National Security Grounds of Inadmissibility and Deportability – INA § 212(a)(3)

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National Security Grounds of Inadmissibility and Deportability – INA § 212(a)(3)

The deportability ground is 237(a)(4)(B), but it just reroutes you to the descriptions in the inadmissibility grounds, 212(a)(3).

Unlike criminal deportation grounds, where the issue is whether the conviction fits a legal category, security deportations are very factual – what does the gov. reasonably believe this person did?

The list of terrorist organizations designated by the Sec State (§ 219) is NOT retroactively applied (if you were in one before it was on the list)

The PATRIOT Act increased ideological exclusion based on pure speech – inadmissible and deportable if you “endorse or espouse terrorist activity”

212(a)(3)(A) – person wants to commit unlawful activities, especially threatening to national security

(B) – has engaged in terrorist activity. This ground is really complicated, and is a constant concern for guilt by association and 1st Amendment violations. See David Cole’s argument on p. 1238-42

Spouses and children of people barred under this ground are also excluded unless they show they did not know and should not reasonably have known about the illicit activity.

Soliciting funds or providing material support for the 3 categories of designated terrorist organizations can make you inadmissible, except for a small out for the third (undesignated) type of org, and when the noncitizen demonstrates he didn’t know and couldn’t have reasonable known his actions “would further the organization’s terrorist activity.” Generally there’s a low mens rea requirement for material support.

The government’s position is that there’s no constitutional right to give money /goods/services to organizations even if you say it’s for nonviolent humanitarian or political activities, because terrorist orgs don’t have open books and any contribution frees up resources and facilitates terrorist conduct. Humanitarian Law Project, 9th Cir. 2000

(c) – admission would be contrary to foreign policy (rare)

(d) – currently member of communist or totalitarian group

(e) – former Nazi or participant in genocide or torture (the Holtzmann Amendment)

(f) – people associated with a terrorist organization

Unauthorized Immigration

Constitutional Rights of Unauthorized Migrants

Plyler v. Doe (US 1982): Issue: whether TX law barring free basic education for undocumented children violates EPC.

Brennan’s majority says Yes.

Undoc. aliens are not suspect class and education is not fundamental right under Constitution.

But Ct goes to great lengths to justify some sort of intermediate scrutiny (to be rational the distinction must further some substantial goal of the State):

Threat of permanent underclass.

Children should not bear consequences of parent’s illegal conduct when children had no choice.

Education has special place in the nation and in EP jurisprudence (Brown).

Lifetime penalty of illiteracy.

De Canas allows States to act wrt illegal aliens if such action mirrors fed objectives and furthers a legit state goal.  But Tx made no showing of nexus btw education and Congress’ immigration concerns.

No indication of Cong intent to deny basic education.

As to State’s justifications:

Preservation of resources alone doesn’t justify (Graham).

Free education is no incentive to illegal immigration.

Nothing in record supports singling out this group to shore up educational quality.

Low likelihood of undoc students being able to remain in Tx long enough for societal payoff–completely rejects this argument b/c denial of education guarantees permanent underclass reliant on welfare and causing other negative societal consequences.  Recognizes likelihood that most will never be deported.

Concurrences all stressed the injustice of casting children into permanent underclass status.

Burger’s dissent:  Improper for judiciary to set policy. Criticizes Ct’s quasi-suspect-class, quasi-fund right analysis. Rejects Ct’s reliance on idea of children’s lack of choice and innocence.  Slippery slope btw education and other govt benefits.  RB standard for education (San Antonio).

Responses to Plyler:

In 1994, California’s Proposition 187 required public agencies to deny benefits to illegal aliens.  1996 Congressional legislation passed while Prop. 187 litigation pending.  PRWORA and IIRIRA preempted much of Prop. 187 b/c they pervasively regulated noncitizens’ eligibility for state and fed benefits.

Key Q is what policies will have deterrent effect on illegal immigration.

Motomura makes the point that there is tension between states that bear brunt of illegal immigrants and those that don’t.  State legislation like Prop. 187 is basically designed to reduce costs as much by shifting cost to other states as by deterring illegal entry.

Bosniak argues that progressive opponents to legislation like Prop. 187 are conditioned by “normative nationalism” that restricts the range of arguments made against the legislation, in particular the argument that the exclusionary immigration system is itself unjust.

State cooperation with federal immigration authorities have increased since 1996, but some cities refuse to cooperate, e.g. refuse to communicate with INS about status of particular individuals.

Hoffman Plastics v. NLRB (US 2002):  Issue is whether undocumented workers fired in retaliation for union organizing may receive backpay.

Rehnquist’s majority said NO.

NLRB’s discretion is limited when workers guilty of illegal conduct, and interpretation of immigration laws owed no deference.  The NLRA does apply to undocumented workers, but at present there is tension between NLRA and fed immigration policy.

Backpay remedy would undermine immigration policy b/c (1) encourages illegals to work here if we provide labor law remedies (2) encourages continuing illegal presence and employment due to

Cites Sure-Tan where Ct denied reinstatement and backpay for illegal retaliation (distinction: workers had returned to Mexico already, and to get remedies they had to illegal re-enter).

Breyer’s dissent:  Agrees w/NLRB that backpay reduces incentive to violate immig law.  Backpay is huge add’l deterrent compared to other remedies, which are all prospective, whereas backpay is retrospective, more financially effective.  Also, allowing NLRB to grant backpay increases Er incentive to check documentation, thus furthering IRCA’s emp verification scheme.  Not enforcing labor laws to maximum extent only adds to the “magnetic pull” of hiring illegals.

Majority’s concern about rewarding illegal immigration may be addressed by putting backpay awards in federal fund instead of giving it to the worker.

DOL has made clear that FLSA backpay remedy is still available to undocumented workers.  The EEOC said it would not inquire into worker’s immigration status but no longer permits backpay for discrimination violations.

Post-Hoffman Plastics (see supplement, 1182):

Employers argue Hoffman prevents unauthorized workers from ever recovering.  Courts differ, on different issues.


9th Cir.: unauthorized status not relevant to a Title VII suit.

S.D.N.Y: undocumented worker injured in accident not precluded from compensatory damages under NY labor law.

M.D. Fla.: unauthorized worker could not recover lost wages in product liability suit.

N.H.: undocumented worker couldn’t recover unless Er knew or should have known of unlawful status.

Scope of Hoffman: does it preclude recovery of back pay for violation of state labor laws? (NY Ct. App. Case):

Pre-emption issue: states cannot conflict with federal immigration policy. Ct. finds no pre-emption: IRCA does not expressly preempt state labor laws.

Ct. relies on traditional state police powers to find state is not eroding the objectives of IRCA in this case.

Hoffman is also easily distinguishable on its facts (here, worker had not presented fraudulent documents, therefore no violation of IRCA).

Proposals for Reform:

Border Enforcement:

Recent House & Senate bills prioritized this. But much of what we read suggests that you need to cut demand, not supply – as long as there are jobs here that pay better, people will come, no matter what the risks. Attempts to close the border in the 90s failed – there are more undocumented migrants than ever (see Meissner).

Closing border policy ignores need for unskilled labor filled by unauthorized workers (see Tienda).

Question allocation of greater resources to border enforcement, rather than interior enforcement (e.g. employer sanctions) (see Meissner).

Danger of closing borders and preventing unauthorized people already here from leaving (see Meissner).

Employer Sanctions:

Current sanctions under IRCA are weak: employer must knowingly hire an undocumented worker; many documents are accepted (a lot of fraud); establishes a good faith defense for employers. Meissner suggests this regime actually made it easier to hire unauthorized workers. But Cong. is unwilling to impose heavy verification burden on employers.

Current proposal: easy to use electronic database. But: concerns with civil liberties, privacy, ethnic profiling & possibility this will not address the problems (e.g. of fraud).

See Calavita: agency interests can favor illegal immigration: Braceros took pressure off INS to enforce the border closely (an impossible task). ICE today may have more pressing institutional priorities than employer sanctions.

Echaveste: AFL-CIO questions effectiveness of sanctions – argues they have been used to intimidate workers & have not reduced supply. But: E. thinks sanctions deserve a second look: unauthorized workers take jobs away from legal immigrants and other low-income populations.

Reich: need to enforce basic labor laws (minimum wage, health & safety – requires increased inspection resources.


History: IRCA legalized 2.7 million out of 3 million applicants. See Meissner, pointing to success of program in increasing standards of living and integration, through grants to states to provide English language training, etc.

3 Potential Models:

House Model: combine forced removal + increased work site enforcement + other penalties = illegal workers leaving of own accord;

IRCA Model: allow subset of migrants to obtain legal status (according to economic & social ties, length of residency, etc.).

Original McCain-Kennedy Proposal: provide all kinds of unauthorized migrants the opportunity to adjust to LPR status (low criteria). See also: Graham Amendment: Temporary visa procedure: submit to background checks; pay $1000 fine; establish 1 yr presence & employment since July 2005. After working for 6 mths, paying back taxes, learning English and paying another $1000, could apply for LPR status. Prevents newly arrived illegal immigrants from jumping the line.

Reasons for legalization:

Impossible to actually deport all of the illegal people currently here.

Next best thing = integration (taxes; prevent creation of permanent under class)

Notion of reciprocity: bc of presence here and integration into communities; make them full members of our society (see Meissner suggestion that IRCA achieved genuine integration); concern with avoiding second generation problem seen in Europe.

Way of government reasserting ‘control’ over immigration.

Allows for re-allocation of resources.

Reasons against legalization (or, in favor of stringent criteria):

Concern with magnate for future illegal migration.

Create hopes of future amnesty & nucleus for future undocumented migration (following IRCA, the undocumented problem grew worse).

Reciprocity favors those who have been here the longest and utilitarian reasons favor those people who have strongest ties to the country (most integrated = biggest asset).

Does not address long-term need for this kind of labor; need to address employer incentives to hire illegals. Does not address our addiction to cheap labor.

Guest Worker Program:

History: 1942 Bracero program: in response to WWII shortage of labor, it expanded over the yrs, at height: close to 500,000 workers (primarily agricultural). Criticized for worker exploitation and abuse (Truman Report); shut down in 1964, seen as inconsistent with political/ideological climate (Civil Rights Act; war on poverty).

Calavita: INS used & perpetuated the Bracero program to fend off pressure to deal with illegal immigration (‘drying out the wetbacks’).

Current proposals: similar program proposed today to include many other industries (meatpacking, cleaning, hotels, etc.). Basic premise: need for workers that cannot be filled with Americans; need some form of formal arrangement. Requirements: prevailing wage; housing & food at reasonable charge.

Reasons for skepticism (see generally, Ruhs Report, p.10 ):

History of exploitation and abuse (see Ruhs Report).

Development of parallel illegal sector (see Ruhs Report: ‘circumvention’).

Tend to become permanent (see Ruhs Report).

Segmentation: creates industries completely dependent on temporary workers.

Xenophobic backlash from native workers who do not benefit from this sort of program at all (see Ruhs Report). Parallels concerns in Europe with failure to integrate.

Idea of a temporary laboring class is in many ways inconsistent with our equal protection norms (tiers of citizenship, membership defined according to race, culture, language).

Solutions to concerns (see generally, Ruhs, p. 26-32):

Local worker compensation (e.g. re-training); see also Ruhs’ proposal (p. 29).

McCain-Kennedy: including a path to LPR status and ultimately to USC (i.e. not permanent temporary laboring class) (see also Ruhs).

International development goals to increase incentives to leave.

See Tienda: protect workers through adequate enforcement of wage, benefit, and safety laws; also: education, English-language instruction & health care.

Ruhs: eliminate sponsorship requirement to reduce vulnerability to employer abuse.


Current estimates of undocumented population are 10-11 million. Many with immigration applications pending – caught in a backlog. 57% of Mexican nationality, 81% from Latin America. 24% of households include U.S. citizen children.

Who is “illegal”? Unlawful entry and failure to register are crimes, but unlawful presence isn’t. EWIs, overstayers, those who have become deportable?

Border Enforcement keeps increasing in expenses, personnel, doesn’t seem to actually be curbing illegal entries. Border Patrol strategy of closing tradition entry routes pushes migrants into more dangerous territory, and deaths are up.

Interior Enforcement

Aimed at unauthorized migrants, smugglers, and employers who employ illegal aliens.

Alien registration – The government has a hard time finding all the people they know are overstaying their visas, and sometimes try to make them register at the border or come in. See Detention for efforts with Arab and Muslim males.

Employer sanctions

§ 247A – Unlawful to employ knowing aliens are unauthorized to work

Employers must use the I-9 to verify lawful status of all new hires and check their documents within three days of the hire.

Doesn’t apply to independent contractors.

Administrative punishments and fines- there are criminal sanctions for the most serious violations.

Need to prove knowledge or constructive knowledge of unauthorized status. Collins Foods International, 1991

Restrictions on employer action: Antidiscrimination provisions

Title VII only barred national origin discrimination, not discrimination based on alienage, and only for employers of 15 or more, so Congress adopted INA § 274B, which covers discrimination based on national origin or citizenship status (or certain classes of noncitizens, like LPRs, refugees, asylees). LPRs not covered if they don’t start naturalization 6 months after becoming eligible.

IRCA allows discrimination based on citizenship when lawfully required under federal, state, or local authority. An employer may hire a citizen over a noncitizen if they are equally qualified. § 274B (a)(2), (4)

IRCA applies only to hiring, referral for a fee, and firing, whereas Title VII also covers discrimination on the job. IRCA only covers actions motivated by discriminatory intent, whereas Title VII also covers disparate impact.

Discrimination is still OK if it’s a bona fide occupational qualification (like an English requirement).

Possible reforms – the Senate Bill, guest worker program, earned legalization, DREAM Act for college aid, etc.

Past legalization programs – the 1986 IRCA amnesty legalized over 2.5 million people