptions, have accepted any unauthorized employment.
Immigrant visas come in two main categories: visas subject to numerical limitation and visas not subject to numerical limitation. The term numerical limitation means several things. First, it refers to the overall limits set by Congress on immigrants. Second, it involves the use of per-country caps. Third, and most important, numerically limited visas are organized along a system of preferences that favors certain aliens over others. Every immigrant wants the best shot at a visa, but qualifying for the easiest category—visas not subject to numerical limitation—is quite difficult. Congress has reserved this category for immediate relatives of U.S. citizens, resident aliens returning from temporary visits abroad, and former U.S. citizens. Consequently, for the vast majority of aliens who want to immigrate, demand is much higher than the relatively short supply prescribed by law.
Though having no numerical limitation makes it easier to obtain, the immediate-relative visa still carries strict limitations. Generally, the term immediate relatives means children, spouses, and parents, but unique rules apply to children and spouses. To qualify as a child, the person must be unmarried and under 21 years of age. The law is also concerned with how the parent came to have the child, and it applies special age restrictions to legitimate and illegitimate children, stepchildren, adopted children, and orphans. Spouses of U.S. citizens must pass the most demanding tests. The law requires the alien to have a "valid and subsisting marriage" with the citizen under the laws of the country where the marriage took place and considers a wide variety of marriages insufficient for granting the visa. This severity is an answer to the common abuse of marriage to obtain citizenship. The Immigration Marriage Fraud Amendments of 1986 impose criminal penalties for violations. The Fraud Amendments also impose a two-year conditional residency requirement before alien spouses and their sons and daughters may petition for permanent-resident status.
Three categories exist for visas subject to numerical limitation: family sponsored, employment related, and so-called diversity immigration. The last is a special category created to reverse the drastic reductions in immigration from European countries, particularly Ireland. Effective after 1995, a formula was used to determine whether in the previous five years a country had been "underrepresented." If so, an alien from that country is eligible for one of 55,000 visas annually allocated to diversity immigrants. Aliens may apply once a year in a lottery, making this a highly uncertain way to obtain a visa. Not everyone is eligible; applicants must generally have a high school education and two years of work experience. Different goals make more visas available to Hong Kong: because of uncertainty over the transfer of the country to China, the law allotted 20,000 visas annually to certain Hong Kong citizens who were employees of U.S. businesses, their spouses, and their children.
The primary types of numerically limited visas—family sponsored and employment related—are organized into preference categories. Preference means that the law allocates visas to certain aliens over others in order to promote such goals as preserving families, protecting U.S. jobs, and admitting immigrants most likely to benefit the nation. How the law ranks aliens can be seen from the numerical limits on each category. Families are allotted 226,000 visas annually, with a somewhat flexible maximum of 465,000 in four preference categories. Only 140,000 employment-related visas are allotted, in five preference categories. Unused visas from higher preference categories are reallocated to the lower categories.
Preference in family-sponsored visas is decided by the nature of an alien's relationship to the petitioner:
First preference: Unmarried sons and daughters of U.S. citizens, who are too old to qualify (age 21 or older) for the nonnumerically limited immediate-relative visa: 23,400 visas plus any unused visas from the other family-sponsored preference classes.
Second preference: Spouses, children, and unmarried sons and daughters of aliens who are lawful permanent residents: minimum of 114,200 visas. Spouses and children are allocated 77 percent of the visas; unmarried sons and daughters (at least 21 years old), 23 percent.
Third preference: Married sons and daughters of U.S. citizens: 23,400 plus any unused visas from the first-and second-preference classes.Fourth preference: Brothers and sisters of U.S. citizens, if the citizen is at least 21 years old: 65,000 plus any unused visas from the three higher classes.
Employment-related preferences are not based on any familial relationship. They focus on educational attainment and stress occupations that are highly specialized. Their levels are set as percentages of the worldwide maximum of 140,000.
First preference: Priority workers are allotted 28.6 percent. These are persons of "extraordinary ability" in the sciences, arts, education, business, or athletics; outstanding professors and researchers; and multinational executives and managers.
Second preference: Professionals holding advanced degrees or persons of exceptional ability in the sciences, arts, or business are allotted 28.6 percent.
Third preference: Skilled workers in short supply, professionals holding baccalaureate degrees, and other workers in short supply are allotted 28.6 percent.
Fourth preference: Certain special immigrants: 7.1 percent. These are mainly religious workers, as well as former employees of the U.S. government and international organizations.
Fifth preference: Employment creation immigrants are allotted 7.1 percent. These are investors who will create at least ten U.S. jobs by investing in a new commercial enterprise benefiting the U.S. economy, especially in areas of low employment. Generally, the minimum required investment is $1 million.
Though all potential immigrants face rigorous application requirements, certain categories are more exacting. Petitions are needed for visas based on the immediate-relative, family-sponsored, and employment-related preference categories. These must be filed in the United States by citizens or resident aliens on behalf of the applicant and then approved by the BCIS. (Under a significant exception, anyone may petition on behalf of Amerasian children of U.S. service members.) Many of the employment-related preference categories also need an employer's petition. As a safeguard intended to protect U.S. jobs, the employer is first required to seek an official form of permission called labor certification. This is approved only if (a) sufficient qualified workers are not available and (b) employment of the alien will not adversely affect wages or working conditions of similarly employed U.S. workers. The department of labor defines the occupations for which employers may seek certification in two groups: the professions and unskilled labor. Only rarely is an unskilled labor application approved. Furthermore, the job for which the employer seeks labor certification must also be permanent in nature.
After approval of the labor certification or preference petition, or both, the actual visa application process begins for an alien who resides outside the United States. This process takes place at the appropriate U.S. consulate, where authority to approve or deny an application belongs exclusively to consular officials. If eligible, the alien must submit considerable documentation. The required documents include biographical reports; police, court, prison, and military records; birth and marriage certificates; passports; photographs; and evidence that the alien will not become a public charge while in the United States. The alien gives the consul these documents and the results of a medical examination. If all is in order, the applicant signs a formal application under oath.
The consul usually rules on the application the same day. The principal consular officer reviews any refusal to issue a visa, but no formal review is available after that. The State Department has only limited authority over visa denials. The applicant has one year to overcome the objection to the visa on which a refusal was based, or the entire visa application process must be started anew. The Burden of Proof is always on the applicant to establish eligibility. If the applicant passes, the consul issues an immigrant visa. Under certain circumstances, immigrants unable to travel immediately may receive new visas later.
Once the immigrant actually arrives in the United States, an immigration officer again independently examines the alien's visa eligibility. This officer may exclude the alien in spite of the visa. In that case, the alien may be temporarily detained, either aboard the vessel of arrival or in the United States pending a ruling. If the officer finds the visa in order and admits the alien, the visa is retained by the BCIS as a permanent record of admission. The alien is then issued a form I-151, commonly known as a green card (even though its color is now off-white), and becomes a permanent-resident alien. Although it is most often thought of as an employment permit, the green card was originally designed to serve as evidence of the alien's status as a permanent resident of the United States.
Rights of Aliens
Aliens enjoy many of the rights afforded to citizens. They can claim general protections under the Constitution and the Bill of Rights. On the other hand, aliens cannot vote or hold federal elective office—rights belonging solely to citizens. Further legal rights depend on an alien's status: use of the courts, ownership of land, obtaining a public education, and qualifying for federal welfare benefits are each to a varying degree restricted to lawful resident aliens. Similarly, the liability of an alien to pay taxes depends on resident or nonresident status. Resident aliens pay taxes in much the same way that citizens do; nonresident aliens may qualify for special exemptions. Aliens can also be required to obtain a so-called exit permit to ensure that all taxes owed are paid before leaving the country.
In addition to following laws generally, aliens also have special duties. Some visas impose additional requirements such as notifying the BCIS of changes of address and refraining from engaging in paid employment. Criminal penalties apply to some misconduct of aliens and citizens who abet them, including Misrepresentation or fraud in obtaining immigration status, unlawful entry, and transporting or concealing an undocumented alien. For aliens who violate the law, the penalty is commonly deportation. Citizens who bring aliens into the country illegally may face a fine, imprisonment for up to five years, or both, for each alien they have illegally transported.
Although the Supreme Court has held that Congress alone makes immigration law, historically, states have placed harsh restrictions on aliens. In 1886, the Supreme Court struck down a San Francisco ordinance effectively banning Chinese laundries, in the landmark case yick wo v. hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220. Yick Wo established that the Fourteenth Amendment's Equal Protection Clause applied to aliens. But states simply ignored it, and, for decades, the Supreme Court found numerous ways to uphold discriminatory restrictions.
In state cases, a turning point came in 1971. In Graham v. Richardson, 403 U.S. 365, 91 S. Ct. 1848, 29 L. Ed. 2d 534, the Supreme Court held that aliens could not be denied state welfare benefits. Most important, the Graham decision struck a blow against state discrimination in general: it said that Equal Protection cases involving aliens would be subject to the same Strict Scrutiny applied in racial discrimination cases. In a series of decisions that followed, the Court removed numerous state barriers—laws that barred all aliens from competitive civil service employment, engineering licenses, and licenses to practice law. Nonetheless, through the late 1970s and 1980s, it backed away from the strict scrutiny standard: it upheld New York's limitations on the certification of alien public school teachers (Ambach v. Norwick, 441 U.S. 68, 99 S. Ct. 1589, 60 L. Ed. 2d 49), for example, and California's restriction of peace officer jobs to citizens (Cabell v. Chavez-Salido, 454 U.S. 432, 102 S. Ct. 735, 70 L. Ed. 2d 225 ). One key exception was Plylerv. Doe, 457 U.S. 202, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982), granting the children of undocumented aliens the right to attend public schools.
Naturalization and Citizenship
Resident aliens become citizens through naturalization. To apply for naturalization, most aliens must meet several requirements. They must (1) reside continuously in the United States for five years as lawfully admitted permanent residents; (2) be physically present in the United States for at least half of the time before filing the petition for naturalization; and (3) reside for at least three months within the district in which the petition is filed. Aliens must generally be at least 18 years of age, although parents who are citizens can file on behalf of younger children. Literacy and educational standards must be met: unless physically unable to do so, aliens must be able to speak, understand, read, and write simple English. They have to show "good moral character"—an ambiguous term that includes not being a drunkard, gambler, or convict jailed for 180 days or more. They must exhibit an attachment to constitutional principles, essentially proved through a belief in representative democracy, the Bill of Rights, and political processes.
To ascertain an applicant's fitness for naturalization, a naturalization examiner conducts an informal hearing. The examiner questions the applicant and witnesses who can testify on her or his behalf and then renders a decision. If denied, the applicant may reapply with Legal Representation; in some cases, federal district courts may determine naturalization or remand the matter to the BCIS with instructions. Finally, if approved, the applicant is granted citizenship at a hearing in open court after taking an oath of allegiance to the United States.
Deportation is the expulsion of an alien from the United States. In theory, it is a civil proceeding rather than a punishment, though those who are deported may certainly see it as a punishment. It is designed to remove undesirables as defined under the INA. As in most aspects of immigration law, the Supreme Court has left total authority over deportation to Congress. Merely allowing aliens to enter the country "is a matter of permission and tolerance," the Court has said, leaving the government free rein "to terminate hospitality" (Harisiades v. Shaughnessy, 343 U.S. 580, 72 S. Ct. 512, 96 L. Ed. 586). Deportation provisions apply to all aliens whether they have legally or illegally entered the country, with several specific exceptions ranging from ambassadors to employees of international organizations such as the United Nations. Citizens cannot be deported, but denaturalization proceedings can be brought against a naturalized citizen and can then lead to deportation.
Five major broad categories of grounds for deportation cover (1) being excludable at the time of entry or adjustment of status; (2) committing criminal offenses; (3) failing to register and falsifying documents; (4) posing a security risk and related grounds; and (5) becoming a public charge of the state. Many more grounds for deportation follow from these; the first category alone establishes nine classes of aliens excludable at the time of entry. Since the Technical Amendments Act of 1991, these grounds have expanded with the addition of attempting or conspiring to commit a crime. Deportation is far-reaching in additional ways: frequently, the BCIS applies the statutes retroactively, so that aliens may be deported for conduct that was not a ground for deportation at the time they committed the act. Many of the provisions also depend on when the alien entered the United States, and still others make aliens deportable for acts they committed prior to entry.
The mechanism of deportation involves broad official powers. Officers of the Bureau of Border Security Enforcement have considerable power to investigate without search warrants, arrest, and detain suspects within one hundred miles of the U.S. border. Aliens then receive a deportation hearing conducted by an immigration judge. They are entitled to legal counsel—though not at government expense—and the basic rights of due process, as well as the rights to examine evidence, present new evidence, and cross-examine witnesses. If the judge finds an alien deportable, various avenues of relief are available, including administrative and judicial appeals. Furthermore, several forms of discretionary relief may entitle the alien to leave voluntarily, claim suspension of deportation, apply for an adjustment of status, seek asylum as a refugee, or pursue numerous other options.
Deportation often causes the U.S. citizen children of aliens to leave the United States. These children are not technically deported and may ultimately choose to return.
Aliens generally want to avoid deportation at all costs. Even if an immigration judge rules that an alien is deportable, the alien may still fight the deportation order. This is called seeking relief from deportation. Broadly speaking, two kinds of options exist: filing an appeal and seeking "discretionary" relief. Whichever method the alien chooses, time is of the essence. She or he usually must seek relief before the BCIS begins executing the deportation order.
Appeals from deportation rulings operate on three levels. First, the alien's attorney may file a motion to reopen the case, also called a motion to reconsider. It is used chiefly to present new evidence, and strict rules govern its usage. Courts frown on such motions because of the potential for unnecessarily delaying deportation, and the judge may deny the motion if the alien has previously failed to establish a sufficient case. In any event, the motion will not stop a pending deportation order. Second, aliens may go to the higher authority of the Board of Immigration Appeals (BIA). Filing a so-called administrative appeal with the BIA automatically delays the execution of a pending deportation order. The BIA decision to uphold the deportation order, throw it out, or send the case back to the immigration judge is final. Within six months, however, the alien may appeal a decision of the BIA to a federal court for judicial review. Courts may hear the case if there have been violations of the alien's constitutional rights.
As the name implies, discretionary relief is granted at the discretion of a judge. If granted, it will eliminate or postpone the execution of a deportation order. Generally, the alien must apply for discretionary relief during the deportation hearing, although some forms of relief may be sought before the hearing begins. In a two-part process, the judge first determines whether the alien is eligible under statutory requirements and then at the judge's discretion decides whether to grant it. Mere eligibility is not a guarantee of relief.
Several forms of discretionary relief exist. One very popular form is voluntary departure, which permits the alien to leave the United States under his or her own power, seek a destination, and even return to the selected country immediately, thus avoiding the stigma and penalties of deportation. Suspension of deportation helps the alien who has been in the United States for a long period of time and for whom deportation would result in harsh consequences. Qualifying for suspension relief is difficult: the alien must have been continuously present in the United States for seven to ten years, depending on the nature of the conduct that rendered the alien deportable—for example, overstaying a visa versus committing a felony; must have been a person of good moral character during that time; and must demonstrate that he or she or the alien's U.S. citizen spouse, parent, or child would suffer extreme hardship (under the seven-year rule) or exceptional and extremely unusual hardship (under the ten-year rule) if the alien were deported. Another form of relief, adjustment of status, is available to an alien whose status would otherwise let him or her remain in the United States: if an alien is admissible for permanent residence, he or she may seek this relief to avoid having to go abroad while an immigrant visa is processed.
Asylum, available only to aliens who qualify as refugees, differs from other forms of discretionary relief. First, it does not guarantee an alien permanent residence but merely grants the right to reside and work in the United States temporarily, for as long as the alien is entitled to refugee status. Under the INA, a refugee is an alien unwilling or unable to return to her or his nation because of a well-founded fear of persecution on the ground of race, religion, nationality, membership in a particular social group, or political opinion, or an alien whose nationality has been given refugee status by the president of the United States. Asylum may be sought at any time during a deportation or exclusion hearing and can sometimes lead within one year to the granting of permanent residence.
Closely related to asylum is withholding of deportation. Although the grounds for withholding are similar to those for asylum, this form of relief may only be sought during a deportation hearing, and its duration is always temporary. Aliens granted asylum or withholding of deportation may qualify for adjustment of status and thereby become lawful permanent residents or citizens.
Finally, a few kinds of discretionary relief are used in exceptional circumstances. A stay of deportation is a temporary hold on a deportation order, commonly used in connection with a motion to reopen a case or pending an application for permanent residence. Registry, available only to aliens who entered the United States before January 1, 1972, is used to create a lawful record of admission when no record is available. Further relief includes deferred action status,a nonstatutory guideline contained within BCIS instructions to district directors; it amounts to an indefinite hold on any deportation action based on sympathetic factors. Rarely used is estoppel, in which courts stop deportation orders because of government misconduct.
Treatment of Aliens after September 11, 2001
Since the September 11th attacks, reforms in the immigration system have sought to accomplish two broad, yet competing, goals. On the one hand, many of the new laws relating to aliens have sought to accelerate the processes pertaining to the citizenship and naturalization benefits. The former INS was heavily criticized for its inefficiency in carrying out the provisions of the IRA, and the new agencies that replaced the INS have been charged with the responsibility of improving this system.
On the other hand, the new laws have sought to improve immigration procedures to identify potential terrorists and other illegal aliens. The first statute among several that enhanced law enforcement procedures for dealing with terror-ist attacks was the USA PATRIOT Act of 2001, Pub. L. No. 107-56, 115 Stat. 272. This legislation and subsequent revisions through statute and regulation have sought to improve procedures for identifying known terrorists and suspected criminals at the various ports of entry.
The dual concerns of immigration policy—that is, expediting the applications of aliens who wish to enter the United States lawfully versus the protection of the country from those who wish to inflict harm—were also present when the INS possessed powers both to implement immigration services and to enforce the immigration policies. The extensive background checks of aliens caused a backlog of applications, slowing the process that was perceived to be inaccurate and inefficient even prior to the attacks. Processing of immigrant applications took as long as three years in some cases. The administration of President george w. bushhas sought to mandate a six-month standard for the processing of these applications.
The detention of aliens under the new laws has also caused concerns about the protection of the Civil Rights of legal aliens. In the months that followed the September 11th attacks, thousands of suspect aliens were detained by the INS and officials of the Justice Department. Nevertheless, protection of U.S. citizens and land within the country has been a primary concern under the Bush administration, and many observers have noted that improved screening of aliens could have prevented the terrorist attacks in 2001.
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McWhirter, Robert James. 2001. The Criminal Lawyer's Guide to Immigration Law: Questions and Answers. Chicago: American Bar Association.
Raskin, Jamin B. 1993. "Legal Aliens, Local Citizens: The Historical, Constitutional and Theoretical Meanings of Alien Suffrage." University of Pennsylvania Law Review 141 (April): 1391-1470.