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The Policy Implication of The Source of Immigration Law and The History of Immigration Law in U.S.

  • Public Land Law Review
  • Abbr : KPLLR
  • 2017, 79(), pp.711-735
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

Kim, Sung-Bae 1

1국민대학교

Accredited

ABSTRACT

Although the United States is generally known as a heaven of immigrants, it is not the only immigrant-friendly country that can be seen in recent anti-immigration policies of President Trump. If considering of the history of US immigration law, it is hard to simply classify the United States as an immigrant welfare state or immigration equality state. The fact that US has composed of immigrants born in other countries rather than the natives can not be classified as an example of immigrant heaven or immigration policy. Early stage of independence from Britain, it was the state government that led the immigration policy in the early days. On the basis of the precedents of the Supreme Court, the federal government took the lead in the formation and development of immigration policies, and at the heart of it was the United States Congress. Although the federal Congress took the initiative in the early formation and development of immigration law in the United States, unlike other administrative areas in specific enforcement, it gives the president broad authority and administrative discretion to the immigration administration. Specific standards of immigration law have set forth by regulations and administrative rules. Trump's recent anti-immigration policy is not a result of Congress's amendment of immigration laws, but rather the administration's mandate to abolish the Obama Administration's administrative orders or to launch new anti-immigrant administrative orders. The changes in the US immigration system show that immigration policies have been created and legislated for the national interest perspective. Although some immigration policies to strengthen human rights, the US immigration policy has changed more and more conservatively since 9/11. In the meantime, various administrative measures belonging to state jurisdiction are also proceeding in order to strengthen the authority of the federal government in the immigration administration, such as complying with the standards of the federal government, and to expand the discretion of the administrative bodies related to immigration. It is proceeding in the direction of expanding the discretion of federal administrative agencies related to immigration. In other words, changes in immigration law have not changed in one direction, but have changed in accordance with social needs and needs under the big framework of national interests. Since the mid-1990s, legislative measures have been put in place to harmonize social and economic interests by emphasizing immigrants' personal responsibilities and ensuring that they are not eligible for social assistance and providing emergency eviction procedures for immigrants. 90% of the budget of administrative agencies related to immigration is covered by commissions and so on (Beneficiary Pay Principle). The United States Supreme Court has adopted a wide range of discretion in the interpretation and application of immigration policy and immigration law. In other words, the judiciary does not actively intervene in the decision of immigration policy decision through the precedents in which the broader discretion is given to the immigration administrator and the immigration administration. However, the adjustment of the imposition of the immigration policy by the president means that the immigration policy can be changed completely through the period of regime change.

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