Term Paper: Immigration Drawing the Line in Cases Involving Moral Turpitude

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Immigration - Drawing the Line in Cases Involving Moral Turpitude

From early in the history of federal immigration laws in the United States, criminal activity has been a ground for denying admission to the country and also for expelling or deporting someone already present. In the past decade, however, the standards and procedures for deportation have become much more restrictive, as Congress has expressed growing frustration over failures to remove criminal aliens and decreasing tolerance for continued residence by aliens who have committed crimes. The number of deportations has increased, as the category of crimes involving "moral turpitude" has been dramatically increased to include numerous offenses not previously included. This paper analyzes where the courts should draw the line in cases involving moral turpitude, including an examination of the legislative history and related cases.

Legislative History

The first comprehensive law for national control of immigration was the Immigration Act of 1891. This act established the Bureau of Immigration as part of the Treasury Department and gave it the authority to administer all immigration laws other than the Chinese Exclusion Act. Additionally, it expanded the list of inadmissible classes of immigrants to include those likely to become a public charge, those suffering from selected contagious diseases, felons, persons convicted of other crimes or misdemeanors, polygamists and contract laborers, and it made it illegal to recruit or advertise for immigrants. It also authorized the Bureau of Immigration to deport immigrants who entered unlawfully. In 1903, Congress transferred the Bureau of Immigration to the Department of Commerce and Labor and expanded the list of inadmissible aliens to include anarchists in response to growing concerns of political instability in several European countries. It also allowed for the deportation of immigrants who became public charges within two years of otherwise lawful entry.

The Naturalization Act of 1906 transferred the process of naturalization to the Bureau of Immigration, creating the Bureau of Immigration and Naturalization, and made knowledge of English a prerequisite for naturalization. The Immigration Act of 1907 further codified these revisions to immigration policy and added to the list of inadmissible aliens "...persons who admitted the commission of a crime involving moral turpitude..." The 1907 Act also created a Joint Congressional Commission on Immigration to research the immigration system, whose findings were the basis for the Immigration Act of 1917 and the Quota Law of 1921. Under these laws, immigration from Asia had been incrementally and systematically stopped, first from China, then from Japan and Korea, and eventually from the entire Asia-Pacific Triangle.

Attitudes toward China changed when the U.S. saw the need for a military alliance during World War II. As a national security measure, Congress had passed an Alien Registration Act in 1940 that had required all foreign-born non-citizens over the age of 14 who were eligible for naturalization to register and be fingerprinted. In 1943, the act was amended to add Chinese persons to those eligible for citizenship. World War II drew men and women from all social classes into the military at a time when the economy was recovering from the prolonged Great Depression. Despite the number of women who entered assembly line jobs during the war, there were significant labor shortages. To meet the need for laborers, the federal government looked to neighboring countries for temporary workers. Mexicans and Central and South Americans were recruited as temporary agricultural laborers, laying the foundation for the Mexican Bracero Program that continued until 1964. The Immigration Reform Act of 1965 finally eliminated national origin, race, ethnicity or ancestry as a basis for immigration. It also made family reunification a more important component of the visa system by reordering the preference system so that two extended family preference categories came before professional and highly skilled laborer preferences and by moving more extended family members to nonquota status.

As a result, immigrant visas were now to be awarded on a first-come, first-served basis within the new preference system. It also included protections for American workers by requiring certification that those applying for labor-based preferences were not going to negatively affect American workers either by wage depression or as replacements for available native workers. The Bracero program was terminated in 1964, but a generation of Mexican households had become dependent on migrant remittances for their economic well-being. Farmers had also become accustomed to this source of cheap labor. A major problem was that deportation did not serve as a sufficient disincentive since employers were continuing to hire undocumented laborers. Although there were undocumented immigrants from many countries, the undocumented Mexican migrant came to symbolize the problem.

In 1986, Congress passed the Immigration Reform and Control Act (IRCA), which took the very different direction of amnesty for the undocumented. Under IRCA, undocumented immigrants who could prove they had continuously resided in the U.S. since January 1, 1982 could regularize their status, first to temporary resident then permanent resident status without risking deportation. The IRCA also created sanctions prohibiting employers from knowingly hiring immigrants, whether documented or not, who did not have visas allowing general employment. The Immigration Act of 1990 created a new category of entrant, a quasi-documented temporary protected status (TPS) for undocumented immigrants from specific countries experiencing natural disasters or armed conflicts and for whom remaining in their countries would place their lives at risk. TPS was not an immigrant status because it allowed the applicant to remain in the U.S. until his or her case for protection had been reviewed by an immigration judge. If the person could prove that he or she has a well-founded fear of persecution upon return or if it is impossible to return due to a natural disaster, then the applicant would receive a permanent resident visa.

Despite these reforms, undocumented immigrants or illegal aliens continued to be a major concern for the American public. Although they did receive some federal funding for public services, states were primarily responsible for public education, indigent health care and general cash public assistance. Prior federal legislation had not specified whether states were responsible to provide education, care at publicly funded healthcare facilities and other public services to undocumented immigrants. In 1994, California voters approved the controversial Proposition 187, which would have denied access to public services by undocumented immigrants on the grounds that the citizens of the state had suffered economic hardship as a result of illegal immigrants. It also obligated public servants, whether teachers, healthcare providers, social workers, police or anyone else who might come in contact with undocumented immigrants to verify an immigrant's status before provision of services and to report the undocumented to the INS for deportation.

In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). This law increased the patrolling of the border and created more stringent penalties for those who entered unlawfully or who smuggled undocumented immigrants into the country. The IIRIRA reformed deportation procedures, expediting removal and making re-entry more difficult. It also addressed many of the concerns raised by Proposition 187 by requiring the foreign-born to provide proof of citizenship or lawful immigration status to receive public benefits and gave states the authority to limit the general public cash benefits given to immigrants. The attacks of September 11, 2001 on the World Trade Center in New York City, the Pentagon in the nation's capital raised unprecedented concerns about immigration and protection of the nation's borders. Scrutiny of the Immigration and Naturalization Service (INS) revealed myriad problems, including visa and naturalization backlogs.

By November of 2002, President Bush created a new cabinet-level department, the Department of Homeland Security (DHS), and the newly restructured Bureau of Citizenship and Immigration Services (BCIS) responsible for visa and naturalization applications, was moved from the Department of Justice to this newly created department. Border enforcement was also moved to DHS, under the Directorate of Border and Transportation Services. As a result, entry into the U.S. with intent to stay is again seen as a national security concern.

On March 1, 2003, the Immigration & Naturalization Service ceased to exist. All of the INS's immigration functions were moved into three new bureaus that are part of the Department of Homeland Security (DHS). The Bureau of Citizenship & Immigration Services (BCIS) will handle the "benefits" side of immigration. This means that BCIS will process all applications for immigration benefits and services, including applications for employment- and family-based visas, employment authorization documents and naturalization. The Bureau of Immigration & Customs Enforcement (BICE) will focus on enforcement of the immigration laws within the borders of the United States. Among other things, BICE will be responsible for the detention and removal of criminal aliens and will perform certain duties of the Customs Service and Federal Protection Service. The Bureau of Customs & Border Protection (BCBP) will be responsible for immigration and customs matters at our borders. BCBP now includes the Border Patrol, certain parts of the Customs Service and Agricultural Quarantine Inspections. It is too early to say whether this restructuring will improve the administration of our immigration laws or slow… [END OF PREVIEW]

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