Immigration Debate Groundwork

One of the difficulties in having a national debate over immigration issues is the confusing nature of our immigration policy. So to help solve part of that problem, here is some foundational information about our immigration system.

• Immigration is a distinctly different process than naturalization. The former gives legal permanent resident (LPR) status (also known as a green-card). The latter bestows citizenship. With very few exceptions (such children adopted by US citizens), an alien must first be a legal resident for a set number of years before he can apply for citizenship. Bestowing legal residence is not the same as bestowing citizenship. Popular discussions often confuse the two.

• The Constitution nowhere gives the federal government power to establish or enforce an immigration policy. It only addresses naturalization. (Article 1, Section 8, clause 4.) When faced with this issue, the Supreme Court upheld the power of the Federal Government to exclude and remove aliens as part of inherent sovereignty. See Chae Chan Ping v. United States, 130 U.S. 581 (1889) and Fong Yue Ting v. United States, 149 U.S. 698 (1893). For a bit of interesting historical trivia, Justice Field, who authored the 1889 opinion finding authority to exclude aliens dissented from the 1893 opinion finding authority to deport them.

• The United States had virtually open borders for almost its first hundred years. The first substantive immigration restrictions, excluding criminals and prostitutes, were adopted in 1875. The first categorical restrictions, excluding Chinese, were adopted in 1882 (these were the ones challenged on Constitutional grounds). The first numerical limitations on immigration were adopted in 1921.

• Most immigration violations are administrative matters, not criminal violations. The only “sentence” an immigration judge can impose is deportation. Consequently, illegal immigrants, by and large, are not “criminals” and cannot be treated as such. See Wong Wing v. United States, 163 U.S. 228 (1896). However, because these are not criminal proceedings, the aliens involved do not benefit from criminal due process protections (such as the right to state-paid attorney or innocent until proven guilty, among others). Instead, it is a much more streamlined setting; and the burden of proof is always on the alien.

• With very few exceptions (asylum, lottery, and those with special skills being some of the larger ones), aliens cannot petition to enter the United States. Instead, they need either a relative or an employer to make the petition on their  behalf. Aliens who have neither here legally are out of luck. This means that for many, there is no line to get into.

• For those who can get a petition filed on their behalf by a family member, the type of relationship determines which line they go into:

• Spouses and children of US Citizens: no cap/no wait
• Unmarried sons or daughters (over 21) of US citizens: 7 year wait
• Spouses and children of permanent residents: 3 year wait
• Unmarried sons and daughters (over 21) of permanent residents: 8 year wait
• Married sons and daughters of US citizens: 11 year wait
• Brothers and sisters of US citizens: 12 year wait

If a child ages out of a category or otherwise loses qualification (gets married) prior to the application being processed, they lose their place. Notice that there are no sponsorships available for married children or siblings of LPRs. Also, because we still have some country limitations, the wait can be longer for those from China, India, Mexico, or the Philippines. For example, right now, applications filed in 1989 on behalf of US Citizen siblings in the Philippines are just being processed. Yes, that is a 24 year wait list.

• Those sponsoring immigrant family members must fill out an affidavit of support, demonstrating sufficient income so that the immigrant will not resort to public assistance. This is a legally binding contract, and the sponsor can be required to pay back any public assistance the immigrant does use. Additionally, the likelihood of being a public charge is grounds for exclusion, and actually becoming a public charge after entry can result in deportation.

• For those taking the employment route, unless they have exceptional abilities or advanced degrees, the wait is 6 years.

• Employers sponsoring immigrant employees must first go through a labor certification process with the Department of Labor, certifying that there are no US workers who can or will do the job.

• For those over eighteen who have been here illegally for over a year, there is a 10 year bar on applying. This is added to the above wait times. For those who have crossed the border without inspection twice, even if they were minors accompanying their parents, there is a lifetime bar. Absent a waiver, they can never be admitted legally.

• President Obama’s “amnesty” (Deferred Action for Childhood Arrivals, or DACA) merely uses prosecutorial discretion to not pursue or deport immigrants who entered illegally as minors (provided certain other criteria are met). This administrative procedure predates Obama. It was brought into the limelight in the 1970's by none other the Beatle John Lennon, who used it to avoid deportation on drug charges.

Immigration policy debate has been lurking under the headlines ever since the election, when the Republicans discovered that for some reason, their anti-illegal immigrant rhetoric didn’t resonate well with those whose friends and relatives are illegal. This week a bipartisan group of Senators outlined their reforms. It will be exciting to see where this goes next.