CHAPTER 1: HISTORY OF U.S. IMMIGRATION
LAW AND POLICY
2004 © David Weissbrodt and Laura Danielson
§ 1-1 COLONIAL IMMIGRATION
Because an immigrant is defined by Black's Law Dictionary as one who leaves a country to settle permanently in another to live, one tends to think of United States immigration as dating from the nation's inception. Most anthropologists, however, believe that the first newcomers to the region that is now the United States entered from Asia over 20,000 years ago across the land bridge where the Bering Strait now lies. These people first settled the western regions, and distinct cultural groups lived in areas spanning to the Atlantic Ocean before any European explorers or later settlers arrived.
Much later, in settling the English colonies, immigrants arrived freely and were at first welcomed by other Europeans already settled. Immigration was limited principally by the cost of travel, disease, and conflict with indigenous inhabitants. By 1640, the population of the colonies had reached approximately 25,000. Population records can only suggest the rate of increase because no immigration records were kept.
The newcomers to the colonies in the years before the American Revolution came from many places and for diverse reasons. Most Europeans C English, French, German, Dutch, Spanish, and Portuguese C came for economic reasons or to avoid religious persecution in their homelands.
Unfortunately, some of these immigrants began to encounter that same hostility and persecution in the colonies. The Quakers set themselves apart in Pennsylvania and the ScotchBIrish Presbyterians moved west to settle the Mississippi frontier when they received a cold reception in the East. Others, like the French Huguenots, assimilated more easily. Some religious restrictions were adopted by individual colonies attempting to exclude Quakers and Catholics or to subject them to discriminatory taxes. The colonial restrictions were somewhat effective in discouraging certain immigrants.
Others came involuntarily as punishment or under servitude. Slaves from Africa were forcibly brought. Children were kidnapped from English slums and sold for American labor. English judges were empowered to send both vagrants and felons to the colonies as punishment. These groups also met with disfavor and colonial restrictions; colonies began legislating to exclude "paupers" and "criminals" as early as 1639. Those restrictions excluding "public charges" embraced not only people sent by English courts but also the poor and the diseased who came voluntarily. Southern colonies especially tried to restrict criminals, because that region had received the greatest influx of the 50,000 sent under penal sanction during the fifty years before the Revolution.
These restrictions illustrate the hostility felt toward newcomers by colonists who had just arrived themselves. Although aimed primarily at those banished from England and at public charges who would be added to relief rolls, these restrictions were also a product of religious and national rivalries imported from Europe. Despite these attempts, the colonies were generally unable to check the influx of migrants, for they lacked both legal authority and a centralized administrative structure. In addition, immigration was still favored to the extent that the colonies needed more people for labor and security. To outsiders, the New World held great promise. Accordingly, by the year 1776, the population of the colonies stood at about 2,500,000, or 100 times the 1640 figure.
The colonial immigration restrictions may have influenced the later legislation of the United States on this subject. In fashioning its laws, the federal government eventually excluded the same general classes of immigrants as did the colonies. The federal legislation also used certain colonial sanctions on immigrants, such as head taxes on individuals and deportation of undesirable persons.
§ 1-2 EARLY U.S. IMMIGRATION POLICY
Although colonial attitudes continued after the American Revolution, extensive federal legislation dealing with immigration was not enacted for some time, primarily for two reasons. First, for almost one hundred years, it was unclear whether the federal government was even intended by the Constitution to have power to regulate immigration. Second, the United States officially favored unrestricted immigration for about the same period of time after the nation's birth.
The locus of power over the subject of immigration was not definitively identified in any early proclamation of the new government. Under the Articles of Confederation, each state apparently determined its own immigration policy, but there was confusion over the status of prior colonial enactments. The United States Constitution, adopted in 1789, granted Congress broad power to regulate foreign commerce in Article I, section 8, but it was not clear whether foreign commerce included immigration. Not until 1875 did the U.S. Supreme Court in Henderson v. City of New York (Sup.Ct.1875) declare state restrictions on immigration to be unconstitutional, as an infringement on the federal power over foreign commerce.
During this long period of uncertainty, Congress did not generally attempt to invoke its power to regulate immigration, but principally passed a series of acts regulating naturalization and a few other nonrestrictive pieces of legislation. Congress adopted the first such law in 1790, liberally granting citizenship to immigrants. Subsequent legislation, however, required increasingly longer periods of residency as well as the renunciation of former allegiances and titles of nobility. In 1798 Congress authorized the President to expel "dangerous" aliens in the Alien Friends Act and the Alien Enemies Act, but the Alien Friends Act expired without extension after two years. A new Naturalization Act in 1802 re-established the provisions of a 1795 act, creating a five-year residency requirement for citizenship. In addition, the "passenger acts" of 1819, 1847, 1848, and 1855 set certain minimum space and provisions standards for overseas vessels. Further, in 1808, Congress enacted a law forbidding the importation of slaves.
Apart from piecemeal legislation, the first one hundred years of the nation's existence can be characterized as a period of unrestricted immigration. The spacious frontier and the need for labor were the primary reasons for this unrestrictive policy. No official immigration records were kept until 1820, but it is estimated that 250,000 immigrants arrived in the United States between 1790 and 1820. From 1820 to 1880, while the issue of power over immigration was being debated, over 10 million people arrived.
Discontent with the open immigration policy increased with the rate of immigration and with change in the composition of immigrants. Between 1820 and 1880, political conditions and economic devastation brought over 2.8 million Irish immigrants to the United States. German Catholic immigrants came in large numbers during the European depressions of the 1840's. In a predominantly Protestant country, the Catholic Irish and Germans were not well accepted. The anti-Catholicism that had prevailed in colonial days resurfaced. Several groups and overlapping political parties, including social reformers, Protestant evangelicals, the Nativists, the Order of the StarBSpangled Banner, and the KnowBNothing Party, campaigned for legislation halting immigration and prohibiting even naturalized immigrants from participating in the nation's political process. These groups were somewhat successful at the state level, but failed at the federal level because the Irish and Germans constituted a large voting block. Politicians at the national level actively sought the vote of these and other newly arrived groups. Hence, federal policy, and apparently the majority of the nation, continued to favor immigration.
Eventually, the Civil War drowned the protests of groups like the KnowBNothings. The need for labor in both North and South was magnified during these war years; an 1864 Act even facilitated immigration by validating contracts pledging future wages in payment for overseas passage.
§ 1-3 RESTRICTION BEGINS: EXCLUDING THE UNWANTED
After the Civil War, federal law began to reflect the growing desire to restrict the immigration of certain groups. The facilitating act of 1864 was repealed in 1868, and in 1875 Congress passed the first restrictive statute. That statute, borrowing from earlier colonial legislation, barred convicts and prostitutes from admission. These limits were the first of many "quality control" exclusions based on the nature of the immigrants themselves. The list of unacceptable types of immigrants would continue to grow in subsequent enactments.
The 1875 Act also attempted to solve the new problem faced by the western states. Westward expansion demanded huge numbers of laborers for work in the mines and on the railroads. Imported Chinese labor had been used since about 1850, and tension between the Chinese workers and the settlers of European descent ran high. Chinese labor depressed wage scales and some Chinese women were being imported as prostitutes. The Chinese did not assimilate and the European groups did not tolerate the cultural differences. In response, Congress adopted a law outlawing so-called "coolie labor" contracts and immigration for lewd and immoral purposes. Many Chinese, however, continued to immigrate voluntarily or were routed through Canada. Hence, in 1882 Congress took stronger action in the Chinese Exclusion Act, the nation's first racist, restrictive immigration law, and one of several acts in the 1880's aimed at stemming the tide of Chinese immigration. The act suspended all immigration of Chinese laborers for ten years and forbade any court to admit Chinese to citizenship. The act was extended in 1902 and later made permanent. (Not until 1943 was it finally repealed so that Chinese immigrants could become citizens.)
Congress finally decided by the 1880's that immigration was appropriate for federal control. The Act of 1882 may be considered the first general federal immigration act. It continued to base restrictions on quality controls; in addition to the 1875 exclusions of "convicts" and "prostitutes," it barred "lunatics," "idiots," and those "likely to become public charges." The act also for the first time imposed a head tax on every arriving immigrant. The tax served the express function of raising revenues to defray administrative expenses. Congress did not want the poor of other nations to be added to the government relief rolls; the tax served the underlying function of deterring the immigration of people unable to pay. In several subsequent statutes, the head tax was raised from fifty cents to two dollars, making the barrier relatively substantial at that time.
Despite these limits, over 5.2 million immigrant aliens arrived in the 1880's. Immigration came to be seen as a threat to the U.S. economy, and Congress began expanding the list of "undesirable classes," hoping both to upgrade the type of immigrants and to limit overall entry. An 1891 act added the "diseased," "paupers," and "polygamists" to the list of excludable persons. It also forbade advertising in foreign countries that encouraged immigration to America. In addition, immigrants were required to take medical examinations to determine whether they were "diseased." A few years later, special boards of inquiry were established to decide other questions of admissibility under the "quality" restrictions. The 1891 law established the Bureau of Immigration, the forerunner of the Immigration and Naturalization Service (INS)(now the U.S. Citizenship and Immigration Services, the U.S. Immigration and Customs Enforcement, and the U.S. Customs and Border Protection). The Bureau was responsible for inspecting entrants at the 24 ports of entry to the U.S.
Immigration did abate somewhat in the 1890s, totaling 3.6 million C a reduction of over 1.5 million from the previous decade. There was a sharp increase in immigration, however, at the turn of the century, and Congress tried to stem the flow by excluding more classes of immigrants. In 1903, a new law excluded epileptics, the "insane," "beggars," and "anarchists." In 1907 the "feebleminded," the tubercular, and those persons with a mental or physical defect that "may affect" their ability to earn a living were added to the list. During this period, Japanese immigration was restricted by a 1907 agreement negotiated between the United States and Japan. Although the cumulative list was long, these quality controls were not easily enforced. Moreover, at that time the Bureau of Immigration and Naturalization (renamed by the 1907 immigration act) had only 1,200 employees in the U.S. to process arriving immigrants and enforce the entry restrictions. Nonetheless, almost 8.8 million immigrants were admitted by the Bureau in the first decade of the 1900s.
More than the huge numbers concerned Congress, however. Once again, the type of person immigrating was changing. In the 1880s, 72% of immigrants to the U.S. came from northern and western Europe. In contrast, during the 1900B10 decade, 71% came from countries in southern or eastern Europe. These "new immigrants" were Italians, Slavs, and Jews, who were considered "inferior" by the predominantly AngloBSaxon population. Much like the Chinese who preceded them by several decades, the "new immigrants" were slow to assimilate, living together in urban ethnic neighborhoods. The AngloBSaxons feared that their predominance was threatened and pressured Congress for more restrictive measures.
Because the earlier "quality control" exclusions did little to stem the flow of immigrants, those groups favoring restrictions on immigration began to advocate literacy as an entrance requirement. In 1907, after several failed attempts to pass a literacy bill, Congress established a joint congressional-presidential commission to study the impact of immigration on the United States. In 1911 the Commission published its findings. It concluded that twentieth century immigration to the U.S. was significantly different from earlier immigration and that the new immigration was dominated by the so-called "inferior" and "less desirable" groups. As a result, the Commission concluded that the United States no longer benefited from a liberal immigration policy and should impose further entry restrictions. The Commission recommended a literacy test as one such restriction.
In 1917, over President Wilson's veto, Congress responded. The 1917 Act was clearly aimed at restricting immigration of various nationalities. One important purpose of the 1917 Act was to limit immigration from southern and eastern Europe, which was accomplished by barring people unable to read. Because the new immigrants were largely illiterate, the impact of literacy tests limited that region's immigration more than any other. The Act also raised the head tax to eight dollars, providing yet another obstacle.
In addition, Congress addressed the growing concern over foreign "anarchists" in the 1917 Act. This group had been excluded by an earlier law of 1903 that had been enacted in response to President McKinley's assassination. In 1917, Congress apparently focused on the anti-immigrant mood prevalent during World War I. This sentiment led to subsequent enactment of the Anarchist Act of 1918, which more specifically defined "anarchists."
The last major exclusion of the 1917 Act prohibited all immigration of Asians from countries within specified latitudes and longitudes. Many similar racist exclusions had been proposed in Congress that year, and the Asiatic Barred Zone survived as an undebated amendment to the 1917 Act. Congressional attempts to prevent blacks from immigrating to the U.S. were defeated, however, due in large part to intensive lobbying by the NAACP.
The literacy entrance requirement and the anxiety surrounding World War I about the ability to assimilate foreign born persons resulted in an Americanization movement. Beginning in 1919, many states established Americanization programs to ensure that immigrants would learn English. Industry joined the movement by establishing similar programs for workers. By 1923, the Bureau of Immigration and Naturalization reported 252,808 immigrants in 6,632 programs across the country.
§ 1-4 THE QUOTA LAWS
World War I naturally limited immigration by making shipping less available, but after the war, immigration began to grow again. The U.S. favored an isolationist policy and wanted to protect its own labor force from the anticipated postwar flood of European refugees. Dissatisfied with its latest set of quality exclusions, Congress implemented numerical controls. Enacted first as a temporary measure, the 1921 Quota Law marked a major shift in the U.S. approach to immigration control. The law limited immigration from each nation to 3% of the number of foreign-born persons of that nationality residing in the U.S. as of the 1910 census. The total quota was 357,000, but because few foreign-born persons from the South and East of Europe lived in the U.S. in 1910, that region's total quota was 45,000 less than that from the North and West of Europe. The effect of the quota allotments was to restrict immigration from the disfavored regions; the northern and western countries of Europe did not even fill their quotas under this law. Fortunately for the restricted group, Congress established certain "non-quota" exceptions. For example, the law permitted a person to be admitted to the United States as an immigrant if the individual had lived in the Western Hemisphere for one year (later changed to five years). Hence, by temporarily living in a Western Hemisphere country, many avoided the quotas.
In 1924, Congress further restricted immigration by reducing the immigration quota from 3% of foreign-born persons under the 1910 census to 2% of the foreign-born under the 1890 census. This change cut the total quota to 164,667 and made the southern and eastern quotas proportionately even smaller than before. Again, people from those regions had to use the non-quota provisions to enter the U.S. Although under the 1924 Act only Western Hemisphere natives were non-quota, Europeans and others used another provision exempting spouses of U.S. citizens from the quotas.
Despite the restrictive 1924 Act, immigration from the southern and eastern countries of Europe equaled entries from the northern and western countries, thereby defeating the restrictive purposes of Congress. The quota and quality restrictions resulted in increased surreptitious border crossing. Moreover, although Europe was the targeted region, immigration from the Western Hemisphere began to climb in the 1920's, presenting border control problems. In response, the Bureau created the Border Patrol in 1924, hiring 45 men to guard the country's 8,000 miles of land and sea borders. Total immigration in the years 1924B29 reached 1.5 million.
In 1929, as provided by the 1924 Act, a new quota took effect. The "national origins formula" used the ethnic background of the entire U.S. population, rather than the first generation immigrant population, as its base for calculating national quotas. Because the U.S. population was still predominantly AngloBSaxon, the national origins quota restricted the newer immigrant groups more severely than the foreign-born formula of the previous quota laws. The national origins quota allotted 85% of the total quota of 150,000 to countries from the North and West of Europe, while the South and East received only 15% of that total quota.
The effect of the national origins formula, however, cannot accurately be measured. Soon after it took effect, the U.S. economy collapsed. The Great Depression limited immigration; only one-half million immigrated to the U.S. during the 1930's. In 1932, at the height of the Great Depression, emigration far exceeded legal immigration. Only 35,576 entered the country in that year, while over 100,000 left. The potential for immigration increased during those years, however, with the growth of highways and increased airplane traffic. By 1938, there were 186 ports of entry into the U.S. On June 14, 1940, the INS was transferred from the Department of Labor to the Department of Justice.
One of the most tragic consequences of the U.S. restrictive immigration policy fell upon refugees trying to flee Europe before World War II. In 1939, Congress defeated a bill that would have accommodated 20,000 children fleeing from Nazi Germany B despite the availability of willing sponsor families C because the number of children would have exceeded the quota allocated to German nationals. In 1940 the State Department did permit consuls outside Germany to issue visas to German refugees when the German quota was unfilled, but this and other measures were inadequate to help the vast majority of victims of Nazi persecution.
World War II brought an economic upswing, and immigration increased in response, bringing the total of entrants in the 1940's to one million. The United States again needed labor from abroad and negotiated with Mexico for a temporary worker program to satisfy the country's wartime employment needs. Congress also repealed the ban on Chinese immigration, largely due to the wartime alliance of the United States with China. Congress established a small quota for Chinese immigrants and also permitted Chinese immigrants to be naturalized as U.S. Citizens.
As the United States became painfully aware of the Nazi atrocities and the fate of the refugees it had refused, there was a short period of liberalization of the strict quota laws. President Truman issued a directive in 1945, admitting 40,000 war refugees. Under the War Brides Act of 1945 and the Fiancees Act of 1946, about 123,000 spouses, children, and fiancées of WW II military personnel were admitted to the U.S. The Displaced Persons Act of 1948 admitted 400,000 war refugees from Austria, Germany, and Italy to the U.S., but these admissions "mortgaged" their countries§ quotas, sometimes limiting or closing off all immigration from a country for several years thereafter.
The work of the INS had burgeoned by the late 1940's. By 1949, the U.S. had 416 ports of entry by land, sea, and air at which the INS annually made about 90 million inspections of immigrants, nonimmigrants, and returning citizens for compliance with entry requirements. The Border Patrol force remained stable at about 1,100, yet its total apprehensions of deportable aliens tripled in three years from 100,000 in 1946 to 300,000 in 1949.
In contrast to its liberalizing post-war legislation, Congress soon thereafter acted to restrict another group. AntiBCommunism rose after WW II and particularly during the war in Korea. As a result, national security legislation received high priority in Congress. The Internal Security Act of 1950 amended the 1918 Anarchists Act. The exclusions, however, were expressly directed this time at Communists; the act broadly defined the excluded group, barring anyone "likely to" engage in "subversive activity."
At the same time, however, Congress continued to legislate in the area of refugee admissions. In 1953 Congress passed the Refugee Relief Act, which admitted an additional 214,000 refugees. Although designed primarily to facilitate the admission of refugees fleeing from Eastern European countries dominated by the Soviet Union, the act also included provisions to prevent the admission of undesirable aliens. Similar measures were passed in 1956 and 1957 to assist the entry of Hungarians and others fleeing from Communism as well as persons fleeing from countries in the Middle East. The 1960 Refugee Fair Share Law established a temporary admission and assistance program for those World War II refugees and displaced persons who remained in camps under the mandate of the United Nations High Commissioner for Refugees.
§ 1-5 THE 1952 ACT AND LATER AMENDMENTS
The Immigration and Nationality Act of 1952 (INA) consolidated previous immigration laws into one coordinated statute. As amended, the 1952 Act provided the foundation for immigration law in effect today.
The 1952 Act retained, over President Truman's veto, the controversial national origins quota. The 1952 quota was calculated differently from the original national origins quota and established a 150,000 person limit on immigration from the Eastern Hemisphere. Congress exempted the AsiaBPacific Triangle from this quota, because so few people from that region lived in the U.S. as a consequence of the Barred Zone law of 1917; the quota would have been grossly inequitable in that respect. Instead, a modest quota of 2,000 was established for that area. Congress also retained the detailed "quality control" exclusions found in earlier legislation and added several new ones. Within the quota system, four types of entrance preferences were established. First preference was given to those entrants with skills or experience needed by the U.S. economy. Those persons with close family relations to U.S. citizens or permanent residents received lower preferences. This ordering was changed by amendment in 1965, but it should be noted that spouses, children, and parents of U.S. citizens were not and are still not subject to the quota or preference system. For that reason, they are called "immediate relatives."
Several aspects of the 1952 Act drew heavy criticism. The national origins quota, based on the 1920 census, was a blatant form of racial and ethnic discrimination. Also, despite some increased procedural safeguards for non-citizens, the 1952 Act did not provide them procedural due process.
The 1952 Act presented the INS with new and complex laws to enforce, yet Congress did not supply the Service with increased personnel or appropriations to perform its new work. Moreover, the early 1950's saw a large increase in apprehensions of deportable non-citizens aimed at the expulsion of Mexicans from the U.S. The Border Patrol, still about 1,000 strong, apprehended 800,000 deportable non-citizens in 1952; in 1954, that number increased to one million. Because of "Operation Wetback," 90% of those apprehended came from Mexico. It is believed that this expulsion included U.S. citizens of Mexican descent who were not given an opportunity to prove their claim to citizenship.
During the 1950's, Congress made several minor revisions in the 1952 Act, and over 2.5 million people immigrated to the U.S. The number of people entering the U.S. increased again in the 1960's, reflecting the growing availability of all means of travel. To facilitate the necessary inspections, in 1963 the INS consolidated duties at ports of entry with several agencies. Hence, one officer performed the duties of the INS, Customs, U.S. Public Health Service, and the Bureau of Plant Quarantine at the Mexican border. This joint approach eased the workload somewhat, for in 1964 the INS made 178 million inspections, almost twice the 1949 figure, yet total INS personnel had only increased from 6,900 to 7,058. In 1966, 200 million persons C immigrants, non-immigrants, and returning citizens C were inspected at over 400 ports of entry. Total immigration for the 1960's was 3.3 million.
The criticized national origins formula was not abolished until 1965 when President Johnson successfully urged enactment of former President Kennedy's program of immigration reform. The 1965 amendments replaced the national origins formula with a limit of 20,000 on each country in the Eastern Hemisphere and an overall limit of 170,000 for that hemisphere. The law established a quota of 120,000 for the Western Hemisphere, without preferences or country limitsCto take effect in 1968.
The 1965 amendments abolished the old four-preference system and established in its place a seven-preference system for close relatives and those immigrants with needed occupational skills from the Eastern Hemisphere. Again, spouses of U.S. citizens were permitted to immigrate without reference to the quota or preference system. Under the preference system, unmarried adult children of U.S. citizens received highest preference; second preference was granted to spouses and unmarried children of permanent residents. The preference for immigrants of "exceptional ability" and those in "the professions" was changed from first to third. Other relatives of citizens and permanent residents received the fourth and fifth preferences. Sixth preference was given to needed workers. Seventh preference was allocated to refugees.
The abolition of the national origins formula was in large part the result of a pervasive attitudinal change. AntiBCatholic, BAsian, and BSemitic sentiment decreased as the civil rights movement stimulated an increased tolerance of racial and ethnic differences. Unfortunately, there remained strong prejudice against certain immigrant groups. After World War II, the proportion of Spanish-speaking immigrants increased, and much prejudice was directed toward these newcomers from Mexico as well as Central and South America. Although the 1952 Act did not place a numerical limit on immigration from these areas, Congress included the Western Hemisphere quota of 120,000 in the 1965 amendments as a compromise for abolishing the national origins system. As a result, it created a steadily growing backlog of Latin American applicants forced to wait several years for a visa.
In 1976, a new law was passed which applied the Eastern Hemisphere preference system to the Western Hemisphere. Hence, both hemispheres were subject to the 20,000 per country limit and the seven preference system. The law, however, did retain separate annual limitsC120,000 for the Western and 170,000 for the Eastern HemisphereCand a special 600 person ceiling for colonies and dependencies.
A 1978 amendment established a world-wide quota of 290,000 and applied the same per country limits and seven preference system to both hemispheres. This worldwide ceiling eliminated the hemisphere consideration and allowed visas to go where the need was greatest. The 20,000 per country limit, however, was a serious restraint on immigration from a few countries such as Mexico.
Meanwhile, the INS staff became increasingly overworked. The number of deportable non-citizens, which fell in the 1950s, climbed rapidly in the 1960s and 1970s, as did the number of total entries. In 1972, one half million deportable non-citizens were apprehended. By 1977, that annual figure had doubled. The Border Patrol had grown to a force of 2,400, still too few to guard the borders. The Immigration Service estimated that, between undetected border crossings and violations of legal entry conditions, millions of undocumented non-citizens were living in the U.S. in 1974. In 1973, 250 million persons were inspected at about 1,000 ports of entry. By 1979, 274 million were inspected annually, and the Border Patrol apprehended one million deportable non-citizens. That year, the INS employed almost 11,000 personnel under a 300 million dollar budget.
In March 1980, Congress dealt with the issue of refugees. The 1980 Refugee Act broadened the definition of refugees to accord with the international definition in the Convention and Protocol relating to the Status of Refugees. Further, the Refugee Act set an annual maximum of 50,000 refugees through the year 1982, but permitted the Administration, in consultation with Congress, to set the number of refugees to be admitted each year after 1982. The initial numerical limits in the Refugee Act were undermined, however, by the deluge of Cuban refugees soon after its enactment. More than 100,000 Cubans arrived in the U.S. in the spring of 1980 C mostly via the port of Mariel, Cuba. Eventually, the Carter Administration concluded that the influx of "Mariel" Cubans was not within the contemplation of the Refugee Act and asked for special legislation to deal with the problem. The 1980 Act reduced the worldwide immigrant quota from 290,000 to 270,000 to offset partially the separate allocation for refugees.
In 1981 Congress adopted another series of amendments to the immigration law, which eliminated the permanent exclusion of non-citizens five years after deportation. Also, a person convicted of a single minor marijuana offense could obtain a waiver of excludability. There were a number of other amendments concerning foreign medical graduates, congressional reporting requirements as to visas issued, exchange visitors, and treaty investors. But these minor changes did not address the national perception that the U.S. had lost control of its borders and required a much more thorough revision of immigration law.
Congress enacted the Immigration Marriage Fraud Amendments in 1986 to deter immigration-related marriage fraud. The 1986 Fraud Amendments imposed a two-year conditional residency requirement on non-citizen spouses and children before they could obtain permanent resident status on the basis of a "qualifying marriage" to a U.S. citizen or permanent resident alien. To obtain permanent status, couples were required to file a petition and, in some cases, be interviewed by the INS to verify that the couple had not entered into the marriage solely to procure immigration benefits and had not divorced during the conditional period. In 1990 Congress amended those provisions to permit waivers for cases of battered spouses or children as well as other hardships. See § 5-2.1(c), infra for further discussion of the conditional residence provisions.
The 1986 Fraud Amendments also imposed criminal penalties for immigration-related marriage fraud of not more than five years and/or not more than $250,000 in fines. In addition, the 1986 Fraud Amendments explicitly made marriage fraud an additional ground for deportation as well as a perpetual bar to future immigration. Furthermore, the Fraud Amendments restricted adjustment to permanent residence status based on a marriage undertaken while a non-citizen is in removal proceedings. INA § 245(e). See § 5-2.1(c), infra.
§ 1-6 THE 1986 IMMIGRATION REFORM AND CONTROL ACT (IRCA)
In 1980 the United States Census Bureau counted 2,047,000 undocumented non-citizens in the country. Based on the Bureau of Census§ experience in miscounting other segments of the population, the Bureau had estimated that there were 5,965,000 undocumented persons in the country on census day April 1, 1980. As the INS attempted to confront these problems with inadequate resources, it was criticized for inefficient internal operations, misconduct, and a general inability to control the flow of undocumented immigration.
Thirty-four years had passed since the enactment of the last major immigration reform, when Congress finally adopted in 1986 the Immigration Reform and Control Act (IRCA). IRCA was not easily adopted, having been unsuccessfully attempted in three previous congressional sessions. It represented a political compromise between four interests C (1) those people seeking to deter illegal immigration by discouraging unauthorized employment in the U.S.; (2) those seeking a one-time amnesty for non-citizens who, for years, had been locked out as illegal immigrants; (3) those who wanted to insure continued access to low-cost agricultural labor without elaborate federal regulation; and (4) those who wished to insure that penalizing employers for illegally hiring undocumented workers would not encourage discriminatory employment practices. Ultimately, the act that was adopted focused almost exclusively on illegal immigration. The act was a partial response to the 1981 recommendations of the Select Committee on Immigration and Refugee Policy chaired by (Rev.) Theodore M. Hesbergh, then President of the University of Notre Dame. IRCA dealt with the major problem of undocumented workers by imposing sanctions on employers, and at the same time legalizing the status of undocumented entrants who had arrived prior to January 1, 1982. Because Congress was concerned that employer sanctions would result in discrimination in the workplace, IRCA included provisions prohibiting discrimination on the basis of national origin or citizenship status. IRCA also provided the INS with significant new resources to enforce the immigration laws. Furthermore, in response to the demand for foreign agricultural labor, IRCA created a program that granted temporary and permanent resident status to qualified agricultural workers. Despite these major provisions and a number of less important ones, IRCA did not substantially restructure the immigration law as it pertains to immigration quotas or the requirements for admission.
The employer sanction provisions of the act penalized a "person or other entity" who hires, recruits, or refers for a fee for employment in the United States a non-citizen, knowing that person is unauthorized, or who employs any individual without complying with the act's employment verification system. Employers would also be sanctioned, if after lawfully hiring a non-citizen, the employer continues to employ the worker knowing that he or she has since become unauthorized. Those sanctions, however, did not apply to employees hired, recruited, or referred before November 6, 1986. Violating employers were subject to civil fines, injunctions, and criminal penalties. In a reversal of previous law, the felony of "harboring an illegal alien" was made applicable to circumstances involving employment. IRCA explicitly preempted all state criminal statutes concerning the employment of undocumented non-citizens, leaving unaffected only areas such as licensing or laws regarding "fitness to do business." Interestingly, to this day there are no direct sanctions against non-citizens who illegally accept employment other than the threat of removal and penalties for document fraud. See chapter 14.
A significant obstacle to earlier immigration reform was the concern that employer sanctions would result in widespread discrimination against persons who looked or sounded "foreign." IRCA attempted to resolve this potential problem by prohibiting employment discrimination on the basis of national origin or citizenship status. IRCA stated that it is an unfair immigration-related employment practice for a person or other entity employing four or more persons to discriminate against any individual who is authorized to work in the U.S., with respect to employment or discharge, on the basis of the individual's national origin or citizenship status. President Reagan addressed employer concerns about their inability to verify an employee's identity, authorization, and national origin without appearing to discriminate in their hiring practices, by announcing that these anti-discrimination provisions would be interpreted to require actual discriminatory intent and not simply a disparate impact resulting from employment practices.
The implementation of the employer sanction provisions of IRCA received mixed reviews. Surveys taken by the General Accounting Office in the three years following IRCA's passage offered inconsistent evidence as to whether employers were aware of and complying with their obligations under the new law. See INA § 274A(j)(1). While one survey reported that the vast majority of responding employers had learned of their obligations under the new law, others reported that a large percentage or even a majority believed that the INS had not adequately informed employers of their obligations and that most businesses did not understand their responsibilities. Social service agencies responded that about nine percent of their clients had unjustly lost their jobs because their employers were inadequately informed of the law.
IRCA's anti-discrimination provisions did not succeed in eradicating concern about discrimination in the workplace. The majority of respondents believed that IRCA had already resulted in discrimination against workers with a foreign appearance. Reports indicated that discrimination against Hispanics and Asians was particularly severe.
§ 1-6.1 Amnesty for Undocumented Non-Citizens
Another major goal of IRCA was improvement of enforcement and services. The act increased border patrol as well as other enforcement activities of the INS to deter unlawful entry of aliens into the U.S. and increased the service activities of the INS to adjudicate of applications faster and more efficiently. To facilitate achievement of these goals, the act increased appropriations for the INS and the Executive Office for Immigration Review (EOIR).
In exchange for the increased enforcement provisions of IRCA, Congress offered a broad amnesty for many undocumented non-citizens already present in the country. The one-time, limited amnesty program allowed qualified non-citizens who met its strict deadlines to obtain permanent resident status. To qualify, non-citizens were required to show that they had entered the United States before January 1, 1982, and had resided unlawfully and continuously in the United States from that date until the date they applied for amnesty. Non-citizens who entered with a valid nonimmigrant status that later expired could also qualify for amnesty by showing that their unlawful status was known to the U.S. government. Applicants were specifically required to (1) have been physically present in the U.S. since November 1986, except for "brief, casual, and innocent" absences; (2) meet most of the requirements of immigrant admissibility to the United States; (3) have not been convicted of any felony or of three or more misdemeanors committed in the United States; (4) have not assisted in any form of persecution; and (5) register for the draft, if required to do so.
Non-citizens who met these requirements and filed an application between May 5, 1987, and May 4, 1988, were granted temporary residence. After 18 months of temporary residence, the non-citizens had one year in which to apply for adjustment to permanent resident status or they would become undocumented once again. To adjust to permanent resident status, applicants were again required to meet the criteria for permanent residence and also meet minimal English and civics requirements.
Realizing that many undocumented non-citizens would be reluctant to bring their unlawful presence to the attention of the INS by applying for amnesty, IRCA mandated procedures to ensure strict confidentiality. The Act allowed voluntary organizations to receive applications and forward them to the INS. Whether a non-citizen applied through such an organization or directly to the INS, access to information in the applications was restricted to INS officers with no deportation responsibilities and the INS could only use the information to make a determination on the application or impose penalties for false statements.
Despite these precautions, response to the amnesty program was less enthusiastic than expected. The INS originally estimated that between two and four million applications would be filed, but when the program ended, only 1.4 million people had applied for amnesty. After a slow initial response, the INS sought innovative means to encourage non-citizens to apply for amnesty, such as inserting 80,000 amnesty program reminders into tortilla packages in Texas. The INS also sent letters to those people who were granted temporary residence, asking them to encourage and help their friends, relatives, and neighbors to apply for amnesty. Significant barriers to participating in the program remained, however, including a high application fee, problems with obtaining the required documentation, and the non-citizens' fear of the INS. A proposal to extend the application deadline passed the House of Representatives but died in the Senate, due to fears that an extension would send the message that the U.S. could not enforce its immigration laws. The program thus ended as planned on May 4, 1988.
Another concern in adopting IRCA was the potential adverse financial impact on the states. For this reason, IRCA included extensive provisions disqualifying newly legalized non-citizens (except Cuban/Haitian entrants) from receiving most federal public welfare assistance for five years. Appropriations were also included to compensate state and local governments for other public assistance and medical benefits conferred upon people granted amnesty, as well as for the costs of incarcerating undocumented non-citizens and "Mariel" Cubans.
IRCA also established a separate program for granting temporary and permanent status to qualified agricultural workers. This program was the result of agribusiness pressure for greater availability of such farm workers.
§1-6.2 Visa Lottery Programs
Beginning in 1986, Congress began to act on growing constituent concern over the difficulty of immigration from European countries, most notably, Ireland and Italy. This situation was generally thought to have arisen with the repeal of the Western Hemisphere quota in 1965 accompanied by a steady increase in immigration from Asia, Africa, and the Middle East. In Section 314 of IRCA and in Section 3 of P.L. 100B658 (the Immigration Amendments of 1988), Congress created what came to be known as the NPB5 and the OPB1 programs respectively.
The NPB5 program created a Afirst-come-first-served" worldwide mail registration program benefiting persons from 36 countries whose immigrant visa availability was adversely affected by the unification of the worldwide quota system in 1965. This program, in effect, "gave away" 30,000 immigrant visas, between fiscal years 1987 and 1988, to earliest-registered applicants and their immediate families, requiring them only to meet the nationality, health, and morals qualifications of immigration laws. This program was extended to cover 30,000 more NPB5 registrants over fiscal years 1989 and 1990.
The OPB1 program was a pure lottery based on a one-time registration program without the facets of early or multiple filings that were characteristic of the NPB5 program. It benefited natives of 162 countries that used less than 25 percent of their maximum quota entitlement in fiscal year 1988.
The significance of these programs was their underlying policy of expanding immigration to countries other than the Eastern Hemisphere sources which had increasingly benefited from U.S. immigration during the preceding decades.
§ 1-7 THE IMMIGRATION ACT OF 1990
In 1990, Congress passed a series of amendments to the Immigration and Nationality Act, collectively referred to as the Immigration Act of 1990 ("1990 Act" also known as "IMMACT 90"). Like the INA of 1952, the 1965 Amendments, and IRCA, IMMACT 90 was a landmark in immigration legislation. IMMACT 90 primarily reformed the rules pertaining to the legal entry of foreign nationals. It augmented the regulations enacted by IRCA (see § 1-6), which focused primarily on illegal immigration. IMMACT 90 was followed by the Immigration Technical Amendments Act of 1991, which modified some of the provisions in the 1990 Act and clarified certain aspects of the new quota system. The framework established by these two acts remains largely intact today and their provisions are treated in their proper context throughout this book. This section presents a synopsis of the most prominent changes made by the 1990 Act and the Technical Amendments.
§ 1-7.1 Overall Increase in Worldwide Immigration
The most visible feature of IMMACT 90 was the increase by approximately 35% in the numerical limitation system, or overall immigration allowed. IMMACT 90 established an annual limit for worldwide immigration of 700,000 for three years, after which it decreased to 675,000. Because other provisions of the 1990 Act allowed immigration of groups not counted in the 700,000, and a separate law permitted as many as 125,000 refugees to be legally admitted, the actual worldwide immigration limit was closer to 800,000.
The groups benefiting from this increase illustrate congressional priorities, and reflect a moderately optimistic belief in the country's capacity to absorb new immigrants. The 1990 Act increased the allocation for both family-related and employee-related immigration. In addition, the new law created a separate basis by which "diversity" immigrants, that is, nationals of countries with relatively low numbers of immigrants since 1965, could gain entry. The 1990 Act eliminated the nonpreference category that had been unavailable due to excessive demand since late 1976. All-in-all, of the 700,000 annual allotment, 465,000 visas were made available to family-sponsored immigrants, 140,000 for employment-based immigrants, and 55,000 for diversity immigrants.
a. FamilyBSponsored Immigration
Beginning October 1, 1991, all family-sponsored immigration was limited to approximately 480,000 annually for two years, after which the yearly limit dropped to 465,000. The relatively large percentage of the overall limit allocated to family-related immigration reflected the continued commitment to family unity as a primary goal of immigration policy. The 1990 Act did not dramatically increase the total number of family-sponsored immigrants, however. Immediate relatives (i.e., spouses, minor children, and parents) of U.S. citizens, who were not counted under the previous quota system, are now deducted from the total allocation for family-sponsored immigrants, although there is still no limit on immigration by immediate relatives. The 1990 Act did guarantee admission of at least 226,000 other relatives of U.S. citizens and permanent residents, an increase of approximately 65,000 over the former quota. See § 5-3.1(a), infra.
b. EmploymentBRelated Immigration
Responding to fears concerning the U.S. work force's ability to compete in the global economy, the 1990 Act significantly changed the allowances for employment-related immigration. The 1990 law replaced the previous third and sixth preferences (which distinguished between professional and skilled employees) with five new classifications that now allow for a total of 140,000 immigrants per year. The first employment-based preference category allocated 28.6% of the total employment-based quota (currently 40,000) for "priority workers," that is, non-citizens with an extraordinary potential for contribution to their fields. This category includes noted professors, researchers, and multinational executives, as well as individuals who have attained widespread acclaim.
The second employment-based preference category allocated another 28.6% of the employment-based quota for professionals with advanced degrees or persons with exceptional ability in science, the arts, or business. Hence, the new second preference largely covered the old third preference for professionals. The new third employment-based preference class allotted 28.6% for skilled workers or professionals with baccalaureate degrees, as well as other unskilled workers. The new category combined the balance of the old third preference with the old sixth preference that included "other unskilled workers." Within this category, the number of unskilled workers is limited to 10,000 per year. The fourth employment-related category allocated 10,000 places for certain religious workers and employees of the U.S. mission in Hong Kong.
The "Employment Creation" fifth preference encouraged the immigration of non-citizens who invest at least $1 million in a business that benefits the U.S. economy and employs at least 10 U.S. citizen workers or current permanent residents. Up to 10,000 investors may be admitted each year under this preference. Any unused portion of this allotment "spills up" to the first preference category and unused first-preference places "spill down" to the second and third categories. Investors are granted a conditional permanent residence for two years, after which they can petition for the condition's removal. This provision was criticized for allowing wealthy foreign nationals to "buy their way in." Its supporters contended, however, that the previous law curtailed foreign investment by impeding a company's principal investor from obtaining residence in the U.S. The employment creation program was temporarily halted in 1997, due to concerns about fraudulent investment schemes. The program was reinstated in 1998 with new regulations intended to prevent such fraud. At its peak in 1997, the program only attracted around 1,400 investors and since then has only been used by about 200 people each year. See § 5-3.1(b), infra.
The new employment-based preference system placed a high priority on educational attainment, or excellence in a profession. To illustrate: most employment-based immigrants must have an outstanding offer of employment and labor certification, but these requirements were waived for applicants with extraordinary ability (first preference class). Multinational managers and executives were also exempted from the certification requirement. Because employers have often been unwilling to wait for labor certification to employ low-skilled workers, and because of the low allocation of 10,000 visas, the 1990 Act offered limited opportunities for individuals without skills or formal education.
The 1990 Act did not substantially change the Labor Department's certification process which requires showing that no qualified U.S. workers are available to work in the position sought. One revision required that notice of filing for labor certification be given to the union representative of the affected employees in the potential place of employment. The act also replaced the Schedules A & B with a pilot program in which the Labor Department was to determine whether labor shortages or surpluses exist in ten occupations. The pilot program, however, has expired and the Schedules A & B prevailed.
(1) DIVERSITY VISAS
Because the families of immigrants who arrived in the U.S. two or more generations ago no longer qualified for family-related visas (see § 1-2), several of the countries which figured most prominently in this nation's early immigration history were considered "under-represented." Section 132 of the 1990 Act established a mail-in lottery to address the problem of under-representation by allocating 40,000 "diversity" visas (55,000 beginning in 1994) to nationals from "adversely affected" countries. Of the visas made available in this category, 40% were designated for natives of Ireland B a preference later dropped by the Technical Amendments. Significantly, this allotment formalized a method by which foreign nationals could immigrate without a close relative to sponsor them and without a job for which there is a labor shortage. Because "winners" would be selected on a random basis from millions of applications, the diversity visa became an unpredictable way for a foreign national to gain entry.
(2) INHABITANTS OF HONG KONG
Motivated by the then impending return of Hong Kong to the People's Republic of China, the 1990 Act allowed for separate means of aiding Hong Kong residents who wanted to immigrate to the U.S. The provision increased the allocation for immigration from Hong Kong to 10,000 (from 5,000) for the first three years of the act, after which the level rose to 20,000. Other provisions benefited employees of certain U.S. businesses in Hong Kong, and employees of the U.S. mission there. In addition, the new law extended visas issued to Hong Kong residents until January 1, 2002, allowing them five years after the colony's return to China to decide whether to immigrate.
(3) REFUGEES AND TEMPORARY STATUS
The 1990 Act altered the process of attaining permanent residence
for refugees. Refugees and asylees may apply for permanent residence one year
after being admitted to the United States or after being granted asylum in
the United States. The 1990 Act increased the number of refugees who may become
permanent residents to 10,000 annually (from 5,000); moreover, refugees who
had previously qualified were granted permanent residence by a special provision.
The 1990 law also offered "Temporary Protected Status" (TPS) to
aliens prevented from returning to their home countries because of war, disaster,
or other unstable circumstances. The Technical Amendments extended this status
to stateless residents of designated countries. The Attorney General was authorized
to determine which countries are "protected." Countries are designated
for TPS for a limited period of time, which can be renewed. El Salvador received
designated TPS status from the statute itself; this designation expired in
1994 but was reinstated in 2001. Other countries have also been given TPS
designation, including Bosnia-Herzegovina (1992), Kuwait (1991), Lebanon (1991),
Liberia (1991), Somalia (1991), Rwanda (1994), Burundi (1997), Montserrat
(1997), Sierra Leone (1997), Sudan (1997), Kosovo Province (Yugoslavia) (1998),
Guinea-Bissau (1999), Honduras (1999), Nicaragua (1999), and Angola (2000);
some of these designations have since expired.
§ 1-7.2 Nonimmigrant Provisions
The 1990 Act modified some of the INA's provisions pertaining to non-citizens who seek entry for a temporary period of time or for a limited purpose. The 1990 law added four categories of nonimmigrants to the previous 14. Hence, the 1990 Act defined 18 nonimmigrant categories, identified as A through R. The visa waiver pilot program benefiting foreign travelers, previously applicable to eight countries, was extended to any country designated by the Attorney General and Secretary of State. The 1990 law also modified visa categories for crewmembers (D), traders (E), temporary workers (H), and intracompany transferees (L).
The four new nonimmigrant categories are category O for nonimmigrants who have documented extraordinary ability in the arts, sciences, education, business, or athletics and seek entry to work within their field of expertise; category P for athletes, entertainers, and members of performance groups who seek entry to perform within their discipline; category Q for international cultural exchange programs and participants; and category R for persons within certain religious occupations.
§ 1-7.3 Naturalization
Until the 1990 Act, the federal district court had the ultimate responsibility to grant naturalization upon a recommendation by the INS and to administer the oath of allegiance to new U.S. citizens. Under the 1990 Act, the INS made the actual determination on naturalization and the district director administered the oath. The Immigration Technical Amendments Act of 1991, however, left the naturalization decision with the INS, but returned most oaths of allegiance to the federal district court. The courts were considered more conveniently located for the administration of oaths and better able to handle the problems of changing names which often occur with acquisition of U.S. citizenship.
The 1990 Act also provided that a non-citizen denied naturalization
by the INS may seek de novo judicial review. In addition, the 1990 Act effectively
overruled three Supreme Court determinations denying naturalization to Philippine
veterans of World War II (see INS v. Hibi (Sup.Ct.1973); United States v.
Mendoza (Sup.Ct.1984); INS v. Pangilinan (Sup.Ct.1988)), thus naturalizing
Filipinos who performed honorably in World War II.
§ 1-7.4 Grounds for Exclusion
Prior to the 1990 Act, there were more than 34 separate grounds for exclusion, many of which had complex rules and subdivisions. Some of these provisions were considered obsolete. For example, as a result of the McCarranBWalter Act of 1952, individuals could be excluded for beliefs or party membership, rather than specific acts. The 1990 Act attempted to simplify the rules but did not significantly narrow the grounds for exclusion.
a. HealthBRelated Exclusion
The health-related provisions were modified to exclude only persons with communicable diseases that threatened public health. This determination would be made by the Secretary for Health and Human Services. Moreover, the 1990 Act attempted to bring the health-related grounds for exclusion up to date with modern medical knowledge and procedure. A meaningful illustration of the 1990 Act's reforms was the elimination of the exclusion of gay men and lesbians. Further, the waiver for close relatives was expanded, thus diminishing the number of family-sponsored immigrants excluded for health reasons.
b. CrimeBRelated Exclusion
The substantive rules of criminal exclusion were not significantly modified by the 1990 Act. For persons under 18 years of age, minor criminal conduct was not considered a ground for exclusion, provided the individual was convicted at least five years prior to his or her application for admission. One significant revision reduced the number of discretionary waivers by requiring the criminal conviction to have occurred at least 15 years prior to application.
c. Security as a Ground of Exclusion
The 1990 Act barred any person who had engaged in terrorist
activities, adding this ground of exclusion to espionage, sabotage, or violent
overthrow of the U.S. government. Further, the Secretary of State was authorized
to bar any non-citizen who would adversely affect the foreign policy of the
United States. Critics of these provisions contended that the new law placed
too much discretion in the Secretary of State. Moreover, they feared that
the term "terrorism" would be construed broadly or for political
reasons. Subsequent extensions of the terrorism ground (see § 1-9, infra)
tend to support this concern.
The 1990 Act limited the exclusion of members of the Communist or another totalitarian party. This exclusion would no longer be applicable to nonimmigrants, and involuntary membership was excused. In addition, membership was excused if it was terminated at least two years prior to application (five years if the country was still controlled by a totalitarian dictatorship, e.g., China). Again, a discretionary waiver is permitted for close relatives or if the waiver is in the public interest.
e. Exclusion for Misrepresentation
The 1990 Act retained the exclusion for misrepresentation (extended by the Immigration Marriage Fraud Act) with two modifications. First, the waiver for close relatives was expanded by changing the term "child" to "son or daughter," which included adult married children. Second, if the misrepresentation occurred more than 10 years prior to the application, waiver was permitted. Unfortunately, a ten year bar is still excessive for many people.
§ 1-7.5 Grounds for Deportation
a. Marriage Fraud
The 1990 Act substantially modified three provisions of the 1986 Immigration Marriage Fraud Act. First, and most significantly, the new law recognizes marriages entered into while deportation or exclusion proceedings are pending. The law, however, required "clear and convincing evidence" that the marriage was undertaken in good faith and not for the purposes of evading immigration laws. Second, when a marriage is terminated within two years of the conditional grant of residence, the non-citizen spouse can petition for removal of the condition, regardless of who initiated the divorce. Third, discretionary waiver of the conditional residence requirement was made available if the non-citizen spouse or his or her child is the victim of battery or abuse.
b. National Security Concerns
The 1990 Act eliminated the provision for deporting members of the Communist party or other "subversive" organizations. Like the related ground of exclusion, the Act prescribed deportation for non-citizens who have engaged in terrorist activity or who would pose a threat to national security. Again, the Secretary of State has considerable discretion in determining whether an individual threatens foreign relations.
§ 1-7.6 Further Reform
The 1990 Act established a commission to examine how immigration affects our society, how immigration laws function, and how to assess the demographics of the immigrant population. The Commission, chaired by former Congresswoman Barbara Jordan, issued its first report in 1994 acknowledging that IRCA's mechanisms for prohibiting illegal employment had "proved less effective than anticipated" and recommending a pilot program using on-line verification of employment authorization. President Clinton, however, instead established a pilot program that allows employers to verify work authorization by telephoning a centralized computer database. The Clinton Administration accepted the Jordan Commission recommendations for strengthening border enforcement, for example, by erecting new fencing on the southern border and employing additional Border Patrol personnel. The Jordan Commission's 1995 report stated that an agricultural guest worker program is not in the national interest. In 1997, the Commission on Immigration Reform also recommended separating the service functions of the INS from its law enforcement function; this proposal eventually took shape in the 2002 Homeland Security Act (see § 1.9, infra).
§ 1-8 THE ACTS OF 1996 (AEDPA and IIRIRA)
Congress responded to perceived anti-immigration sentiment in the 1990s with three new acts, each of which was signed by President Bill Clinton in 1996. The first of these acts was the Antiterrorism and Effective Death Penalty Act (AEDPA), which became law on April 24, 1996. The second was the Personal Responsibility and Work Opportunity Reconciliation Act (Welfare Act), which became law on August 22, 1996. The third was the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which became law on September 30, 1996. While the Welfare Act removed many federal services for non-citizens, AEDPA and IIRIRA focused on enforcement of immigration laws by, for example, increasing Border Patrol staffing, adding new grounds of inadmissibility and removal, modifying the procedures for exclusion and removal of non-citizens, and limiting judicial review of immigration decisions. The AEDPA and IIRIRA also increased the number of criminal acts for which a non-citizen could be removed and eliminated nearly all forms of relief for non-citizens with criminal convictions. One result of the 1996 statute was a dramatic increase in naturalizations, as long-time U.S. residents felt that their security was threatened by the denial of federal benefits and the new grounds for removal.
§ 1-8.1 Major Provisions of the 1996 Acts
Although both AEDPA and IIRIRA were examples of a similar immigration policy direction, IIRIRA, which was signed latest, went further and replaced many of AEDPA's provisions. For example, while AEDPA restricted judicial review of immigration decisions, IIRIRA restricted judicial review even further, barring review of decisions to deny admission to non-citizens and of most discretionary actions by the INS. IIRIRA also barred judicial review of removal orders based on an "aggravated felony" conviction. See § 9-4.3, infra.
One of the most significant changes made by IIRIRA modified the previous distinction between exclusion and deportation. Before IIRIRA, non-citizens who entered the U.S., even if they had avoided inspection, were subject to deportation proceedings. Persons who had not entered the U.S., including non-citizens who were paroled into the U.S., were subject to exclusion proceedings. After IIRIRA, all non-citizens who have not been inspected and admitted to the U.S. are subject to the grounds of inadmissibility. The grounds of inadmissibility were also expanded beyond the former grounds of exclusion to include unlawful presence in the United States. Non-citizens who have been lawfully admitted to the United States are subject to the grounds of removability. IIRIRA also eliminated the procedural differences between exclusion and deportation proceedings, and provided that there would be only one "removal proceeding" for excluding or deporting non-citizens. Inadmissible non-citizens may, however, be subject to "expedited removal" proceedings and can be removed without a hearing unless they indicate an intent to apply for asylum. See § 9-2.6, infra.
Both AEDPA and IIRIRA enlarged the definition of "aggravated felony." AEDPA added felonies such as those relating to gambling and passport fraud. IIRIRA expanded the definition further to include, for example, convictions imposing sentences of one year or more, even if the non-citizen was not sentenced to prison. Formerly, aggravated felonies included crimes with sentences of five years or more. In addition to broadening the definition of aggravated felony, IIRIRA made aggravated felons ineligible for nearly all forms of relief from removal and barred review of the removal decision. Also, because AEDPA and IIRIRA provided for mandatory detention of aliens subject to removal for aggravated felonies, more aliens have had to be detained. IIRIRA also provided for increasing detention space.
IIRIRA consolidated several earlier forms of relief from removal into a new provision called cancellation of removal. This type of relief is available to permanent residents and some "nonpermanent" residents (including undocumented non-citizens) who meet durational residency requirements and other criteria. See § 9-3.1(b), infra.
IIRIRA also stiffened the requirement for affidavits of support for immigrants entering on the basis of their relationship to U.S. citizens or permanent residents. A sponsor must agree in the affidavit to provide support for the immigrant at an annual income that is not less than 125% of the federal poverty standard. Also, the sponsor must reimburse the government if the non-citizen receives means-tested public benefits within ten years of admission, unless he or she has naturalized. IIRIRA also added a ground of removability for any non-citizen who becomes a "public charge" within five years of admission.
Like the affidavit of support requirement, the 1996 Welfare Act reflected Congress' concern that immigrants were placing an increasing burden on the federal budget. The Welfare Act made most non-citizens, including permanent residents, ineligible for federal benefits such as food stamps and Supplemental Security Income (SSI). Immigrants who entered the country after August 22, 1996, were ineligible for all means-tested public benefits for a period of five years. The Welfare Act also authorized the states to deny benefits to certain classes of non-citizens. See § 13-4.4, infra.
§ 1-8.2 Judicial Response to the 1996 Acts
Judicial decisions since 1996 have limited the impact of some
provisions of IIRIRA, particularly those provisions related to judicial review.
Considering IIRIRA's limitations on judicial review, the Supreme Court in
Reno v. American-Arab Anti-Discrimination Committee (1999), narrowly construed
a provision of the act that barred review of the INS' decision to "commence
proceedings, adjudicate cases, or execute removal orders." The Court
found, however, that since the immigration authorities' power to commence
proceedings is unreviewable, non-citizens have no claim against the government
for selective enforcement of immigration laws. In INS v. St. Cyr (S. Ct. 2001),
the Court found that the bars on judicial review do not prevent removable
non-citizens from challenging their removal in habeas corpus proceedings.
In another decision favorable to removable non-citizens, the Court held in
Zadvydas v. Davis (S. Ct. 2001) that immigration authorities may not hold
a non-citizen in detention indefinitely following a removal order when that
person cannot be returned to his or her home country.
§ 1-8.3 Immigration Legislation, 1996 - 2002
For a time after 1996, Congress appeared to soften its anti-immigration stance somewhat. Recognizing the devastating effect the Welfare Act had on some impoverished residents, Congress in 1998 reinstated federal benefits for most permanent residents who were receiving them before passage of the Act. Congress also enacted several measures to make it easier for certain immigrants to obtain U.S. citizenship, including the Child Citizenship Act of 2000 (114 Stat. 1631) and the Hmong Veterans Naturalization Act of 2000 (114 Stat. 316). See § 12-2.2(c), infra. The Nicaraguan and Central American Relief Act of 1997 (NACARA) allowed certain nationals of Cuba and Nicaragua to adjust to permanent resident status despite having entered the U.S. illegally; that act also provided special forms of relief from removal for persons from some Central American and Eastern Bloc countries.
The economic boom of the late 1990s increased the demand for foreign labor, and in response Congress passed two acts, the American Competitiveness and Workforce Improvement Act of 1998 (112 Stat. 2681) and the American Competitiveness in the Twenty-First Century Act (114 Stat. 1251), which temporarily increased the number of H-1- visas for professional workers. The latter act imposed a fee on employers that would be used to fund technology training programs to reduce dependence on foreign labor.
Other laws passed during this period created new nonimmigrant classifications. The Victims of Trafficking and Violence Protection Act of 2000 (114 Stat. 1464) added the "T" category for victims of trafficking in persons. The Violence Against Women Act of 2000 (114 Stat. 1518) created the "U" category for persons who have suffered physical or mental abuse. That act also made it easier for persons who had been abused by a U.S. citizen spouse or parent to obtain citizenship or permanent residence.
A few laws passed during the late 1990s reflected concerns that the INS was effectively unable to process the growing number of immigration and naturalization petitions. The Child Status Protection Act of 2002 (114 Stat. 927) allowed children to retain their priority as minor children if they married or reached the age of twenty-one while waiting for immigration processing. The LIFE Act (114 Stat. 2762) created the "K" and "V" nonimmigrant categories so that fiancé(e)s of U.S. citizens and spouses or children of permanent residents may enter the U.S. while waiting for their immigrant petitions to be processed.
§ 1-9 IMMIGRATION LAW AS A CONSEQUENCE OF SEPTEMBER 11, 2001
The September 11, 2001, attacks resulted in significant changes in immigration law and policy. Congress passed several acts intended to improve national security, including the USA Patriot Act (115 Stat. 272), the Enhanced Border Security and Visa Entry Reform Act (116 Stat. 543), and the Homeland Security Act (116 Stat. 2135). One of the most dramatic consequences of these measures was the elimination of the INS and the transfer of immigration functions to the Department of Homeland Security in 2003. Other provisions of these acts broadened the class of people who can be excluded or removed for terrorist activity, mandated increased screening of applicants for admission, and called for new data systems to track non-citizens in the U.S.
Agencies involved in immigration responded to the perceived security threat by formulating rules that imposed special registration requirements on nonimmigrants from certain, mainly Arab or Muslim, countries; allowed the detention of persons suspected of terrorist connections; and permitted removal hearings for such persons to be conducted in secrecy. Immigration authorities have also selectively targeted non-citizens from Muslim and Arab backgrounds for enforcement of existing immigration laws.
§ 1-9.1 Department of Homeland Security
In November 2002, Congress passed the Homeland Security Act (116 Stat. 2135), which abolished the Immigration and Naturalization Service and transferred most immigration functions to the Department of Homeland Security (DHS). As suggested by the Commission on Immigration Reform some years earlier (see § 1-7.6, supra), the INS' service and enforcement functions were separated in this reorganization. These functions have been divided among three bureaus within the DHS: the U.S. Citizenship and Immigration Services (USCIS), which adjudicates immigrant and nonimmigrant petitions, naturalization petitions, asylum applications, and other matters; the U.S. Customs and Border Protection (CBP), which includes the Border Patrol and immigration inspections at ports of entry; and the U.S. Immigration and Customs Enforcement (ICE), which enforces immigration laws in the interior of the U.S.
§ 1-9.2 Restrictions on Immigration
The USA Patriot Act (115 Stat. 272) broadened the definition of terrorist as used in the grounds for inadmissibility and removal. Under this Act, anyone who endorses or provides financial support to a terrorist organization, or who actually participates in terrorist activities, is inadmissible or removable.
To identify possible terrorists, U.S. consulates are required to check visa applicants' names against "lookout lists" prior to issuing a visa. This practice has increased processing time for many non-citizens seeking admission to the U.S. and caused some people to be denied admission because they were incorrectly identified as terrorists.
§ 1-9.3 Monitoring of Non-Citizens in the U.S.
After September 11, the INS was criticized for its inability to track non-citizens in the U.S. or to identify persons who might pose a threat to national security. In 2002, the INS promulgated regulations requiring nonimmigrants from twenty-five countries to register at INS district offices and report periodically as to their whereabouts and activities in the U.S. See § 8-2.2(c), infra. That same year, the INS and the State Department implemented a new database system, called "SEVIS" to track foreign students. Immigration authorities also began to enforce change of address reporting requirements that had been part of the INA since 1952 but were rarely publicized or enforced.
§ 1-9.4 Investigations and Detentions
In 2001 and 2002, the U.S. government carried out extensive investigations that targeted thousands of non-citizens, primarily from Arab and Muslim backgrounds. The Department of Justice interviewed approximately 8,000 non-citizens from Muslim and Arab backgrounds in an attempt to find people with information about terrorist activities. Some non-citizens suspected of ties to terrorism were detained for weeks or months without formal charges. Ultimately, none of the detainees were found to have terrorist connections, but the vast majority was removed because of immigration violations. The INS refused to release information about people held in these "special interest" cases, and the Executive Office for Immigration Review authorized their removal hearings to be closed to the public. In addition, non-citizens from Muslim and Arab backgrounds were frequently singled out for enforcement of routine immigration violations. These practices were challenged in several cases, with mixed results. See, e.g., Center for National Security Studies v. Department of Justice (D.D.C. 2002) (ordering release of information about special interest detainees); Detroit Free Press v. Ashcroft (6th Cir. 2002) (ordering removal hearings opened to the public); North Jersey Media Group, Inc. v. Ashcroft (3d Cir. 2002) (upholding closure of removal hearings).
§ 1-10 MORAL AND POLICY ISSUES OF IMMIGRATION
Immigration transforms the demographic profile of the U.S. population, particularly in large cities. Fears of overcrowding, unemployment, scarcity of resources, and of cultural fragmentation make the politics of immigration extremely complex. Immigration law is the principal means by which the country not only determines who will gain access to the limited resources and opportunities in the U.S., but also what will be the national and cultural identity of the U.S.
The argument in favor of free immigration C that is, an "open-door" policy of admission C asserts that fears are greatly exaggerated that the U.S. national and cultural identity will be destroyed by immigration. The United States functions best as a heterogeneous, diverse population, and is expansive enough to absorb many new immigrants. Contrary to fears about job security, immigration is a necessary ingredient in plans for future U.S. economic growth and an enlarged workforce. In fact, even the influx of unskilled workers C often the group most feared for the potential to sap the country's social programs and resources C aid U.S. economic growth by filling jobs that many U.S. citizens and permanent residents do not want.
There is a moral component to the argument in favor of free immigration as well. Given the U.S. tradition as a country of immigrants, it is difficult to comprehend how current citizens C almost all of whom have benefited from immigration C can claim any right to exclude future immigrants. Also, family reunification is at the core of much of our immigration policy and is based upon a fundamental respect for the right to be with one's loved ones. Moreover, immigration law is only as effective as its enforcement. Weak enforcement and illegal immigration mock the actual numerical limits. Some scholars argue that the U.S. should adopt an immigration policy commensurate with the country's capacity for enforcement, or at least, legally recognize the actual number of non-citizens who enter the U.S.
The arguments against free immigration C that is, for maintaining a restrictive immigration policy C have figured prominently in the history of U.S. immigration law. These reasons are often based upon a fear that increased immigration will compromise the U.S. standard of living. It is argued that the very reason immigrants have historically been attracted to the United States C i.e., the "American Dream" C is weakened if the country becomes overcrowded.
Specifically, the arguments against more lenient immigration are as follows: First, xenophobia plays a strong role in persons who seek to protect the cultural identity of the U.S.; the English-only movement is one example. Second, individuals who oppose freer immigration argue that there are finite resources and jobs; accordingly, U.S. citizens and lawful permanent residents should not have to compete with immigrants for them. Third, advocates of a restrictive immigration policy argue that there must be limits somewhere C certainly, the U.S. cannot allow the whole world to come here. Once the need for some limits is recognized, the U.S. ought to structure those limits in a realistic and pragmatic way that will be most advantageous to the future of the U.S. Fourth, some scholars argue that the U.S. should commit its resources to helping needy countries so that potential immigrants will be encouraged to remain in their developing countries. This perspective contends that immigration is a drain on other countries§ human resources. All countries would benefit if these potential immigrants remained in their country of origin.
The tension throughout the debate comes from the fact that the U.S. is largely a nation of immigrants who did not inherit this land by divine right, but rather, by an open immigration policy and by taking the land from the indigenous inhabitants. It appears to be an act of selfishness, if not moral ingratitude, to bar future groups seeking to immigrate. In addition, U.S. citizens like to believe that our nation helps the world's needy, sharing the plentiful resources that this country enjoys. U.S. immigration policy turns on this moral inquiry: what is the U.S. obligation to those people in need of a better place to live, and where should the lines be drawn?
Some political forces have played upon the nation's fears that open borders will exacerbate domestic problems such as crime, drugs, urban violence, unemployment, and homelessness. They remain unconvinced that freer immigration is a pragmatically or morally persuasive policy. Fears that foreign nationals will seek admission to the United States have influenced immigration policy for more than a century. Although this concern has come to the forefront of national attention since September 11, 2001, the attempt to keep out so-called dangerous elements B whether anarchists, Communists, or terrorists B has been a constant theme of immigration regulation.
Most immigration legislation has represented a compromise between these competing viewpoints. The 1990 Immigration Act, the 1996 acts, and legislation of the late 1990s all attempt to strike a balance between encouraging immigration of persons with family connections to the U.S. and individuals with skills that are needed in the U.S. economy, on the one hand, and preventing immigration of those people who would pose a financial burden or threaten the security of the nation on the other. Since September 11, 2001, the balance seems to have shifted in favor of preserving national security at the expense of free immigration, raising new questions about the right to exclude others and the treatment of non-citizens within the U.S.