In U.S. immigration law, almost all immigration statutes are enacted at the federal level by Congress. The main immigration statute, the Immigration and Nationality Act (“INA”), was created in 1952. Before the INA, a variety of statutes governed immigration law but were not organized in one location. The McCarran-Walter bill of 1952, Public Law No. 82-414, collected and codified many existing provisions and reorganized the structure of immigration law. The Act has been amended many times over the years, but is still the basic body of immigration law used today.

Statutory Authority

The INA is divided into titles, chapters, and sections. Although it stands alone as a body of law, the Act is also contained in the United States Code (“U.S.C.”). Title 8 of the U.S. Code is but one of the fifty titles and deals with “Aliens and Nationality.” When browsing the INA or other statutes you will often see reference to the U.S. Code citation.

Example: Section 209 of the INA deals with adjustment of status of refugees. In addition, there is a parallel reference contained in 8 U.S.C. § 1159. Although it is correct to refer to a specific section by either its INA citation or its U.S. code, the INA citation is more commonly used among immigration lawyers.

While the INA provides the basic structure of the immigration systems, the various governmental agencies that administer the immigration laws promulgate regulations to implement the statute. These regulations are published in the Federal Register, and incorporated into the Code of Federal Regulations (“C.F.R.”).

INA Code Language

Public Laws Amending INA

The INA has been amended many times. When Congress enacts a law, it generally does not re-write the entire body of law, or even entire sections of a law, but instead adds to or changes specific words within a section. These changes are then reflected within the larger body of law. The language changing the larger body of law is generally referred to as the "amendatory" language.

Operation Instructions (OIs) as well as Interpretations were created to supplement and clarify the provisions of the statute and regulations. These materials usually are not included in the regulations because they deal generally with procedural matters and do not deal directly with application and benefit requirements.

Administrative Decisions Affecting INA

The BIA issues appellate administrative decisions that are binding on the DHS Bureaus responsible for enforcing immigration laws nationwide. Decisions of the BIA are binding on all DHS officers and Immigration Judges unless modified or overruled by the Attorney General or a Federal court. Although the BIA is not a Federal court, its decisions are subject to judicial review in the Federal courts. The Board has been given nationwide jurisdiction to hear appeals from certain decisions rendered by Immigration Judges and by DHS Bureau officers in a wide variety of proceedings in which the DHS Bureaus are one party and the other party is either an alien or a citizen. As previously mentioned, the BIA is part of the EOIR—a separate federal agency that is a component of the Department of Justice.

The BIA is composed of 11 Board Members, including the Chairman and Vice Chairman who share responsibility for Board management. The Board is located at EOIR headquarters in Falls Church, Virginia. Generally, the Board does not conduct courtroom proceedings—it decides appeals by conducting a "paper review" of cases. On rare occasions, however, the Board does hear oral arguments of appealed cases, predominately at its headquarters in Virginia.

The majority of appeals reaching the BIA involve orders of removal and applications for relief from removal. Other cases before the BIA include the exclusion of aliens applying for admission to the United States, petitions to classify the status of alien relatives for the issuance of preference immigrant visas, fines imposed upon carriers for the violation of immigration laws, and motions for reopening and reconsideration of decisions previously rendered. These topics will be discussed in more detail in the next two chapters.

Court Decisions Affecting INA

Historically, judicial review has served as an important check on the government’s power to control the entry, presence, and work authorization of aliens in the United States. Without judicial review, unlimited discretion over the fates of millions of aliens would be vested in the United States Citizenship and Immigration Services (USCIS).

Example: John Lennon had initially entered the U.S. on a waiver of inadmissibility, which was available for temporary trips. He cited the humanitarian reason of accompanying his wife (Yoko Ono) to testify in the custody proceedings of her daughter, Kyoko. Lennon was not admissible to the U.S. due to a conviction in the U.K. for possession of cannabis and obstructing justice. Initially, INS refused to rule on his petition (seemingly for political reasons). After adjudication by an immigration judge, Lennon’s application was denied because of his conviction. Ono was granted permanent-resident status. Subsequently, it took four trips to federal court before Lennon was granted permanent resident status five years later. See Lennon v. United States, 527 F.2d 187 (1975). Clearly, without the ability to seek review in the federal courts, Lennon would have been deported.

INA § 242, 8 U.S.C. § 1252, titled “Judicial review of orders of removal,” is designed to streamline judicial review of removal (called “deportation” under pre-IIRIRA law) decisions. Section 242(a) provides that exclusive jurisdiction to review final orders of removal remains in the circuit courts of appeal. Section 242(e) retains habeas corpus review of decisions regarding summary removal (analogous to “exclusion” under pre-IIRIRA law). The concept of preventing piecemeal review of non-final deportation decisions is codified in the new § 242(b)(9).

Example: Ali, a native and citizen of Bangladesh, fled Bangladesh and eventually entered Canada using a fake passport. In 1991, Ali entered the United States without inspection, where he later met and married an American citizen. The Service commenced removal proceedings against him on March 14, 1997. He challenged his removal by seeking asylum on the ground that he feared being persecuted in Bangladesh on account of his political opinion. At the conclusion of the hearing, the immigration judge rendered an oral decision denying Ali’s request for asylum. On June 19, 2002, the BIA summarily affirmed the immigration judge’s decision without an opinion. As a final step, Ali petitioned the Court of Appeals for review of the final order of removal issued by the Board. Due to the new restrictions on judicial review of removal orders enacted with IIRIRA, the Court lacked jurisdiction to review Ali’s petition. So, he will be deported. See Ali v. Ashcroft, 2004 FED App. 0117P (6th Cir.)

Clearly, the U.S.’s immigration policy over the years has evolved into a system that has more stringent requirements for those immigrants who desire to stay in the U.S.

Now that the foundation of immigration law has been laid, we can move on to more detailed analysis of how immigrants can gain entry to the U.S. and stay permanently, if they so choose.