Immigration law

Definition: Branch of law that deals with the entry and settlement of alien nationals in the United States

Significance: The gatekeeper of the borders of the United States, federal immigration law determines who may enter the country, how long they may stay, their status, their rights and duties while in the United States, and how they may become resident aliens or American citizens.

Under the U.S. Constiution, the U.S. Congress has complete authority over immigration. The courts have generally found issues regarding immigration to be nonjusticiable, and presidential power extends only to refugee policy. States have limited authority regarding immigration.

History

Primarily because of the need for labor and the spacious frontier, there was unrestricted immigration during the first one hundred years of the U.S. government’s existence. After the Civil War, federal law began to reflect restrictions on the immigration of certain groups, and in 1875 Congress passed a law barring convicts and prostitutes from admission. These were among the first of many “quality control” exclusions based on the nature of the immigrants. The list of unacceptable types of immigrants continued to grow in subsequent legislation. The Immigration Act of 1882, considered the first-general federal immigration act, added “lunatics,” “idiots,” and those likely to become public charges to the exclusionary list. For the first time, the act also imposed a head tax on every arriving immigrant, which served to defray administrative expenses. As numbers of immigrants increased steadily, immigration was regarded as a threat to the economy, and Congress expanded the list of “undesirables,” adding the diseased, paupers, and polygamists. Immigrants were required to take a physical examination to determine whether they were diseased.

The Bureau of Immigration was established in 1891. The forerunner of the Immigration and Naturalization Service (INS), the bureau was responsible for inspecting immigrants at all ports of entry into the United States. At the turn of the twentieth century, there was a sharp increase in immigration, which Congress attempted to control by excluding more classes of immigrants: epileptics, the insane, beggars, anarchists, the feebleminded, the tubercular, and those with a mental or physical defect that might affect their ability to earn a living. The quality controls were not easily enforced, however, and huge numbers of immigrants entered the United States from countries in southern or eastern Europe. Because the earlier quality control exclusions did little to restrict the flow of immigrants, groups favoring restrictions on immigration advocated literacy as an entrance requirement. A literacy bill was not passed, however, and a joint congressional-presidential commission to study the impact of immigration on the United States concluded that the country no longer benefited from a liberal immigration policy and should impose further restrictions, including literacy.

In 1921, Congress passed the Emergency Immigration Act, which established national immigration quotas. The Immigration Act of 1924 capped the number of permissible immigrants from each country, but this resulted in more surreptitious border crossing. Complex formulas resulted in unequal quotas that favored immigrants from northern and western Europe. The Great Depression essentially closed the country to immigration, while the post-World War II economic upswing brought an increase in immigration as President Harry S. Truman issued a directive admitting forty thousand war refugees.

Modern Immigration Law

The Immigration and Nationality Act (INA) of 1952, also known as the McCarran-Walter Act, eliminated racial restrictions on immigration but retained nationality-based quotas and created the Immigration and Naturalization Service to enforce the caps. When Congress passed the INA, it defined “alien” as any person lacking citizenship or status as a U.S. national. There are different categories of aliens, including resident and nonresident, immigrant and nonimmigrant, and documented and undocumented (or illegal), depending upon whether the alien has proper records and identification for admission into the United States. Those documents include a visa or valid passport, border-crossing card, permanent resident card, or reentry permit.

The need to curtail illegal immigration motivated Congress to enact the Immigration Reform and Control Act of 1986, which tightened criminal sanctions for those who hire illegal immigrants. The act also denied welfare benefits to undocumented aliens and legitimized certain aliens through an amnesty program. The Immigration Marriage Fraud Amendments of 1986 aimed to eliminate the practice of marrying to obtain citizenship. The Immigration Act of 1990 equalized the allocation of visas worldwide, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 changed certain language dealing with the process of alien entry into the United States.

Every person in the United States, including American citizens, has an immigration status that falls under one of these major categories:

  • U.S. citizens—persons born within the United States or born abroad to U.S. citizens, or who have naturalized 
  • lawful permanent residents—green card holders eligible to reside in the United States permanently and apply for naturalization 
  • asylees and refugees—persons granted asylum in the United States and persons who enter as refugees and who have not yet been granted permanent residence 
  • nonimmigrants—persons who enter the United States temporarily for specific purposes, such as tourism, study, short-term work, or business 
  • temporary protected status—persons who have obtained status as citizens of countries designated by the U.S. Congress to receive protected status because of armed conflicts, natural disasters, or other unusual circumstances 
  • out of status—persons who enter the United States lawfully on nonimmigrant visas that have either expired or had their terms violated 
  • undocumented aliens—persons who enter the country without inspection—usually from Canada or Mexico—or with a fraudulent passport 

Post-9/11 Immigration Reform

The terrorist attacks of September 11, 2001, on New York City and Washington, D.C., intensified efforts to confront problems dealing with America’s moral commitment to immigrants. President George W. Bush proposed a series of sweeping measures designed to combat terrorism, including the strengthening of borders. The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act was passed quickly and signed into law in October of 2001. The Patriot Act expanded the electronic surveillance powers of government and thus allowed greater intrusion on Americans’ civil rights. It provided for greater surveillance of aliens and increased the power of the attorney general to identify, arrest, and deport aliens.

The Patriot Act broadened the definition of “terrorist” to include anyone who endorses or provides financial support to a terrorist organization, or who actually participates in terrorist activities. To identify possible terrorists, U.S. consulates are required to check visa applicants’ names against “lookout lists” prior to issuing a visa, resulting in increased time for many noncitizens seeking admission to the United States and causing some people to be denied admission because they were incorrectly identified as terrorists.

In another reaction to the 2001 attacks, Congress enacted the Homeland Security Act in November of 2002, which established a new cabinet department— the Department of Homeland Security—to coordinate the antiterrorist activities of the government and reorganize immigration policy. Functions of the now abolished INS were divided among several agencies within the Department of Homeland Security. The federal government placed more than 300,000 aliens scheduled for deportation on a criminal list, more than doubled the number of border patrol agents, provided high-tech equipment to detect weapons that could be smuggled across Canadian or Mexican borders, enhanced the tracking of visitors to the United States, and gave the attorney general greater authority to expel anyone suspected of terrorist connections.

Americans have been deeply divided over immigration policy, and no consensus has emerged, although most people agree that policies had to be strengthened after the 2001 terrorist attacks. Opponents of these measures argue that these steps curtail civil liberties, particularly those of Muslims; supporters counter that the measures are important and significant tools in the war on global terrorism. Among other steps authorized in the name of national security, the government required special registration of certain Arab and Muslim noncitizens; arrested, detained, and interrogated large numbers of Arab and Muslim noncitizens; and engaged in their selective deportation. Special registration requirements were imposed by the executive branch on the ground that the political branches of the federal government had plenary power over immigration. Throughout history, harsh measures have been taken against unpopular groups in the name of national security. The internment of persons of Japanese ancestry during World War II is the best-known example.

Although early twenty-first century immigration laws are generally neutral on their face and do not discriminate on the basis of race, they have racially disparate effects. For example, ceilings on immigrant admissions from a single country in any year apply to all countries but have a disproportionate impact on prospective immigrants from Mexico as well as noncitizens from other developing nations such as China, India, and the Philippines because demand for immigration from those countries exceeds their annual ceilings. Increased border enforcement on the U.S.-Mexican border has had a disproportionate impact on Mexican citizens and undocumented Mexican migrant workers. Statistics from early 2006 indicated that the United States had no record of as many as twelve million undocumented immigrants, more than half of whom were of Mexican origin and representing more than double the approximately five million undocumented immigrants of the early 1990’s. Because there has been a dramatic increase in the undocumented immigrant population, it can be concluded that enhanced border enforcement has largely failed.

The Intelligence Reformand Terrorism Prevention Act of 2004 overhauled the government’s intelligence operations and created a director of national intelligence, answerable directly to the president, who was responsible for integrating the activities of fifteen agencies responsible for gathering intelligence information. Major provisions of the act include strengthening visa application requirements, creating a visa and passport security program within the State Department, establishing more stringent passport requirements for travel within the Western Hemisphere, developing a system to track people entering and leaving the United States, and increasing U.S.-Mexican border security. The number of detention beds for those awaiting deportation was increased, minimum standards were established for issuing driver’s licenses and birth certificates and for documents required for boarding airplanes, criminal penalties for alien smuggling were increased, and the General Accounting Office was required to study weaknesses in the asylum system. By 2009, all U.S. citizens and foreign nationals entering or leaving the United States by air, sea, or land to or from Canada, Mexico, Bermuda, the Caribbean, or Central or South America were required to have a valid passport.

Marcia J. Weiss

Further Reading

  • Jasper, Margaret C. The Law of Immigration. 3d ed. New York: Oxford University Press, 2008. Almanac that explores immigration law, the rights and obligations of aliens, and the process of citizenship through naturalization. A useful reference for the layperson that contains sample documents and an extensive glossary. 
  • Johnson, Kevin R., and Bernard Trujillo. “Immigration Reform, National Security After September 11, and the Future of North American Integration.” Minnesota Law Review 91, no. 5 (2007): 1369-1407. Scholarly article with numerous references outlining security problems and possible solutions in the post-9/11 era. 
  • Powell, John. Immigration. New York: Facts On File, 2007. Contains essential information for researching the issue of immigration, including chronology, glossary of terms, biographical data, and an extensive and fully annotated bibliography including periodicals and Web documents, microforms, CDs, and film resources. 
  • Weissbrodt, David, and Laura Danielson. Immigration Law and Procedure in a Nutshell. St. Paul, Minn.: Thomson/West, 2005. Excellent introduction to immigration law containing summaries and references to court cases, the Constitution, and pertinent statutes. 

See also: Bureau of Immigration, U.S.; Congress, U.S.; Constitution, U.S.; Homeland Security, Department of; Immigration Act of 1882; Immigration Act of 1917; Immigration Act of 1921; Immigration Act of 1924; Immigration Act of 1990; Immigration and Nationality Act of 1965; McCarran Internal Security Act of 1950; 9/11 and U.S. immigration policy; Patriot Act of 2001; Quota systems; Supreme Court, U.S.

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