Immigration-Law-Rodriguez-Sp06 - I MMIGRATION L AW AND P...

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Unformatted text preview: I MMIGRATION L AW AND P OLICY – S PRING 2006 – P ROF . R ODRIGUEZ G ROUP O UTLINE I) F OUNDATIONS OF I MMIGRATION L AW A) D EFINING C ITIZENSHIP (C HAPTER 1) 1) Citizenship and the Constitution (9-14) (i) Definition of Cit’ship . Originally, no def. Jus soli only nats act of 1790 Dred Scott (not a cit) 1866 civ rights act 14(1)A “all persons born/naturalized in US, and subject to the jurisdiction thereof, are citizens of the US and of the state in which they reside.” (a) Not clear what rights accompany cit’ship. (b) Slaughterhouse nullified P&I Clause. Now, immigrants’ rights come from personhood and DPC and EPC. (ii) Significance of Cit’ship (a) Issue: Debate over whether cit’ship means anything in const’l law and whether there should be a distinction drawn between cits and non-cits. (b) Very Significant. (1) Sugarman: Rehnq says Const mentions cit’ship a lot (e.g., 14A). Must be imp diff. So, ok for states to treat cits and noncits diff’ly. (2) Afroyim v. Rusk: no invol stripping of cit’ship. Several justices wrote ab how important cit’ship was. Arendt talks about significance of cit’ship, loss of cit’ship. (c) Not Significant. (1) Bickel: construct. Can be given/taken away. Const’l law hasn’t focused on cit’ship; has focused on personhood. This is a good thing – makes it harder to oppress. (2) Graham v. Richardson: EPC cases make cit’ship count less than personhood (SS to treat aliens worse!). 2) Acquisition of Cit’ship – Jus Soli and Jus Sanguinus (15-34, 52-53) INA § 301 (i) Jus Soli : conferral of nationality based on birth w/in territory (a) Pros: admin convenience; egalitarian; inclusive; most inclusive rule (b) Cons: arbitrary (person who comes at 1 day-old); gives bad incentive (to come illegally) (ii) Jus Sanguinus : conferral of cit’ship by blood, parentage (a) This applies to kids of US parents born abroad, ltd only by parental residence in US before birth, not by any condition subsequent (since 1978, tho Afroyim said it was ok) (iii) “Subject to US Jurisdiction” Req (from 14(1)A) (a) Elk v. Wilkins : “under juris thereof” used to exclude NatAm from US cit’ship. Harsh read of this clause of 14(1); Elk wasn’t completely subject to US juris. Statutes later resolved this problem for NatAms. (b) Wong Kim Ark : Broad read of 14A, conferring cit’ship to kids of Chinese nationals. Purpose of 14A to include, not exclude. Jurisdiction Clause only meant to exclude kids of foreign enemies in hostile occupation and of foreign diplomats, traditionally excluded under...
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This note was uploaded on 04/04/2008 for the course LAW ALL taught by Professor Multiple during the Fall '06 term at NYU.

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Immigration-Law-Rodriguez-Sp06 - I MMIGRATION L AW AND P...

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