ABSTRACT
This Research Paper delves into the Immigration and Deportation Laws of India as well as United States of America. It does a comparative Analysis of Immigration and Deportation Laws prevalent in both the countries. It delves into deeper understanding of the necessity and history of those laws. It mainly focuses how the immigration laws developed, evolved & amended in 20th Century.
KEYWORDS
Immigration & Deportation Laws, History, 20th Century.
INTRODUCTION
Immigration & Deportation are key aspects governing citizenship, deportation, refugees & asylum seekers, procedures laid down for legally entering and residing in the country, etc. Immigration has been one of the major issues in both the countries, India as well as United States of America. Immigration is one of the most pressing issues in the general elections of the both the countries. Along with that, deportation has been one of the most worrisome, controversial, complex and complicated issues in both countries India as well as United States of America. Both the countries, India as well as United States have different immigration and deportation laws based upon their geographical location, their international commitments, circumstances and the respective national policy safeguarding their national interests. People immigrate from one country to another for various reasons. Few of the reasons for immigration as well as illegal; immigration are Wars in the home country of immigrants, Political Instability, Lack of stable and strong government in their home country, Looking for better higher quality or standard of life, due to employment opportunities, better economic & financial perks, job profile, etc.
RESEARCH METHODOLOGY
For this particular research paper titled Immigration & Deportation Laws in India vis – a vis USA: A Comparative Analysis, I am going to opt for a secondary research methodology. Secondary research is a method of conducting study that makes use of data collected by someone else. In other words, secondary research is when you perform research using already collected data. Primary research refers to any form of research that you conduct on your own. Secondary research is a low-stakes method as it is frequently and easily accessible for free or at a minimal cost. Secondary research also aims to decide the cause of the problem and the consequences of it. Also conducting secondary research is less time consuming and can give you equally reliable and truthful results. In this paper, immigration and deportation laws of both the countries namely India and United States of America are substantially compared along with the challenges and issues that both these countries face.
REVIEW OF LITERATURE
In the wake of globalization, a considerable number of people began to migrate in search of social, political, and economic stability. Due to its many attractions, India, a nation with a diverse population of ethnicities and cultures, draws immigrants from all over the world. Immigration is the movement of people from one country to another with the goal of settling there permanently. Getting citizenship in the country they have relocated to and using their fundamental rights there are the largest obstacles facing immigrants.
United States Immigration Laws
During the 20th Century, Immigration began to steadily increase in the early 1900s, and by 1910, there were over 13 million immigrants residing in the United States. Therefore, Congress enacted more stringent immigration laws in retaliation. A sizable majority even overrode President Woodrow Wilson’s veto of the Immigration Act of 1917, the most stringent immigration law to date. The rule restricted immigrants who fell into three categories: (1) over sixteen and illiterate; (2) “mentally defective” (a term that including homosexuals); and (3) from the “Asiatic barred zone,” which encompassed much of Asia and the Pacific Islands (except Japan and the Philippines). New laws like Immigration Quota Act of 1921 and Immigration Act of 1924 were enacted in United States of America. For the first time in American history, immigration was subject to numerical limits in 1921 according to the Emergency Quota Act. Based on the total number of foreign-born citizens of each nationality residing in the US at the time, quotas were set for each nation and nationality. This law effectively prohibited the immigration of groups that were underrepresented at the time, such as Jews, Italians, Greeks, Poles, and other Slavs. Though it was initially meant to be transitory, the Immigration Act of 1924 made the previous act’s quota system permanent. Quotas were imposed to protect American homogeneity; they excluded all immigration from Asia, restricted immigration from the Eastern Hemisphere, and did not apply to immigrants from the Western Hemisphere. Here, we can conclusively say that the immigration laws in USA were primarily centred around preserving and protecting the American identity.
But in post the Second World War with the passage of multiple legislations in United States on immigration like the Immigration and Nationality Act of 1952, Immigration and Nationality Act of 1965, Refugee Act of 1980, the Immigration Reform and Control Act, 1986, Immigration Act of 1990, etc amended the previous acts and now focus mainly on family reunification as a priority. In 1952 saw the adoption of the Immigration and Nationality Act (INA) . The structure of immigration legislation was thus restructured and numerous provisions were gathered by the Immigration and Nationality Act. Many of the most significant elements of immigration law are found in the INA, which has undergone numerous amendments throughout the years. The United States Code (U.S.C.) contains the Immigration and Nationality Act. All of the United States’ laws are compiled in the U.S. Code. The U.S. Code’s Title 8 addresses “Aliens and Nationality.” Existing immigration laws were gathered and codified into a single comprehensive text by the Immigration and Nationality Act of 1952. By removing the exclusion of Asian immigrants, the law removed racial restrictions from U.S. immigration legislation for the first time. However, established quota systems for different regions and nationalities were retained by the act. The law also created a system of employment-based preference for admitting immigrants who meet certain requirements, such as education, relevant skills, and economic potential. Immigration and Nationality Act of 1952 is still considered to be foundation of Title 8 of the United States Code. Further, the system of national-origin quotas was later scrapped by the Immigration and Nationality Act of 1965 and its modifications. Additionally, the law restricted immigration globally, for the first time allowing entry for people from the Western Hemisphere. Seven categories were added to the previous preference system, giving priority to applicants with specialized skills and relatives of U.S. residents. The act dramatically raised the overall immigrant population in the US, especially from Asia and Africa.
In 1980s the refugee status was defined by The Refugee Act of 1980. In order to establish a long-term framework for accepting refugees into the country and to include provisions for their resettlement, the Refugee Act of 1980 was passed. In addition, the act increased the annual cap on accepted refugees to 50,000, provided emergency protocols in the event that the annual cap is surpassed, and redefined “refugee” to conform to the UN’s definition. An increase in authorized entry into the US was further aided by immigration reform in the 1990s. The Immigration and Nationality Act of 1965 was amended and expanded by the Immigration Act of 1990, which also markedly raised the annual cap on immigration to 675,000 after two years and 700,000 during the first two years. A variety of new provisions were established by the act under the pretext of immigration reform, such as temporary protected status visas, diversity visas, and employment- and family-based visas (classified according to occupation). The act also ended the exclusion of homosexuals and eliminated the requirement that certain residents over 55 demonstrate English literacy. The Immigration Reform and Control Act of 1986 was the first piece of legislation to impose penalties on employers who knowingly hire illegal aliens. View the act’s legislative history here.
The Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act increased the number of crimes for which an immigrant could be deported. The latter also authorized the construction of fencing near San Diego, California, as well as an increase in the number of immigration officers dedicated to enforcing immigration laws. Civil penalties were imposed for attempted illegal border crossings. Since 1996, both laws have contributed to approximately 2 million individual deportations from the United States.
The 9/11 was a watershed moment in the history of the United States. The terrorist attacks on September 11, 2001 exposed several flaws in the United States’ immigration system, which influenced American attitudes toward immigration. Security and visa processing became major concerns along all of the United States’ land and sea borders.
In 2002, the Enhanced Border Security and Visa Entry Reform Act established a new data system that would be used to determine prospective immigrants’ eligibility. Portions of the act have yet to be implemented due to delays in developing the necessary biometric-based systems.
The Secure Fence Act of 2006 implemented new security measures along the United States’ land and sea borders to discourage illegal immigration. Surveillance systems, both ground-based and aerial, were deployed along all borders. The act also required the construction of 700 miles of fencing along the southern border between the United States and Mexico.
Executive actions on immigration have been especially popular in recent presidential administrations. President Barack Obama issued two executive orders to implement Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA). DACA granted individuals brought to the United States illegally by their parents a renewable two-year deferment from deportation. In addition, during his administration, President Donald Trump has issued several executive orders concerning immigration.
In order to stop more illegal immigration, the “Border Security and Immigration Enforcement Improvements” directive called for the building of a physical wall between the United States and Mexico. “Enhancing Public Safety in the Interior of the United States” penalized “sanctuary cities” and gave priority to deporting immigrants found guilty of any crime, even infractions that may seem minor. “Protecting the Nation from Foreign Terrorist Entry into the United States” suspended the entry of immigrants from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen for 90 days, the entry of refugees from Syria for an indefinite amount of time, and the entry of all refugees for 120 days.
Immigration Laws in India
Here we will highlight important business immigration issues pertaining to foreign employees looking to relocate to India, requirements that must be met for Indian firms and companies to temporarily engage foreign employees, taxation of foreign employees in India, laws against dual nationality, rules pertaining to recently implemented foreign citizenship, and the penalties that business employees may face for breaking immigration law requirements. Furthermore, we make reference to the recently defined schemes for persons of Indian origin and Indian citizens living abroad. If they meet the requirements and are living abroad, individuals of Indian descent who fall under these two categories can benefit greatly from working in India. Immigration-specific laws and policies that specify the requirements and restrictions for obtaining citizenship typically address these challenges. In the Indian subcontinent, on the other hand, immigration laws are governed by the Indian Constitution. A person of Indian ancestry or a family member of an Indian ancestor is defined as a citizen in Articles 5 to 11 of Part II of the Indian Constitution. Article 10 addresses a foreign national’s right to citizenship in India, subject to any additional legislation passed by the legislature. The Indian constitution forbids the holding of more than one citizenship and only recognizes one per nation. Additionally, it specifies that a foreign national can obtain Indian citizenship by registering as a foreigner with the Foreigners Registration Officer (FRO) or Foreigners Regional Registration Officer (FRRO) and going through the naturalization process (after residing in India for at least 14 years). Unlike jus soli, which is citizenship by birth, Indian law recognizes citizenship by blood, or jus sanguinis.
The Passport (Entry in India) Act, 1920 mandates that foreign visitors must obtain visas from India Missions. The statute also outlines the documents that must be turned in during their authorized travel in order for them to be allowed entry into the country.
The 1946 Foreigners Statute sets forth the regulations governing foreigners’ entry into India and their stay there until they depart. According to the Foreigners Registration Act of 1939 and the Foreigners Registration Rules of 1992, certain foreign nationals must register with the registration officer if they plan to stay longer than the allowed time on their visa. The severity of the punitive repercussions under the 1946 Act was emphasized by the Supreme Court of India in 1955 in the case of Hans Muller v. Superintendent Presidency Jail.2 The court ruled that the Foreigners Act grants the authority to deport foreigners from India. It gives the Central Government complete and unrestrained discretion, and since there is no provision limiting this discretion in the Constitution, an unbounded right to deport is retained. The Calcutta High Court upheld the Supreme Court’s decision in Hans Muller v. Superintendent Presidency Jail in AH Magermans v. SK Ghose.5. In this instance, the petitioner did not apply for a visa extension or get himself registered anywhere in India in compliance with the 1939 Rules. Consequently, it was decided that there was no flaw in the deportation order. In Fred Howard Haering v. State of Himachal Pradesh6, the Himachal Pradesh High Court upheld the three decisions mentioned earlier.
A step in the direction of streamlining the formal process for entering India was the introduction of the e-tourist visa facility. With effect from 26 February 2016, the Indian government expanded the availability of e-tourist visas to 37 additional countries, bringing the total number of countries that can use this service to 150. The purpose of this extension is to stimulate the tourism industry and support the Made in India initiative.
The Citizenship (Amendment) Act of 2019 was approved by the Lok Sabha on December 11, 2019, and by the Rajya Sabha on December 12, 2019. The Bill received the President of India’s approval and was published in the Gazette of India Extraordinary on the same day. The Citizenship (Amendment) Act 2019 came into effect through a notification published in the Gazette of India Extraordinary on 10 January 2020. The amended Citizenship Act of 2019 is currently facing challenges in the Supreme Court through a batch of 60 pending petitions. On December 18, 2019, the Supreme Court issued notices in all 60 petitions. No stay was granted by the Supreme Court to the provisions of the amended Act because the necessary enabling rules supporting the amendments have not been notified. The petitions raise concerns about infringements of Articles 14, 21, and 25 of the Indian Constitution and conflict with the secular nature of the country. The Citizenship (Amendment) Act 2019 aims to modify the definition of ‘illegal migrant’ in Section 2 of the Citizenship Act. Specifically, it exempts Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians from Afghanistan, Bangladesh, and Pakistan from being classified as illegal migrants under the Citizenship Act. Furthermore, it aims to decrease the residency requirement for citizenship through naturalization for the mentioned communities from 11 years to five years in India. However, as mentioned earlier, the implementing rules for the Act have not been notified, thus the amendments are not operational yet. Furthermore, the Supreme Court is currently reviewing a challenge to the amended Act regarding its constitutional validity, with a final decision still pending.
The FTI-TTP is being implemented through an online portal. The Bureau of Immigration is the nodal agency for fast-track immigration of various categories of travellers under this programme. After necessary verification, passengers are added to a White List of ‘Trusted Travellers’ for implementation through e-gates. Biometrics of ‘Trusted Traveller’ passing through the gates are captured at the Foreigners Regional Registration Office office or at airports. When registered passengers reach the e-gates, they scan the boarding pass issued by the airlines to get the details of their flight. The passport is scanned and the passenger’s biometrics are authenticated. Once the passenger’s identity is confirmed and biometric authentication is completed, the e-gate will open automatically and immigration clearance will be granted. The officials stated that the programme will be implemented in two phases to reduce human involvement in the immigration process. Indian citizens and OCI cardholders will be covered in the first phase. Foreigners will be included in the following phase. This particular programme would be implemented in seven different airports namely Mumbai, Chennai, Kolkata, Bengaluru, Hyderabad, Cochin, Ahmedabad – and it will be available in 21 airports across the country soon. Biometrics are being used to provide pre-verified travel authorization under the Fast Track Immigration Trusted Traveller Programme (FTI-TTP), which was launched by the Ministry of Home Affairs (MHA) at the Indira Gandhi International Airport in Delhi on June 22.
METHOD
Data collected for this particular research paper was through Quantitative Method of Research. Quantitative Method involves gathering and evaluating numerical data is the process of conducting quantitative research. Finding trends and averages, generating hypotheses, examining causality, and extrapolating findings to larger populations are all possible with it.
The opposite of qualitative research, which gathers and examines non-numerical data (such as text, video, or audio), is quantitative research. In the natural and social sciences—biology, chemistry, psychology, economics, sociology, marketing, etc.—quantitative research is frequently employed.
SUGGESTIONS
I would suggest that the Citizenship Amendment Bill, 2019 was an important & much needed amendment for granting citizenship to those who were had suffered immense injustice & religious prosecution in out neighboring countries. Also, with respect to United States of America, I think that the current immigration laws prevalent in USA are pertinent and required as they are need of the hour.
CONCLUSION
I Conclude by saying that India and United States of America are two different countries having different priorities and national interests. Their immigration laws are based upon their geographical location and are amended time to time as the circumstances called for.
Rugved Gambhir
III BALLB
ILS Law College, Pune