Unit 1 federal power and admissions (classes 1 5)

Four questions that organize every immigration case

(1) Source: where the power comes from (statute or Constitution, and which power); (2) Scope: what the power permits; (3) Limits: what constitutional constraints apply; (4) Institution: who makes the rule (Congress), who enforces it (President, DHS, ICE, CBP), and what role courts play.

When did a centralized federal immigration system begin?

The 1870s through 1890s, starting with the Chinese exclusion laws and bars on people likely to become a public charge and people with criminal records. Before then, states regulated movement across their borders.

Page Act (1875)

Early federal exclusion law barring people with certain criminal records and women deemed likely to engage in prostitution; applied only to people from Asia.

Chinese Exclusion Act (1882)

Imposed a prospective ten-year moratorium on entry of Chinese laborers. Laborers already here could get a return certificate, leave, and re-enter by presenting it.

Burlingame Treaty (1868) vs. Angell Treaty (1880)

Burlingame provided for free migration between the U.S. and China; Angell permitted the U.S. to restrict Chinese migration but still allowed it.

Scott Act (1888)

Voided all Chinese laborers' return certificates, including those held by people already abroad who had left relying on them.

Geary Act (1892)

Required Chinese laborers already in the U.S. to obtain a certificate of residence, proven by at least one credible white witness; lacking one created presumptive unlawful presence.

Why could Congress ignore Chinese residents' interests in the 1880s?

Chinese immigrants could not naturalize and so could not vote; Congress answered the hostility of the voters who elected it.

Chae Chan Ping v. United States (1889): facts

A Chinese laborer who left San Francisco with a federal return certificate was refused reentry after the Scott Act voided all certificates.

Chae Chan Ping v. United States (1889): holding and takeaway

Congress may exclude noncitizens, even returning residents, as an inherent incident of sovereignty; a later statute overrides an earlier treaty; the certificate was a revocable license; exclusion is a political question. Origin of the plenary power doctrine over exclusion, grounded in sovereignty rather than an enumerated power.

Fong Yue Ting v. United States (1893): facts

Chinese laborers living in the U.S. were ordered deported under the Geary Act for lacking certificates of residence (requiring a white witness).

Fong Yue Ting v. United States (1893): holding and takeaway

The power to deport is as absolute as the power to exclude; deportation is not punishment, so no criminal trial or protections are required. Extends plenary power to the interior and establishes deportation as civil; dissents (including Field) argued the Constitution governs inside the border.

Trop v. Dulles (1958): facts

A native-born citizen was stripped of citizenship for wartime desertion.

Trop v. Dulles (1958): holding and takeaway

Denationalization as punishment is cruel and unusual. Shows how severe exile is, sharpening the tension with treating deportation as civil.

Last-in-time rule

Between a treaty and a federal statute, whichever is later controls as domestic law. It explains why the treaty loses but does not itself establish Congress's power to exclude.

Two distinct reasons courts may decline to review an immigration decision

(1) A statute limiting review (jurisdiction stripping); (2) the Court's view that the power is inherently political (Chae Chan Ping). Keep them separate.

Consequences of the civil label for deportation

No right to appointed counsel, no jury, no criminal-form Miranda rights, a different exclusionary rule; but deportation also cannot be used as punishment, and immigration detention cannot be punitive.

Unlawful entry as a crime

A separate federal misdemeanor (about six months maximum for a first offense), usually resolved with time served; deportation runs as a separate civil proceeding.

Civil/criminal tension in deportation

The conduct triggering deportation is not a crime, yet the consequences (loss of home, livelihood, family) rival criminal punishment, while the civil label withholds criminal protections. The divide cuts both ways: it also bars the government from punitive tactics, such as deterrence, in civil proceedings.

Exclusion vs. deportation

Exclusion keeps people out at the border; deportation expels people from the interior. Since 1996 both run through a single removal proceeding.

Plenary power doctrine: origin

Begins in Chae Chan Ping (exclusion) and extends to the interior in Fong Yue Ting (deportation), grounded in inherent sovereignty more than any single enumerated power.

Four factors that shape how much constitutional protection a noncitizen gets

(1) Who acts: state/local vs. federal political branches; (2) where the person is: border, interior, or legal threshold; (3) status and ties: entry, lawful residence, unlawful presence, community ties; (4) what the government does: regulation, detention, punishment, exclusion, or removal.

Yick Wo v. Hopkins (1886): facts

San Francisco denied laundry permits to all 200 Chinese applicants while granting 80 non-Chinese ones under a facially neutral ordinance.

Yick Wo v. Hopkins (1886): holding and takeaway

Discriminatory administration of a neutral law violates equal protection, which covers any person within the jurisdiction regardless of citizenship. Equal protection applies regardless of status; local economic regulation gets no plenary-power deference.

Bolling v. Sharpe (1954): facts

Companion case to Brown v. Board involving D.C. schools.

Bolling v. Sharpe (1954): holding and takeaway

The Fifth Amendment Due Process Clause contains an equal protection component binding the federal government. Explains why early federal immigration cases had no equal protection claim.

Wong Wing v. United States (1896): facts

Chinese noncitizens found unlawfully present were sentenced to hard labor without indictment or jury.

Wong Wing v. United States (1896): holding and takeaway

Hard labor is infamous punishment requiring full Fifth and Sixth Amendment process; temporary detention to effect removal is permissible civil custody. The government cannot build punishment into deportation; noncitizens facing criminal punishment get full criminal protections.

Yamataya v. Fisher (1903): facts

A Japanese woman who had entered was ordered deported four days later as a likely public charge, without understanding the proceeding or having counsel.

Yamataya v. Fisher (1903): holding and takeaway

A person who has entered may not be deported arbitrarily; due process requires an opportunity to be heard, which she received. Some process is due in deportation of people inside the U.S., but the amount is minimal and left open.

United States ex rel. Knauff v. Shaughnessy (1950): facts

A WWII veteran's German war bride was excluded on secret security information without a hearing.

United States ex rel. Knauff v. Shaughnessy (1950): holding and takeaway

For a person seeking initial admission, whatever procedure Congress authorizes is due process. The threshold rule: an applicant at the border has only the process Congress provides.

Shaughnessy v. United States ex rel. Mezei (1953): facts

A 25-year resident returned after 19 months abroad, was excluded on secret evidence, and was held indefinitely on Ellis Island because no country would take him.

Shaughnessy v. United States ex rel. Mezei (1953): holding and takeaway

His long absence made him a new entrant, entitled to no process beyond what Congress provides, even for indefinite confinement. Entry fiction at its peak; Jackson's dissent argued confinement itself deprives liberty and requires a hearing.

Why was there no equal protection claim in Chae Chan Ping?

The Fourteenth Amendment binds only states; equal protection was not applied to the federal government until Bolling v. Sharpe (1954) read it into the Fifth Amendment Due Process Clause.

Does plenary immigration power extend to states or to economic regulation?

No. Plenary immigration power belongs to the federal government and does not cover state/local action or economic regulation of a livelihood (Yick Wo).

Texas SB4

Modern parallel to Wong Wing: authorizes a state term of incarceration followed by a state deportation order for unlawful presence; being litigated.

Bosniak: "hard outside, soft inside"

Citizenship is exclusionary at the border (sovereignty) and egalitarian in the interior (equality and universal rights). From Linda Bosniak, The Citizen and the Alien (2006).

Bosniak: "liberal democracy"

Liberal in the political-theory sense (a democratic state), not liberal vs. conservative.

Bosniak: universal citizenship

Equality under law and equal rights beyond the Constitution and borders, like human rights to life and livelihood. Under the Constitution, equal protection turns on personhood, not citizenship.

How the interior cases map onto Bosniak

Yick Wo (equality), Wong Wing (punishment), Yamataya (process).

Entry fiction

A person on the threshold is treated as not having entered, with very few rights, even while physically in U.S. custody or on Ellis Island (Knauff, Mezei).

Statutory successor to the Mezei abandonment idea

INA § 101(a)(13)(C)(ii): an LPR absent too long (more than 180 days) is treated as seeking admission.

High point of plenary power

The 1950s cases (Knauff, Mezei), which remained the apex for 40 to 50 years until Trump v. Hawaii.

Personhood vs. plenary power timeline

Yick Wo (1886, equality), Wong Wing (1896, punishment), Yamataya (1903, minimal process), Knauff (1950, threshold exclusion), Mezei (1953, entry fiction extended).

Plenary power vs. personhood: core tension

Personhood cases affirm that persons have rights; plenary power cases let Congress make rules that would be unconstitutional if applied to citizens.

Immigration and Nationality Act (INA)

The central immigration statute (1952). It consolidated scattered immigration laws into Title 8 of the U.S. Code.

INA vs. U.S. Code citations

Courts usually cite 8 U.S.C.; agencies (DHS, ICE, immigration courts) usually cite the INA section. No formula converts one to the other; it must be looked up.

INA § 101 / 8 U.S.C. § 1101

Definitions.

INA § 202 / 8 U.S.C. § 1152

Per-country caps (7% of preference visas per country per year).

INA § 203 / 8 U.S.C. § 1153

Preference allocation: family (a), employment (b), diversity (c), derivatives (d).

INA § 208 / 8 U.S.C. § 1158

Asylum.

INA § 212 / 8 U.S.C. § 1182

Grounds of inadmissibility.

INA § 245 / 8 U.S.C. § 1255

Adjustment of status.

USCIS

U.S. Citizenship and Immigration Services (DHS): adjudicates benefits such as I-130 petitions, naturalization, adjustment of status, and affirmative humanitarian applications.

CBP

Customs and Border Protection (DHS): inspects travelers at ports of entry and polices border regions.

ICE

Immigration and Customs Enforcement (DHS): interior enforcement and deportation case processing. Its Office of the Principal Legal Advisor (OPLA) supplies the trial attorneys who prosecute removal cases.

EOIR

Executive Office for Immigration Review (DOJ): houses immigration judges and the Board of Immigration Appeals (BIA). These are executive branch administrative bodies, not Article III courts.

Office of Immigration Litigation (OIL)

DOJ office that represents the government on petitions for review from the BIA in the federal courts of appeals.

Role of the State Department in immigration

Consular officers at embassies and consulates decide visa applications for people abroad. USCIS serves people in the U.S. seeking to stay; State serves people abroad seeking to come in.

Role of HHS in immigration

Its Office of Refugee Resettlement (ORR) provides care and placement for unaccompanied children (shelter, schooling, medical care, sponsor placement) and works with trafficking survivors.

Agency roles: U.S. citizen petitioning for a spouse abroad

USCIS adjudicates the I-130; the State Department consular processes the visa; CBP decides admission at the port of entry.

Agency roles: unaccompanied child seeking asylum

CBP encounters and processes the child; HHS/ORR provides care and placement; ICE/OPLA represents DHS in removal proceedings; an EOIR immigration judge holds the hearing.

History of the INS

Formed in the Department of Labor (1933), moved to DOJ (1940), dissolved in 2003 with functions moved to DHS (USCIS, ICE, CBP) and DOJ's EOIR. DHS was created in 2002 after 9/11.

Why statutes refer to the Attorney General's immigration powers

They are often relics of the DOJ era; many of those decisions now belong to the Secretary of Homeland Security.

Four ways agencies implement statutes

Regulation, precedent decisions, guidance, and adjudication.

Regulations (immigration)

Generally binding rules codified in 8 C.F.R., usually adopted through notice-and-comment rulemaking. Can be challenged as contrary to law or arbitrary and capricious; easier to challenge than individual adjudications.

Precedent decisions

Published BIA or Attorney General decisions interpreting the statute. BIA precedent binds immigration judges and DHS adjudicators; the AG may modify or overrule BIA decisions. Federal circuit precedent governs within that circuit.

Loper Bright (2024)

Overruled Chevron: courts no longer defer to an agency's reading of an ambiguous statute and interpret it independently.

Guidance (agency)

Memos and policy manuals directing practice (e.g., prosecutorial discretion memos, sensitive-locations memo). Changes with administrations; harder to challenge than regulations because it is not hard law.

Executive orders and challengeability

Usually function like guidance and generally are not final agency action; agency decisions implementing them may be final agency action subject to challenge.

Adjudication (agency)

The agency deciding an individual case (e.g., denying an I-130). Agencies interpret the law daily in these decisions, which get limited review.

Nonimmigrant

A noncitizen admitted temporarily for a specific purpose under an enumerated class in INA § 101(a)(15) (e.g., student, tourist).

Immigrant (technical definition)

A residual category: every noncitizen not within a nonimmigrant class. Immigrants seek permanent stay, usually as LPRs, and need a statutory basis (family, employment, etc.).

1921 and 1924 national-origins quotas

1921: 3% of each nationality's foreign-born population in the 1910 census. 1924: 2% of the 1890 census with an annual cap of about 150,000, favoring northern Europe and barring Asians as "ineligible for citizenship."

Why was the Western Hemisphere outside the 1920s quotas?

Congress could not agree, and business interests opposed caps on Latin American migration.

Repeal of Chinese exclusion (1943)

Repealed exclusion but gave China a quota of only 105.

INA of 1952 and national origins

Kept the national-origins quotas and introduced priorities based on family ties and skills.

Hart-Celler Act (1965)

Abolished the national-origins formula, replacing it with a preference system and equal per-country limits (20,000 per Eastern Hemisphere country), and imposed the first overall cap on Western Hemisphere immigration (one reason for long Mexico waits).

Two lasting limits on immigrant visas

Per-country caps and overall yearly caps, which differ by category. Wait times depend on category and demand from the person's country.

Four pathways to permanent residence

Family (INA §§ 201(b), 203(a)); employment (§ 203(b), five preferences); diversity (§ 203(c)); humanitarian (refugees and asylees, §§ 207-209).

Which pathway gets the most immigrant visas?

Family, and immediate relatives are the largest single group. Employment gets less than family but more than diversity.

Who sets the annual refugee number?

The President, not Congress.

I-130

The family-based petition filed with USCIS by the U.S. citizen or LPR petitioner. Its filing date is the priority date.

Immediate relatives (INA § 201(b))

Spouse, unmarried child under 21, or parent of a U.S. citizen (citizen must be 21+ to petition for a parent). No numerical cap, no line, usually the fastest route.

Whom can an LPR petition for?

Only a spouse, child under 21 (F2A), or unmarried son/daughter 21+ (F2B), subject to caps. No parent or sibling category; the LPR must naturalize first.

F1

U.S. citizen's unmarried son or daughter 21 or older (23,400 + spillover).

F2A

LPR's spouse or child under 21 (77% of F2). Largely exempt from per-country limits and usually the fastest preference category.

F2B

LPR's unmarried son or daughter 21 or older (23% of F2).

F3

U.S. citizen's married son or daughter (23,400 + spillover).

F4

Brother or sister of a U.S. citizen who is 21+ (65,000 + spillover). The longest line.

FY 2026 family preference cap

226,000.

Relationships with no family category

Grandparents, grandchildren, in-laws, cousins, and similar; the categories rest on a nuclear-family model and formal relationships chosen for administrability.

Derivatives (INA § 203(d))

A preference principal's spouse and children share the principal's category, status, and priority date without a separate petition.

Do immediate relatives have derivatives?

No. Each family member needs an independent basis and a separate petition (e.g., a citizen's minor daughter's own child cannot derive).

Stepchildren as beneficiaries

A spouse's child is the petitioner's stepchild, which counts as a "child," so the petitioner can file for the stepchild directly.

Per-country cap (INA § 202)

No single country may receive more than 7% of family and employment preference visas in a year. A ceiling, not an entitlement; does not apply to immediate relatives; main source of backlogs.

Visa Bulletin

Monthly State Department publication controlling when people in preference categories may move forward through consular processing or adjustment.

Priority date

The filing date of the relevant petition (I-130 or labor certification). It stays the same throughout and is used for both Visa Bulletin charts.

Dates for filing vs. final action dates

Dates for filing: when the next application stage (NVC documents, adjustment filing if USCIS designates that chart) may begin. Final action dates: when the visa may issue or adjustment be approved.