By: Sam Dudar, Esq. – Attorney
I. Immigration Law: Federal Frameworks and Applications
There are tunnels in the mountain of U.S. governmental bureaucracy that lead to lawful residence in the United States. Some are short, but temporary; others are long, but permanent; and then there are many of those that go from one tunnel to another to another, and so forth, until these spelunkers are either lost without a long paper-trail to lead them out into the shining light of freedom, leaving them to live in fear of committing unlawful conduct that alerts the government and, perhaps, leads to deportation (the easiest way assistant district attorneys or prosecutors choose) or can actually (with the help of an immigration law attorney) stay deportation, ascertain an individual’s current status and finally help change that status into one that an individual wants.
II. What Gives the Federal Government the Right to Regulate Immigration?
There is a laundry list of powers that the United States Supreme Court has distilled from the United States Constitution to create U.S. immigration law. It is from implementing these powers that the United States Congress and Senate have created U.S. Immigration Law as we know it today. Some of the major constitutional powers shall be listed below, but only for reference, justification, and completion. There is little reason for an individual to contest at his or her immigration hearing that the immigration judge has no authority to pass judgment on his or her status within the citizenship of the United States. In fact, no sensible immigration law attorney would likely challenge the United States’ ability to regulate its borders, as it is an accepted facet of international law that every sovereign country on Earth, due to the inherent substance and meaning of “sovereignty,” has the essential right to preserve itself, to stop and cast out the entry of foreigners at its gates and dominions or grant them entry only under certain conditions. Nations, generally, respect this power in themselves (most certainly) and in others to a fairly high degree. (Note that matters that reach an international law level involve attempts to level the playing field between one country and a separate foreign country, as one example, and those countries may not exactly be respectful of each other’s immigration laws or even one country’s authority to bind the other to agreement before a judicial tribunal; but this is international and comparative law and is beyond the scope of U.S. immigration law).
(1) The Commerce Power
Immigration involves a person’s entire assets, tangible and intangible. The Commerce Clause is one of Congress’s most powerful and frequently used justifications for passing legislation across the United States and impacting individuals at the state level (remember that the U.S. is a republic founded on federalism, that is, the United States Government and the individual States that, taken together, make up the United States, are treated separately; there is Federal power and there is State power; the United States Government is a sovereign and its individual States have individual, sovereign governments of their own; but the U.S. Constitution binds both levels of government in a federalist system)
(2) Naturalization Power and the Migration and Importation Clauses
Congress is granted the power to “establish an uniform rule of Naturalization” and regulate tariffs on imports and exports, plain and simple.
(3) War Power
Traditionally, the federal judiciary has very little to say when the U.S. is at war. There are many theories on why activist judges do not step up and rally for their own interpretation of what immigration laws are constitutional when such immigration law rests on Congress’s War Powers clause. As an example, one such theory is that the judicial branch of the United States is retroactive and not proactive. Police, the executive arm of the judiciary, handle crimes that are very close (planned) to being committed (such as through conspiracy), are in the process of being committed, or have been committed. It is only after the suspects are seized and arrested that judges evaluate their case. With a limited number of judges that must wait for the police, district attorneys, and U.S. attorneys to gather all of the facts to a plethora of crimes that happen every minute in the U.S., there simply is not enough manpower to expedite the criminal procedural process; and that is the U.S. during peacetime. In wartime, when decisions must be made in matters of nanoseconds or less, the judiciary has simply acknowledged its limitations and passed the authority to the various branches of the military and the U.S. President as Commander in Chief of the Armed Forces to handle; this explains the relatively cruel and, arguably, unfair treatment of individuals of certain racial and ethnic descent in history, which includes recent history, from the 9/11/2001 attacks to today. Even the U.S. has to take off her makeup once in awhile.
III. The High Ground View of Immigration Law: What to Look For
From a practical and very high-level perspective, to achieve the status an individual is looking for, U.S. immigration law can be divided into three areas:
(1) Statutory Eligibility
As reported above, immigration law is a creature of statute at the federal level, not at the judicial level (the U.S. inherited the British system of common law, which allows judges, in certain instances, such as contract interpretation, to “invent” or “reason” through their experience with cases that there are more or less rules to follow across cases, as judges are (thought to be) bound by judicial precedent; such rules are called “common law,” defined as “judge-made law”). When a legislature creates a statute there are usually two reasons for doing so: first, to codify the existing common law, which makes it easier to understand the law: just read the statute, not the cases and deduce a rule; second, and the fact most on point in immigration law, to curb judicial power. Law professors will encourage their law students to be confident in the courtroom when practicing law by telling them that the courtroom is their courtroom and they should make themselves at home. Well, if you’ve ever actually been in court, when the judge tells an attorney to “SIT DOWN!”, the attorney sits down. In deference to my law professors, maybe the attorney can feel at home until the judge reaches that point: a boiling point. Judges are not the same, even though they are ethically obligated to try to treat every case the same way. They are human, and fallible, and fortunately can be corrected if your attorney knows what to do. It so happens that attorneys are not the only ones who like to keep judges in line: so does the legislature from time to time. And when it comes to the security of the United States, you can be assured that an immigration judge will be predominantly guided by statutory law (of course, judges have always operated as crowd-controllers; immigration laws won’t take their gavel away). This means that, should you consult with an attorney regarding immigration laws, it would be wise to invest in one who knows many statutes that may apply to your case.
(2) Personal Discretion
As mentioned above, the ability to enter is not a right: it is a privilege. It is the option of the sovereign nation to admit or deny entry of an individual perceived to have undisclosed motivations–likely that individual will be denied, by the way. It is true that immigration judges and agents of the U.S. Consulate will be circumscribed by U.S. statutes, but there is a degree of discretion that should not be ignored. How one shows up for a consular interview is important. Candor to the tribunal is very important. One should put himself or herself in the judge’s robes and shoes and ask if the judge would like me as a friend or neighbor in the United States? Is the applicant desperate? Is the applicant criminally disposed by not having sufficient funds or being part of a known criminal organization or is a sympathizer to an enemy nation? What recommendations can the applicant provide, such as from family, friends, employers, neighbors, officials in government? As you can see, while immigration laws are strict in the ways they compel judges to execute the law, a judge’s job is a very fact-intensive process and many different types of evidence are admissible and will be considered for every individual applying to enter into the United States of America.
(3) Legally Admissible
It is always good to have friends in high places, or a wink and a nod from an official processing one’s application; but cache, savoir-faire, good luck, and personal friendship with those helping one along with the immigration process won’t do a bit of good if the judge is statutorily bound to say that an applicant is legally inadmissible to enter the United States. For this reason alone, don’t let your hard work go for nothing: consult with an experienced immigration lawyer to learn to where your application form will lead and if you must perform some other action prior to being considered legally admissible into the United States.
Updated: 2019-07-02
