The Nature of Immigration Law
A camel is a horse designed by a committee Mark Twain
Immigrating to the United States requires that you comply with a complex and often confusing set of laws that frequently change. But there are certain fundamentals that form the basis of our immigration system. We examine here those important principles and the overall nature of immigration law before examining each of the specific procedures. Immigration law is Federal law. The United States Constitution identifies certain areas of public concern that are exclusively within the jurisdiction of the Federal government. The framers of the Constitution wanted to ensure that the laws in these areas would be applied uniformly throughout the country. Immigration law is one of those areas. Other examples include bankruptcy, patents and Federal income tax. Immigration laws are and must be the same throughout the country. While it may be quicker or sometimes even easier to immigrate in one of the fifty states than another due to differing workloads or bureaucratic priorities, the legal requirements for immigration remain identical throughout the United States. It is important to remember that it is the Federal government, not the individual states, that makes and enforces American immigration laws. As with most Federal law, immigration law is also statutory. This means that the United States Congress enacts the law in a written form, which, after being signed by the President, is codified into a statute. This code is officially known as the Immigration and Nationality Act of 1952 as amended. Almost all immigration law is located in this one place or statute. The concepts of the Anglo-Saxon Common Law, evolving from our English heritage and a prominent feature of most aspects of American law, are generally absent in immigration law. In this sense, immigration law resembles more the civil law of Western Europe and Latin America. Often the best advice for understanding immigration law is, when in doubt, read the statute. Because immigration law is statutory it can be also be arbitrary. Put simply, this means that some parts of immigration law do not always make logical sense and may not always seem fair. If a camel is indeed a horse designed by a committee, then the Congressional committee system has the potential to produce an entire zoo. Within certain limits, Congress can legislate whatever the majority of its members want and, if signed by the President, a law will be enacted. This arbitrariness is not limited to immigration law. We stop at red lights and go at green lights. These colors could just as easily be purple and pink. Our speed limit one year was 65 miles per hour, then became 55 miles per hour, and now is 70 miles per hour in many places. Our tax rates change with each session of Congress. There is nothing inherently fair or unfair, just or unjust about the color of a stop light, the speed limit we drive or the tax rate we pay. It simply is. We observe what the law says, attempt to comply and pay the penalty if we do not. Immigration law is filled with numerous arbitrary definitions. In trying to define the seemingly simple concept of a child, Congress has enacted five different definitions. For example, a child is usually under the age of twenty one but a stepchild relationship must exist prior to age eighteen, while an adoption must occur prior to the age of sixteen (previously the law stipulated the age of fourteen). A defense to deportation based on continuous presence in the United States was previously seven years. It is now ten years. Do you think Congress makes the word deported easy to understand? Being thrown out of the country may mean you were inadmissible, excludable, deportable and/or removable each of these terms refers to a different procedure often having different legal consequences. Only by examining exactly what the statute says can we understand these different terms. Therefore, do not look to fairness in these laws; look to what the language of the law actually and specifically says. Todays immigration laws apply equally to all countries and in that sense are non-discriminatory. This means that citizens of Mexico and Egypt as well as France and Japan must all satisfy the same requirements. The laws we discuss below apply equally to people from any country in the world. It is not easier to immigrate to the United States from one country than from another because the legal standards apply equally to all countries. However, the quota system produces a result, which does discriminate against certain oversubscribed countries: Mexico and the Philippines, often India and China. The quota system allocates a certain number of green cards to each country in a variety of family and employment based categories. Most countries never use their quota while others each year oversubscribe and their citizens are placed on very long waiting lists. If you are a citizen of one of the above four countries, you should consult the Department of State Visa Bulletin (published monthly) on a regular basis to determine how long your wait may be especially in the family based categories. Immigration laws do not exist in isolation. These acts and regulations are part of our overall body of law and the American judicial system. This means there can be no discrimination on account of sex, race, religion, national origin or any other protected category. This means also that general notions of justice and fundamental fairness due process and equal protection must be present in the application of those laws. Arbitrary and heavy-handed administration of immigration laws by self-appointed guardians of the borders is despised by our legal system. Federal Courts can and do interpret both the laws that Congress passes and the manner in which the Federal government administers them according to well-established principles found in the American Constitution and the American legal heritage. The idea of judicial review by Courts over government actions is at the core of individual liberty and freedom. Perhaps that is why so many people wish to come to the United States.
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