Substantive Law Study Support

Due to a significant increase in its Latino population, the City Council of Harmony believes there are more unauthorized immigrants who are moving there. The Harmony City Council and Mayor want to limit the number of such immigrants who reside in Harmony. It has passed a law requiring landlords to verify the immigration status of prospective tenants.

Does this law raise any constitutional issues?

This Case for Discussion raises federal pre-emption and due process issues. The law may also raise equal protection issues if it leads to race discrimination or racial profiling. Since the law was passed after a Latino population increase, Latinos could be targeted, leading to racial profiling.

Under this statute, landlords or other city officials and local law officials must determine immigration status by reviewing immigration documents. This determination can be quite complex and untrained landlords and city officials may be unable to make such an assessment accurately. The ordinance can be viewed as an attempt to regulate or enforce immigration law. The scope and ability of local government and law enforcement to regulate or enforce immigration law is the subject of considerable litigation; it has been permitted in certain circumstances and by certain Circuit courts of Appeals, but denied in other areas. See Arizona v. United States, 567 U.S. ___ (2012) (police have right to ask immigrants for documents proving status) and Chamber of Commerce v. Whiting, 131 S.Ct. 1968 (2011) (Arizona law denying licenses to businesses who hire undocumented immigrants upheld and not barred by pre-emption); Lozano v. Hazleton, 3d Circuit Court of Appeals No. 07-3531 (July 26, 2013), Petition for certiorari to the U.S. Supreme Court denied on March 3, 2014, (local ordinance denying licenses to landlords and businesses who rent or hire undocumented immigrants is pre-empted by federal law).

See also http://www.migrationpolicy.org/article/hazleton-immigration-ordinance-began-bang-goes-out-whimper

Supplemental Exercise

Have students read Chamber of Commerce v. Whiting, and the initial decision in the Hazleton case which contains some interesting review of immigration law and policy, available at Lozano v. City of Hazleton, 496 F. Supp.2d 477 (M.D. Pa. 2007) and the Third Circuit appellate decision. Discuss how these cases treat the constitutional issues raised above.

Case for Discussion 1.2

Tran was born in Vietnam and is now a lawful permanent resident in the United States, living in Pennsylvania. She comes into an immigration law office requesting assistance to apply for citizenship. She meets all the legal requirements. Practitioner Judy is asked to find the correct form, the cost of the application, and the address where it should be mailed. Judy knows that, since Tran is applying for a benefit, the correct agency that Tran will interface with is the USCIS.

How should Judy find the correct form and the other information
requested?

Judy should use www.uscis.gov to find the correct form. The website has a link to naturalization where the form, N-400 and other resource materials for citizenship, can be found. It cannot be repeated too often that, whenever an application for an immigration benefit is to be made, a review of the USCIS website is essential. This is because forms, instructions, fees and addresses of where applications should be sent, change frequently. Use of an outdated form, payment of the incorrect fee or forms sent to the wrong address may result in an application being rejected and missing an important deadline.

Will Judy use primary or secondary sources in her search?

The USCIS website is a secondary source. In order to answer this question, the instructor should think about how to engage students in a discussion about the purpose of primary and secondary sources, when to use which and the best ways to navigate primary sources. It is also interesting to point out to students that if you do a “google search” for naturalization forms, private organizations pop up. These sites look a lot like USCIS’ and charge an applicant for forms. But all USCIS forms are free, although there is a fee for processing applications. Here, it should be stressed that the official USCIS website can be identified with the suffix .gov and that non-governmental sources should NOT be used.

Supplemental exercise

Divide the class into small groups, distributing primary sources such as copies of the Immigration and Nationality Act or regulations to some and various secondary source materials to others. Alternatively, have the students access these sources on the internet. Of course, Understanding Immigration and Nationality Law and Practice would be an ideal secondary source, along with another excellent but more complex book, Ira Kurzban’s Kurban’s Immigration Law Sourcebook. Then ask each group to identify the criteria for qualifying to naturalize or any other appropriate legal question. Some sample questions are below. It does not need to be a legal issue that has already been covered in class. The exercise is to allow students to think about when to use primary or secondary sources. As each group tries to find the answer to the question posed, exchange the source materials available, so that those with only primary sources are given secondary and vice versa. Those who were unable to find the answer to the questions using just primary sources – which is often the case as most students will not know how to navigate statutes or regulations without guidance – can now look to see if their secondary source material will assist in uncovering the answer. Those who began with secondary source materials can either review their answers against the primary sources – always an important skill – or search for the answer to a different question so that they can compare just how difficult it can be to answer a question when primary source material is the starting point.

Given the prevalence of the Internet, you could also have a group of students do an electronic search for the answer to the question, which can then lead into a discussion about knowing which sites to rely on when searching in this way.

Case for Discussion 1.3

Practitioner Lori has been asked to do an initial interview of the Coulter family to determine the immigration status of each of them. Sam Coulter, born in Trinidad, states he is a lawful permanent resident and has a Resident Alien card. Two years ago Sam met Anne, who arrived in the United States from Trinidad as a visitor on a B-2 single entry visa to compete in an athletic event. Anne’s I-94 Arrival/Departure Record card shows she had permission to remain in the United States for six months, but she met Sam, fell in love, and never left. They recently married and now have one daughter, Sheri, born in the United States.

What documents would you use to determine or confirm each family
member’s immigration status?

One of the most important things in immigration law is verifying a client’s understanding of his or her immigration status. Most often, clients are not fully aware of their status or how it was acquired. It is often a good idea to verify what the client is telling you by looking at documents that may be in their possession. For instance, Sam believes he is a lawful permanent resident or LPR. It would be important to confirm this by reviewing his resident alien card if he still has it. If he does not and has no other documentation, it would be prudent to request a copy of his immigration file from the USCIS by filing Form G-639, Freedom of Information Act/Privacy Act Request. For Anne, a review of her passport may show the I-94 Arrival/Departure Record card that she was given when she first entered. If she does not have it, the practitioner will have to determine whether Anne arrived after April 2013, the date that the Immigration and Customs Enforcement, began to issue these documents electronically, or whether Anne will need to apply to the USCIS to have her card replaced. Evidence of the child’s immigration status can be shown by producing his or her birth certificate.

Samples of the Form I-94, Arrival/Departure record can be found in section E.2 of Chapter 1, Historical Background and Introduction to the U.S. Immigration System

Sample questions:

1. Client who was recently granted asylum comes in asking how long before s/he can become a lawful permanent resident. A client granted asylum is known as an asylee. Using the internet and primary sources, find the answer.

Answer: One year from the date asylum is granted s/he can apply for lawful permanent resident status. Research sources: www.uscis.gov INA § 209; 8 C.F.R. § 1209.2

2.         Jean, from Haiti, wants to apply for Temporary Protected Status, or TPS. Using the internet, and primary sources, find out if he is eligible and if that status allows him to work lawfully in the United States.

Answer: Jean’s eligibility for TPS depends on his date of entry; TPS permits lawful employment.
Research sources: www.uscis.gov; INA § 244, 8 C.F.R. § 1244.12

3.         Mercedes, from Costa Rica, wants to attend college in the United States. Using the internet, find out the legal basis for a student visa and where she applies for one.

Answer: Mercedes can apply for an F-1 student visa at the consulate in Costa Rica. Research sources: travel.state.gov; INA § 101(a)(15)(F); 8 C.F.R. §214(f).