Immigration law

• DEFINITION: Branch of law that deals with the entry and settlement of noncitizens 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 residents or American citizens.

Under the US Constitution, the US Congress has complete authority over immigration law. 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 nearly unrestricted immigration during the first one hundred years of the US 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 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 polygamists, poor people, and people with various illnesses. Immigrants were required to take a physical examination to determine whether they were ill.

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: people who were deemed to be beggars, anarchists, tubercular, or have a mental, intellectual, 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 US national. (Note that the term "alien" was later deemed offensive and replaced in many contexts with the term "noncitizen.") The different categories of noncitizens include resident and nonresident, immigrant and nonimmigrant, and documented and undocumented, depending upon whether the individual 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 undocumented immigration motivated Congress to enact the Immigration Reform and Control Act of 1986, which tightened criminal sanctions for employers who hire undocumented immigrants. The act also denied welfare benefits to undocumented immigrants and legitimized certain noncitizens 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 noncitizen 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:

• US citizens—persons born within the United States or born abroad to US 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 US 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 immigrants—persons who enter the country without inspection or with a fraudulent passport

Post-9/11 Immigration Reform

The terrorist attacks of September 11, 2001, on New York City and Washington, DC, intensified efforts to confront problems dealing with America’s 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 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 noncitizens and increased the power of the attorney general to identify, arrest, and deport noncitizens.

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, US 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 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 abolished INS were divided among several agencies within the Department of Homeland Security, including the US Citizenship and Immigration Services (USCIS), US Immigration and Customs Enforcement (ICE), and US Customs and Border Protection (CBP). The federal government placed more than 300,000 noncitizens 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 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 one of the best-known examples.

Although early twenty-first century immigration laws were generally neutral on their face and did not discriminate on the basis of race, they had 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 US-Mexican border has had a disproportionate impact on Mexican citizens and Mexican migrant workers.

The Intelligence Reform and 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 US-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 noncitizen smuggling were increased, and the General Accounting Office was required to study weaknesses in the asylum system. By 2009, all US 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.

In 2012, President Barack Obama used executive action to create the Deferred Action for Childhood Arrivals (DACA) program, which allowed young adults who had been brought to the United States as children without documentation (also known as Dreamers) to apply for work permits and deferment from deportation. The program was expanded in 2014 to offer similar benefits to the undocumented-immigrant parents of US-born children. Though the administration of Donald Trump, who became president following the 2016 election, attempted to end the program in 2017 amid claims that it was unconstitutional, legal challenges followed over subsequent years, and in 2020 the Supreme Court officially halted this attempt with a ruling that the administration had not given proper justification for bringing the program to an end.

Muslim Travel Bans and Zero Tolerance

During his presidential campaign in 2016, Republican candidate Trump promised a “total and complete shutdown of Muslims entering the US.” Upon taking office in January 2017, he immediately issued an executive order barring people from seven Muslim-majority countries—Iraq, Syria, Iran, Libya, Somalia, Sudan, and Yemen—from entering the United States for the following ninety days. The order also halted the country's acceptance of refugees from Syria for 120 days. When this ban was blocked by the courts on the grounds that it was religious discrimination, Trump issued a second executive order, removing Iraq from the list of banned countries and exempting those with visas or green cards; this order was also blocked. However, in June, the Supreme Court agreed to hear a challenge to the ban, but allowed it to go into effect in the meantime, with the stipulation that it could not be used to refuse entry to anyone with a “bona fide relationship” to a person or entity in the United States. This allowed people who had relatives in the United States to enter, but kept out refugees working with resettlement organizations unless they had other connections in the country.

In September 2017, shortly before the Supreme Court hearing on the second travel ban was to be held, Trump signed a third ban, this time including North Koreans and Venezuelan government officials. Opponents argued that the ban still predominantly affected Muslims, as the number of visas issued to North Koreans and Venezuelan government officials previously was very small. In addition, Venezuelan officials were banned only from tourist visas and temporary business visas, whereas people from Muslim-majority countries could not obtain a visa of any kind. The Supreme Court, feeling that the arguments on the second ban were moot now that it had been superseded by a third, canceled the hearing. The ban was once again allowed to go into effect while cases against it were litigated before the Supreme Court.

The bans also had the effect of deterring Muslim people from unaffected countries from emigrating to or visiting the United States, according to research by the Cato Institute, which found that between 2016 and 2017 the number of Muslim refugees declined by 91 percent, Muslim immigrants by 26 percent, and tourists by 30 percent.

Tensions over immigration across the United States' southern border were heightened again in April 2018, when the Justice Department instituted a zero-tolerance policy that called for increased prosecution of undocumented immigrants crossing the US–Mexico border, a policy that allowed for the regular separation of immigrant children from their parents until backlash prompted Trump to issue an executive order against these separations in June.

2020s

In a further sign of the ongoing struggle to make any long-lasting reform to federal immigration laws through the legislature due to increased partisan gridlock over issues such as immigration, as some of his first actions as president in early 2021, Joe Biden issued a series of executive orders, directives, and proclamations aimed at reversing many of the Trump administration's immigration policies. These included a directive to the secretary of the Department of Homeland Security to fortify and preserve the DACA program, a proclamation revoking the Trump administration's bans on travel from specific African and Muslim countries, an order establishing a task force dedicated to the reunification of separated immigrant families, an order for the evaluation of immigration policies and programs, and an order reversing Trump's policy regarding funding for sanctuary cities. Additionally, Biden proposed a bill that was introduced in Congress titled the US Citizenship Act of 2021. In general, the Biden administration claimed to be prioritizing reformation of the US immigration system as a whole, particularly as a policy designed to restrict immigration during the coronavirus disease 2019 (COVID-19) pandemic remained in place in the first half of 2021 that led to further surges in the numbers of immigrants at the border as well as unaccompanied minors crossing the border. Democrats in the House continued to introduce and even pass more small-scale immigration bills in those first months of 2021 in the hope that they might be able to get bipartisan support. When DACA was again challenged by a federal district court judge's ruling in July that the program was illegal, many Democratic politicians argued the need for permanent congressional legislation. In an effort to emphasize his commitment to DACA, Biden issued a "final rule" in August 2022, which served to formally categorize DACA as a federal regulation. However, critics deemed the effort lacking as it failed to offer Dreamers much immediate protection and did not allow new DACA applications to be submitted. Experts further warned that even after the rule took effect in October 2022, DACA could still be struck down by courts or overturned by another administration in the future.

Another Trump-era policy concerning Mexican immigrants was the "Remain in Mexico" policy, implemented in January 2019, which required asylum seekers to stay in Mexico while awaiting hearings in immigration courts in the US. Human-rights activists opposed the policy, citing its inhumane treatment of migrants who were forced to endure difficult conditions in Mexico as well as a lack of access to lawyers while awaiting hearings. Biden suspended the program on his first day of office, and the Department of Homeland Security announced the program would officially end in August 2022, after the Supreme Court ruled the Biden administration had the right to end the policy in Biden v. Texas (2022). Around the same time, the court ruled in Johnson v. Arteaga-Martinez that federal law did not require the government to conduct bond hearings for noncitizens who had been detained during immigration proceedings for at least six months, meaning that people could be kept in detention indefinitely. Additionally, the case of Garland v. Aleman Gonzalez ended with the court's decision denying immigrants the ability to secure injunctive relief against immigration policies as a class. Other immigration cases during the 2020s included Niz-Chavez v. Garland (2021), which regarded details of the procedures and time frames for deportation, and Sanchez v. Mayorkas (2021), which found that undocumented immigrants with Temporary Protected Status were not eligible for green card applications to become permanent residents.

Climate migrants, or people who move because they are impacted by climate disasters, have also increased during the twenty-first century as climate change continues to impact the US and other parts of the world. Activists increased calls on Biden to support legislation that would allow climate-displaced migrants to legally move to the US and provide them with a path to citizenship.

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