Plenary Power of Congress

Plenary Power of Congress - www.swapnotes.com Immigration...

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1 Immigration Law – Outline: Plenary Power of Congress Enumerated Constitutional Powers 1. Commerce Clause – Congress may “regulated commerce with foreign nations” 2. Migration or Importation Clause – “The Migration or Importation of such Persons as any of the States now existing shall think proper to permit, shall not be prohibited by the Congress prior to the year…” 1808 3. Naturalization Clause – Congress authorized “to establish an uniform Rule of Naturalization” 4. War Clause – Congress has the power “to declare war” Implied Constitutional Powers 1. See, The Chinese Exclusion Case Extra-Constitutional Powers 1. Declaration of Independence – sovereignty passed from British Crown to the States in their collective capacity 2. The only powers the Constitution intended to reallocate were those that the States possessed in their individual capacity 3. Therefore, sovereign powers remained with the States in their collective capacity – that is, with the Federal Government 4. The Immigration power is not dependant upon an affirmative constitutional grant Immigration and Naturalization Act (INA) – Statutory Scheme 1. *Every person is either (1) a US National (citizen), or (2) an Alien (non-citizen)… a. Citizens – almost all Nationals are Citizens b. Non-Citizens i. Immigrants ii. Non-Immigrants www.swapnotes.com
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2 2. Within the classification of Immigrants – ultimately intend to become LPR (lawful permanent resident)/Citizen a. Categories of Preference ( not first come, first serve) – family-based, employment-based, etc. b. Subject to General Quotas (with certain exceptions) – either numeric or by country i. “Immediate Relatives” are exempt from quotas ii. “Refugees” are admitted under a separate quota system 3. Substantive Requirements for Immigrants a. Family-Based – Visa Petition b. Employment Based – Labor Certification c. Adjustment of Status – Non-Citizen is already present in the US and may apply while remaining here…need a visa petition d. Refugees (apply overseas, and numerically limited) and Asylees (apply in US, and not numerically limited) – well-founded fear of persecution 4. Within the classification of Non-Immigrants a. Typically temporary entrants – most require intent to leave the US after the authorized time period, and must not be “inadmissible” (unless there is a waiver of excludability), such as visitor visas and student visas. b. Generally not numerically limited by Quotas 5. Inadmissibility/Exclusion vs. Deportability Visa Requirement and Consular Non-Reviewability Hermina Sague v. United States (District of Puerto Rico 1976) Alien in France marries an American citizen. Alien applied for an immigration visa at the American Consulate in France and is
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This note was uploaded on 02/14/2008 for the course LAW 7781 taught by Professor Staff during the Spring '06 term at Yeshiva.

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Plenary Power of Congress - www.swapnotes.com Immigration...

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