The Changing Face of Immigration Law

Christina DeConcini, Jeanine S. Piller, and Margaret Fisher

The United States is a nation of people who came from somewhere else. Fifty million newcomers have been introduced to the United States since the early nineteenth centuryóthe largest international transfer of population in modern history. Yet, historically, the country has been ambivalent in its response to immigrants with regard to both their legal rights and responsibilities as potential citizens and the question of whether they strengthen or weaken the nation. Our laws and social history reflect this ambivalence.

People who are not citizens must meet specified requirements set out by law in order to enter or remain in the United States. At times, the country has extended a warm welcome to almost all persons fleeing persecution or trying to improve their lives. At other times, the welcome has been significantly cooler, resulting in the enactment of laws to discourage immigration. The United States is now in the midst of another cold spell, with recent legislation reflecting a strong anti-immigrant movement.

Consider the following questions, which address a number of issues that influence attitudes toward immigration and perceptions of immigrants.

> Do most immigrants enter the United States legally?

According to the most recent figures of the U.S. Immigration and Naturalization Service (INS), which involve all newcomers to the United States in fiscal year 1996, 915,171 (77%) arrived as legal immigrants, while 275,000 (23%) entered without documentation. The federal government has undertaken some highly visible efforts to reduce the number of undocumented immigrants.

> Do immigrants take jobs away from Americans?

Whether immigrants are an economic benefit or burden is a key issue in the national immigration debate. Legal immigrants create more jobs than they themselves fill, and contribute substantially to the U.S. economy by starting new businesses and purchasing U.S. goods and services. They are less apt to call for services than native-born Americans.

Even before being permitted to enter the country, those who aspire to immigrate legally must prove that they will not be a burden on the economy by demonstrating that they have the skills or financial resources to be productive. Yet states fret over the cost of those who enter without documentation. In 1994, for example, California estimated that it was spending some $3 billion a year on schooling for undocumented immigrants and their children.

> On what basis are immigrants admitted to the United States?

The immigration process, which is highly regulated and tightly controlled, is based on the three fundamental values of family, work, and freedom. In keeping with these values are the four principal ways (apart from as a tourist, student, or diplomat) in which foreign-born individuals may enter the United States legally: (1) as a family-based immigrant sponsored by a close family member who is either a U.S. citizen or a legal permanent resident; (2) as an employment-based immigrant sponsored by a U.S. employer; (3) as a diversity immigrant selected through a lottery system; or (4) as a refugee or asylum seeker fleeing persecution in a hostile homeland.

Sixty-five percent of legal immigrants come to reunite with close family members, such as parents, spouses, or children (aunts, uncles, and cousins do not count). Most of another 26% are workers (who must demonstrate that they have a skill or talent needed for a job for which no U.S. citizen is available) or refugees and other asylum seekers (the latter required to show that they would be persecuted because of their race, nationality, or political or religious beliefs, if they were to return to their own country).

> Are todayís immigrants assimilating into American society?

Immigrants today are learning English at the same rate as those before them and, according to a study by the nonpartisan Urban Institute, there is no evidence that the English-language ability of recent immigrants is declining. Many urban schools have long waiting lists for classes in English as a second language. On the social side, parents and especially grandparents of immigrant children have expressed concern that their offspring are assimilating too quickly into American cultureóthat they do not respect their elders or speak their native language, and they watch too much television.

Recent Laws Affecting Immigration

Laws governing immigration have existed almost since the beginning of the nationís history and are based on the U.S. Constitution, which granted Congress the authority to establish a uniform rule of naturalization. Some of the most important benchmarks in the development of immigration law are described in Table 1.

The U.S. Immigration and Naturalization Service, an agency of the Department of Justice, is responsible for enforcing the laws regulating the admission of foreign-born persons to the United States and for administering various immigration benefits, including the naturalization of new citizens. The INS also works with the Department of State, the United Nations High Commissioner for Refugees, and the Department of Health and Human Services in the admission and resettlement of refugees.

The most recent immigration law, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of 1996, has put more authority in the hands of INS officials than ever before. In addition to tightening controls on illegal immigration, this act also makes it more difficult for legal immigrants to enter or remain in the United States.

INS agents may now arrest, detain or deport an immigrant if s[he] has entered the country without a visa or other immigration document; has entered legally but overstayed the allowed time; or has committed a crime in this country. Deportable offenses include, but are not limited to, drug possession, terrorist activities, and the commission of marriage fraud as a means of attaining entrance into the United States.

One of the 1996 actís most controversial provisions is for the ìexpedited removalî of persons seeking entry to the United States at the place of arrival. This rule permits an INS agent to summarily deny admission to an immigrant who does not possess the proper documents, or whom the officer believes to have fraudulent documents, without granting that person the right to an attorney. Immigrants so removed from airports or the border are banned from returning for five years. The INS agentís decision is not reviewable by any court.

Critics of this provision point to cases where a person trying to enter has had a valid visa and nevertheless been deported without the ability to appeal. Three circuit court cases (in the 1st, 2nd, and 9th circuits) have now held that immigrants have a constitutional right to judicial review of deportation orders, thereby calling into question the constitutionality of this portion of the IIRAIRA. With cases pending in other circuit courts as well, this issue will undoubtedly go before the Supreme Court as a question of whether non-citizens can be denied basic due process and the right to judicial review.

The overall effect of the 1996 Immigration Act (along with the Anti-Terrorism and Effective Death Penalty Act of the same year) has been to greatly increase the number of persons whom the INS must detain or deport. As these laws take effect, the detainee population is swelling to record levels. Many detainees are asylum seekers with no criminal records or charges pending against them. Such people are often held in jails or detention centers far from family, friends, and legal resources, and may be treated like criminals until their cases are processed and/or they are deported.

According to a study by Robert L. Bach of the State University of New York at Binghamton, poor immigrants have greater unmet legal needs than do poor American citizens. Moreover, confronted with a system and language that are unfamiliar, applicants without some form of legal representation face nearly insurmountable odds in making their cases. Legal Services Corporation (LSC) funding is not available to most persons seeking legal status in the United States because Congress, initially under the Reagan Administration and again in 1996, has attached riders to the appropriations bill stating that such funding can not be used to assist them. At the same time, much evidence suggests that withholding such services neither results in immigrants being sent home nor prevents them from coming here.

While immigration and citizenship are primarily federal matters, the states have independent authority in certain instances involving immigrants. For example, both federal and state fair-employment and anti-discrimination laws protect immigrants from employment discrimination based on ìnational origin.î States have nevertheless passed laws to exclude non-citizens from specified civil public employment (as teachers and police officers, for example), although they have not been allowed to block permanent residents from other occupationsónotably that of attorney.

Two other pieces of legislation passed in 1996 have affected the status of immigrants. The Personal Responsibility and Work Opportunity Reconciliation Act (better known as the ìwelfare reformî act) restricts the eligibility of legal immigrants for most federal benefit programs, and allows states to eliminate immigrant eligibility for their benefit programs. However, benefits for the very young, the very old, and the disabled have since been restored.

The Anti-Terrorism and Effective Death Penalty Act of 1996 expanded the list of crimes that provide grounds for deportation, and called for jailing legal permanent residents and other non-citizens who have such convictions on their criminal records. The INS lobbied recently to extend a two-year grace period on enforcement of the act. Human rights, religious, and immigrant advocacy groups, which have complained of widespread abuses in an already over-taxed INS detention system, supported the extension. Nevertheless, the grace period expired in October 1998. The INS estimates that from 1,000 to 15,000 new jail beds will be needed to meet the new detention rules, and says it lacks the space, personnel, and budget to meet this need. How the INS will handle implementation is uncertain, but officials say there will be no mass arrests nor any mass releases from detention.

Immigrants in the Legal System

The American legal system is the immigrantís gateway to full membership in American society; yet nearly every aspect of the legal system presents challenges to immigrants. Some have a long-standing and, in many cases, culturally grounded mistrust of government, with no concept of individual rights as we understand them in the United States. For example, in any number of countries, individuals are routinely subjected to the interests of the state. An independent judiciary is the exception, not the rule, in some parts of the world.

Juries are not used in most countries, and newcomers are likely to consider a court-appointed attorney to be an instrument of the government who is not in the least concerned about promoting a defendantís interestsóexcept, perhaps, to plead for mercy. This view of the role of defense lawyers may lead to suspicion of court-appointed attorneys and the public defender system in the United States, making it difficult for lawyers to be effective advocates for immigrant clients. Yet newcomers to the United States are often in great need of legal assistance, since they are frequently victimized by discrimination in housing, schools, and the workplace, where unscrupulous employers may capitalize on their vulnerabilities.

Abused immigrant women present a special problem. While any woman involved in an abusive relationship may be financially and psychologically dependent upon her victimizer, for an immigrant woman, the ties that bind are far more complex. Her dependency on the abuser may be enhanced if he has agreed to sponsor her for citizenship or permanent residency. Although abused immigrant women may petition, without sponsorship by spouses or parents, for legal permanent residence, they seldom do so because of the systemís complexities.

The same is true for abused immigrant children in foster care. However, through a special provision, these children can gain the legal resident status that is the key to obtaining life-sustaining public services. With legal assistance, many of these children have been able to find work, go to college, and connect with the American community.

Pro Bono Legal Services

The pro bono (free) work of lawyers plays a large role in ensuring that immigrants have equal access to our justice system. These lawyers may assist in any number of services, from helping immigrants work through an incomprehensible pile of citizenship-related paperwork to preventing a miscarriage of justice when an immigrant has been falsely accused of a crime.

Take the case of Ngozi Eboh, a Nigerian native and 10-year resident of Washington, D.C. According to her: ìI was a prisoner in my own home. My husband was threatening me and refused to sponsor me for legal permanent residence.î With legal assistance from a pro bono attorney, Ms. Eboh finally gained legal permanent residency in the United States, and is now a counselor working with mentally disabled adults.

In another case, pro bono involvement in the legal affairs of immigrants not only furthered their cause, but had an uplifting effect on the small American community where they were being detained. This occurred when a coalition of bar associations (partially funded by the American Bar Association) launched a project to help the survivors of a shipload of Chinese asylum seekers that had run aground off the coast of New York State. The INS placed more than one hundred of them in a detention facility in York, Pennsylvania, a town whose citizens were largely unacquainted with the experiences and outlooks of Chinese people.

After community attorneys joined the legal team handling the cases, the townspeople became aware of some interesting facts: (1) these refugees were fleeing from persecution, including forced sterilization, in their homeland; (2) they had been exploited by smugglers on route to the United States; and, (3) far from being hostile or aggressive, they were frightened. Responding to their need for help, the people of York supported the refugees by donating food and clothing, attending vigils, and providing housing and jobs for those released. The community volunteers became so committed that they bought a property in downtown York that will serve as a permanent halfway house for other immigrants released from the prison.

Conclusion

Whatever their origins and circumstances, todayís immigrants are a growing and permanent feature of Americaís landscape. These new Americans are dramatically changing our neighborhoods, our cities, and the future of our society. Our nationís constitutional protections of due process and equal protection under the law provide the framework by which the rights of immigrants can, and should, be protected.

Bibliography

Bach, Robert L. Becoming American, Seeking Justice: The Immigrantsí Legal Needs Study. Binghamton: State University of New York,1996. Funded by the Ford Foundation.

Baker, Susan Gonzalez. The Cautious Welcome: The Legalization Programs of the Immigration Reform and Control Act: Program for Research on Immigration Policy. Washington, D.C.: Urban Institute Press, 1990.

Calavita, Kitty. Inside the State: The Bracero Program, Immigration, and the INS After the Law. New York: Routledge, 1992.

Cozic, Charles P., ed. Illegal Immigration: Opposing Viewpoints. Opposing Viewpoint Series (unnumbered). San Diego, CA: Greenhaven, 1997.

Fix, Michael, and Jeffery Passel. Immigration and Immigrants: Setting the Record Straight. Washington, D.C.: Urban Institute Press, 1994.

Gilboy, Janet. ìDeciding Who Gets In: Decision-making by Immigration Inspectors.î 25 Law and Society Review: 571-99.

Higgins, Michael. ìBorder War.î ABA Journal (July 1998): 62-66.

Jacobson, David. Right Across Borders: Immigration and the Decline of Citizenship. Reprint edition. Baltimore: Johns Hopkins University Press, 1998.

Konvitz, Milton Ridvas. Civil Rights in Immigration. Westport, Conn.: Greenwood, 1977.

Lemay, Michael C. Anatomy of a Public Policy: The Reform of Contemporary American Immigration Law. Westport, Conn.: Praeger, 1994.

McClain, Charles, ed. ìChinese Immigrants and American Law.î Asian Americans and the Law, vol. 1. New York: Garland, 1994.

Salyer, Lucy E. ìLaws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law.î Studies in Legal History. Chapel Hill: University of North Carolina Press, 1995.

Schuck, Peter H. ìCitizens, Strangers, and In-Betweens: Essays on Immigration and Citizenship.î New Perspectives on Law Culture, and Society. Boulder, Colo.: Westview Press, 1998.

Schwartz, Warren F., and Warren A. Schwartz, eds. ìJustice in Immigration.î Cambridge Studies in Philosophy and Law. New York: Cambridge University Press, 1995.

Teaching Resources

Organizations

American Bar Association Immigration Pro Bono Development and Bar Activation Project 740 15th Street, N.W. Washington, DC 20005-1022 (202) 662-1698 FAX: (202) 662-1032 E-mail: immigprobono@abanet.org http://www.abanet.org/immigprobono

American Immigration Lawyers Association (AILA)/American Immigration Law Foundation (AILF) 1400 Eye Street, N.W., Suite 1200 Washington, DC 20005 (202) 216-2400 FAX: (202) 371-9449 http://www.aila.org

Close Up Foundation 44 Canal Center Plaza Alexandria, VA 22314-1592 (800) CLOSE UP (256-7387) http://www.closeup.org

Immigrant Legal Resource Center (ILRC) 1663 Mission Street, Suite 602 San Francisco, CA 94103 (415) 255-9499 FAX: (415) 255-9792 E-mail: ILRC@ILRC.org

Lawyers Committee for Human Rights 333 7th Avenue, 13th Floor New York, NY 10001 (212) 629-6170 and 100 Maryland Avenue, N.E., Suite 502 Washington, DC 20002 (202) 547-5692 http://www.lchr.org

Mexican-American Legal Defense and Educational Fund (MALDEF) 634 Spring Street, 11th Floor Los Angeles, CA 90014 (213) 629-2512 E-mail: maldefla@aol.com http://www.maldef.org

National Council of La Raza (NCLR) 1111 19th Street, N.W., Suite 1000 Washington, DC 20036 (202) 785-1670 http://www.nclr.org

National Immigration Law Center (NILC) 1102 South Crenshaw Boulevard, Suite 101 Los Angeles, CA 90019 (213) 938-6452 FAX: (213) 964-7940

National Immigration Project 14 Beacon Street, Suite 602 Boston, MA 02108 (617) 227-9727 FAX: (617) 227-5495

Publishers

Federal Publications 1120 20th Street, N.W., Suite 500 South Washington, DC 20036-3484 (202) 337-7000 FAX: (202) 659-2233 http://www.fedpub.com

Reports and analysis of immigration law, legislative developments, litigation; training seminars geared to the business practitioner

Matthew Bender and Co., Inc. P.O. Box 22030 Albany, NY 12201 (518) 487-3385 http://www.bender.com

Comprehensive treatise of all facets of immigration and nationality law and procedure and a portable version of INS regulations.

WestGroup 610 Opperman Drive Eagan, MN 55123Deerfield, IL 60015-4998 (800) 221-9428 FAX: (612) 687-7302 http://www.westgroup.com

Books and manuals on immigration law practice and a periodical with case law and trends in the law

Websites

Administrative Office of the United States Courts/Public Affairs Office http://www.uscourts.org

Northwestern Universityís Oyez, Oyez, Oyez http://oyez.nwu.edu

Street Law, Inc. http://www.streetlaw.org

Supreme Court of the United States http://www.law.cornell.edu

U.S. Immigration and Naturalization Service (INS) http://www.ins.doj.gov

Christina DeConcini is director, and Jeanine S. Piller is assistant director, of the ABA Immigration Pro Bono Development and Bar Activation Project. James Crawford contributed to this article. Margaret Fisher is an attorney and educator in Seattle, with over 21 years of experience in educating the public in the law.
 



Table 1. Immigration Benchmarks

1787 The U.S. Constitution is ratified; Article I, Section 8, Clause 4 grants Congress the authority to establish a uniform rule of naturalization.

1789 The Alien and Sedition Acts are passed by Congress, authorizing the President to deport any foreigner deemed to be dangerous and to prosecute anyone who criticizes the government. The Naturalization Act of the same year limits immigrantsí waiting period for citizenship to14 years (changed to five years in 1802).

1837 The Supreme Court in New York v. Miln (36 US 102) affirms the right of state governments to set immigrant admission standards and to reject those who do not meet these criteria.

1849 In the Passenger Cases (48 US 283), the Supreme Court reverses its position in New York v. Miln, ruling that state laws imposing taxes on immigrants infringe congressional powers to regulate commerce; with few exceptions, this decision places the immigration of free persons solely under federal authority.

1857 In Dred Scott v. Sandford (60 US 393), the Supreme Court holds that descendants of African American slaves can never become citizens of the United States.

1864 The first Federal Immigration Office is created within the Department of State and abolished four years later.

1875 In Henderson v. Mayor of New York (92 US 259), the Supreme Court holds unconstitutional all seaboard state immigration laws as usurping Congressís exclusive power to regulate foreign commerce.

1875-1927 The Supreme Court develops the ìclassical modelî for dealing with distinctions between citizens and noncitizens. This distinguishes three levels of rights or interests: (1) those rights that are natural or quasi-natural and cannot be denied to either citizens or noncitizens, (2) those interests that can be denied to either citizens or noncitizens, and (3) those rights that cannot be denied to citizens but can be denied at will to noncitizens.

1882 Congress passes the Chinese Exclusion Act, suspending immigration by Chinese laborers for 10 years. The measure is made even more restrictive in 1892, and a permanent ban on Chinese immigration is enacted in 1902.

1888 Congress establishes a select committee to investigate problems caused by divided authority over immigration. It recommends consolidating this authority within a single federal agency.

1891 Congress passes the Immigration Act to create the Bureau of Immigration within the Department of the Treasury. The Bureau opens 24 inspection stations, including Ellis Island, at ports of entry in major seaports and along both borders of the country.

Late 1800sóearly 1900s The federal government continues to strengthen its control of immigration, stiffening admissibility standards and ending free and unlimited immigration policies.

1903 The Bureau of Immigration is moved to the Department of Commerce and Labor and its responsibilities increased.

1906 Congress passes the Naturalization Act, creating the Bureau of Immigration and Naturalization; the combination is split in 1913.

1921 Congress passes the Quota Act, limiting immigrants of specified nationalities to three percent of their numbers already in the United States, but not restricting immigration from the Western Hemisphere.

1924 The Quota Act Amendment effectively cuts off immigration from Japan; the more general quota is lowered to two percent of residents from each nationality.

1933 The U.S. Immigration and Naturalization Service (INS) is formed when immigration and naturalization are recombined within the Department of Labor.

1940 INS moves to the Department of Justice to provide more effective control over immigrants.

1948 The Universal Declaration of Human Rights is adopted by the U.N. General Assembly. Article 14 declares: ìEveryone has the right to seek and enjoy in other countries asylum from persecution.î

1952 The Immigration and Nationality Act sets out the basic requirements, amended but still in effect today, for naturalization, immigration, deportation, and admission.

1980 In passing the Refugee Act, Congress defines refugee and recognizes an obligation to admit refugees from other countries.

1986 The Immigration Reform and Control Act (IRCA) grants amnesty to 3 million undocumented residents, punishing employers of persons who have entered the country without documentation and making it more difficult for undocumented immigrants to find jobs.

1996 The Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) is enacted, further tightening controls on undocumented immigration. The Anti-Terrorism and Effective Death Penalty Act expands the grounds for deportation, and the Personal Responsibility and Work Opportunity Reconciliation Act restricts legal immigrantsí eligibility for most federal benefit programs and allows states to eliminate immigrant eligibility for their benefit programs. Some of these eligibility restrictions have since been restored.
 
 

Table 2. The Road to Citizenship

There are nine basic requirements by which applicants become citizens, although there may be some circumstances where exceptions apply. Applicants must

> Be lawful permanent residents

> Have made their home in the United States for at least the past five years (three years if married to a U.S. citizen)

> Have been physically present in the country for at least half of the five-year period (tourist and business trips are acceptable if not exceeding the aggregate limit)

> Have not disrupted their continuous residence in the United States (by residing elsewhere as the citizen of another country) for any of those five years

> Have good moral character and not be barred from naturalization

> Have a basic understanding of English

> Pass a test on U.S. history and government

> Be at least 18 years old

> Believe in the principles of the U.S. Constitution and take an oath of loyalty to the United States
 

Teaching Activities

Margaret Fisher

Ask individual students and/or student groups to complete these activities, which are designed to familiarize them with useful resources for learning more about immigration and naturalization laws. Unless a source is stipulated, see ìReferencesî and ìTeaching Resourcesî for recommended readings, contacts, and websites.

1. Prepare a visual display of the current yearís statistics about the countries of origin of documented and undocumented immigrants to the United States. Highlight the numbers of immigrants to your state. See especially the U.S. Immigration and Naturalization Service website.

2. Find the answers to the following questions given in this article. Then ask three adults to answer the questions. Do their answers agree or disagree with the article? With each other? What does this tell you about attitudes toward immigration?

> Do most immigrants enter the United States legally?

> Do immigrants take jobs away from Americans?

> On what basis are immigrants admitted to the United States?

> Are todayís immigrants assimilating into American society?

3. Find out whether or where English as a second language (ESOL) classes are being taught in your community: In your school? In a local college? In an immigration or social service agency? By community volunteers?

4. Obtain a copy of the citizenship examination and see if you can pass it.

5. Consider what information is essential to being a good citizen and write your own test for citizenship.

6. As a community service-learning project, volunteer with other students to help people seeking to become naturalized prepare for their citizenship exam.

7. Do a family history, charting when and under what circumstances you or your ancestors came to the United States. Identify what, if any, immigration laws were in effect at the time of arrival in the United States.

8. Investigate the September 1, 1998, decision in Magana-Pizano v. Immigration and Naturalization Service, 1998 U.S. App. LEXIS 21355, on whether immigrants should be allowed to petition for a writ of habeas corpus. Conduct a moot court hearing on this issue in your classroom. This case can be found on the World Wide Web at www.law.vill.edu/Fed~ct/ca09.html.

9. Investigate the ìexpedited removalî procedure outlined in the 1996 Illegal Immigration Reform and Immigrant Responsibility Act. Prepare arguments both for and against the constitutionality of this process, and conduct a mock appellate hearing. The statute can be found at the Supreme Court website.

10. Create a hypothetical case in which a person or family from a specific country is seeking admission to the United States. Determine whether your person/family is seeking asylum, is emigrating as a close family member, is in the diversity program, or is entering the United States as a needed worker. Investigate specific steps this person or family would have to take, including forms to be completed, fees to be paid, and the timeline for processing, and present a written report to the class.

11. Obtain and conduct the mock trial, In the Matter of Toni Radcliffe, available from Street Law, Inc. Toni Radcliffe is a high school student petitioning the INS for asylum in the United States.

The ABA Division for Public Education offers handbooks, instructional materials, and many other learning tools for teachers, students, and community members interested in increasing their understanding of the law and the legal system, and their ability to become productive contributors to the civic life of their communities. For information on programs and services of the division, contact: ABA Division for Public Education, 541 N. Fairbanks Court, Suite 1500, Chicago, IL 60611-3314; http://www.abanet.org/publiced; (312) 988-5735; FAX: (312) 988-5494; E-mail: abapubed@abanet.org.