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Immigration Law – A Comparative Approach

Guide to Immigration Law of Australia, Canada and the United States

 

By Annmarie Zell

 

Annmarie Zell is a reference librarian at New York University Law School library. Before becoming a reference librarian, she worked as an attorney for the U.S. Customs Service and as a legal editor for Vendome Group, LLC. Ms. Zell holds a Juris Doctor from the University of Pennsylvania Law School and a Masters in Library and Information Science from Southern Connecticut State University.

 

Published December 2006
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Table of Contents

Introduction

I. Australia Immigration Law

I.1            Government Bodies

I.2            Government Publications

I.3            Constitutional Provisions

I.4            Legislation, Regulations & Gazette Notices

I.5            Case Law

I.6            Secondary Sources

I.7            Fee-Based Databases Focusing on Immigration

I.8            Organizations

I.9            Refugees and Asylum Seekers

I.10         Research Guides

II. Canadian Immigration Law

II.1          Government Bodies  

II.2          Government Publications

II.3          Constitutional Provisions

II.4          Legislation, Regulations & Federal-Provincial/Territorial Agreements

II.5          Case Law

II.6          Secondary Sources

II.7          Fee-Based Databases Focusing on Immigration

II.8          Organizations

II.9          Refugees and Asylum Seekers

II.10       Research Guides

III. United States Immigration Law

III.1        Government Bodies

III.2        Government Publications

III.3        Constitutional Provisions

III.4        Legislation, Regulations & Documents in Federal Register

III.5        Case Law

III.6        Secondary Sources

III.7        Fee-Based Databases Focusing on Immigration

III.8        Organizations

III.9        Refugees and Asylum Seekers

III.10     Research Guides

Note About Research Guide

 

 

Introduction

 

This guide is designed to identify key resources concerning the immigration law of Australia, Canada, and the United States. For each country, this guide will identify key government bodies involved in administering immigration law and organizations involved with immigrants and immigration policy. The guide will also identify select legislation, regulations, case law, secondary sources, fee-based databases and research guides relating to each country’s immigration law and policy. It will report whether each country has acceded to the United Nations Convention Relating to the Status of Refugees and the United Nations Protocol Relating to the Status of Refugees, two key international conventions concerning refugees. The guide will provide online and print resources for each country’s legislation, regulations, and case law relating to immigration, when available. It will also provide links to select resources relating to refugees for each country. Because of the breadth of the subject area, this guide is not comprehensive but selective. It provides an overview of the resources available and aims to serve as a starting point for those interested in conducting in-depth research in this area. Finally, sources marked with an asterisk were consulted in the preparation of this guide.

 

I. Australian Immigration Law

 

I.1 Government Bodies

 

Department of Immigration and Multicultural Affairs

The Department of Immigration and Multicultural Affairs (DIMA) administers Australia’s immigration laws. To that end, DIMA determines whether applicants meet the criteria for visas, enforces the immigration laws, and so on.

 

The DIMA Web-site offers, among other things:

 

Minister for Immigration and Multicultural Affairs

The Minister for Immigration and Multicultural Affairs, who is also an elected member of Parliament, provides direction regarding DIMA’s administration of the immigration laws.

 

The Minister’s Web-site offers, among other things:

 

Migration Review Tribunal, Refugee Review Tribunal, Administrative Appeals Tribunal, Human Rights Equal Opportunity Commission, and Commonwealth Ombudsman

A number of Australian administrative bodies, including the Migration Review Tribunal, Refugee Review Tribunal, and Administrative Appeals Tribunal, make decisions concerning various immigration matters. The Human Rights Equal Opportunity Commission and Commonwealth Ombudsman may also issue decisions and reports relating to Australian immigration. To learn more about these administrative bodes, consult the portion of this guide concerning Australian immigration case law.

 

I.2 Government Publications

 

The following are some of the publications issued by the government bodies discussed in the previous section:

 

Procedures Advice Manual and Migration Series Instructions

DIMA spells out its procedures and policies in the Procedures Advice Manual (PAM). The current edition of PAM is PAM3. DIMA also issues Migration Series Instructions (MSIs), which comment on specific immigration issues and aspects of immigration legislation and regulations. MSIs are eventually incorporated into the PAM.

                 

Ministerial Directions

The Migration Act 1958 authorizes the Minister for Immigration to issue directions to a person or body who has powers or functions under the Migration Act 1958. These directions are usually called Ministerial Directions. Currently, there are a number in effect on a variety of subject matters, ranging from circumstances when DIMA should refuse or cancel a visa to the order in which DIMA should process various types of visa applications.

 

            Select print resources

  • DIMA. Procedures Advice Manual 3. Canberra: The Dept., 1994-.
  • Glass, A. & Goddard, J. Australian Immigration Law Including PAMs and MSIs. Sydney: Butterworths, 2004- (publishes PAM, MSIs, and Ministerial Directions).

 

I.3 Constitutional Provisions

 

The Australian Constitution in §51 authorizes the Australian Parliament to legislate for the “peace, order and good government of the Commonwealth with respect to”…“[n]aturalisation and aliens” and “immigration and emigration.”

 

                  Select free online resources

 

I.4 Legislation, Regulations & Gazette Notices

 

Migration Act 1958

The Migration Act 1958 is currently Australia’s primary legislation concerning immigration. It sets out the law regulating entry and migration to Australia. To that end, it sets out the framework for various types of visas, establishes sanctions for violations of the law, outlines the regulation of migration agents and the judicial review of certain immigration decisions, and so on.  The Act was first passed in 1958 but has been amended many times since then.

 

Migration Regulations 1994

The Migration Regulations 1994 are issued pursuant to authority in the Migration Act 1958. These regulations provide details on the immigration law outlined in the Migration Act 1958. For example, the regulations spell out various types of visas, how the points system for skilled visa applicants is applied, when visas may be cancelled and so on.

 

Migration Agents Regulations 1998

The Migration Agents Regulations 1998 are also issued pursuant to authority in the Migration Act 1958. They set out information relating to the regulation of migration agents. For example, these regulations spell out the insurance requirements for migration agents, their continuing professional development obligations and so on.

 

Australian Citizenship Act 1948

The Australian Citizenship Act 1948 is the principal legislation governing citizenship in Australia. It basically concerns who is a citizen, circumstances causing the loss of citizenship, and so on.

 

Commonwealth of Australia Gazette Notices

The Migration Act 1958 and Migration Regulations 1994 and other immigration legislation specify that certain matters be published in the Commonwealth Government Gazette. For example, the Migration Act 1958 requires that notices be published in the Commonwealth Government Gazette when the annual caps are announced for the various classes of visas.

 

Select free online resources

 

Select print resource

  • Glass, A. & Goddard, J. Australian Immigration Law Including PAMs and MSIs. Sydney: Butterworths, 2004- (publishes Migration Act 1958, Migration Regulations 1994, Migration Agent Regulations 1998, and Australian Citizenship Act).

 

For more information on locating Australian legislation, consult Nicholas Pengelley’s Update to Researching Australian Law. In addition, Can Print Communications publishes copies of some Australian legislation.

 

I.5 Case Law  

 

Administrative Decisions

 

Migration Review Tribunal

The Migration Review Tribunal (MRT) is an administrative body established by Migration Act 1958 that reviews a variety of visa-related decisions made by DIMA. It replaced the Immigration Review Tribunal. When reviewing a case, the MRT normally conducts a “merits review”--meaning that it re-considers the facts and evidence of the case. In addition, the MRT will conduct a hearing if it cannot find for the applicant based on the papers. These hearings are generally non-adversarial. For more information about the MRT, see its Interpreter Handbook which, according to its forward, “was developed to set out clearly the Tribunal’s requirements and to address the concerns of interpreting agencies and individual interpreters in relation to the specialised nature of the Tribunal’s work.”

 

Refugee Review Tribunal  

The Refugee Review Tribunal (RRT) is a government body established by the Migration Act 1958 that reviews DIMA decisions involving protection visas. (Protection visas are reserved for persons to whom Australia owes protection obligations under the United Nations Convention Relating to the Status of Refugees and United Nations Protocol Relating to the Status of Refugees.) Also, similar to the MRT, the RRT will conduct a hearing if the RRT cannot find for the applicant based on the papers. These hearings too are generally non-adversarial. For more information on legal issues relating to refugee status that come before the RRT, see the RRT’s Guide to Refugee Law in Australia.

           

Administrative Appeals Tribunal   

The Administrative Appeals Tribunal (AAT) is an administrative body that reviews a variety of decisions made by Australian agencies. The Migration Act 1958 authorizes the AAT to review certain DIMA decisions, such as a decision to deny or cancel a visa on character grounds, certain decisions involving criminal deportations and so on. The AAT also conducts “merits reviews,” like the MRT and RRT. AAT hearings are in general more formal than hearings at MRT and RRT.  

 

Minister for Immigration and Multicultural Affairs Decisions

The Migration Act 1958 authorizes the Minister to replace a decision of the MRT, RRT, or AAT with one more favorable to the applicant if the Minister thinks it is in the public interest to do so. A Migration Series Instruction gives some insight into when this discretion may be exercised.

 

The Commonwealth Ombudsman

The Commonwealth Ombudsman responds to complaints of unfair treatment against the Australian Government, including DIMA. The Ombudsman does not have the authority to overturn DIMA decisions but it can recommend DIMA change its decisions and practices. Generally, the Ombudsman will review cases only after other avenues of review have been exhausted.

 

The Human Rights and Equal Opportunity Commission

The Human Rights and Equal Opportunity Commission administers complaints of discrimination under these laws: Racial Discrimination Act 1975, Sex Discrimination Act 1984, Disability Discrimination Act 1992, and Age Discrimination Act 2004. In addition, the Human Rights and Equal Opportunity Commission investigates allegations of human rights violations under the Human Rights and Equal Opportunity Commission Act 1986. The Human Rights and Equal Opportunity Commission cannot overturn DIMA decisions but it can recommend that DIMA change its decisions and practices.

 

Select free online resources

 

Select print resources

  • Administrative Appeals Tribunal. Administrative Law Decisions. Sydney: Butterworths, 1976- (publishes AAT decisions).
  • Glass, A. & Goddard, J. Australian Immigration Law Including PAMs and MSIs. Sydney: Butterworths, 2004- (publishes select tribunal decisions).

 

Judicial Decisions

Some MRT, RRT, and ATT decisions may be reviewed by a Federal Magistrates Court, Federal Court, and/or the High Court. Often, this review is limited, focusing on the original tribunal’s authority to render the decision. Federal Court, High Court, and other courts may also have original jurisdiction to decide certain cases.

 

                  Select free online resources

 

Select print resource

  • Australian Law Reports. Chatwood: Butterworths, 1973- (publishes decisions of High Court and select decisions of the Federal Court).

 

For more information on locating Australian case law, consult Nicholas Pengelley’s Update to Researching Australian Law.

 

I.6 Secondary Sources

 

Loose-leafs, Treatises & Monographs

 

Burns, J. & Sudrishti, R. Immigration Kit. Sydney: Federation Press, 2005.*

  • Provides straight-forward and practical explanation of Australian immigration law.

 

Crock, M. Immigration and Refugee Law in Australia. Leichardt: Federation Press, 1998.

  • According to its preface, this book “highlights the main areas, themes and trends” in Australian immigration law and aims “to provide the reader … with a sense of how the laws and policies work and interrelate.”

 

Dauvergne, C. Humanitarianism, Identity, and Nation: Migration Laws of Australia and Canada. Vancover: UBC Press, 2005.

  • According to its introduction, “this book develops a framework for understanding the relationships between migration law and national identity.” Also includes extensive bibliography on Canadian and Australian immigration law.

 

Glass, A. & Goddard, J. Australian Immigration Law Including PAMs and MSIs. Sydney: Butterworths, 2004-.*

  • Offers thorough commentary on immigration law. It also compiles primary legal materials, including the Migration Act 1958, Migration Regulations 1994, Ministerial Directions, PAM, MSIs, and select tribunal decisions. Available as multi-volume loose-leaf service or as a subscription database.

 

Vrachnas, J. et al. Migration and Refugee Law: Principles and Practice in Australia. Cambridge: Cambridge University Press, 2005.*

  • Offers concise overview and analysis of Australian immigration law. Focuses on refugee issues.

 

Periodicals & Current Awareness Services

 

Immigration News. Parramatta: Immigration Advice and Rights Center, 1986-.

  • Offers stories on news in Australian immigration law. The articles are largely written for immigration practitioners.

 

Immigration Review. LexisNexis Australia, 2002-.

  • Features “legislative updates, ...recent case law and articles.”[1]

 

Migration Action. Collingwood: Ecumenical Migration Centre, 1974-.

·       Concerns Australian “refugee, immigration and multicultural issues.”[2]

 

Legal Encyclopedias with Chapters on Immigration Law

 

Cronin, K. and Prince, D. “Citizenship and Migration,” in Halsbury’s Laws of Australia. Sydney: Butterworths, 1991-.

 

I.7 Fee-Based Databases Focusing on Immigration

 

Informit

Informit offers a database, Multicultural Australia and Immigration Studies, which indexes and abstracts “published and unpublished material on all aspects of Australian immigration and multicultural issues from 1988 onwards.”[3]

 

LEGENDcom

LEGENDcom, a database offered on the DIMA Web-site, provides access to the Migration Act 1958, Migration Regulations 1994, PAM, MSIs, and more. 

 

LexisNexis Australia

LexisNexis Australia offers online access to two print publications, Australian Immigration Law Including PAMs and MSIs and Immigration Review.

 

I.8 Organizations

 

Migration Institute of Australia

The Migration Institute of Australia is a professional organization for migration agents. Since 1998, the Migration Institute of Australia has acted as Australia’s Migration Agents Registration Authority (see below).

 

Migration Agents Registration Authority 

The Migration Agents Registration Authority (MARA) regulates the migration agents industry. The Migration Act 1958 spells out MARA’s powers and responsibilities. The MARA is responsible for, among other things, maintaining a registry of agents, administering the registration of agents, investigating allegations against agents and lawyers relating to the provision of immigration advice, and disciplining agents who are found to have violated certain rules.

The MARA Web-site includes, among other things:

 

Immigration Advice Rights Centre

Immigration Advice Rights Centre is a non-profit organization that provides immigration advice to low-income individuals. It is also involved in education on migration issues. The Immigration Advice Rights Centre Web-site offers information sheets on numerous topics in migration.

 

Austcare

Austcare is an organization situated in Australia that assists refugees by, among other things, helping in the distribution of food, providing information on agricultural techniques, and working to prevent violence.

 

Refugee Council of Australia

Refugee Council of Australia is a non-profit organization that advocates for various refugee communities in Australia and advises and provides support to refugees.

 

I.9 Refugees and Asylum Seekers

 

The United Nations Convention Relating to the Status of Refugees (Convention) and the United Nations Protocol Relating to the Status of Refugee (Protocol) are often referred to as the “principal international instruments that provide protection to persons fleeing persecution.”[4] Australia acceded to the Convention on January 22, 1954, and acceded to the Protocol on December 13, 1973. The Migration Act 1958 spells out the “process or manner” in which Australia implements its obligations under the Convention and Protocol.[5]

 

Select free online resources

 

In addition, several of the print resources referenced in the Secondary Sources portion of this guide discuss Australia refugee law and procedures. For more information on international refugee law resources, see Elisa Mason’s Guide to International Refugee Law Resources on the Web.

 

I.10 Research Guides

 

The following research guides concern Australian immigration law:

 

 

 

 

II. Canadian Immigration Law

 

II.1 Government Bodies

 

Citizenship and Immigration Canada

Citizenship and Immigration Canada (CIC) is the primary Canadian agency responsible for administering Canadian immigration laws. In this capacity, CIC issues visas, makes certain eligibility determinations on refugee claims, runs programs designed to help new immigrants, and so on.

                  The CIC Web-site offers, among other things:

 

Canada Board Services Agency

The Canada Board Services Agency is responsible for protecting Canada’s borders. Among other things, the Canada Board Services Agency plays a role in enforcing Canadian immigration laws by screening immigrants and refugees and investigating possible breaches of the Canadian immigration law.

 

Immigration and Refugee Board of Canada and Tribunal Administratif du Québec

The Immigration and Refugee Board of Canada renders decisions in a variety of immigration matters, including deciding refugee claims made in Canada, hearing appeals of certain CIC decisions, and conducting admissibility hearings. The Tribunal Administratif du Québec, among other things, conducts hearings involving immigration matters in Québec. To learn more about these bodies, consult the portion of this guide concerning Canadian immigration case law.

 

II.2 Government Publications

 

The following are some of the publications issued by the government bodies discussed in the previous section:

 

Citizenship and Immigration Manuals

Citizenship and Immigration Manuals, also called Policy and Program Manuals, provide guidance for CIC employees. The titles of the manuals issued as of November 2006 are Citizenship Policy, Enforcement, Temporary Foreign Workers Guidelines, Information Sharing, Inland Processing, Reference, Overseas Processing, and Protected Persons.

 

Operational Bulletins

CIC also occasionally issues Operational Bulletins for “one-time-only instructions or to provide urgent instructions to staff for a brief period while the relevant program and policy chapters are being updated.”[6]

 

                  Select free online resources

 

Select CD-Rom resource

  • CIC. Citizenship and Immigration Manuals. Ottawa: Canadian Government Publications, 2006-.

 

II.3 Constitutional Provisions

 

The Constitution Act, 1867 in § 95 confers concurrent powers in immigration matters to both the Federal and Provincial governments. Specifically, the Constitution says that each Province may make laws relating to immigration into the Province and that the Parliament may make laws relating to immigration into “all or any of the Provinces.”  In addition, the Constitution specifies that law of a Province “shall have effect in and for the province as long and as far only as it is not repugnant to any Act of the Parliament of Canada.”

 

                  Select free online resources

 

II.4 Legislation, Regulations & Federal-Provincial/Territorial Agreements

 

Immigration and Refugee Protection Act

The Immigration and Refugee Protection Act (IRPA) sets out principles of Canadian immigration and refugee law. The IRPA replaces the Immigration Act of 1978 and makes several notable changes to Canadian immigration law, such as modifying the IRB’s jurisdiction and setting stiffer penalties for breaking certain provisions of the immigration laws.

 

Immigration and Refugee Protection Regulations

The Immigration and Refugee Protection Regulations (IRPR), issued pursuant to the IRPA, provide details on that law. For example, the IRPR specify how long a permanent resident card is valid for and what must be done to appeal a removal order.

 

Citizenship Act

The Citizenship Act sets out the law of Canadian citizenship. Specifically, the Citizenship Act establishes the requirements that must be met to qualify for Canadian citizenship, the situations where Canadian citizenship can be lost, the procedures that CIS must follow when processing citizenship applications, and so on.

 

Federal-Provincial/Territorial Agreements

The IRPA authorizes the Minister for Citizenship and Immigration to enter into agreements with Provinces and Territories concerning immigration. The Government of Canada has signed agreements concerning immigration matters with Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Ontario, Prince Edward Island, Québec, Saskatchewan and Yukon. One of these agreements, the Canada-Québec Accord, Relating to Immigration and Temporary Admission of Aliens, is the most comprehensive and gives Québec broad autonomy over the selection of immigrants to Québec and integration services for new immigrants. Some of the other immigration agreements between Canada and the Provinces and Territories are Provincial Nominee agreements. These agreements, among other things, permit the Province or Territory to nominate particular immigrants for permanent residence status to fulfill the Province’s or Territory’s specific labor needs.

 

Select free online resources

·       CanLII Web-site (Citizenship Act)

·       CanLII Web-site (IRPA)

·       CanLII Web-site (IRPR)

·       CIC Web-site (Federal-Provincial/Territorial Agreements)

·       Department of Justice Web-site (Citizenship Act)

·       Department of Justice Web-site (IRPA)

·       Department of Justice Web-site (IRPR)

 

Select print resources

·       Annotated Immigration and Refugee Protection Act of Canada. Toronto: Carswell, 2003-.

·       Immigration and Refugee Protection Act and Regulations: English/French consolidation. Toronto: Carswell, 2002-.

·       Gaudet, L. Immigration Consultant’s Handbook, 2006. Toronto: Carswell, 2005 (publishes IRPA and IRPR).

·       Waldman, L. Canadian Immigration & Refugee Law Practice. Markham: LexisNexis Butterworths, 2004- (publishes IRPA, IRPR, and Citizenship Act).

·       Waldman, L. Immigration Law and Practice. Markham: LexisNexis Canada, 2005- (publishes IRPA, IRPR, and Citizenship Act).

 

For more information on finding Canadian legislation, see Ted Tjaden’s Researching Canadian Law.

 

II.5 Case Law

 

Administrative Decisions

 

Immigration and Refugee Board of Canada

Immigration and Refugee Board of Canada (IRB), the largest administration tribunal in Canada, is responsible for making certain decisions relating to immigration and refugee matters. The IRB currently consists of the three divisions: Immigration Division, Refugee Protection Division, and the Immigration Appeal Division. The Immigration Division conducts certain admissibility hearings and detention reviews. The Refugee Protection Division decides refugee claims brought by persons in Canada after the CIC officer makes a preliminary determination whether the claim is eligible to be heard by IRB. And the Immigration Appeals Division conducts appeals on immigration matters, including appeals of rejected sponsorship applications, appeals of certain removal orders, and appeals of certain decisions relating to residency obligations. Each Division has rules that govern its operations (together, Divisional Rules).

 

Tribunal Administratif du Québec

The Tribunal Administratif du Québec (TAQ) conducts proceedings concerning decisions made by the Quebec government. The Social Affairs Division of the TAQ hears cases involving a number of social issues, including immigration.

 

Select free online resources

 

Select CD-Rom and print resources

  • Décisions du Tribunal Administratif du Québec. Montréal: Société Québécoise d’information Juridique, 1998- (publishes summaries and full text of select TAQ decisions).
  • Msadek, L. et al. (eds.). Canada Immigration Digest. Markham: LexisNexis Canada, 2006 (CD-Rom) (publishes case summaries only).
  • Waldman, L. Immigration Law and Practice. Markham: LexisNexis Canada, 2005- (publishes Divisional Rules).

 

Judicial Decisions

 

The IRPA discusses judicial review of certain immigration matters. It says, among other things, that judicial review by the Federal Court must start with an application for leave to the Court, which can only be made if other appeal rights under the IRPA have been exhausted. Some sample cases involving immigration heard by the Federal Court include cases involving appeals of CIC refusal to refer refugee claim to the IRB, appeals of certain removal orders, appeals of RPD’s rejection of claims to refugee status, and so on.

                 

Select free online resource

 

Select print resources

  • Rotenberg, C. & Bellissimo, M. (eds.). Immigration Law Reporter. Toronto: Carswell, 1985- (publishes select Federal immigration decisions).
  • Zambelli, P. Annotated Refugee Convention: Fifty Years of North American Jurisprudence. Toronto: Carswell, 2004 (offers summaries of Federal cases involving refugee issues).[7]

 

II.6 Secondary Sources

 

Loose-leafs, Treatises & Monographs

 

Annotated Immigration and Refugee Protection Act of Canada. Toronto: Carswell, 2003-.

  • Publishes, among other things, the IRPA and related editorial notes and key cases, IRPR, and Divisional Rules.

 

Bart, J. & Fragomen, A. Canada/U.S. Relocation Manual: Immigration, Customs, Employment and Taxation. Scarborough: Carswell, 1998-.

  • Covers law involving temporary and permanent immigration to Canada. Also discusses select customs, tax, and employment issues related to relocation to Canada.

 

Dauvergne, C. Humanitarianism, Identity, and Nation: Migration Laws of Australia and Canada. Vancover: UBC Press, 2005.

  • According to its introduction, “this book develops a framework for understanding the relationships between migration law and national identity.” Also includes extensive bibliography on Canadian and Australian immigration law.

 

Galloway, D. Immigration Law. Concord: Irwin Law, 1997.*

  • Explains Canadian immigration law in plain-English. Accessible to the layperson yet still helpful for a practitioner. Pre-dates the passing of IPRA.

 

Rotenberg, C. & Bellissimo, M. (eds.). Immigration Law Reporter. Toronto: Carswell, 1985-.

  • Features articles geared to practitioners on immigration topics. Provides full text of select immigration decisions of IRB and courts.

 

Waldman, L. Canadian Immigration & Refugee Law Practice. Markham: LexisNexis Butterworths, 2004-.

·       Offers IRPA and relevant commentary and case summaries. Also offers the text of IRPR, Divisional rules and more. Written for the practitioner or a reader with general knowledge of the law.

 

Waldman, L. Immigration Law and Practice. Markham: LexisNexis Canada, 2005-.

·       Offers compressive and well-organized explanation of Canadian immigration law.

 

Weinreb, A. & Galati, R. Criminal Lawyer’s Guide to Immigration and Citizenship Law. Aurora: Canada Law Book, 1996.

  • According to the publisher’s Web-site this book explains, among other things, “how charges and convictions affect … immigration and citizenship status.”[8]  Pre-dates passing of IRPA.

 

Periodicals & Current Awareness Services

 

Canada’s Immigration and Citizenship Bulletin. Aurora: Canada Law Book, 1989-.

  • Covers current immigration issues facing practitioners.

 

ImmQuest. Toronto: Carswell, 2005-.

·       Reports on notable cases, industry news, and other developments in the immigration law area.

 

Legal Encyclopedias with Chapters on Immigration Law

 

Wong, P. et al. “Immigration and Refugees” in Canadian Encyclopedic Digest (Ontario) (3rd ed). Toronto: Carswell, 1973-.

 

Wong, P. et al. “Immigration and Refugees” in Canadian Encyclopedic Digest (Western) (3rd ed). Calgary: Carswell, 1978-.

 

Publications on Immigration by Parliamentary Research Branch, Library of Parliament

 

Dolin, B. & Young, M. Canada’s Immigration Program. Ottawa: Parliamentary Research Branch, Library of Parliament, 2004 (revised).

 

Dolin, B. & Young, M. Canada’s Refugee Protection System. Ottawa: Parliamentary Research Branch, Library of Parliament, 2002 (revised).

 

Kuruvila, E. Bill C-14: An Act to Amend the Citizenship Act (Adoption). Ottawa: Parliamentary Research Branch, Library of Parliament, 2006.

 

Young, M. Immigration: The Canada-Quebec Accord. Ottawa: Parliamentary Research Branch, Library of Parliament, 2004 (revised).

 

Young, M. Immigration: Constitutional Issues. Ottawa: Parliamentary Research Branch, Library of Parliament, 1992 (revised).

 

II.7 Fee-Based Databases Focusing on Immigration

 

Quicklaw

Quick law currently offers databases on Canadian immigration law. For example, there are databases of Federal immigration case law, Quebec court cases involving immigration, select IRB decisions, TAQ decisions involving immigration and articles on immigration law, and policy from periodicals.

 

Westlaw

Westlaw offers databases on Canadian immigration law. Westlaw has databases of Federal immigration case law and materials from the Immigration Law Reporter (includes case law and articles involving immigration).

 

II.8 Organizations

 

Canadian Society of Immigration Consultants

Canadian Society of Immigration Consultants is an independent body that regulates immigration consultants. In this capacity, the Canadian Society of Immigration Consultants investigates allegations of breaches of the Rules of Professional Conduct (which are available on its Web-site) and takes disciplinary action, when warranted. It also oversees immigration consultants’ educational requirements.

 

Community Legal Education Ontario

Community Legal Education Ontario is a “community legal clinic…that specializes in public legal education.”[9] The Community Legal Education Ontario Web-site offers a number of publications relating to immigration, including Being Arrested and Detained for Immigration Reasons, Making a Refugee Claim, Sponsoring a Member of the Family Class, and Your Status as a Permanent Resident.

 

II.9 Refugees and Asylum Seekers

 

Canada acceded to the Convention and the Protocol on June 4, 1969. For information on the Convention and Protocol, see the Section I.9 of this guide. The IRPA is the primary means Canada uses to implement its obligations to refugees. The Library of Parliament publication Canada’s Refugee Protection System provides an overview of Canadian refugee law and practice.

 

                  Select free online resources

 

In addition, several of the print resources referenced in Secondary Sources portion of this guide discuss Canadian refugee law and procedures. For more information on international refugee law resources, see Elisa Mason’s Guide to International Refugee Law Resources on the Web.

 

II.10 Research Guides

 

The following research guides concern Canadian immigration law:

 

 

 

 

III. United States Immigration Law

 

III.1 Government Bodies

 

Department of Homeland Security, Citizenship and Immigration Services  

Citizenship and Immigration Services (CIS), a bureau in the U.S. Department of Homeland Security (DHS), administers U.S. immigration benefits. CIS is responsible for reviewing various types of immigration visa petitions, adjudicating asylum claims, processing applications for citizenship, and so on.

The CIS Web-site offers, among other things:

 

Department of Homeland Security, Customs and Border Protection and Department of Homeland Security, Immigration and Customs Enforcement

In addition to CIS, other components of DHS are involved in administering U.S. immigration laws, including Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE). CBP is responsible for protecting the borders and has a role in reviewing some visa applicants’ information and documentation. ICE performs immigration-related investigations and enforcement.

 

Department of State

The U.S. Department of State (DOS) is the primary U.S. agency responsible for foreign affairs. In this capacity, the DOS has numerous functions, including processing visas and U.S. passports.

                  The DOS Web-site offers, among other things:

 

Department of Labor, Employment and Training Administration

The U.S. Department of Labor (DOL)’s primary role in the administration of U.S. immigration law is to review labor certification applications. For many types of employment-based immigration, U.S. employers must request that the DOL approve a labor certification request. This process is designed to assure that a U.S. employer’s hiring of a foreign worker for a particular position will not adversely affect other U.S. workers.

                  The DOL Web-site offers, among other things:

 

Department of Justice, Executive Office for Immigration Review

The Executive Office for Immigration Review  (EOIR), an office in the U.S. Department of Justice, adjudicates many types of immigration cases. The EOIR consists of three offices that issue administrative decisions involving immigration: Immigration Courts, the Board of Immigration Appeals, and the Office of Chief Administrative Hearing Officer. For more information on the EOIR, consult the portion of this research guide concerning U.S. immigration case law.

 

III.2 Government Publications

 

The following are some of the publications issued by the government bodies discussed in the previous section:

 

CIS Interpretations and CIS Immigration Policy and Procedural Memoranda

CIS Interpretations are documents that “supplement and clarify the provisions of the statute [INA] and regulations.”[10] CIS also makes public some of the Policy and Procedural Memoranda it issues to employees on how to handle various immigration issues. 

 

Adjudicators Field Manual

According to its introduction, the Adjudicators Field Manual is a “comprehensive ‘how to’ manual detailing policies and procedures” for CIS employees making various decisions regarding immigration.

 

Foreign Affairs Manual

The Foreign Affairs Manual (FAM) is a multi-volume text that details the DOS’s policies and structure and provides instruction for DOS employees. Volume 9 of the FAM contains material relating to visas.

 

Visa Bulletin

The DOS’s Visa Bulletin reports on the availability of “immigrant numbers” during the month that the bulletin is published. This information can provide insight into whether visas of a particular category are available.

 

                  Select free online resources

 

            Select print resources

  • Gallagher, A. Immigration Law Service, 2d. Eagan: Thomson/West, 2004-. (publishes FAM and Agency documents, including select CIS Policy and Procedural Memoranda).
  • Gordon, C., Mailman, S., & Yale-Loehr, S. Immigration Law and Procedure: Practice and Strategy. New York: LexisNexis Matthew Bender, 1966- (publishes FAM).

 

III.3 Constitutional Provisions

 

The U.S. Constitution does not include a specific provision concerning immigration. The Supreme Court has generally held that Congress has wide authority to legislate on immigration. This authority is based on numerous grounds, including the Constitutional provision authorizing Congress to legislate on naturalization, Congress’s foreign relations and international commerce authority, and the Federal government’s inherent power as a sovereign to control its borders.[11]

 

III.4 Legislation, Regulations & Documents in the Federal Register

 

Immigration and Nationality Act

The Immigration and Nationality Act, as amended (INA) is the primary statute governing U.S. immigration law. The INA is codified in Title 8 of the U.S. Code, Aliens and Nationality. In addition to Title 8, some other titles of the U.S. Code contain provisions relating to immigration, including Title 20, Employee Benefits, Title 22, Foreign Relations, and Title 29, Labor.[12]

 

Legislation amending INA

Several public laws have amended the INA since it was first passed in 1952. These laws include the Immigration Reform Control Act of 1986, Immigration Act of 1990, and Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

 

Immigration Regulations

Title 8, Aliens and Nationality, of the Code of Federal Regulations (CFR) is the main source for immigration regulations. However, several other titles of the CFR, including Title 22, Foreign Relations, and Title 20, Employee Benefits, also contain provisions relating to immigration.[13]

 

Immigration-related Documents in Federal Register

The Federal Register publishes various government documents and notices issued by Federal agencies. Documents relating to immigration that can be found in the Federal Register include proposed and final immigration regulations, notices of new immigration regulations, and the unified agenda of Federal agencies responsible for administering immigration law.

 

            Select free online resources

 

Select print resources

  • Bender’s Immigration and Nationality Act Pamphlet. New York: Matthew Bender, 1987- (publishes INA and updates the text as Congress makes changes to the Act).
  • Bender’s Immigration Regulations Service. New York: Matthew Bender, 1989- (publishes select immigration regulations and incorporates changes on a frequent basis).
  • Gallagher, A. Immigration Law Service, 2d. Eagan: Thomson/West, 2004- (publishes INA, Title 8 of U.S. Code Annotated, and select immigration regulations).
  • Gordon, C., Mailman, S., & Yale-Loehr, S. Immigration Law and Procedure: Practice and Strategy. New York: Matthew Bender, 1966- (publishes various legislation amending the INA and select documents from the Federal Register that relate to immigration).

 

For more information on locating U.S. legislation, see Gretchen Feltes’s A Guide to the U.S. Federal Legal System Web-based Public Accessible Sources.

 

III.5 Case Law

 

Administrative Decisions

 

Immigration Courts

Immigration Courts, part of the EOIR, adjudicate mostly removal cases. In removal proceedings, Immigration Judges decide whether a foreign national must be removed from the United States. The Immigration Judge Benchbook, a manual written for Immigration Judges, covers many of the issues that arise in cases heard in immigration courts.

 

Board of Immigration Appeals

The Board of Immigration Appeals (BIA), part of the EOIR, conducts appeals in certain immigration matters, including appeals from certain immigration court decisions and appeals from some types of decisions made by DHS District Directors. There are three types of BIA decisions: precedent decisions, indexed decisions, and unpublished decisions. Precedent decisions are those that the BIA selects as having a binding effect on DHS employees and immigration courts. Indexed decisions are those that the BIA identifies as having “value as a general guide to particular areas of law or fact patterns.”[14] Unpublished decisions are generally considered routine. The BIA Practice Manual provides extensive information about the BIA’s operation.

 

Administrative Appeals Office

The Administrative Appeals Office (AAO), part of the CIS, hears primarily appeals from decisions made by DHS officers on various types of immigration petitions and applications. CIS publishes a select number of decisions, called “adopted decisions.” CIS employees are required to follow the “interpretation and reasoning of these decisions.”[15]

 

Office of the Chief Administrative Hearing Officer

The Office of the Chief Administrative Hearing Officer (OCAHO), part of the EOIR, hears cases involving certain complaints of unfair immigration-related employment practices and document fraud.

 

Board of Alien Labor Certification Appeals

Board of Alien Labor Certification Appeals (BALCA), part of the DOL, hears appeals in cases where the DOL has denied a labor certification application. The BALCA Judges’ Benchbook (also called the BALCA Deskbook) provides an overview of labor certification law and offers numerous case citations to back -up its explanations of various points of law.

 

                  Select free online resources

 

Select print resources

  • Bender’s Immigration Case Reporter. New York: Matthew Bender, 1985- (publishes decisions of immigration courts, BIA, AAO, OCAHO, and BALCA).
  • BIA. Administrative Decisions Under Immigration and Nationality Laws, Washington, D.C.: GPO, 1943- (publishes precedent decisions of BIA).
  • OCAHO. Administrative Decisions Under Employer Sanctions, Unfair Immigration-related Employment Practices, and Civil Penalty Document Fraud Laws. Washington, D.C.: GPO, 1997- (publishes OCAHO decisions).
  • Gallagher, A. Immigration Law Service, 2d. Eagan: Thomson/West, 2004-(publishes BALCA Deskbook).
  • Gordon, C., Mailman, S., & Yale-Loehr, S. Immigration Law and Procedure: Practice and Strategy. New York: Matthew Bender, 1966- (publishes BALCA Deskbook).

 

Judicial Decisions

Certain immigration decisions and matters, such as certain removal orders, are subject to judicial review.[16] Moreover, most judicial cases involving immigration are decided in Federal courts.[17]

 

Select print resources

  • Bender’s Immigration Case Reporter. New York: Matthew Bender, 1985- (publishes select Federal decisions concerning immigration).
  • Martin, D. Asylum Law Sourcebook: Master Index and Case Abstracts for U.S. Court Decisions. Eagan: Thomson/West, 2005- (summarizes Federal cases relating to refugees).
  • Zambelli, P. Annotated Refugee Convention: Fifty Years of North American Jurisprudence. Toronto: Carswell, 2004 (offers summaries of primarily Federal cases relating to refugee issues).[18]

 

Select free online resources

 

For more formation on locating U.S. case law in general, see Gretchen Feltes’s A Guide to the U.S. Federal Legal System Web-based Public Accessible Sources.

 

III.6 Secondary Sources

 

Loose-leafs, Treatises & Monographs

 

Fragomen, A. & Bell, S. Immigration Legislation Handbook. Eagan: Thomson/West, 2005.

  • Reports on new legislation affecting immigration and citizenship law. This is one of several Fragomen and Bell handbooks. Others include Immigration Procedures Handbook, H-1B Handbook, and Labor Certification Handbook.

 

Gallagher, A. Immigration Law Service, 2d. Eagan: Thomson/West, 2004-.*

  • Explains U.S. immigration law in a clear manner. Offers many appendices.

         

Germain, Regina. A Practical Guide to U.S. Asylum Law and Procedure. Washington, D.C.: American Immigration Lawyers Association, 2003.

  • Provides thorough explanation and commentary on U.S. asylum law. Offers numerous practitioner-oriented appendices including sample forms, model letters, and checklists.

 

Gordon, C., Mailman, S., & Yale-Loehr, S. Immigration Law and Procedure: Practice and Strategy. New York: Matthew Bender, 1966-.*

  • Explains and analyzes U.S. immigration law and policy. It is useful for both novices and seasoned immigration lawyers. Appendixes include INA, FAM, BALCA Judges’ Deskbook, and select documents relating to immigration from the Federal Register.

 

Immigration and Nationality Law Handbook. Washington, D.C.: American Immigration Lawyers Association, 1986-.

  • Publishes articles on specialized topics in immigration law.

 

Kurzban, I. Kurzban’s Immigration Law Sourcebook. Washington, D.C.: American Immigration Lawyers Foundation, 1990-.

  • Provides concise explanation of immigration law. Includes explanatory text and ample case citations.

 

Weissbrodt, D. Immigration Law and Procedure in a Nutshell. St. Paul: Thomson/West, 2005.

  • Summarizes key aspects of immigration law.

 

Periodicals & Current Awareness Services

 

Bender’s Immigration Bulletin. New York: Matthew Bender, 1985-.

  • Reports immigration law news. Summarizes Federal and administrative immigration cases, reports on changes in policy and procedure of Federal agencies responsible for administering immigration laws, and so on.

 

Georgetown Immigration Law Journal, Washington, D.C.: Georgetown University Law Center, 1985-.

  • Publishes scholarly articles on immigration law of the U.S. and other countries.

 

Immigration and Nationality Law Review. Buffalo: William S. Hein & Co., Inc., 1977-.  

  • Publishes scholarly articles on immigration law of the U.S. and other countries.

 

Immigration Briefings. St. Paul: Thomson/West, 1988-.

  • Reports on and analyzes one immigration issue in-depth per monthly issue.

 

Interpreter Releases. Eagan: Thomson/West, 1935-.

  • Covers immigration law news including changes in Federal Agency policies and practices, important cases, and legislative developments, such as proposed immigration legislation.

 

Legal Encyclopedias with Chapters on Immigration Law

 

Dietz, L. et al. “Aliens and Citizens” in American Jurisprudence 2d. Rochester: Thomson/West, 1962-.

 

Ytreberg, D. “Aliens” in Corpus Juris Secundum. St. Paul: Thomson/West, 1936-.

 

III.7 Fee-Based Databases Focusing on Immigration

 

Westlaw and Lexis both offer extensive resources on U.S. immigration law. For example, both have databases of immigration case law, titles of U.S. Code relating to immigration, immigration regulations, immigration administrative decisions (AAO, BIA, OCAHO, and BALCA decisions) and articles from periodicals concerning immigration. See Westlaw and Lexis to learn more about the materials they offer.

 

III.8 Organizations

 

American Immigration Lawyers Association

The American Immigration Lawyers Association is a professional organization for immigration lawyers. It offers members materials and educational resources designed to assist their practices. The Association Web-site offers legislative materials concerning immigration. The Web-site posts the text of proposed immigration legislation, enacted immigration legislation, congressional statements and testimony relating to immigration, and so on.

 

American Immigration Law Foundation

The American Immigration Law Foundation is an advocacy organization for immigration. Its mission is to “increase[e] public understanding of immigration law and policy and the value of immigration to American society, and to advance[e] fundamental fairness and due process under the law for immigrants.”[19] The Foundation Web-site offers resources on current topics in immigration and materials for teachers wanting to incorporate immigration topics into their curriculum.

 

National Immigration Law Center

The National Immigration Law Center is an organization whose mission is to promote the “rights and opportunities” of low income immigrants. [20] In reaching this goal, the Center focuses on the areas of immigration, employment, and public benefits.  The Center Web-site offers various materials on immigration including a free electronic newsletter and news on notable immigration litigation. 

 

United States Committee for Refugees

The United States Committee for Refugees is a nonprofit organization dedicated to defending the rights of and serving the needs of refugees. The United States Committee for Refugees Web-site offers numerous publications including Refugee Reports (newsletter) and the World Refugee Survey (an annual publication containing country reports).

 

III.9 Refugees and Asylum Seekers

 

On November 1, 1968, the United States acceded to the Protocol. For information on the Protocol, see the Section I.9 of this guide. Currently, the INA is the primary source of U.S. asylum and refugee law.[21]

 

                  Select free online resources

 

III.10 Research Guides

 

The following research guides concern U.S. immigration law:

 

 

Note About Research Guide

 

Inclusion of a link to a Web-site on this research guide should not be interpreted as an endorsement of the accuracy or currency of the material on the Web-site. Moreover, no information on this research guide should be interpreted as legal advice.



[1]                 LexisNexis Australia Web-site at www.lexisnexis.com.au/aus/products/catalog/current_htm/IR.asp?productid=IR&jurisdiction=0&category=6&medium=0&author=&title=&overview=

[2]                 Brotherhood of St. Laurence Web-site at www.bsl.org.au/main.asp?PageId=567&iMenuPageId=567 (last visited on Nov. 7, 2006).

[3]                 Informit Web-site at www.informit.com.au/browse.asp?itemID=MAIS&ContainerID=info_product_indexes_bytitles (last visited on Nov. 7, 2006).

[4]                 German, Regina. AILA’s Asylum Primer. Washington, D.C.: American Immigration Lawyers Association, 2003, p. 1. Elisa Mason in her Guide to International Refugee Law Resources on the Web also identifies the Convention and Protocol as the “[t]wo principal conventions [that] govern international refugee matters.”

[5]                 Vrachnas, J. et al. Migration and Refugee Law: Principles and Practice in Australia. Cambridge: Cambridge University Press, 2005, p. 178.

[6]                 Citizenship and Immigration Canada Web-site at www.cic.gc.ca/manuals-guides/english/bulletins/index.html (last visited on Nov. 10, 2006).

[7]                 This text is continued by Zambelli, P. Annotated Refugee Convention 2005. Toronto: Carswell, 2006.

[8]                Canada Law Book Company Web-site at www.canadalawbook.ca/catalogue.cfm?DSP=Detail&ProductID=93&CategoryID=28 (last visited on Nov. 8, 2006).

[9]                 Community Legal Education Web-site at www.cleo.on.ca/english/index.htm (last visited on Nov. 8, 2006).

[11]               Gallagher, A. Immigration Law Service, 2d. Eagan: Thomson/West, 2004-, §1.247.

[12]               Zell, A. & Bernstein, Finding Immigration Law.

[13]               Id.

[14]               EOIR Web-site at www.usdoj.gov/eoir/vll/intdec/lib_indecitnet.html (last visited on Nov. 7, 2006).

[16]          For more information on judicial review, see Kurzban, I. Kurzban’s Immigration Law Sourcebook. Washington, D.C.: American Immigration Lawyers Foundation, 2006, Chapter 10, “Federal Judicial Review” or Gallagher, A. Immigration Law Service, 2d. Eagan: Thomson/West, 2004-, Chapter 22, “Judicial Review.”

[17]               See, supra note 12.

[18]               This text is continued by Zambelli, P. Annotated Refugee Convention 2005. Toronto: Carswell, 2006.

[19]               American Immigration Law Foundation Web-site at www.ailf.org/main_about.asp (last visited on Nov. 9, 2006).

[20]               National Immigration Law Center Web-site at www.nilc.org/ (last visited on Nov. 10, 2006).

[21]               Anker, D. Law of Asylum in the United States. Boston: Refugee Law Center, 1999, p. 7; Gallagher, A. Immigration Law Service, 2d. Eagan: Thomson/West, 2004-, §10.4. See either of these sources for a history of the development of U.S. asylum law or see Gordon, C., Mailman, S., & Yale-Loehr, S. Immigration Law and Procedure: Practice and Strategy. New York: Matthew Bender, 1966-, §10.09.