California Western School of Law

Kozolchyk, Boris

English

POLITICAL CHANGE AND STABILITY: Mexico\u27s Political Stability, Economic Growth and the Fairness of its Legal System

International Law Journal, California Western

CALIFORNIA WESTERN
INTERNATIONAL LAW JOURNAL
VOLUME 17 WINTER 1987 NUMBER 1
CONTENTS
ARTICLES
Active Defense: State Military Response
to International Terrorism
L ee S tuesser .......................................
The Prevention of Tax Havens
Via Income Tax Treaties
Vincent P. Belotsky, Jr .............................. 43
Some Observations on Socialist
Legality of the People's
Republic of China
Frankie Fook-lun Leung ............................ 102
Settlement of the Question
of Hong Kong
Peter W esley-Sm ith ................................ 116
SCHOLARLY OPINIONS
The Cult of Custom in the
Late 20th Century
W . M ichael Reisman ............................... 133
The Nicaraguan Military Activities
Case (Nicaragua v. United States of America)
H arry H . Alm ond .................................. 146
1
International Law Journal: Table of Contents
Published by CWSL Scholarly Commons,
Terrorism, Insurgency and
Geopolitics: The Errors
of U.S. Foreign Policy
Louis R ena Beres .................................. 161
COMMENTS
Parens Patriae Representation in
Transnational Crises: The
Bhopal Tragedy
Lisa F. Butler .......................
The Response of "Escape Clause" of
GATT and Section 201 of the Tariff and
Trade Act of 1974 to the Needs
of Developing Countries
Rochelle A. Fandel ...................
BOOKS RECEIVED ...................
BOOK IN BRIEF .....................
.............. 17 5
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Leung, Frankie Fook-Lun

Some Observations on Socialist Legality of the People\u27s Republic of China

Belotsky, Vincent P., Jr.

The Prevention of Tax Havens Via Income Tax Treaties

Library, California Western

California Western Law Review 
Volume 24 Number 1 Article 12 
1987 
Books Received 
California Western Library 
Follow this and additional works at: https://scholarlycommons.law.cwsl.edu/cwlr 
Recommended Citation 
Library, California Western (1987) "Books Received," California Western Law Review: Vol. 24 : No. 1 , 
Article 12. 
Available at: https://scholarlycommons.law.cwsl.edu/cwlr/vol24/iss1/12 
This Prefatory Matter is brought to you for free and open access by CWSL Scholarly Commons. It has been 
accepted for inclusion in California Western Law Review by an authorized editor of CWSL Scholarly Commons. For 
more information, please contact alm@cwsl.edu. 
BOOKS RECEIVED
CAUSATION, PREDICTION AND LEGAL ANALYSIS. By Stuart S.
Nagel. Quorum Books: Westport, Connecticut. 1986. Pp.. 276.
$39.95.
CIVIL LIABILITY IN CRIMINAL JUSTICE. By H.E. Barrineau, III.
Anderson Publishing Company: Cincinnati, Ohio. 1987. Pp.
105. $12.95.
CORPORATE CRIME UNDER ATTACK, THE FORD PINTO CASE AND
BEYOND. By Francis T. Cullen, William J. Maakestad, Gray
Cavender. Anderson Publishing Company: Cincinnati, Ohio.
1987. Pp. 398. $16.95.
LAW, POLICY, AND OPTIMIZING ANALYSIS. By Stuart S. Nagel.
Quorum Books: Westport, Connecticut. 1986. Pp. 328. $45.00
LEGAL ASPECTS OF HEALTH CARE ADMINISTRATION, THIRD EDI-
TION. By George D. Pozger. Aspen Publishers, Inc.: Rockville,
Maryland. 1987. Pp. 311. $29.50.
MICROCOMPUTERS AS DECISION AIDS IN LAW PRACTICE. By Stu-
art S. Nagel. Quorum Books: Westport, Connecticut. 1987. Pp.
358. $45.00
THE PUBLIC DEFENDER: THE PRACTICE OF LAW IN THE SHADOWS
OF REPUTE. By Lisa J. McIntyre. The University of Chicago
Press: Chicago, Illinois. 1987. Pp. 199. $24.95.
1
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Published by CWSL Scholarly Commons, 2015
2California Western Law Review, Vol. 24 [2015], No. 1, Art. 12
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Books Received

Zamora, Stephen

Mexico and the Global Financial Market: Capital Flight as a Factor in National Economic Policy Making

Ganster, Paul

Political Change and Stability in Mexico: The Historical Context

Heiserman, Robert G.

THE CHANGING SIGNIFICANCE OF NATIONALITY
UNDER NEW U.S. IMMIGRATION LAWS
Robert G. Heiserman*
Nationality is the most fundamental legal conclusion. National-
ity determinations remind us that each person is a citizen of the
world as well as a resident of an individual state. Each state relates
to its native inhabitants and to others both inside and outside of its
borders through law, tradition, and necessity. These relationships
are of such an imperative character that war and peace hang in the
balance. When an individual manifests the desire to change nation-
ality the world order is tested.
Under the Immigration Reform and Control Act of 1986
(IRCA),' enacted on November 6, 1986, certain requirements for
becoming a U.S. citizen have been incorporated into the standard
aliens must meet when seeking the benefits of the legalization pro-
gram. Until the enactment of IRCA, an alien who was granted
lawful permanent resident status was not required to become natu-
ralized as a U.S. citizen. Aliens who met the minimum requirement
of literacy in some language were not required to pass the English
literacy, U.S. government, and history tests which are included in
the naturalization process, to become a lawful permanent resident.2
Section 201 of IRCA adds Section 245A to the Immigration and
Nationality Act of 1952 (INA). It sets forth the requirements of
legalization of certain aliens who have resided continuously in the
United States in an unauthorized status since before January 1,
1982. In doing so, the naturalization standards of section 312 of
INA are incorporated into the legislation requirements.'
* Adjunct Professor of Law, Immigration and Nationality Law, University of Denver
College of Law. Recipient of American Immigration Lawyers Association 1986 Edith Low-
enstein Memorial Award for excellence in advancing the practice of immigration law.
I. Pub. L. No. 99-603, 100 Stat. 3359 (codified as amended in scattered sections of 8
U.S.C. (1986)) [hereinafter I.R.C.A.].
2. 8 U.S.C. § 1255, Immigration and Nationality Act § 245 (1952) (amended 1986)
[hereinafter I.N.A.].
3. (D) BASIC CITIZENSHIP SKILLS.-
(i) IN GENERAL-The alien must demonstrate that he either-(I) meets the requirements
of section 312 (relating to minimal understanding of ordinary English and a knowledge and
understanding of the history and government of the United States), or (11) is satisfactorily
pursuing a course of study (recognized by the Attorney General) to achieve such an under-
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The regulations for the legalization program are still in the in-
terim stage." However, the provisions seem to state that an unau-
thorized alien who applies for legalization and meets section 312
naturalization standards would only need to complete the required
residence period after becoming a lawful permanent resident and
demonstrate good moral character to become eligible to naturalize
as a U.S. citizen.
Of course, no one will be forced to become naturalized and natu-
ralization should not be confused with legalization. However, the
fact that an alien has already passed the difficult tests for U.S. citi-
zenship in order to establish eligibility for legalization might en-
courage him to complete the naturalization process. On the other
hand, it is possible that a significant number of unauthorized aliens
may not pass the section 312 tests and risk becoming deportable
aliens, thereby recreating the group of unauthorized aliens that
IRCA was intended to eliminate.
Another provision of IRCA may bar certain aliens from ever be-
coming U.S. citizens unless additional requirements are met in a
timely manner. Section 302 of IRCA adds section 210A (d)(5) to
the INA. This section sets forth the requirements for aliens who
were legalized as Seasonal Agricultural Workers (SAWs)6 to main-
standing of English and such a knowledge and understanding of the history and government
of the United States.
(ii) EXCEPTION FOR ELDERLY INDIVIDUALS-The Attorney General may, in his discretion,
waive all or part of the requirements of clause (i) in the case of an alien who is 65 years of
age or older.-
(iii) RELATION TO NATURALIZATION EXAMINATION.-In accordance with regulations of
the Attorney General, an alien who has demonstrated under clause (i) (1) that the alien
meets the requirements of section 312 may be considered to have satisfied the requirement of
that section for purposes of becoming naturalized as a citizen of the United States under title
IIl, I.R.C.A., Title, I1, § 201 which sets forth new 8 U.S.C. § 1255a(b)(l)d, I.N.A. § 245A.
4. 52 Fed. Reg. 2115 (1987) 8 Code of Federal Regulations § 245 (1987) [hereinaf-
ter C.F.R.].
5. No person except as otherwise provided in this title shall hereafter be naturalized
as a citizen of the United States upon his own petition who cannot demonstrate-
(1) an understanding of the English language, including an ability to read, write, and speak
words in ordinary usage in the English language: Provided, That this requirement shall not
apply to any person physically unable to comply therewith, if otherwise qualified to be natu-
ralized, or to any person who, on the date of the filing of his petition for naturalization as
provided in section 334 of this Act, is over fifty years of age and has been living in the
United States for periods totaling at least twenty years subsequent to a lawful admission for
permanent residence: Provided further, That the requirements of this section relating to abil-
ity to read and write shall be met if the applicant can read or write simple words and phrases
to the end that a reasonable test of his literacy shall be made and that no extraordinary or
unreasonable conditions shall be imposed upon the applicant; and
(2) a knowledge and understanding of the fundamentals of the history, and of the principles
and form of government of the United States.
8 U.S.C. § 1423, I.N.A. § 312.
6. (5) EMPLOYMENT IN SEASONAL AGRICULTURAL SERVICES REQUIRED-
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IMMIGRATION AND REFUGEES
tain temporary resident status and eventually obtain lawful perma-
nent resident status. Any alien who obtained temporary and perma-
nent resident status through the SAWs legalization provisions must
meet additional agricultural employment requirements in order to
become eligible for naturalization as a U.S. citizen. If an alien fails
to satisfy the agricultural employment requirement, then he may be
permanently ineligible to be naturalized as a U.S. citizen.
Another aspect of IRCA sets forth the controversial discrimina-
tion prohibitions, which are confusing at best.' These provisions
(A) FOR 3 YEARS TO AVOID DEPORTATION-In order to meet the requirement of this para-
graph (for purposes of this subsection and section 241(a)(20)), an alien, who has obtained
the status of an alien lawfully admitted for temporary residence under this section must
establish to the Attorney General that the alien has performed 90 man-days of seasonal
agricultural services-
(i)during the one-year period beginning on the date the alien obtained such status.
(ii)during the one-year period beginning one year after the date the alien obtained such
status, and
(iii)during the one-year period beginning two years after the date the alien obtained such
status.
(B) FOR 5 YEARS FOR NATURALIZATION.-Notwithstanding any provision in title III, an
alien admitted under this section may not be naturalized as a citizen of the United States
under that title unless the alien has performed 90 man-days of seasonal agricultural service
in each of 5 fiscal years (not including any fiscal year before the fiscal year in which the
alien was admitted under this section).
(C) PROOF-In meeting the requirements of subparagraphs (A) and (B), an alien may sub-
mit such documentation as may be submitted under section 210(b)(3).
I.R.C.A., Title III, § 303, which sets forth new 8 U.S.C. § 1161 (d) (5), I.N.A. § 210A
(d)(5).
7. UNFAIR IMMIGRATION RELATED EMPLOYMENT PRACTICES SEC. 274B. (A) PROHIBI-
TION OF DISCRIMINATION BASED ON NATIONAL ORIGIN OR CITIZENSHIP STATUS.-
(I) GENERAL RULE-It is an unfair immigration-related employment practice for a person
or other entity to discriminate against any individual (other than an unauthorized alien) with
respect to the hiring, or recruitment or referral for a fee, of the individual for employment or
the discharging of the individual from employment-
(A) because of such individual's national origin, or
(B) in the case of a citizen or intending citizen (as defined in paragraph (3)), because of
such individual's citizenship status.
(2) EXCEPTIONS.-Paragraph (1) shall not apply to-
(A) a person or other entity that employs three or fewer employees,
(B) a person's or entity's discrimination because of an individual's national origin if the
discrimination with respect to that person or entity and that individual is covered under
section 703 of the Civil Rights Act of 1964, or
(C) discrimination because of citizenship status which is otherwise required in order to com-
ply with law, regulation, or executive order, or required by Federal, State or local govern-
ment contract, or which the Attorney General determines to be essential for an employer to
do business with an agency or department of the Federal, State or local government.
(3) DEFINITION OF CITIZEN OR INTENDING CITIZEN.-As used in paragraph (1), the term
"citizen or intending citizen" means an individual who-
(A) is a citizen or national of the United States, or
(B) is an alien who-
(i)is lawfully admitted for permanent residence, is granted the status of an alien lawfully
admitted for temporary residence under section 245A(a)(1), is admitted as a refugee
under section 207, or is granted asylum under section 208, and
(ii)evidences an intention to become a citizen of the United States through completing a
19871
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Heiserman: The Changing Significance of Nationality Under New U.S. Immigrati
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CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL
raise serious questions concerning actual implementation of the
statute. Part (1) of section 274B(a)e seems to indicate that discrim-
ination against unauthorized aliens is lawful. However, later in part
(3),' the implication is that any lawful permanent resident or other
alien referenced in part (3)(B)(i) who fails to apply for naturaliza-
tion within six months of becoming eligible, or the enactment of
IRCA if already eligible to apply for retroactive naturalization,
would lose the IRCA protection against discrimination. In fact, dis-
crimination against non-intending citizens may even be considered
legally permissible. This in turn leads to serious concerns about the
constitutionality of this section and apparent conflicts with the Civil
Rights Act of 1964.10
Migration creates changes in nationality. The new immigration
law mandates close attention to the significance of changes in
nationality.
declaration of intention to become a citizen; but does not include (1) an alien who fails
to apply for naturalization within six months of the date the alien first becomes eligible
(by virtue of period of lawful permanent residence) to apply for naturalization or, if the
latter, within six months after the date of the enactment of this section and (11) an
alien who has applied on a timely basis, but has not been naturalized as a citizen within
2 years after the date of the application, unless the alien can establish that the alien is
actively pursuing naturalization, except that time consumed in the Service's processing
the application shall not be counted toward the 2-year period.
(4) ADDITIONAL EXCEPTION PROVIDING RIGHT TO PREFER EQUALLY QUALIFIED CITI-
ZENs.-Notwithstanding any other provision of this section, it is not an unfair immigration-
related employment practice for a person or other entity to prefer to hire, recruit, or refer an
individual who is a citizen or national of the United States or another individual who is an
alien if the two individuals are equally qualified.
I.R.C.A., Title I § 102 which sets forth new I.N.A. § 274B(a), 8 U.S.C. 1342b(a) (1987).
8. See supra note 7.
9. See supra note 7.
10. 42 U.S.C. § 1981 (1981).
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The Changing Significance of Nationality Under New U.S. Immigration Laws

Davenport, Erik J.

Cardoza-Fonseca: Supreme Court Takes Initiative to End Current Inequities in Law of Asylum

Butler, Lisa F.

Parens Patriae Representation in Transnational Crises: The Bhopal Tragedy