Brief History of Immigration Law

Ever since its founding in 1776, and even before then, the United States has attracted immigrants from around the world. During the country’s infancy (about the first 100 years), there was little restriction on immigration. For well over two centuries, people from around the world flocked to the U.S. for the opportunities and freedom available to all, as an alternative to starvation, death, or a life full of hardship and suffering in their respective countries of origin.

In 1862, Congress enacted the first measure restricting immigration from certain groups. Additional restrictions were added in 1875.

1862 and 1875 Immigration Acts

• Were aimed at a specific group; people of Chinese origin
• Outlawed the transporting of Chinese immigrants on American ships
• Made the supplying of Chinese labor a felony
• Prohibited entry to criminals, paupers, prostitutes and those likely to become “public charges”
• Additional acts in 1882, 1885, 1891, 1903, 1907, and 1917 excluded immigrants for a variety of economic, health, moral, and physical reasons

In 1875, the U.S. Supreme Court in Henderson v. City of New York, 92 U.S. 259 (1875), declared state restrictions on immigration to be unconstitutional as an infringement on the federal power over foreign commerce.

In 1952, the Immigration and Naturalization Act (“INA”) was enacted. It consolidated previous immigration laws into one coordinated statute. As amended, the 1952 Act provides the foundation for immigration law in effect today. Some of the exclusions added in earlier acts remain a part of the immigration policy, serving as a continuing bar to entry into the U.S. The original INA featured:

• Qualitative controls—Congress retained the detailed “quality control” exclusions found in earlier legislation and added several new ones within a quota system.

• National origin quota system— national origins quota calculated differently than the original national origin quota and established a 150,000 person limit on immigration from the Eastern Hemisphere.

• First preference system for certain categories

Since 1952 Congress has enacted several significant amendments to the INA. The 1965 Immigration Act was a major development in U.S. immigration law. Specifically, the 1965 Act:

• Eliminated country-specific quotas
• Nearly doubled broad numerical limits from 154,000 to 290,000
• Changed Eastern Hemispheric annual quotas to 170,000 (20,000 per country)
• Created a first time annual cap of 120,000 for the Western Hemisphere
• Developed special preference rules making immediate family members exempt from numerical quotas

In 1986 Congress passed the Immigration Reform and Control Act of 1986 (“IRCA”) (also known as the Simpson-Mazzoli/Rodino Bill). That law attempted to address the problem of illegal immigration in two ways:

(1) Congress granted a one-time amnesty for certain out-of-status foreign nationals in the U.S. before January 1, 1982, enabling them to become permanent residents.

(2) Congress imposed employer sanctions on businesses that hired unauthorized workers.

Example: The Zheng family fled China and came to the U.S. in 1975. They entered the country without being inspected. As such, they remained in the U.S. illegally. After IRCA, they became eligible for the one-time amnesty program, which allowed them to become permanent residents.

This process legalized 2.7 million illegal aliens. IRCA also established requirements for verifying the employment eligibility of workers via completion of a Form I-9. The Form I-9 should be familiar to anyone who has sought employment since IRCA was enacted.

In 1990, Congress passed a series of amendments to the INA, collectively referred to as the Immigration Act of 1990 (also known as “IMMACT 90”), which increased legal immigration by 35%. The annual ceiling of immigrants was increased to 700,000 per year over the next three years and an annual ceiling of 675,000 per year for every year thereafter. The “green card visa lottery” was also part of this legislation, which provided the first diversity program for countries traditionally underrepresented, (e.g., Ireland and some African countries). As a result, almost nine million immigrants came to the U.S. in the 1990s.

In 1996 Congress took an even tougher stance toward out-of-status foreign nationals, enacting the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). This punitive immigration law imposed significant penalties for immigration violations, reversing a trend toward expanding due process for foreign nationals in the U.S.

Example: Nadalia was anxious to leave her country and move to the US. Accordingly, she purchased fraudulent documents in an attempt to enter the U.S. When she arrived in Chicago, it was discovered that the documents were fake. Under IIRIRA, Nadalia can be removed without a hearing or review unless she wants to apply for asylum or has a fear of persecution in her home country.

In addition, IIRIRA introduced the concept of “unlawful presence” and the 3- and 10-year bars to admissibility.

Example: Nadalia entered the U.S. on a student visa in 1998. She was permitted to remain in the U.S. for three years—until 2001. In 2003, Nadalia’s illegal status was discovered and she faced deportation (removal). Since she was out-of-status for over one year, she would be barred for 10 years from being readmitted to the U.S.

Following the terrorist attacks of September 11, 2001, Congress enacted the USA Patriot Act on October 26, 2001. The Act toughened security clearances and background checks for nonimmigrant and immigrant admittances into the U.S., tightened coordination between immigration-related government agencies, and increased the U.S. government’s ability to track foreign nationals in the U.S. Furthermore, in 2002, Congress moved most immigration functions from the Department of Justice to the Department of Homeland Security (“DHS”). The immigration functions at DHS are spread among three bureaus, which are described in more detail later.

As a general matter, aliens who are outside the U.S. have no constitutional rights and no basis for challenging their inadmissibility to this country.

Example: Loulou v. Ashcroft, (No. 02-3004) (8 th Cir. 4/28/04): Teyent Loulou, a native of Ethiopia, petitioned for review of a removal order issued by the Board of Immigration Appeals (BIA) holding her removable and ineligible for asylum and withholding of removal. Loulou alleged that she has a well-founded fear of persecution in Ethiopia because of her political opinion and ethnic group. At a hearing, Loulou testified that her parents had been persecuted in Ethiopia after her departure, but she presented no corroborating evidence. An immigration judge (IJ) found Loulou was not credible and she failed to provide easily obtainable documentation to support her claims. Loulou appealed, and the BIA affirmed without opinion under its recently adopted streamlined review procedure. In her petition for review, Loulou contends the streamlined review procedure violates due process and there was substantial evidence of her family's past persecution and of her well-founded fear of persecution to warrant a grant of asylum. Loulou’s petition for review was denied; the Court reiterated that the streamlined review procedure does not violate an alien's due process rights. See, e.g., Falcon Carriche v. Ashcroft, 335 F.3d 1009, 1012-15 (9th Cir. 2003); Georgis v. Ashcroft, 328 F.3d 962, 966-67 (7th Cir. 2003); Mendoza v. U.S. Attorney General, 327 F.3d 1283, 1288-89 (11 th Cir. 2003); Soadjede v. Ashcroft, 324 F.3d 830, 831-33 (5th Cir. 2003) (per curiam); Albathani v. INS, 318 F.3d 365, 375-78 (1st Cir. 2003). Specifically, an alien has no constitutional or statutory right to an administrative appeal (citing Mendoza, 327 F.3d at 1289).

In contrast, resident aliens possess recognized constitutional rights. Yet, these rights provide little protection in actual proceedings, even though the government must observe procedural Due Process. See, e.g., Japanese Immigrant Case, 189 U.S. 86 (1903).

Despite various modifications over the years, U.S. immigration law as we think of it today is primarily concerned with controlling the admission of foreign nationals, including the criteria and means for their selection and the basis and procedures for their removal.

Constitutional Sources of Immigration Law

The U.S. Constitution does not contain any specific language that gives either Congress or the President the power to control the entry of foreigners. Yet, the Constitution includes provisions that have been interpreted to give the federal government the authority to regulate the admission, removal and naturalization of aliens. As such, states are precluded from passing legislation that directly impinges on this area of federal dominion. This concentrated federal power is a direct contrast to the usual laissez-faire treatment afforded to family law issues, which are ordinarily left to the discretion of the states.

First, Article 1, § 8, clause 4, of the United States Constitution specifically grants Congress the power to establish a “uniform Rule of Naturalization.” Without this mandate, clearly there would be confusion surrounding immigration issues if each state was allowed to make its own rules. The Naturalization Clause, at Article I, § 8, clause 4, has served as an argument for federal control over immigration. Despite this seemingly inherent federal right, its power has been challenged over the years.

In the earliest cases, the U.S. Supreme Court looked to the federal power over foreign commerce. The Commerce Clause in Article 1, § 8, clause 3 of the U.S. Constitution provides Congress with the power “to regulate Commerce with foreign Nations, and among the several States.”

In other early cases, other specific constitutional provisions were cited to support the inference that the federal government possesses complete power over international relations, arguably including immigration matters. The Migration and Importation Clause of Article 1, § 9, clause 1 of the Constitution has also been considered a potential grant of power to Congress. This clause provides: “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight.”

The War Power, found in Article 1, § 8, clause 11, was another potential source of federal control over immigration. The War Power gives Congress the authority to “declare war.” The exclusion and expulsion of enemy aliens is also included in this power. In the Alien and Sedition Acts (enacted in 1798), Congress granted this power to the President. The Supreme Court upheld the constitutionality of such provisions in Ludecke v. Watkins, 335 U.S. 160 (1948). Thus, the Commerce, War and Naturalization Clauses taken together imply a federal right to regulate aliens. Such constitutional provisions are not the source of an implied right of the federal government to regulate aliens, but only show that the federal government is the national government and therefore the keeper of the inherent sovereign power to regulate international affairs.

Despite the federal government’s primary role in regulating immigration, the U.S. Supreme Court has stopped short of abdicating all responsibility for immigration law. Rather, the Court has reserved a narrow ground for review.

The U.S. Supreme Court eventually found the source of the federal power to regulate immigration in a combination of international and constitutional legal principles. The Chinese Exclusion Case v. United States, 130 U.S. 581 (1889), was the first case to hold that the federal power to exclude aliens is an incident of national sovereignty. The Court reasoned that every national government has the inherent authority to protect the national public interest. Subsequent cases reinforced national sovereignty as the source of federal power to control immigration and consistently reasserted the plenary and unqualified scope of this power. See, e.g., Fong Yue Ting v. United States, 149 U.S. 698 (1893).

The plenary and unqualified power of the federal government to regulate immigration, naturalization, and related foreign policy belongs to Congress. As such, the U.S. Supreme Court accords great deference to the naturalization guidelines set by Congress—the legislative branch. Specifically, the possible international consequences of decisions in this area have made the federal judiciary extremely reluctant to substitute its judgment for the legislature’s decisions.