Immigration And Nationality Act Research Articles

The United States Approach to Prosecution of Women Terrorists Who Joined the Islamic State

In January 2012, the Secretary of State, in accordance with Section 219 of the Immigration and Nationality Act (INA), designated the Islamic State in Iraq Foreign Terrorist Organization (FTO). Based on this, the United States could take administrative measures against foreign terrorist fighters (FTFs) associated with IS, including women. As of January 2023, the United States had formally repatriated 39 citizens. At least 11 more citizens returned of their own accord outside of formal processes, including two women. To date, 11 adults affiliated with the Islamic State, formally repatriated from Syria and Iraq to the United States, have faced charges for terrorism-related crimes. The aim of this research is to characterize the approach to female terrorist returnees in the United States. The following research problem is central to this article: How does the United States deal with the prosecution and conviction of women returnees involved in the activities of the Islamic State? The author focused research on case studies. Research methods include: analysis, synthe-sis, classification, generalization, and statistical data analysis. Women who are left on their own and remain in camps and prisons in Iraq and Syria can impose the ideology of the Islamic State on others, including their children. It is important not to treat the problem of repatriation, rehabilitation, and reintegration of camp residents shortsightedly and to take a long-term solution.

Unauthorized Love: Mixed-Citizenship Couples Negotiating Intimacy, Immigration, and the State by Jane Lilly López

Unauthorized Love centers relationships between U.S. citizens and U.S. noncitizens to document the reach of U.S. immigration law into the lives of mixed-citizenship families. Through an analysis of 56 ethnographic interviews with mixed-citizenship families, López examines interactions between families and the U.S. administrative state, family decision-making processes, and family reunification outcomes and consequences. Unauthorized Love demonstrates that governmental rejection and family separation is a central feature of U.S. immigration policy, with serious consequences for family-level integration in the United States. Chapter 1 introduces readers to mixed-citizenship couples by recounting their love stories and foreshadows the disparate paths families will navigate. While marriage is a mechanism available to U.S. citizens to extend citizenship rights to their spouses, immigrant applicants and their sponsors are not treated equally under the law. Chapter 2 provides a visual to demonstrate how the 1952 Immigration and Nationality Act (INA), the 1986 Immigration Marriage Fraud Amendments (IMFA), and the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) work collectively to systematically favor higher-class, more highly educated, and better-resourced immigrant applicants and citizen sponsors.

Reading Regents and the Political Significance of Law

Reading Regents and the Political Significance of Law

Tracing War Bride Legislation and the Racial Construction of Asian Immigrants

Many historical studies of Asian immigration in the United States focus on the Immigration and Nationality Act (INA) of 1965, since this Act led to a dramatic increase of Asian immigration and significantly revised former immigration policies. However, war bride legislation—laws governing the immigration of the foreign-born wives of American servicemen—represents an interesting area of political and legal analysis. Between the 1924 Johnson-Reed Act which established highly restrictive national-origin quotas and the 1965 INA, thousands of Asian women immigrated to the United States as war brides, unrestricted by quotas. Their immigration represents a complex period of history during which the category of “immigrant” was consistently revised, racialized, and expanded. My paper surveys the history of these Acts and Amendments and argues that this legislation aimed to replace the perpetual foreigner myth with a gendered and “colorblind” myth about immigrant spouses—a precursor to the model minority myth.

Revisiting Immutability: Competing Frameworks for Adjudicating Asylum Claims Based on Membership in a Particular Social Group

The Immigration and Nationality Act (INA) defines a refugee as any person who has a “well-founded fear of persecution on account of race, religion, nationality, membership of a particular social group or political opinion.” An emerging issue in U.S. asylum law is how to define the category “membership of a particular social group.” This question has become ever-more pressing in light of the fact that the majority of migrants seeking asylum at the U.S.-Mexico border are claiming persecution on account of their “membership in a particular social group.” The INA does not define the meaning of “particular social group” and courts are split over the correct definition of the term. According to one approach, the focus should be on which immutable characteristics should be protected from systemic discrimination. According to a second approach, the focus should rather be on how members of a given society define the boundaries of the proposed group. Each framework centers the analysis on a fundamentally distinct set of questions and concerns. This Article outlines the development and conceptual basis of each framework, to show that an immutability-centered approach to defining particular social group generates more consistency in asylum decisions and broadens the scope of asylum to include women and victims of harm traditionally categorized as falling within the category of “private criminal activity.” This Article contributes to debates on asylum policy by shedding new light on how to define the contours of asylum status and proposing concrete means by which to accomplish change.

The State Department Designates Iran's Islamic Revolutionary Guards Corps as a Foreign Terrorist Organization

On April 8, 2019, President Trump announced that his administration would designate Iran's Islamic Revolutionary Guards Corps (IRGC) as a foreign terrorist organization (FTO) under Section 219 of the Immigration and Nationality Act (INA). This is the first time the United States has designated an arm of another government, rather than a non-state actor, as an FTO. In his announcement, Trump asserted that the Iranian government has used the IRGC to engage in a campaign of global terrorism. The measure, which officially took effect on April 15, expands on previous terrorism-related sanctions imposed on the IRGC and Iran.

H-2A Program and Immigration Reform in the United States

The Immigration and Nationality Act (INA) of 1952 authorized a nonimmigrant visa category, known as H-2, for foreign agricultural and nonagricultural workers to come to the United States and perform temporary services. To protect against disruptions in the farm labor supply, many growers are turning to the H-2A program to import foreign guest workers. This 5-page fact sheet written by Berdikul Qushim, Zhengfei Guan, and Fritz M. Roka and published by the UF/IFAS Food and Resource Economics Department explains the H-2A program and briefly discusses immigration reform. http://edis.ifas.ufl.edu/fe1029

Invoking Common Law Defenses in Immigration Cases

This Article argues that we should take a deeper look at the applicability of federal common law defenses in immigration cases. In the rare cases where noncitizens attempt to raise common law defenses, such arguments tend to be dismissed offhand by immigration judges simply because removal proceedings are technically civil, not criminal. Yet many common-law defenses may be raised in civil cases. Additionally, immigration proceedings have become increasingly intertwined with the criminal system. After examining how judges already rely on federal common law to fill in gaps in the Immigration and Nationality Act (INA), this Article proposes three categories of removal cases where federal common law defenses are particularly viable. The first category involves INA provisions that require conduct to be unlawful without requiring a conviction; the second category involves INA provisions barring asylum, which are closely connected to principles of criminal culpability; and the third category involves certain grounds of removal with no explicit mens rea requirement. Finally, the Article examines some of the legal and practical challenges to prevailing with these defenses in the removal context, drawing on criminal cases where such defenses have been raised to immigration-related charges. The Article concludes that a more principled approach to the use of federal common law defenses in removal proceedings is necessary in order to promote consistent and fair adjudication.

Local Immigration Enforcement and Arrests of the Hispanic Population

Section 287(g) of the Immigration and Nationality Act (INA), which was added to the INA by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), allows the federal government to enter into voluntary partnerships with state and local law enforcement agencies to enforce immigration law. Upon entering these agreements, law enforcement officers are trained by Immigration and Customs Enforcement (ICE) and receive delegated authority to enquire about an individual's immigration status and, if found to be removable, to detain the individual while ICE makes a determination of whether to initiate deportation proceedings. In some instances, this inquiry about immigration status takes place as part of the intake process when a criminal defendant is arrested and placed into a criminal jail. In other instances, task force officers are trained to inquire in the field about immigration status and enforce immigration law against people who have not committed any criminal offense. The key difference between the two models is that task force agents can arrest for immigration violations undocumented individuals who have not committed any criminal offense, whereas in the jail model individuals must be arrested on some other criminal charge before immigration status can be determined. The 287(g) program has raised several concerns regarding its implementation and results. First, the program could lead to racial and ethnic profiling. In particular, given that the majority of undocumented immigrants hail from Latin American countries, it is highly plausible that Hispanics, regardless of immigrant status, might be disproportionally affected by this program. That is, in a jurisdiction that participates in the jail model, an officer might arrest a Hispanic individual for a very minor offence in order to process them through the jail and determine their immigration status, when perhaps without the program they may have only issued a citation. Another concern with the program is that it may lead to tensions between state and local law enforcement and the local community. If the program creates an atmosphere of suspicion and distrust by community members toward state and local law enforcement agents, even law abiding individuals may choose to avoid interaction with law enforcement agents. This can make victims and witnesses hesitant to come forward, for fear that their undocumented status will be uncovered. Such a situation inhibits law enforcement's ability to do its job and can, ironically, make communities less safe. This study explores the effects of implementation of the 287(g) program in Frederick County, Maryland on the arrests of Hispanics. Using data from individual arrest records from the Frederick County Sheriff's Office, which has a 287(g) agreement with ICE, and the Frederick Police Department, which does not, I analyze the changes in arrests between the two agencies before and after the 287(g) program was implemented in 2008. I find that overall, the arrests of Hispanics fell, suggesting that the Hispanic community avoided interaction with law enforcement when the program began. However, I also find that the program led to a significantly higher number of arrests of Hispanics by the Sheriff's Office than would have occurred in its absence, indicating that attention was focused toward the Hispanic community as a result of the program. These results suggest that, if the program is to continue, additional safeguards are needed to prevent abuses and civil rights violations.

Local Immigration Enforcement and Arrests of the Hispanic Population

Section 287(g) of the Immigration and Nationality Act (INA), which was added to the INA by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), allows the federal gover...

Life after Limbo: Stateless Persons in the United States and the Role of International Protection in Achieving a Legal Solution

Stateless persons are not recognized as citizens by any country, and as such, their enjoyment of fundamental human rights depends on the good faith of host countries, and their basic human security and dignity are often subject to the whims of immigration authorities. Despite this intense level of vulnerability, U.S. immigration law does not explicitly recognize statelessness, nor does it provide for humanitarian protection to relieve stateless persons of their suffering. Rather, stateless persons are treated like any other unauthorized migrants in the United States; when they are ordered removed, they are mandatorily detained while immigration officials undertake efforts to execute those orders. Such removal efforts are futile in the case of stateless persons, and when they are ultimately released from detention, they are cast into a legal limbo in which they spend the rest of their lives on immigration parole, uncertain as to what their future may hold. This article argues that it is imperative to establish a protection mechanism for stateless persons in the United States, and critically analyzes a proposal by the U.S. Senate to establish a mechanism for the protection of stateless persons under the Immigration and Nationality Act (INA) as part of its 2013 comprehensive immigration reform bill, the Border Security, Economic Opportunity, and Immigration Modernization Act (SB 744). This article relies on the international law of statelessness as a benchmark for this critique, and argues that that the proposed mechanism may fail to meaningfully address the statelessness problem in the United States if it is not tethered to the international protection framework.

Finality and Judicial Review under the Immigration and Nationality Act: A Jurisprudential Review and Proposal for Reform

Under the Immigration and Nationality Act (INA), aliens may petition for judicial review of an adverse decision of the Board of Immigration Appeals (Board) as long as that decision constitutes a “final order of removal.” Usually it is not difficult to ascertain when an alien should file her petition: the thirty-day statutory filing deadline begins to run when the Board issues a decision that affirms the immigration judge’s removal order in its entirety. In some cases, however, an alien seeks multiple forms of relief from removal in a single proceeding. When that occurs, some forms of relief might be granted, while others are denied or require a remand to the immigration judge for further proceedings. This hybrid “mixed” decision often leaves aliens and attorneys wondering when the removal order becomes final, and thus when they should file a petition for review. When the Board issues its decision? Or at the conclusion of the remanded proceedings? Which order constitutes the “final order of removal” for purposes of judicial review? The implications are profound. If an alien misses the correct deadline, she may lose her ability to challenge the denial of relief from removal. Alternatively, if she files the petition too soon, the court may dismiss it as premature, which consumes time and resources for the alien, the courts, and the government alike. Unfortunately, neither the statute nor the decisions of the courts of appeals provides clear guidance on this question. Nonetheless, the Ninth Circuit has recently issued an important en banc decision on finality for purposes of judicial review that provides a useful starting point from which to clarify this convoluted area of law. This Article is an attempt to bring clarity to the issue of finality for purposes of judicial review. Using the Ninth Circuit’s decision in Abdisalan v. Holder as a frame of reference, the Article addresses how the INA and its implementing regulations contemplate “finality,” while also highlighting the conflicting manner in which the courts of appeals have thus far treated finality. This Article then proceeds to consider the Ninth Circuit’s en banc decision in Abdisalan, noting its importance in establishing a more or less uniform definition of finality within that circuit, while also exploring some concerns about the scope and limitations of that decision. Finally, to address broader inconsistencies amongst courts of appeals, this Article proposes two possibilities for reform: (1) a uniform definition of finality adopted across the courts of appeals; and (2) statutory reform that would define specifically and exhaustively what constitutes a final order of removal for purposes of judicial review.

Psychiatrists Should Be Involved in Assessing MH Status of U.S. Immigrants

Back to table of contents Previous article Next article Government NewsFull AccessPsychiatrists Should Be Involved in Assessing MH Status of U.S. ImmigrantsAaron LevinAaron LevinSearch for more papers by this authorPublished Online:25 Sep 2015https://doi.org/10.1176/appi.pn.2015.9b11AbstractProposed changes to a CDC rule would not require that the review board responsible for hearing appeals by immigrants regarding their mental health has a board-certified psychiatrist on it.In a letter to the Centers for Disease Control and Prevention (CDC) last month, APA asked the agency to continue employing psychiatrists to review the mental status of aliens seeking to enter the United States or to adjust their legal status.Currently, the Immigration and Nationality Act (INA) blocks admission of aliens with a physical or mental disorder that “may pose or has posed a threat to the property, safety, or welfare of the alien or others” or of those who are determined to be “drug abusers or addicts.”Individuals ruled inadmissible may appeal such decisions to a review board convened by the CDC. In the past, when the appeal involved a mental health issue, the CDC required that the review board include a board-certified psychiatrist. The CDC’s newly proposed regulation is less specific. Among other things, it calls for “at least one medical officer who is experienced in the diagnosis and treatment of the physical or mental disorder, or substance-related disorder for which the notification was made.” The CDC’s rationale for this change is that it would be easier and more efficient to convene a review board. Changes to the CDC rule would also end the requirement that medical officers be physicians in the U.S. Public Health Commissioned Corps, expanding the pool from which psychiatrists could be drawn.“Nonpsychiatric physicians do not have the expertise to perform the necessary dangerousness-based risk assessments and cannot ensure that the determination of inadmissibility is valid,” APA CEO and Medical Director Saul Levin, M.D., M.P.A., wrote in a letter to CDC Director Thomas Frieden, M.D., M.P.H. “Psychiatrists are both the highest qualified physicians and the highest qualified mental health clinicians to ensure the validity of the type of determinations that rest in the relevant statute.”The goal, said Levin, quoting the CDC’s own words, should be “to meet the needs of the alien.”While medical reasons to exclude foreign travelers to the United States are mostly based on the active presence of communicable diseases, the psychiatric criteria are much more vague and appear to conflate mental illness with dangerousness, said Steven Kenny Hoge, M.D., chair of APA’s Council on Psychiatry and the Law.“Presumably, someone who was dangerous but did not have a mental illness could be permitted to enter the country,” Hoge told Psychiatric News. Even before the CDC issued its proposed regulations, the council was already examining how the criteria had been applied in the case of several people stopped at the Canadian border, said Hoge.In Levin’s letter to the CDC, he expressed his concerns over the CDC’s maintenance of policies and language that stigmatizes people with mental illness by assuming that aliens with mental illness were likely to be violent.“The inadmissibility framework does not address those aliens who may be dangerous and have never been diagnosed with a mental illness,” he said.In addition, the use of the terms “drug abuser” and “drug addict” in the regulations are outmoded and discriminatory and should be replaced with terms more compatible with current behavioral or medical standards, said Levin. However, those changes must be made legislatively by the Congress.APA did applaud the CDC’s recently proposed change to make explicit the use of the “most recent edition” of the Diagnostic and Statistical Manual for Mental Disorders as the standard for defining drug abuse, drug addiction, and mental disorders. Some reviewers had been using earlier editions of the DSM, with obsolete definitions of disorders.The CDC is now evaluating all the comments received about the proposed regulations. ■The text of Levin’s letter to the CDC can be accessed here. ISSUES NewArchived

A Modest Proposal: Legalize Millions of Undocumented Immigrants with the Change of a Single Statutory Date

Nearly 12 million undocumented immigrants currently live in the United States. Seemingly not a day goes by where the press does not cover immigration and immigrant issues. These articles discuss everything from the day-to-day experiences of undocumented immigrants in Alabama or Arizona, to the macro-political implications of Congress passing, or failing to pass, comprehensive immigration reform legislation. Yet, despite the press coverage, the on the ground realities, and the political ramifications, Congress has been unable to reform our broken immigration system. One reason posited for this failure is that the proposed solutions are simply too complicated. However, with respect to addressing the U.S.’s undocumented immigrant population, the solution need not be: Congress may amend a single date in the registry statute under Immigration and Nationality Act (INA) § 249, 8 U.S.C. § 1259, last altered during the Reagan Administration. By amending a single date, Congress could provide a path to legalization and citizenship for millions of undocumented immigrants with strong ties to the communities where they live and work.

Immigration Policy and Access to Health Services

Section 287(g) of the Immigration and Nationality Act (INA), added in 1996, authorizes the U.S. Immigration and Custom Enforcement (ICE) to enter into agreements with state and local law enforcement agencies to enforce federal immigration law during their regular, daily law-enforcement activity (www.ice.gov/287g). The original intent was to “target and remove undocumented immigrants convicted of violent crimes, human smuggling, gang/organized crime activity, sexual-related offenses, narcotics smuggling and money laundering.” Nationally, over 72 jurisdictions have implemented section 287(g) agreements in 23 states. More than 1,240 active 287(g) officers have been trained and certified, and since 2006, federal funding to facilitate 287(g) agreements has increased dramatically every year, growing from $5 million allocated in 2006 to more than $68 million in 2010 [1]. The section 287(g) program is criticized for its unintended impact on individual rights and liberties. According to reports, local officials are misusing their authority to enforce federal immigration law given to them through the program, by focusing more on minor offenses (such as traffic violations) rather than serious crimes [2]. It also has been associated with ethnic profiling and discrimination in traffic stops and through the use of checkpoints in heavily Latino enclaves (Figure 1) [3]. The section 287(g) program is one of ICE’s top partnership initiatives with local authorities. However, unlike other U.S. ICE initiatives, which limit local law enforcement immigration, Section 287(g) has a direct impact within communities. Local law-enforcement agents, such as police officers, are deputized to enforce immigration laws in their jurisdiction and without regard to civil or criminal misbehavior or suspicion [4]. Figure 1 Police set up a checkpoint in front of Latino-owned grocery store. Winston-Salem, North Carolina, U.S. (2012) Little is known about how the 287(g) program has affected willingness to seek public health services among Latino immigrants. However, based on previous research on immigration policies and access to health services [5-7], there is legitimate concern that people who are potentially subject to 287(g) enforcement, whether documented or undocumented, may refrain from seeking vital services, including medical, from any local government or private agency – even agencies unrelated to law enforcement – for fear of exposing themselves or their family members to legal sanctions or harassment. Although funding increases may be leveling off in the future, some jurisdictions are still considering whether to adopt 287(g) programs. Furthermore, other jurisdictions that have adopted 287(g) are considering whether to drop their participation, based on a concern that the burdens and costs may outweigh the perceived benefits to the community or its leaders. Timely information about the 287(g) program’s impact on public health concerns could critically inform these ongoing community participation decisions. Documenting the experiences of the 287(g) program could help inform similar debates nationally regarding local enforcement of federal immigration laws. Finally, a better understanding of whether and how immigration enforcement affects ability to seeking public health services could help to mitigate public health harms under ongoing enforcement programs.

The Immigration Prosecutor and the Judge: Examining the Role of the Judiciary in Prosecutorial Discretion Decisions

Legal scholars and judges have long examined the role of judicial review in immigration matters, and also criticized the impacts of the “plenary power” doctrine and statutory deletions of judicial review for certain immigration cases. Absent from this scholarship is a serious examination of the judiciary’s role in immigration decisions involving prosecutorial discretion. I attribute this absence to both a silent concession that prosecutorial discretion decisions are automatically barred from judicial review because of the plain language of the Immigration and Nationality Act (INA); the judicial review “exceptions” in the Administrative Procedures Act (APA), and the cases that analyze these sections; and the effects of reading a decade-plus shelf of memoranda by the immigration agency declaring that no prosecutorial discretion provides a procedural or substantive benefit or a right. The role of prosecutorial discretion in immigration matters is well established, and generally refers to the agency’s determination about whether or not the immigration laws should be enforced against a particular individual or group of persons. The theory of prosecutorial discretion rests on both humanitarian and monetary considerations. First, prosecutorial discretion recognizes that certain noncitizens bearing positive attributes and qualities have no formal relief available under the immigration laws. Second, prosecutorial discretion acknowledges that the number of noncitizens who are technically “deportable” under the immigration laws is much larger than the immigration agency can successfully handle with its available resources. More specifically, prosecutorial discretion may be exercised by DHS at any stage of immigration enforcement, including, but not limited to, interrogation, arrest, charging, detention, removal proceedings, on appeal, or after a removal order has become final. Building upon my research on the role prosecutorial discretion in immigration law, this Article examines the role of the judiciary in prosecutorial discretion decisions. This Article begins with providing an overview about the immigration process generally, and of prosecutorial discretion in particular. Part II examines the normative arguments about judicial review over immigration decisions. Part III of this Article describes the legal framework for judicial review of agency actions generally and prosecutorial discretion decisions particularly. Part IV examines a handful of federal circuit court decisions applying the judicial review scheme outlined in the governing statutes to discretionary immigration decisions, and challenges the appropriateness of applying Heckler v. Chaney to every prosecutorial discretion decision in the immigration context. Part V analyzes the potential for judicial review over select prosecutorial discretion decisions and offers related recommendations.

Extending Due Process Protections to Unadmitted Aliens within the U.S. Through the Functional Approach of Boumediene

Although noncitizens seeking entry possess some statutory protection under the Immigration and Nationality Act (INA), they have generally been unable to challenge the validity of the INA. Further, such unadmitted noncitizens have few avenues for redress if their rights are violated under the INA. Without a means to check legislative mandates or executive enforcement, these noncitizens are subject to the mercy of Congress and the President, with minimal oversight by the judiciary. Even if physically present within the U.S., such unadmitted noncitizens are deemed to be outside of the nation’s border as a matter of law. Because the scope of the protections of the Constitution’s due process clause has been traditionally limited to those within the border, these unadmitted noncitizens have been treated as though beyond its reach. During the last several decades, however, the landscape of constitutional rights of unadmitted noncitizens has begun to shift in a piecemeal fashion. Some courts have made limited extensions of constitutional protection to such inadmissible noncitizens. Yet, until recently, there had been no consistent framework from which one could reconcile the cases extending constitutional protection to arriving noncitizens seeking entry and the nonextraterritorial rule of constitutional application. In the Supreme Court’s decision in Boumediene v. Bush, Justice Kennedy articulated a functional approach to extraterritorial constitutional application. It conclusively dispelled the bright-line rule that the protections contained within the Constitution never extend beyond the border of the United States. This functional approach cohesively explains the landmark cases that extend due process protections to certain unadmitted noncitizens and provides a rule by which noncitizens may argue their entitlement to other constitutional protections. In this article, I apply the functional approach and argue for extending to arriving noncitizens within the U.S. several Fifth Amendment due process clause protections.

Learning from the Recent Interpretation of INA Section 245(a): Factors to Consider when Interpreting Immigration Law

Recently, the United States Citizenship and Immigration Services (USCIS) adopted a policy that may seem insignificant, but will actually have a great impact on the lives of many battered immigrants. On April 11, 2008, USCIS issued a memorandum declaring: Effective immediately, USCIS interprets the introductory text in section 245(a) of the [Immigration and Nationality] Act as effectively waiving inadmissibility under section 212(a)(6)(A)(i) of the Act for any alien who is the beneficiary of an approved VAWA self-petition.'I This change in policy enables battered immigrants to apply for adjustment of status under section 245(a) of the Immigration and Nationality Act (INA)2 even if they entered the country unlawfully.3