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Immigration Law- Huntington- Spring 2007- Anonymous- Grade A

Immigration Law- Huntington- Spring 2007- Anonymous- Grade...

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ANALYSIS: (1) Is there sufficient power to create/ pass law? o Congress has near carte blanche power in immigration power and Court will not question “political questions.” - Lower standard of review than “rational basis.” - Ct has indicated that it will undertake “limited judicial review” of certain immigration laws Fiallo . Also see Yamataya & Zadvydas - Ct has placed limit on alienage law. Yick Wo . (2) What is the purpose of law? - Is the law congruent w/ the stated purpose? (3) What are the administrative considerations behind the law? (4) Is the law transparent? (5) Do the cts have power to review? - Fiallo ’s footnoes 5 & 6 may open door for “limited judicial review” in special circumstances. I. Citizenship A. Generally: 1. Two ways to think about citizenship: (a) Temporally and geographically OVERSEAS LAND IN U.S. LPR NATURALIZE (b) Membership – bull’s eye (i) Bull’s eye- citizen (all rights) (ii) 2nd circle – LPR (some rights) (iii) 3rd circle – illegal alien (limited rights) (iv) 4th circle – overseas (no rights) 2. Key questions: (a) When does it make a difference? (b) Should it make a difference? (i) Rehnquist: - Thinks there is distinction b/t citizen & alien as evidenced by Con. e.g. “citizens” are diff from mere “persons”. - Citizenship really does matter. (ii) Bickel: - Concept of citizenship plays a minor role as far as Con goes. - Citizenship is just a theory, legal construct that can be given/taken, idea is overemphasized. It shouldn’t be dispositive. 3. Mutual consent b/t govt and people is the issue. - What gives legitimacy of govt is consent by the people & govt consents to govern people. - Opposite of consent is ascription you get political membership through natural, immutable circumstance. B. Citizenship & birth 1. Jus soli (right of land) – 14 th amendment & §301(a). o 14 th amendment: All person born or naturalized in the U.S. and subject to the jurisdiction thereof are citizens of the U.S. and of the state wherein they reside. - Narrow exception: children of diplomats b/c diplomats enjoy diplomatic immunity. o Ascription – citizenship by birth. Naturalization – citizenship acquired later in life. - Restricting immigration indirectly restricts access to naturalization. o Development from caselaw: - Elk : Native Americans not U.S. citizens, b/c they are subject to diff tribe and not exclusively subject to U.S. govt. Later changed by Allotment Act of 1887.
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- Wong Kim Ark : Chinese parents are not citizens but child born here. Argument was that if parents can’t become citizens then child shouldn’t, but S. Ct says no, look at “ALL” part of 14 th Amendment. This is time when segregation is upheld – Plessy v. Ferguson . o Arguments as to whether to grant children of illegal immigrants citizenship - Schuck and Smith Arg that Con does not necessitate that those born in U.S. to illegal or temporary visitor aliens be automatic citizens b/c they’re NOT really “subject to the jurisdiction” of U.S. textual arg b/c the word “AND” in 14 th amendment.
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Immigration Law- Huntington- Spring 2007- Anonymous- Grade...

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