Immigration Law, Definitions, and Brief History in “Modern” USA
If you do not have a Visa, a Green Card or citizenship in the United States and are currently living in the country, you are subject to deportation. Getting deported is a very serious aspect of immigration law; it is the process of the United States government removing illegal immigrants from the country. Deportation may eliminate your ability to secure a visa in the future. The United States Government may deport you for the following reasons:
- If you enter the United States while being deemed “legally inadmissible” by the immigration laws of the federal government
- Entering the country without a legal visa
- Failure to renew a conditional permanent residency visa
- Aiding an illegal immigrant with entering the country
- Conviction of a criminal offense
- Endangering national or public security
- Participating in a fraudulent marriage for the purpose of securing an immigrant visa
The Immigration and Nationality Act of 1952 (INA), also known as the McCarran-Walter Act, eliminated all race-based quotas, replacing them with purely nationality-based quotas. The INA continues to influence the field of American immigration law. To enforce the quotas, the INA created the Immigration and Naturalization Service (INS). The INS served as the federal agency that enforced these caps for remainder of the 20th century.
When Congress passed the INA, it defined an “alien” as any person lacking citizenship or status as a national of the United States. Different categories of aliens include resident and nonresident, immigrant and non-immigrant, and documented and undocumented (“illegal”). The terms “documented” and “undocumented” refer to whether an arriving alien has the proper records and identification for admission into the U.S. Having the proper records and identification typically requires the alien to possess a valid, unexpired passport and either a visa, border crossing identification card, permanent resident card, or a reentry permit. The INA expressly refuses stowaway aliens entry into the U.S.
The need to curtail illegal immigration prompted Congress to enact the Immigration Reform and Control Act (IRCA) of 1986. The IRCA toughened criminal sanctions for employers who hired illegal aliens, denied illegal aliens federally funded welfare benefits, and legitimized some aliens through an amnesty program. The Immigration Marriage Fraud Amendments of 1986 sought to limit the practice of marrying to obtain citizenship. The Immigration Act of 1990 thoroughly revamped the INA by equalizing the allocation of visas across foreign nations, eliminating archaic rules, and encouraging worldwide immigration.
The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 revolutionized the process of alien entry into the United States. The IIRIRA eliminated the term “entry,” replacing it with “admission.” An application for admission occurs whenever an alien arrives in the U.S. regardless of whether the arrival occurs at a designated port-of-entry. Applicants at either designated ports or otherwise must submit to an inspection by U.S. customs, even if the applicant possesses an immigrant visa. The IIRIRA also employs the term “arriving alien” to describe applicant aliens attempting to enter the U.S., regardless of whether they arrive at a designated port, a non-designated point on the border, or are located in U.S. waters and brought to shore.
On March 1, 2003, the Department of Homeland Security opened, replacing the INS. The Bush Administration had designed the Department of Homeland Security to foster increased intelligence sharing and dialogue between agencies responsible for responding to domestic emergencies, such as natural disasters and domestic terrorism. Within the Department, three different agencies – U.S. Customs and Border Enforcement (CBE), U.S. Citizenship and Immigration Services (USCIS), and U.S. Immigration and Customs Enforcement (ICE) – now handle the duties formerly held by the INS. Currently, the CBE handles the INS’s border patrol duties, the USCIS handles the INS’s naturalization, asylum, and permanent residence functions, and the ICE handles the INS’s deportation, intelligence, and investigatory functions.
Refugee and asylum seekers
The Refugee Act of 1980 defines the U.S. laws relating to refugee immigrants. Under the Refugee Act, the term “refugee” refers to aliens with a fear of persecution upon returning to their homelands, stemming from their religion, race, nationality, membership in certain social groups, or political opinions. Anyone who delivers a missing American POW or MIA soldier receives refugee status from the United States.
The United States, however, denies refugee status to any alien who actively persecuted individuals of a certain race, political opinion, religion, nationality, or members of a certain social group. As a matter of public policy, the government also typically refuses refugee applicants previously convicted of murderer. For refugees who have “firmly resettled” in another country, the United States will deny a request for refugee admission. The government considers refugees “firmly resettled” if the refugees have received an offer of citizenship, permanent residency, or some other permanent status from a foreign country.
Under international law, the Geneva Convention, or the laws of the United States, foreign citizens who have become disillusioned with their homeland cannot take temporary refuge within the United States. The Refugee Act of 1980 specifically leaves out temporary refuge as a form of refugee status that the U.S. government will recognize.
To qualify for refugee status under the persecution provision, the refugee applicant must prove actual fear. A proof of actual fear requires meeting both a subjective and an objective test. The subjective test requires that the refugee actually have an honest and genuine fear of being persecuted for some immutable trait, such as religion, race, and nationality. Seekers of asylum must show a fear that membership in a social or political group has caused past persecution or has caused a well-founded fear that persecution will occur upon returning. The applicant meets the objective standard by showing credible and direct evidence that a reasonable possibility of persecution exists upon the applicant’s return to the homeland.
The President retains the ultimate decision making authority when determining the number of refugees to allow into the country during a given year.
Deferred Action (DACA/DAPA)
Deferred action is an administrative relief from deportation; DHS temporarily authorizes non-U.S. citizens to remain in the U.S. Through deferred action, a non U.S. citizen may apply for employment authorization for the duration of the temporary stay. Recipients of deferred action grants, however, cannot claim lawful status during that time, but they are considered lawfully present in the U.S. In other words, they are not accruing unlawful presence, which could later render them inadmissible to the U.S. if and when they apply for permanent legal status. DHS grants deferred action on a case-by-case basis.
In June 2012, the Obama administration introduced the Deferred Action for Childhood Arrivals (DACA) program. The program aimed to grant deferred action to those under 31 as of Jne 15, 2012, who entered the U.S. before their sixteenth birthday and continuously resided in the U.S> without lawful status since at least June 15, 2007. The policy rationale was to prevent deportation of young adults and children, who grew up as Americans yet did not voluntarily enter the U.S. without lawful status.
In November 2014, President Obama announced a series of executive actions to address illegal immigration and to prioritize deporting felons not families. The executive actions expanded the DACA program by extending the period from two to three years, removing the age requirement, and easing the continuous residency requirement (continuous residency since June 15, 2007 changed to January 1, 2010). The executive actions also introduced the new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program. The DAPA program permits parents of U.S. citizens or legal permanent residents (LPR) to apply for deferred action if they have continuously resided in the U.S. since January 1, 2010 and had a U.S. citizen or LPR child as of November 20, 2014.
The expanded DACA and DAPA programs, however, are on hold due to a pending Supreme Court case, United States v. Texas. USCIS is not currently accepting applications for the expanded DACA or DAPA programs.
“Some operations have taken place that have been focused on individuals, deporting individuals that have recently crossed the border. That is consistent with the kinds of enforcement priorities that the president and the secretary of homeland security discussed more than a year ago,” Earnest said at the daily briefing for reporters. “Certainly, people should take from this the understanding that the administration is quite serious about enforcing our immigration laws.”
Johnson said the batch of deportees were among immigrants who crossed the southern U.S. border illegally since May 2014. That’s when the U.S. began experiencing a surge of families and unaccompanied children from El Salvador, Guatemala and Honduras. Officials say such crossings decreased by early last year, but began to pick up again in recent months.
Obama Administration officials expressed concern with the spike in the number of families and unaccompanied children apprehended at the southern border — particularly since illegal migration tends to slow down during colder months. In October and November 2015, just over 12,500 families were apprehended, compared with 4,577 during the same two months in 2014. Meanwhile, 10,588 unaccompanied children were apprehended at the southern border in October and November 2015, according to federal officials — more than double the number of minors who tried to cross into the United States during the same period in 2014.
The proposals to increase deportations appear to have stirred some dissent within the Obama administration. Just before Christmas, unnamed “people familiar with the operation” disclosed the plans to the Washington Post — a highly unusual leak about planned law enforcement actions. The disclosure of the planned raids drew immediate criticism from Democratic presidential candidates. Sen. Bernie Sanders of Vermont and former Maryland Gov. Martin O’Malley condemned the planned actions, while front-runner Hillary Clinton issued a more muted statement through a spokeswoman, who said Clinton had “real concerns” about the plans. Word of the planned raids also highlight a political predicament for Clinton, who endorsed quick return of illegal immigrant children in 2014 but is also trying to court Latino voters.