HOUSTON IMMIGRATION & NATURALIZATION ATTORNEYS
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An Overview of U.S. Immigration & Nationality Law
By The Houston Immigration Attorneys at Law Offices of Steven Tuan Pham
The United States’ Constitution does not enumerate specific power for Congress to regulate immigrants. Though, Article 1, Section 8 enumerated that Congress has the power to set uniform “Rule of Naturalization.” That is, the Constitution specifically stated that Congress has the power to formulate laws and regulations on how to be a naturalized citizen. The U.S. Supreme Court held over a century ago that Congress has the power, as a sovereign nation, to pass laws that regulate aliens and control its border, even though this power is not in the Constitution. Fong Yue Ting v. United States, 149 U.S. 698 (1893). Time and time again, the U.S. Supreme Court upheld the decision in Fong Yue Ting v. United States. In 1952, the U.S. Supreme Court held that, “So long…as aliens fail to obtain and maintain citizenship by naturalization, they remain subject to the plenary power of Congress to expel them under the sovereign right to determine what noncitizens shall be permitted to remain within our borders. Carlson v. Landon, 342 U.S. 524, 531 (1952).
In accordance to these holdings, recent legislations and regulations created limitations and difficulties for foreign nationals to enter and remain in the United States. In 1996, Congress passed the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996 (IIRIRA). IIRIRA allows The Department of Homeland Security to remove aliens that committed crimes that are defined as “aggravated felony” or those that committed “crimes involving moral turpitude” (CIMT). The Act gave the Attorney General great deference as to what is considered a CIMT. Further, the act is retroactive, allowing the Immigration and Custom Enforcement (ICE) to retain and placed foreign nationals, including permanent residents, on removal based on their past convictions prior to the enactment of IIRIRA. Other regulations, such as the Patriot Act, soon followed. Most recently, the Department of Homeland Security announced its implementation of the Electronic System for Travel Authorization (ESTA), effective as of January 12, 2009, in which nationals from visa waiver countries will have to register before allowing entry into the U.S. Nevertheless, the U.S. remains a country in which immigrants and non-immigrants are most welcome when comparing to all other countries.
The Immigration & Nationality Act (INA), enacted in 1952, governs immigration and nationality law in the U.S. The U.S. Department of State (DOS), the U.S. Department of Homeland Security (DHS), and the U.S. Department of Justice (DOJ) are delegated with the duties to regulate and enforce the Act. The U.S. Department of Homeland Security, is tasked with duties to pass regulations that are in accordance with the INA, reviewing applications and petitions, and enforcing regulations and the Act within the border of the U.S. Within DHS, the U.S. Citizenship & Immigration Services (USCIS) review and assess qualifications of various applications and petitions filed within the U.S. The Immigration & Custom Enforcement (ICE) enforce compliances by employers and foreign nationals within the U.S. Finally, the U.S. Custom & Border Patrol is tasked with the job of securing the U.S. border and illegal trafficking of illegal immigrants.
The U.S. Department of States is tasked with the administration and enforcement of the Act. The DOS is divided into the Visa Office and the Passport Office. The Passport office reviews and issues passports to U.S. citizens at home and abroad. The Visa Office develops Foreign Affair Manuals (FAM) to regulate, review, and assess immigrant and nonimmigrant applications abroad, usually acting as an Attaché unit within the U.S. Consular Offices. Usually, there are special units (non-immigrant attaché and immigrant attaché units) within each consular office abroad. No two consular offices have the same rules and procedures on how to file or apply for various applications. Each Consular Office acts independently and has special rules and requirements depending on the country and security related issues. Thus, when filing any application with the U.S. Consular, the Houston Consular Processing Attorneys at the Law Offices of Steven Tuan Pham. always review each consular’s requirements for the specific issue. This general rule of thumb applies to all consulates even if two consulates are within the same country. Also, it is important to remember that while many non-discretionary applications filed in the U.S. with USCIS has an appeal procedure, most applications filed with the U.S. Consular Office is not appealable. However, the U.S. Consular Appeal Attorneys at Veritas has successfully requested the Consular Officers to review and re-assess some very difficult cases and obtained favorable results for our clients.
The Executive Office of Immigration Review (EOIR) within the Department of Justice adjudicates issues arising out of the decisions by the USCIS and on removal issues. The EOIR consists of approximately 60 U.S. Administrative Immigration Courts and the Board of Immigration Appeals (BIA), located in Falls Church Virginia. The immigration courts and the BIA act as independent adjudicators to review the decisions of the USCIS and the charging documents from U.S. Immigration & Custom Enforcement in removal procedures. In many instances, such as asylum applications and adjustment of status to obtain permanent residency, the applicants have second chances once appearing in the immigration court. The immigration court review and make the determination on the foreign national’s qualifications and removal process. The BIA reviews appeals from the decision of the USCIS and the immigration courts.
Finally, on certain issues, the foreign national may appeal to the U.S. Court of Appeals based on the decisions of the BIA. The issues that can be raise on appeal are those that are NOT discretionary in nature, such as asylum or withholding of removal. Certain applications, such as removal waivers, are discretionary in nature and only the Attorney General’s office (the EOIR) may determine. For more information on filing appeals with the BIA or the U.S. Court of Appeals, please call the Houston Immigration Attorneys office at 713-517-6645 .
Immigration Law is a vast area of law and every situation is unique. This article is intended for informational purposes only. You should NOT rely on the limited information on this article in replacing a personal consultation with an experienced Houston Immigration Lawyer. There may be legal issues, depending on the facts and circumstances, in which you may not be aware. Please feel free to give us a call or to contact us online, for more information. our Houston Immigration Attorneys and the Spring Houston Naturalization Lawyers at the Law Offices of Steven Tuan Pham. can be reached at 713-517-6645 or complete our Contact Form.