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Robyn Bridges-Castro Immigration Law Outline FINAL EXAM REVIEW

Professor CMP Summer 2010

- How can you lose your citizenship by expatriation and denaturalization - How can someone acquire citizenship - How does the federal government control the borders of the US, what power(s) do they have - If an alien gets here, what powers do they have to get them out - Sovereignty power To control the borders - How do people immigrate to the US? Obtain permanent residency? - Know family categories - Who are the immediately relatives, who is the child (various definitions) - Employment based visas Some require labor certification, other do not - Non-immigrant visas Some only require you present yourself (no petition needed) with documentation to the consulate; others require that a petition be filed in your behalf - How do aliens get into the US
- Even though you may an eligible for a visa, we may not want you here grounds

for inadmissibility how we keep people from being admitted in the US


- In some cases, even if you are inadmissible, you may be granted a waiver (know

some types) if you meet certain qualifications - Grounds of removability and deportability Section 237(a)(2) 6 or 7 grounds of removability
- Grounds of removability grounds for aggravated felony Section 101(a)(43)

for example, if you commit a crime of violence AND you are sentenced to at least one year; if its a crime of fraud, the amount of loss must be $10,000 or more know the different scenarios and qualifications - Relief from removability i.e. cancellation of removal for lawful residents or nonlawful residents; if you qualify for permanent residence, apply for asylum or adjustment of status - Asylum, refugees, withholding of removal, CAT differences between these forms of relief - Who is a refugee? What do you need ot qualify for any of the above reliefs? - Federal courts Cases that can be appealed and instances when they cannot be appealed if it is strictly based on discretion, that is, if it is a strictly discretionary decision from the BIA cannot be appealed - Habeas corpus when can you file them
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- Employer sanctions Two general violations 1) Hiring of unauthorized workers; 2) Paperwork violations (do not have to memorize sign schedule)

IMMIGRATION LAW I. CITIZENSHIP A. POWER OVER CITIZENSHIP a. Citizenship by birth i. The Const. does not define citizenship 1. Only mention All persons born or naturalized in the US, and subject to the jurisdiction thereof, are citizens of the US and of the State wherein they reside. (14th Amendment) 2. Commerce Clause Congress has sole power to define citizenship (Head Money Cases, US 1884) ii. Immigration Acts 1. Immigration and Nationality Act of 1952 a. McCarron Walters Act b. Truman vetoed, Congress overrode c. Basic law we still have today (only substantially altered by creation of DHS) d. Eliminated all racial requirements 2. Immigration Act of 1990 a. Transferred authority over naturalization from judiciary to Attorney General (now under DHS) b. Made process almost entirely administrative function c. Operational law today b. Naturalization i. Congress gave AG sole authority to grant naturalization (INA 310(a)) ii. Federal courts have authority to review denials of naturalization B. ACQUISITION OF CITIZENSHIP BY BIRTH a. C/L theories of citizenship i. Jus sanguinis: citizenship derived by blood ii. Jus soli: citizenship derived by birth location 1. In effect for all US territories except: a. American Samoa b. Swains Islands c. Persons born in these territories are US nationals 2. Permitted for children of undocumented aliens (EWI) iii. US blends both theories b. Children born abroad (jus sanguinis) i. A child born abroad to 2 married C parents is a C if: 1. Both parents are Cs; and 2. At least one parent had residence in the US at some point ii. A child born abroad on or after Nov. 14, 1986 to a C parent married to an alien parent is a C if: 1. One parent was C when child born;
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2. C parent lived in US at least 5 years (not necessarily consecutive) before birth; and 3. A minimum of 2 of the 5 years were after C parents 14th birthday. iii. A child born out of wedlock to a C mother is a C if: 1. Mother was physically present in US for at least 1 year prior to childs birth iv. A child born out of wedlock to a C father is a C if (INA 309(a); Nguyen v. INS, US 2001): 1. Clear and convincing evidence of the blood relationship between father and child; 2. Father must have been US C/national at childs birth; 3. Father must have agreed in writing to pay child support; and 4. While the child is under 18, a. He/she must be legitimated under law of his/her residence or domicile; b. The father must acknowledge paternity in writing under oath; or c. The paternity must be established by court adjudication. C. NATURALIZATION a. Procedure i. Application examined and approved/denied by USCIS officer (IO) ii. Further hearing before another IO available on request iii. Judicial review available b. Requirements (INA 311-316) i. RESIDENCE AND PHYSICAL PRESENCE 1. Must reside continuously in US for 5 years as LPR; a. Exception: 3 years if married to and residing with C 2. Must be physically present for at least half of 5 years of residence; a. If absent more than 6 mo. continuously, rebuttable presumption LPR status abandoned b. If absent more than 1 year continuously, LPR invalid and 5 year period starts over c. Exception: military or state personnel working abroad 3. Must reside in district in which petition filed at least 3 mo.; and 4. Must reside continuously in US from filing of petition. 5. Military exceptions: a. Requirements eased for veterans b. Requirements waived for active duty c. Similar waivers for spouses and children (in progress) ii. AGE 1. Must be 18 2. Exceptions: a. Derivative children children become C upon naturalization of parent b. Children adopted abroad by C parents iii. ENGLISH LANGUAGE PROFICIENCY
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iv. v.

vi. vii.

1. Must be proficient in English reading, writing, and speaking 2. Exceptions: a. Persons over 50 and LPR for over 20 years b. Persons over 55 and LPR for over 15 years c. Persons unable due to physical or mental impairment or disability (interpreter reqd) KNOWLEDGE OF US CIVICS AND HISTORY GOOD MORAL CHARACTER 1. Defined by non-exclusive list of examples of bad moral character (INA 101(f)) 2. Only examined during past 5 (or 3) years, but IO may look further back ATTACHMENT TO CONSTITUTIONAL PRINCIPLES OATH OF ALLEGIANCE

D. LOSS OF CITIZENSHIP a. Expatriation i. Involuntary expatriation loss of citizenship imposed on natural C based on certain behavior, such as lengthy residence abroad or marriage to a foreign natural, whether or not C subjectively wished to surrender their citizenship ii. Voluntary expatriation: 1. Inherent right of all natural C 2. Presumption is against expatriation C must affirmatively and in writing show desire to expatriate 3. Presumption not applicable when C: a. Formally renounces citizenship before consulate; b. Takes policy level position in foreign state; c. Is convicted of treason; or d. Performs an act made potentially expatriating by statute accompanied by conduct which is so inconsistent with retention of US citizenship that it compels a conclusion that the individual intended to relinquish US citizenship (very rare) b. Denaturalization i. Grounds: 1. Naturalization illegally procured (one or more statutory reqs not met); or 2. Naturalization procured by concealment of a material fact or willful misrepresentation a. Misrepresentation contains no materiality requirement, but concealment does b. A fact is material if disclosure would lead to denial of naturalization or would cut off a line inquiry that would lead to denial of naturalization c. Misrepresentations, even if material, only raise a rebuttable presumption that naturalization was illegally procured II. FEDERAL IMMIGRATION POWER
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A. POWER OF ADMISSION AND EXCLUSION a. Congress has the power to (Wong Wing v. United States, US 1896): i. Control immigration; ii. Determine which categories of aliens may be excluded; iii. Assign enforcement to immigration officers (IO); iv. Confine and detain aliens civilly while awaiting deportation; and v. Impose criminal sanctions for violation of immigration laws (but if they do, must provide DPC rights to the aliens) b. Chinese Exclusion Acts (1882-92) i. Permanently excluded new Chinese ii. Made all Chinese deportable unless they were residing in the US on the date the act was passed (1892), provable with certificate of residence and a white witness c. Chinese Exclusion Cases i. Chae Chan Ping v. United States (US 1889) affirmed inherent power of Congress to exclude Chinese ii. Fong Yue Ting v. United States (US 1893) deportation is not punishment (criminal in nature), so constl rights (such as right to jury trial, appointment of counsel, etc.) do not apply to deportees iii. Still good law have not been overturned! B. FEDERAL AGENCIES a. Dept. of Homeland Security (formerly INS, under DOJ) i. Bureau of Customs and Border Protection (CBP) 1. Let people in and out 2. Enforcement at ports of entry, screening people and cargo 3. Border Patrol ii. Bureau of Immigration and Customs Enforcement (ICE) 1. Monitor and remove people already in 2. Immigration police 3. Locating/arresting or charging persons illegally in the country 4. Representing government in removal proceedings in immigration court (IC) 5. Conducting efforts against fraud and smuggling (humans and goods) 6. Enforcing laws against unauthorized employment of aliens 7. Battling money laundering and child pornography (formerly Customs Service tasks) 8. Office of Detention and Removals Operations (DRO) securing detention, presence at trial, and removal of detained aliens iii. Bureau of Citizenship and Immigration Services (USCIS) 1. Grant/deny benefits to people already in 2. Adjudicating applications for various benefits b. Dept. of Justice (DOJ) i. Attorney General (AG) ii. Immigration judges (IJ) iii. Board of Immigration Appeals (BIA) 1. Aliens found removable by IJ have a right of appeal to the BIA 2. Multi-member review body appointed by AG 3. Also hears appeals from some DHS decisions
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4. Jurisdiction over visa petition denials covers only those petitions based on a family relationship (other than adoptions) 5. Cases are subject to further review by the AG personally (rare) iv. Administrative Appeals Unit (AAU) 1. Hear appeals not under jurisdiction of BIA (non-family-based petitions) c. Dept. of State (DOS) i. Bureau of Consular Affairs 1. Consular offices issue visas, but visa policy made by DHS 2. DHS may monitor issuance of visas and may veto issuance of an individual visa; but DHS may not order granting of a visa when consular office has refused it ii. Foreign Affairs Manual (FAM) 1. Published by DOS 2. Contains interpretations and instructions relating to immigration and nationality questions III. IMMIGRANTS A. IMMIGRANTS GENERALLY a. 4 catgories: i. Family-based ii. Diversity immigrants iii. Employment-based (see Section IV Employment-Based Immigration) iv. Refugees (see Section X Asylum) b. Procedure: Immigration Act of 1990 i. Visa petition filed by person already in US usually family member or prospective employer ii. Family member or employer is the petitioner iii. Alien who wishes to immigrate is the beneficiary iv. Beneficiary, once petition approved, may file for AOS B. FAMILY-BASED a. Preference categories (subject to annual ceilings) i. Spouses and minor children (under 21) of LPR (FB-1 Visa) 1. General rule: validity of marriage judged by law of the place where it is celebrated 2. Exceptions: a. Otherwise valid marriages entered into for sole purpose of obtaining immigration benefits are not recognized b. Proxy marriages: where the parties are not physically together, except where the marriage has been consummated c. Valid marriages in country of origin may not be recognized in the US where they are deemed to conflict with US public policy (eg, polygamous, homosexual, etc.) ii. Unmarried adult children (but not their children) of LPR (FB-2 Visa) iii. Married adult children of C (FB-3 Visa) iv. Siblings of adult C (FB-4 Visa)
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1. Exception: American-adopted C cannot petition for her blood siblings abroad b. Derivative beneficiaries i. Spouses and children of beneficiary may be admitted in the same preference category as the principal ii. Their admission is charged against the ceiling for the principals preference category c. IMFA (Immigration Marriage Fraud Amendments of 1986) i. All persons obtaining LPR status based on a marriage that is less than 2 years old at the time receive status on a conditional basis ii. Conditional status is: 1. Terminated if during the 2-year period it is found that the marriage was improper under the Act, or if the marriage was judicially annulled or terminated; 2. Removed if at the end of the 2-year period the underlying marriage is still found to be valid and has not ended iii. Waivers: battered spouses may more easily remove conditional status d. Violence Against Women Act (VAWA 1994) i. Allows aliens who are victims of domestic violence at the hands of a C or LPR spouse to file visa petition on their own behalf ii. May establish qualifying relationship even if abuser will not initiate the process C. DIVERSITY IMMIGRANTS a. Attempt to provide immigration opportunities to persons from countries with declining immigration rates b. People from high-admission countries are not eligible to participate in lottery (18 countries, as of 2008) c. Threshold requirements to qualify: i. High school degree or equivalent; or ii. 2 years of experience in occupation which requires at least 2 years of training or experience within 5 years prior to application d. Winners may bring immediate family members, but family members count against the annual ceiling i. Immediate family inc: 1. Spouses; 2. Minor children (under 21); and 3. Parents (if C 21+) IV. EMPLOYMENT-BASED IMMIGRATION A. PREFERENCE CATEGORIES a. First-Preference Workers (28.6%; EB-1 Visa) i. Extraordinary Alien (self-petition) ii. Outstanding Researcher/Academic (employer petitions) iii. Multinational Manager or Executive: 1. Used by major intl companies to bring high-level employees from foreign offices (L1) 2. Employer must file petition b. Second-Preference Workers (28.6%; EB-2 Visa)
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i. Members of the professions holding advanced degrees or persons of exceptional ability ii. Also includes any numbers not used in a given year by firstpreference (roll-over) c. Third-Preference Workers (28.6%; EB-3 Visa) i. Skilled workers, professionals, and other workers (not more than 10,000 other workers allowed; majority of all worker applications) ii. Roll-over from first- or second-preference categories d. Fourth-Preference Workers (7.1%; EB-4 Visa) i. Special immigrants, eg: 1. Religious workers (about to expire for non-minister/priest positions, such as nuns, etc.) 2. NATO visas transferring status 3. World Bank employees e. Fifth-Preference Workers (7.1%; EB-5 Visa) i. Employment creators and major investors: 1. You must invest in a new business and create at least 10 fulltime jobs for American workers 2. Investment must usually be at least $1M, but may be only $500K for targeted employment areas (rural communities or high-unemployment areas) 3. 10,000 visas set aside each year they have never been used up (very hard to qualify) 4. 2-year conditional visa B. LABOR CERTIFICATION a. 2 requirements: i. US workers unavailable for job 1. Employer must advertize in a newspaper with major circulation in the Sunday edition, at least 2 times 2. Ads must state requirements 3. Need not state salary ii. Will not adversely affect US workers 1. Job must be offered at the prevailing wage for the job (as determined by Labor) 2. Employer may challenge the finding b. LC waivers i. National Interest Waivers 1. Matter of New York State Dept. of Transportation (NYSDOT) (1998) est. 3-pronged test a. Employer must show that alien will be employed in an area of substantial intrinsic merit; b. Employer must show that proposed benefit will be national in scope; and c. Petitioner must demonstrate that the national interest would be adversely affected if LC were required for that particular alien 2. In 1999, Congress enacted additional waiver for physicians who agree to serve for specified number of years in a medically underserved area
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ii. Aliens of Extraordinary Ability (EB-1A Category) 1. Applies to aliens of extraordinary ability in the sciences, arts, education, business, or athletics c. PERM (Program Electronic Review Management) online LC process i. Phase 1 1. Recruitment phase 2. Employer must obtain prevailing wage determination before filing ii. Phase 2 1. Application filed directly with Labor on Form ETA 9089 2. Schedule A employer may skip DOL application process and go directly to visa petition for occupations chronically short of qualified US workers (ie, licensed nurses and physical therapists and persons with exceptional abilities in the sciences or arts) iii. Phase 3 1. Visa petition 2. Labors conclusion regarding market conditions is conclusive, but USCIS may question non-citizens qualifications for job or employers ability to pay the prevailing wage V. NON-IMMIGRANTS A. INTENT AND PROCEDURE a. Intent i. Immigrant intent: intent not to return to the home country ii. Non-immigrant intent: intent to return to the home country within a specified time period iii. Dual intent: 1. Intent to return if required with hope to adjust status legally 2. Limited to: a. H1B (skilled workers) b. H4 (immed. family of H1B) c. L1 (intra-company transferees) d. L2 (immed. family of L1) e. E1 (treaty trader) f. E2 (treaty investor) g. O1 (exceptional ability) b. Procedure i. Presumption nonimmigrant intends to be an immigrant; BOP on nonimmigrant to prove otherwise ii. 3 procedural paths: 1. Apply for visa at overseas consulate 2. Cs of certain developed states (mostly European) may enter without a visa as a business visitor or tourist for up to 90 days (visa waiver program) 3. Lawfully admitted nonimmigrant may petition for AOS B. VISA WAIVER PROGRAM a. WP Visa permits aliens to travel to the US for 90 days without a visa b. Country-specific
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c. CBP officer has total discretion whether or not to let the alien in d. Canadians may come in without a visa, an I-94, or a 90-day limit (only country with that benefit) C. NON-IMMIGRANT VISA CATEGORIES a. Foreign Government Officials (A) b. Visitors for Business and Pleasure (B) i. B-1 for business; B-2 for pleasure ii. Noncitizen initiates process overseas, no sponsor reqd iii. No LC reqd iv. Excludes aliens coming to perform skilled or unskilled labor v. May bring domestic servants c. Transit Aliens (C) d. Treaty Traders and Investors (E) i. Inc. spouses and children ii. Admitted for up to 2 years, with 2-year extensions as long as continues to undertake activities for which initial admission was granted iii. Does not req. prelim. pet. by sponsoring entity in US (alien initiates process) iv. E-1 for treaty-trader v. E-2 for treaty-investor e. Students (F, J, M) i. Students (F) 1. Admitted for DS (duration of studies, must be enrolled fulltime) 2. Must have foreign residence, no intention to abandon it 3. Must demonstrate: a. Acceptance by a school approved by AG (I-20 Form) b. Sufficient funds to cover all expenses for 12 mo. c. Scholastic prep. to pursue course of study, and sufficient knowledge of English 4. F-2 for spouses and children ii. Exchange Students/Scholars (J) 1. Inc. scholars, professors, teachers, trainees, specialists, foreign medical graduates, intl visitors, au pairs, and participants in student travel/work programs (usu. Fulbright Program) 2. Must: a. Be a bona fide educational and cultural exchange program b. Have at least 5 exchange visitors annually c. Provide cross-cultural activities d. Be reciprocal whenever possible e. Minimum stay of 3 weeks if not govt-sponsored f. Verified legal status of program g. Financially stable h. Program will not adversely affect US workers i. Accident insurance j. Full details of program procedures
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f. g. h.

i. j.

k.

3. Must return abroad for 2 years before may adjust status or apply for LPR 4. J-2 for spouses and children iii. Vocational Students (M) 1. Foreign students pursuing a non-academic (vocational) course of study 2. M-2 for spouses and children iv. SEVIS System 1. Monitors students 2. Set up during Iranian Hostage Crisis to monitor Iranian students; reinvigorated after 9/11 (hijackers had lapsed student visas) International Representatives (G) Foreign Press (I) Fiances (K-1, K-2) i. Hybrid Visa 1. Non-immigrant because only lasts 90 days 2. Alien must intend to adjust to immigrant status after marriage ii. Not available for mail-order brides iii. K-2 Visa for minor children of fiances Spouses and Children of Cs, visas pending (K-3, K-4) Intra-Company Transferees (L) i. Req. that person render his services in a capacity that is managerial, executive, or involves specialized knowledge ii. Must have been employed by sponsoring firm for at least 1 year within 3 years preceding date of filing iii. Employer must file prelim. pet. with DHS iv. L-2 for spouses and children of L-1 Temporary Workers (H, O, P, Q, R) i. H-1B for skilled workers (specialty occupation) 1. Req. bachelors equiv. or higher 2. Must demonstrate qualifications to work in the field (req. degree, licensure, or experience) 3. Admitted up to 3 years, extendible to 6 years max 4. Individual admitted under H-1B may start working for new employer (other than the employer that filed the petition) once the new employer files a new non-frivolous H-1B petition (need not wait until DHS approves) 5. LCA (attestation) must be filed by employer with Labor a. Attests that it has notified appropriate bargaining rep. of employees b. Attests posted notice of filing in conspicuous locations at place of work c. Attests the job offered at prevailing or actual wage d. Attests will provide working conditions for noncitizen that will not adversely affect the working conditions of similarly employed workers 6. May legally obtain AOS later (dual intent permissible) 7. Cap: 65,000 per year
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a. Some exemptions ex, employees of institutions of higher education or affiliated non-profits, or govt research orgs b. Cap only applies to new petitions, not renewals 8. $1,500 filing fee, $500 fraud prevention fee (universities and non-profit research orgs exempt) 9. H-4 for immediate family members of H-1B ii. H-2A for temporary workers in agriculture iii. H-2B for temporary nonagricultural workers 1. Employer must file LC (available only if unemployed persons capable of performing such service cannot be found in the US) 2. Employer must then obtain USCIS approval before individual can obtain visa for entry 3. Alien must be entering temporarily to fill a temporary job (1 year or less) 4. 1-year extensions possible, max of 3 years iv. O and P for distinguished merit and ability 1. Primarily for actors and athletes 2. O requires extraordinary ability demonstrated by sustained national or intl acclaim v. Industry Exchange (Q) 1. Disneyworld Visas 2. Cannot be extended vi. Religious workers (R) l. NAFTA Professional Workers (TN) i. Inc. spouses and children m. Spouses and Children of Persons with Preference Petitions Pending (V) VI. ADMISSION A. NON-IMMIGRANT ADMISSION PROCEDURES a. Nonimmigrant visas i. Since 2004, in-person interview for all applicants aged 14-79, subject only to limited waivers ii. DHS staff can veto issued visas but cannot grant a visa to someone already denied by the consulate (DOS) iii. Alien bears BOP that he qualifies for the visa (usu. that he maintains a home in a foreign country to which he plans to return) iv. Premium processing program since 2001 for most businessrelated visas b. Form I-94 i. Arrival-Departure Record ii. Issued at port of entry iii. Determines type and length of actual admission (visa only helps move alien to port of entry) c. Exceptions no visa requirement i. Visa Waiver Program 1. Since 2000 2. Visitor waives all rights to extend stay, change status under 248, or to adjust to LPR status under 245(a) once in the US, except as an immediate relative of a C
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3. Waives right to removal hearing, except that may apply for and have a hearing on asylum ii. Border Crossing Cards (BCC) 1. Accommodate Mexican nationals living in border area without Mexican passport iii. Parole 1. Refers to someone who is physically present in the US, but not legally admitted 2. Permissible for urgent humanitarian reasons or significant public benefit 3. Once purposes of parole have been served, or upon revocation of parole, alien shall be returned to the custody from which he was paroled and resumes being an applicant for admission 4. Refugees have historically been paroled in when ordinary statutory provisions proved inadequate (eg, Cubans, Hungarians, Vietnamese) 5. Usu. allowed AOS to LPR after 2 years presence (Congressional decision) 6. Advanced parole: a. May be granted to a parolee who is not an LPR b. Permits the parolee to exit and enter the US c. If, upon return, the parolee is found to have unlawfully entered on a prior occasion, they will be barred for 10 years B. IMMIGRANT ADMISSION PROCEDURES a. 2 paths toward LPR: i. Obtain immigrant visa at consulate and then travel to US; or ii. AOS b. After visa approved: i. National Visa Center (NVC) 1. Creates case file 2. Provides instruction to petitioners and sponsors 3. Receives fees and reqd docs 4. Obtains from sponsors the Affidavit of Support forms (I-864) ii. Orphan/Homeless Visa cases: 1. In some cases, aliens may persuade consulate somewhere other than their home country to issue the visa if they can demonstrate that returning to their home country would be a hardship due to factors such as: a. Physical infirmity b. Advanced age c. Presence of war or widespread civil disturbance d. Unavailability of US visa services there iii. I-551 (Green Card) 1. Valid 10 years 2. LPR may leave country temporarily and upon return will be counted as a special immigrant not double-counted against relevant quotas or caps
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3. Possession of GC will not assure readmission, but merely dispenses with certain documentary reqs C. ADJUSTMENT OF STATUS a. Requirements for AOS ( 245) i. Applicant qualifies for visa; ii. Immigrant visa is immediately available to the applicant as of filing date of AOS app. (Form I-485); and iii. Applicant is not inadmissible b. AOS is discretionary: i. May be denied even if applicant meets all reqs ii. Interview often waived iii. Applicant considered as though he were at the border applying for initial admission iv. Factors considered: 1. Family ties in US 2. Hardship in traveling abroad 3. Length of residence in US 4. Preconceived intent to remain 5. Repeated violations of immigration law c. Eligibility for AOS: i. Alien must have been admitted lawfully 1. Exceptions (lawful entrants who are not eligible for AOS): a. Aliens initially admitted under visa waiver b. Admitted as alien crewmen c. Those in US under transit without visa arrangements d. Aliens who worked without authorization before filing e. Persons out of status at date of filing, unless have failed (through no fault of their own or for technical reasons) to maintain continuously lawful status since entry 2. Exceptions do not apply to lawfully admitted aliens who are immediate relatives of Cs ii. Alien must have been inspected upon admission (EWIs not eligible for AOS, even if immediate relative of C must return to home country to file for initial admission) iii. Expiration of status while AOS is pending does not preclude approval d. Filing procedure: i. AOS does not eliminate req. for visa petition 1. May be filed simultaneously with visa pet. in family-based categories 2. In all other cases, AOS may only be filed after visa pet. approved ii. Appeal of AOS denial: 1. Applicant denied AOS has no administrative appeal 2. May renew AOS app. before IJ conducting removal proceedings 3. Earlier USCIS denial does not bind judge exercises discretion anew based on info presented at hearing 4. No Art. III court has jurisdiction to review any judgment made by IJ in these appeals
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a. Exception: Constl claims or questions of law iii. Rescission possible if at any time within 5 years after AOS the AG concludes the person was not eligible at the time granted VII. INADMISSIBILITY A. INADMISSIBILITY GROUNDS (INA 212(a)) a. HEALTH-RELATED GROUNDS i. Communicable disease of public health significance ii. No vaccinations iii. Physical or mental disorder threatening to public safety iv. Waiver b. CRIMINAL GROUNDS i. Conviction of 1. Crime involving moral turpitude 2. Crime related to controlled substances 3. Exceptions: a. Crime committed before 18 b. Max penalty not more than 1 year imprisonment; less than 6 mo. sentenced ii. Multiple convictions iii. Controlled substance traffickers iv. Prostitution and commercialized vice v. Aliens involved in serious criminal activity who have asserted immunity from prosecution in US vi. Foreign govt officials who have committed serious violations of religious freedom vii. Human traffickers viii. Money laundering ix. Waiver c. SECURITY GROUNDS i. Alien who seeks entry to engage in unlawful activity ii. Terrorist grounds 1. Any alien who has engaged in or is likely to engage in terrorist activity 2. Any alien associated with terrorist organizations 3. Exception: spouses and children who did not know of the activity or have renounced it iii. Foreign policy grounds 1. Sec. of State determines if aliens admission would have potentially serious foreign policy consequences for the US 2. Exceptions: a. Officials b. Aliens posing threat because of beliefs or associations which would be legal in the US, unless the Sec. of State personally determines admission of the alien would compromise foreign policy interests iv. Membership in totalitarian party 1. Exceptions: a. Involuntary membership b. Past membership
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d.

e.

f.

g.

h.

i.

v. Participation in: 1. Nazi persecutions 2. Genocide 3. Commission of acts of torture or extrajudicial killings PUBLIC CHARGE i. Any alien who, in the opinion of the consular officer or AG, is likely at any time to become a public charge ii. Any alien who, within 5 years of entry, has become a public charge may be removed iii. Factors to consider: 1. Age 2. Health 3. Family status 4. Assets, resources, and financial status 5. Education and skills iv. 1996 Welfare Act req. affidavits of support for most family-based immigrants, even if they will earn enough to support themselves LABOR CERTIFICATION i. Employment-based immigrant without LC ii. Unqualified physicians iii. Uncertified foreign healthcare workers ILLEGAL ENTRANTS & IMMIGRATION VIOLATORS i. Exception: battered women and children (VAWA) ii. Failure to attend removal proceeding iii. Misrepresentation 1. Falsely claiming C 2. Waiver iv. Stowaways v. Smugglers 1. Special exception: if the alien, before May 5, 1988, has encouraged, induced, assisted, abetted, or aided only the aliens spouse, parent, or child (and no other person) to enter the US in violation of the law 2. Waiver DOCUMENTATION i. Alien not in possession of valid, unexpired visa at the time of application ii. Waiver INELIGIBLE FOR CITIZENSHIP i. Any immigrant who is permanently ineligible for C is inadmissible ii. Draft evaders iii. Waiver ALIENS PREVIOUSLY REMOVED i. Aliens previously removed seeking readmission within 10 years of first departure, or 20 years of second or subsequent removal ii. Aliens unlawfully present 1. For more than 180 days but less than 1 year and voluntarily departed, seeking readmission within 3 years of departure 2. For 1 year or more, seeking readmission within 10 years of departure
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3. Exceptions: a. Minors b. Asylees c. Family unity d. Battered women and children e. Victims of severe form of human trafficking 4. Waiver iii. Aliens unlawfully present after previous immigration violations and unlawfully present for more than 1 year (aggregate) and already ordered removed (waiver) j. MISCELLANEOUS i. Practicing polygamists ii. Guardian reqd to accompany helpless alien (who is also inadmissible) iii. International child abduction iv. Unlawful voters v. Former C who renounced C to avoid taxation B. JUDICIAL REVIEW a. All removal orders: i. Reviewable upon filing petition in federal courts of appeals in circuit where proceedings took place (Hobbs Act) ii. Removal orders no longer stayed automatically pending court review, but alien may apply for discretionary stay or may initiate or continue court review after leaving US b. Discretionary relief: i. No judicial review for any decision concerning: 1. Granting of relief under waiver provs in 212(h) and (i) (see above) 2. Cancellation of removal 3. Voluntary departure 4. AOS ii. No judicial review of any decisions under Title II (so not inc. nationality and naturalization) which are the exclusive discretion of the AG or the Sec. of DHS c. SOR: i. Admin. findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary ii. A decision that an alien is not eligible for admission to US is conclusive unless manifestly contrary to law C. CONSTITUTIONAL DUE PROCESS a. Due Process for aliens is whatever Congress says it is i. Inadmissible aliens are not entitled to DP ii. LPRs (those already admitted) are entitled to full constl protections (DP incd) iii. Aliens seeking re-entry have the same constl rights as LPRs b. Procedural Due Process balancing test: i. The interests at stake for the alien; ii. The interest of the govt; and
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iii. The gain to accurate decision-making that can be expected from the procedural protection sought c. Fleuti test for returning aliens: i. Alien not making an entry when returning from a temporary absence that was not meaningfully interpretive of permanent residence ii. Innocent, casual, and brief trips abroad do not terminate LPR status iii. However, a returning LPR who has been absent for more than a year cannot rely on his green card as a re-entry permit VIII. REMOVAL/DEPORTATION A. REMOVAL POWER a. Harisiades v. Shaughnessy (US 1952) i. LPRs do have procedural DP rights ii. Substantive DP questions are beyond judicial review iii. Congress has plenary, inherent power to terminate its hospitality to aliens (see Chinese Exclusion Cases) iv. LPR should have obtained C to avoid removability b. Ex post facto issue: i. Ex post facto laws a person cannot be punished for conduct committed in the past which was not punishable at the time ii. Because deportation is not criminal in nature and is not punishment, ex post facto laws do not apply c. 5th Amend. DP rights apply to LPRs only in procedural matters, not in substantive matters (Begs the question can Congress select a group of people for deportation, such as Arabs? After all, that is a substantive issue ) d. Two types: i. Expedited removal for inadmissible arriving aliens, inadmissible AOS ii. Deportation for removable aliens already admitted B. EXPEDITED REMOVAL a. Procedure: i. IO who finds arriving alien inadmissible may have him removed without further hearing or review ii. Exceptions: 1. If the alien indicates an intention to apply for asylum under 208 or a fear of persecution a. Order may be issued only after extended interview in secondary inspection and supervisory review of officers conclusion to remove b. Alien claiming asylum will be interviewed by asylum officer no sooner than 48 hours later c. If asylum officer or IJ finds credible fear, alien scheduled for full merits hearing in IC and may be released on parole while case pending (90% of credibility fear hearings result in granting asylum)
18

2. Alien who claims under oath to be C or returning refugee or LPR (aka status claimants) are entitled to pursue that claim before IJ b. Who may be subject to ER: i. Arriving aliens seeking admission to US without docs, or with fraudulent or invalid docs ii. Arrivals who have committed immigration fraud in the past iii. Arriving aliens judged inadmissible iv. Sec. of DHS has discretion to apply to any EWI who has been present in the US for less than 2 years v. AG has sole and unreviewable discretion to designate for ER aliens who enter EWI or under parole if they do not show that they have been continuously present in US for preceding 2 years c. After ER order: i. Mandatory detention during initial procedure (arriving aliens not entitled to bond, but may be paroled by discretion) ii. Departure under ER makes the person inadmissible for 5 years, subject to limited waiver iii. Alien has no absolute right to withdraw AOS application before removal, but may do so with approval by IO (precludes the 5 year bar) C. REMOVAL GROUNDS (INA 237) a. INADMISSIBLE AT ENTRY OR AOS i. Aka delayed removal 1. All grounds of inadmissibility (212a) remain pertinent for deportation 2. Does not apply to EWIs 3. Waiver for aliens inadmissible for fraud or misrepresentation in obtaining immigrant visa or admission, provided they have close relatives in the US ii. Failure to maintain nonimmigrant status 1. Admissible at entry but thereafter did not comply with reqs related to stay 2. Those who overstay 180 days+ may trigger 3-10 year bars to re-admission b. CRIMINAL CONVICTION i. Applies to: 1. Plea of nolo contendere or admission of facts 2. Suspended sentence 3. Deferred adjudication 4. Does NOT apply where underlying conviction reversed on appeal (BOP vacated conviction on alien) 5. Full and unconditional pardon by state governor or President will erase imm. consequences for: a. Crimes involving moral turpitude b. Aggd felonies c. High speed flight from immigration checkpoint ii. Categories of crimes 1. Crimes involving moral turpitude
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c. d. e.

f.

a. Must occur within 5 years after date of admission b. Crime must be one for which sentence of one year or longer may be imposed (need not be) c. Multiple convictions automatically trigger removal 2. Aggd felonies a. No asylum available b. Not entitled to ordinary form of JR of removal orders c. Barred for life from re-entry, unless obtain AGs consent to apply for re-admission d. A state felony will not be deemed aggd felony when federal offense is misdemeanor 3. Drug offenses a. Inc. possession b. Exception for small amounts of marijuana for personal use 4. Domestic violence a. Conviction may have occurred any time after admission b. Inc: i. Domestic violence ii. Stalking iii. Child abuse iv. Child neglect v. Child abandonment vi. Violation of PO c. Waiver for victims of domestic violence acting in selfdefense or under extenuating circumstances (AGs discretion) FAILURE TO REGISTER OR FALSIFIED DOCUMENTS i. Imposes civil and criminal penalties as well ii. No automatic hearing on doc fraud charges, but may be requested NATIONAL SECURITY/FOREIGN POLICY DANGER PUBLIC CHARGE i. 3 requirements: 1. Govt must impose some fee or charge for benefit (ex: ambulance bill); 2. Govt must make demand for repayment; and 3. Person fails to pay UNLAWFUL VOTING

IX. RELIEF FROM REMOVAL A. ROLE OF DISCRETION a. Requirements for relief: i. Statutory eligibility ii. Favorable exercise of discretion b. Types of relief: i. Relief resulting in LPR status 1. Cancellation of removal 2. Voluntary departure 3. Withholding of removal 4. Asylum
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5. Convention against torture (CAT) ii. Relief not resulting in LPR status voluntary departure c. Prosecutorial discretion : i. Removal priorities: 1. National security violators 2. Human rights abusers 3. Spies 4. Traffickers both in narcotics and people 5. Sexual predators 6. Other criminals 7. For cases not falling within above categories, balance cost of removal v. value of result ii. Deferred action: 1. Allows alien subject to removal to remain in US for humanitarian reasons 2. May obtain work auth. upon showing of need 3. No family reunification rights 4. Status is subject to withdrawal at any time 5. Not considered period of authorized stay for purposes of bars on re-admission iii. Stay of removal: 1. After removal ordered, pending appeal 2. Not automatic courts discretion d. Adjudicatory discretion: i. AG has typically delegated exercise of discretion in individual cases to IJs who preside over removal proceedings ii. Favorable factors: 1. Family ties in US 2. Resident of long duration in US 3. Inception of residence at young age 4. Evidence of hardship to alien and family 5. Service in US armed forces 6. History of employment 7. Property or business ties 8. Evidence of value and service to community 9. Proof of genuine rehab where criminal record 10. Evidence of good character iii. Unfavorable factors: 1. Nature and underlying circumstances of grounds for removal 2. Addl violations of US immigration laws 3. Criminal record 4. Nature, recentness, and seriousness of criminal record 5. Evidence of bad character 6. Evidence of undesirability as LPR iv. No regulatory guidance for exercise of discretion B. CANCELLATION OF REMOVAL a. Numerical limit: 4000 per fiscal year b. Cancellation of removal for LPRs i. AGs discretion
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ii. Pre-requisites: 1. Continuous residence in US for 7 years and LPR for 5 years 2. Stop-time provision stops count at notice to appear in removal proceedings c. Cancellation of removal for non-LPRs i. Pre-reqs: 1. Continuous presence for 10 years (exception for military) 2. Good moral character (bad character = conviction for aggd felony) 3. Exceptional and extremely unusual hardship to children or parent ii. Exception: battered spouses or children 1. Standard for hardship extreme (not exceptional and extremely unusual) 2. Hardship to applicant relevant, not just to children or parent 3. Good moral character not precluded by conduct or conviction connected to battering 4. Continuous physical presence reduced to 3 years 5. Exception to stop-time rule 6. Absences connected to battering dont count 7. Only applies if batterer is C or LPR C. VOLUNTARY DEPARTURE a. Procedure: i. Involves 2 determinations: 1. Statutory eligibility 2. Separate exercise of discretion (assuming eligibility) ii. If the alien granted VD does not depart on time, there are consequences: 1. Potential fine 2. 10 years of ineligibility for VD, AOS, or cancellation of removal iii. Aliens removable for aggd felonies or terrorist activities are not eligible b. VD before removal proceedings or before completion of proceedings i. Before proceedings decision made by DHS officer ii. During proceedings decision made by IJ iii. Does not req. bond iv. Max. stay of 120 days v. Incentives: 1. Formal removal creates 10 year bar to admission 2. Formal removal subjects alien to felony prosecution for clandestine re-entry (misdemeanor for simple EWI) 3. VD subject to reinstatement (speedy removal if return without advance permission) c. VD at conclusion of removal proceedings i. Must post bond ii. Max. stay of 60 days iii. VD must demonstrate why favorable exercise of discretion is warranted
22

X.

ASYLUM A. PROCEDURES a. Two possibilities: i. Asylum: 1. INA 208 2. AG has discretion to provide to alien who can show he meets the statutory definition of refugee 3. Req. showing of credible fear of persecution (not that persecution more likely than not to occur, as with WR) 4. Protections: a. Allowed to work b. May bring immediate family members to US c. May sometimes receive public assistance d. Routine mechanism for AOS ii. Withholding of removal: 1. INA 241(b)(3) 2. AG has discretion to withhold removal of alien whose life or freedom will be threatened by return to home country 3. Req. showing the persecution more likely than not to occur (lower std for asylum) 4. Protections (limited): a. May work with permission b. Cannot bring families c. No public assistance d. No AOS unless otherwise qualified (eg, through marriage, employment) b. Applications for protection: i. May apply simultaneously for WR and asylum ii. Form I-589 iii. Applicant must be advised of right to counsel, available pro bono services, and that knowingly filing a frivolous app. renders him permanently ineligible iv. 3 types: 1. Affirmative applications a. For applicants not currently in removal proceedings b. Mail I-589 to RSC (regional service center) of USCIS c. Interview with asylum officer 2. Defensive applications a. If removal proceedings already underway b. Present claim to IJ c. Where already ordered removed, may raise asylum claim by motion to reopen filed with IJ or BIA (whoever last heard the matter) 3. Applications in expedited removal proceedings a. Will be interviewed no less than 48 hours later by asylum officer to determine credible fear of persecution b. If credible fear found, claim heard on merits in IC

23

c. If no credible fear, order of removal (may request review by IJ; review of IJs decision available only in limited circumstances) c. Requirements: i. Well-founded fear: 1. Judged by reasonable person std 2. Alien must demonstrate: a. Belief or characteristic that persecutor hopes to punish (5 categories) b. Persecutor must be aware or could become aware of the aliens belief or characteristic c. Persecutor has the capability to persecute the alien d. Persecutor must not only have capability, but also inclination to persecute ii. Future persecution 1. Undefined 2. Uniform national policy a. A uniform national policy that on its face is not persecutorial cannot alone est. grounds for asylum b. Claimant must show that the policy was unduly persecutorial as applied to him based on one or more of the 5 factors 3. Persecution by non-govt actors a. Valid basis for asylum if it is shown govt of country of deportation is unwilling or unable to control that group b. Non-govt groups need not be formally organized or quasi-govt in order to persecute c. Non-govt actors, such as terrorists, insurgents, guerillas, or other militant opposition groups, can be persecutors iii. Past persecution 1. No requirement for past persecution for either asylum or WR 2. Where there was past persecution, applicants for asylum are beneficiaries of express rebuttable presumption that they have well-founded fear of future persecution 3. Govt may rebut in 2 ways: a. Showing fundamental change in circumstances; or b. Showing asylum applicant could avoid future persecution by relocating to another part of the home country and that it would be reasonable to expect applicant to do so 4. Regs allow discretionary asylum (but not WR) for victims of past persecution, even absent fears of future persecution, if alien demonstrates compelling reasons for being unwilling to return based on severity of past persecution (exceptional) B. PROTECTED GROUPS a. POLITICAL OPINION (PO)

24

b. c. d.

e.

i. Alien must prove that the persecutors motive is to persecute the alien based on the aliens PO (its not enough to prove that the persecutor has a political objective) ii. Imputed PO can be grounds for asylum RACE/NATIONALITY RELIGION MEMBERSHIP IN PARTICULAR SOCIAL GROUP (PSG) i. PSG = group determined by some immutable characteristic (factor that is either literally unchangeable or so fundamental to personal ID that the law should not require the person to change it) ii. Factors to consider in detg membership in a PSG: 1. How members are perceived by the persecutor 2. How members are perceived by the petitioner 3. How members are perceived by other members of society GENDER i. Resistance to social norms: generally not grounds ii. FGM: 1. Threat of FGM is persecution 2. Past FGM not grounds cant happen again iii. Domestic abuse: generally not grounds

C. LIMITATIONS a. Filing deadline i. Must file within 1 year of arrival ii. Exception: changed circumstances that materially affect eligibility b. Bars: i. Firm resettlement in another country ii. Serious crimes 1. Serious nonpolitical crime outside the US prior to arrival 2. Conviction of particularly serious crime in the US 3. Crimes against persons more likely to be particularly serious, but crimes against property may be iii. Persecutors 1. Persons who assisted in persecuting others must be excluded from asylum and withholding of removal 2. Even involuntary participation in persecution bars asylum 3. Membership in a persecuting group alone is not a bar, unless action of inaction of the alien directly fostered persecution iv. Security dangers and terrorist activity 1. WR and asylum not available when there are reasonable grounds for regarding the alien as a danger to the security of the US 2. Engaging in any terrorist activity makes one a danger to US security D. CONVENTION AGAINST TORTURE a. Convention i. US became party to treaty in 1994 ii. Torture is illegitimate
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iii. No party state shall expel or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture b. Asylum and CAT i. Claim under CAT is totally separate from claim for asylum or withholding ii. May qualify for CAT even if dont qualify for asylum or withholding (eg, convicted felons) c. Applications for CAT protection i. IJs, not asylum officers, grant protection in deportation proceedings ii. Denials may be appealed to BIA (limited further appeal to Art. III courts) iii. Country-specific if alien could be deported to another country, then he will be d. Petitioner must show i. It is more likely than not that he will be tortured if removed to proposed country of removal 1. Objective std (like WR) 2. BOP on alien 3. Aliens testimony alone may sustain BOP ii. Nature of torture iii. Purpose of agent in inflicting the torture iv. Like WR, looks to a future event v. Govt involvement or acquiescence in torture 1. CAT defines torture as pain or suffering inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity 2. Govt must have actual knowledge of torture or willful blindness 3. Govt must implicitly support the torture if it doesnt directly commit it XI. ENFORCEMENT A. SEARCHES AND ARRESTS a. Fourth Amendment search and seizure i. Police officer may make arrest only based on probable cause ii. Brief investigatory stops of persons or vehicles, short of actual arrest, are permissible if the officer has reasonable suspicion that criminal activity is afoot iii. Greater power to search persons and property at the border than inside the US (so routine search at border inspection post may occur without probable cause or reasonable suspicion) iv. In the zone inside the US but close to border, the std for search is stricter than at the border but more lax than further inside the US v. Once a car has been held for secondary inspection at a fixed checkpoint, a search reqs probable cause or consent vi. Roving patrols may conduct arrests and full-scale searches only based on probably cause b. Fourth Amendment Exclusionary Rule i. Generally does not apply in deportation proceedings
26

ii. Exception: Egregious violation (eg, vehicle stop based solely on passengers Hispanic appearance) c. Miranda Warnings i. Not required in removal (however, statements made in holding for removal cannot be used in subsequent criminal proceedings) ii. Exceptions: 1. Govt behavior violated fundamental fairness 2. Circumstances of interrogation rendered statements involuntary 3. Alien was prejudiced by govt violation of regs promulgated for his benefit B. DETENTION a. Arriving aliens not in expedited removal shall be detained i. May be released on parole if: 1. Serious medical conditions 2. Pregnant women 3. Certain juveniles 4. Witnesses in govt proceedings in US 5. Aliens whose contd detention not in public interest ii. IJs lack jurisdiction to review bond decisions b. Non-arriving aliens may be detained or released on either own recognizance or on bond i. IJ may review custody decision, release conditions, or bond order c. Post-order custody review (when alien may be released): i. Alien must show: 1. He has cooperated in trying to obtain travel docs; and 2. There is no significant likelihood of removal in reasonably foreseeable future 3. If showings made, may be released under conditions designed to protect public safety and to effect aliens ult. removal ii. May still be detained if: 1. Highly contagious disease posing threat to public safety 2. Serious adverse foreign policy considerations 3. Security or terrorism concerns 4. Specially dangerous aliens a. Special dangerousness must be estd by clear and convincing evidence b. BOP on alien to prove that he is NOT dangerous 5. If alien detained on these grounds: a. Alien entitled to full hearing b. There must be review of the detainment every 6 mo. C. EMPLOYER SANCTIONS a. INA 274(A) i. Unlawful to hire, recruit, or employ for a fee an EWI ii. Hire = put someone on your payroll 1. Requires I-9 Form 2. All employees, inc. C, must complete
27

b.

c.

d.

e.

iii. Employee = a person who provides some service or labor for wages or other compensation 1. Does not inc. independent contractors, volunteers, or casual hires 2. Independent contractor generally has own business, Kd to do specific job on his own schedule, supplies own tools and equipment, hires his own employees, available for hire by others, and business is public 3. Casual hire only limited to domestic employment which is sporadic, irregular, or intermittent (no need for I-9) Violations of employer sanctions law: i. Knowingly hire a person not authorized to work ii. Hire a person believing he is authorized and then subsequently finding out that he is not and continuing his employment 1. Must discharge that person within a reasonable time 2. Constructive knowledge 3. No-match social security letter = constructive knowledge iii. Violation of verification system (either did not prepare an I-9 or I-9 is substantially wrong) Investigations must be based on DHS knowledge of some articulable fact, such as i. Area of high illegal employment ii. Particular industry iii. Employees dont speak English iv. Employees act exceedingly suspicious v. Random audits (rare now) Process: i. ICE sends employer Notice of Inspection (NI) ii. Employer must produce I-9s for inspection 1. Sep. violation for refusal or substantial delay in production 2. Subpoena may accompany NI asking for all kinds of records iii. Notice of Intent to Fine (NIF) 1. Employer may request hearing before ALJ 2. Becomes final if not requested immediately 3. Settlement option available iv. Cease and Desist Order (CDO) 1. Employer must then file answer 2. Discovery 3. Hearing (ALC) 4. Appeal available Penalties i. Penalties go up per offense ii. Assessed per alien iii. Paperwork or verification violations much lower, per I-9 iv. Mitigating factors: 1. Good faith 2. Small business 3. Speedy correction of mistakes 4. Past history 5. Seriousness of violation
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6. Fraud/perjury 7. Pattern and practice of business

Immigration Law Chapter 1: Citizenship I. The Concept of Citizenship a. Immigration and Nationality Act (INA), codified in 8 USC. i. Department of Homeland Security (DHS)the federal agency charged with administering and enforcing the INA. b. The Territorial State and Closure i. Two types of closure 1. threshold of interaction a. initial participation is restricted through barriers to entry or selective admission b. Includes closure against noncitizensnoncitizens prevented from entering the territory or excluded from forms of action reserved for citizens (i.e., voting, serving in the army). 2. inside interaction a. continued participation is controlled through institutions such as probation or performance review b. I.e., noncitizens entry and residence rights ii. Access to Citizenship 1. Ascriptionevery state ascribes its citizenship to certain persons at birth a. It is presumed that at birth certain persons have a high probability of developing the close attachments and loyalties to a particular society and state b. This presumption is strongest when the person is born on the territory of the state to a citizen parent or parents. 2. Naturalizationpersons to whom the citizenship of a state is not ascribed at birth II. Citizenship and the Constitution a. The constitution, as initially drafted, included no definition of citizenship
29

III.

i. it was made a qualification for the Presidency and election to Congress ii. Congress was given the authority to adopt a uniform Rule of Naturalization. iii. Attempt to define citizenship 1. Supreme Court a. Dred Scott caseJustice Taney held that free blacks born in the US were not citizens of the United States b. Plessy v. Ferguson (1896)Supreme Court allowed state enforced segregation of the races by upholding a Jim Crow law. c. Sugarman v. DougallJustice Rehnquist opined that Congress believed citizenship played an important role in the constitutional scheme d. Alexander Bickel, a legal scholar, concluded that remarkably enough, the concept of citizenship plays only the most minimal role in the American constitutional scheme. 2. 1866 Civil rights Actall persons born in the US and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States. 3. 14th AmendmentAll persons born or naturalized in the US, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. a. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. (P & I Clause) Acquisition of Nationality by Birth a. Two basic principles known to international practice i. jus soliconferral of nationality based on birth within the national territory ii. jus sanguinis, conferral of nationality based on descent, irrespective of the place of birth b. Jus Soli i. Elk v. Wilkins (1884): the Court ruled that native Indians were not US citizens, even if they severed their ties with their tribe. ii. Since at least 1940: all Indians born in the United States are US citizens at birth iii. United States v. Wong Kim Ark (1898), pg. 17 1. Facts: Ark was born in San Francisco to Chinese parents residing in the US. He took a trip to China and then was excluded from entry into the US. 2. Issue: Whether a person born in the US to parents subject to the Emperor of China, but who are residents of the US automatically acquires citizenship under the 14th Amendment. 3. Holding: The 14th Amendment, while it leaves the power in Congress to regulate naturalization, has conferred no authority upon Congress to restrict the effect of birth, declared by the Constitution to constitute a sufficient and complete right to citizenship.
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iv. Today, children born in any US territorial possessions become full citizens at birth. v. Children of Unauthorized Migrants 1. 1985: In a book written by Professor Schuck and Smith argued that Wong Kim Ark had not settled the question. a. They proposed four reforms: i. more effective enforcement of existing immigration laws ii. a system of realistic, credible employer sanctions to remove the chief incentive to most illegal immigration iii. more generous legal admission policies, especially within the hemisphere, and iv. a reinterpretation of the 14th Amendments Citizenship Clause to make birthright citizenship for the children of illegal and temporary visitor aliens a matter of congressional choice rather than of constitutional prescription. 2. 1995: Statement of Prof. Gerald L. Neuman a. Nothing in the language of the Citizenship Clause, its legislative history, or its traditional interpretation, requires that the parents of a child born in the US must be permanent residents, for the child to be subject to the jurisdiction of the US. 3. 1995: In testimony before Congress, Schuck opposed pending legislation that would limit birthright citizenship to the children of citizens and permanent resident aliens a. Whatever the disadvantages of birthright citizenship, it has the great virtue of limiting the tragic effects of this problem of inherited outlawry by confining illegal status to a single generation for each family. 4. 2005: Legislation was introduced to limit birthright citizenship to children born in the US who have a parent who has US citizenship or permanent resident status. a. The bill gained 87 co-sponsors b. Jurisdiction in the 14th Amendment means that a person woes something to the state. An illegal immigrant is basically hiding form the law and trying to escape the jurisdiction of the US. He cannot be called to defend the US, to serve on a jury, etc. c. US citizenship is the birthright only of children born to US citizens and individuals lawfully resident in the US and subject to the jurisdiction thereof. 5. 2002: Comparative Citizenship Project of the Carnegie Endowment for International Peace and the Migration Policy Institute a. sought to broaden the jus soli rule b. Proposed that children who immigrate at an early age and have six years of schooling or ten years of residence be entitled to citizenship
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c. did not pertain to those whose parents were not lawfully residing. c. Jus Sanguinis i. The citizenship of children born abroad is not secured by the 14th Amendment ii. Current rules for jus sanguinis are in INA 301(c), (d), (e), (g), (h); 308(2), (4); and 309. 1. If both parents are citizens, the child acquires citizenship at birth, provided only that one of the parents had a residence in the United States at some time prior thereto. INA 301(c). 2. If one parent is a noncitizen, the citizen parent must have been physically present in the United States for a total of five, nonconsecutive years before the birth, including at least two years after the age of fourteen 3. From 1934 to 1978the child had to establish his or her own residence or extended physical presence in the United States for a specified number of years within stated period, or else lose the citizenship acquired at birth. (Condition Subsequent) a. The length of residence and the ages during which residence had to be established have been altered several times. 4. Afroyim v. Rusk (1967), pg. 45: imposed strict constitutional limits on the power of Congress to deprive persons of US citizenship involuntarily 5. Rogers v. Bellei (1971), pg. 45: held that Congress retained the power to impose such a residence requirement as a condition subsequent on persons who are US citizens by virtue of their birth to US nationals abroad. 6. 1978: Congress chose to remove all such provisions from the immigration laws 7. Today: current law relies solely on parental residence requirements, but congress did not make its amendment retroactive a. Persons who already lost their citizenship under the earlier residency requirements remain denationalized. d. Gender Discrimination and Jus Sanguinis i. Until 1934, statutory law allowed the transmission of citizenship jure sanguinis by US citizen fathers but not mothers. ii. Now, a child born abroad and out of wed-lock to a USC mom is a citizen if she has met a residence requirement being physically present in the US for a continuous period of 1 year at some point 1. If the child is born abroad and out of wed-lock to a USC Dad that child attains citizenship at birth only if: a. a blood relationship between the person and the father must be established by clear and convincing evidence; b. the father must have had US nationality at the time of the childs birth; c. the father must have agreed in writing to provide financial support until the child reaches 18; and d. while the child is under 18:
32

IV.

i. he or she must be legitimated under the law of his or her residence or domicile; ii. the father must acknowledge paternity of the child in writing under oath; or iii. the paternity of the child must be established by court adjudication. Section 309(a). iii. Nguyen v. INS (2001), pg. 48 1. The Court sustained the constitutionality of the legitimation or proof of paternity requirements 2. Two government objectives: a. the importance of assuring that a biological parent-child relationship exists b. the determination to ensure that the child and the citizen parent have some demonstrated opportunity or potential to develop not just a relationship that is recognized by the law, but one that consists of the real, everyday ties that provide a connection between child and citizen parent and, in turn, the United States. Naturalization a. History i. 1790: In the original statute, Congress prescribed that a free white alien who had resided in the US for two years, including residence of one year in any State, might be naturalized by any common law court of record, provided the person was of good moral character and took an oath to support the Constitution. ii. Nationality Act of 1940: a codification and revision of all existing nationality laws iii. Immigration and Nationality Act of 1952: now the basic statute for US immigration and nationality law 1. the racial qualifications for naturalization were completely eliminated iv. The Immigration Act of 1990: transferred authority over naturalization from the judiciary to the Attorney General. 1. The naturalization process has evolved from a judicial framework to almost an entirely an administrative one. v. 2003: The INS was abolished and power was transferred the Department of Homeland Security (DHS) 1. Administrative responsibilities are now lodged in DHSs Bureau of Citizenship and Immigration Services (USCIS). 2. DHS now has the exclusive power to make decisions on naturalization applications b. The Basic Substantive Provisions i. 14th Am: Citizen is either born or naturalized ii. Section 311-331, and 337, with special attention to Sections 312, 313, 316, 318, 319(a), and 337. Section 101(f). iii. Residence and Physical Presence 1. Section 316(a): no person shall become a US citizen by being naturalized unless: a. the person has resided continuously in the United States for five years as a lawfully admitted permanent resident
33

2.

3.

4.

5. 6.

b. during the five years immediately prior to filing the petitions for naturalization he or she has been physically present in the United States for at least half of the time and c. the person has resided within the district in which he or she filed the petition for at least three months. Section 316: Applicants must reside continuously within the US from the date of the petition up to the time of admission to citizen ship. a. A valid statutory residence prior to naturalization cannot be founded on the illegal entry into the country. b. Absence from the US for less than six months during the statutory period does not affect continuous residence c. An absence of more than six months but less than one year presumptively breaks the continuity (316(b)). i. the applicant can overcome the presumption by establishing that he did not in fact abandon his residence d. An absence for one year or more will break the continuity of residence as a matter of law i. the applicant will be required to complete a new period of residence after he or she returns to the US. Section 319: Spouses of US Citizens a. the applicant spouse must have resided continuously in the US for three years immediately before filing the petition for naturalization. i. the residence must follow lawful admission , and the applicant must live in marital union with the citizen spouse throughout this period, unless he or she is a victim of domestic violence. Section 328, 329: US Armed Forces a. applicants who have served in the US armed forces for three years or during wartime also benefit from relaxed residency rules. Physically present in the US for at least of the required time a. Exemptions: military Male: must register for the selective service between age 1825 upon obtaining a visa or LPR in order to apply for naturalization a. if not, must wait until 31 years old least 18 years old. a. Derivative citizenship: occurs by operation of law when a childs parents are naturalized. i. the child must have been admitted as a permanent resident and reside with the parent in the United States; there is no five year waiting period.
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iv. Age
1. Section 334(b)(1): Applicants for naturalization must be at

b. Child Citizenship Act of 2000: grants automatic

v.

vi.

vii.

viii.

citizenship to children adopted overseas by US citizen parents who reside in the US with the citizen parents. English Language Proficiency 1. Section 312: Applicants for naturalization must demonstrate an understanding of the English language including the ability to read, write, and speak words in ordinary usage. a. Exceptions i. over the age of fifty and have been lawfully admitted for permanent residence for periods totaling twenty years ii. over fifty-five and have been LPRs for at least fifteen years. iii. Persons who have physical or developmental disability or mental impairment. Knowledge of Civics and History 1. Section 312(a)(2): applicants for naturalization must demonstrate a knowledge and understanding of the fundamentals of history, and of the principles and form of government of the US. Good Moral Character 1. Section 316(a): naturalization applicants must establish good moral character for the five or three years preceding the date of application a. crimes of moral turpitude b. controlled substance offenses c. One big one is failure to pay child support d. Any false statements or representations given Attachment of Constitutional Principles 1. Applicants for naturalization must establish that they are attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States. 2. Several statutes enacted in 1952 automatically preclude naturalization of certain persons a. Applicants may escape the preclusion statute if more than ten years have passed since they were members of the subversive organization. b. A 1999 Amendment allows past Communist Party members to be exempt if they have made a contribution to the national security of the United States. 3. Section 314: permanently precludes the naturalization of anyone who, during the time that the US has been or shall be at war, deserts the US armed forces or leaves the country to avoid the draft and is convicted of that offense. 4. Section 315(a): non-citizens who seek or obtain exemption from service in the US armed forces on the ground that they are not citizens become permanently ineligible for citizenship, unless they had served in the military of a country that has a treaty with the US.
35

5. Schneiderman v. United States, US S. Ct. 1943, pg. 72 a. Issue: attachment to the US Constitution b. Facts: Schneiderman was affiliated with the communist

V.

party, but when he applied for naturalization, he did not disclose he was a member of the Communist Party. 12 years later, the government brought de-naturalization charges against him alleging that at the time he was sworn-in he was not attached to the US Constitution. Schneiderman testified that he was not for the violent overthrow of the government. c. Analysis: Denaturalization is a tough burden for the government, clear and convincing evidence. There is a presumption the person is not to be denaturalized. The government can be changed through peaceful means. d. Holding: Schneiderman was not denaturalized. He did not show detachment from the US constitution. ix. Oath of Allegiance 1. a sworn attachment to the US Constitution x. Naturalization Through Service in the Armed Forces 1. Noncitizens who serve in active-duty status in the US armed services during recognized periods of military hostilities need not have been permanent residents aliens in order to be naturalized (if they were in the US at the time of their enlistment), and no period of residence or physical presence is required. Naturalization Procedures a. An application for naturalization goes to a USCIS officer who examines the applicant and makes a formal determination to grant or deny. i. If the examiner denies the application, he or she must state the reasons. ii. the applicant may then request a further hearing before an immigration officer of equal or higher grade level to the examiner. iii. If the administrative hearing results ina denial, the applicant can seek judicial review. b. Biometrics c. Interview d. Swearing-in i. At swearing-in, must answer certain questions on the back of the form ii. EX: if you get arrested between the interview and the ceremony and dont admit it on the answer sheetyou can be denaturalized and then deported for the conviction of the crime. e. Price v. INS, US Ct. of App, 9th Circuit (1991), pg. 86 i. Facts: Price refused to list all organizations with which he had ever been affiliated and the district court denied his petition for naturalization. He argued that did not have statutory authority to require him to supply such a list. ii. Statute: INA section 332(a)the examination of petitioners must be limited to 1. inquiry concerning the applicants . . . attachment to the fundamental principles of the Constitution . . . .
36

2. INA Section 335(a))Within these limits, the AG can require

VI.

an applicant to aver to all facts which in the opinion of the AG may be material to the applicants naturalization . . . iii. Holding: The Attorney General has broad discretion in what questions are relevant to determining qualification or naturalization. iv. Analysis: 1. Mandel: Prices first amendment right invoke at most only limited judicial review 2. Applying this limited standard of review to the AGs decision to ask the question is appropriate because no alien has the fight to naturalization unless all statutory requirements are complied with. Loss of Citizenship a. The Naturalization Act of 1906 established a procedure to take away citizenship if a later judicial proceeding determined that the naturalization was illegally or fraudulently acquired. b. Denaturalization i. Section 340 of the Act provides for denaturalization when naturalization was 1. illegally procured a. the applicant did not meet the statutory requirements at the time of naturalization 2. procured by concealment of a material fact or by willful misrepresentation ii. Chaunt v. United States, 1960, pg. 108 1. Held that a misstatement was material if its disclosure would have justified denial of citizenship or might have led to the discovery of other facts that would warrant denial of citizenship. iii. United States v. Puerta, US Ct. of Appeals, 1992, pg. 108 1. Kungys v. United States, pg. 108 a. Facts: Kungys had obtained his permanent residence and was naturalized. In 82 denaturalization proceedings were began against him due to willful misrepresentation based on that he lied under oath when he got his LPR status and could not establish good moral character. b. Holding: Denaturalization was upheld. i. They all unanimously ruled the illegal procurement of the statute was good ii. Issue: did he satisfy the good moral character requirement? (101(a)(F)). iii. Five justices held the false testimony need not be material 1. the false testimony in itself proved lack of good moral character iv. One justice stated there should a balancing test v. Three justice held there had to be a materiality test vi. Brennans definition was the accepted definition: 1. a misrepresentation is material if it has a natural tendency to produce the conclusion
37

that the applicant was qualified for citizenship and if honest representation would predictably have disclosed other facts relevant to the applicants qualifications. a. Required proof by clear, unequivocal, and convincing evidence that the misrepresentation had this tendency and raises a presumption of ineligibility, which the naturalized citizen is then called to rebut. iv. Denaturalization is a federal district court proceeding 1. Denaturalization proceedings are initiated by U.S. attorneys, based on an affidavit prepared by DHS. INA Section 340. 2. Linnas, pg. 114 a. Facts: Resident of Estonia and came to US under the Displaced Persons Act. Linnas claimed that he never assisted in persecution and he was allowed to immigrate to the US and he affirmed under oath his statement. He was then naturalized in the 60s. In 79, he was put in denaturalization proceedings for concealment of a material fact. He was actually in charge of a concentration camp. b. Holding: He was found not to be eligible to immigrate to the US, therefore, his immigration was illegal, therefore, he could not meet the statutory requirement for an LPR. He also could not meet the requirements for an LPR due to his false testimony. c. Odd Thing: Linnas wanted to be deported to Estonia, but it had been incorporated into the Soviet Union, but the US did not recognize the incorporation. The free republic of Estonia existed in an office building in New York. d. Holding: He was deported to Russia 3. Demjanjuk, pg. 114 a. Facts: He was believed to be the notorious Ivan the Terrible and Demjanjuk was stripped of his US citizenship and the government initiated removal proceedings; and in 2005, Demjanjuk was ordered to be deported. c. Expatriation i. Involuntary expatriation: Congress also added to the nationality statutes various provisions to deprive individuals of citizenship based on specified behavior not related to defects in the acquisition process. 1. is no grant to Congress in the Constitution to conduct foreign affairs 2. Congress does have the power to determine that certain acts, if done voluntarily, cause one to denounce his citizenship. 3. There is an assumption that the sovereign, i.e., the government, can conduct foreign affairs. ii. Perez v. Brownell, S. Ct. (1958), pg. 119
38

1. Facts: Perez was born in Texas, but lived most of his life in

Mexico. He voted in a political election in 1946.


2. Rule: An act of expatriation only qualifies as such an act if it is

done voluntarily.
iii. Trop v. Dulles, pg. 125 1. The same day Perez was decided, the court struck down a

iv.

v.

vi.

vii.

viii.

section of the nationality laws that was meant to strip citizenship from those convicted of desertion from the military during time of war. a. The Court found the provision was meant to be a punishment. Nishikawa v. Dulles, pg. 125 1. The Court reversed an expatriation ruling. 2. Procedure: The lower court ruled that a dual nationals service sin the Japanese army during WWII resulted in expatriation over his claim that his service was involuntary. 3. Holding: once the issue of duress was raised, the statute required the government to shoulder the burden of proving that the expatriating behavior had been performed voluntarily by clear, unequivocal, and convincing evidence. Kennedy v. Mendoza-Martinez, pg. 125 1. Facts: at issue was the section of the statue decreeing expatriation for those who left or remained outside the US during time of war to evade military services 2. Holding: 5:4, the Court held the provision unconstitutional Schneider v. Rusk, pg. 126 1. Facts: The following year, the Court considered a provision that decreed loss of US citizenship for a naturalized citizen who returned to reside in his native country for three years. 2. Holding: The majority struck down the section and applied the understanding of the Perez standards under the 5th Amendment. a. Congress henceforth would not be permitted to distinguish between naturalized and native-born citizens for purposes of expatriation, although it could still provide for denaturalization if the original naturalization was tainted with fraud or other illegality, properly proven. Afroyim v. Rusk, pg. 126 1. Facts: Petitioner was naturalized and when he went to Israel, he voluntarily voted in an election. 2. Holding: Congress has no power to cause expatriation without the voluntary consent of the citizen. a. Must prove the voluntary act was done with the intention to denounce ones citizenship. b. Perez dealt with a birthright citizen c. Afroyim dealt with a naturalized citizen Rogers v. Bellei, pg. 131 1. Facts: Belleis mother resided in the US for more than 10 years before his birth, and thus could transmit US citizenship to him jure sanguinis. BUT, there was a also a condition
39

subsequent in that he had to come to the US and reside for a minimum of five years between the ages of 14-28. a. this did not deal with 14th amendment citizen b. dealt with a statutory citizen c. Bellei argued that under Afroyim, Congress could not deprive him of his citizenship. 2. Holding: Ruling for the Government. Congress may withhold citizenship from persons like Bellei and may prescribe a period of residence in the US as a condition precedent without constitutional question. ix. Vance v. Terrazas, S. Ct. (1980), pg. 133 1. Facts: Terrazas, born in the US, son of a Mexican citizen, acquired at birth both United States and Mexican citizenship. He executed an application for a certificate of Mexican nationality, expressly renouncing United States citizenship. 2. Holding: a. In proving expatriation, an expatriating act and an intent to relinquish citizenship must be proved by a preponderance of the evidence. b. When one of the statutory expatriating acts is proved, it is constitutional to presume it to have been a voluntary act until and unless proved otherwise by the actor. i. If he succeeds, there can be no expatriation. ii. If he fails, the question remains whether on all the evidence the Government has satisfied its burden of proof that the expatriating act was performed with the necessary intent to relinquish citizenship. x. Richards v. Secretary of State, pg. 142 1. Specific intent to renounce US citizenship may be expressed in words or ... found as a fair inference from proved conduct (Terrazas). xi. Kahane v. Shultz, pg. 142 1. Facts: Kahane was a US citizen by birth and moved to Israel and was elected to the Israeli Parliament, an expatriating act listed in INA Section 349(a)(4). Kahane communicated several times with the State Department insisting he did not intend to give up his US citizenship. 2. Holding: the declaration of intent to retain citizenship, made simultaneously with commission of the expatriating act, will suffice to preserve the actors citizenship. d. The State Departments Approach i. In 1990, the State Department adopted a new statement of evidentiary standards to be applied in expatriation cases 1. The action listed in INA Section 349(a) can cause loss of US citizenship only if performed voluntarily and with the intention to relinquishing US citizenship. The uniform standard is based on the premise that US citizens intend to retain US citizenship when they obtain naturalization in a foreign state, subscribe to routine declarations of
40

allegiance to a foreign state, or accept non-policy level employment with a foreign government. a. If the person, in performing such acts, wishes to denounce US citizenship, he or she may do so by affirming in writing to a US consular officer that the act was performed with intent to relinquish US citizenship. b. Formal renouncement in Section 349(a)(5) of the INA. 2. The premise that the person intends to retain US citizenship is not applicable when the individual: a. formally renounces US citizenship before a consular officer,; b. takes a policy level position in a foreign state; c. is convicted of treason; or d. performs an act made potentially expatriating by statue accompanied by conduct which s so inconsistent with retention of US citizenship that it compels a conclusion that the individual intended to relinquish US citizenship. Chapter Two: Foundations of the Immigration Power I. The Evolution of US Immigration Policy a. 1952: The McCarran-Walter bill passed into law as the Immigration and Nationality Act i. it consolidated previous immigration laws into one statue ii. it preserved the national origins quota system iii. it established a system of preferences for skilled workers and the relatives of the US citizens and permanent resident aliens iv. it tightened security and screening procedures II. Developments At the Turn of the Twenty-First Century a. 1996: The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA, or 1996 Act). i. Congress streamlined and accelerated the removal of noncitizens with criminal records. ii. Provided expedited removal iii. Asylum applicants for the first time face filing deadlines iv. Changed entry to admission 1. if you are not inspected and admitted into the US, different rules apply v. Changed deportation and exclusion to removal b. 2001: US Patriot Act i. abolished INS and created DHS 1. CIS 2. ICE 3. CBP (people at the airport) c. 2005: Real ID i. changed definition of terrorism ii. limited judicial review III. The Sources of the Federal Immigration Power a. Chinese Exclusion Case (Chae Chan Ping v. United States), S. Ct. of US (1889), pg. 197 i. Facts: Ping had residence in the US and received a certificate of identity in order to enter and leave the US. While he was visiting
41

China, an act was passed to supplement the moratorium excluding Chinese immigrants for ten years and stated that Chinese who also held certificates could not enter (as against the moratorium). 1. Two Challenges: a. It violated the treaty with China that allowed immigration b. It violated the Constitution that Congress did not have the authority to exclude him from the US ii. Holding: the Court upheld the enactment in that it was later in time than the treaty, the enactment reflected the present thought of the US 1. The Court recognized there was no enumerated power to exclude aliens in the constitution 2. The power to exclude aliens is the inherent power of any nation to control its territory b. The Constitutional Framework i. Enumerated Powers 1. The Commerce Power a. The Constitution authorizes Congress to regulate Commerce with foreign Nations, and among the several States. 2. Naturalization Power a. The Constitution grants Congress the power to establish a uniform Rule of Naturalization. 3. The War Power a. Grants Congress the power to declare War. b. Gives the federal government authority to stop entry of enemy aliens and to expel enemy aliens residing in the United States. 4. The Migration and Importation Clause a. The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year of 1808 i. Seems to imply the existence of such power after that year. 5. The Foreign Affairs Power a. Receives no explicit mention in the Constitution b. The attempt to build the foreign affairs powers of the federal government with the few bricks provided by the Constitution has not been accepted as successful. ii. Inherent Power 1. Nishimura Ekiu v. United States, pg. 206 a. It is an accepted maxim of international law, that every sovereign nation has the power to: i. forbid the entrance of foreigners within its dominions, or ii. to admit them only in such cases and upon such conditions b. This power is vested in the federal government 2. Curtiss-Wright, pg. 207
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a. In terms of internal affairs, the power to regulate the flow of noncitizens over the borders is inherent b. Outside the core immigration law issues of admission and expulsion, noncitizens living in the US are entitled to the protections of the First (religion, assembly, speech, press, petition government), Fourth (search and seizure), Fifth (grand jury, double jeopardy, self incrimination, due process), and Sixth (criminal prosecutionsjury, counsel) Amendments. iii. Constructional and Structural Arguments 1. There may be some source of power between enumerated and extra-constitutional power: a. The Rule of Necessity i. It is possible to infer the immigration power as a logical deduction from the structure of the Constitution and as a practical condition for its successful operation. b. A Structural Justification i. An inference of immigration power may be had by studying the structures and relationships created by the constitution. c. The Chinese Exclusion Laws and Equal Protection i. Congress has almost plenary power to control immigration ii. Yick Wo v. Hopkins, pg. 210 1. Years before the Chinese Exclusion Casethe Court held that the equal protection clause protected Chinese nationals from discriminatory enforcement of a San Francisco ordinance regulating laundries. iii. Since Bolling, it has been understood that the equal protection analysis of the Fifth (federal) Amendment area is the same as that under the Fourteenth Amendment (state). iv. Yick Wo Doctrine versus Chinese Exclusion Case 1. Chinese Exclusion Case: seminal case for the plenary power doctrine a. severely limits noncitizens constitutional rights when it comes to entering and remaining in this country 2. Yick Wo: suggests that noncitizens and citizens receive similar (but not necessarily identical) constitutional treatment in nonimmigration matters 3. Our constitutional law relating to immigration may differ from that which relates to noncitizen immigrants. d. From Exclusion to Deportation i. Deportation is sometimes used to refer to both exclusion and removal 1. Since 1996 the INA has used the term removal to refer to both exclusion and deportation. ii. Ting 1. Background: Gary Act: A statute made all Chinese immigrants deportable unless they obtained a certificate of residence.
43

2. Facts: Ting and his buddies were arrested and ordered

deported for not having certificates of residence by the district court. Writs of habeas corpus were filed in the court of appeals and they were dismissed. They then filed for certiorari. 3. Holding: The right of a nation to expel or deport foreigners, who have not been naturalized, is as absolute as the right to prohibit and prevent their entrance into the country. 4. Analysis: a. The Chinese aliens had no right to reside in the US except by permission through Congress. b. Congress at any time can withdraw the permission, right, license, etc. 5. Issue: Whether this is constitutional a. Deportation is civil, not criminal b. Immigration is often a political question and the political branches of government are the ones authorized to enforce the will of Congress. c. The Judiciary cannot express its own opinion on whether a certain piece of legislation should have been passed. 6. Dissent: a. Rejected the idea of unlimited inherent sovereign powers b. Permanent residents are on a different footing than those seeking entry into the US c. Deportation is punishment iii. Notes and Questions 1. The Justices believed that he Constitution imposed limits on the exercise of the deportation powerlimits that may not apply to the exclusion power. 2. Under current law, noncitizens may be deported a. for conduct occurring prior to their entry b. if they were excludable at the time of entry and c. for conduct occurring after the lawful entry 3. The exclusion of Chinese was extended several times and not repealed until 1948. e. Deportation and Punishment: Wong Wing v. United States i. Background: The Gary Act sentenced illegal immigrants to a term of prison before they deported them (1 year of hard labor, then an order of deportation). This law only applied to Chinese. Noncitizens were not afforded a jury trial. ii. Facts: A judge found him to be in the US unlawfully, sentenced him to 60 days hard labor and then to be deported. iii. Issue: Whether the separate sentence of hard labor is a punishment that merits a jury trial? iv. Holding: The Court struck down the provision (unanimously). Upheld the rulings in the Ping and Ting case. The person could be deported, but you cannot impose a sentence. v. Analysis: To declare unlawful residence to be an infamous crime, punishable by deprivation of liberty and property, would pass out of the sphere of constitutional legislation, unless provisions were made that the fact of guilt should first be established by a judicial trial.
44

vi. Notes and Questions 1. Wing, unlike Yick Wo, invalidated a federal statute. a. It stands for the proposition that noncitizens are members of the constitutional community, apart from their right to enter and remain in this country. 2. The government can detain an alien awaiting deportation, as long as it was in connection with deportation proceedings 3. Congress can impose criminal sanctions for violating immigration laws, but if they do, they must have due process of law. Chapter Three: Federal Agencies and Courts I. Section A. Federal Agencies a. The Department of Homeland Security and Its Predecessors i. History 1. 1940-2003: Immigration function was with the Department of Justice, through the Immigration and Naturalization Service (INS). 2. Homeland Security Act of 2002: most immigration control functions were also moved to the new Department of Homeland Security (DHS) ii. The Components of DHS 1. Adjudications or benefitsinvolves the approval or denial of applications filed by would-be migrants seeking to enter the US or to modify status here 2. Customs and Border Protection (CBP) a. Manning of the ports of entry (including sea ports) b. They inspect both people and goods and/or cargo c. The inspectors function is to examine the documents, or other evidence of entitlement to enter, presented by aliens and citizens arriving i. Initial inspection 1. Secondary inspection if a question of inadmissibility arises a. They may order you deported right then (without a judicial order) OR b. May allow you to choose to leave on your own will 2. Deferred Inspection a. they take your passport and tell you to come back for more inspection. b. You are physically present in the US, but technically still at the port of entry d. Border Patrol: man all other sections of the border beside ports of entry 3. Immigration and Customs Enforcement (ICE) a. Policemen of the immigration service b. they operate from field offices c. locate and arrest people illegally in the US d. Represent the government in deportation proceedings i. the attorneys are housed within ICE
45

e. They are involved in employer sanctions f. Involved in smuggling operations, any types of fraud in the government, etc. g. One of their functions involves the detention of aliens h. It also arranges the means of transportation for the deportation of aliens 4. Citizenship and Immigration Services (USCIS) a. Function service of DHS i. extensions of tourist visas ii. naturalization iii. petitions for spouses b. Asylum Offices i. process asylum applications c. Regional Services Centers (RSCs) where all applications are filed d. Application Support Centersequipped to take fingerprints for applications 5. The Department of Justice (DOJ) a. Immigration Judges i. Under the statute, a proceeding to remove a noncitizen must be conducted by an immigration judge. ii. In 83, the Department of Justice passed new regulations that separated the corps of immigration judges from INS and placed them in a new unit known as the Executive Office for Immigration Review (EOIR) b. The Board of Immigration Appeals (BIA) i. Overview of the BIA 1. Has existed since 21 to make recommendations to the Secretary regarding the disposition of appeals in exclusion and deportation cases. 2. In 40 is was vested with authority to issue final orders in such matters 3. The Board is not recognized by statute, it is a creature of the Attorney Generals regulation. 4. Most cases before the Board are appeals from immigration judge decisions in removal proceedings 5. Cases before the BIA are subject to further review by the AG, but this is no usually invoked. ii. Review within the DHS: The Administrative Appeals Unit 1. Two main administrative appellate tribunals now exist for immigration decisions issued within in the US: a. BIA b. Administrative Appeals unit (AAU)
46

i. it is staffed by appellate examiners, who usually are not attorneys 2. Precedent Decisionsand a Word of Warning about Relying on Statute a. Only a small fraction of appellate decisions are designated as precedent decisions for inclusion in the official reports. b. These precedents are published in a set named Administrative Decisions Under Immigration and Nationality Laws of the United States. iii. Other DOJ Units 1. The Immigration Reform and Control Act of 1986 created a system of employer sanctions to penalize those who knowingly hire undocumented noncitizens or fail to perform certain documentary verification at the time of hiring. 2. IRCA also added provisions barring discrimination based on national origin or citizenship status. 3. Allegations of employer wrongdoings are heard by the administrative law judges in the Department of Justice a. Office of Chief Administrative Hearing Officer (OCAHO). 6. The Department of State a. The Bureau of Consular Affairs i. Deal with visas 1. They are permission to travel to the US and apply for admission at the border. b. Other Units Involved i. Bureau of Population, Refugees, and Migration (PRM) ii. Bureau of Educational and Cultural Affairs (ECA) c. Regulations and Other Guidance i. The State Department publishes a Foreign Affairs Manual (FAM) devoted to interpretations and instructions relating to immigration and nationality questions. 7. Other Federal Agencies a. The Department of Labor b. The Public Health Service c. The Office of Refugee Resettlement i. The Social Security Administration Chapter Four. Admissions: Qualifying Categories and Grounds of Inadmissibility I. Immigrants
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a. Overview i. Categories 1. Four categories a. Family-sponsored immigrants; b. employment-based immigrants; c. diversity immigrants; and d. refugees i. includes overseas resettlement programs and ii. persons who obtain status through the filing of an asylum application on US soil 2. Family-sponsored immigrants a. There are four preference categories, plus a highlyfavored grouping for immediate relatives of US citizens b. Immediate relatives i. Includes spouses and children, and if the petitioning citizen is over 21, parents as well. ii. There is no visa quota iii. Child must be under 21 and unmarried. 1. includes stepchildren and legitimated children, if the qualifying relationship was established before the child reached age 18 2. includes adopted children if the adoption occurred before age 16 iv. Parent 1. The parent is not ineligible if the son or daughter is now over 21 or married, provided that the relationship was established while the offspring will satisfied the statutory definition of child v. Orphan 1. must be under the age of 16 2. must have not voluntarily abandoned parents 3. Parents must sign a waiver 4. As with adopted child, if the orphan has immigrated into the US with the adoptive parents, the biological parents cannot benefit from the orphans status vi. Adoptive Children 1. Must be under the age of 16 when adopted 2. The adoptive childe, if immigrated by adoptive parents, cannot then immigrate his/or biological parents c. Family-sponsored preference categories i. The first preference 1. provides 23,400 admissions annually for unmarried sons and daughters of US citizens 2. Unmarried children of citizens can come in as immediate relatives. 3. FB 1: unmarried sons and daughters a. unmarried and over the age of 21
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ii. Second Preference 1. allows a minimum of 114,200 admissions annually 2. spouses and unmarried sons and daughters of LPRs a. FB 2 i. FB 2A: spouses and unmarried children of LPRs ii. FB 2B: unmarried sons and daughters of LPRs iii. Third Preference 1. provides 23,400 admissions for married sons and daughters of US Citizens i. FB 2C: married sons and daughters of US citizens ii. no category for married sons and daughters of LPRs 2. includes those who cannot qualify because of marital status for immediate relative category or for first preference iv. Fourth Preference 1. FB 4: Brothers and sisters of US citizens 2. there are 65,000 admissions each year 3. the statutory definition of child is consulted to decide whether the requisite sibling relationship is satisfied v. Section 203(d) (which applies to employment-based and diversity immigration) provides that the spouse or child may be admitted in the same preference category in the same order of consideration vi. Derivative Beneficiaries 1. Their admissions are charged against the ceiling for the principals preference category 2. Section 203(d) applies to accompanying family members and also those following to join. 3. Administrative practice governing preference categories treats noncitizens as following to join at any time after the migration of the principal, so long as the family member remains a spouse or child at the time of his or her admission a. the benefits are only available only when the specified family relationship existed at the time when the principal was admitted i. after acquired spouses and children of LPRs must use the second preference
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b. Section 203(d) does not apply to a

spouse or child of those who are admitted as immediate relatives of US citizens. 3. Diversity Immigration a. Congress settled in 1990 on a permanent diversity system b. The statute employs an intricate formula, based on immigration statistics from the preceding five years, to decide which countries can share in the diversity (DV) admissions each year. c. Requirements for an individual to qualify for a DV. They must: i. have a high school education or its equivalent, or ii. within five years preceding the application, have had at least two years of experience in an occupation that requires at least two years of training or experience d. Aspirants may file only one application per year 4. Ceilings and Floors a. INA Section 201(c) guarantees a floor for the familysponsored preference categoriesa minimum of 226,000 a year. b. Unused admissions spaces in the preference categories are added to totals for the following year. c. The per-country ceilings of INA Section 202 apply only to preference immigration in the employment-based and family-sponsored categories 5. Notes on the Visa Bulletin Charts, Conversion of Petitions, and Aging Out a. Conversion i. The visa petition automatically converts to a petition in the family category that is now relevant, retaining the original priority date. b. Aging Out i. Until 2002, the pertinent date was the latest, the actual date of admission or adjustment, which maximized the chances for aging out. ii. In 2002, congress responded by changing the rules. 1. For immediate relative petitions, the childs age is now deemed to be the age at the time when the parent files the visa petition 2. For the FS-2A preference category and for derivative beneficiaries (remember Section 203(d) applies only to children, not older offspring), the rules grow more complicated. 3. The childs age is determined as of the date when the relevant category becomes current, which at present could still be as many as 11 years (for fourth preference) after the
50

petitioning process beganor even 22 years for the Philippines fourth preference. ii. Constitutional Standards for Evaluating Admission Categories 1. Fiallo v. Bell, S. Ct. of US, 1977, pg. 314 a. Issue: Whether the immigration acts defining child are supposed to encourage unification of families, whether it is discrimination that violates due process? i. For example, why let an adopted child under 16 in, but not one who is 17? b. Holding: Where congress decides what a child is, the courts have a limited scope of judicial review. i. Over no conceivable subject is the legislative power of Congress more complete than the admission of aliens. c. Notes and Questions i. The vast majority of permanent immigration today, except for refugees, begins with a petition filed with USCIS by a US citizen. iii. Family Reunification Categories 1. Immediate relatives of US citizens can immigrate without numerical limitation 2. Over half of the numerically limited immigration spaces are reserved for family members who qualify under the familysponsored preferences of INA section 203(a). 3. What Marriages are Recognized by INA? a. The validity of a marriage is ordinarily judged by the laws of the place where the marriage was celebrated. b. INA exclude proxy marriagescontracting parties are not physically in the presence of each otherunless the marriage is consummated. c. Marriages that may be valid in the country of origin may not be recognized for immigration purposes if they conflict with public policy. d. Adams v. Howerton, 9th Cir. (1982), pg. 328 i. Facts: Adams, a USC, married Sullivan, a male alien in Colorado after the expiration of Sullivans visitors visa. ii. Issue: Whether Congress intended that homosexual marriages confer spouse status under section 201(b). iii. Rule: A two-step analysis is necessary to determine whether a marriage will be recognized for immigration purposes: 1. First is whether the marriage is valid under state law 2. Second is whether the state-approved marriage qualifies under the Act. iv. Holding: Congress intended that only partners in heterosexual marriages be considered spouses under section 201(b).
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v. Analysis: This case is decided solely based on

section 201(b)the second step in the two-step analysis. e. Notes and Questions i. In 1990, Congress repealed the part of the statute that held that homosexuality was a grounds for exclusion. ii. Defense of Marriage Act: marriage means only a legal union between a man and woman and spouse refers only to a person of the opposite sex. 4. Sham Marriages a. Dabaghian v. Civiletti, 9th Cir. 1979, pg. 334 i. Facts: Dabaghian, a native of Iran married a USC in 71. In 71 he applied for adjustment of status from student status to LPR status. The adjustment was granted in 72, at which time he was allegedly separated from his wife. The AG moved to rescind the adjustment of status. ii. Rule: If a marriage is not sham or fraudulent from its inception, it is valid for the purposes of determining eligibility for adjustment of status until it is legally dissolved. iii. Holding: If he was eligible as a spouse at the time of adjustment of status, he was eligible to receive LPR status, not subject to any quota. b. Notes and Questions i. Since 1980, the Board ruled that, in the future, visa petitions would not be denied based solely on a finding that the underlying marriage is not viable. ii. The Board held that application may not be granted on the basis of marriages legally terminated as of the date that the immigration benefit is to be conferred. iii. Immigration benefits may not be granted when the spouses have legally separated under formal, written separation agreements. iv. Sham divorces are also not recognized by the BIA. 5. The Immigration Marriage Fraud Amendments of 1986 (IMFA) a. Most important provision: i. All person who obtain LPR status based on a marriage that is less than two years old at the time (whether under the second preference or as an immediate relative) receive such status on a conditional basis ii. The conditional period lasts for two years, unless DHS acts before that time to terminate the noncitizens resident status.
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iii. The conditional period counts fully toward the necessary residence period for naturalization. iv. Within the last 90 days of the two-year period, both spouses are to take the initiative to petition DHS, by filing Form I-751, to have the conditional basis removed, although under some circumstances the noncitizen may secure a hardship waiver 1. The waiver is available in such a situation depends on what tests are used by examiners in applying the good faith requirement or the extreme hardship requirement. v. DHS terminates the permanent resident status if it finds during the two-year period that the underlying marriage was improper or judicially annulled or terminated vi. If removal of the conditional basis is denied at the end of the two-year period, or no petition is filed, the noncitizen becomes deportable. b. Notes i. IMFA prevents a noncitizen petitioner who gained LPR status based on an earlier marriage from petitioning for a new spouse under the second preference unless 1. five years have passed since the petitioner attained residing status OR 2. The noncitizen establishes to the satisfaction of the AGthat the prior marriage was not entered into for the purpose of evading any provision of the immigration laws. 6. VAWA and Removal of Conditional Status a. The abuse victim can file a petition to remove the conditional basis without the anchor spouses involvement when: i. the marriage was entered into in good faith and the alien spouse was battered or subject to extreme cruelty perpetrated by the LPR or USC spouse. b. VAWApermits a battered spouse who is edible for immigration based on marriage to file a petition on her own behalf for LPR status, without the involvement of the abusive partner. i. Successful self-petitioners in the second preference (who, unlike immediate relatives, may have to wait several years for their priority date) now are routinely provided with deferred action status and work authorization so they can remain in the US until they adjust to LPR status. ii. Certain grounds for inadmissibility/deportability may be waived if the violation had a connection to the battery or cruelty. iii. INA 240A(b)(2)
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iv. Abuse victims can obtain cancellation of removal (leading to LPR status despite a violation of some ground of inadmissibility or deportability) on a less restrictive basis 1. three years physical presence in the US 2. extreme hardship instead of exceptionally extreme and unusual v. INA 237(a)(2)(E)Congress added a strict deportation ground for noncitizens convicted of a crime of domestic violence or found in violation of protection orders. c. Mail-Order Brides i. International Marriage Brokers Regulation Act (IMBRA) was enacted as part of the VAWA reauthorization of 2005 ii. Requires covered international marriage brokers to do extensive background checks on their US clients. 7. A Perspective on Immigration and Family Law a. Siblings (an introduction to the Chevron Rules for Statutory Interpretation) i. Young v. Reno, 9th Cir 1997, pg. 350 1. Facts: Young was adopted as a child by a paternal aunt in Hong Kong and was permitted to immigrate to the US because of this adoptive parent-child relationship. She petitioned to confer preferential immigration status on her four biological siblings. She was not allowed to do so, however, because Youngs adoption severed her legal relationship to her natural siblings. 2. Issue: Whether a child who was given up for adoption can seek to confer preferential immigration status on her natural siblings. 3. Holding: A sibling relationship created by an adoption does not survive the termination of that adoption for immigration purposes. ii. Notes and Questions 1. In 1999 Congress responded by extending the time during which the adoptive parents of the first child may later adopt the siblings and confer an immigration status upon them. 2. This is done by allowing later adoption up to age 18, rather than the usual age of 16. iv. Employment-Based Immigration 1. Divided into five employment-based (EB) preferences. If a certain preference is not used, within the third of fourth quarter, they will trickle down to the next preference 2. Employment-based immigration is structured with the domestic labor market very much in mind.
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3. Employers generally must demonstrate that there are no domestic workers available to perform such work and the entry of the noncitizen will not adversely affect the wage and working conditions of similarly employed US workers. 4. Labor Certificationprerequisite that must be satisfied by those entering in the EB second and third preferences. a. a second preference immigrant can avoid labor certification if he or she receives a national interest waiver. b. The LC must be secured form the DOL c. Certification establishes that a shortage of available and qualified workers exists in the noncitizens field at the place of intended employment, and that her hiring would not adversely affect USC workers. d. Those entering by virtue of a family relationship are not hindered by the labor certification requirement, even if they intend to compete with American workers. e. Process i. Program Electronic Review Management (PERM) 1. employers are supposed to make a good-faith recruitment effort to find qualified US workers 2. Employers must show they offered the prevailing wage 3. are not unduly restrictive, and 4. Interview interested US workers 5. Recruitment Phase a. obtain prevailing wage determination b. set forth job requirements c. advertise and post job opening d. prepare a recruitment report that describes the recruitment steps taken 6. The application a. LCs must be filed with the DOL on a form ETA 9089 7. Visa Petition a. Once the LC is approved, the employer as to file that document with USCIS, accompanied with a visa petition Form I-140. b. If the occupational category at issue appears on DOLs Schedule A, the employer can skip the DOL application and go on to the USCIS with the visa petition. i. Schedule Alists occupation judged chronically short of qualified US workers. ii. licensed nurses iii. physical therapists
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iv. certain noncitizens of exceptional ability in the sciences or arts. ii. Advertising and recruiting requires that: 1. The job requirements, unless proven by necessity, (1) are those normally required for the job, (2) are those defined of the job in the Dictionary of Occupational Title (D.O.T), (3) does not require a language other than English (unless if clearly required for the job, i.e., a translator). 2. For a nonstandard requirement, the employer would have to show a. it had employed a US worker for the position on those terms within the two years preceding the filing OR b. the requirements are normal to the occupation and routinely required by other employers f. First preference, EB-1A: provides roughly 40,000 numbers for priority workers, which is divided to include i. aliens with extraordinary ability in the sciences, arts, education, business, or athletics 1. EX: those who have won the Nobel prize or 2. any national or international prize 3. The individual can petition for him or herself and does not need a LC 4. Alien must show a. he intends to continue to work in his area and b. his entry will bring substantial perspective benefit to the US c. has extraordinary ability ii. outstanding professors and researchers, and 1. can show your work has had an international impact 2. The employer has to petition for the employee iii. certain multinational executives and managers 1. An individual who has worked outside of the US in a managerial or executive position who is coming to the US to work in an affiliate or subsidiary company 2. Does the employer have to petition for them? a. YES b. L1 and EB-1 g. Second Preference: provides roughly 40,000 admissions for i. The job must legitimately require a masters degree
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ii. Professionals holding advanced degrees or their

equivalent or who because of their exceptional ability in the sciences, arts, or business will substantially benefit prospectively the national economy or educational interests, or the welfare of the United States. iii. LCA approval is required iv. National Interest Waiver 1. INA 203(b)(2)(B) allows the AG to waive the requirement that a second-preference immigrants services be sought by an employer in the United States, when wavier is deemed in the national interest. 2. The waiver also exempts the individual from labor certification. 3. the person can even self-petition if they are doing work in the national interest 4. But can be tricky, because you can also just do a labor certification if that person is the only person available to do the work 5. Three prong test a. the employer must show that the noncitizen will be employed in an area of substantial intrinsic merit and b. the proposed benefit will be national in scope c. the petitioner seeking the waiver must demonstrate that the national interest will be adversely affected if a LC were required for the alien, i.e., that the alien will serve the national interest to a substantially greater degree than would an available US worker with same qualifications v. Exceptional Ability Waiver h. Third Preference i. is for professionals having only bachelors degrees, or 2 years of training, or 2 years of experience, and for skilled and unskilled workers who would fill positions for which there is a shortage of American workers (only 10,000 visas for this last group of people) ii. Roughly 40,000 admissions are available for his preference each year iii. LCA approval required i. Fourth Preference i. It is a catch-all category ii. about 10.000 annual admissions iii. for certain special immigrants which include 1. religious workers
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a. Minister of Religion b. the part of the law including religious vocation or professional occupation workers is about to sunset (Oct. 1, 2008). 2. former longtime employees of US government or international organizations 3. Applicants for returning residents 4. applicants for re-acquisition of citizenship 5. AIT employee for 15 years 6. Panama Canal Treaty employee a. certain G-4 or N retirees or derivatives 7. Certain juvenile dependents 8. Translators with US Armed Forces in Afghanistan or Iraq (Only 50+ visas available). j. Fifth PreferenceInvestors as Immigrants i. Employment Creation VisasINA 203(b)(5), (EB-5 visa) ii. Roughly 10,000 numbers for investors whose investments will create a minimum of 10 jobs for US workers (not counting the investor and his/her family) iii. The US has made it difficult to get a green card this way iv. Must invest at least $1 million in a NEW enterprise 1. this can be reduced to $500,000 for targeted employment areasrural communities or high-unemployment areas. 2. must be a NEW enterprise that creates 10 fulltime jobs for US workers v. Employment Creation Investor Visa 1. This is a conditional visa a. the employer must first file a petition with immigration b. if the petition is approved they can apply for LPR status c. If they get LPR status, the two year conditional period begins d. Before the two year condition expires, they must file another petition to extend the period 2. You can also qualify if you are saving a business a. EX: a bankrupt company k. Under the 1990 Act, labor certification is required only of the second and third employment-based preferences l. EXCEPTION: aliens with extraordinary ability (part A of the first preference) and
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II.

m. second-preference aliens given a national-interest waiver can petition for themselves n. Fourth and fifth-preference aliens may also self petition. B: Nonimmigrants a. A nonimmigrant is a noncitizen who seeks entry to the US for a specific purpose b. INA Section 101(a)(15) sets out qualifying categories for nonimmigrants i. ranges from tourists who generally get admission for six months ii. students iii. various business-related activities c. The statute place no fixed numerical limits on nonimmigrant admissions, with exceptionsmostly in H-1B and H-2B categories d. Basic procedures for a nonimmigrant visa i. the noncitizen applies for a visa at a consulate overseas 1. the visa authorizes travel to the US in order to apply for admission at the port of entry ii. Citizens of more than two dozen countries can enter the US without a visa as a business visitor or tourist up to 90 days iii. A noncitizen who has been lawfully admitted as a nonimmigrant, and who maintains that status, can change to a different nonimmigrant status under Section 248. e. The problem of immigrant intent i. For many nonimmigrant categories there is a requirement that the noncitizen have a residence in a foreign country which he has no intention of abandoning ii. Dual Intent: Limited to H1B, H4, L1, L2, E1, E2, O1 f. Foreign Students i. Three main categories: 1. F1 visas for academic study a. the student must be accepted by a school approved by the AG b. they must document they have funds or arrangement to cover their expenses for 12 months c. They have scholastic preparation to pursue the course study d. F students can seek on-campus employment if it does not displace a US resident e. SEVIS system: monitors all international students coming to the United States 2. M visas for vocational study a. must be accepted by an approved school b. have financial means to pay tuition and expenses for one year c. scholastic preparation d. language skills e. Spouses and children can come on an M-2 visa 3. J visas for cultural exchange (scholars, camp counselors, industrial trainees, students) a. J-1 visa = Fulbright program
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b. J-2: their spouses and children may accompany them as J-2 nonimmigrants c. Programs that wish to sponsor J visas must: i. be a bona fide educational and cultural exchange program ii. have at least five exchange visitors annually iii. provide cross-cultural activities iv. be reciprocal when possible v. if not government sponsored, have a minimum stay of at least three weeks (except short-term scholars) vi. provide verification of the programs legal status vii. financially stable viii. not be a program to fill staff vacancies ix. assure participants have insurance x. provide details of the selection process 4. Inadmissibility a. If you overstay your student visa or violate the visa in some way, you are inadmissible for five years b. You must return to your home country and wait five years before filing a new visa or green card application g. Business and Entrepreneurial Nonimmigrants i. B1/B2 Nonimmigrant Visas 1. Noncitizens who are visiting the US temporarily for business or pleasureB-1sconstitue the largest category of businessrelated nonimmigrants 2. A noncitizen initiates the process overseas 3. No petition on his or her behalf needs to be filed with the USCIS in the US 4. No LC is required 5. B-1 excludes noncitizens coming for the purpose of performing skilled or unskilled labor 6. Business means conventions, conferences, consultations and other legitimate activities ii. H, O, and P Nonimmigrant Visas 1. H-2AAgriculture provides a need for short-term labor a. the employer must file an LC application with the DOL b. the employer must undertake recruitment efforts 2. H-2Bis for temporary non-agricultural workers a. landscaping laborers, cleaners, housekeepers, construction workers, and forestry workers b. available only if unemployed persons capable of performing such service or labor cannot be found in this country c. the citizen must be entering temporarily to fill a temporary job (one year or less) d. H-2B nonimmigrants are admitted for up to one year, with one-year extensions possible up to a maximum of three years
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3. H-1Bcovers noncitizens coming temporarily to the US to

provide services in a specialty occupation a. this requires the equivalent of a United States bachelors or higher degree in the specialty b. the noncitizen must demonstrate that she is qualified to work in a specialty occupation c. nonimmigrants can be admitted for up to two to three years initially, extendible to a maximum of six years i. BUT if a labor certification application has been on file for more than one year for the alien OR ii. if the application has been approved and the I140 immigrant visa petition is approved iii. it is possible to obtain either 1 or 3 year additional extensions d. a noncitizen may come to the US as an H-1B nonimmigrant and lawfully seek to become a permanent resident e. The employer must file an LCA and show i. it filed the LCA ii. DOL approval is not required iii. prove it recruited and posted the position iv. prove the job was offered at the prevailing wage v. wont adversely affect US workers f. Non-profit research institutions and colleges not subject to cap i. other non-profits are subject to the cap g. STEM Jobs (science, technology, Engineering, Mathematics) have an easier time getting this visa h. Cap of 65,000 i. Exceptions 1. employees of institutions of higher education or affiliated nonprofit entities, or nonprofit or governmental research organization do not count toward the cap 2. Up to 20,000 H-1B workers with at least a masters degree from a US institution of higher education are also exempt. i. Fees i. $1500 to file an initial petition for an extension of stay, or to hire an H-1B worker from another US employer ii. $750 for employers with 25 or fewer full-time equivalent workers employed in the US. iii. Fraud prevention and detection fee of $500 for H-1B and L nonimmigrants j. Singapore and Chile exceptions 4. H4 Visa a. Dependents of H1B holderscannot work! 5. I Visa a. International Media with credentials
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6. Q Visa a. Industry exchange visas b. Cannot be extended 7. K1 Visa a. the Hybrid visathe one nonimmigrant visa that is a nonimmigrant visa because when you apply for it you get it for a limited period of time, BUT you are an intended immigrant b. for fiances of US citizens and their children under age 21 c. they must be intending immigrants d. K3 Petition 8. O and P nonimmigrants a. O Category i. requires extraordinary ability in the sciences, arts, education, business, or athletics as demonstrated by sustained national or international acclaim ii. alien must have critical skills and experience that cannot be performed by other US citizens b. P CategoryPerformers and athletes i. an alien with a foreign residence of which he does not intend to abandon who has athletic ability or is in an entertainment group and seeks to perform as an artist or entertainer individually or in a group. c. A person may come to the US as an O or P nonimmigrant and at the same time, lawfully seek to become a permanent resident. 9. L Nonimmigrant Visas a. Intra-company transferees b. the person must render his services . . . in a capacity that is managerial, executive, or involves specialized knowledge c. The employer must file a preliminary petition with DHS i. large corporation meeting certain requirement relating to size and prior L-1 usage may file blanket L-1 petitions rather than petitions for individual noncitizens d. L1A: Intracompany Transferee Managers or Executives i. Same company, affiliate, or subsidiary of the foreign company that has employed the alien in a managerial or executive position for at least one year in the three years preceding the transfer to the USA ii. Maximum of 7 years iii. L2 spouses can have employment authorization iv. Can lead to EB1 multinational manager/executive immigrant visa petition e. L1B: Specialized Knowledge transferee i. Proprietary knowledge of company operations, techniques, etc. ii. 5 year maximum
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10. a. b. c. d. e. f. 11. a.

b.

c. d. e. f. g.

iii. will not lead to EB1 unless position in the USA becomes managerial one with L1A obtained before immigrant visa petition is filed; iv. Generally means labor certification application is required OR the employee is sent back to home country TN Visa Created as a part of NAFTA Grants employment visa for up to one year Must be a Mexican or Canadian Citizen Some job categories dont require a bachelors degree: i. registered nurse Employer has to pay a training fee between $700-$1500 The TN visa can be renewed indefinitely E Nonimmigrant Visas The United States and the noncitizens country of nationality must have an international agreement under whose terms an E nonimmigrants seeks to carry on activities in this country i. The nationality of the accompanying spouse or children is immaterial to their E status 1. With L and E visas, the spouse and children of the petitioner can accompany him on an L-2 or E visa a. the kids can go to school b. the spouse can get a work authorization c. H-7 spouses have to volunteer d. Divorce = termination of the visa ii. Nationals of Australia and Sweden may enjoy E-1/E2 benefits provided reciprocal benefits are extended to US citizens iii. The US has entered in treaties with about 80 countries authorizing E-1 trader and E-2 investor classification to their nationals An E nonimmigrant may be admitted for up to two years initially, with two-year extensions indefinitely so long as the investment or trade is ongoing i. majority of the ownership of the company and of the trade has to come from the qualifying country Advantage over H-1B and L: they are subject to a five, six, or seven-year cap E visas do not require a preliminary petition by a sponsoring entity in the US The noncitizen initiates the process by applying for an E visa at a consular overseas, or by applying for a change of nonimmigrant status in the US. E status permits the alien to engage in qualifying trade or investment and permits incidental activities and an indefinite stay. E-1Treaty Trader Visa
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III.

i. designated for a treaty trader ii. Solely to carry on substantial trade, including trade in services or trade in technology, principally between the US and the foreign state of which he is a national. iii. The trade must already exist at the time classification is sought iv. Must be engaged in an executive or supervisory capacity or v. Have special qualifications essential to the enterprise h. E-2Immigrant Investment Visa i. designated for a treaty investor ii. Bilateral investment treaties (BITs) between the US and other countries are recognized as friendship, commerce, and navigation (FCN) for E-2 authorization. iii. must invest a substantial amount of capital in an enterprise which he will develop and direct and is not a marginal enterprise entered into solely to earn a living iv. Solely to develop and direct operations of an enterprise in which he has invested, or of an enterprise in which he is actively in the process of investing, a substantial amount of capital . . . . v. May lead to or be precursor for filing of EB5 employment creation investor visa petition IF the total amount invested is $1,000,000 in a NEW business that creates 10 new full time jobs for American workers (or $500,000 in rural areas, high unemployment areas, or designated enterprise zones). Section D: Inadmissibility Ground a. History and Overview, Including the Line Between Inadmissibility and Deportability i. What were once known as exclusion grounds are now called inadmissibility grounds ii. The key question is whether the noncitizen has been admitted or instead is seeking admission iii. Inadmissibility grounds apply to any noncitizen who has not been admitted into the US iv. Deportability grounds apply only after a noncitizen has been admitted v. With the 1996 amendments, clandestine entrants (EWIEntry Without Inspection) gain no advantages over the noncitizen who presents himself for inspection at the border or port of entry. vi. The 1996 Act added an inadmissibility ground for an alien present in the US without being admitted or paroled, or who arrives in the US at any time or place other than as designated by the AG.

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vii. Section 101(a)(13)(C)specifies a general rule that an alien lawfully admitted for permanent residence is not regarded as seeking admission. 1. EXCEPTIONS a. Alien abandons or relinquishes status b. Absent from US more than 180 days (6 months) c. Engaged in illegal activity after departing the US d. Left US while in removal proceedings e. Is inadmissible under 212(a)(2) unless waived by 212(h) f. Attempts to enter outside a POE or was not admitted after inspection viii. INA 212(a) contains the inadmissibility grounds b. Crimes (and the Definition of Admission) i. A person convicted of, admits committing, or admits the essential elements of: 1. a crime of moral turpitude OR 2. violating any laws or regulations relating to foreign substances ii. is inadmissible iii. Prior to the admission, the alien must be provided with the law and the essential elements of the crime, then he can be found inadmissible under the law iv. if the crime was committed under the age of 18 and more than 5 years prior to the application of admission, it will not count against admission v. Juvenile proceedings are not criminal, they are civil and cannot be used for inadmissibility vi. Moral Turpitude 1. Conduct which is inherently contrary to the accepted rules and morality of US society 2. malum en se vii. Political crimes are not inadmissible offenses viii. Multiple Convictions 1. two or more offenses that can arise from a single scheme of criminal conduct as long as the aggregate sentence is five years or more = inadmissible no matter the level of the crime ix. Other inadmissible people: 1. Traffickerswhether or not there is a conviction 2. People who kidnap USC children and take them to a foreign country 3. People who practice polygamy 4. Money laundering 5. Diplomats inadmissible until he/she submits himself to the jurisdiction of the US 6. Aggravated Felonies are a ground of deportability, but are not expressly listed in section 212 as a basis for inadmissibility 7. Citizens from countries who do not accept their deported citizens 8. Unlawful voters a. Same exception as those who make claims to false citizenship:
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i. Both parents USCs and reasonably though he/she was a USC x. Bars Based on Other Immigration Violations 1. INA 212(a)(9)(A) a. Standardized the length of the bars for various classes of persons removed b. Look at these provisions and take note of the bars to admission for people who have been removed c. Deported Once5 year bar to reapply for admission d. Deported a second time20 year bar before you can reapply for admission 2. The 1996 Amendments adopted three provisions to impose more serious consequences for a prior unlawful stay. 3. INA 212(a)(9)(B) a. A noncitizen who has been unlawfully present for a single period of more than 180 days but less than one year, and then voluntarily departs, is inadmissible for three years b. A ten-year bar applies to any noncitizen who has been unlawfully present for a single period of one year or more, triggered once the person departs or is removed. i. Exceptions: 1. Extreme hardship waivers only to spouse or parent 2. Excludes children c. INA 212(a)(9)(B)(ii): Unlawful presence covers persons who either entered without inspection or stayed beyond the expiration of a nonimmigrant admission i. A nonimmigrantother than an overstayerstarts the 180-day clock only after receiving a governmental notification that he conditions have been violated. ii. This does not apply to noncitizens in the US if they have not departed the US after accumulating 180 days or one year of unlawful presence. 4. 212(a)(9)(C) a. A noncitizen is inadmissible who has been unlawfully present for an aggregate period of more than one year or has been ordered removed, and thereafter enters or attempts to enter without being admitted i. this bar is permanent, but is waivable after ten years 5. Section 222(g) a. A noncitizen admitted on a nonimmigrant visa and stays longer than authorized, that visa is void at the conclusion of his authorized period of stay i. he is not necessarily barred from admission, but must always get a new visa for each new admission c. The Public Charge Provision

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i. The law provides for deportation of any alien who, within five years

from the date of entry, has become a public charge from causes not affirmatively shown to have arisen since entry. 1. A noncitizen is deportable on this basis only if (1) the public assistance program imposed on the alien or other persons an obligation to repay the agency, and (2) the agency had actually demanded reimbursement but (3) had not been satisfied. ii. BUT, the public charge inadmissibility ground continues to play a significant role in disqualifying applicants for visas 1. To overcome this ground of inadmissibility, the petitioner must submit an affidavit of support 2. It is a contract between the petitioner and the person who signed the affidavit of support a. the government can ask you for reimbursement if the petitioner becomes a public charge and can sue to recover the money 3. The sponsor signing the affidavit would be deemed to be available to the noncitizen beneficiaries, for purposes of determining eligibility for the assistance 4. Congress decreed that the sponsor must be able to show an ability to support his or her own household plus all sponsored immigrants at a minimum of 125 percent of the federal poverty line for the entire period of enforceability a. The sponsors income and assets may be counted b. The affidavit is enforceable until the sponsored immigrant is credited with work for 40 Social Security quarters (about 10 years of employment). 5. Generally, the 1996 Welfare Act bars future legal immigrants from any federal means-tested public benefitsfood stamps, SSI, and nonemergency Medicaidfor five years iii. Other economic grounds for inadmissibility 1. EB 1 and 2 visas: Labor Certification Applications 2. US citizens who renounce citizenship solely to avoid taxation = inadmissible 3. Medical students must be from an accredited medical school and must pass an English proficiency test d. Public Health (INA 212(a)(1)(A)(i)) i. Background 1. If you have a communicable disease, you cannot be admitted a. 8 diseases appear on the list b. they are mainly looking for tuberculosis 2. On July 30, 2008 HIV was removed from the statute 3. The 1996 Act added a new inadmissibility ground that requires immigrants to document vaccination against certain vaccinepreventable diseases 4. Mental or physical disorder combined with a threat to society (can be based on past mental or physical disorder and threat if it is likely to recur) 5. Nonimmigrant waivers are possible, but strict limits are placed on the duration of admission when the waiver is granted
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6. 1 DWI within three years OR 2 DWIs at any time = inadmissible 7. Drug abusers and drug addictsdefined in the statute as the non-medical use of substances listed in section 202 of the Controlled Substances Act. a. In some cases, a single or casual use of the drug can make you inadmissible b. Normally, the consulate is looking for any use within the last three yearsunless you were a habitual user more than three years ago e. National Security and Foreign Policy i. Terrorist activitiesgrounds for inadmissibility ii. 3 parts 1. If the AG knows or has reason to believe the person seeking admission will participate in terrorist activities = inadmissible 2. Any other unlawful activityapplies to members of organized crime groups, etc. 3. If people come to overthrow the US government iii. The statute sets out what terrorist activities are and gives definitions iv. US PATRIOT ACT 1. Set a timetable for the completion of a comprehensive entryexit monitoring system that could speedily identify nonimmigrant overstays 2. mandated the inclusion of biometric identifiers on a variety of documents and records v. Homeland Security Act 1. Abolished INS and moved its functions to DHS vi. REAL ID 1. requires states to standardize and tighten up the issuance of state identity documents f. National Security and Inadmissibility over the Last Quarter Century i. As part of the Immigration act of 1990, Congress finally repealed provisions mandating the exclusion or deportation of anarchists, members of the Communist Party, and other totalitarian parties ii. Those grounds were replaced with the removal grounds based on terrorism and foreign policy findings iii. Membership in a Communist or other totalitarian party remains a ground of inadmissibility, but only as applied to persons coming as immigrants (INA Section 212(a)(3)(D)). g. Foreign Policy Grounds of Inadmissibility i. INA 212(a)(3)(C) 1. The foreign policy provision establishes a clear standard for foreign policy exclusions 2. This provision authorizes the executive branch to exclude aliens for foreign policy reasons in certain circumstances a. Exceptions: i. An alien who is an official of a foreign government or a purported government, or who is a candidate for election to a foreign government office (and who is seeking entry into the United States during the period immediately prior to the election) would not
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be inadmissible under this provision solely because of any past, current or expected beliefs, statements or associations which would be lawful in the United States. ii. The second exception, which applies to all other aliens, would prevent exclusion on the basis of an aliens past, current or expected beliefs, statements or associations which would be lawful within the United States unless the Secretary of State personally determines that the aliens admission to the US would compromise a compelling US foreign policy interest, and so certifies to the relevant Congressional Committees iii. Aliens who would previously be excludable because of membership or affiliation with the Communist party, but who are no longer excludable are not excludable under the new foreign policy grounds. 3. The Ruiz-Massieu Case a. The BIAs major precedent discussing the foreign policy grounds of removal b. Facts: the US government intended to deport RuizMassieu, a former Deputy Attorney General of Mexico, to his native country. c. Holding: The IJ found that the Service failed to show what it is about the respondents presence here that caused the Secretary to believe that our foreign policy would be affected d. Analysis: The Secretary must have reasonable ground to believe that the aliens entry or proposed activities, in the case of the exclusion (inadmissibility) provision, or presence or activities in the US, in the case of the deportation provision, would have potentially serious adverse foreign policy consequences. h. Terrorist Grounds for Inadmissibility i. The 1990 Act defined terrorist activity in terms of the violent acts committed or planned, without reference to their motivation. ii. This definition allowed no possibility for an individual to show that his act was done in a good cause iii. AEDPA added section 210 to the INA and established a procedure for the formal designation of terrorist organizations by the Secretary of State, now known as Tier I iv. The PATRIOT Act designated a second form of designation (Tier II) is effective only for purposes of applying the immigration provisions and does not trigger criminal sanctions or asset forfeiture. i. Material Support to Terrorism i. Matter of SK, 2006, pg. 570 1. Facts: Respondent faces persecution if returned to Burma. In 2001, respondent donated money to the Chin National Front. Her temporary work visa in Singapore was about to expire and she could not return to Burma, so she fled to the US to request
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asylum. She was statutorily barred from asylum and from withholding of removal. 2. Statute: The statute requires only that the provider afford material support to a terrorist organization, unless the actor did not know, or have reason to know, that the organization was a terrorist activity. 3. Holding: Respondent is statutorily ineligible for asylum and with holding of removal for providing material support to a terrorist organization. j. Refugees, Duress, and Waivers i. The governments broad reading of the material support bar has had a dramatic impact on asylum cases and refugees. ii. The government has maintained that duress is no defense iii. The executive branch decided to use the waiver authority linked to the terrorism bar, INA section 212(d)(3)(B). 1. It began this process through three waivers issued for discrete groups of a few thousand refuges from Burma and Thailand 2. The material support bar was rendered inapplicable, with certain qualifications, to support given to eight specific named groups 3. A ninth waiver was more generic, covering material support provided under duress to any tier III organization. a. The determination will be made by USCIS in consultation with ICE b. When determining whether material support was provided under duress, the following factors, among others, may be considered: i. Whether the applicant reasonably could have avoided, or took steps to avoid, providing material support ii. The severity and type of harm inflicted or threatened, iii. To whom the harm was directed, and iv. In cases of threats alone, the perceived imminence of the harm threatened c. Additional factors include: i. The amount, type and frequency of material support provided ii. The nature of the activities committed by the terrorist organization iii. The aliens awareness of those activities, the length of time since material support was provided, iv. The aliens conduct since that time iv. Designated Terrorist GroupsGuilt by Association? 1. Advocates have contended that provisions like section 212(a) (3)(B) impose guilty by association, in violation of the First Amendment a. Courts have ruled that regulation of material support warrants only intermediate scrutiny under the First amendment
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IV.

k. Waivers for Grounds of inadmissibility i. 212E 1. Exchange visitor visa (J1 visa)if they are subject to the 2-year residency requirement, before they can change visas to an H visa or before they can seek LPR statusthey have to go and be present in their foreign country for two years: 2. Waiver a. If a government agency requests the waiver b. Exceptional hardship to spouse or child who is an LPR or USC c. Persecution in home country d. The foreign ministry of the home country writes a no objection letter for the two year foreign residency requirement ii. 212Gpeople inadmissible under the health requirements 1. Must show you have spouse or an unmarried son or daughter who are USCs or LPRs 2. Vaccination may be waived a. If you get the vaccination at the port of entry b. The medical panel certifies the vaccination is not needed c. Cant be vaccinated due to religion or moral grounds 3. There is no waiver for the drug abuser or drug addict a. They make you wait for three years, then after that you are not classified at a drug abuser iii. 212Hcriminal grounds 1. Waiver if there is an extreme hardship to spouse, son, daughter, parent who is USC or LPR 2. If the crime is a violent crimethe person may have to show extraordinary circumstances 3. More than 15 years have passed 4. Admission would not be contrary to national security 5. The person has been rehabilitated iv. No waiver available for persons convicted 1. Murder 2. Criminal and tortuous acts 3. Any controlled substance crime except of a single offense of possession of marijuana of 30 grams or less of marijuana v. If an alien who has previously been granted LPR status and is convicted of an aggravated felonyno 212h waiver. 1. Does not apply to non-LPRsif you are here on a tourist visa you are not inadmissible 2. A nonimmigrant can have an aggravated felony and still obtain LPR status vi. 212I 1. Waiver for inadmissibility due to fraud or misrepresentation 2. Spouses or kids of LPRs or USC upon showing extreme hardship to the USC or LPR parent or spouse Judicial Review of Immigration Decisions a. In 1961, Congress enacted section 106, the first statute to govern review of exclusion and deportation orders.
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b. The Antiterrorism and Effective Death Penalty Act of 1996 i. Section 242 eliminates separate systems of judicial review for exclusion and deportation orders. ii. There is now a single scheme for virtually all removal orders iii. District courts no longer had habeas jurisdiction over removal orders and everything was consolidated in the circuit courts. iv. They are reviewable in the federal courts of appeals (circuits courts) under the Hobbs Act procedure in section 242(a)(1) 1. Under section 242(b), review of the court of appeals is obtained by filing a petition for review with the court of appeals for the circuit in which the immigration court proceedings were completed. v. It removed from federal judicial review claims by individuals convicted of certain federal offenses vi. Judicial review of agency decisions follow the Administrative Procedure, which establishes a presumption that administrative actions are reviewable. 1. The APA also creates a cause of action for non-monetary damages for an individual who suffers a legal wrong or who is adversely affected by agency action. 2. APA review would be the avenue to challenge, for example, a finding that the plaintiff was ineligible for adjustment of status. vii. M/T: all review is placed on circuit courts for final orders c. Limiting Judicial Review i. Discretionary Relief 1. Section 242(a)(2)(B)(i) bars judicial review of any judgment (final order) regarding the granting of relief under the waiver provisions in section 212(h) and 212(i), cancellation of removal, voluntary departure, and adjustment of status. 2. (ii) bars judicial review of any other decisions or actions that are specified under Title II of the INA. a. This does not include Title I (definitions) or Title III (concerns Nationality and Naturalization) 3. This statute does not strip courts of the authority to review a decision if discretion is authorized by regulation rather than the INA itself. 4. Try to find some way to appeal a matter of law as opposed to a matter of discretion, examples: a. Whether or not the alien is deportable under the statute (not whether or not he should have gotten a waiver) b. Whether the judge has the authority under Title II to, for example, grant a continuance when there is a visa application in process. ii. Review Standards 1. Section 242(b)(4) sets deferential judicial review standards. a. Administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary b. A decision that an alien is not eligible for admission to the US is conclusive unless manifestly contrary to law.
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c. For asylum, the standard is that the AGs discretionary judgment whether to grant asylum shall be conclusive unless contrary to the law and an abuse of discretion. iii. Injunctions Against Removal 1. Section 242(f)(2) limits a courts power to issue a permanent injunction against removal. iv. INA 242(g) 1. The provision applies only to three discrete actions that the AG may take: a. Decision or action to commence proceedings b. Adjudicate cases, or c. Execute removal orders v. Exhaustion of Administrative Remedies 1. 242(d)(1) provides: A court may review a final order of removal only if . . . the alien has exhausted all administrative remedies available to the alien as of right. vi. Removal based on Criminal Convictions 1. AEDPA section 440(a) provided: a. Any final order of deportation against an alien who is deportable by reason of having committed certain crimes, including aggravated felonies and controlled substance offense, shall not be subject to review by any court. 2. Section 440(a) was OVERRULED by INA section 242(a)(2)(C) a. Federal appeals courts rejected 440(a) and stated that aliens still have access to federal courts on a petition for a writ of habeas corpus. b. Jurisdiction does not exist to review final removal orders for any alien removable on the basis of most crime-based deportability grounds. vii. Habeas Corpus Review 1. AEDPA repealed former INA section 106(a)(10), under which any alien held in custody pursuant to an order of deportation may obtain judicial review by habeas corpus. 2. BUT, AEDPA did not mention the general habeas corpus statute in 28 USCA Section 2241. a. Writs of habeas corpus may be granted by the Supreme Court, the district courts and nay circuit judge b. It extends to a prisoner in custody under color or by color of the authority of the US or c. In custody in violation of the Constitution or laws and treaties of the US 3. INS v. St. Cyr, US SC, 2001 a. Holding: We conclude that habeas jurisdiction under section 2241 was not repealed by AEDPA and IIRIRA d. The Real ID Act i. Revised the system for court review of immigration decisions ii. Re-established petitions for review in the courts of appeals as the principal vehicle for court review of final removal orders and certain other immigration decisions by the government
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iii. The Real ID Act expressly mentioned that habeas corpus jurisdiction, mandamus jurisdiction, and jurisdiction under the All Writs Act no longer exists for review of removal orders iv. Chen v. Gonzales, US Ct. of App, 2d Cir., 2006, pg. 1169 1. Facts: In her removal hearing, petitioner alleged past and future persecution based on her opposition to the Chinese family planning policy since she was forced to undergo an abortion. She fled the US and sought asylum. 2. Holding: The petitioners challenge is merely an objection to the IJs factual findings and the balancing of factors in which discretion was exercised. We dismiss the petition for review of the denial of asylum because we lack jurisdiction to hear it. e. Immigration Habeas After the Real ID Act i. The REAL ID Act significantly expanded court of appeals jurisdiction. ii. Most of the review that was available via habeas before the REAL ID Act must take place through petitions for review in the courts of appeals. f. Timing of Review in an Individual Case i. No more than 30 days after the final immigration court order, you must file a claim with the circuit court ii. Section 242(a)(1) makes the petition for review in the courts of appeals the sole and exclusive procedure for reviewing removal orders. iii. INA 242(b)(9) consolidates for review all questions of law or fact arising from any action taken or proceeding brought to remove an alien from the US. g. Conclusions i. INA section 242 now sets out 1. A general scheme for judicial review via petitions for review in the federal courts of appeals 2. A repeal of habeas corpus for most challenges that noncitizens might raise in immigration cases except: claim regarding the legal immigration status of the alien 3. Ostensible bars to judicial review for certain categories of persons or issues, but 4. Exceptions to those bars for constitutional claims and questions of law. h. Notes i. In some areas, the circuit courts have to give deference to the agency 1. If the agency has interpreted the statute in a certain way, there has to be deference ii. In other areas, the circuit courts do not have to defer to the agencys precedent. Chapter Five: Admission Procedures V. Section A: The Constitutional Requirement of Due Process a. Congress has been held to have the ability to decide what the due process rights are for an alien who is denied entry into the US. b. Knauff v. Shaughnessy, pg. 591 i. The rights an alien has are whatever congress allows an alien to have.
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ii. Aliens have no right to enter the US, and therefore have no right to

challenge a decision that they may not enter.


iii. The exclusion of aliens is an inherent right of the sovereign. c. The Japanese Immigrant Case, Yamatay v. Fisher, pg. 594 i. A person who has been admitted can have that admission revoked. ii. But the court found that an alien must be given notice of the charges

and the right to respond. iii. The procedures used in deportation proceedings are subject to constitutional review, but the substantive constitutional grounds are not subject to due process review. iv. If the government decides that any alien present w/o consent of the attorney general is deportable, that cannot be challenged. v. You can only challenge the procedures used to enforce the law. vi. Notes and Questions 1. Procedural due process cases generally pose two distinct questions a. Does the due process clause apply, so that the individual is entitled to constitutional review of the sufficiency of the procedures? b. If so, what process was due for the particular type of decision making at issue. c. Yamatayadeportation proceduresat least for lawfully admitted noncitizensmust conform to the due process clause. d. Kwong Hai Chew v. Colding, pg. 598 i. Facts: A sailor had been in the US for a long time but was then denied admission after having been out to sea. ii. Analysis: the court distinguished Knauf in that Knauf was a firsttime applicant for admission, while Chew was a permanent resident w/ many ties to the US. 1. For purposes of constitutional rights, his status was assimilated to that of an LPR. 2. An LPR who is physically present in the US enjoys all the protections of the 5th amendment. 3. This does not mean that Chew cannot be deported, but at least he must be given notice of the charges and right to a hearing. 4. Law applies to exclusion of aliens, not deportation of aliens. e. Shaughnessy v. United States Ex. Rel Mezei, pg. 602 i. Facts: A longtime resident of the US leaves to visit his mother in Romania. In order to get to Romania he had to go through Hungary, where he was detained b/c Romanians and Hungarians hate each other. He was detained in Hungary for 20 months, then when he finally got an exit visa, he got detained at Ellis Island. Mezei says he'll go but no country will accept him. He finally filed a habeas petition challenging his detention and exclusion. ii. Holding: The court found that due process for excludable aliens is whatever congress says it is. Neither the fact that he was a returning resident nor that he faced indefinite detention made any difference. iii. Notes
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1. Mezei can be read to stand for the fact that clandestine

entrants receive full due process rights in deportation proceedings. 2. The BIA ultimately decided that, at least for purposes of allocating the burden of proof in removal proceedings of any kind, a noncitizen would be treated like Chew whenever he presented a colorable claim to returning lawful resident alien status. f. Landon v. Plasencia, pg. 614 i. Facts: Placencia was an LPR from El Salvador whose husband was a US citizen and she had a few us citizen kids. They decide to drive down to Mexico. Upon returning to the US, Placencia attempted to bring in a few aliens who were unauthorized with false documents. She gets her charges the same day she gets detained and her hearing is less than 24 hours later. Placencia argues that she should have been placed in deportation rather than exclusion proceedings. ii. Holding: The court agreed that Placencia was entitled to due process. iii. Analysis: Were the procedures employed constitutional? 1. O'connor employed a balancing test. What does the alien have to lose v. the interest of the government. 2. The court held that this determination could be in deportation proceedings and not necessarily in exclusion. 3. SC remanded to ct of app which remanded to district ct to decide whether the procedures used in Placencia's case met the standards of fairness under due process standard. iv. Notes and Questions 1. Plasencia, Mezei, and Fleuti a. Plasencia distinguishes Mezei, but does not overrule it. b. Henceforth, full due process entitlement seems to be the norm for nearly all returning permanent residents, even those seeking admission and Mezei marks an ill-defined exception. c. The Court says only that a permanent resident may lose his protected status if his absence is extended. This presumably provides more protection than Fleuti. d. Fleutithe Supreme Court found that a noncitizen was not making an entry when returning from a temporary absence that was not meaningfully interruptive of permanent residence. e. In Plasencia, the Court held that even if Maria Plasencias trip to Mexico fell outside the Fleuti exception, she was still entitled to procedural due process protection as a returning permanent resident. f. As amended by the 1996 Act, INA 101(a)(13) says that a returning permanent resident is not seeking admission unless certain facts are present: i. A continuous absence in excess of 180 days (6 months),
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VI.

ii. abandonment or relinquishment of the permanent resident status, or iii. the commission of a crime that would make a noncitizen inadmissible. Section C. Modern Admission Procedures a. Nonimmigrant Admissions i. Nonimmigrant Visas 1. The noncitizen bears the burden of proving that he qualifies for the visa 2. The consular officer may require any kind of documentary support she deems necessary 3. If the consular officer finds that any of the inadmissibility grounds apply, she may deny the visa or assist with a waiver application ii. Exceptions to the Visa Requirement 1. Canadian nationals 2. As of 2007, nationals of 27 countries are eligible for a 90 day nonimmigrant visa. 3. All entering under this visa waiver program waive all rights to extend their stay, to change nonimmigrant status, or to adjust to permanent resident status. iii. At the Port of Entry 1. Noncitizens typically fill out a Form I-94 card, the ArrivalDeparture Record, before arriving in the US. 2. Upon admission, the inspector keeps the upper portion of the I94 card and gives the nonimmigrant the bottom portionwith both portions stamped and endorsed. 3. Most work-authorized noncitizens receive a uniform, counterfeit-resistant card known as the Employment Authorization Document (EAD), form I-766, with a photograph and hologram. 4. The length and type of actual admission will be determined by what is on the I-94. b. Immigrant Admissions i. To secure status as a LPR, first a visa petition is generally required. ii. There are two paths after it is approved: 1. Obtain an immigrant visa at a US consulate and then travel to the US 2. Become an LPR through adjustment of status while remaining in the US. iii. Filing a Visa Petition 1. Denial of a visa petition is usually subject to administrative review upon the petitioners appealby the BIA in family sponsored cases and by the DHS Administrative Appeals Office in the employment-based categories. 2. Many courts have held that the administrative decision on a visa petition is subject to judicial review. iv. After a Visa Petition Is Approved 1. The visa petition is forwarded to the State Departments National Visa Center (NVC).
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2. Must obtain from sponsors the executed Affidavit of Support Forms 3. The NVC will send the approved petition to the appropriate USCIS office inside the United States. 4. Noncitizens are ordinarily expected to complete the visa process at a U.S. consulate in their home countries. 5. A visa will be available if either a priority date is current or if the noncitizen is an immediate relative of a US citizen. 6. USCIS approval of the visa petition does not mean the applicant has been found admissible. 7. If the consular officer finds the applicant admissible, she issues an immigrant visa, valid for 6 months. 8. These documents must be presented in a special envelope to the admitting immigration officer at the port of entry. 9. If that officer finds no disqualifications upon his inspection, he will keep the immigrant visa, make a notation of admission as a lawful permanent resident in the immigrants passport, and forward the necessary papers of the issuance of the Permanent Resident Card. 10. If the permanent resident plains to leave the US, she may do so and upon return is counted as a special immigrant (otherwise she might be double counted against quotas). 11. It is important that she take along proof she is a returning LPR. 12. If she is gone from the country no longer than 12 months, the green card may be used as the needed re-entry permit. 13. If gone longer, the LPR may be regarded as seeking admission to the US. c. Adjustment of Status i. Historical Background 1. Section 245 authorizes adjustment of status from nonimmigrant to immigrant for noncitizens who meet certain requirements. 2. The whole process can be carried out in the US. ii. Overview of Section 245 1. Adjustment of status is allowed only when an immigrant visa is immediately available to the applicant as of the filing date of the adjustment application. 2. Departing the US is treated as abandoning the adjustment applicationthe person could have trouble gaining readmission on the earlier visa, owing to the nonimmigrant intent doctrine. 3. The agencies developed a procedure where an applicant could apply for a grant of advance parole, providing solid assurance that they can return to the US and be paroled in, without jeopardizing their adjustment application or eligibility for work authorization. 4. DHS now essentially expects that adjustment applicants will need advance parole. 5. As of August 2007, USCIS charges a single fee ($930) to adjustment applicants that covers as well all applications for
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advance parole and work authorization for however long the application is pending. 6. Through this process, although the noncitizen is physically within the US, he is considered as though he were at the border applying for admission. 7. Factors to be considered: family ties in the US, hardship in traveling abroad, length of residence in the US, preconceived intent to remain, and any repeated violations of immigration law. iii. Adjustment Under Section 245(a) and (c) 1. The noncitizen must have been inspected and admitted or paroled. 2. Under 245(a), persons who entered without inspection do not qualify for adjustment of status. 3. 245(c) makes noncitizens ineligible to adjust under 245(a) under several circumstances, including noncitizens initially admitted under the visa waiver programunless they are immediate relatives of US citizenspersons admitted as alien crewmen, or those in the US under transit without visa arrangements. 4. Subsection c provides that unless they are immediate relatives of US citizens, 245(a) adjustment is unavailable to noncitizens who worked without authorization before filing, or if they are in unlawful immigration status on the date of the application for adjustment of status or who have failed to maintain continuously lawful status since entry into the US. 5. The 1996 Act barred two new groups: a. Noncitizens who qualify under one of the employmentbased immigrant categories but are not in a lawful nonimmigrant status i. This bars parolees and others allowed to be present in the US without nonimmigrant status. b. Noncitizens who have worked without authorization or otherwise violated the terms of a nonimmigrant visa 6. People disqualified for this form of adjustment can nonetheless use adjustment procedure upon paying an extra $1,000 fee and qualifying under the time-limited provisions of 245(i). iv. Adjustment under Section 245(i) 1. A noncitizen who has been unlawfully present for a period longer than 180 days is barred for three years. 2. A period of unlawful presence of one year or more can mean a ten-year bar 3. 245(i) provides relief for a class of beneficiaries for whom initial papers were filed before May 2001. v. Appealing an Adverse Adjustment Decision 1. An applicant has no administrative appeal for a denial of adjustment of status 2. The application may be renewed before an IJ conducting the noncitizens removal proceedings
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3. Adjustment may also be sought from the IJ during proceedings even if the noncitizen had not applied for it earlier. 4. INA 242(a0(2)(B)no court may review the denial of the application, except subparagraph (D) preserves judicial review of constitutional claims or questions of law upon review of a final order of removal. vi. Rescission of Adjustment 1. If at any time within five years after adjustment, it shall appear to the satisfaction of the AG that the person was not in fact eligible for such adjustment of status. d. Parole i. Parole allows an inadmissible noncitizen to travel away from the border and the detention facilities. ii. Parole is now permissible for urgent humanitarian reasons or significant public benefit. iii. Once the purposes of the parole have been served, or upon revocation of parole, the person is treated as an applicant for admission. iv. Parole is not admission into the US v. In limited circumstances, EWIs can qualify for parole vi. Parole authority lies with DHS vii. IJs have no authority to grant parole 1. EXCEPTION: When an IJ re-determines the bond set for an EWI, resulting in his release form detention during removal proceedings, the person is technically paroled at that point. viii. The statue forbids paroling of refugees except in individual cases for individually compelling reasons. ix. Parole may be used to 1. Permit medical treatment 2. Allow appearance in litigation or criminal prosecution 3. To respond to foreign policy dilemmas, 4. To prevent inhumane separation of families, 5. To permit physical presence for other humanitarian reasons, 6. To allow a noncitizen to leave and return to the US while an application for lawful status is pending, or 7. To permit release from detention pending adjudication of an inadmissibility charge. e. Expedited Removal INA 235(b)(1) i. At Ports of Entry 1. The law applies expedited removal at all times to arriving aliens, if they are found inadmissible due to attempts to obtain admission or other immigration benefits through fraud or misrepresentation, or due to a lack of a valid passport, visa, or other document. 2. The Secretary of Homeland Security may apply this procedure to EWIs that have been present in the US for less than two years. 3. If an arriving alien is found inadmissible, the immigration officer may order him removed without further hearing or review
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unless the alien indicates either an intention to apply for asylum or a fear of persecution. 4. If the person claims asylum or asserts fear of return, the noncitizen has to be sent to a detention facility where he will be interviewed by a specially trained asylum officer no sooner than 48 hours later. 5. The asylum officers duty is to determine whether the alien has a credible fear of persecution a. A significant possibility . . . that the alien could establish eligibility for asylum. 6. If no credible fear exists, an expedited removal order is issued. 7. The noncitizen may seek review before an IJ 8. If unsuccessful, the alien is subject to immediate removal based on the order previously issued. 9. If the asylum officer or IJ finds a credible fear, the person receives a hearing on the merits and may be released on parole while his case is pending. 10. Persons who claim under oath to be US citizens or to be returning to the US after previous admission as a refugee, asylee, or LPR (status claimants) may pursue that claim before an IJ or through habeas corpus review. a. Habeas Corpus reviewdont worry about for test 11. Consequences of an expedited removal order issued by an IJ: a. When issued to an arriving alien, the alien is now inadmissible b. Immigration officers interviewing persons who initially seem subject to expedited removal have discretion to allow them to withdraw their applications for admission. ii. Points of Controversy 1. The Credible Fear Interviewasylum seekers may not have a fair opportunity to tell their stories 2. DetentionExpedited removal has mandatory detention. Release on parole is permitted for those who pass the credible fear test in the discretion of the director of the DHS filed office. 3. Administrative and Judicial Reviewjudicial review through habeas corpus is available in limited circumstances. a. A person subject to an expedited removal order may go to court with an identity challenge b. Status claimants may secure court review c. Asylum seekers in expedited removal may not access the courts for consideration of any merits-related issue. d. There are also expedited hearings for challenges to the validity of the system. iii. Expansion Beyond Ports of Entry 1. Expedited removal may be issued at the discretion of the AG to EWIs who have not been continuously physically in the US for the preceding two years 2. It also applies to noncitizens who are EWIs and who are stopped within 100 miles of the U.S.-Mexico border or the U.S.-Canada
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border, unless they show they have been continuously present in the US for more than 14 days. Chapter Six: Deportability and Relief from Removal VII. Section A. The Deportation Power and the Constitution a. The Cold War Era i. Kessler v. Strecker, pg. 699the Supreme Court ruled that a noncitizen who had been a member of the Communist Party after entering the US but had left the Party prior to his arrest was not deportable . 1. In response to this case, radical organizations expelled their noncitizen members in an attempt to immunize them from deportation for subversion. ii. Alien Registration Acts of 1940provided for deportation of any alien who had been a member of a subversive group at any time after entering the US iii. Harisiades, US S. Ct., 1952, pg. 701 1. Facts: Deportation orders had been issued against Harisiades, a labor organizer and active member of the communist Party until he was expelled by the party. 2. Lasting Principles: a. Deportation is not a criminal punishment, therefore, ex post facto does not apply i. A person may be deported for acts committed in the past which, at the time, were not deportable offenses. b. Due process rights only apply in procedural matters, not substantive matters iv. Removal and the Ex Post Facto Clause 1. Harisiades reflects the rule that the Constitutions prohibition against ex post facto laws does not apply to deportation statutes. v. Removal and Constitutionally Protected Liberties 1. In some settings constitutional protection does apply 2. Wing-The Fifth (jury, double jeopardy, sself incrimination, DP) and Sixth (trial, counsel) Amendment protections, including especially the right to trial by jury, apply to noncitizens with respect to criminal sanctions imposed for immigration violations, though not to removal proceedings themselves. 3. YamatayaThe Fifth Amendments guarantee of procedural due process applies in a deportation hearing. a. Yamataya did not address substantive deportation grounds. 4. Equal Protectionthe underlying policies of what classes of aliens shall be allowed to enter and what classes of aliens shall be allowed to stay, are for congress to determine. vi. Removal and the First Amendment 1. Kleindiendst v. MandelThe Supreme Court rejected the assertion that the First Amendment (religion, speech, press, assembly, petition) protected Mandel, who had been excluded
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VIII.

from entering the US under the pre-1990 statute that listed anarchists as excludable. b. The War on Terror Era i. The USA PATRIOT ACT allows deportability to be based on conduct that extends beyond engaging in or providing material support of terrorist activities, it also reaches those whom the AG (through the EOIR, IJs, Immigration Courts and BIA) and Secretary of State (deals with visas) think have been associated with terrorist organizations and intend to engage, even incidentally in, activities that could endanger the welfare, safety, or security of the US. ii. Section 237(a)(4)(C) makes removable noncitizens whom the Secretary of State has reasonable grounds to believe would, by their presence or activities, have potentially serious adverse foreign policy consequences for the US c. Deportability Grounds and Statutory Construction i. The Supreme Court has generally read deportation statutes narrowly since deportation is a drastic measure. Section B. Statutory Grounds of Deportability a. Section 237 lists the grounds of deportability b. Immigration Control Grounds i. Inadmissible at Time of Entry or Adjustment of Status 1. Makes an alien deportable 2. WAIVER: for noncitizens who are inadmissible for fraud or misrepresentation in obtaining an immigrant visa or admission, provided they have close relatives in the US. ii. Failure to Maintain Nonimmigrant Status 1. Is a deportable offense 2. Example: Nonimmigrants who work without authorization, students who leave school, and temporary workers who abandon the employment that was the basis of their admission. iii. Presence in the United States in Violation of Law 1. Applies to EWIs. 2. This deportation ground is not applicable, however, because it only applies to noncitizens who have been admitted, and the statute defines admission as the lawful entry of the alien into the US after inspection and authorization from an immigration officer. 3. Thus, most undocumented migrants have not been admitted 4. Examples where it would apply: overstays 5. Those who overstay more than 180 days may trigger a 3 or 10 year bar to later admissions after they depart. iv. Failure to Register and Document Fraud 1. Noncitizens who remain in the US for more than 30 days have to register, be fingerprinted, provide their address in the US, and provide written notice of any changes of address. 2. The AG may require special registration for groups of nonpermanent residents and seek additional information from noncitizens. 3. Failure to register or provide notice of a change of address is a deportable offense and a criminal offense.
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4. Those who use fraudulent immigration documents are deportable a. There is no automatic hearing on the civil document fraud charges. b. Respondent must request a hearing or else a final order will issue automaticallywhich will result in automatic deportability. v. Grounds of Removability, Section 237(a) 1. Inadmissible at Time of Entry or Adjustment of Status a. EXCEPTION: INA 237(a)(1)(H) i. Must be a spouse, parent, son, or daughter of a USC 2. Violation of Nonimmigrant Status a. If prior to entry, during entry, or five years after entry you aid and abet in smuggling you are deportable. b. EXCEPTION: if you are helping your spouse, parent, or child cross 3. Presence in the United States in Violation of Law 4. Failure to Register and Document Fraud a. The statute requires noncitizens who remain in the United States for more than 30 days to register, be fingerprinted provide their address in the United States, INA 262, and provide written notice of any changes of address within 10 days of moving. b. False claims to citizenship i. EXCEPTION: Both parents USCs, you reasonably believe that you are a USC c. Any alien who has voted in violation of state or federal law UNLESS both parents USCs, you reasonably believe that you are a USC d. Security i. Threat to overthrow the US government ii. Involved in terrorist activities iii. Foreign policy considerations 1. The aliens presence or activities in the US could adversely effect the US foreign policy iv. Candidate for government office v. Former Nazi war criminals or people involved in genocide or acts of torture vi. Receiving military training from terrorist activities vii. People who participate in severe religious violations 5. Fraudulent Marriages = deportable a. It is a subjective test: if at the time of the marriage the parties intended to create a bona fide marriage, it is a valid marriage. b. Cohabitation and consummation is not necessarily required c. Crime-Related Grounds of Deportability i. Criminal Convictions

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1. A conviction may occur without entry of an adjudication of guilt,

and a plea of nolo contendere or an admission of fats by the noncitizen can substitute for a judgment of guilty 2. A suspended sentence counts as a term of imprisonment 3. Probation constitutes punishment 4. Immigration consequences attach in deferred adjudications, where the defendants plea of guilty is dismissed upon successful completion of community services or probation. 5. The burden of proving a conviction was vacated on substantive or procedural grounds, rather than to avoid immigration consequences or other hardships, falls on the noncitizen who seeks to reopen removal proceedings. 6. Expunctions a. Expunction differs from the reversal of a conviction on appeal for legal error in the proceedings below. b. An expunction limits the subsequent effect of a lawful conviction c. A reversal on appeal means that the underlying conviction was not lawful and a conviction reversed for substantive or procedural error cannot be the basis of removal. d. The BIA concluded that expunction under state statutes has no impact on the immigration consequences of the conviction and the noncitizen can still be removed. i. EXCEPTION: expunctions under state statutes that are analogous to federal juvenile delinquency laws erase the conviction for immigration purposes. e. Federal law allows expunction of convictions of simple possession of narcotics by first-time offenders, which removes immigration consequences. f. The BIA ruled that a noncitizen who successfully petitioned a court to vacate his one-year sentence and impose instead a 360 day sentence could not be removed as an aggravated felon because he had not been sentenced to at least one year for his offense. 7. Pardons a. A full and unconditional pardon by a state governor or the President will eliminate the immigration consequences of conviction for crimes involving moral turpitude, aggravated felonies, and high speed flight. ii. Categories of Crimes 1. Crimes of Moral Turpitude a. One conviction of a crime involving moral turpitude renders a noncitizen deportable if the conviction of the crime occurred within five years after the date of admission and the crime is one for which a sentence of one year or longer may be imposed. b. The BIA ruled that an adjustment of status counts as an admission for a person who initially was lawfully admitted
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as a nonimmigrant, thus triggering a later five-year period relevant to crimes of moral turpitude. c. Convictions of two or more crimes involving moral turpitude constitute a ground of deportability no matter when they were committed or what the sentence was. d. The convictions must arise out of more than a single criminal scheme. 2. Aggravated Felonies a. The statue applies to convictions entered before, on, or after September 30, 1996 b. The statute now lists more than 20 separate categories of aggravated felonies c. Aggravated felons are ineligible for most forms of relief from removal such as: i. Asylum, ii. Cancellation of removal, and iii. voluntary departure d. They are not entitled to judicial review of removal orders based on their convictions. e. They are barred for life from re-entering the US, unless they obtain the AGs consent to apply for readmission. f. Aggravated felons convicted at any time after admission are subject to removal. g. Federal Misdemeanors and State Felonies i. What if a federal misdemeanor equals a state felony? ii. Under Chevron, courts defer to the statutory interpretations adopted by the BIA, h. State Misdemeanors as Aggravated Felonies i. A state felony will not be deemed an aggravated felony when the corresponding federal offense is a misdemeanor. ii. Notes: 1. A misdemeanor offense of sexual abuse of a minor constitutes an aggravated felony 2. In some instances, a conviction that resulted in a one-year sentence might constitute a misdemeanor under state criminal law and an aggravated felony under federal immigration law 3. Drug Offenses a. Mandatory deportation for most drug offenses b. Deportation may be imposed for any drug abuser or addict, whether or not there has been a criminal conviction. c. EXCEPTION i. A single offense of possession of 30 grams or less of marijuana for ones own use 4. Crimes of Domestic Violence a. Constitute grounds for deportation
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b. The conviction may have occurred any time after admission c. Crimes included are: i. Domestic violence ii. Stalking iii. Child abuse iv. Child neglect v. Child abandonment vi. Violating a protection order by making threats of violence, causing bodily injury, or engaging in repeated harassment d. The crimes must i. Constitute a crime of violence ii. Be committed against a person who is a current or former spouse, or someone in a relationship similar to that of a spouse e. VAWA i. AG may waive the domestic violence deportability ground for a noncitizen who has been the victim of battering or extreme cruelty if the noncitizen was acting in self defense or if there are other extenuating circumstances ii. Noncitizens who have been convicted of domestic violence might be charged as removable under three grounds of deportability: 1. Crime of domestic violence 2. Crime involving moral turpitude 3. If it was a crime of violence and the prison term was more than one year, an aggravated felony d. A conviction is required to be deportable i. Conviction 1. if there is a formal entry of guilt by the court, or 2. if the adjudication of guilt has been withheld by a court for whatever reason a. then a judge or jury has to have found the alien guilty or b. the person has entered a plea of guilt or no lo contendere, or c. if he admits sufficient facts to warrant a finding of guilt and the judge has ordered some form of punishment, or restraint. 3. There are certain state rehabilitation statutes that mandate that if you satisfy your probation and a judge dismisses the indictment, you are still convicted for immigration purposes a. Some state rehabilitation statutes will result in a conviction for immigration purpose if the judgment is vacated 4. Court marshalls are convictions
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5. Pre-trial interventions or conventions are not convictions ii. Sentence 1. (1 year or more) The term of imprisonment refers to the time of incarceration or confinement ordered by the court even if the time is suspended or the execution of the sentence is withheld 2. This sentence is applied retroactively 3. Go back to the sentencing judge and have the judge resentence to 364 dayswhich is not a sentence to confinement for a year or more iii. Crimes of Moral Turpitude 1. Conviction, has to be a crime involving moral turpitude within 5 years of entry and the conviction of the crime must have a possible sentence that may be imposed of 1 year or more (this means it could be a misdemeanor or a felony). 2. Entry a. Generally, refers to legal admissionbut this can be litigated depending on the circuit 3. If you are convicted of two crimes involving moral turpitude, no matter the length of the sentence, at any time after admission and they do not arise out of a single scheme of criminal misconduct, you are deportable a. Normally, a crime arising out of a single scheme is a LIO. b. EX: If you have a couple of fraudulent credit cards and make various chargeseach charge is a separate offense and you could be found deportable c. EX: A guy flying from NY to San Antonio and on a layover and is stopped and 15 fraudulent ID cards are in his briefcase. His ticket is in his real name. He is charged separately for each of the IDs. This was considered to be a single scheme of conduct and he was not deportable. iv. Other State and Federal Misdemeanors and Felonies 1. Drug Violations a. High speed flight from an immigration checkpoint deportable b. If at any time after entry has been a narcotic drug addict or user c. Convicted of any law of the US or foreign country related to a controlled substance violation d. Being under the influence of a prohibited drug renders you deportablemens rea does not matter e. EXCEPTION: a single offense of less than 30 grams of marijuana for ones own personal use i. This does not include marijuana derivatives f. A conviction for drug paraphernalia is a deportable offense 2. Firearms violations a. Convictions for purchasing, selling, owning, or possessing a firearm or part of a firearm as against state or federal laws, is a deportable offense
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b. In some cases, if a crime has an enhancement statute in which the crime is enhanced due to the use of a firearm, it could be used as a firearm offense c. There is no firearm offense that is a ground of inadmissibility 3. Violations of other Acts a. May be a deportable offense 4. Domestic Violence a. Domestic violence, stalking, kidnapping, or violation of a protective orderdeportable b. Has to be either a former or current spouse as the abuser, or a person similarly situated to a spouse, or by any other individual if there is a certain duty owed under state, federal, or tribal laws. c. A person could be deported due to domestic violence if i. It qualifies as a crime of violence ii. It is against one of the protected parties d. Child abusedeportable offense i. Violation of a civil or criminal court protective order deportableif the order refers to the protection against credible threats of violence, harassment, or bodily injury e. Domestic Violence grounds of deportability only apply to incidents that occurred after September of 1996the statute is not retroactive f. WAIVER i. The abused retaliates against the abuserhave to show that 1. You were not the original perpetrator of the violence 2. Must show you were acting in self defense v. Aggravated Felonies 1. If you are convicted of an aggravated felony at anytime, you are deportableabsolute bar to readmission 2. Murder, Rape, Sexual Abuse of a Minor a. In rape, normally use the C/L definition b. Sexual abuse of a minor includes (1) abuse by contact or (2) abuse by exposure 3. Traffickers and Smugglers a. Any felony punishable under various controlled substance laws i. Includes distribution and intent to deliver b. BIA approach to decide whether or not it is an aggravated felony i. Did the conviction involved illicit trafficking or delivery? ii. Is the conviction defined as a drug trafficking crime in 8 USC 924(c)? 4. Money Laundering a. $10,000 or more = aggravated felony
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5. Crimes of Violence = aggravated felony = removable

IX.

a. Any crime of violence in which the sentence is 1 year or more b. Definition i. Any use or threat of use of force ii. Any other offense that is a felony and that by its nature involves a substantial risk that physical force against the person or property of another may be used in the commission in the offense 6. Theft Offense a. If the sentence is 1 year or more = aggravated felony b. Theft of service is considered to be theft for immigration purposes 7. Ransom 8. Child Pornography 9. RICO 10. Prostitution a. Owning and supervising a prostitution business counts 11. Disclosing the Identity of a Federal Agent 12. Fraud or Deceit a. Crimes where the loss to the victim is more than $10,000 = aggravated felony b. Offenses relating to tax evasion and the loss to the government of more than $10,000 = aggravated felony c. Distinction between fraud and theftfraud is taking property by fraudulent means Section C. Relief from Removal a. Can consist of: i. When the government decides not to place a noncitizen in removal proceedings ii. The government decides to suspend proceedings or iii. Stay removal after the entry of a final order of removal b. The AG is vested with the power to exercise his or her discretion regarding the applicant for relief c. Relief from removal generally has two elements that have to be met: i. Statutory eligibility ii. An exercise of governmental discretion d. Adjustment of Status i. If you can apply for relief, you can also apply for adjustment of status with the judge ii. You may also apply for asylum, withholding of removal, and CAT iii. You may have a waiver under 237(a)(1)(h) iv. You may be granted deferred action status v. Private legislationa congressman or senator enters a private bill on behalf of the deportable alien e. The Role of Discretion i. Prosecutorial Discretion 1. At the macro level, a decision influences which noncitizens are likely to be removed
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2. At the micro level, the government may decide to forego removal proceedings against a noncitizen 3. Factors to be considered in prosecutorial discretion: a. Immigration history b. Immigration status c. Length of stay in the US d. Criminal history e. Humanitarian concerns f. Likelihood of ultimately removing the alien, g. Likelihood of achieving the enforcement goal by other means, h. The effect on future admissibility i. Cooperation with law enforcement officials, j. Community attention, k. US military service, and l. Available DHS resources 4. Deferred Action a. Allows noncitizens subject to removal to remain in the US because of humanitarian considerations b. Those granted deferred action may get work authorization upon a showing of need c. No family reunification rights d. The status is subject to withdrawal at any time e. Deferred action is not considered a period of authorized stay for purposes of the three and ten year bars on future admission. f. Factors to Consider in determining the likelihood of ultimately removing an alien: i. Likelihood that the alien will depart without formal proceedings ii. Age or physical conditions iii. Likelihood another country will accept the alien iv. Likelihood the alien will qualify for some form of relief 5. Stay of Removal a. Occurs after the removal order has been entered b. This authority is generally used to give the noncitizen a reasonable amount of time to make arrangements prior to removal. c. No deportation order may be executed during the time for filing an appeal to the BIA or while an appeal to the BIA is pending. d. There is no longer automatic stay, however, while a case is pending in the court of appeals; it is up to the courts discretion. ii. Adjudicatory Discretion 1. In Matter of C-V-T, the Board announced that exercises of discretion for cancellation of removal would be guided by standards previously used in relief from removal available to permanent residents
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2. Factors a. Family ties b. History of employment c. Own a business d. Service to the community e. Have you rehabilitated since you committed the crime? f. Letters concerning your good character? 3. Regulatory Guidance for Exercise of Discretion a. There are no statutory factors to consider b. 212(h) limits discretion in granting of waivers of inadmissibility that apply to various offenses, including crimes of moral turpitude. f. Relief Resulting in Permanent Resident Status i. Cancellation of Removal for Permanent Residents 1. Relief under 212(c) a. A person who plead guilty to a deportable offense before April 24, 1996 (before the enactment of AEDPA and IIRAIRA), he may still be available for this form of relief b. It requires 7 years lawful presence in the US i. This could accumulate after the LPR was rendered deportable ii. No stop-time rule c. The immigrant must be an LPR for 5 years d. Ineligibility i. If you only had a trial, and no plea agreement before April 24, 1996 ii. If you were imprisoned for 5 years or more e. If you want relief under 212(c), there must be a corresponding ground of inadmissibility i. The BIA is finding more and more that there is not a corresponding ground of inadmissibility for an aggravated felony ii. The BIA has found recently that there is no corresponding ground of inadmissibility for sexual abuse of a child (which is an ag. felon.). iii. All ag. felons. Will be challenged by the government as unavailable for this relief 1. Except narcotics per San Cyr 2. Relief under 240A(a)Residence in the United States a. Must be lawfully admitted for permanent residence for 5 years b. Must have 7 years of residence in the US after having been admitted in any status c. Cannot be convicted of any aggravated felony d. Stop-time rule applies e. IJ must exercise his discretion in the LPRs behalf f. Ineligibility i. Anyone in deportation proceedings for security purposes ii. Anyone who has persecuted other people
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iii. People who have been previously granted relief. 3. Measuring the Time Period a. Stop-Time Rule: only applies to the 7 years continuous residence, not the 5 years LPR. b. The day the crime is committed stops the time c. The day the final order is entered finding you guilty of the deportable offense stops the time d. When the LPR is served with the NTA, the time stops. ii. Cancellation of Removal and Adjustment of Status for Nonpermanent Residents 1. Continuous Physical Presence in the United States a. 10 years immediately preceding the date of the application b. 10 year residence i. Stop-time Rule: 1. NTA 2. Commission of certain crimes that cause inadmissibility or deportation 3. If the person leaves the US for more than 90 days at one time, OR an aggregate of 108 days over the 10 year period 2. Good Moral Character a. For 10 years b. No conviction of offense under 212(a) (inadmissibility) and 237(a)(2) (deportable crimes) c. A petty offense will not be counted against you 3. Exceptional and Extremely Unusual Hardship a. Matter of Recinas, BIA 2002, pg. 795 i. Exceptional and extremely unusual hardship under 240A(b) must be on the aliens spouse, parent, or child. ii. Must be a hardship beyond that which would ordinarily be expected to result from ones deportation. b. To immediate family member; NOT TO THE ALIEN c. Kids do not count once they reach 21 (must be child, not son or daughter) 4. Favorable exercise of discretion 5. Despite 240A(b), which refers to nonpermanent residents, the statutory language does not preclude LPRs from seeking cancellation of removal under its provisions. 6. Ineligibility a. Entered as a crewman after June 30, 1964 b. J1 Student Visa holders under two circumstances if i. They were admitted for medical training ii. Subject to 2 year foreign residency requirement and you either 1. Did not reach the requirement 2. Are not eligible c. You already obtained relief under 212(c)
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iii. Cancellation of Removal for Battered Spouses or Children 242(A)(b)(2) 1. VAWAa second form of cancellation of removal 2. Standard for hardships is extreme 3. The hardship to the applicant is relevant 4. Good moral character is not precluded by conduct or a conviction that the AG finds was connected to the battering and is deserving of a waiver 5. Continuous physical presence is three years 6. There is an exception to the stop-time rule in which the three years can continue to accrue after the noncitizen has received a notice to appear. 7. Absences from the US connected to the battering or extreme cruelty do not count toward the 90/180 day periods that interrupt continuous physical presence 8. VAWA cancellation of removal applies only if the batterer is a USC or an LPR. iv. Numerical Limits on Cancellation 1. Limitation of only 4,000 a year 2. Proving hardship a. Must be different from what is normally expected b. Recinas: the children had never been to Mexico and did not speak Spanish, mother was the sole supporter and her ability to care for the kids would be effected if she were deported because she had no family or property in Mexico. She had relatives in the US that depended on her. Her chances of immigrating to the US were thin because she is over 21 and would not be granted an immediate visa. 3. Waivers a. Grounds for inadmissibility play a role in relief from removal because qualified noncitizens often seek adjustment of status as a form of relif in removal proceedings, and they must be admissibleor eligible to waive any grounds of inadmissibilityin order to be able to adjust their status to become an LPR. b. Section 212(h) provides a discretionary waiver for noncitizens i. Available for crimes of moral turpitude ii. Possession of 30 grams or less of marijuana, iii. Conduct related to prostitution or unlawful commercialized vice, and iv. Certain criminal acts that receive immunity v. The BIA extended 212(h) to certain deportability grounds in certain situations 1. Matter of Sanchez: 212(h) was available to a lawful permanent resident who had departed from and been readmitted to the US 2. Matter of Parodi: 212(h) was available to a LPR who sought to adjust status, though he
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had not departed from and been readmitted into the US. c. Notes i. Section 212(h) precludes a waiver for an alien who has previously been admitted to the US as an alien lawfully admitted for LPR if . . . since the date of such admission the alien has been convicted of an aggravated felony. ii. The BIA has interpreted this rule to mean that a noncitizen who has been convicted of an aggravated felony but is not an LPR may be eligible for relief under 212(h). iii. Thourgh Congress replaced 212(c) relief with cancellation of removal, 212(c) relief still can be invoked in some instances by noncitizens convicted before April 1997. iv. INS v. St. Cyr 4. Registry a. Noncitizens who entered the US prior to January 1, 1972 may be able to obtain permanent resident status via the registry provision in INA 249. 5. Private BillsHardly ever used a. When no other rout to prevent removal is available, it is possible to secure relief as a result of federal legislation granting LPR status to one specific individual. b. Sometimes used in high profile cases g. Relief Short of Permanent Resident Status i. Voluntary Departure 1. Pre-hearing Departure a. Noncitizens may apply to leave the US voluntarily at their own expense before or prior to the completion of removal proceedings, 240B(a)(1) b. Before proceedings, the decision is made by DHS; after it is made by the IJ c. The statute does not require the posting of a voluntary departure bond, but permits such requirement in an individual case (the bond money is returned when the alien proves s/he departed the US in the time specified) d. Noncitizens can have a maximum of 120 days to depart (versus 60 days for the second type of voluntary departure) e. A noncitizen identified or arrested by DHS agrees to waive a full removal hearing f. Formally removed noncitizens are generally inadmissible for a period of 10 years, unless they obtain advance permission for DHS to reapply for admission. i. They are also subject to a felony prosecution for clandestine reentry after removalas opposed to the misdemeanor penalty, rarely imposed, for simple entry without inspection.
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g. Those who leave under a voluntary departure arrangement embodied in an immigration court order, are subject to speedy removal through a process called reinstatement if they return without advance permission. h. Does not have to show good moral character 2. At the Conclusion of Removal Proceedings a. INA 240B(b) b. Noncitizens who wait to this point must post a bond and receive a maximum of 60 days in which to depart. c. Must show good moral character d. Must provide your own means to depart e. May not be an aggravated felon f. Penalties for failure to depart i. Civil 1. Fines between $1K and $5K 2. 10 year bar to entering the US or relief under 240A (cancellation of removal) g. A deportation officer is the only one that may extend a grant of voluntary departure h. You may appeal the a decision not to grant of voluntary departure, but you cannot appeal the amount of time the judge gives you to depart I. Review a. Aliens in proceedings have due process rights concerning procedure, but not substantive b. Deportation proceedings are civil c. Aliens in deportation proceedings are not entitled to a free attorney i. They get a list of free legal services d. The question of double jeopardy does not apply i. It only applies in a criminal context ii. You can be convicted of a crime and then placed in deportation proceedings e. Miranda is either given by border patrol or is on one of the documents that the alien signs when he/she is picked-up f. In most cases, when the agency fails to follow the law or its regulations, the alien can make a due process claim. g. When the mother and father of USC children are deported and they take their USC children with them, the children or parents do not have a claim for wrongful deportation of the USC children i. Known as a de facto deportation h. In general, suppression of evidence is not available in deportation proceedings i. It might be available if there is some abuse or egregious violation of the 4th amendment which transgresses the notion of fundamental fairness i. Border Patrol needs probable cause to detain someone i. Generally stops that are close to the border are more favorable ii. If it is in an area famous for being a smuggling area iii. Anonymous tip together with other factors iv. Nervousness of the driver
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v. Time of day j. Section 287a2: Powers to arrest without a warrant if Immigration Officer believes the person is an illegal alien and there is insufficient time to get a warrant. k. If a person is put into deportation proceedings, the IO may i. Release the alien on his own recognizance ii. Place the alien on bond 1. Minimum bond is usually $1,500 2. The arresting officer will determine the amount of the bond 3. The alien has the right to a bond re-determination hearing before an IJ 4. The bond hearing is separate and apart from the deportation hearing 5. Can be appealed to the BIA 6. Trial attorney can request an emergency stayto stay the bond order from the judge iii. Place the alien into detention 1. Detention is mandatory (section 236)if the alien is a. An arriving alien b. In proceedings for terrorist matters c. Has been convicted of crimes (committed after 1998; if crime occurred before, may post bond) i. Crime of moral turpitude with a sentence of 1 year or more ii. 2 crimes of moral turpitude iii. Aggravated felony iv. Firearms v. Does not include a deportable charge for domestic violence l. If deportable i. Government must issue a NTA containing 1. Allegations 2. Grounds of deportability (statutory charge) 3. Advises alien that if he does not show up to the hearing, an issue will be ordered in his absence ii. The alien has to advise trial attorney of address changes iii. Alien may request a change of venue for the deportation hearing m. Hearings i. Master Calendarkind of like docket call 1. Deny/Concede allegations ii. Hearing on the Merits 1. Set-up ff allegation(s) are denied or relief is sought iii. Alien may claim ineffective assistance of counsel 1. Would a competent attorney have acted the same? 2. Was the service so inadequate that it determined the outcome of the case? 3. The alien may seek a motion to re-open the case a. Must show motion to reopen supported by an affidavit from the client describing the arrangement with the prior attorney
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n.

o.

p.

q.

r.

b. Must give notice to the previous attorney and allow him to respond to the affidavit c. Must tell the IJ whether or not a grievance was/was not filed against the previous attorney 4. Sanctions against attorneys a. EOIR and Immigration Services can forbid an attorney from appearing in front of their services b. Unauthorized practice of lawa lot of immigration experts are running around or notaries using someone elses law license Evidence i. Hearsay evidence may be admitted (because it is an administrative hearing) ii. Burden: on DHS Judicial Deportation, section 238c i. A district court may order a criminal defendant deported at the same time the alien has his criminal sentencing (if the order has been requested by the AG) Reinstatement of deportation orders i. If a person has been ordered deported or granted voluntary departure and he re-enters the US illegally again, he does not have to get another hearing ii. His previous order may be reinstated Designation of a Country to be Deported i. The alien chooses ii. Immigration services may review this country if 1. The country will not accept the alien 2. It prejudices the interests of the US iii. If they cannot deport the alien to the country he designates to be deported to, court may order the alien deported to the country of which the alien is a citizen or national. 1. If that country will not take the alien, the court can a. Order the deportation to the country from which the alien came from before entering the US b. Order the alien deported to the country of which the alien was a resident c. Order the alien deported to the country where the alien was born i. This could be a problem if the country where the alien was born no longer exists or has been taken over by another country d. Order alien deported to any country that will accept the alien iv. The judge may designate an alternate country if the originally designated country will not accept the alien Detention after final order of Deportation i. A person may be held for 90 days after the order of deportation ii. If, after 6 months, the person still has not been deported, he should be released if the service is not actively trying to deport the alien
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iii. If the alien refuses to cooperate with travel arrangement for deportation, the alien may be held indefinitely Chapter Seven: Asylum and the Convention Against Torture I. Section B. Asylum in the United States a. Historical Background i. The Refugee Act of 1980 1. The 1980 Refugee Act added Section 208 to the INA that specifically establishes asylum status, also often called asylee status. 2. This status may be provided, in the discretion of the AG, to applicants in the US who show that they meet the statutory definition of refugeethat is, who have a well-founded fear of persecution on account of one of the five specified grounds if returned to their home countries. (Race, religion, nationality, membership in a particular social group, or political opinion INA 101(a)(42)(A)). 3. Since 1980, there have been two persecution-based forms of relief from removal: a. Discretionary b. Mandatory 4. Asylum status affords more protection that withholding. a. Those granted asylum are allowed to work b. Bring members of their immediate families to the US c. And access to some public assistance. d. Asylees have a mechanism to adjust to LPR status. 5. Those granted withholding generally receive work authorization and sometimes public assistance, but they may not bring their immediate families to the US. b. US Procedures for Seeking Asylum and Nonrefoulement i. Applications for Protection 1. Applicants can apply simultaneously for both nonrefoulement and asylum in the US 2. Three paths: a. Affirmative applications b. Defensive applications c. Expedited removal proceduremust show a credible fear 3. The statute requires that applicants be advised a. of the privilege of being represented, and b. that absent exceptional circumstances, the initial interview or hearing shall take place within 45 days of filing and c. the final adjudication by the IJ shall be completed within 180 days 4. Affirmative Applications a. Applicants who are not currently in removal proceedings may file an affirmative application by mailing the I-589 to a regional service center, part of USCIS within DHS. 5. Defensive Applications
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II.

a. If removal proceedings are already underway, the applicant may apply for asylum or withholding only by presenting a defensive application to the IJ b. Typically occurs at the master calendar (the first appearance in immigration court). c. The IJ then sets a hearing on the merits to adjudicate the application d. Sometimes the applicant will file for asylum after a final order of removal has been entered i. The asylum claim can only be raised by means of a motion to reopen filed with the IJ or BIA, depending on which forum last heard the matter. 6. Applications in Expedited Removal Proceedings a. For noncitizens arriving at a POE b. Those who who express a fear of return or ask for asylum are referred to an asylum officer who conducts a credible fear interview (no sooner than 48 hours later) i. Determines whether there is a credible fear of persecution ii. significant possibility that the alien could establish eligibility for asylum c. If found to have a credible fear, their claim is heard on the merits as a defensive asylum claims d. If found not to have a credible fear, the noncitizen is ordered removed. i. The IJ may review this negative determination ii. Within 7 days at the latest, and within 24 hours if practicable, an IJ considers the asylum officers report and conducts a review in person, by video, or by telephone 7. Work Authorization a. The issuance of work authorization is postponed until at least 180 days after the noncitizen filed for asylum, unless asylum is granted before then. b. No authorization will issue of the application has been denied by an IJ within that period. ii. Immigration Court 1. The IJs decision on either a defensive asylum claim or a referred affirmative claim is appealable to the BIA. 2. If the BIA rules against the claim for protection, judicial review may be available as part of the review of the removal order. Section C. Persecution a. Section 208 of the INA gives the AG power to grant asylum in the US to an applicant who satisfied the refugee definition in 101(a)(42): i. An individual who has a well-founded fear of persecution on account of 1. Race 2. Religion, 3. nationality, 4. membership in a particular social group, or
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5. political opinion b. The Meaning of Persecution i. Persecution means, punishment for political, religious, or other reasons that our country does not recognize as legitimate. ii. Uniform National Policy 1. Matter of Chang, BIA, 1989, pg. 862 a. Issue: Whether respondent demonstrates persecution or a well-founded fear of persecution simply with evidence that he and wife desire to have more than two children and that, because of Chinas population control measures, he may be subjected to mandatory sterilization. b. Holding: Where there is no evidence that the application of the policy is subterfuge for some other purpose to persecute, there is no eligibility for asylum on this evidence alone. i. Respondents claims are insufficient to establish a well-founded fear of persecution on account of one of the five grounds. iii. Prosecution versus Persecution 1. Tagaga v. INS, 9th Cir., 2000, pg. 871 a. Facts: Tagaga established a substantial likelihood that he would be tried for treason if he returned to Fiji. b. Holding: Because Tagaga faces a well-founded fear of persecution on account of a statutorily protected ground, he and his family are eligible for asylum. i. He demonstrated it is more likely than not that he would be subject to persecution in the country to which he would be returned. iv. Persecution by Nongovernmental Actors 1. The US law states that harm or threat from non-state actors can give rise to a basis for asylum. c. Level of Risk i. The Supreme Court made a distinction between two sections of the statute and rejected that every alien who qualifies as a refugee under the statute is also entitled to a withholding of deportation under 243(h). ii. INS v. Cardoza-Fonseca, US S. Ct., 1987, pg. 878 1. Analysis: a. The would be threatened language of 243(h) has no subjective component, but requires the alien to establish by objective evidence that it is more likely than not that he or she will be subject to persecution upon deportation. b. The reference to fear in the 208(a) standard makes the eligibility determination turn on the subjective mental state of the alien. d. Discretion to Grant or Deny Protection i. The dicisiont o grant asylum is a discretionary matter ii. The BIA addressed factors that might warrant either a positive or negative exercise of discretion: 1. Totality of the circumstances
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III.

2. Whether the alien passed through any other countries or 3. Arrived in the US directly from his country, 4. Whether orderly refugee procedures were in fact available to help him in any country he passed through, 5. Whether he made attempts to seek asylum before coming to the US 6. The length of time the alien remained in a third country 7. His living conditions, safety, and potential for long-term residency 8. The use of fraudulent documents to escape the country of persecution itself 9. Entry under the assumed identity of a USC with a US passport fraudulently obtained 10. General humanitarian consideration 11. Aliens tender age or poor health iii. The BIA noted that an asylum applicant bears the burden of proving that a favorable exercise of discretion is warranted, but stated that the danger of persecution will outweigh all but the most egregious adverse factors. iv. Notes 1. Factors that result in a mandatory denial of asylum: a. Firm resettlement in another country b. Various criminal convictions 2. There is a one-year deadline to apply for asylum e. Past Persecution i. Some applicants have already suffered persecution. ii. These applicants benefit from an express rebuttable presumption that they have a well-founded fear of future persecution iii. The government can rebut this presumption in two ways: 1. Showing that a fundamental change in circumstances has occurred that removes any well-founded fear of persecution or 2. Showing that the asylum applicant could avoid future persecution by relocating to another part of the home country and that it would be reasonable to expect the applicant to do so. iv. A similar presumption operates in the context of withholding of removal. v. The regulations allow discretionary asylum (but not withholding) for victims of past persecution even in the absence of fears of future persecution. Section D. Protected Grounds a. Political Opinion i. Individuals must prove that the persecution they fear is linkedin a certain wayto one of the five grounds. ii. Persecution based solely on a personal grudge or persecution solely to secure financial gain will not result in refugee status. iii. INS v. Elias-Zacarias, US S. Ct., 1992, pg. 888 1. Analysis: Elias-Zacarias appears to argue that not taking sides with any political faction is an affirmative expression of a political opinion.
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2. Holding: If he seeks to obtain judicial reversal of the BIAs

compelling decision that no reasonable fact finder could fail to find the requisite fear of persecution, which he has not done. 3. Notes: It is not enough to prove that the persecutor had a political objective, rather one must prove that the persecutors motive is to persecute due to the victims political opinion. iv. Notes 1. The doctrine of imputed political opinionwhere the persecutor imputes a certain political opinion on his victim seemed at risk after Elias, but INS concluded this doctrine was still viable. 2. The imputed political opinion doctrine often arises in circumstances in which the persecutor may have mixed motives. 3. REAL ID ACT of 2005 states that to establish that the applicant is a refugee . . ., the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant. b. Race, Nationality, and Religion i. Race is used to refer to ethnic groups identifiable by their shared culture as much as by any physical distinctiveness ii. Nationality refers to those who have the same citizenship as the persecutors, but who belong to a different linguistic or political community. iii. Religionlegislation requires training for all US officials involved in refugee adjudication, and requires those who decide asylum cases to refer to annual reports on international religious freedom. c. Membership in a Particular Social Group i. Matter of H, BIA, 1996, pg. 897 1. Analysis: The applicant has met his burden and has set forth a persuasive account of the persecution that he suffered in Somalia. a. One month prior to the persecution, his father and brother were murdered on the basis of their membership in the clan. b. Applicant was detained and beaten due to his clan membership 2. Holding: We find that the applicant suffered persecution in Somalia on account of his membership in a particular social group, to wit, the Marehan Clan. 3. Notes a. Matter of AcostaSalvadorian applied for asylum due to being a member of a group of taxistas who had a coop. The guerillas in El Salvador wanted to have a major strike of public workers and threatened the group that if they did not participate, they would be killed. i. Acosta fled to the US believing he would be killed and persecuted by the government of El Salvador b/c he was a member of the co-op.
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ii. Holding: two parts

1. Whether he could relocate in El Salvador? He could move to another big city. 2. There was no factual basis for the government persecution 3. By the time this case arose, the terrorism of the guerrillas had diminished. iii. Analysis: For account of race, religion, social group, etcthese elements have immutable characteristicstherefore social group must have an immutable characteristic. 1. Immutable characteristica factor that is either (1) literally unchangeable or (2) so fundamental to ones personal identity that the law should not require a person to change. 2. Taxista is not an immutable characteristic d. Gender-Related Claims i. Sex or gender is not one of the enumerated grounds of persecution. ii. Resistance to Social Norms 1. Fatin v. INS, 3rd Cir., 1993, pg. 903 a. Facts: An Iranian woman filed for asylum and withholding of removal based on her social group of westernized women who refuse to conform to the dress code of muslim teaching. b. Holding: Her claim for asylum was denied. She did not establish a grounds for persecution nor a particular social group. The petitioner failed to show that wearing the chador would be so profoundly abhorrent that it could aptly be called persecution. i. The court found women to be a social group because gender is an immutable group ii. But not all women were being persecutedjust the ones that did not want to wear the headdress iii. BUT, dress codes are not persecution iv. Fatin admitted she would wear the headdress if she were returned to Iran. c. Notes: the court adopted the unibility test for social groups: i. The person must ID the social group ii. Must establish membership in the group iii. Must establish that the persecution would result because of membership in the group iii. Female Genital Mutilation 1. Other forms of sexual abuse constitute persecution. 2. Matter of Kasinga, BIA, 1996, pg. 910 a. Holding: The asylum application is granted. i. Petitioner has shown that FGM is practiced and has been used against women who do not wish to be subjected to FGM.
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IV.

ii. Persecution based on the fact that the applicant fears in Togo is on account of her status as a member of the defined social group. iii. The immutable characteristic was the womens still intact genitalia. b. Notes: i. Women who have suffered FMG cannot seek asylum on this ground because they do not face future persecution because they have already been mutilated. ii. What about male circumcision? FMG effects sexual characteristics, where circumcision does not. iv. Domestic Abuse 1. A number of women have filed asylum on the basis of domestic abuse. 2. Matter of R-A, BIA, 1999, pg. 917 a. Procedure: The IJ had found that the husband had imputed a political opinion on his wife and that she was a member of a group of abused women under the power of men who wanted to assert dominance over them. b. Holding: The respondent has been abused by her husband and has a genuine and reasonable fear of returning to Guatemalabut she does not get asylum. i. Congress did not intend the social group category to be an all-encompassing for persons facing genuine social ills that governments do not remedy ii. There is no defined group of women in Guatemala who are opposed to male domination iii. The husband did not attempt to abuse any other women iv. Spousal abuse is not a characteristic of Guatemalan society 3. Notes a. Later, after a change in administration, DHSs view changed and it stated that the husband inflicted harm because of R-As membership in a group. i. The nexus requirement was satisfied without looking to the reasons why state protection was unavailable in Guatemala. ii. Ashcroft remanded the case to the BIA and a final order has not been issued. Section E. Limitations on Asylum a. Filing Deadline i. Asylum applicants must file their claims within one year of their arrival in the US. ii. They may be filed later only if there are changed circumstances that materially affect the asylum seekers eligibility for asylum or if there are extraordinary circumstances that are related to the delay. 1. Ex. Here on a student visa and then there is a revolution in your country
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2. Some physical or mental condition that prevents filing for asylum 3. Ineffective legal assistance iii. There is no judicial review of an administrative decision that the filing fails to comply with the statutory deadline provisions. iv. A person denied by an asylum officer because of the deadline can get de novo consideration of that issue before the IJ and can then appeal a deadline ruling to the BIA v. Withholding of removal is not subject to any deadline requirement. b. Firm Resettlement i. The 1996 Act precludes those who are firmly resettled in another country from asylum in the US ii. Withholding of removal is not barred in the case of firm resettlement, but that withholding is country specific 1. A grant of withholding would not prevent sending the asylum seeker back to the third country if that country will accept him. 2. If not, he or she is likely to remain in the US, with the limited protection that goes with withholding of removal status. iii. Firm resettlement can be overcome if the applicant shows either that 1. entry into the country was a necessary consequence of his or flight form persecution, 2. that he or she remained in that nation only as long as was necessary to arrange onward travel, and 3. that he or she did not establish significant ties in that country iv. You can also take into consideration the restriction of the applicants freedom in the third country 1. EX: He is safe, but only permitted to live in a certain area. c. Serious Crimes i. Asylum and withholding prohibit relief to 1. Those who committed a serious nonpolitical crimes outside the United States prior to arrival and 2. Those who have been convicted of a particularly serious crime in the US. ii. Prior to Arrival 1. INS v. Aguirre-Aguirre, US S. Ct., 1999, pg. 932 a. Facts: involved a guy who was a member of a group of Guatemalan students who were opposing the government by attacking police, breaking into stores, attacking people on busses, etc. He came to the US and filed for asylum. b. Issue: Whether serious nonpolitical crimes were committed c. Precedent: Chevron: The agencys interpretation of the statute is given great weight. d. Holding: The BIAs approach, which denied withholding, is consistent with the statute, which does not equate every serious nonpolitical crime with atrocious acts. There were no atrocious acts, but the means did not justify the ends (breaking windows, burning cop cars, etc. in an attempt to overthrow the entire government).
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e. Rule: The political aspect must outweigh the aspects of

a normal crime i. Serious nonpolitical crime 1. Gross disproportion and atrociousness 2. Whether there is gross disproportion between means and ends, and 3. Whether atrocious acts are involved iii. Within the United States 1. Noncitizens who have been convicted of particularly serious crimes within the US and who pose a threat to the community are ineligible to apply for relief under the asylum and withholding statutes. 2. Matter of Carballe, BIA, 1986, pg. 936 a. Rule: Those aliens who have been finally convicted of particularly serious crimes are presumptively dangers to the countrys community. Only one finding of fact (a particularly serious crime) is necessary. b. Holding: Based on the applicants convictions of armed robbery and attempted armed robbery, asylum should be denied as a matter of discretion. 3. Aggravated Felony Expansion a. The 1990 Act added an aggravated felony as a particularly serious crime b. It also barred asylum for anyone convicted of an aggravated felony. c. An aggravated felony is per se a particularly serious claim if there was an aggregate sentence of 5 years or more d. Matter of Y-L, AG, 2002, pg. 938 i. Holding: All controlled substance convictions are not necessarily particularly serious crimes. ii. Rule: A controled substance conviction might not qualify if: 1. Small quantity 2. Modest amount of money 3. Peripheral involvement 4. Absence of any violence 5. Absence of organized crime 6. Absence of adverse effect on juveniles iii. Must meet all of these elements. e. particularly serious crime refers to more heinous conduct than a serious crime d. Persecutors i. Persons who assisted in persecuting others must be excluded from asylum and withholding of removal ii. This was originally directed a those who aided in Nazi persecution in Germany iii. Matter of Rodriguez-Majano, BIA, 1988, pg. 941 1. Facts: Respondent was forced to join the guerrillas. He accompanied them on trips and covered them in their operations with his weapon.
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2. Issue: Was he involved in the persecution? 3. Holding: He was not a persecutor.

V.

a. Congress did not intend to restrict asylum and withholding only to those who had taken no part in armed conflict b. The only harm or injury he may have inflicted arose as the natural consequences of civil strife. c. Harm resulting from generalized civil strife is not persecution. e. Security Dangers and Terrorist Activity i. The statute provides that withholding and asylum are not available when there are reasonable grounds for regarding the alien as a danger to the security of the US. ii. It includes providing any type of material support to any individual the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity, or the terrorist organizations. Convention Against Torture a. Generally asylum has a lesser burden of proof than withholding of removal and CAT b. With Asylum, must prove: i. well founded fear of persecution ii. Fear is a subjective requirement iii. The relief is discretionary iv. Can ultimately acquire LPR status v. Must file application within one year of coming to the US vi. May be based on past or future persecution vii. Firm resettlement is applied viii. Aggravated felony is a complete bar c. Withholding of removal: i. If eligible, it is mandatory ii. Standard is clear probability of persecutionan objective standard more likely than not iii. 1 year rule to apply does not apply iv. Aggravated felony is a bar but only if there was a sentence of 5 years or more v. Firm resettlement is not a barit is country-specific 1. The judge will say, I am withholding removal to_____country. 2. USCIS may deport you to another country that will accept the you. vi. Does not lead to LPR status d. CAT i. Imposes a nonrefoulement obligation ii. Places a mandatory (not discretionary and can be appealed) duty on all countries signing the convention not to deport an alien who will be tortured in his home country iii. Alien may qualify even if not eligible for asylum or withholding iv. Aggravated felonies are not a bar v. Not limited to the 5 statutory grounds (race, religion, nationality, political opinion, membership of a particular social group, etc.) vi. All you have to show is
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1. The nature of the torture 2. The purpose of the agent imposing the torture 3. What the torture would be vii. Burden of proof 1. more likely than not to be torturedobjective standard viii. Looks to future torture, like withholding. ix. Can look to past torture x. Can look at other countries in which the person may re-settle without a fear of torture xi. Can look to mass violations of human rights in the country 1. Department of State reports 2. Amnesty International reports xii. Does not lead to LPR status, like withholding xiii. Definition of Torture 1. Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him a or a third person information or a confession, suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind when such pain and suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only form, inherent in or incident to lawful sanctions. xiv. Acquiescence 1. Requires that he public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his legal responsibility to intervene to prevent such activity e. Applications for Protection Under CATCFR 208.16-.18 i. Must be brought before an IJ on an I-589, the same for asylum and withholding 1. The IJ can examine all the requests for protection under all three forms of relief. ii. Must be a government official or a private individual that has government acquiescence. iii. Generally referred to as deferral of removal 1. This status may be terminated more easily than asylum or withholding of removal in the event that conditions changes in such a way as to permit lawful deportation to the country of origin or a third country. 2. The alien may continue to be held in detention iv. In expedited removal procedures, a noncitizen found to have a credible fear of torture will be placed in full removal proceedings before an IJ. v. The alien may appeal a CAT denial to the BIA and may, on a limited basis, appeal the BIA decision to the federal courts f. Government Involvement or Acquiescence in Torture i. Matter of Y-L, AG, 2002, pg. 951

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1. Facts: Had a conviction of a particularly serious crime and was

ineligible for asylum and withholding. He claimed he would be tortured by the regime. He had made trips back to Haiti. 2. Holding: No credible evidence of torture. The regime had no connection with the government or any government officials. g. Burden of Proof and Level of Risk i. The burden of proof is on the applicant to establish that it is more likely than not that he would be tortured if removed to the proposed country. ii. The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration. iii. Matter of M-B-A, BIA, 2002, pg. 957 1. Holding: Respondents fear of return to her home country is understandable, but respondents case is based on a fear of what might happen, rather than evidence that meets her burden of showing it is more likely than not that she will be tortured. iv. The legislation implementing CAT provides that courts can review CAT claims only as part of the review of a final order of removal. Chapter 8: Enforcement and Removal VI. Detention a. Usually involves a: i. Bond ii. Whether or not there is a flight risk b. Statutory Overview i. INA 235(b)(2): Arriving aliens not in expedited removal shall be detained, but they may be released on parole in certain cases: 1. Serious medical conditions 2. Pregnant women; 3. Certain juveniles 4. Witnesses in government proceedings in the US and 5. Aliens whose continued detention is not in the public interest ii. INA 236(a): Noncitizens who are not arriving aliens may be detained or released either on their own recognizance or on bond. 1. The district director makes the initial decision regarding any release and its terms, 2. The noncitizen may ask an IJ for release from custody, change in release conditions, or reduction in bond. 3. Both DHS and the noncitizen may appeal the judges decision to the BIA, which may stay release until it decides 4. If a district director originally ordered detention without bond or a bond of at least $10,000, and an IJ orders release, and the government appeals, the order is automatically stayed until the BIA rules. iii. INA 236(c): None of the foregoing possibilities for release from detention are available to noncitizens who are subject to mandatory detention while removal proceedings are pending. iv. The following aliens must be detained and may not be released: 1. Aliens covered by the terrorist grounds (suspected terrorists, INA 236A, inadmissible under 213(a)(3)(B)).
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2. Aliens removable on the following criminal grounds: a. Multiple crimes of moral turpitude b. Aggravated felonies c. Controlled substance offenses d. Firearms offenses e. miscellaneous crimes, f. Single crimes of moral turpitude in some cases (if convicted within 5 years [or 10 years if LPR] of the date of admission and a sentence of 1 year or more may be imposed for the crime) i. Except if under 18 ii. Maximum penalty is not more than 1 year and sentence is not more than 6 months. g. Is inadmissible under 212(a)(2)includes those who are convicted or admit the elements of the crime h. Multiple crimes (can arise from only 1 event) i. Prostitution j. Serious criminal activity k. Money laundering c. Limits on Detention i. Indefinite Detention After a Final Removal Order: INA 241(a) 1. Removal must normally take place within 90-days after the order becomes final 2. During the 90 days, the AG shall detain the alien, and may not release those found inadmissible or deportable under the criminal or certain national security grounds. 3. If removal does not occur during this period, the AG has discretion to release the noncitizen under supervision. 4. Mezeithe S. Ct. provided indefinite detention of excludable (inadmissible) aliens, without any judicial testing of the substantive merits or even the procedural validity of the detention order. 5. Wong Wingmay limit Mezei, if the noncitizen succeeds in characterizing his detention as criminal punishment. 6. Zadvydas v. Davis, S. Ct. of the US, 2001, pg. 1102 a. Facts: The aliens in both cases were ordered removed after having been admitted to the United States. Immigration and Naturalization authorities could not locate a country amenable to receive the deportable aliens, so the aliens were detained indefinitely. Both aliens filed for habeas corpus relief under, which the Court held was proper for jurisdictional purposes. b. Issue: Whether the statute authorizes the Attorney General, in his sole discretion, to detain a removable alien indefinitely beyond the 90-day removal period or only for a period reasonably necessary to secure the alien's removal. c. Holding: The Court interpreted the statue as containing an implicit "reasonable time" limitation of six months, the application of which was subject to federal court review.
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i. After a 6-month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing. ii. This 6-month presumption does not mean that every alien not removed must be released after 6 months. iii. An alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future. ii. Detention Pending Removal Proceedings 1. INA 236(c) requires detention of certain categories of aliens in removal proceedingsincluding some permanent residents; there is no individual bond hearing. 2. Is this constitutional? 3. Demore v. Kim, US S. Ct. 2003, pg. 1116 a. Facts: The INS had detained the alien pending his removal hearing. Kim was an LPR. b. Holding: Given the evidence before Congress suggesting that aliens who were not detained continued to engage in crime and failed to appear for their removal proceedings in large numbers, Congress was justified in requiring that permanent legal residents who had been convicted of crimes be detained for the brief period necessary for their removal proceedings. i. The detention of the alien, a convicted criminal who conceded that he was deportable, for the limited period of his removal proceedings did not violate substantive due process. ii. Distinguished Zadvydashe could not be removed to his home country iii. In this case, Kim can be removed to his home country iv. The detention at stake under 236(c) lasts, on average, between 1 and 5 months v. Kim was detained somewhat longer and spent 6 months in INS custody prior to the District Courts order granting habeas relief, but vi. Kim himself had requested a continuance of removal hearing. vii. Therefore, his detainment was constitutional iii. Defining the Scope of Zadvydas 1. DHS regulations adopted the view that Zadvydas applied only to noncitizens who had been admitted or were in the US after having entered without inspection 2. This meant that it would not require release of excludable (inadmissible) aliens, or arriving aliens, who faced indefinite detention because they could not be readily removed. BUT
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3. Clark v. Martinez, US S. Ct., 2005, pg. 1131 a. Facts: Cubans paroled in the US committed crimes and

were detained. Cuba would not accept them back. Both aliens had become inadmissible because of prior criminal convictions in the United States b. Issue: Whether the construction adopted in Zadvydas applied to the category of aliens ordered removed who were inadmissible. c. Holding: The statute does not distinguish between different categories of aliens. d. Analysis: The operative language of the statute, "may be detained beyond the removal period," applies without differentiation to all three categories of aliens. i. The six-month presumptive detention period applies ii. Both aliens were detained well beyond six months after their removal orders became final. iii. The Government having offered nothing to indicate that a substantial likelihood of removal subsisted despite the passage of six months and, indeed, having conceded that it was no longer even involved in repatriation negotiations with Cuba, and the district courts in each case having determined that removal to Cuba was not reasonably foreseeable, the petitions for habeas corpus should have been granted. 4. New Case just out at the 10th Circuit Court level: a. Holding: A reasonable agency interpretation of an ambiguous statute is due deference notwithstanding the Supreme Courts contrary interpretation. b. Facts: Some Cubans were detained who were guilty of rape, had mental disabilities that often produced violent acts, etc. All these guys were in custody and they refused to take medicine, etc. c. Procedure: When they filed the habeas corpus the district court, they relied on Zadvydas and said they needed to be released because it would be unconstitutional to continue to detain them. iv. Detention after Zadvydas, Demore, and Clark 1. Post-order Custody Review a. Approximately 80 percent of those detained following a final order are either removed or released within the 90 day removal period. b. The remainder are entitled to prompt review of their situation to determine whether removal can be effectuated within the time frame set out by the Supreme Court or whether continued detention is justified. c. The detainee must first show that he has cooperated in trying to obtain travel documents and there is no significant likelihood of removal in the reasonably foreseeable future.
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I.

d. If the detainee makes these showings, he is generally to be released. e. He may still be detained if he falls into any of four categories: i. Aliens with a highly contagious disease that is a threat to public safety ii. Aliens detained on account of serious adverse foreign policy consequences if they are released; iii. Aliens detained on account of security and terrorism concerns; and iv. Aliens determined to be specially dangerous 2. Limits on Government Authority to Detain a. Tijani v. Willis, US Ct. of App., 9th Cir., 2005 i. Holding: Among other relevant concerns that might be considered are 1. The impact of the intervening decisions by the IJ and the BIA that Tijani is removable; 2. Whether the passage of time or the above decision gives rise to any alternate administrative remedies for Tijani; 3. Whether any delays were attributable to Tijani; and 4. Whether the delays give rise to an implication that detention no longer serves the purported immigration purposes b. Nadarajah v. Gonzales, US ct. of App., 9th Cir., 2006, pg. 1144 i. Facts: Sri Lankan guy who had been granted asylum and DHS kept filing motion to reconsider, motions to reopen, etc. He was detained for 3 years, despite the fact that every time the case was appealed he won. The government used the part of the statute stating that an alien may be detained pending his asylum application and that inadmissible aliens could be detained. ii. Holding: The general immigration detention statutes do not authorize the AG to incarcerate detainees for indefinite period iii. The statues permit detention only while removal remains reasonably foreseeable. iv. After a presumptively reasonable six-month detention, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing. Employer SanctionsNOT ON TEST a. 274A i. Unlawful to hire, recruit, or refer for a fee a person who is not authorized to work in the US.
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ii. Hirethe beginning to work for wages or other compensation 1. Collinsmaking a mere phone call and offering a job does not

count iii. Employeesomeone who provides labor or services for wages or compensation 1. Does not include volunteers, casual hires, or independent contractors 2. Casual hires is really only limited to domestic employment a. Sporadic b. Irregular c. Intermittent 3. Independent contractorsgenerally someone who has his own business and is contracted to do a specific job, on his own time, who supplies his own tools and equipment, is available for hire to other people, and has a public business a. An independent contractor will have either a profit or a loss from the job he is hired to do b. He hires his own people to fulfill his contracts 4. Volunteersdont receive pay a. Have to be careful of indirect compensation b. Enforcement i. Verification process 1. Employer must verify, using an I-9, that the alien can work 2. Any person to be hired after Nov. 7, 1986, must complete an I-9 form 3. The form basically has two parts: a. The first part if for the perspective employee to fill out (all perspective employees . . . whether or not they are aliens) i. Must check whether a USC, LPR, or alien with authorization to work ii. The employer MAY NOT specify which documents are required for the job b. The second part is for the employer to fill out i. Employer must verify the identification documents the employee lists on the top part ii. The purpose of the documents are for: 1. Identification 2. To show employment authorization 3. Employers must retain completed Forms I-9 for three (3) years after the date of hire or one (1) year after the date employment ends, whichever is later. c. Violations i. Knowingly hire a person that is not authorized to work or continuing to employ a person unauthorized to work after you discover he is not authorized a. The employee must be discharged within a reasonable time b. What is reasonable?
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i. Two weeks have been found to be unreasonable 2. Constructive knowledge counts to knowing that a person is unauthorized to work a. Knowledge that may be fairly inferred, that through the exercise of reasonable care will be known b. Normally requires mens rea 3. No Match social security letter a. Must call the employee and give notice that the SS# came-up a no-match b. DHS passed a regulation that said, If an employer receives a no match letter, that triggers constructive knowledge. ii. Violation of the verification system d. Investigations i. ICE must have some sort of a lead based on some articulable facts that a violation has occurred 1. Knowledge of a high concentration of undocumented aliens in an area 2. The type of industry or company involved 3. A lot of people around that are not speaking English 4. Random audits ii. If there is some reason to believe a violation has occurred: 1. Notice of Intent to Find (NIF)letter saying ICE wants to inspect his I-9 forms and listing the alleged violations a. If the employer refuses or inexplicable delaysthat constitutes a separate violation 2. May issue a subpoena with the notice of inspection a. They may ask for all kinds of records 3. The employer must leave the I-9s with ICE 4. The employer must request a hearing before an Administrative Law Judge within 30 days of receiving the NIF a. If 30 days pass, the notice becomes a final order and is not appealable. b. Whether there is a settlement or whether the ALJ enters an order, there will almost always be a cease and desist order 5. The employer must file an answer to the NIF a. Then both sides can conduct discovery b. Then there is a hearing before the ALJ who makes a decision c. This decision can be appealed to the Chief Hearing Officer in Fall Church, Virginia d. Can then be appealed to the 5th circuit e. Defenses i. Must be alleged in answer ii. Good faith that the employee was authorized to work in the US iii. Documents substantially complied with what is required f. Mitigation i. Good faith ii. No history of immigration violations
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iii. Seriousness of the violation g. Criminal i. If there is a proven pattern and practice of hiring aliens who are unauthorized to work there could be criminal charges

Immigration Law
Overview of US Immigration Law - aliens all people who are not nationals of the US even people who are permanent residents and have resided in the US legally. o has always struck a disturbing chord o denotes dehumanizing qualities, and solidifies racial and cultural stereotypes. o better to use noncitizen - LPR Lawful permanent resident green cards - INA Immigration and Nationality Act General Regulation of Immigration - immigration law is almost entirely federal (international) - SC has held that Congresss power over immigration is exceptionally broad. - From 1940 to 2003 Agency in charge was INS o functions included law enforcement, inspection of arriving passengers, prosecution at administrative hearings, detention of noncitizens in connection with immigration proceedings, and processing applications for various immigration benefits. - Post 9/11 it was restructured by the Homeland Security Act of 2002 (HAS) into the Department of Homeland Security (DHS) o it dissolved the INS and transferred almost all functions to the DHS o the DHS was divided into three different agencies two enforcement agencies and one for service functions o Enforcement entitites: Bureau of Customs and Border Protection (CBP) headed by a commissioner and the Bureau of Immigration and Customs Enforcement (ICE) both agencies report to the Undersecretary of Border and Transportation Security who in turn reports directly to the Secretary of Homeland Security. o CBP border inspections take place in all ports of entry. o ICE mainly works in the interior responsible for investigations, intelligence gathering, detention , certain elements of deportation process, the registration of noncitizens, and other interior enforcement operations. o the immigration service entity is called the U.S. Citizenship and Immigration Services (USCIS) it handles a variety of applications for immigration benefits. - the Director of Shared Services manages the resources that the three DHS immigration bureaus share. - Department of Justice retains one thing: the Executive Office for Immigration Review (EOIR), which does one thing: adjudication. o made up of three units o (1) Office of Chief Immigration Judge: main function is to preside over removal hearings which are formal evidentiary hearings in which immigration judges decide whether to admit noncitizens to the US and whether to expel certain noncitizens who are already present. o (2) the Board of Immigration Appeals (BIA): hears appeals from the decisions of Immigration judges as well as appeals from certain USCIS decisions. o (3)Office of the Chief Administrative Hearing Officer (OCAHO): conducts evidentiary hearings in certain cases that involve the unauthorized employment of noncitizens and cased that involve certain forms of job discrimination 117

BIA decisions are binding on 9as modified by the AG) on all DHS officers and employees and immigration judges. LOOK at Organization Chart of Federal Immigration Services on page 6. Two technical warnings: o when it refers to the AG it is talking about the Secretary of Homeland Securtiy. References to the INS should be read as if they referred to the USCIS, ICE, o vast bulk of immigration regulations appear in title 8 of the Code of Federal Regulations. AG reorganized title 8 into chapters. The new rule creates a new chapter 5 to serve as a vessel for almost all the provisions that relate to the continuing powers of DOJ. Chapter 1 was conveyed to the DHS. o

Nationality - Citizenship can be lost. If citizenship was acquired by naturalization, the naturalization order can be revoked b/c of defects in the original order. - One can voluntarily relinquish citizenship by a process known as expatriation. - US citizens are not subject to immigration restrictions o They may even sponsor certain of their noncitizen family members for admission to the US. The Admission of Noncitizens to the United States - Two major distinctions b/w nonimmigrants and immigrants - nonimmigrant: usually temporary entrants, like tourists, business visitors, students and temporary workers. o must still clear two major hurdles, fit within one of the statutory pigeonholes, and must not fall within any of the inadmissibility grounds. - immigrant: every other noncitizens: both LPRs and undocumented immigrants o three main programs: Family reunification, employment and diversity o it is not a first come first serve, INA gives preferences - refugee: generally defined to require a well founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion. o overseas refugee program: has numerical limits o asylum program: which is not subject to numerical limits - once admitted as a nonimmigrant one can change status or have an adjustment of status - There are several stages at which a person seeking admission can be turned down. Depending on the stage, the applicant might or might not have a right to a hearing or an appeal. Expulsion - many grounds for the removal of deportable noncitizens o deportability grounds reflect a range of national concerns relating to economics, crime, health, morality, politics and national security. o also designed to secure the integrity of the immigration inspection system itself Other Sanctions: - IRCA sanctions employers and certain others for knowingly employing noncitizens who are not authorized to work for hiring persons w/out observing specified paperwork requirements. - IRCA also creates a number of criminal offenses concerned with maintaining a workable system of immigration control. Three ways to become an Immigrant - Marriage - Employment - Diversity 118

IRCA - first time that congress intended to penalize employers for hiring undocumented immigrants - added an anti discrimination part to it - Legalization _ if you could show that you were in the U.S. before Jan. 1 1982 you are a citizen - Clause for Special Agricultural workers if you worked in agriculture you were a citizen only thing you needed was an affidavit huge allowance for fraud. IIRIRA.

Chapter 2: Immigration and the Constitution


Section A. Sources of the Federal Immigration Power Where, exactly, does the federal govt get the power to regulate immigration. Fed Govt has enumerated powers or only those necessary and proper for executing the various enumerated powers. 1. The Enumerated Powers a. Commerce Clause - traditional theory: to invalidate state attempts to regulate immigration on the ground that it was infringing on the federal power to regulate commerce with foreign nations. o is the movement of people considered foreign commerce o Head Money Cases first time court addressed the constitutionality of a federal statute that regulated immigration said if you regulate commerce you have to regulate people. - Second theory is that interstate commerce clause permits Congress to regulate activities that substantially affecting interstate commerce even when effects are indirect. b. The Migration or Importation Clause - Article I 9, cl 1 implication appears to be that Congress may prohibit migration and importation after 1808 of persons. but historically this meant slaves. c. The Naturalization Clause - Art. I, 8, cl 4 to establish a uniform Rule of Naturalization. - immigration control brought within the naturalization clause with a little help form the necessary and proper clause. Although naturalization and immigration are not synonymous. o to be sure, admission and expulsion, which concern the physical movement of noncitizens into and out of the US, differ from naturalization, which concerns membership in the nations political community. - Naturalization is the incorporation of a noncitizen into the citizenry (to join the political community) the only thing you cant do is run for president. d. War Clause - Art. I, 8, cl 11 authorizes congress to regulate alien enemies i.e. nationals of countries with which the United States is at war. But probably cant stretch it to alien friends. 2. Implied Constitutional Powers. historically in 1868 U.S. and China encouraged immigration from either country. U.S. wanted to bring cheap labor to build the railroads o it said everybody had an inalienable right to change ones home. 119

In 1882 Congress restricted immigration but allowed those already here to stay here and be able to go back. This Act also prohibited states to naturalize Chinese immigrants. Chae Chan Ping v. United States. Landmark cases on immigration law. Facts: - Chinese laborer was excluded when he returned from a visit to China. He had a certificate that allowed him to return. Before he came back, U.S. passed a statute that discontinued the certificate program - He challenged the validity of the new statute on grounds that it contradicted a treaty, and that it violated the Constitution. Issue: - Does the U.S. govt have the power to exclude aliens form its territory, is it within their constitutional power. Holding: - U.S. can exclude aliens Analysis: - Two theories to challenge: o It violated the U.S.- China treaty o the Constitutionality of the statute didnt really point to a particular part of the constitution he pointed to the lack of a provision - Said that even though it is not enumerated in the constitution it is an implied power. - Jurisdiction over its own territory to that extent is an incident of every independent nation. o the jurisdiction of the nation within its own territory is necessary exclusive and absolute. - part of the powers of a sovereign to preserve independence, for protection and security. - if China has a problem with it, the complaint must be made to the political department. - seems to be a deference to the legislative and executive b/c it deals with foreign policy side note: he couldnt raise an equal protection claim b/c 5th amendment had not been yet incorporated to have an equal protection element.

If the federal govt cant regulate immigration or foreign policy, who can? the states? - the need for uniformity is a strong policy reason for federal control - BUT states argue that the disproportionate effects of immigration on certain states should entitle those states to make policy unilaterally 3. Beyond the Constitution - In US v. Curtiss-Wright Export Corp Sutherland all sovereign powers remained with the states in their collective capacity, that is the federal govt. - no federal sovereign power is dependent on the affirmative constitutional grant. 4. Residual State Power - Whether preemption will be found will depend on the scope of both the federal action and the state action. - We need to define exactly what is immigration regulation. Section B. Limits to the Federal Immigration Power Prior to IIRIRA there were distinctions b/w exclusion and deportation. 1996 IIRIRA abolished that terminology. o Since 1996 the name of the proceeding in which both kind of determinations are made is a removal proceeding. o There are still separate grounds of inadmissibility and deportability for those who seek admission and those who have already been admitted, respectively 120

1. The Foundation Cases - The Chinese Exclusion Case appeared to address only the question of whether Congress had the power to exclude noncitizens (or possibly, the narrower question whether Congress had the power to exclude a particular class of noncitizens. o BUT what about the limits on that power? o Three distinct theories for holding congressional decision conclusive upon the judiciary (in the last printed paragraph) - (1) sovereign powers - (2) license - (3) political department Exclusion and Deportation - exclusion; procedure was for aliens who were trying to enter the U.S. o after 1996 word entry was changed to admission o for entry one had to be present in the United States, free from control of Immigration officers. - NOW we only have one procedure: Removal Procedures Ekiu Case denied entry because she might become a public charge she files habeas corpus. court held that the process did not require judicial review, that the fact finding of the inspector that the executive power has. (Federal Power) the administrative officer has the power to make the decision of who is excludable. o the procedure of the removal procedures are reviewable by the court (this was decided later)

The power of congress to deport aliens? Geary Act, - Chinese person is deportable unless he can rebut the presumption with a certificate of identity, requiring that the immigrant was physically present the day of enactment, and prove residence. If you were unable to get the certificate, needed to show extraneous situations and a white person to testify to his residency. Foe Yue Ting v. U.S. it took 15 days from the day of arrest to get to the Supreme Court. made a racial argument. Ting argued he had a vested argument to stay in the U.S. unlike the Ping case this was not an unanimous decision. was there any other provision in the constitution that Ting could show it was violated? o power to deport is not plenary as the power to exclude. o Deportation is not punishment therefore the constitutional protections offered to criminals are not involved in the deportation cases. Especially the expo facto dont apply in deportation b/c it is civil in nature, and expo facto laws only apply to criminal statutes. a year later, congress allowed to give more time to get registered b/c they ran into the problem of the money of deporting all these people. Congress may deport aliens when they decide that it is necessary and expedient for the public interest.

Should there be foreign policy considerations to control the borders? What about deportation what are the foreign policy considerations? - we might want to deport b/c they are alien enemies. - we might want to deport people from not friendly countries. 121

a lot of this is foreign policy is retaliation. or to make a favor for another country.

Ping had lived in the U.S. then left and tried to come back Ekiu never came in to the U.S. and was excluded Ting was a resident and was deported. SC found that congress had plenary power to deport these people? Could Congress make the decision based on race, sex, and political grounds? Wong Wing case statute called for detention and required to perform hard labor when placed in deportation proceedings. Held unconstitutional b/c it required punishment, then you must give them the constitutional rights. Knopf Case SC rules that the admission to the U.S. was a privilege rather than a right, and exclusion of the foreign citizen is a sovereign act. whatever the procedure authorized by Congress is, it is due process as far as the alien deniability of entry is concerned. Mezei Case - long time resident of the U.S. excluded when he came back after going to Hungary (where he gets stranded). - exclusion based on confidential information and not disclosed to Mezei, and deported w/out a hearing. - files habeas corpus o challenging that his exclusion violated due process clause for failure to disclose evidence he also faced permanent detention. - Court cites Knopf didnt matter he was a resident unlike Knopf who had never been in the country. o Mezei had not made an entry because he was only on Ellis Island, even though he is physically present in the U.S. o parole alien arrives at port of entry, inadmissible, but govt lets him come into the United States. o he was paroled in. - DISSENT: held that due process would be violated if it was accompanied if he faced permanent detention. This decision: exclusion power is a fundamental sovereign attribute exercised by political departments, largely (however not absolute) immune from judicial review. Decision based more on national security reasons. should there be a distinction b/w initial entrance and returning entry? o returning resident has a bigger interest in coming into the country. Mezei had been behind the iron curtain.

Placencia - she lives in California, goes to Mexico for two days, but upon her return, she tries to smuggle two undocumented - ordered excluded in less than 24 hours w/out representation. - long time resident of the United States.

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SC reaffirms the sovereignty of the political issues in favor of the govt. The role of the judiciary is to determine whether the procedures meet the essential standards of fairness under the due process clause. o what is the procedure basically? to determine if Placencia can enter or not. o she was arguing that she should be under deportation proceedings rather than exclusion proceedings. why? because alien has more rights under deportation proceedings.

Chiu and Placencia there is a slight erosion of the absolute power in exclusion proceedings Nataya - a little bit different in deportation proceedings (delayed exclusion) - she should have been excluded so they went back and arrested her. - she didnt speak English and didnt understand she was in deportation proceedings, and had no time to prepare for the case - SC said that the statute requires that in this type of proceedings, that alien be given notice of all charges and an opportunity to be heard. o inspector officer could not deprive of essential due process o but still they said that they met the required type of proceedings, and so it didnt warrant judicial intervention. - it seems though that the courts that they wont give the statute a reading of unconstitutionality. o court wont substitute their interpretation on what a proper hearing should be. Harisiades - three LPRs that had been in the U.S. for so long (came in as teenagers), no conviction of criminal offense, basis for deportation was that they at one time were part of the communist party. o they issued the order of deportation but didnt enforce it until 14 years later. o in 1918 Congress authorized the deportation of alien who is a member of any kind , in the believes in the overthrow by force or violence of the US. o in 1939 Kessler SC gave a very narrow interpretation of this statute to be deportable you had to be a present member, past membership didnt matter. so Congress revised the statute to say that past membership did matter. - Harisiades argued against deportation. o substantive due process, bars deportation of LPRs o deportation required reasonable basis o violates the First Amendment free speech and freedom of association. o retroactive application of this new ground violated the expo facto clause of the constitution. - Justice Robert Jackson: had been lead prosecutor of the Nuremberg trials o they did not rule about the nature of the communist party o immigration officer makes the decision that the communist party dedicates itself to the violent overthrow of the US. based on some evidence: introduced the writings of Marx and Engels. o SC rules: LPRs are entitled to protection by the constitution (all due process) court had recognized that they had never found Congress to be denied the ability to end hospitality what Jackson did was to blame Harisiades for not becoming a US citizen. reinforce the sovereign power to expel aliens. o First Amendment does not protect speech that advocates the violent overthrow. o Expo facto does not apply to deportation since deportation is a civil proceeding and not a criminal proceeding. 123

Critic said this decision was more like a brief for the government rather than a judicial opinion.

Fialo v. Bell - fathers of children out of wedlock couldnt file a petition for their children. - SC rejected due process claim. o limited judicial review! to review congressional action, in the admission of aliens Mandel Case - statute after 1952 prohibited certain people coming into the US based on ideological views. Mandel was denied a visa certain US citizen professors filed suit claiming a violation of first amendment rights. - court held that govt was restricting his movement, but not his ideas. - facially legitimate govt action to restrict his entry. Classic Immigration case: Francis case - 212(a) list for grounds of inadmissibility - 212(c) waiver of grounds of inadmissibility (it has changed so many times) o under this former 212 (c) BIA held that an LPR who was returning to the US to an unrelinquished domicile of 7 yrs was eligible for that waiver. - Francis had a drug conviction.- asked judge for the waiver once in deportation proceedings. Court ruled that detention was permissible only for a period necessary to remove. if not removable no reason for detention. Two big problems fro deportation: - country will not accept them. Clark v. Martinez - files habeas corpus to challenge their indefinite detention Kim Case - mandatory detention on a ground of deportation. Kim conceded but challenged it as a violation of due process. - Court of appeals concluded that he could at least have access to a bond hearing. SC found that they had jurisdiction to hear the case. IN 5-4 decision held that the mandatory detention was constitutional. Distinguished Savitas b/c he no longer was facing deportation while Kim was, and in the Savitas case the detention was indefinite, while Kims wasnt. LPR/ immigrant is not a citizen, cannot vote, certain govt jobs that LPR cannot hold. Certain family members that an LPR cannot petition. LPRs can loose their status and be deported. Everytime the LPR makes an entry he is subject to be found to be inadmissible. To obtain citizenship, - family members - employment based - diversity visas - Registry (since 1972) - Cancellation of Removal you automatically acquire lawful permanent residence. - G visas : for people who work for govt. - CIA granted some visas. - visas based on working for international organizations 124

Family Based Immigration Law Two Categories - Immediate Relatives o children of US citizens (unmarried under 21) 101 (b)(1) to children of killed in battle soldiers o spouses of US citizens includes widows/widowers the marriage must have been for at least 2 years or not remarried or legally separated I 360 must be filed within 2 yrs of spouse death Battered spouses self petition resided with the spouse eligible for the visa o Parents of US citizens over 21. - Preference Aliens I 130 In Spouse case: - have to prove that spouse is a US citizen - show the relationship: marriage certificate/license o all prior marriages must be terminated o religious marriages not recognized b/c they are not recognized in the country o common law marriages are recognized declaration of informal marriage sometimes a declaration of divorce proves the marriage and you take the date the divorce was decreed. o prior marriages can be terminated by death certificate o the marriage has to be valid in the jurisdiction were is performed. no common law marriages recognized in Mexico. o marriages for immigration purposes are not valid. o if marriage is valid at its inception but later the parties separate, it is still valid, you can still sustain a valid visa petition, as longa s it was valid when entered in to the marriage. What was the parties intention when they entered into the marriage? the test is whether at the inception of the marriage, the parties intended to establish a life together. - Immigration Marriage Fraud Act (MFA) o at the time the spouse obtained permanent resident status if the marriage was less than 2 yrs old, then the alien received conditional lawful permanent status conditional status may be terminated if they failed to file to take away the conditionality after filing for petition. Law requires that the couple file a petition to remove the conditional status 90 days prior to expiration. Failure to do so the permanent residence is terminated. Adams v. Howerton ISSUE: whether the spouse within the meaning of section 201(b) of the Act must be an individual of the opposite sex; and second, whether the statute, if so interpreted is constitutional (rational basis test)? - the question turns to whether the marriage is valid under state law? o Court concluded that Congress intended to include as spouse a man+woman relationship. - next question was the constitutionality of the law, because it violates the equal protection clause. 125

concluded that it wouldnt apply strict scurity because it discriminates on basis of sex, but reaffirmed that Congress has almost plenary power to admit or exclude aliens, and the decisions of Congress are subject only to limited judicial review (BASICALLY a minimum scrutiny) Court rules it was not unconstitutional to deny spouses of homosexual marriages the preference accorded to spouses of hetereosexual marriages. o

Definition of Child 101(b)(1) and (2) Child (for immigration purposes): - under 21 and - Not married - It may depend on the kind of marriage. - Once child reaches the age of 21 or gets married he is no longer a child and becomes a son and daughter. The child could have been married but then divorces, if he is unmarried it is still fine. o Immigration service or BIA may not impose requirements that are not imposed in the statute Palmer v. Reed. CHILD MUST REMAIN UNMARRIED until LPR status is granted and before they immigrate. Stepchild: - under the age of 18 at the time of the creating of the marriage. - May arise out of wedlock (to wife or husband) - mother (USC) can claim for her child born from an adulterous relationship. - If biological parent dies must show that there is still a familiar relationship. - Once the stepchild immigrates he can file a petition for all step parents and biological mother as long as he was under the age of 18. Illegitimate child: - must be legitimate before the age of 18. - Legitimation must take place under the childs residence or fathers domicile inside or outside the US. - 1. child must be legitimated - 2. that legitimation occurs before age of 18 - 3. such legitimation, must occur with legal custody) of legitimating parent or parents. . - If legitimation occurred abroad look at the law of legitimation in that country. If the laws of the country eliminate all the distinctions b/w legitimate or illegitimate. o could be done a paternity suit. o or a written acknowledgement of paternity. (recorded at a civil registry) o OPEN and notorious recognition of paternity. Child (out of wedlock) Both parents can file - if benefit is sought by mother. - the father could also petition for child if the father has had a bona fide parent child relationship. o must establish paternity o also must have a BF relationship before the child turns 21 (generally established by a case by case basis) factors: financial support, emotional support, if they lived together, did the father recognize the child. Adopted Child - adopted under the age of 16 and who is in the legal custody or residing with the adoptive parents for two years (not in the US). 126

Three different provisions of the laws: 101 (g) and (f) and the Hague Treaty. Adoption must occur before the age of 16 o exception: if you are adopting a child, and dont want to separate sibling sibling must be under the age of 18, you can also adopt the sibling even though he is over 16. must reside in the legal custody with adoptive parent for two years. o may occur before or after the adoption. Physical custody is not required. Custody could be in only one parent. o residence means that adoptive parents has the primary parental control. Cant live with biological parent. Cant adopt a child immigrate the child, and then get child to file a petition for biological parents.

Orphan - must be under the age of 16 - who is an orphan? - must be petitioned by a US citizen. Once it comes to US must be adopted. Petition must be before the child turns 16. Petition can even be filed before the child is identified. - only qualifies as an orphan if parents have disappeared, abandoned child or died. - child must be under proper care. - no two year legal custody requirement. Remember distinction b/w immediate relatives and preferences. You can move around b/w them. There is a world wide quota, and a country quota. 480,000 visas. Accompanying and following adjoined: refers to derivative beneficiaries. Accompanying beneficiaries could be spouses and children. even if they come in 6 months later. Spouse or child cannot come to the U.S. before the principal beneficiary. They have to immigrate at the same time or 6mos after. HOW AND WHERE DO YOU APPLY FOR A VISA Visa pettion approved may be revoked for good sufficient cause. If the visa petition is to be revoked there must be some evidenced to support the revocation or a presumption. Death of petitioner provokes automatic revocation. It is possible for humanitarian reasons to stay in after revocation.

EMPLOYMENT BASED IMMIGRATION


Immigrant Visas (lpr status) First preference - Extraordinarily ability: recognized at the top of a particular field in a particular in their own country. i.e. athletics, academic fields (both are easy to measure) o it allows you to be somewhat creative. - it also includes outstanding researcher professors and teachers. This is unique, because the employer/ university has to submit the application for him. They have to be recognizable internationally. o the ones that get denied, are usually the ones that come from small companies. - multinationals managers and executives worked at least one year for a US company abroad and are being transferred to the United States. o employer has to act as sponsor. 127

Think for the second and third - what is the employers job requirement? PERM? Second Preference - employer must file for an employer labor verification with labor department. IT goes by the requirements the employer has for the job. what is the employers job requirement? o job that ordinarily requires that the individual filing that job have a masters degree or higher in that particular field. o needs a graduates degree. o you can get the exceptional employee to go around the labor certification, but you have to show that this person is really exceptional. - national interest in the U.S. part of law since 1990. BUT New York Bridge/Transportation case. Third preference - Skilled workers, a job that might include a bachelors degrees or two or three more years of employment experience. PERM has streamlined things dramatically. It allows paper filing. Employer must show a prevailing wage for the job in question. Then the employer is going to advertise/recruitment. Above bachelors degree professionals which requires more recruitment. mandatory one ad every Sunday, then a second Sunday add, where the job is advertised with the requirements (description), and employer must be identified in the ad. whole person of the labor verification is to show that there is no USC that meets the qualifications or that is willing to take the job as offered.. The advertising has to be done in the US. Idea of labor verification is to protect the US workforce. After the add then the employer has to do 4 other types of recruitment. Also an internal job posting for at least 10 days and have to put a legend that says you can contact the labor department. ITS THE EMPLOYER THAT HAS TO DO ALL THIS!! they have to keep a record to show that there was no USC to hold the position. Why do we care about the preferences? the visa bulletin, the second and third preference usually have a backlog. exceptional or national interest waivers. why would employers do a labor certification? especially for undocumented? fifth preference: million dollar investment fourth preference: religious visa, for individual that wants to stay b/c of religious reasons. Religious workers (not priest), nuns there are annul quotas NONIMMIGRANTS B1 (Business Visitor) B2 (Tourists) VISAS o visitors o not allowed to work in the United States. o can you extended? people that come in with a visa waiver or a green I 94 they cant get an extension. No way to get an extension. o To get a new 90 days, you have to cross the ocean. Cant leave then come back in from contingent territories. o you already need to have a visa slot in your passport, to be stamped into their passport from the U.S. consulate. o when they arrive they are at the mercy of the U.S. inspector, they could be admitted for 30 days and up to 6 months. o can extend B1 visa. IF extension is granted it is granted at the bottom of the I 94.

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If they are from a Trade Treaty Country and they are business men and trying to do business in the United States. E-2 (trade investor visa) o supposed to have no intent to remain in the United States. o Dont have to deal with the USCIS but the Consulate. o The applicant is required to come to the United States to develop and manage the operations of an enterprise in which the applicant has invested or is actively in the process of investing a substantial amount of capital. In addition to the investment in a business enterprise, the investor must be coming to the United States to develop and direct the operations of the enterprise in which he or she has made the investment. The applicant must have more than fifty (50%) percent ownership of the investment, unless the applicant is coming as an employee of the enterprise o what is the difference b/w and E-2 (nonimmigrant) and EB5 (immigrant visa) o what can kill the E-2? Investment with a U.S. citizen. o The investor must be a majority owner!!! o It could be up to 5 years. but usu. its two, then three, then five. The E-2 visa was established to give effect to those treaties between the United States and certain foreign countries that provide reciprocal benefits to nationals of each country who invest in the other country. The E-2 "investor visa" is available to an applicant who invests a substantial amount of his own money into a U.S. business which he can control and direct. The investment can be to purchase an existing business or to start up a new one. The investor visa is based upon an existing treaty or agreement between the United States and the applicant's homeland to advance trade and/or commerce. Some countries have limited their treaties with the U.S. to only provide for "trade" between the two countries. Other countries have both trade and investment provisions. Requirements for an E-2 For a successful E-2 visa, the applicant must show: The existence of a treaty or agreement between the U.S. and the foreign country that includes reciprocal investment provisions Majority ownership or control of the U.S. business is held by nationals of the home country of the applicant The business must be real and active - not passive The investment cannot be solely for purposes of earning a living for the applicant, but must also provide job opportunities or generate income or some economic benefit for others There must be a "substantial investment." The issue of whether an investment is "substantial" is complex and proportional. It's generally defined as the amount invested, weighed against the total value of the enterprise for established businesses, or the amount normally considered necessary to establish a viable enterprise for a new business. An application form OF156 with photographs Application Fees E-2 visas are also available to employees who have the same nationality as the company. These employees must be managers, executives or highly-trained, specialized and essential employees. The duration of the visa varies from country to country but it is renewable upon submission of continuing qualification E-1 (treaty trader visa) 129

o o o o

The applicant must be coming to the United States to carry out substantial trade or to develop and direct the operations of an enterprise that has commercial trade with the applicant's country of nationality. Is there going to be an exchange of goods? It requires no investment whatsoever. Perfect for people who import and export b/w Mexico and the United States. Advantages of the E-1 Visa Classification o Application for an E-1 Visa is made directly to a U.S. consulate. There is no need to submit a preliminary petition with U.S. Citizenship and Immigration Services (CIS). o There is no cap on E-1 Visa extensions. Disadvantages of the E-1 Visa Classification o E-1 Visa Treaty Traders may only engage in employment that is consistent with the terms and conditions of the activities forming the basis for their E-1 Visa status. o There are strict requirements on the nationality of individuals and the level of trade necessary to qualify for E-1 Visa status. o Under NAFTA arrangements, the usual documentary waiver provisions (such as the visa exemption) that normally apply to Canadians do not apply to the E-1 Visa classification. Family o Spouses and children under 21 may also receive E-1 Visa status. o The nationality of a spouse or child of an E-1 Visa treaty trader is not material in determining eligibility for E-1 visa status. o Spouses may obtain employment authorization. o Spouses and minor children can also attend school. Points of Interest o Regulations require only that E-1 Visa visitors intend to depart when their status terminates. E-1 Visa visitors do not have to maintain a foreign residence that they have no intention of abandoning. o Dual Intent: An application for initial admission, change of status, or extension of stay in E-1 Visa classification may not be denied solely on the basis of an approved request for permanent labor certification or a filed or approved immigrant visa preference petition. o Individuals may change to E-1 Visa status or extend their E-1 Visa status by filing the necessary documents with the appropriate U.S. Citizenship and Immigration Services (CIS) Service Center. However, most U.S. consuls will adjudicate the E-1 visa application without regard to CIS approval. The consular officers are much more familiar with the E-1 visa category. Therefore, the value of going through the CIS Service Center is debatable. o One interesting and little known feature of the E Visa category is that an individual may be admitted with a two-year I-94 even though the visa may be valid for a lesser time. For example, a person with one week left on his E visa may still obtain a two-year I-94 upon entry to the U.S. o For Canadians, it is especially important to keep in mind that since they are NOT EXEMPT from applying for an E-1 visa, if they change status internally and depart, they will not be readmitted at the POE without first applying for the E-1 visa at a U.S. Consulate. This could be a costly inconvenience because it may delay their reentry by a month or longer

L 1 intracompany transferee You may be eligible for an L-1 visa if you've been employed for at least one continuous year out of the last three years by an international firm or corporation, and want to come to the United 130

States to continue work for the same employer as a manager, executive or in a position that requires specialized knowledge. You may qualify as a "manager" if you: Manage the organization, department, subdivision, function or component of the business Supervise and control the work of other supervisory, professional or managerial employees or manage an essential function within the organization or department or subdivision of the organization Have the authority to hire and fire or recommend personnel actions Have discretion over day-to-day business operations You may qualify as an "executive" if you: Direct the management of the organization Establish wide goals and policies Have wide latitude in discretionary decision making Receive only general supervision or direction from higher level executives You may be in a position requiring "specialized knowledge" if you: Have knowledge that's valuable to your employer's competitiveness in the market place Are uniquely qualified to contribute to your employer's knowledge of foreign operating conditions Have been a key employee abroad and been given significant assignments which have improved your employer's productivity, competitiveness or financial position Have knowledge that could only be gained through extensive prior experience with your employer In order to qualify for L-1 status, the company you'll be working for in the United States must be either a parent, branch, affiliate or subsidiary of the company you've worked for abroad. There must be common ownership and control of the two companies. L1 A could be up to 7 yrs. L-1 B Specialized knowledge of the company. o it does not lead to a green card. Only if he is transferred to a managerial/executive position. o it is for a much shorter time 5yrs. No quotas for either E visas and L visas. No requirement of how much a company must pay L visa employees. L-1 A and L-2 B Visas There are two kinds of L visas: L-1A-for employees in an executive or managerial position, and L-1B-for employees in a specialized knowledge capacity The L-1 visa is a non-immigrant work visa for employees in a specialized knowledge capacity or an executive or managerial position who are being transferred from a foreign company to a U.S. subsidiary, branch, affiliate or parent of the original foreign company. There are no limits to the number of L-1 visas that the US Immigration Service can issue per year and the petitioning company does not have to obtain a prevailing wage approval or file any documents with the Department of Labor. L-1 visa aliens may possess dual intent, allowing them to apply for a permanent residency concurrently with the L application. L-1A aliens do not need to go through the labor certification process when applying for permanent residency, however, L-1B aliens do. There is currently a premium processing option, which for an additional $1,000 in filing fees, the US Immigration Service will commit to process the application within 15 calendar days from receipt of the application. Processing the application does not mean that there will necessarily be a final decision after 15 days, but that there will be a response after this time. This response 131

may be a visa approval, a denial or it may also include a request for additional documentation from the petitioner or the employer. Click here for more information on premium processing. Employees who are being transferred from a foreign subsidiary, branch, affiliate or parent of a U.S. company: who are in a specialized knowledge capacity or an executive or managerial position and have been employed for at least one continuous year during the past three years, with the foreign subsidiary, branch, affiliate or parent of the U.S. company applying for them. L-1 visas may be granted for an initial period of up to 3 years and may be renewed for a maximum of 7 years for an L-1A and a maximum of 5 years for an L-1B. Any time spent under an H-1 visa status will count towards this maximum. However, for L-1A's, if after the 7 year period, the employee resides at least one complete year abroad, the clock starts counting again and the alien may be granted another 7 years in L-1A status. There is no time limit for aliens who reside intermittently in the U.S., or an aggregate of six months or less per year. This visa may be extended from the initial 3 year period in terms of 2 year periods up to the 7 year maximum for L-1A, or 5 year maximum for L-1B. Spouses and unmarried children under 21 are allowed as dependents under an L-2 visa. L-1 dependents are allowed to legally live and study in the U.S. without any additional permits, and the spouse of the L-1 visa holder may obtain work authorization. Petitioner Company's Information: Articles of organization for foreign and U.S. company affiliates Company brochures with description and addresses Number of employees of parent company and affiliate Financial Statements of both U.S. and foreign affiliates Documentation showing evidence of connection between the affiliates Letter of Support from Employer Alien's title, and detailed job description with any special skills relevant to the Salary and benefits offered Name and title of person who will be signing petition

position

Alien employee information: Copy of Beneficiary's Passport Copy of Alien's U.S. visa and I-94 (if alien already in the U.S.) Alien's resume or work history Alien's Diplomas and transcripts Alien's pay stubs or tax forms showing at least one year within the past three years of prior engagement with foreign affiliate StageOne: Obtain documentation as evidence in support of petition. For small companies, we can also help organize a company necessary, including the following steps: Application with the Secretary of State Application with IRS for Tax ID No. StageTwo: Prepare and file Petition with the US Immigration Service along filing fees for form I-129 StageThree: Obtain Petition Approval from the US Immigration Service Immigration Service is approximately 30-90 days or receipt 132

affiliate in the United States if

with the US Immigration Service - Processing time for the US of notice requesting additional

documentation or evidence to support application. In the latter case, we will work with the client to provide the additional information to the US Immigration Service and we will prepare a response with the appropriate analysis and legal argument. This last scenario would increase the amount of time required to complete the process and may also increase the legal fees due, depending on the amount of additional work required. (Note: Congress has directed the US Immigration Service to establish a process for reviewing and acting upon petitions on behalf of L non-immigrants within 30 days after the date a completed petition has been filed, however the US Immigration Service is seldom able to comply with this requirement.) Fees for form I-129, plus $1,000 if we will be requesting premium processing Click here to verify the US Immigration Service fees as these change regularly. H-1 B VISA Purpose of the H-1B : Enter the United States temporarily to engage in employment in a specialty occupation. Procedure o Apply at USCIS Service Center. Pro o Approved for 3 years, with an extension available for another 3 years. Unlike other non-immigrant categories, there is no dual intent issue with the H-1B or L -1. Con o H-1B cap of 65,000 per year and constantly changing rules surrounding process and fees. Family o Spouses and children under 21 receive H-4's for the same duration as the H-1B. Points of Interest One of the most welcome changes in the law for H-1B individuals occurred in October of 2000 when the American Competitiveness in the 21st Century Act (AC21) was signed into law. Included in AC21 was a provision on portability, that allowed previous H-1B holders to start with a new employer upon filing the new H-1B petition. This represented a drastic change in the law, because before AC21, individuals could not start with a new H-1B employer until the new H-1B petition was approved. There was also a recent change that allows for some individuals who are in the process of applying for a green card to obtain 7th year extensions on their H-1B while their permanent resident process is pending. More recent changes stem from the Fiscal 2005 Omnibus Appropriations Bill (H.R. 4818), which contains significant legislative changes to the H-1B category. While the bill does not expand the annual cap, it does allow for an additional 20,000 H-1B approvals during the fiscal year of October 1, 2004 to September 30, 2005 for foreign nationals who were educated in the United States and hold degrees at the Masters level or higher. In addition, the bill addresses the prevailing wage issue associated with an H-1B petition. As background, an employer is required to pay a foreign worker the "prevailing wage" for each particular occupation. The prevailing wage is generally determined by a state Department of Labor survey or through a private survey company. In the past, the prevailing wage was calculated through a two-tier system with a Level I being akin to entry-level with no supervisory duties and Level II serving as the wage for the more advanced employees. The two-tier system has been a widely known source of frustration and confusion. If enacted, H.R. 4818 will allow the prevailing wage calculation to be divided into a four-tier system to provide more flexibility in the salary determination. The bill, however, offsets this new flexibility with a requirement that the employer pay 100% of the determined prevailing wage rather than the current 95%. In addition to these substantive changes, H.R. 4818 adds significant filing fees to both categories. For initial H-1B petitions, including those filed to change employers as well as blanket petitions, the United States Citizenship and Immigration Services will require 133

payment of a $500 anti-fraud and detection fee, which is over and above the already established filing fees and the $1000 premium processing option. Moreover, an H-1B petition must also include a "U.S. Worker Training Fee" in the amount of $1,500 if the petitioner employs more than 25 individuals and $750 if the petitioner employs 25 people or less. This training fee, which was previously $1,000 for all petitioners, was eliminated through 2003 legislation. H.R. 4818 reinstates the fee requirement. Definition of an H-1B An H-1B is for individuals coming temporarily to the United States to perform services in a specialty occupation and who meet the requirements for that specialty occupation. A 'specialty occupation' means an occupation that requires: (a) theoretical knowledge, and (b) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the US . The H-1B is for individuals who possess a U.S. Bachelor's degree or its equivalent, and who are coming to the U.S. to fill a position that normally requires and individual to possess a U.S. Bachelor's degree or its equivalent. Requirements The two key requirements of an H-1B are to ensure that the individual qualifies, and to ensure that the proposed position in the U.S. qualifies as a "specialty occupation". Qualifying the Individual In order to qualify for an H-1B, the individual must possess a U.S. bachelor's degree or its equivalent. While possessing a U.S. bachelor's degree from an accredited college or university qualifies the individual's credentials for an H-1B, not everyone possesses a U.S. bachelor's degree. However, there are other options that allow an individual to qualify based on education and/or work experience. Therefore, in order to qualify for an H-1B, an individual must: o Possess a U.S. Bachelor's degree; o Alternatives to Possessing U.S. Bachelor's Degree Possess a foreign degree that is determined to be the equivalent of a U.S. Bachelor's degree; Possess an unrestricted state license, registration or certification that authorizes the individual to practice in that industry in the state of proposed employment; Possess education, specialized training, and/or experience that are equivalent to a U.S. Bachelor's degree. There are several strategies to employ when the individual does not possess a U.S. or foreign degree. The most common is to use an aggregate of the individual's education and work experience to establish an equivalency to a U.S. Bachelor's degree. In order to translate work experience into education, immigration uses the well-known 3 for 1 rule. This rule states that for purposes of determining equivalency to a U.S. bachelor's degree, three years of specialized training and/or work experience must be demonstrated for each year of college/university the individual lacks. For example, if the individual possesses two years of university education, he/she must show 6 years of work experience in that industry in order to obtain an equivalency. If the individual possesses no education, he/she must show at least 12 years of work experience in the industry. It is important to note that there is no requirement for any university education in order to qualify for an H-1B. There are many education evaluation companies in the U.S. that will provide professional education evaluations for H-1B petitions. They will provide an evaluation of a foreign degree, or evaluate an individual's schooling, training and/or work experience. Qualifying the Position as a "Specialty Occupation" In order to qualify for an H-1B, the actual position as well as the individual must meet CIS standards. A specialty occupation is a position that is professional in nature and one that 134

normally requires an individual to possess a degree in order to perform the requisite duties. Therefore, even though an individual possesses a Ph.D. in Thermodynamics, an H-1B petition would be denied if the proposed position was for a non-degreed occupation. The technical requirements with respect to a specialty occupation are: o full state licensure to practice in the occupation, if such licensure is required to practice in the occupation; o completion of the degree in the specific specialty required as a minimum for entry into the occupation; or o experience in the specialty equivalent to the completion of such degree, and recognition of expertise in the specialty through progressively responsible positions relating to the specialty. Immigration has identified an informal list of occupations that are known "specialty occupations", or positions that are known to require at least a U.S. bachelor's degree. They include: Engineers-Computer Systems Analysts-Engineers, Programmer/Analysts-Accountants- L awyers Scientists-Psychologists-Financial Analysts- L ibrarians Market Research Analysts-Teachers and Professors Journalists-Management Consultants-Architects This list is not exhaustive of those that qualify for an H-1B, but these are occupations that USCIS clearly recognizes to be "specialty occupations". Identifying a "Specialty Occupation" Sometimes it can be unclear whether a position normally requires a Bachelor's degree. Industry standards change, and some companies have stricter requirements than others. For example, some Graphic Design positions require a Bachelor's degree, while others only require an Associate's degree. If the employer is unsure whether a position qualifies as a "specialty occupation", they should submit additional documentation to meet that requirement. That documentation should include: Evidence that the position is so specialized that it requires someone to possess a degree; Evidence that the company normally requires a degree for that position; Evidence that people who currently fill a similar position, or those who have filled the position in the past, have possesses a bachelor's degree; Evidence that it is the industry norm to require a bachelor's degree. A great resource to use when analyzing industry requirements for a position is a book known as the Occupation Outlook Handbook (OOH). This book describes the duties involved for professional positions, as well as, the normal requirements for those positions. I have also found Internet postings such as Americas Job Bank and Monster.com a persuasive source of the industry norms for various professional positions. Must obtain approved Labor Condition Application from the Department of Labor In addition to qualifying the individual and qualifying the position, an H-1B petition must also contain an approved L abor Condition Application Form ETA 9035E ( L CA) from the Department of L abor. This is a form generated and processed by the DO L that ensures that the U.S. employer will not be adversely affecting U.S. workers, and that they will pay the H-1B employee the "prevailing wage" for that position in that geographic area. The first step in any H-1B petition is to obtain the prevailing wage for the position with the State Department of Labor. All H-1B positions must pay at least the prevailing wage as determined by the Department of L abor for that position and geographic area. After obtaining the prevailing wage, but before filing the H-1B, the next step is to obtain an approved Labor Condition Application ( L CA) Form ETA 9035E form the Department of L abor. This process has changed several times over the past 2-3 years, but it can now be accomplished over the Internet. The employer must also post the L CA's in conspicuous locations on their business premises showing that they are hiring an H-1B. The L CA postings must be up for at least two weeks (10 business days) and should then be kept on file in case of an audit. 135

H-1B must be temporary Like the L-1, there is no requirement that an H-1B applicant maintain a foreign residence. However, like most non-immigrant categories, there is the requirement that the H-1B placement is temporary in nature. Processing Procedures Initial H-1B petitions should be made at the Service Center with jurisdiction over the place of employment in the U.S. Unless filing for a change of status within the U.S. , the individual will then need to obtain an H-1B visa. Because Canadians are visa exempt, they do not need to go to a U.S. Consulate to obtain an H1B visa. After the H-1B is approved, unless it is a change of status, the individual simply goes to a POE to obtain an I-94. Duration An initial H-1B petition may be approved for up to 3 years. The individual may then receive an extension for another 3 years. H-1B status expires after 6 years, and the individual may not obtain anymore stay in H-1B status unless he/she has been outside the U.S. for a period of at least one year. (Unless the individual qualifies for 7th year extensions based on pending paperwork in pursuit of a green card) Helpful Advice for H-1B's Policies and procedures surrounding H-1B filings change on a monthly and yearly basis. In addition, each year brings more exceptions to the general rules and more wrinkles to H-1B portability, 7th year extensions, the H-1B cap and appropriate filing fees. Since there are no regulations that provide guidance to many of these issues, there are still many unanswered questions and too much misinformation with respect to these changes. An individual applying for an H-1B or looking to take advantage of a recent change in the law should make sure that they fully understand all of their options and how filing something today can possibly adversely affect them in the future. o Employer has to pay for the fees not the nonimmigrant o Institutions of higher education are not subject to the quota for H-1. They can file petitions year round (also research institutes). Doesnt necessarily be for professors, but other specialized. o Need to pay Fraud detection fee. o H extensions are not subject to the quota. H-2 Bs o temporary jobs. Its sort of a double temporary. o Show temporary employment and that the job is temporary in nature, that it is not an ongoing job. o The H2B working visa is a nonimmigrant visa which allows foreign nationals to enter into the U.S. temporarily and engage in nonagricultural employment which is seasonal, intermittent, a peak load need, or a one-time occurrence o The H2-B visa lets U.S. employers hire foreign-nationals on a one time, seasonal, peak load, or intermittent basis. The Broyles Law Office has previously helped landscaping companies, hotels, amusement parks, health care providers, etc. hire temporary workers. We have experience matching up foreign-nationals with willing American employers that are in need of temporary labor. o The H2-B visa has very few general limitations. However, the following requirements must be met: o The job must be one of the following:

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One-Time Occurrence The employer must establish that it did not employ workers to perform the specified work in the past, and will not need workers to perform the work in the future. Seasonal The employer requires a person to perform work which will recur predictably year to year. Peak Load The employer must establish that sought after labor will be used to supplement its permanent staff due to a short-term spike in demand for its products or services. Intermittent The employer has work which is by nature sporadic and unpredictable. o The job must also be for less than one year, be in a non-agricultural field (agriculture companies can take advantage of the H2A visa), and pass a market test. o The market test is the most challenging step of the H2-B process. One must determine the requirements that accurately describe the particular nature of the job, while maximizing the chances for a successful market test. o The H2-B allows the spouse and children of the visa holder to legally enter the U.S. under H4 status. This allows for school attendance. They require the employer to go through the Labor department. But the requirements are not as hard to do as the labor department requirements for immigrant visas. Only 60,000 H2 B visas. KNOW how it was Prior to the 1996 IIRIRA. Exclusion and Deportation it all depended if you made an entry. After 1996, they have put it together. 101 (a)(13)- the lawful entry into the U.S. after inspection and authorization by an immigration officer it means that person has been admitted. Visa Waiver all you need is a passport. It happens with various countries. They dont have to go to the consulate. BUT usu. process starts at the US Consulate Issue of admissibility arises in several cases. o if the alien is outside the U.S. the application for visa (nonimmigrant or immigrant) will be made at the U.S. consulate. o Then consulate must determine if that alien is admissible to the United States. o Then after getting the visa from consulate alien presents himself at the POE, and official has another chance to determine if alien is admissible. o When that person is in the United States that alien might want to apply for LPR. IF the person files the adjustment of status, he has to show again that he is not inadmissible. o 101(a)(13)(C) has a section that deals with LPRs being inadmissible, and unable to adjust their status. o for example 180 days out of the country. o Adjustment of status is from nonimmigrant to immigrant. o LPR cannot engage in illegal activity then grounds of inadmissibility will apply to the LPR. think of the Mezzi case. o parole: its the allowed physical admission but not considered to be admitted. Grounds of Inadmissibility: - commutable disease - psychological problems. o in order to be found inadmissible a class A certificate must be issued by a doctor. - drug abusers and drug addicts: must convince doctor you only tried it once. o no waiver for drug abusers 137

medical exam is usually an x-ray and blood test. mental problems might be waived but govt might ask for a bond. HIV positive must prove you wont become a public charge. THE BIGGIE convictions (or admitted, or essential elements of crime) of crime of moral turpitude, control substances. o petty offense did not exceed one year, and not sentenced for six months or more. o irregardless if they were crimes of moral turpitude, if there was multiple convictions and confinement was more than 5 years inadmissible. 212(a)(2) (also there is diplomatic immunity from prosecution but if he leaves and wants to come back he is inadmissible).

Waivers for Inadmissability 212 (h) - no waiver for certain crimes, torture, control substance violations, exception possession of marihuana of 30 grams or less. - waiver if spouse, son/daughter, parent is USC or LPR and denial of the waiver would cause extreme hardship. Returning LPRS, refugees and Asylum. Expedited Removal reason that it happened it was b/c back in the 80s there was a lot of people getting on planes going to NY claiming political asylum. Crimes of moral turpitude defined that is some act which is per se morally reprehensible (malum in se) bad in it of itself. Not a really good definition. - theft, fraud, sexual crimes. - must look at the definition of the statute not at the circumstances of the case. If the statute says is a moral turpitude crime (malum in se). - you look at the record of conviction (indictment) - you look at the plea. - you look at the verdict. - you look at the sentence Marciano Case p.550 charged with statutory rape. Mistake of age in the statute was not recognized. So it was a crime of moral turpitude. Also argue that the statute was unconstitutionally vague but the court said it was. Dissent: three options. 1. Crime does not involve moral turpitude unless every hypo you can think of could violate the statute. 2. Crime in its general nature, which in the common usage would be a crime of moral turpitude. 3. Must examine the facts in a particular case, in other words, go behind the record of conviction. IN REMOVAL PROCEEDINGS you need a conviction. Definition of Conviction (1)where there is a formal judgment of guilt entered by the court, or (2)adjudication is withheld (deferred adjudication) the following elements are present: - judge or jury found person guilty - person plead guilty or no lo contendere (or admits sufficient facts to warrant guilt). - judge has ordered some form of punishment, penalty, or restraint on the persons liberty. i.e. fines, probation, jail time. pretrial diversion is not a conviction for immigration purposes. You can vacate a conviction (but hard to get) it has to go back and attack the original conviction (you cant say just comply with probation and then vacate) 138

Definition of conviction is retroactive (as of 1996). Sentence what matters is whats on paper, not if the person actually served jail time. - State Rehabilitation statutes: still convicted even if you are rehabilitated (unless the state statute says the conviction is vacated on the merits or some statutory or constitutional grounds) - If you enter no plea and get put on probation, the judge may dismiss it completely at the end of probation and you will have no conviction - The sentence to confinement refers to the time ordered by the court??? Find OUT GROUNDS OF REMOVABILITY!!! (find out about the different categories of controlled substance violations) AGGRAVATED FELONIES - 5th circuit is very tough in interpreting drug trafficking cases. - look at the case law to determine if the crime is aggravated felony. - Have also to consider which circuit you are in. o Trafficking in controlled substances. o In most instances is not possession. - crimes of violence o 18 USC 16. must be convicted of the crime but it also the sentence must be of at least one year (actual sentence of the year not the maximum possible sentence of the crime). * Theft with sentence of one year or more is aggravated felony, of a year or less, not 16. Crime of violence defined (defined in [statute number-figure it out]) The term crime of violence means-(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. (whats underlined is what causes problems) reckless could be a crime of violence. Examples: arson, assault, burglary of habitation, child abuse, manslaughter in first degree, sexual assault, terroristic threats, unauthorized use of a vehicle (joyriding). Not crimes of violence: DUIs. Aggravated felonies can be retroactive. You may not be granted political asylum. Citizenship o Constitution did not really specify who could be a president. o 14th amendment all persons born or naturalized. o jus sanguinus citizenship by descent. in some parts of the world that is the only way to get citizenship. o Deriving citizenship, is more challenging, acquisition of citizenship, depending upon birth of parents. Application is N-600 o Naturalization: limited to people who become USC. exception from certain persons who served in armed military. o Application for Naturalization N-400. o After legal permanent resident status, 5 years later you can apply for naturalization. o exceptions to do it more quickly: if you married a USC, you have to be a legal permanent resident in 3 years. they have to be residing together during those three years. 139

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another exception if your spouse is in the military. BUT they review your life ALL OVER AGAIN. SO inquire HOW THEY IMMIGRATED? If they got their green card through fraud? they might loose they lpr status, and be placed under removal proceedings. person has to be a person of good moral character. DUI is considered a factor of no good moral character that finding has not been challenged in San Antonio. Wait 5 years after that offense so you have good moral character. standard is different of good moral character to become a lpr. other factor is how much time have they spent in the United States. if something happened during that 5 year/3 year period of lpr, you wont be able to get failure to file an Income Tax Return, is a sign of good moral character. once you are an lpr, you have to file for taxes on ALL you earnings, abroad or in the United States. Once a parent LPR naturalizes, lpr children can apply for naturalization it happens automatically.

Acquisition and Derivation: o Birth, Naturalization, Acquisition and Derivation (sanguinus) o acquiring at birth o child born abroad of two USCs gains citizenship at birth, even if they dont know it. o one parent is a foreign national and other parent is USC child born abroad child is a citizen depending on whether parent had residence in US, is the child born out of wedlock, did the father legitimize. and it also depends on when the child was born. because the statue changed. o everything had to occur prior to birth. o acquiring after birth. o can the child derive citizenship after birth. o child must come to the U.S. and be here lawfully, and prior to the age of 18 have a parent USC, and be in the physical custody of the USC parent. Denaturalization: o after naturalization you sue (civil) in federal court. o if it was brought by fraud o or not eligible for it o there is evidence that is now available. suit would go forward as usual suits go. o courts have had the final say of you can loose nationality, naturalization. o the power to take citizenship away from someone can be a potent power in the arsenal of the govt. o courts have the final say. o in 1990 congress INA for the very first time congress took the power to bestow naturalization from the courts, and gave the attorney general the sole power to grant naturalization. o courts are still involved but the final say was on the AG. o AG also has the power to denaturalize through the administrative process, within a two period of time, from naturalization, on fraud, mistake, not eligible for it, or new evidence available. 140

very dubious statute. IT was challenged, as constitutional and statutorily grounds. Gorbachev case in the 9th circuit regs and act was unconstitutional. govt is no longer using the administrative procedures to denaturalize. so NOW we are back to pre-1990. naturalization and denaturalization belongs to a class of individuals who have immigrated who have obtained permanent residence. o o

Naturalization o admitted as LPR o usually within 5 years after admission of LPR you can apply for naturalization. GMC. o if through marriage you can apply within 3 yrs. o Quintus - for purposes of the gmc requirement, materiality is not a requirement. o What is the majoritys test: o a statement that has a natural tendency to deceit that would be a material misrepresentation (willful) it does require materiality. Expatriation o Taking citizenship away!!! o If person does something that makes govt think he should loose his citizenship. o it used to be a softer test. o 349 INA there are a series of provisions that if you engage in those activities outside the united states you can loose your U.S. citizenship Random Notes- When an agency does not follow its own rules, there is a due process argument. - Suppression of evidence is not available in deportation proceedings - No double jeopardy in deportation - No fourth amendment rights for search and seizure when entering the US (must be reasonable, but no probable cause is required) (at the checkpoints) - Roaming patrols do need reasonable cause (RPP) - Letting someone out on their own recognizance: 1. Is he a flight risk? 2. Is he a danger to society? - Generally there is mandatory convention for those -Ineffective assistance of counsel: 1. What would a regular counsel have done? 2. Did the assistance lead to the negative outcome of the case? - Hearsay is admissible - If a person has previously been ordered removed, and re-enters without permission, they do not get another hearing - The US can order an alien departed to pretty much anywhere

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REVIEW IMMIGRATION DEBATE: GOALS, STRATEGIES, AND IMPACT The History: Charles Gordon, Stanley Mailman, Stephen Yale-LoehrImmigration Law and Procedure Immigration from Selected Countries and Regions IMMIGRATION AND THE CONSTITUTION Sources of the Federal Immigration Power: Nowhere in the Constitution does it expressly authorize the federal government to regulate immigration. So where does this power come from? There are several arguable answers. The Enumerated Powers The Commerce Clause: Congress may regulate commerce with foreign nations. There are two general theories. The traditional one emerged in the 19th century when states were trying to regulate immigration and they had to decide whether federal powers were being infringed on. Four justices regarded the actions as usurpations of the federal power to regulate commerce with foreign nations. The issue was, can people be objects of commerce? Some showed their reservations. In the Head Money Cases of 1884, the Court considered the constitutionality of a federal statute that regulated immigration and unanimously upheld it as a valid exercise of the congressional power to regulate commerce with other nations. A second theory: The Supreme Court has held that the Interstate commerce clause permits Congress to regulate activities substantially affecting interstate commerceeven when the effects are indirect. The effects of immigration may be complex and controversial, but definitely substantial. Both theories can be advanced: Immigration affects interstate commerce, or the affecting commerce principle extends to the international branch of the commerce clause. The Migration or Importation Clause
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The Migration of Importation of such Persons as any of the States now existing shall think proper to permit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight. The implication here is that Congress may prohibit migration and importation after 18-8. Justices in the Passenger cases differed on whether the power is relevant to immigration. Historical sources say clearly that it had to do with slave trade. The Naturalization Clause Article I, 8 authorizes Congress to establish a uniform Rule of Naturalization. It is important to note that Naturalization (letting people into the political community) differs from admission and expulsion. Justice Taney dissented in the Passenger Cases, arguing that the article has nothing to do with admission or rejection of aliens or with immigration, but rather with the rights of citizens. Congress has made lawful admission as a permanent resident a prerequisite to naturalization in exercising this power. Can they go on from there to specify the conditions for such admission? The War Clause Congress has the power to declare war. If they can regulate alien enemies, so nationals of countries we are at war with, can it be stretched enough to cover regulation of other noncitizens (alien friends)? In other words, can it be interpreted as allowing us to pass such laws to prevent war? Implied Constitutional Powers: What about those powers neither expressly enumerated or considered necessary and proper for executing the enumerated powers? Can there be a general implication in the Constitution? Chae Chan Ping v. United States (The Chinese Exclusion Case) Facts: Ping, a Chinese laborer, immigration to the US in 1875. In 1982 Congress suspended all future immigration of Chinese laborers. However it also said that those who were there previous to 1880 were free to leave and return. Ping got the necessary certificate and left in 1887. While in Chine Congress passed a law discontinuing the certificate program and prohibiting the return of those Chine laborers with them. Pings Two Arguments: That the Act violated the 1880 treaty between China and the US as well as the constitution. He didnt point to any particular part in the constitutional, but rather to the lack of mention in it. It nowhere authorizes Congress to exclude aliens. Holding/Reasoning: As to the treaty, they held that statutes and treaties were on equal footing and that the statute, being later in time, would prevail. When it comes to the Constitutional issue, they argued that jurisdiction over its own territory to that extent is an incident of every independent nation. It is part of its independence. Any restriction upon it would imply a diminution of its sovereignty. If the country couldnt exclude aliens it would be to that extent subject to another power.
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To preserve its independence, and give security against foreign aggression and encroachment, is the highest duty of every nation, and to attain these ends nearly all other considerations are to be subordinatedIf, therefore, the government of the United States, through its legislative departments, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be stayed because at the time there are no actual hostilities with the nation of which the foreigners are subject. Stephen H. Legomsky, Immigration and the Judiciary: Law and Politics in Britain and America One theory of why the framers declined to mention the power to exclude aliens is because they thought it too obvious to require mention. This discussion concludes that obviousness is an unlikely reason since early attitudes and actions concerning immigration reveal such ambiguity. At first it was encouraged with certain classes discouraged. The Declaration of Independence complained of the Kings hamper on immigration even. In the Passenger cases, four justices refused to recognize a federal power to exclude aliens. It wasnt until the Ping case did Congress claim a right to the power of deportation. Beyond the Constitution The Curtis-Wright Theory looks to extra-constitutional federal power to manage external affairs. He says that during the colonial period, sovereignty rested with the British Crown, and passed to the crown of the states in the collective capacity. Therefore, all sovereign powers remained therethere being the federal government. Many this as a controversial theory and question the validity of some of his assumptions. Residual State Power The question here is why the states werent allowed to regulate immigration in their own right when the federal government hadnt yet claimed it for themselves during the Passenger Cases? Uniformity Argument: In the Henderson case it is argued that the laws, which govern the right to land passengers in the US from other countries, should be the same in all states/cities. Embroilment Argument: In the Lung v. Freeman case, a second reason was provided. If states could require masters of vessels to post bonds then a state commissioner could potentially bring disgrace to the entire country. The states cannot be left with the power to embroil us in a disastrous quarrel with other nations. Yet in the Lung case they left open the question of whether in the absence of federal legislation, a state could constitutionally exclude undesirable non-citizens. Limits to the Federal Immigration Power: so the power exists to regulate immigration, but how far does it go? There are a few terms we should know before going into the cases. Exclusion: the government might exclude a Noncitizen who sought to enter. Deportation: they might deport a Noncitizen who had already entered and wished to remain. The IIRIRA abolished the
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following terminology, though. Both kinds of determinations are removal proceedings. There are still separate grounds of inadmissibility and deportability. The Foundation Cases Fong Yue Ting v. United States Issue: What rights does Congress have to deport those who have already acquired residence? Is the requirement in Section 6 of a white witness to affirm inability to get certificate constitutional? This is the first time a court said that deportation is not punishment. Holding: Congress, under the power to exclude or expel aliens, might have directed any Chinese laborer, found in the US without a The Chinese Exclusion Case, certificate of residence, to be removed out of the country by Ekiu, & the Ting cases can be executive officers without judicial trial or examination, just as it viewed as the 3 building might have unauthorized such offices absolutely to prevent his blocks of the plenary entrance into the country. But they have not decided to do this. congressional power over If a Chinese laborer is found without a certificate he shall be so far immigration. The Chinese presumed to be not entitled to remain here that a customs officer Exc. case recognized an may arrest him not with the view to imprisonment or inherent federal power to punishment, or to his immediate deportation without further exclude noncitizens; and the inquiry, to take him before a judge. Ting case extended those Dissent: The 14th Amendment says: Nor shall any State derive any person of life, liberty, or property without due process of law. Section 6 deprives of life, liberty, and property without due process of law. It places the liberty of one individual subject to the unrestrained control of another. Modern Developments Procedural Due Process in Exclusion Cases Shaughnessy v. United States ex rel. Mezei Facts: an alien immigrant was permanently excluded but is stuck on Ellis Island because his country wont take him back. Issue: Does the attorney Generals continued exclusion of respondent without a hearing amount to an unlawful detention, so that courts may admit him temporarily to the US on bond until arrangements for his departure are made? Holding: The Attorney General may lawfully exclude respondent without a hearing as authorized by the emergency regulations promulgated pursuant to the Passport Act. An exclusion proceeding grounded on danger to the national security presents different considerations; neither the rationale nor the statutory authority for such release exists. Procedural Due Process in Deportation Cases: More Cracks in the Plenary Congressional Power Yamataya v. Fisher (The Japanese Immigrant Case) Supreme Court 1903 Holding: The INS cannot deport someone without a hearing that meets constitutional due process standards. Here, due process was not lacking.
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Reasoning: Acts of Congress should be interpreted as read, without doing violence to the import of the words used, and with bringing them into harmony with the constitution. Substantive Applications of the Plenary Power Doctrine Harisiades v. Shaughnessy: Supreme Court 1952 Facts: After several years as LPRs, the three plaintiffs were found deportable due to their previous affiliation with the communist party. An act by Congress made deportable non-citizens that had ever been affiliated w/ organizations that advocate the overthrow of the government by force and violence. Issues: Is the act unconstitutional? Should LPRs have the basic rights of citizens? Holding: The Act is not invalid under the Due Process Clause. The first amendment doesnt prevent their deportation. Deportation is not a punishment, just a refusal by the Government to harbor persons whom it does not want. Still more Cracks Zadvydas v. Davis Issue: The court must decide whether the post-removal-period statute authorizes the Attorney General to detain a removable alien indefinitely beyond the removal period or only for a period reasonably necessary to secure the aliens removal. Holding: Nothing in the history of the statues clearly demonstrates a congressional intent to authorize indefinite, perhaps permanent, detention. So, we conclude that, once removal is not longer reasonably foreseeable, continued detention is no longer authorized by statute. The release should be conditioned with threat of return. Clark v. Martinez Demore v. Hyung Joon Kim (US Sup. Court 2003) Issue: Does 236 violate due process rights of LPRs for saying that it can take into custody any alien who is removable from this country because he has been convicted of one of a specified set of crimes? Holding: This court has firmly and repeatedly endorsed the proposition that Congress may make rules as to aliens that would be unacceptable if applied to citizens. Therefore the act is not unconstitutional. Stephen H. Legomsky, the Detention of Aliens: Theories of Mandatory Detention Saving Money Avoiding False Negatives Deterring Immigration Violations Theories of Individual Adjudication Avoiding False Positives Cutting Corners on Humane Treatment Deterring Enforcement of the Immigration Laws
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Theories, Rules, and Discretion Gabriel J. Chin, segregations Last stronghold: Race Discrimination and the Constitutional Law of Immigration The International Law Foundation of the Plenary Power Doctrine: The Court derived the plenary power doctrine from its understanding of international law rather than any specific provision of the Const. It is an accepted maxim of international law, that every sovereign nation has the power, as inherent as sovereignty, and essential to self-preservation, to forbid the entrance of foreigners w/in its domain. The Nondiscrimination Principle in International Law Nations including the US commit to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities shall act in conformity with this obligation. The prohibition against racial discrimination applies to treatment of aliens as well as citizens. Where Are We Now? Gabriel J. Chin, Segregations Last Stronghold: Race Discrimination and the Constitutional Law of Immigration IMMIGRANT PRIORITIES The Fundamentals: Quotas and Preferences: To qualify for admission, an immigrant must affirmatively fit within one of the various admission categories established by Congress. It isnt enough that they have no criminal convictions, contagious diseases, or other blemishes. Only those with certain positive credentials are eligible. Most of the qualifying categories are subject to annual numerical limitsquotas. Certain classes, however, are exempt from the numerical restrictions. Immigrants Exempt from the General Quotas: Immediate Relatives: this is the most important exempt class. It includes: Spouses Parents: Citizen son or daughter must be at least 21. Children of US citizens: Must be unmarried and under the age of 21. LPRs returning from temporary visits abroad are not counted against the quota. They were either exempt at the time of their original admission or already counted before. Certain former US citizens Children born to LPRs temporarily abroad People fleeing persecution are exempt from the general quota, but are subject to special numerical restrictions of their own. Parolees: a grant of parol is not considered an admission. In the eyes of the law they are still outside the US. Congress sometimes admits special groups on a non-quota basis, or issues additional immigrant visas as a one-shot deal. There are also one time only statutes that award lawful permanent residence on a non-quota basis to groups of people who arrive from selected countries as part of an unusual migration. Immigrants Subject to the General Quotas: There are both worldwide caps and categories subject to a per-country limit.
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Programs and Ceilings: there are three main programs for immigrants subject to the general quota: Family-Sponsored Immigrants 1st Preference: The unmarried sons and daughters of US citizens. The quota is 23,400 plus any visas that the fourth preference category dont need. nd Preference: The spouses and the unmarried sons and daughters 2 of LPRs. The quota is 114,200 plus ay visas that the first preference applicants dont need, plus the amount, if any, by which the total worldwide family sponsored ceiling exceeds 226,000. rd Preference: The married sons and daughters of US citizens. 3 Quota is 23.400, plus any visas that the first and second preference applicants dont need. th Preference: The brothers and sisters of over-age 21 US citizens. 4 65,000 plus any visas that the first, second, and third preference applicants didnt need. Employment Based Immigrants: something to know is that the spouse or child who is accompanying or following to join an immigrant who is within any of the three preference categories is entitled to the same preference status and to the same place in the queue as the principal immigrant. 1st Preference: Priority Workers. Persons with extraordinary ability in the sciences, arts, education, business, or athletics. They can self-petition, and must have national acclaim. There are three subgroups: persons with extraordinarily ability in the sciences, arts, education, business, or athletics; Outstanding Professors and researchers Multinational executives and managers nd Preference: Members of the Professions holding advanced 2 degrees (usually meaning graduate degrees). They must have proof of a job offer unless there is a national interest waiver. Their work must be in the public interest. Someone must testify to that. They can self-petition. Must include labor certification unless they qualify for the national interest waiver. 3rd Preference: Skilled workers, professionals (without advanced degrees), and other workers who can show their labor is needed in the US. There must not be sufficient workers already in that field, and the employment of the immigrant must not affect US Citizens jobs. No more than 10,000 a year can go to other workers. th Preference: Special Immigrants, including religious workers and 4 certain long-term foreign employees of US government. 5th Preference: Employment Creation; Covers Entrepreneurs who invent at least $1,000,000 each in enterprises that employ at least ten Americans. Diversity Immigrants
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Preference Categories and Sub-Ceilings Selecting Individual Applicants Family Immigration The Basics Spouses Same-Sex Marriages Adams v. Howerton Fraudulent Marriages: A marriage must be not only legally valid, but also factually genuine. The test of this is whether at the inception of the marriage the parties intended to establish a life together. Prior or current marriage fraud can be grounds for inadmissibility or for deportability. There are two types of sham marriages: Bilateral arrangements in which both spouses marry solely to facilitate immigration. Unilateral sham marriages happen when the beneficiarys feelings and intentions are being deceived. Other Family Members: Parents and children of US citizens are included in the immediate relative definition. A child who is accompanying or following to join a preference immigrant also receives preference. The various family-sponsored preference categories refer to sons and daughters and to brothers and sisters. Child: must be unmarried and under the age of 21. It is more complicated with children born out of wedlock, stepchildren, and adopted children. The definition also affects classifications of son or daughter, a parent, and a brother and sister. Family Unification Policy in Perspective Employment-based Immigration The First Three Preferences: Superstars, stars and Others General Eligibility Requirement: The first three employment based preferences form a clear pecking order. The first preference is reserved for superstars, including immigrants with extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim, and professors and researchers who are outstanding. Multinational executives and managers, however, do not need to demonstrate any particular level of fame or success. Extraordinary Ability: a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor. The second preference has two prongs, and only requires the applicant to be exceptional. This prong doesnt expressly include the fields of education or athletics, but arts is read to include athletics. The main difference between this preference and the first is that this one usually requires a job offer and a labor certification. This can be waived in the national interest. The National Interest Waiver: The standards for granting the waiver have become stricter. The applicant must show numerous things:
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That the area of employment is one of substantial intrinsic merit; That the persons employment will benefit the nation, not just the local area; and That the particular applicant will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. In the third preference labor certification is required, but there is no provision for national waivers. It contains three sub-prongs: Immigrants capable of performing certain skilled labor for which qualified U.S. workers are not available; Immigrants who have baccalaureate degrees and are members of the professions; and other workers who are capable of performing unskilled labor for which qualified U.S. workers are not available. Labor Certification: the INA requires labor certification for those who apply under the second and third preferences. They are designed to ensure the immigrants employment will neither displace nor otherwise disadvantage American workers. It requires a certification by the Secretary of Labor that: There are not sufficient workers who are able, willing, qualified (or equally qualified in next prong), and available at the same time the app for a visa and admission to the US in the place where the alien is to work. This prong applies to teachers and those with exceptional ability in the sciences or arts. The employment of the alien will not adversely affect the wages and working conditions of workers in the U.S. similarly employed; Displacing American Workers Matter of Marion Graham 1990: The issue was whether the requirement by the US citizen in looking for a main/nanny to have them be live-in was too restrictive (as is not allowed) without establishing a business necessity. They held that it was since, and the visa was denied based on lack of relevant evidence that it was a business necessity. Business Necessity: to establish a business necessity, an employer must demonstrate the job duties and requirements bear a reasonable relationship to the occupation in the context of the employers business and are essential to perform the job in a reasonable manner. The Fourth Preference: Certain Special Immigrants: The prongs under this preference arent really aimed at redressing labor shortages, but rather serve other functions. The special immigrants are listed under 101(a)(27), and include immigrants LPRs returning from a temporary visit abroad, ex-US citizens who want to re-acquire their citizenship, members of religious non-profit organizations, employee of the US Government abroad, medical practitioners who fall into certain categories, an immigrant who served for our armed forces during special dates, who worked for an international organization, etc. often this includes their accompanying spouse and children as well.
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Congress did not want for beneficiaries of family-sponsored, employment-based, and certain other visa petitions filed before 9/11 to lose out because of the deaths of their citizen or LPR sponsors or because of physical destruction of property essential to business of their employer sponsors. So Section 421 also grants special immigrant status to those individuals under INA 101(a)(27), thus qualifying them for the employment based fourth preference. The Fifth Preference: Immigrant Investors: With the Immigration Act of 1990, 1221(a) added a new provision for immigrant investors. About 10,000 visas per year are reserved for immigrants and their spouses and children who establish new commercial enterprises in the United States, invent at least $1,000,000 (can be modified) and employ at least ten Americans. In 2002 it was amended, and now it is enough for the applicant to invest in a commercial enterprise as opposed to establishing it. Congress attached conditions subsequent. The Secretary can terminate the investors status within two years if found to be fraudulent. Diversity Immigrants: Per-country limits are one way that Congress have tried to diversity the admission of immigrants. There have also been visas for underrepresented countries. Today, USCIS essentially divides up 50,000 visas between two groups: the group of high-admission regions and the group of low-admission regions. NONIMMIGRANT PRIORITIES: As we have seen, immigration laws divide non-citizens into two groups immigrants and non-immigrants. Immigrants are admitted for permanent residence, while the latter are admitted for specific purposes (study, temporary work, business, or pleasure). Because of the restrictions that the law places on non-immigrants lengths of stay and permitted activities, their admission criteria are generally less demanding. They are usually not numerically restricted. The term immigrant means every alien except an alien who is within one of the classes of nonimmigrant aliens found in 101(a)(15). They include: NON-PETITION (A) foreign government officials and families, (B) temporary visitors for business or pleasure, (C) Transit aliens, (E) treaty traders and investors and families, (F) academic and vocational students, (G) spouses and children of students, PETITION (H) temporary workers and trainees), etc. Non-citizens seeking admission will be presumed immigrants unless they rebut the presumption by showing they qualify under one of the categories listed. Often they will be referred to terminology wise by the qualifying letter and number of the section in the code. Students come in under F-1 visas, and their families under F-2. the usual process for entering the US as a nonimmigrant compromises at least two steps: applying for a visa at the appropriate US consulate abroad, and presenting the visa to the CBP immigration inspector at the port of entry. Commercial Categories of Non-immigrants Business Visitors Definition of business visitor is an alien having a residence in a foreign country which he has no intention of abandoning and who is visiting the US temporarily for business. If they qualify they are entitled to receive a B-1 visa. A temporary worker is defined as an alien having a residence in a foreign country which he has no intention of abandoning and who is coming temporarily to the US to perform temporary services or labor, if unemployed persons cable of performing such service or labor cannot be found in this country. Treaty Traders and Investors: 101(a)(15)(E)--Individuals admitted under prong (i) have E-1 status and are known colloquially as treaty traders. Those admitted under prong (ii) have E-2 status and are called treaty investors. Both categories are usually admitted for up to two years initially, with an unlimited number of possible twoyear extensions. There is no requirement for an intent to retain their foreign residence.
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Temporary Workers Specialty Occupations, Athletes, and Entertainers: H-1Bs, Os, and Ps: A specialty occupation is one that requires theoretical and practical application of a body of highly specialized knowledge and that in the US requires at least a bachelors degree in the particular specialty or the equivalent of a bachelors degree. The equivalent part often causes the more difficult issues. Lesser Skills and Labor Shortages: H-2s: An H-2 comes to perform agricultural labor or services of a temporary or seasonal nature or to perform other temporary service or labor if unemployed persons capable of performing such service or labor cannot be found in this country. The person must have a residence in a foreign country that they dont intend to abandon, and must be coming temporarily. As of 1986 Congress created a new H-2A status and streamlined the procedures. The employer must still obtain from the Labor Department a certification that sufficient American workers cannot be found and that the non-immigrants employment will not adversely affect the wages and working conditions of Americans. Trainees: H-3s: Must be a person who has a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States as a trainee. Graduate medical training is excluded, and it cant be designed to primarily provide productive employment. It is highly regulated. Miscellaneous Other Temporary Workers: Includes crew members of foreign vessels and aircrafts, foreign journalists, official representatives of foreign governments and international organizations, and religious workers. Intra-Company Transferees: The last commercial category is L-category. Comparing Commercial Categories Educational Categories Students: In 2003 about 617,556 F-1 students and an addition 7,361 M-1 students were admitted to the US. 57% were Asian. Students may demonstrate sufficient funds. The amount of students decreased in the 2003-2004 academic year, which is weird and worrisome since we benefit from their being here. September 11th didnt help with the drop off or with our hospitality to foreign students. There are stringent restrictions on employment. Foreign students may work on campus, as part of their educational programs, up to 20 hours per week while school is in session and 40 ours per week during school vacations. Exchange Visitors: Exchange visitors are part of a mutual exchange program in which students, teachers, scholars, and others enter into the country temporarily to pursue various education-related goals. The purpose is to enable the visitors to benefit their countries of origin when they return. The exchange visitors themselves receive J-1 status; their Noncitizen spouses and minor children acquire J-2 status. Some programs like the au-pair one are controversial. Are they exploited, irresponsible, etc? J visas are most popular for students, since they are slightly more liberal than F-1s. Also, the exchange visitor programs provide fellowships or other types of funding. Max duration varies. It does depend on the program for it to be approved as J Visa. Under 212(e), programs financed by the U.S. Government require a two year foreign residence if they are getting J visas. It requires that all subject persons return to and reside and be physically present in the country of their nationality or last residence for an aggregate of at least two years following departure from the US before applying for permanent residence.
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Tourists: More than 20,000,000 B-2 visitors came in during 2003about 72% non-immigrants admitted that year. Authorized admission is usually for 6 months to a year. Extensions may be granted. Extent B-2 cases used to not be controversial. If denied it would be due to the officers belief that they intended to stay permanently. But of course post 9/11 all categories are controversial. B-2 non-immigrants are totally foreclosed from employment activity. This is unusual since all others can work. B-2s are often thought of as tourists but they can also come to see friends and relatives, seek medical treatment, etc. Fiancs and Fiances: marriage to an American citizen is one of the more important routes to admission for permanent residence. If the couple hasnt married and the non-citizen spouse is already in the US, the marriage can take place here. After it depends on their immigration status as to whether they have to leave the country before receiving LPR status. If the Noncitizen is outside the country, its more complicated. They cant apply for a visa until after the wedding. It can be expensive and wasteful to get married out of the country, especially since they might have to wait before returning. To keep spouses from being separated for long periods of time due to processing delays, Congress in 2000 added INA 101(a)(15)(K)(ii), which permits the spouses of US citizens to enter as K-non-immigrants. That can take time too though, so it could be the same. A person admitted under subsection K may not extend their stay or change their status to that of a permanent resident on another basis. A Few Other Nonimmigrant Categories: S visas are snitch visas for those who are able to share critical reliable information about either ordinary criminal organizations or terrorist organizations. It became permanent program post-9/11. T visas are for victims of a severe form of trafficking in persons who are physicals present in the US or a port of entry as a result of that trafficking. If over 15 they must aid in the investigation or prosecution of the trafficking. They must also demonstrate extreme hardship involving unusual and severe harm upon removal. T-status will also be giving to immediate family members wanting to join. After 3 yrs they may apply to be LPRs. U-visas are for those who have suffered substantial physical or mental abuse as a result of any of several enumerated acts. Person must aid in the investigation. V-visas: permits the admission as non-immigrants of certain long-divided family members while their priority dates become current if the petition was filed prior to December 21, 2000. General Nonimmigrant Problems Intent to Remain Permanently: those who intend to remain permanently are obviously ineligible. But sometimes people change their minds, and it could be genuine. In the end it is a question of fact. Change of Nonimmigrant Status: Intentions can change. One option is to go home and apply for the new visa with the consulate if you are qualified. But since home can be far away, congress enacted two provisions. Under 248, certain non-immigrants can switch to different nonimmigrant categories without leaving the country. One adjusts to permanent resident status under 245, but changes to another non-immigrant status under 248. EXCLUSION GROUNDS AND WAIVERS: Inadmissibility grounds (often called exclusion grounds). Under INA 212(a), various classes of noncitizens are ineligible to receive visas and ineligible to be admitted to the United States unless they qualify for waivers under any of the specific statutory provisions. These provisions can also affect noncitizens already present in the U.S. Citizens who are found
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inadmissible or deportable, and who dont receive discretionary relief are removed. The proceedings for both are called removal proceedings. Grounds Related to Immigration Control: Most exclusion grounds are based on the idea that certain classes of noncitizens would have an adverse impact on the nations health and welfare. Compliance with the procedures required to implement the network of substantive exclusion grounds is a condition of admittance. One group of exclusion grounds concerns the integrity of documents. Subsections 7(A) and 7(B) of INA 212(a) exclude immigrants and nonimmigrants who are not in possession of valid passports and visas or sometimes alternative documents subject to discretionary waiver authority granted in 212(k). Some of these document based exclusion grounds deal with fraud. False claims of citizenship, both oral and written, constitute independent grounds for inadmissibility. Another set of immigration-control-related exclusion grounds relates to surreptitious entry. Some of the exclusion grounds encompass noncitizens who are or were out of status. It renders Noncitizens who have been unlawfully present in the US for 180 days or for one year inadmissible for three years or ten years, respectively. INA 212(a)(9)(B) defines a person as being unlawfully present if he or she is present in the US after the expiration of the period of stay authorized by the Attorney General or is present in the US without being admitted or paroled. This interpretation has generated issues. Paul Virtue: contemplates continuous unlawful presence, not an aggregate of two or more separate stays. Example: a person with two separate fourmonth periods of unlawful presence would not be inadmissible under 180-day provision. The 3 year exclusion refers to unlawful presence for a person of more than 180 days while the 10-year exclusion refers simply to unlawful presence for one year or more. When is presence considered unlawful, though? He addressed the issue of voluntary departure. A memo from the former INS said that the individual who is granted the remedy of voluntary departure is not considered unlawfully present until the due date for his or her departure. If you are here unlawfully for more than 180 days and you depart to get a visa you cannot come back for 3 years. If you have been here for more than 1 year, you cannot come back for 10 years. If you leave and come back, for whatever reason, a bar happens where you cannot do anything for 10 years. DEFINITELY GOING TO BE ON THE FINAL! The last category of immigration-control-related exclusion grounds concerns the removal process more directly. 212(a)(6)(B) renders inadmissible for five years any Noncitizen who, without reasonable cause, fails to attend his or her removal hearing. One who either was unlawfully present for an aggregate period of more than one year or was removed for any reason, who then enters or attempts to enter without being admitted, becomes inadmissible for at least ten years, Political and National Security Grounds: WWII and the cold war caused for numerous restrictions based on ideological beliefs. In 1952, the INA enacted there broad exclusion grounds pertaining to either national security or political expression. It covered noncitizens who engaged in activities prejudicial to the public interest like members or affiliates of organizations advocating certain political views (community, anarchy, overthrowing the US, etc.). In 1075 the US and 34 nations signed the Final Act of the Conference on security and CoOperation in Europe, which said that there would be encouragement of freer flows of
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information. It didnt halt the denial of visas on ideological grounds, just shifted the battleground. Today the most vigorous debate over these exclusions is terrorism based. You cant engage or be likely to engage in terrorist activity or organizations. A related exclusion ground arises from the concept of guilt by association with an organization one step furtherto guilty y association with a country. Criminal Grounds: Conviction of an aggravated felony: Relief is unavailable under 212(h) after having been admitted as an LPR. 212(h) also disqualifies anyone who has previously been admitted as an LPR and who, since that admission, has not lawfully resided in the US for at least seven years preceding the initiation of removal proceedings. Possible rationales for treating LPRs less favorably than undocumented workers have been accepted by courts: (1) Congress wanted to expedite the removal of aggravated felons and chose LPRs as a first step; (2) Congress might have reasoned that LPRs already have more rights than undocumented workers and should be held to a higher standard; and (3) the fact that immigrants who enjoyed important rights were willing to risk them by committing crimes might indicate that LPR aggravated felons will have higher recidivism rates. Economic Grounds: while historically Congress had sometimes enacted exclusion driven by economic concerns, The Immigration Act of 1990 repealed many of them. Only two remained. INA 212(a)(5)(A): labor certification INA 212(a)(4): public charge. In 1996 Congress another economic exclusion for those who formally renounced their US citizenship for he purpose of avoiding taxation by the United States. The main exclusion is 212(a)(4) for noncitizens likely at any time to become public charges. But what does that mean? Mere receipt of public funds is not enough. It is primarily dependant on the U.S. Government for subsistence, as demonstrated by the recept of public cash assistance for income maintenance or institutionalization for long-term care at U.S. Government expense. Certain programs like the Food Stamp one or Child health Insurance Program dont count. The main question to ask is whether it is intended to be a primary source of cash for income maintenance. Of course trying to predict that someone will become a public charge is problematic. In 1996 the Welfare Act restricted welfare in many ways and specifically targeted immigrants. Public Health and Morals: Several exclusion grounds might be broadly characterized as concerned with either public health or safety or the congressional view of public morals. Health and Safety: 212(a)(1) includes those who are mentally retarded, insane, have had one or more attacks of insanity, and those with disorders that might affect their ability to make a living. Dealing with AIDS: Since 1891 there have been laws barring admission of those with various diseases. In the 1990s it was debated whether that should include those infected with HIV. In 1993 Congress enacted the National Institutes of Health Revitalization Act. 212(a)(1)(A)(i) expressly excludes noncitizens that are determined by the department of Health and Human Services to have a communicable disease of public health significance, which shall include infection with HIV. The Secretary of Homeland Security can waive it for spouses and certain other close family members of US citizens of LPRs. Gay males in permanent relationships have seldom benefited from this. Admission Procedure The Early Days
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I.

II.

Modern Procedure: Preliminary Comments Visa Petitions Visa Applications Actual Admission At the Border Hearings Before Immigration Judges appeals From Immigration Judge Decisions Expedited Removal Other special Removal Procedures National Security and Foreign Policy Cases Terrorism Cases Adjustment of Status: Deportability Grounds General considerations: Noncitizens who have not yet been admitted must contend with the grounds for inadmissibility; those who have already been admitted contend with the grounds for deportability. The practical consequence is that those who entered but havent been admitted (entered without inspection) are now considered inadmissible rather than deportable. However, the terms exclusion and deportability being used to refer to the removal of arriving noncitizens and the removal of noncitizens from the interior arent statutory terminology, just convenient. In removal proceedings the opposing parties are ICE and the Noncitizen. Historical overview of American Deportation policy The Theory of Deportation: Todays deportation grounds encompass a wide variety of post-entry behavior that cannot realistically be linked either to admissions errors or to violations of conditions imposed at entry. Instead, the policy is simply to remove from our midst those noncitizens who continued presence congress finds injurious to the public welfare. Current Deportability Grounds Deportation and Statutory Interpretation: The Meaning and Significance of Entry and Admission: In many places the word entry has been replaced with admission. But the former remains important because the definition of admission itself refers to entry. It means the lawful entry of the alien into the United States after inspection and authorization by an immigration officer. Also, some of the inadmissibility stuff still uses the word entry in it. Deportability grounds Concerned with Immigration Control: Most of the deportability grounds listen in 237(a) are aimed at those noncitizens whom Congress regards as substantially undesirable as threats to public health or safety, public morality, the economy, or national security. Violations of the very rules used to enforce such restrictions are grounds for removal. Entry Without Inspection: Until 1996, noncitizens who entered the US without inspection were deportable. Congress repealed entry without inspection as a deportability ground and instead made presence without admission a ground for inadmissibility. A Noncitizen also commits a criminal offense by entering without inspection. Entry While Inadmissible and Related Issues: Any alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is rendered deportable. An especially common use is where the person entered while inadmissible through fraud. IIRIRA eliminated entry without inspection form the list of deportability grounds but added presence without admission.
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Post-Entry Conduct Related to Immigration Control: This subsection concerns postentry events as opposed to defects with the entry. In the previous section we saw that inadmissibility at the time of entry is a ground for deportability. The same provision makes deportable any Noncitizen who was inadmissible at the time he or she received adjustment of status. Crime-Related Deportability Grounds: Criminal activity can affect a noncitizens immigration status. It can be a ground for inadmissibility or a ground for deportability or both. It can destroy a persons statutory eligibility for various forms of affirmative relief from removal. It can determine whether a person will be detained while removal proceedings are pending. It can make a person ineligible for naturalization. And it can weigh against the favorable exercise of administrate discretion in a range of contexts. What is a Conviction? Common to several deportability grounds is a requirement that the person have been convicted. The definition is difficult to ascertain since modern times both the fed. Government and the states have crafted various formulas for avoiding the harsh effects of criminal convictions. In 1996, Congress provided the statutory definition as a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the aliens liberty to be imposed. The word conviction also implied a crime. Civil offenses do not qualify. In Oregon, a Board held that the procedure has to provide the constitutional safeguards normally attendant upon a criminal conviction. Also, the pendancy of a direct appeal as of right no longer relieves the defendant of the immigration consequences of a criminal conviction. Usually the existence of a conviction is clear under any standard, and the question is whether subsequent events have erased that conviction for purposes of immigration. Withdrawing Guilty Pleas: case says that it still counts. Expungements: Under various federal and state statutes, it is sometimes possible to expunge criminal convictions. Sometimes they apply to youth offenders, first time offenders, those on probation, etc. But when it comes to immigration law, the courts vary on what the effect is. The Attorney General has declined to decide the continued viability of either the FFOA exception or its state equivalents. He has no held, however, that, at least when a conviction does not involve first-time simple possession of narcotics, the federal definition encompasses convictionsthat have been vacated or set aside under an expungement statute for reasons that do not go to the legal propriety of the original judgment, and that continue to impose some restraints or penalties upon he defendants liberty. Executive Pardons: Under 237(a)(2)(A)(v) a presidential or gubernatorial pardon eliminates deportability under 237(a)(2)(A), which covers moral turpitude crimes, aggravated felonies, and convictions of high-speed flight from immigration checkpoints. Miscellaneous Collateral Attacks Crimes Involving Moral Turpitude: The meaning of crime involving moral turpitude: the leading definition is an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man. Case law is leaning
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towards saying that crimes involving fraud or intent to defraud are almost always classified as moral turpitude. Simple assault generally doesnt involve moral turpitude, while aggravated assault does. There are two approaches to deciding what involves moral turpitude: The traditional approach is where neither the courts nor immigration officers may consider the circumstances under which the crime was committed. The Dissents view in Marciano: The circumstances should be looked at in deciding whether moral turpitude took place, as opposed to strictly looking at whether the law defines it as such. Pino Case: Asked that the general nature and its classification in common usage be looked at. 237(a)(2)(A)(i): Any alien who (I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent residence under 2459(j) after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable. Sentencing Requirements: One other requirement under section 237(a)(2)(A)(i) is that a sentence of one year or longer may be imposed. Potential punishment counts. Two Crimes Involving Moral Turpitude: (ii) Any alien who is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefore and regardless of whether the convictions were in a single trial, is deportable. The years after admission and length of sentence are not relevant. There are two separate interpretations by the courts: To constitute a single scheme, the crimes must take place at one time; there must be no substantial interruption that would allow the participant to disassociate himself from his enterprise and reflect what he has done. Statute refers to a single scheme rather than a single act. Judicial Recommendations Against Deportation: (JRAD) Until the Immigration Act of 1990, the law provided this remedy. It applied to noncitizens that were deportable under the convictions involving moral turpitude if the sentencing judge at the time of sentencing or within 30 days made a recommendation that the person not be deported. This JRAD provision was repealed, and cannot even be granted for pre-1990 convictions in the future, but still keeps those of the past valid. Drug Offenses: Over the years Congress has been expanding the rage or drug offenses that can trigger deportation. The main rule under 237(a)(2)(B)(i) says that anything more than a conviction for 30 grams of personal use pot can get you deported. Since 1988, a Noncitizen convicted of any offense that is considered illicit trafficking in a controlled substance has more to worry about since that offense is classified as an aggravated felony. Aggravated Felonies: (iii): Any alien who is convicted of an aggravated felony at any time after admission is deportable. They dont have to be committed within five years of admission to give rise to deportability. It also makes one deportable without regard to potential or actual sentence. It also eliminates most discretionary relief possibilities and procedural safeguards, triggers mandatory detention from the time removal proceedings begin to the time the person is removed, prevents the person after removal
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from ever returning to the US without special permission form the Secretary of Homeland Security, and subjects the person to a 20-year prison term if found in the US unlawfully without that permission. This wouldnt be so disturbing if the definition of aggravated felony hadnt been broadened so much. At this point even misdemeanors can be aggravated. 101(a)(43): The term aggravated felony means (A): murder, rape, or sexual abuse of a minor; (B): illicit trafficking in a controlled substance, including a drug trafficking crime; (C): illicit trafficking in firearms or destructive devices or in explosive materials; (D): an offense relating to money laundering if amount exceeds $10,000 (F): a crime of violence for which the term of imprisonment at least is one year; (G): a theft offense or burglary offense for which the term of imprisonment is at least one year; etc. Child pornography, ransom, perjury, bribery, etc. Miscellaneous Criminal Grounds: Other crime-related deportability grounds include domestic violence, national security offenses, failure to register and document fraud, etc. None of these require that a particular sentence be imposed or that the crime be committed within so many years after admission. There are also deportability grounds that dont require a criminal conviction at all even though the conduct often happens also to constitute a criminal offense. These include marriage fraud, breach of certain registration and reporting requirements, smuggling noncitizens into the US, etc. Also, certain of the grounds concerned with war crimes, affiliation with subversive groups, and national security. Lastly, a nonimmigrant who fails to maintain their status or to comply with the conditions of that status is deportable. Under 214(a), the admission of nonimmigrants shall be for such time and under such conditions as secretary of Homeland Security may by regulations prescribe. The regulations say that a condition to staying is obedience to all federal or state laws prohibiting the commission of crimes of violence for which a sentence of more than one year imprisonment may be imposed. May be imposed is broader than term of imprisonment in aggravated felony def. The Merits of Removing Noncitizen Criminal Offenders A. Political and National Security Grounds B. Other Deportability Grounds: Other miscellaneous grounds reflect economic, moral, and health-related concerns. For example, violating health related conditions imposed at entry or past/present drug abuse or addiction. Under 237(a)(5) a person who becomes a public charge after entry is deportable unless they can affirmatively show cause arising after entry. C. Time Limits: There are at least four different kinds of time limits to which deportability grounds could be made subject. i. Time limit that confines the deportation ground to those acts or events that occur within a certain number of years after entry or admission. Examples of grounds subject to this are smuggling of noncitizens, crimes of moral turpitude, and public charge. ii. This limitation would constrain the time interval between the act or event that makes the person deportable and the commencement of removal proceedings. This type of restriction is what lawyers in most areas call statue of limitations. In the US, the 1952
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Act eliminated statutes of limitations on deportation, and at the time of this writing no deportability grounds contain them. iii. This third type combines the periods encompassed by categories I and II. It would require that any removal proceeding be started within a certain number of years after entry or admission. iv. This limitation requests that the conduct on which removal is based occur after the enactment of the statutory provision that makes the conduct a deportable ground VIII. RELIEF FROM DEPORTABILITY: Note: the relief provisions examined in this chapter can be thought of as affirmative defenses where the Noncitizen has the burden of proof. They dont include the defense that as an essential element of the particular deportability ground has not been made out. Also omitted are those few affirmative relief provisions that are specific to particular deportability grounds. Other things that will come up often: those who are properly notified and fail to appear at their removal hearing, or receive voluntary departure and fail to leave on time, become ineligible to apply for any of several specific remedies for ten years. Second, aggravated felons are expressly disqualified from most of the major relief provisions. Third, anyone who is deportable on terrorist grounds is barred from several forms of discretionary relief. Fourth, as a result of regulations issued in 2005, DHS now requires anyone who applies for any form of relief that confers a right to reside in the US to provide certain biographical and biometric date. Finally, IIRIRA severely curtailed judicial review of denials of discretionary relief. A. Lasting Relief: These forms of relief enable not only avoid removal, but also to attain LPR status. 1. Cancellation of Removal: a. Cancellation of Removal: Part 1: This prong is only available to certain LPRs. It is most commonly use in cases where the deportability charges stem from criminal convictions. i. General Applicability and Scope: The Act of 1917 said that aliens returning after a temporary absence to a unrelinquished United States domicile of seven consecutive years may be admitted in the discretion of the Secretary of Labor, and under such conditions as he may prescribe. In 1990 the Attorney General ruled that 212 was meant to waive only those deportability grounds that are also grounds for exclusion. The new provision makes clear that relief will be available to both inadmissible and deportable noncitizens, even when the particular charge does not rest on entry or admission. Also, a deportable citizen will not have to leave and return in order to qualify. Deportable noncitizens are not required to identify a comparable inadmissibility ground anymore either. ii. Timing: INA 240(A)(a) contains two separate timing requirements. The first is five years of LPR status. The INA doesnt say when LPR status ends, but the regulations provide that LPR status terminates upon entry of a final administrative order of exclusion, deportation, or removal. The order is deemed final when the BIA affirms it or the time for filing a BIA appeal lapses. iii. Disqualifications: certain noncitizens are statutorily disqualified from cancellation of removal, part A (and in some instances part B as well.) An example is aggravated felons. iv. Discretion: In addition to establishing statutory eligibility, the applicant must show he or she merits the favorable exercise of discretion. b. Cancellation of Removal: Part B: This prong refers to cancellation of removal for certain nonpermanent residents, and indeed the remedy is most commonly requested by noncitizens who are out of status. In practice, the principal beneficiaries are undocumented migrants. It is available to both inadmissible and deportable noncitizens. Arriving noncitizens that return from temporary visits abroad after ten years of undocumented presence in the United States may also apply for cancellation part B. Also, there are two branches under B: a general branch, and a special branch for battered spouses and battered children. Both require continuous physical presence, good moral character, and hardship. They are also subject to disqualifications. Requirements are just looser for 2nd group. Third, applicants for cancellation part B have two separate hurdles to clear: establishing statutory eligibility, and then they must receive the favorable
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exercise of discretion. Lastly, the Attorney General may not cancel the removal and adjust the status under this section of more than 4000 individuals in any fiscal year. i. Continuous Physical Presence: the IIRIRA increased the length of period required from 7 to 10 years when it replaced suspension of deportation with cancellation of removal. They also said that Service of Notice to Appear automatically ends a persons continuous physical presence. The last thing changed was the definition of continuous. Short trips meant to be temporary are not interruptive of permanent residence. Only meaningful absences destroy continuity. Two years ago, Congress added in the IRCA that an alien shall to be considered to have failed to maintain continuous physical presence if the absence from the US was brief, casual, and innocent and did not meaningfully interrupt the continuous physical presence. But they added to rules: a single departure of more than 90 days automatically destroys continuous physical presence, as do cumulative absences of more than 180 days. For certain battered noncitizens or those otherwise subjected to extreme cruelty, it is only 3 years. ii. Hardship: Since 1940 there has been requirement to show that deportation would cause some special hardship. It has been held as discretionary in nature so not directly reviewable. If someone is ineligible for cancellation at the time of those administrative proceedings, but before actual removal becomes eligible, they can have their case reopened. This entitles them only to an evidentiary hearing where they can try and prove the facts necessary for cancellation. Examples of what can constitute hardship are economic loss (not alone but couples with other factors is considered), medical problem, the age of children, effects of removal on childrens education, separation from other relatives, and the difficulties in adjusting to life in a foreign country. All evidence is considered cumulatively. iii. Other Hurdles: Good Moral Character, Disqualified Groups, Discretion, and Reporting to Congress: although the physical presence and hardship requirements are tough, there are other hurdles too. Requirement of good moral character for the entire ten years is one. There is a list of traits that equal to a lack thereof like alcoholism, specified criminal activity, and false testimony for obtaining any benefits. The list is not exhaustive. Some people can met all of these and still not qualify if they are crew members certain exchange visitors, and most people who are inadmissible or deportable on political or national security grounds. iv. NACARA: Due to prolonged civil war in Nicaragua, Guatemala and El Salvador and some related legal and political developments in the US, there have been hundreds of thousands of undocumented Central Americans living in uncertain status in the US for many years. Too alleviate part of the problem congress passed the Nicaraguan Adjustment and Central American Relief Act in 97. It grants special dispensations to nationals of certain named countries. There are two types of relief. One is a type of amnesty for certain nationals of Nicaragua and Cuba. Some nationals of other less affected countries like Guatemala, El Salvador, the former USSR and its successor republics, and most Eastern European nations received a lessor but still important right to apply for cancellation of removal and adjustment of status under the less onerous substantive criteria. It is called special rule cancellation of removal. These are exempt from 4000 limit. The person must have entered before a specified date in 1990 and affirmatively apply. The most important relaxations are the seven-year physical presence requirement and the showing of extreme hardship. c. Registry: Another remedy used primarily by undocumented but long term residents is known as registry which confers a discretionary authority on the Attorney General to award LPR status to certain noncitizens who entered prior to a certain date. The applicant may not fall within any of the inadmissibility grounds, must have maintained continuous residence since entry, an must be of good moral character. It is generally made unavailable to those who have filed to appear at their removal hearings or failed to comply with their voluntary departure orders. 2. Adjustment of Status: An adjustment of status can be used simply as an alternative to the visa process and thus returning home. In the deportability context, adjustment can serve a dual functionaffirmative relief from removal and as before a means of attaining LPR status without leaving the US. The remedy is now unavailable for ten years to those noncitizens who fail to appear at removal hearings, or who fail to comply with the terms of their voluntary departure orders. Ready INA 245 to see requirements.
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3. Voluntary departure: The person who received and accepts a grant of voluntary departure under 240B leaves the US voluntarily; in exchange, no formal removal order issues. There are actually two types of voluntary departure, differentiated by timing. a. Under (a) of INA 240B, The Secretary of Homeland Security may permit certain noncitizens to depart voluntarily, at their own expense, either in lieu of removal proceedings or before removal proceedings have been completed. b. Subsection (b) authorizes voluntary departure at the conclusion of removal proceedings, again at the individuals own expense. Under this section, the applicant is subject not only to the same disqualifications as those who apply under subsection (a), but also to several others like good moral character for previous five years. Bond is mandatory. The maximum period allowed is 60 days if granted. Both Immigration judges and the BIA can grant voluntary departure, but in differing circumstances. As we saw earlier, whether one departs before or after the filing of the Note to Appear has legal significance. The unlawful presence exclusion that we studied where one who was unlawfully present I the US for more than 180 days but then a year and who voluntarily departed prior to commencement of removal proceedings is inadmissible to return for three years. The vast majority of deportable noncitizens required to leave do so by voluntary departure. This saves money for the government since removal hearing dont have to be had. It also benefits the noncitizens since if they are formally removed are ineligible to return for at least 10 years (20 for second offense and never for aggravated felony offender) unless they can get permission from Secretary. Also, it is more practical since there is little to gain by waiting and by leaving you can try to reenter surreptitiously.

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III.

Refugees: PERSECUTED, GENERALLY HOMELESS, AND BY DEFINITION UNABLE TO TURN TO THEIR OWN GOVERNMENTS FOR PROTECTION, REFUGEES ARE UTTERLY DEPENDENT ON THE GOOD WILL OF THE PEOPLE AND THE GOVERNMENTS OF FOREIGN LANDS. GOOD WILL, THOUGH, COLLIDES WITH ECONOMIC AND POLITICAL REALITIES. ONE IS THE SHEER SCALE OF THE REFUGEE CRISIS. PUBLIC POLICY BEHIND WHAT SHOULD DRIVE REFUGEE LAW IS CONTROVERSIAL SINCE THERE IS A TENSION BETWEEN GOOD WILL AND SELF-INTEREST. REFUGEES ARE OFTEN DISTINGUISHED FROM IMMIGRANTS SINE THEY ARE SAID TO BE FORCIBLY DISPLACED, WHILE IMMIGRANTS ARE THOUGHT OF AS WILLING MIGRANTS. OFFSHORE REFUGEES ARE THOSE WHO ARE OUTSIDE OF THE US TERRITORY, WHILE INSHORE REFUGEES HAVE MANAGED TO REACH OUR SHORES SOMEHOW ON THEIR OWN. THEY SEEK DIFFERENT TYPES OF RELIEFTO STAY HERE OR AT LEAST NOT BE SENT BACK THERE. A. Overseas Refugees: The World Wars had a large effect on the refugee problem. By 1947 it became apparent that displaced persons in Germany The displaced persons problem was a direct outgrowth of the war. The United Nations established the International Refugee Organization (IRO) supported by the US, Canada, Australia, and other free countries of Western Europe. In 1951 the Convention was proposed by the UN and signed by many countries. Not the US, though, until 1968. No statue generally authorized the admission of refugees, and instead Congress sometimes passed legislation dealing with specific crises. Various Attorney Generals often sued their powers to parole groups of refugees into the US. In Mid-60s a 7th preference was added for refugees. The solution was very limited. Under the Refugee Act of 1980, the President makes an annual determination of how many refugees may be admitted in the upcoming fiscal year. There are no longer limits on the number he can choose. Also, he is authorized to create additional slots if an emergency should arise. B. Asylum and Nonrefoulement: Two very different types of relief are offered to this group. Asylum under 208 permits the person to remain in the US at least temporarily and in most cases permanently. Nonrefoulment is a narrower remedy that prohibits forcible return to the country of persecution but not to third countries. It is called withholding of removal. Many times the Justice Department will use asylum to encompass both remedies. The application procedures for the two are exactly the same. The provision for nonfoulement says that The Secretarymay not remove an alien to a country if the Secretary decides that the aliens life or freedom would be threatened in that country because of their race, religion, nationality, membership in a particular social group, or political opinion. Asylum is further reaching. It results in permission to remain, not just non-return to the country of persecution. The Attorney General sometimes used the parole power to accomplish this, because not until 1980 did asylum receive statutory recognition. Secretary of Homeland Security now has the right to grant asylum to any refugee who is physically present in the US or arrives here with some exceptions. If the removal proceeding hasnt started, one may apply to the USCIS. If DHS has already initiated removal proceedings, the application is filed w/ the immigration judge. Persecution or Fear of Persecution On Account of Race, Religion, Nationality, Membership in a Particular Social Group, or Political Opinion: Race, Religion, Nationality: The UNHCR Handbook defines race in its widest sense to include all kinds of ethnic groups that are referred to as races in common usage. Nationality includes not only citizenship status, but also membership of an ethnic or linguistic group. Race and nationality asylum claims have been relatively infrequent compared to persecution based on political opinion or social group. Political Opinion: A political opinion can be expressed negatively as well as affirmatively. A refusal to support a causeby staying home on election day, by refusing to take an oath of allegiance, or by refusing to step forward at an
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induction statement or affirmative conduct. In one case, the noncitizen who refused to join the Guerillas in El Salvador was held to be expressing a political opinion, especially since they responded by threatening to take or to kill him otherwise. An emerging issue today is whether persecution due to neutrality as a political opinion counts. Refugees Sur Place: those who were not refugees when they left home but became so while abroad are called refugees sur place. This can happen both due to their actions or words, or do to a change in the country itself. When it is self-created it is treated with more skepticism and there is a careful examination of the circumstances. Particular Social Group: A particular social group requires that members of the group share a common, immutable trait. They all share an immutable characteristic like sex, color, kinship ties, or past experience. When the past experience occurred, the member either could not have changed or was so fundamental to his or her identity or conscience that he or she should not have been required to change it. General definition of Social Group Sexual Orientation and Social Group a. Gender and Social group On Account Of: The Nexus Requirement: There are two qualifications to qualify under the on account of requirement. One is the substantial factor test. Second, factual causation in tort law is constrained by the doctrine of proximate cause. Methods of Proof: How does the applicant go about proving that his or her fear of persecution is well-founded, or that a return to a particular country is more likely than not to threaten the applicants life or freedom? Certain specific strategies are common enough to warrant special mention. First, what commonly occurring facts are material to the likelihood of prosecution? Second, what evidence is relevant to those facts or any other facts affecting the likelihood of prosecution? Material Facts Membership in a Persecuted Group Past Persecution: This can be helpful in two ways. First, evidence of past persecution can help the applicant establish a well-founded fear of future persecution. Second, the refugee definition in INA 101(a)(42) makes past persecution an independent basis for refugee statusi.e., even when there is no threat of future prosecution. In 2000, the Justice Department amended its regulations to permit the government to rebut the presumption of well founded fear of future persecution in two ways: by showing any fundamental change in circumstances that eliminates the required well-funded fear; or by showing that the applicant could avoid future persecution by relocating to another part of the applicants and it would be reasonable to expect them to do so. Relevant Evidence The Applicants Own Testimony: Often applicants must rely on their own testimony to establish the specific events that leave them vulnerable to persecution. The credibility of the applicant is an especially
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critical issue in asylum cases. Some of the factors relevant to credibility or demeanor, candor, responsiveness of the applicant or witness, the inherent plausibility of the applicants or witnesss account, the consistency between statements, etc. But will just his statements be enough? Some fight for a presumption of credibility. State Departments Opinions Advice from UNHCR: Its two basic functions are providing international protection and seeking permanent solutions to the refugee problem. Other Sources of Information: The former INS now DHS established a documentation center with information on human rights conditions. Exceptions to Eligibility Firm Resettlement: There is a statutory disqualification of those refugees who are firmly resettled in third countries. They are considered so if after arriving here they are offered to resettle permanently in a third country. Past Wrongdoing: claimants who have participated in the persecution of others on account of race, religion, etc. are statutorily ineligible for both asylum and withholding of removal. Other exceptions include criminal conduct. The crime related disqualifications for asylum are the same as for withholding of removal. IV. Citizenship A. Acquiring Citizenship: Today numerous paths to US citizenship are available. They can be organized under two headings differentiated only by time: citizenship acquired at birth and that acquired at some later time. Citizenship Acquired at Birth: Jus soli literally means right of the land. It is an English principal generally conferring a nations citizenship on persons born within that nations territory. The other principal is jus sanguinis, meaning right of the blood. It generally bestows a nations citizenship on the children of its existing citizens, regardless of where the children were born. JUS SOLI: The framers omitted talk on whether citizenship is acquired at birth, or what natural born means. The term clearly includes those born in the US and clearly excludes those who acquire citizenship through naturalization. This was probably to put off the citizenship of the slaves. 14th amendment allowed them to acquire citizenship at birth. JUS SANGUINIS: the Constitution has never mandated citizenship by descent, but it has been statutory law for years, though the qualifications have changed. There are two kinds of limits: first off it is generally insisted that the citizen parent(s) meet some specified residence or physical presence requirement in the US before the childs birth. Citizenship Acquired After Birth: this is naturalization, and the term is used to describe the process of becoming a citizen. Its literal meaning is acquiring after birth. Administrative Naturalization: it didnt take long for statues to be enacted. Substantive Criteria: In the 1970 act only a free white person could qualify. Over time limited exceptions to the racial disqualification emerged. Although detailed examination isnt possible, here are a few basic requirements; Lawful permanent residence Residence and Physical Presence: they must reside continuously during the five year period immediately preceding the filing of the application, al after admission as an LPR; must be physically present in the US for at least half that period; and must reside
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continuously in the US from the filing of the application to the grant of naturalization. Good Moral Character Age: must be at least 18 for administrative naturalization, though children can be eligible for derivative naturalization. English Language: they must demonstrate an understanding of the English language, including an ability to read, write, and speak words in ordinary use. There are exceptions for disabilities. Knowledge of Civics: knowledge and understanding of the fundamentals of the history, and of the principles and form of government of the US. Political Requirements: they must affirmatively demonstrate an attachment to the principles of the US Constitution and take an oath. B. Losing Citizenship: there are today only two ways that US citizenship can be lost. Revocation of Naturalization: INA 340(a) requires the revocation of any naturalization order that was illegally procured or procured by concealment of a material fat or by willful misrepresentation. The procedure is a court action. A second and more controversial method has recently emerged where Attorney general has the power to correct, reopen, alter, modify, or vacate an order naturalizing the person. Obviously that gives them a lot of power. It used to be in the courts hands. Expatriation: US law now recognizes only one other way to lose ones citizenship expatriation. It applies without regard to the circumstances under which citizenship was originally acquired. Also, it requires the consent of the individual. The law has traveled a along way: from perpetual allegiance, to a combination of denationalization and expatriation, to expatriation alone. C. Citizenship: LPRs have a stronger claim to community membership even though they are not citizens. One of the most practically significant legal consequences of citizenship is freedom from the immigration laws. Also, right to pass on citizenship to ones children. Protection of harm from foreign nations is also a benefit. Mostly, legislation that discriminates against LPRs has been upheld since Congress has to power to regulate immigration and its laws relating to noncitizens. Three exceptions to noncitizens being ineligible for public assistance are: (a) during the first five years after one is admitted as a refugee or granted asylum or withholding of removal; (b) LPRs who have worked for 40 Social Security Act-qualifying quarter-years without having received any federal means-tested public benefits; and (c) people on active duty in the US Armed forces, honorably discharged veterans, and certain of their dependents.

Simon was emphasizing that it is very difficult to lose your citizenship if you dont do something voluntarily!! A number of people who have renounced their citizenship have been able to get it back by showing they didnt have a choice (women more than men), or for school reasons, etc. Non-Immigrant intent: you generally have to have the intent to maintain a domicile outside the US. People who have EHL and O visas can have temporary intent, and might want to stay permanent later. If an F1 says that they probably wont be coming on student visa. There are two other types of ways to get citizenship. Acquisition and derivation. Leigh likes to think of there being two broad citizenship methods.
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Acquiring at the time of birth and driving it after birth. There are lots of people who acquire citizenship at birth but dont even know it. If two parents are US citizens and the child is born abroad, they are citizens. When one parent is a foreign national and one is a US citizen and the child is born abroad it gets more complicated. The chart is very important since it all depends on when the child was born, what parent is the citizen, etc. A write of error is available when appellant did not participate in the trial, within 6 months of judgment, and something else. And there has to be an error apparent on the face of the record. Denaturalization: You will hear various terms in this area of the law. Denaturalization, denaturalization, expatriation, and the statues use the term loss of nationality. They apply in different contexts. Lets talk first about denaturalization. Denaturalization: as the term suggests, it is when a person has become naturalized and then becomes denaturalized. It used to be that if the person was naturalized the only person to denaturalize them was to file a civil suit in federal district court brought by a US Attorney. The reasons were essentially that 1) naturalization was obtained by fraud, mistake, or that the person was just not eligible for it. Or that there is now info available that was not previously available to the government that would shed light on the persons eligibility. The courts historically have been the ones with the only authority to denaturalize a US citizen (who can lose nationality). The power to take citizenship from someone is something that cannot be granted lightly. There is too much room for abuse. In 1990 the act was passed that said for the very first time that Congress took the power to bestow naturalization form the courts and gave it solely to the Attorney General. They also have the power to the administrative process to denaturalize you. It had to be within a two year period of time from the date of a granting of naturalization. This was a big deal because previously they had wanted to give the power to agencies. The process was laid out and challenged as unconstitutional. Eventually in a case the 9th circuit the district court ruled that the provisions were not constitutional. The issue has not gone to the Supreme Court, but the government has essentially folded and is not using the denaturalization procedure. We are kind of going back to pre-1990. o Naturalization and Denaturalization belongs to a class of individuals that have immigrated and obtained their permanent residence, and within a certain amount of time have naturalized. Naturalization requires that you be admitted as a permanent resident. Usually within five years if you can demonstrate you are a person of good moral character, you can file an application to become a citizen. If you have obtained residence through marriage, and remain in marital union with that same spouse, those five years become three years. Old common law rule was that you could never lose your citizenship. Ex-Patriation: potentially known as loss of citizenship is when US citizen does something that in the view of the United States Government has caused them to lose their citizenship. Historically, it was an easier test to satisfy. o To vote in another countrys elections is considered allegiance to that country. You are subject to ex-patriation. But it is no longer the voluntariness of the act of voting, but did you intend that the act of voting cause the result of losing your citizenship. Denationalization is where a country decides to denationalize you. This no longer happens here. You can only do it voluntarily or with clear and unequivocal evidence. That is why individuals are not entitled to something.

Immigration Law
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- Office - 1146 South Alamo, San Antonio, Texas 78210; Phone: 210-336-9725 - rashivers@shiverslaw.com - 8 U.S.C. Where Immigration laws are located. - Immigration and Nationality Act. - Prefer to use the word non-citizen rather than alien. - In the United States, we have all descended from immigrants. - Ju soli Place of birth. Ju sanguine Through blood. - Ju soli - Our ju soli laws are one of the most expansive in the world. - In the U.S. Constitution, there is nothing said about immigration or citizenship. The only thing it does say is that Congress should have the right to pass a uniform law for naturalization. - The U.S. Constitution requires the President to be a natural born citizen and members of Congress must be US Citizens. - Subject to the jurisdiction thereof - p. 11-12 Rehnquist and someone else differ on their perceptions of how aliens are different from citizens. - p. 21-22 If you are a citizen and/or a natural, you owes permanent allegiance to the U.S. - In American Samoa and the Swain Islands, the only places where you are not a citizen but you are a natural. - Ju soli Elk v. Wilkins case p. 15 Were native Indians born in the U.S. US Citizens? Court said they were not subject to the jurisdiction of the US because they were members of a tribe, and therefore they were not US Citizens. - This matter was changed by various statutes over the years, making Indians born in the US full fledge US citizens. - The Chinese were not allowed to become US citizens. p. 17 He was born in the US but his parents were not US citizens. He resided permanently in the US since 1983. He left the US to visit China, and when he tried to return, they told him he was not a US citizen because his parents were Chinese naturals. - At one point, women could not transmit citizenship to her offspring, only the father could. - Article in book by Schmidt Big movement that children of undocumented aliens born in the US, who are born here in the US, should not be considered US citizens. Should there be a constitutional amendment to make this happen? - Children of diplomats (who have diplomatic immunity) are not subject to the jurisdiction of the US and thus are not US citizens. - p. 60 Argument for open borders - Acquisition of US citizenship under ju sanguineas Confers citizenship on children if their parents were born in the US, regardless of where the child was born - 301 c, d, e, g, h, (2) (4) and 309 - One of the parents has to have previously resided in the United States. - If parents are split, one is a citizen, and the other one is not, the U.S. citizen parent has to have lived for 5 years in the US prior to the birth of the child and 2 years after the age of 14 this law is not retroactive, so if the child was born before 1978, then you have to follow the older laws. - Prior to 1978, the requirement was that the parent had to reside 10 years prior to the birth of the child and 5 after the age of 14. - Child had to have come to the U.S. and lived there for at least two years between the age of 14 and 28 this law ended up being a mess.
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- Some exemptions If you work for the military or for an organization outside of the US. - Child born out of wedlock acquires citizenship through the mother if the mother had been physically present in the US for a continuous period of one year or more. - In order to acquire citizenship if you are born out of wedlock through the father, it is a lot more difficult. There are several requirements: 1. Must establish blood relationship between father and child. 2. Father, at time child was born, was a US citizen. 3. Father must have agreed in writing to provide financial support for the child until he reaches the age of 18. 4. While under the age of 18, legitimating under the laws of his residence or his fathers residence. - Look at 309 a(4). - Some of the definitions in Title 2 do not apply to Title 3, like the definition of child. - People born here are 14th amendment citizens, but not if you acquired citizenship otherwise but were not born here. - Naturalization p. 57 Power taken away from the states. After 1906, it is strictly a government power. - They put in an English language requirement. - Also required two U.S. citizen witnesses to come testify under oath that you were eligible to become a U.S. citizen this doesnt apply anymore. - There are procedures for cancellation of naturalization if you found out it was brought about by fraud. - Nationality Act of 1940 p. 57 and top of p. 58 - 1952 Act Eliminated all racial restrictions on subversive groups. - Restriction or provision that if you were a non-citizen but resided in US, and because of your alienage sought exemption from the military, the naturalization process was denied to you. - 1990 Major event Naturalization process transferred from courts to the agency. Prior to 1990, if you wanted to get naturalized, you filed a petition to the federal court, which then went to a district court or U.S. magistrate. - Now, Department of Homeland Security takes care of this process. - For naturalization, there are certain requirements or guidelines to follow, found in 311-331, 337. - Some of the guidelines for naturalization: 1. Applicant for naturalization generally has to be a general permanent resident. 2. Physical presence requirement - Concern about any absences from the United States (permanent domicile should be in the US) i.e. if you were away for more than 6 mos., you have abandoned your residency for purposes of naturalization, and if you abandon for more than 1 year, you have permanently abandoned your residency. - At least 50% of the time you need to be here in the United States. - Good moral character During the statutory period (5 or 3 years) you must show you are a person of good moral character. - 5 year or 3 year statute Person must have resided in the U.S. for 5 years. If you are married to and living with a U.S. Citizen, you only need 3 years instead of 5 years. - Permanent residency for purposes of naturalization must be proven either through employment you actually performed or that you had a bona fide marriage with a US citizen.

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- Must have 18 years of age to undergo the naturalization process. If you are under the age of 18, and your parent is going through the process, you get a certificate of citizenship (different than actual citizenship, not 14th amendment citizenship). - Good moral character definition under Title 2 Section 101f, p. 46 in statute book. - Must be able to read, write and understand English. - If you have been a lawful resident for over 20 years, and over the age of 50. If you have been a lawful resident for over 15 years and are over 55, you are also exempt of the English language requirement. - You have to take a loyalty oath. - If you are a male, you must have registered for the draft between the ages of 18 and 25, and if you didnt you have to wait until the age of 31 to file for citizenship. - 1943 - Sniderman case At time of applying for naturalization, he did not write he was a member of the Communist party, and he underwent denaturalization procedures because of this, saying that had illegally procured his citizenship. - In denaturalization cases, presumption of evidence is in favor of the US citizen, especially if it has been 15 or 18 years after he has been naturalized. - You can be naturalized through military services. - 328-330 Easing of the physical presence requirements - Non-citizens can also be naturalized if they are members of the armed forces during certain periods of time. - Procedure Application is IN 400 on back of the book. File that form with immigration services. You get a receipt, and a note that says go down to such and such for biometrics (take picture, etc). That takes about 45 days after you file. 3-4 months later, you go to an interview. - If everything goes smooth, you can become naturalized between 6-7 months after you file the application. - If you get denied, you can appeal that decision. It is easier to get an appeal if an attorney represents you. - Problem with filing appeal You have examiners and you have a supervisor. When you take it a second time around, the second examiner will probably go to the same supervisor. - If the appeal was denied, you can file a de-novo action in the U.S. District Court. - p. 86 Price case He refused to list his organizations or associations, claiming having to disclose that was a violation of his first amendment. - Two ways of losing your citizenship - Expatriation and denaturalization - Denaturalization - Revocation of a naturalized citizenship based on fraud or illegality in the original naturalization proceedings. - Illegal procurement Person, at time of being naturalized, did not fulfill the naturalization requirements. - Illegal procurement and misrepresentation of a material fact Overlap - Illegal procurement is a question of fact, not a question of law - Concealment - Materiality requirement - Material if disclosure would have denied the application. - False testimony makes you a person of not good moral character to satisfy the requirements of the statute. - False testimony - Oral evidence given under oath and requires a subjective intent to obtain benefits under the act. - p. 108 Puertas criminal case Information MUST be material if you are going to file criminal charges for obtaining naturalization illegally, to convict someone under statute.
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- Displaced Persons Act - Act to authorize for a limited period of time the admission into the United States of certain European displaced persons for permanent residence. Act helped those individuals who were victims of persecution by the Nazi government or who were fleeing persecution, and could not go back to their country because of fear of persecution based on race, religion or political opinions. These individuals were granted permanent residency and employment without making someone give up their current job. The displaced person could bring their family with them as long as they were good citizens who could stay out of jail and provide financially for themselves without public assistance. - Expatriation - P. 119 Perez case He was born in US. Voted in federal election of a different government and those was considered to have renounced to his citizenship. - p. 125 Trote case Unconstitutional to expatriate for desertion, subject to 8th amendment. - Jikawa Served in Japanese army during the war, raised issue of duress. - Both a deserter and a citizen who served in a different countrys army were able to keep their citizenship, but the Mexican who voted in the Mexican election couldnt. - p. 126 Rusk Nationalized (not born) citizen voted in Israeli election. Went to renew US citizenship, denied him because he voted elsewhere. He argued that since there is no provision to take away someones citizenship, and that it can only be lost by someones voluntary renunciation. - Court had to consider Perezs case. Court voted no expatriation without voluntary consent by citizen. - p. 131 Rogers Italian father, US mother Court pointed out that 14th amendment only point to birth right and naturalized citizens, not derived citizens through someone else. Court pointed that his citizenship was based upon statute, and that Congress has power to determine who acquires citizenship through statute. - 1990 Presumption is that a citizen wants to keep his citizenship, even after committing an expatriation act. - In order to lose citizenship, must in writing renounce to it by going to the consulate. - Presumption not available when: 1) renounce to the consulate; 2) if you take a policy level position at a foreign state; 3) convicted of treason; 4) make acts of expatriation and other acts inconsistent with not wanting to be a citizen. - No longer have grounds of exclusion, but do have grounds for inadmissibility. - Patriot Act - CIS Citizenship and Immigration Services Do all the petitions, and visa petitions, and naturalizations - ICE Investigators, deportation officers (used to be called VICE), law enforcement arm of DHS, do other things aside from deportation - CBP Customer and Border Protection - Treaties are between governments, not between people. - Congress has the power to regulate foreign affairs, vested on the federal government not the state government, and have power to regulate immigration without judicial review. - *A sovereign nature has an inherent power to forbid the entry of any or all aliens into its territory or to admit them under the conditions it sees fit. This power is vested in the national government. - Inherent power to control its borders does not depend on the constitution. - With regards to this issue, it is not that the power of the US is doubted, but rather the cases that get to Supreme Court on this issue do so on procedural issues.
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- Does not apply to foreign affairs, only to internal affairs. - Judges do not like to get involved on immigration cases. - Distinction between exclusion (keeping people out) and deportation (kicking people out). - Difference between a returning residence (someone who has lived in the US before) and a first-time entrant. - Deportation is a civil proceeding, not criminal. - Bill of Rights provisions do not apply to deportation. - Pin has never been overruled. One year of hard labor - This only applied to Chinese. - p. 268 Organization chart of Department of Homeland Security - Two types of admission: Immigrants and non-immigrants. - Immigrants Lawful permanent resident, proverbial green card holder. - Generally speaking, a non-immigrant has a permanent domicile or residence outside of the US. She has no intention of abandoning that permanent domicile, coming to the US for a temporary visit; when the purpose of this visit is done, they return to the permanent domicile. - Immigrant Comes to US to remain permanently. There are certain categories of immigrant visas: Family based, employment based, diversity based, and refugees. - Immediate relatives and preference categories. - Family based visas - Spouses, children, and parents if US citizen is older than 21 - Child 101(b)1 Parent 101(b)2 - Child Born in wedlock - Stepchild Whether or not born in wedlock, providing the child has not reached the age of 18 at the time the marriage creating that relationship is performed. - Legitimization process has to begin before you turn 18. - Adoption must take place before the age 16 and residing for the parents for at least two years. - If there are two children living together, and one is over 16, the two can be considered child. Only one additional child rule. - Orphan Dead or disappearance of both parents, or one of the surviving parents is incapable of taking care of them and signs a release that child can be immigrated by getting adopted by someone else. - Single US citizen can adopt someone to immigrate them as long as the citizen is over 25 years old. - In order to be a son or daughter of a US citizen, you must have once been a child under the definition. - Immigrant visa allocation Family based (take a long time) and employment based. - Employment based 2nd preference (EB2) and 3rd preference (EB3). - Exceptional exception EB2 Employer requests someone through the Department of Labor. - Labor certification process Electronic through a large extent since 2005. Important because it is necessary to file I-40. - Labor certification filing date creates the Priority date. - If you file one of this, and the person is undocumented, they have to go back to their home country. - Employer signs attestation to the labor certification. - Employer sanctions If he lies saying the worker lives out of the country currently when really hes already working for him. - EB3 case Length of time it takes to process petition waits of over 8 years from time priority date is created.
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- Non-immigrant temporary visas R1 for religious affiliations. - Ministers of religion treated better by the system than all other religious workers. - If you are married to a US citizen, you can apply for permanent residence under I-94. - A public school cannot refuse to educate a child because he is undocumented. - Fiance Hybrid visa. - Removal Can be based on grounds of inadmissibility used to be called grounds of exclusion. - Lawful entry of an alien into the US after inspection by an officer. - You can apply for an immigrant visa while being out of the US, or if you are inside the US to change your status. - Parole is not an admission. - Crime of moral turpitude Conduct which is bile, depraved, and ignored duties owed to persons and society in general. - Aggravated felonies are not grounds of inadmissibility. - Release from removability or deportation Voluntary departure, cancellation or removal, 212(c) relief, adjustment of status if you qualify, registry (if you can establish you were in the US before Jan 1972), asylum, and conviction against torture. - Section 207 Refugee program (10/22 note) - Filing a motion to reopen or to reconsider DOES NOT stay the execution of the removal order. - Motion to reopen. - Motion to reconsider.

Immigration Law I. Review a. Citizenshipdifferent ways to acquire citizenship and their requirements i. Jus Soliconferral of citizenship based on birth within the US, no matter the parents status ii. Jus Sanguinisconferral of citizenship based on descent 1. For a person born outside of the US a. If both parents are USCschild gets citizenship upon birth if: i. One of the parents had a residence in the US at any time prior to the childs birth b. One parent a USC and the other a host country National i. The USC parent has to have been present in the US for a continuous period of 1 year prior to the birth of the child c. If one parent is a Citizen and one parent is a noncitizen i. The citizen parent must have been physically present in the US for 5, non-consecutive years before the birth ii. Two of those years after to be after the age of 14
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d. Children born abroad and out of wedlock i. To USC mom 1. Mom had to have been present in the US for a continuous period of 1 year at some point prior to the birth ii. To a USC dadchild gets citizenship only if: 1. Blood relationship established by clear and convincing evidence 2. Father had US nationality at the time of childs birth 3. Father agreed in writing to provide financial support until child reaches 18 AND 4. While the child is under 18: a. He or she must be legitimated under the law of his or her residence or domicile b. Father must acknowledge paternity in writing under oath OR c. The paternity of the child must be established by court adjudication. iii. Naturalization 1. Reside in US continuously for 5 years as an LPR 2. During the 5 years prior to petitioning for naturalization physically present in US for at least half that time 3. Reside in the district where filing application for at least 3 months 4. Reside continuously in US from the date of the petition to the time of naturalization (cannot be founded on an illegal entry) a. Absence of less than 6 months (180 days) does not affect continuous residence b. Absence of more than 6 months but less than 1 year presumptively breaks continuity i. Applicant must prove he/she did not abandon his/her residence c. Absence of 1 year or more will break the continuity of residence as a matter of law i. Applicant must complete a new residence period after returning to the US 5. Spouses of USCsto naturalize: a. Reside continuously in US for 3 years before petition i. Must follow lawful admission ii. Must be married to USC for these 3 years, unless victim of domestic violence 6. Armed forcescan naturalize if: a. Have served in US armed forces for 3 years OR b. During wartime c. Physically present in US for the time

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d. Noncitizens who are not LPRsif served in active-

duty during military hostilitiescan naturalize if in US at the time of enlistment i. No period of residence or physical presence required 7. Other requirements: a. Ageat least 18 years old (unless derivative citizenship) b. English proficiencyEXCEPTIONS i. Over 50 AND LPR for 20 years ii. Over 55 and LPR for 15 years iii. Physical or mental impairment c. Knowledge of civics and history d. Good Moral Character (AG can look back as far as 5 years preceding the application) e. Attachment of Constitutional Principles f. Oath of Allegiance b. How to lose US citizenship i. Denaturalizationmay occur if: 1. Naturalization illegally procured 2. Procured by fraudconcealment of a material fact or misrepresentation a. An honest representation would have precluded naturalization b. Requires clear, unequivocal, and convincing evidence ii. Expatriationacts that qualify to denounce US citizenship 1. Must be done voluntarily a. Voluntariness is presumed until rebutted by the actor 2. With intention to denounce citizenship a. May be express in words or inferred from proved conduct b. May affirm in writing to a US consular officer that the act was done with intent to denounce US citizenship i. INA 349(a)(5)formal renouncement 3. Proven by clear, unequivocal, and convincing evidence 4. Premise is that the person wants to retain US citizenship EXCEPT when: a. Formally renounces US citizenship b. Takes a policy level position in a foreign state c. Is convicted of treason; or d. Performs a statutorily potentially expatriating act accompanied by conduct that is so inconsistent with retention of US citizenship that it compels a conclusion that the individual intended to relinquish US citizenship. c. Governments power to control immigration i. The constitution, as initially drafted, has no definition of citizenship ii. Naturalization Power 1. The Constitution gives Congress the authority to adopt a uniform Rule of Naturalization. iii. Chinese Exclusion Cases 1. The power to exclude aliens is the inherent power of any nation
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2. May forbid or admit the entrance of foreigners under certain conditions 3. Congress has almost plenary power to control immigration iv. Ting 1. The right of a nation to expel or deport foreigners, who have not been naturalized, is as absolute as the right to prohibit and prevent their entrance into the country v. Wing 1. Congress can impose criminal sanctions for violations of immigration laws, but they must afford due process of law d. Various types of people who come to the US i. Immigrants 1. Family Based immigration a. Immediate relatives i. USC spouses and children and if petitioning citizen is over 21, parents ii. No visa quota iii. Immediate visa availability iv. Childs age determined at the time the parent files the application b. Preference categories i. 1st Preference 1. Unmarried sons and daughters of USCs 2. Unmarried and over the age of 21 ii. 2nd Preference 1. FB 2A: Spouses and unmarried children of LPRs a. Childs age determined as of date when the visa is available 2. FB 2B: Unmarried sons of daughters of LPRs iii. 3rd Preference 1. Married sons and daughters of USCs iv. 4th Preference 1. Brothers and sisters of USCs c. Caps i. If the cap is not filled, the vacancies trickle down to the next preference. The extra 4th preference visas trickle back up to the 1st preference. d. Derivative Beneficiary i. A spouse or a child enjoys the same legal protection and status as the principal if the specified family relationship exists at the time when the principal is admitted and if following to join ii. Childs age determined as of the date when the visa becomes available e. Conversion i. The visa petition converts to the family category that is now relevant and retains the original priority date. f. Spouses
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i. If the marriage is less than 2 years old at the time

LPR status is conferred, there is a conditional period 1. Lasts for 2 years 2. In the last 90 days of the 2 year period, both spouses have to petition DHS to remove the conditional period a. Hardship waiver to remove conditional period b. VAWA waiverself petition to remove conditional period 2. Employment Based Immigration a. 1st Preference i. EB-1APriority Workers 1. Aliens with extraordinary ability in sciences, arts, education, business, or athletics a. Does not need a labor certification b. Can self petition 2. Outstanding professors and researchers a. Work has an international impact b. Employer has to petition 3. Multinational executive and manager a. Employer has to petition b. Must come to work in an affiliate or subsidiary company b. 2nd PreferenceAdvanced Degrees or Exceptional Ability i. Professionals with advanced degrees or their equivalent ii. Exceptional ability in sciences, arts, or business that will benefit the economy, educational interests, or the welfare of the US. iii. Labor certification required 1. EXCEPTIONNational interest waiverallows for a self-petition and exempts the LC. a. Must show the national interest will be adversely affected if a LC were required 2. Exceptional ability waiver c. 3rd PreferenceSkilled, Professional, and Other Workers i. Professionals with bachelors degrees, or 2 years training or experience ii. Skilled and unskilled workers iii. LC must be filed by employer d. 4th Preference i. Special Immigrants ii. Can self petition iii. Spouse cannot work, can only volunteer e. 5th PreferenceInvestors as Immigrants i. Employment Creation Visas
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1. Investment must create a minimum of 10 jobs for US workers 2. Invest $1 million in a NEW enterprise a. $500K is for targeted employment areas 3. Conditional for two years 4. Can self petition 3. Diversity Immigrants a. Lottery System b. Must have a high school education or equivalent OR c. Two years experience in an occupation that requires two years of training or experience in the 5 years preceding the application 4. Refugees a. Asylumcan adjust status to LPR ii. Nonimmigrants 1. Visa Waiver program a. Allows people from certain countries to come to the US as tourists for a maximum of 90 days. b. They cannot adjust or change status if using the visa waiver program 2. Student Visas a. F1academic study i. Student self-petitionsnormally issued in US consulate in students home country ii. Can only work on Campus iii. Good for as long as the student is enrolled full time iv. Many who obtain a degree later are sponsored by an employer for an H-1B work visa b. Mvocational study i. Same requirements as F ii. M-2spouses and children c. J1Exchange Visitor Visa i. Nannies ii. Post-graduate work iii. Camp counselors iv. Medical students v. Foreign scholars 1. The professor or research scholar must be absent from the U.S. for a period of 12 months before participating in another J-1 program. vi. Business trainees vii. Have to be sponsored by the program viii. Foreign residency requirement 1. The exchange visitor is subject to the 2-year home country physical presence requirement only if participation in an exchange program began after his or her field of study appeared on the Exchange Visitor Skills List, an official
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3.

4. 5.

6.

7.

8.
9.

list of fields of specialized knowledge and skills needed in each country, as determined by the governments of those countries. 2. The 2-year home country physical presence requirement may be waived ix. J-2spouses and children Business and Entrepreneurial Nonimmigrants a. B1/B2Visiting temporarily for business or pleasure i. Can self petitionno petition on his or her behalf needed ii. B1Business Visa 1. Cannot be coming for salary or payment 2. 6-month stay 3. 6-month extensions 4. Can change status to LPR or other nonimmigrant (H-1B, H-2B) iii. B2Tourist Visa 1. For those not on the visa waiver program 2. Those countries included in the visa waiver program will have to apply for a B2 if they want to stay more than 90 days, change, or adjust status 3. 6 months stay with extensions of 6 months H-2AAgriculture a. Employer must petition and file an LC H-2BTemporary, non-agricultural, skilled and unskilled workers a. Can self-petition if you have the skills the employer is looking for H-1BTemporary stay in the US to provide services in a specialty occupation a. Equivalent of US bachelors or higher b. Employer must file an LC c. Immigrant can lawfully seek to become an LPR if the company will sponsor him/her (EB-3skilled professional and other workers) d. Issued for up to 3 years, with extensions and a maximum stay of 6 years e. Petition submitted by the employer, based on need f. H4dependentscannot work! IInternational Media QIndustry Exchange a. Cannot be extended K1Fiance/Fianc Visa a. Used by USCs who want to bring their prospective spouses to US b. K2for fiancs minor children c. USC must file the petition d. Issued at US consulate abroad
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10.

11.

12.

13.

e. Marriage must take place within 90 days of fianc entering the US f. Until the marriage, fianc is considered a nonimmigrant for the 90 days i. The 90 day period cannot be extended g. After the marriage, the fianc applies to adjust through the USC spouse O-1Extraordinary Ability a. Skills in sciences, arts, education, business, or athletics recognized through international acclaim b. Work as to be performed in the area of extraordinary ability c. Work must be temporary d. O-2supporting individuals of the O-1 e. O-3spouse and children of the O-1 f. Can seek to become LPR (EB-1Aextraordinary ability, no LC and can self petition) PAthlete or Entertainer a. P-1: Issued to individual or team or group b. P-2: Entertainers or part of an entertainment group c. Must be temporary work d. Can seek to become an LPR (EB-1Asee above) L-1 Intra-company Transfer Work Visa a. Executives, managers, specialized knowledge b. Two-step process i. Employer files the preliminary petition ii. Employee files the application c. L-1AIntra-company Transferee Managers or Executives i. Same company or subsidiary as foreign company ii. Alien employed in a managerial or executive position for at least 1 year in the 3 preceding years before the transfer to the US. iii. Maximum of 7 years iv. L-2spouses and children 1. Spouses have employment authorization v. Can lead to EB-1st preference multinational/manager/executive immigrant visa petition (employer has to petition) d. L-1BSpecialized Knowledge transferee i. 5 year maximum ii. Will not lead to EB-1st preference unless position in US becomes managerial and the L-1A is obtained before immigrant visa for EB-1 filed. TN NAFTA Work Visa a. For Mexican and Canadian Citizens b. Professionals listed in the NAFTA list of professionals c. Issued for up to 1 year d. Can be renewed indefinitely e. TDspouses and children, but no work authorization
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14.
a.

b. c. d. 15. a.

b. c. 16.
a.

b.

c. d.

E Nonimmigrant Visa Allows foreign nationals of a country with which the United States has a commercial treaty to come to the United States to engage in trade or investment of a substantial nature between the United States and the applicant's country of nationality. Can self-petition overseas, or apply for a change of nonimmigrant status in the US Applicants spouse and children can comespouse gets work authorization Admitted for 2 years with 2 year extensions E-1 Treaty Trader Visa The applicant must be coming to the United States to carry out substantial trade or to develop and direct the operations of an enterprise that has commercial trade with the applicant's country of nationality. Must be an executive or supervisor Can lead to EB-1executive visaemployer has to petition E-2 Must develop and manage the operations of an enterprise in which the applicant has or will invest a substantial amount of capital. The investor must come to the US to develop and direct the operations of the enterprise in which he/she has invested. The applicant must have more than fifty (50%) percent ownership of the investment, unless the applicant is coming as an employee of the enterprise. May lead to EB-5 Employment creation immigrant visa if the business meets the requirements.

e. Inadmissibility i. Grounds of inadmissibility 1. Apply to those seeking entry into the US AND 2. Those who wish to adjust status ii. 10 general categories of inadmissibilityINA 212(a)(1)-(10) 1. Health Related Grounds a. Communicable diseases b. Vaccinations c. Illnesses or disorders that pose a threat to US safety d. 1 DWI within 3 years or 2 DWIs at any time = inadmissible e. Drug users and addicts 2. Criminal and Related Grounds (excludes political offenses) a. Any alien who is convicted, admits to committing, or admits the elements of: i. A crime of moral turpitude (if maximum penalty is more than 1 year and sentence is more than 6 months)
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ii. Controlled Substance violations (unless 30 grams

or less of marijuana) 1. EXCEPTIONS for Controlled Substances and Moral Turpitude: a. Crime committed before age of 18 AND 5 years before the date of application for admission OR iii. 2 or more convictions for offenses whether or not they arise from a single scheme of activity, AND the aggregate sentence is more than 5 years iv. Controlled substance Traffickers 1. Traffickers, aiders and abettors 2. Spouses, sons, or daughters who, in the previous 5 years, obtained a benefit from the illicit activity and knew or should have known of the illicit activity. v. Prostitution and commercialized vices vi. Certain aliens involved in serious criminal activity who have asserted immunity from prosecution 1. Inadmissible until he/she submits himself to the jurisdiction of the US vii. Foreign government officials who have committed severe violations of religious freedom viii. Significant traffickers in persons 1. Those who kidnap USC children and take them to a foreign country ix. Money Laundering 3. Security Related Grounds a. Inadmissible if seeks to oppose, control, or overthrow the US government by force, violence, or other unlawful means b. Terrorist Activities i. Actually engages in ii. Suspected of engaging in iii. Intends to engage in iv. Represents a terrorist organization or group v. Member of a terrorist organization 1. Unless did not know or reasonably should have known the organization was a terrorist organization vi. Endorses terrorist activity (provides material support) vii. Has received military type training viii. Spouse or child if the activity occurred in the last 5 years 1. EXCEPTION: did not know or reasonably should know OR 2. Renounced such activity
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c. Foreign Policy Reasons d. Immigrant membership in totalitarian party i. Membership renders an alien inadmissible ONLY if the person applies as an immigrant (not if trying to adjust status) e. Participants in Nazi persecution, genocide, or act of torture or extrajudicial killing f. Association with Terrorist Organizations 4. Public Charge a. Factors: i. Age ii. Health iii. Family status; iv. Assets and resources; and v. Education and skills b. Family sponsored immigrants i. Must have an affidavit of support or else inadmissible unless 1. Spouse or child of a USC 2. VAWA self-petitioner c. Certain employment-based immigrants (if violate terms of visa) 5. Labor certification and qualifications for certain immigrants a. Labor Certification Grounds i. Inadmissible if EB-1 and EB-2 LC are not filed b. Unqualified physicians c. Uncertified foreign health-care workers d. Application grounds 6. Illegal entrants and immigration violators a. Aliens present without admission or parole i. EXCEPTION: VAWArequires connection between the battery or cruelty and the entry into the US b. Failure to attend removal proceedings i. Inadmissible if seeks admission within 5 years of the failure to attend c. Misrepresentation i. Misrepresents a fact to procure a visa or admission is inadmissible ii. Falsely claiming Citizenship 1. Unless both parents is or were USCs, alien resided in US prior to the age of 16, and reasonably thought he/she was a USC iii. Stowaways iv. Smugglers 1. EXCEPTION: Family reunification a. An eligible immigrant, physically present in the US on May, 5 1988 and seeks admission of a spouse, parent,
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son, or daughter or helps them enter illegally v. Subject of civil penalty vi. Student Visa Abusers 7. Documentation Requirements a. Document violations make you inadmissible 8. Ineligible for citizenship a. An immigrant who is permanently ineligible to citizenship is inadmissible b. Draft Evaders 9. Aliens Previously removed a. Arriving Aliens i. Inadmissible if ordered removed and seeks readmission within 1. 5 years of first removal or 2. 20 years in the case of a second or subsequent removal or 3. Is at any time convicted of an aggravated felony ii. is inadmissible iii. Unless AG consents to the application for readmission b. Aliens unlawfully present and then depart the US i. If unlawfully present for more than 180 days (6 mos.), but less than 1 yearinadmissible for 3 years from the date of departure or removal ii. Unlawfully present for 1 year or moreinadmissible for 10 years since the date of departure or removal iii. EXCEPTIONS 1. Minors, while under 18, do not count toward time periods for unlawful presence 2. Asyleesno unlawful presence time accrues while the application is pending 3. Family Unityif protected, does not count as unlawful presenceextreme hardship waiver to spouse or parent (not child) 4. Battered women and childrenif unlawful entry connected to violence 5. Victims of severe trafficking persons c. Aliens unlawfully present after previous immigration violations i. Unlawfully present for aggregate period of more than 1 year OR ordered removed and THEN attempts to enter without being admitted = inadmissible ii. The bar is permanent iii. UNLESS, the alien applies for admission more than 10 years after departure and AG approves of the application for admission 10. Miscellaneous grounds of inadmissibility
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Polygamists Guardian required to accompany helpless alien International child abduction Unlawful voters i. EXCEPTION: both parents is or were USCs, the alien permanently resided in US prior to `6, and reasonably believed he/she was a citizen e. Former citizens who renounced citizenship to avoid taxation iii. 4 Waivers for Grounds of Inadmissibility 1. 212(e)Waiver for foreign residence requirement of Educational visitor status (J1 Visa) a. If a government agency requests the waiver b. Exceptional hardship to LPR or USC spouse or child c. Persecution in home country d. Home country foreign ministry writes a no objection letter 2. 212(g)Inadmissibility due to Health Requirements Waived if: a. Must show you have spouse or an unmarried son or daughter who are USCs or LPRs or are a VAWA petitioner b. Vaccination may be waived if: i. If you get the vaccination at the port of entry ii. The medical panel certifies the vaccination is not needed iii. Cant be vaccinated due to religion or moral grounds c. No waiver for the drug abuser or drug addict i. 3 year bar for applying for admission ii. After that you are not classified at a drug abuser 3. 212(h)Criminal Grounds a. Waives inadmissibility due to: i. Single crime of moral turpitude ii. Controlled substance violations if single offense of 30 grams of marijuana for ones personal use iii. Multiple criminal convictions w/sentence of less than 5 years iv. Prostitution v. Aliens involved in serious criminal activity who assert immunity b. IF: i. Only found inadmissible for prostitution OR ii. the inadmissible activity occurred more than 15 years before the date of the current application for admission, visa, or adjustment of status iii. Admission would not be contrary to the US welfare, safety, or security AND iv. The alien is rehabilitated OR v. Extreme hardship to USC or LPR spouse, parent, son, or daughter OR
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a. b. c. d.

vi. The alien is a VAWA self-petitioner; AND vii. The AG consents to the aliens applying for visa, admission, or adjustment of status c. NO WAIVER FOR LPRs who are: i. Aggravated felons 1. BUT, a nonimmigrant can have an aggravated felony and still get LPR status. ii. Convicted or who admitted to or conspired to commit murder or acts of torture iii. Did not lawfully reside continuously in the US for a period of 7 years or more before the date of removal proceedings. 4. 212(i)Waiver of inadmissibility for fraud or misrepresentation of material fact a. Must show: i. The immigrant has an LPR or USC spouse, son, or daughter would suffer extreme hardship ii. In the case of a VAWA petitionerextreme hardship to the alien or the aliens USC or LPR parent or child. f. Deportation i. Must have a conviction to be deportable ii. 6 GroundsINA 237. Deportable Aliens 1. Inadmissible at time of entry or of adjustment of status or violates status a. Inadmissible Aliensif inadmissible at the time of entry or adjustment of status = deportable b. Present in violation of law i. Includes visa violations ii. Only applies to noncitizens who have been admitted iii. EWIs have not been admitted (no ground of deportability, just inadmissible) c. Violated nonimmigrant status or condition of admission d. Termination of conditional permanent residence e. Smuggling f. Marriage fraud g. Waiver authorized for certain misrepresentations INA 237(a)(1)(H) i. If the alien misrepresents a fact to procure a visa or other documentation to be admitted into the US and is 1. A spouse, parent, son, or daughter of a USC or LPR; AND 2. Had an immigrant visa or document and was otherwise admissible or 3. Is a VAWA self-petitioner

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ii. May qualify for a waiver of removal for fraud or misrepresentation and a waiver for the corresponding ground of inadmissibility 2. Criminal offenses a. General Crimes i. Crimes of moral turpitude 1. If convicted within 5 years (or 10 years for an LPR) after admission (adjustment to an LPR counts as a new admission), and 2. Sentence of 1 year or more is deportable ii. Multiple Criminal Convictions 1. If at any time after admission the alien is convicted of two or more crimes of moral turpitude, NOT arising from a single scheme, regardless of the sentence, is deportable iii. Aggravated felony
1. The statute is retroactive

2. Any alien convicted of an aggravated felony at any time after admission is deportable iv. High Speed Flight from immigration checkpoint v. Failure to register as a sex offender b. Controlled Substances i. A conviction after admission = deportable 1. Unless a single conviction of 30 grams or less of marijuana for ones own use ii. Drug abusers and addicts = deportable c. Certain firearm offenses (deportable but not inadmissible) d. Crimes of Domestic violence, stalking, or violation of protection order, crimes against children i. Deportable if committed at any time after admission ii. WAIVER (237(a)(7)): AG is not limited by the criminal record and may waive crimes of domestic violence and crimes of stalking if the alien has been battered or subjected to extreme cruelty if: 1. The alien was acting in self-defense; 2. The alien was found to have violated a protection order intended to protect the alien; or 3. The alien committed, was arrested for, was convicted of, or pled guilty to committing a crime a. That did not result in serious bodily injury; and b. There was a connection between the crime and the aliens having been battered or subjected to extreme cruelty 3. Failure to register and falsification of documents
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a. If present in US more than 30 days, must register, be fingerprinted, and provide address b. Change of address c. Failure to register or falsification of documents d. Document Fraud i. WAIVERthe AG may waive this if the alien was an LPR if no previous civil money penalty was imposed, and the offense occurred to assist the aliens spouse or child. e. Falsely claiming citizenship i. Same exception as the ground of inadmissibility (USC parents, reside in US until 16, believe s/he is a USC) 4. Security and related grounds a. Terrorist activities b. Foreign policy c. Participated in Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing d. Recipient of military-type training from terrorist organization e. Participated in the commission of severe violations of religious freedom 5. Public Charge a. An alien, who within 5 years after entry, has become a public charge from causes that did not arise after entry 6. Unlawful Voters a. Same exception as the ground of inadmissibility iii. Relief from Removal resulting in no immigration status 1. Deferred Action a. An act of administrative choice to give some cases lower priority due to limited resources b. Does not confer any immigration status c. Get work authorization d. No family reunification rights 2. Stay of Removal a. INS district directors may stay the removal of a noncitizen under a final order of removal as they deem necessary b. Generally used to give the noncitizen time to make arrangements prior to removal OR c. For humanitarian reasons 3. Voluntary Departure a. Pre-HearingINA 240B(a)(1) i. The AG may permit the alien to depart voluntarily at his own expense prior to removal proceedings ii. Max. 120 days to depart (unless extended by deportation officer) iii. Bond not required b. At Conclusion of Removal ProceedingsINA 240B(b)
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i. IJ grants order of voluntary departure at aliens own expense in lieu of removal and must find that: 1. Alien physically present in US for at least 1 year preceding the NTA 2. Good moral character for 5 years preceding application for voluntary departure; 3. Not deportable as an aggravated felon or on security grounds; AND 4. Alien provides clear and convincing evidence that he has the means and intention to depart the US 5. Max. 60 days to depart (cannot appeal amount of time the IJ gives you) 6. Must post a voluntary departure bond 4. Withholding of removalonly available in deportation (discussed below) 5. CATonly available in deportation (discussed below) iv. Relief from Removal resulting in LPR status 1. Usually requires: a. Statutory eligibility AND b. Exercise of discretion (unless mandatory) 2. Cancellation of removalINA 240A a. If plead guilty to a deportable offense prior to April 24, 1996: i. INA 212(c)WAIVER at discretion of AG 1. Must have been an LPR for at least 5 years 2. Must have had un-relinquished domicile for 7 years a. No stop-time rulecan accumulate after alien rendered deportable 3. Must have a corresponding ground of inadmissibility 4. The waiver DOES NOT apply to: a. (if plead guilty before April 24, 1996) an alien convicted of one or more aggravated felonies AND has served a term of imprisonment of at least 5 years b. (if plead guilty after April 24, 1996, but before IIRIRAs effective date of April 1, 1997) i. unavailable to aliens who were deportable by reason of their convictions for certain criminal offenses, including aggravated felonies, controlled substance offenses, certain firearms offenses, espionage, or more than one crime of moral turpitude ii. Sentence of 5 years or more
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iii. BUT, M/T is that you cannot be convicted of an aggravated felony b/c no corresponding ground of inadmissibility 5. Unavailable for a. Sexual abuse of a child b. Security related grounds of deportation c. Persecution of other people d. Anyone who has previously been granted relief b. Cancellation of Removal for PERMANENT Residents INA 240A(a) i. The AG may cancel removal if the alien is inadmissible or deportable if the alien: 1. Has been an LPR for at least 5 years 2. Has had continuous residence for 7 years, after admission in any status a. Stop-time rule applies i. When NTA served OR ii. When commit the offense that renders alien inadmissible or deportable for criminal offenses or security offenses 3. Has not been convicted of an aggravated felony c. Cancellation of Removal and Adjustment of Status for NONPERMANENT ResidentsINA 240A(b)(1) i. The AG may cancel removal and adjust status to LPR for an alien who is inadmissible or deportable if the alien: 1. Physical presence for 10 years a. Stop-time rule applies b. If leave US more than 90 days or an aggregate of 108 days in the 10 year period 2. Good moral character for 10 years 3. Not been convicted of an offense under the criminal grounds of inadmissibility, criminal grounds of deportability, or fraud and misrepresentation grounds of deportability SUBJECT TO INA 240A(a)(5)Domestic violence Waiver authority of a. INA 237(a)(7)Waiver for Victims of Domestic Violence (see above) applies to: i. Good moral character requirement of 240A(b) (10 years) ii. Aggravated felonies ineligibility under 240A(b) and
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iii. Grounds of inadmissibility under 212(a)(2)criminal grounds, or 212(a)(3)security grounds iv. Deportability grounds under 237(a)(1)(G)marriage fraud, or 237(a)(2)-(4)criminal offenses, failure to register and doc. fraud, and security grounds (subject to VAWA waiver) and aggravated felonies IF 4. Removal would result in exceptional and extremely unusual hardship to an LPR or USC spouse, parent, or child. 5. VAWA WAIVER240A(b)(2) a. Cancellation for an alien if has been battered or subjected to extreme cruelty by a spouse or parent who is or was a USC LPR b. Physical presence for 3 years i. No stop-time rule ii. Absences for 90/180 days dont count if connected to the violence c. Good moral character (unless the act or conviction was connected to the abuse) d. Not inadmissible for criminal or security grounds or deportable for marriage fraud, criminal offenses, failure to register and doc fraud, and security grounds (subject to 240A(b)(5) VAWA waiver) AND e. Has not been convicted of an aggravated felony AND f. Removal would result in extreme hardship to the alien, aliens child, or aliens parent ii. Cancellation of removal under 240A not available if already got cancellation under 212(c). 3. Adjustment of status a. Adjustment may be sought from the IJ during removal proceedings, even if the noncitizen had not applied for it earlier b. INA 245Adjustment of status of nonimmigrant to that of LPR i. Has to have been inspected and admitted or paroled (except if VAWA petitioner) ii. Has to apply for adjustment iii. Has to be admissible (can apply waivers here) iv. Has to have an immigrant visa immediately available
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v. Other than a VAWA self-petitioner, and an immediate relative of a US citizen, the alien cannot adjust if: 1. The alien is an alien crewman 2. Works or accepts unauthorized employment 3. The alien is in unlawful immigration status on the date of filing the application 4. The alien has failed to maintain continuously lawful status since entry 5. An alien was admitted in transit without visa 6. An alien admitted under a visa waiver program 7. An alien who is deportable under security grounds 8. Any alien who seeks adjustment of status to that of an immigrant through an EB visa and is not in a lawful nonimmigrant status; or 9. Any alien who was employed while the alien was an unauthorized alien OR 10. Who has violated the terms of a nonimmigrant visa 4. RegistryINA 249 a. Noncitizens who entered prior to January 1, 1972 b. Continuous residence since that date c. good moral character; and d. Not ineligible to citizenship or deportable on terrorist grounds 5. Asylum (discussed below) g. AsylumINA 208 i. Discretionary relief ii. Also allowed for victims of past persecution in the absence of a fear of future persecution (rebuttable presumption of future persecution) iii. Available to any alien physically present in the US or arriving to the US iv. Can adjust status after 1 year v. Exceptionsnot reviewable by the court 1. Safe third country 2. Time Limitmust apply within 1 year after the date of the aliens arrival a. UNLESS can show extraordinary circumstances that precluded filing the application on time 3. Previous application that was denied a. UNLESS can show changed circumstances that materially affect the new application vi. Conditions for granting asylum 1. Eligibility a. Subjective Standard b. The alien is a refugeeone who has a well founded fear of persecution on account of (linked to) race,
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2.

3. 4. 5.

6.

religion, nationality, membership in a particular social group (immutable characteristic), or political opinion. c. Burden of proof is on the applicant d. Testimony of the applicant may be sufficient Exceptions a. Participated in any way in persecution of a person based on one of the 5 grounds b. Alien convicted of a particularly serious crime, constitutes a danger to the community of the US (including an aggravated felony) c. Alien committed a serious nonpolitical crime outside the US prior to arrival d. Alien is a danger to US security e. Alien has engaged in terrorist activity f. Firm resettlement in another country before arriving to the US Spouse and Children a. If not eligible for asylum, may get the same status as petitioning alien if accompanying, or following to join Classification as a Child a. Determined on the date the parent applied for asylum Asylum Status a. An alien granted asylum i. Shall not be removed to the country of his/her nationality ii. Shall get work authorization 1. But not prior to 180 days after filing the application iii. May be allowed to travel abroad with consent of the AG Termination of Asylum a. Asylum does not convey the right to stay indefinitely in US and asylum may be terminated if i. The asylee no longer classified as a refugee due to a change in circumstances ii. Alien falls under one of the exceptions to granting asylum: 1. Participated in any way in persecution of a person based on one of the 5 grounds 2. Alien convicted of a particularly serious crime, constitutes a danger to the community of the US (including an aggravated felony) 3. Alien committed a serious nonpolitical crime outside the US prior to arrival 4. Alien is a danger to US security 5. Alien has engaged in terrorist activity 6. Firm resettlement in another country before arriving to the US

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iii. Alien can be removed to a country where his/her life of freedom will not be threatened on account of one of the 5 grounds iv. The alien voluntarily availed himself to the protection of the aliens country of nationality or v. The alien acquired a new nationality and enjoys the protections of that new nationality 7. Removal when asylum Terminated a. An alien described by the exceptions is subject to grounds of inadmissibility or deportability and the alien will be removed by the AG 8. Notice of privilege of counsel and frivolous application a. Frivolous applicationalien permanently ineligible for asylum 9. Consideration of Asylum applications a. Initial interview shall commence not later than 45 days after application filed b. Final adjudication completed within 180 days of application c. Administrative appeal filed within 30 days of decision or 30 days of completion of removal proceedings d. Applicant who does not appear for interview or hearing may have the application dismissed h. Withholding of Removal for AsylumINA 241(b)(3) i. Mandatory when clear probability of loss of life or freedom based on 1 of the 5 grounds (objective) 1. Stay of removal unless third country removal possible 2. Does not lead to adjustment of status 3. Work authorization 4. No family reunification privileges 5. Aggravated felons can get relief if sentence less than 5 years 6. No deadline for filing ii. Restriction on removal to a country where the aliens life or freedom would be threatened 1. The AG may not remove an alien to a country that the AG decides would threaten the aliens life or freedom because of the aliens race, religion, nationality, membership in a particular social group, or political opinion 2. Exceptions a. Alien deportable due to participation in Nazi persecution, genocide, torture, or extrajudicial killing b. Alien participated or helped in persecution of another based on one of the 5 grounds c. Convicted of a particularly serious crime and is a danger to the US i. Conviction for an aggravated felony or felonies with an aggregate sentence of 5 years or more = particularly serious crime d. Serious reasons to believe the alien committed a serious nonpolitical crime outside of the US before arrival
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i. Gross disproportion between means and ends ii. atrociousness e. Reasonable grounds to believe the alien is a danger to US security i. If deportable due to terrorist activities = danger to US security i. CAT8 CFR 1208.17 i. Mandatory duty on all countries not to deport an alien who will be tortured in home country ii. No bars for criminal convictions for deferral of removal under CAT iii. Torture does not have to be based on one of the 5 grounds iv. Can look to future torture v. Torturean intentional act inflicted for any reason based on discrimination of any kind with the consent or acquiescence (awareness) of a public official or other person acting in an official capacity vi. Does not include pain or suffering due to lawful sanctions vii. Withholding of removal under CAT8 CFR 1208.16 1. Eligibility a. Burden of proof is on the applicant for to establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal. i. The testimony of the applicant, if credible, may be sufficient b. All evidence relevant to the possibility of future torture shall be considered: i. Past torture inflicted ii. If applicant could relocate to another part of the country iii. Evidence of gross, flagrant or mass violations of human rights iv. Other relevant information regarding conditions in the country of removal. c. If the alien is subject to mandatory denial of withholding of removal, then the alien's removal shall be deferred. viii. Deferral of Removal under CAT-- 1208.17 1. Deferral of removal is allowed when the alien a. has been ordered removed b. is entitled to protection under the CAT; and c. is subject to mandatory denial of withholding of removal (see above) (conviction of a particularly serious crime in US = aggravated felony with a sentence more than 5 years, commission of serious crime outside US, torture, Nazi, danger to US security) 2. Deferral of removal: a. Does not confer LPR status b. Will not necessarily result in the alien being released from the custody c. Is effective only until terminated; and
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d. Is subject to review by the judge or by motion by DHS to terminate deferral e. Removal is deferred only to the country in which it has been determined that the alien is likely to be tortured, and the alien may be removed at any time to another country where he or she is not likely to be tortured (country specific)

Immigration Law Citizens Have unconditional right to remain in US Can't be deported or thrown out Must be admitted when you return from another country All people are immigrants or children of immigrants Two types of citizenship for those born Jus soley Place of birth Born in US Jus sanginus Through blood Mother or Father was a citizen Born outside the US US law had racial restrictions until 1952 No specific mention of immigration in US constitution If you're not a citizen Everything is conditional Entry can be prohibited

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US constitution Says that Congress has the right to pass a uniform law of nautralization President must be a natural born citizen Natural born citizen Means generally someone born in the US Includes people born to citizens on foreign military bases Members of Congress must be US citizens Dred scott He was in a slave state and went to a non-slave state Sued to be a free man Ct. says he's not a US citizen and could not use the SC 14th Amendment All persons born or naturalized in the US, and subject to the jurisdiction thereof, are citizens of the US and the state wherein they reside Citizen v nationals Citizens Nationals Both owe permanent allegiance to the US Jus soli Born in the US Indians were not US citizens because they belonged to the tribes, but now they are In the beginning of US history there were lots of Chinese brought in during the 1840s and 1850s They helped build the railroads and developed the west Then we outgrew ourselves and these anti-chinese laws were passed in the 1880s They were not allowed to naturalize in the US US v. Wong Kim Ark Wong Kim Ark was born in CA and when he was 21, he went to China to meet his relatives. When he returned, the immigration officer sent him back to China It was argued that this only applied to Whites and not Chinese Women at the time, after all couldn't transmit citizenship The US SC determined that he was indeed a US citizen Children of diplomats are not subject to the JD of the US, and therefore are not US citizens If an invading army comes in and takes control, the children born by the army are not US citizens Children born in the US to undocumented aliens are citizens

1. Jus sanguinis a. Blood citizenship b. Confers citizenship on children according to the parents citizenship irrespective of where the child was born i. Born to either one or both parents that is American ii. Section 301cdegh and 308(2)(4) and 309 iii. If child is born of two US citizens, it's automatically a US citizen
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1. If one of the parents has resided in the US iv. If one is a citizen and the other is a non-citizen, must look at the citizen's residence 1. Post- 1978 The US citizen parent has to have resided in the US for 5 years prior to the birth of the child, two of which were after the age of 14 2. Pre- 1978 the US parents had to live in the US 10 years prior to the birth of child, 5 of which were after 14 a. Also- there was a condition subsequent that the child comes to the US and resides for 2 years between 14 and 28 3. Must use the law that was in effect at the time the child was born v. There are exceptions for military and some other type things c. Until 1934 women could not derive citizenship d. Illegitimate children i. Children born out of wedlock now acquire citizenship from their mother 1. If the mother had been physically present in the US for a continuous period of one year or more before the child was born a. Issues arise when the mother leaves before she's school age b. Only way to solve is by affidavits i. Not the best way to do so ii. Children born out of wedlock for a father, it is more difficult 1. Must establish blood relationship with the father 2. Must show that the father at the time the child was born, was a US citizen 3. Father must have agreed in writing to provide financial support for the child until the child reaches the age of 18 4. Also, while under the age of 18, the child must be legitimated (marriage to the mother automatically legitimizes the children) under the laws of his residence or his fathers residence OR 5. Father must acknowledge paternity in writing OR 6. Paternity must be found by adjudication Statute: 309.84 a. When the father knows the child, must take steps to have a parent-child relationship iii. There is no equal protection claim 1. It's the gov'ts right to determine who will be a citizen and who will not be 2. Does not require Congress to ignore reality a. If you were not aware of the child, the child didn't know it had a claim to citizenship and there was never a relationship __________________________________________________________________ e. Citizenship i. In the immigration act 1. Is all contained in title 3 f. Immigration i. In the immigration act
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7.

1. Contained in title 2 g. Often the two titles have different definitions h. Children born outside US are not 14th amendment citizens i. People who born here or are naturalized here, are 14th amendment citizens 2. Naturalization a. Requires English language speaking b. Used to require 2 US citizen witnesses c. Nationality act of 1940 i. Revised those laws d. 1952 act got rid of all racial restrictions i. There were some restrictions, however, on some subversive groups (commies, etc.) ii. If you were a non-citizen and you wanted to not be in the army because of where you're from, you couldn't be a citizen e. 1990 process changed i. Gave dept. of homeland security the jd to swear someone in as a citizen 1. Took away from the Fed. Ct. 2. However, still have a US magistrate do it, but do it in large groups ii. Naturalization is a ad process rather than a Fed. Ct. process f. Substantive provisions i. Sec 311 thru 331 and 337 1. Gives guidelines in order to obtain naturalization a. Requirements in 316 i. Must be a lawful permanent resident ii. Must have permanent domicile in the US 1. If outside the US for more than 6mo, there is a presumption that you've abandoned your residence 2. If you're outside the US for more than 1 yr, you HAVE abandoned your residence iii. Physical presence 1. If you are under the 3 or 5 year statute, at least 50% of that time, you have to be physically present in the US iv. Good moral character 1. Title 2 section 101F 2. During the statutory period (either 3 or 5 yrs), you must show that you are of good moral character 1. If you've got a assault case pending during the period, likely won't be of good character 2. If on probation, likely not of good character v. Must be 18 years of age 1. If you're under 18 yrs of age and one or both parents is going to be naturalized, you can acquire citizenship thru your parent 1. This gives certificate of citizenship 1. Not a 14th amendment citizen
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Must be able to read/write/speak English 1. Exemptions exist 1. If you have been a lawful perm resident for over 20 yrs and over age 50, can use native language 2. If you have been lawful perm resident for 15 years, and over age 55, can use native language vii. Must have knowledge of civics 1. US history and gov't viii. Must have loyalty to the Constitution ix. Males must have registered for the draft (btwn ages of 18 and 25) 1. If you didn't, you will have to wait to 31 to get citizenship b. 5 yr and 3 yr statute i. Person must be a lawful permanent resident for 5 years before application ii. Exception is the 3 yr statute 1. If you are married to and residing with a US citizen c. Schneiderman v. US i. Kid was a commie but wasn't violent. Woulda' fought for the US, even if fighting aginst the commies ii. Can be naturalized through military service 1. Immediate- no 5 year wait a. Sec 328-330 iii. Non-citizens can be naturalized 1. Non-citizen means swam the river or were here on a vacation visa and stayed 2. If they are members of the armed forces during certain periods of time 3. Many people did during WWII 4. Also allows for military dependents g. Procedure i. The application is on a N400 1. File it and get a receipt ii. Sent to photos and fingerprints 1. Bring criminal crap with that iii. 2-4 months later, you get interview 1. This is where they determine the whole thing (the above required things) iv. Usually a citizen w/in 6-7 months from time filed v. If it is denied 1. You have a right to appeal a. Problem with the appeal i. The examiner will go see the supervisor and the same supervisor will be over the appealed application 2. If appeal is denied a. Can file a de novo action in US district court
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vi.

h. Price v. INS i. Naturalization was denied because Price refused to list his organizations ii. Claimed that it violated his 1st amendment right to not have to list associations iii. Ct. held that the gov't is giving a privilege, there is no RIGHT TO be a US citizen and therefore you must satisfy the requirements by Congress Burden is on applicant Dual citizenship Loss of citizenship o 2 ways to lose Expatriation At one time Congress could determine that certain acts would cause a loss of citizenship Perez v. Brownell Perez had voted in Mexico Ct ruled that he had lost his citizenship in the US by voting in Mexico Act must be done VOLUNTARILY Afroyim v. Rusk Voted in Isreali election Brought a declaratory judgment action- violation of due process Since there is no provision to take away someones provision to take away citizenship, it can only be lost by voluntary recision Ct. held that Congress can't cause expatriation w/o voluntary consent of the citizen Vance v. terrazas Guy was a dual American/Mexican citizen Applied for a certificate of nationality from Mex Mex sends a copy of this to the US embassy Because he VOLUNATRILY renounced Ct says 2 thing Must prove citizen wanted to lose citizenship Must do so w/ clear unequivocal evidence Requires Voluntary commission of expatriating acts Coupled with attempt to relinquish citizenship Two rebuttable presumptions Under duress Presumption now A US citizen intends to remain a citizen Must be done in writing Or if you take a policy level position in a foreign state denaturalization Revocation of citizenship of a naturalized citizen based upon fraud or illegality in the original naturalization proceedings
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If citizenship is illegally procured Means that at the time of being naturalized, the person did not satisfy the statutory requirements Question of fact, not of law Also if misrepresentation or concealment of a material

fact Chaunt decided that if there is a misrepresentation it must be material Kungys- misrepresented his date and place of birth and his wartime addresses and occupation He made false testimony Did this have to be material? No- if it's a lie it doesn't have to be material False testimony Oral evidence given under oath requiring subjective Must go to court to have your citizenship taken away Linus case Guy was from Estonia under the displaced persons act If he had told the truth in 1951, he wouldn't have been able to live in the US Because he did not lawfully procure his residency, he could not become a citizen

Immigration law o For a long time there was no immigration law o 1864 - States tried to limit immigration o 1875 - Blocked convicts and prostitutes from immigration o 1882 - General immigration statute Provided a head tax Chinese exclusion act o 1917 o 1921 - Quota act of 1921 Fear of inundation of Europeans into the US Allowed immigrations of 3% of each nationality listed on the 1910 census So if in the US 80% of the people were from England, they'd get 3% of 80 Exclusion o Excludes people from coming in Deportation o Kicks people out Currently o No more INS o CIS Citizenship and immigration services Do all of the petitions and naturalizations, etc. o ICE Immigration and custom enforcement
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Law enforcement arm Deport people

Cbp Custom and border protection Customs agent It's harder to get a DL now Must take evidence that you're a US citizen or a lawful permanent resident

1882 Chinese exclusion Those who went to China had to have a certificate of identification in order to come back to the US The ct has held o There is no constitutional right to exclude aliens o It's an inherent power of any nation to control it's own territory o Congress has the authority to regulate international affairs This is in the national gov't and not state gov't Have plenary power w/o judicial review Int'l law o A sovereign nation has the power, inherent in its sovereignty, to forbid the entry to any or all aliens into its territory or to admit them under the conditions they see fit o This power is vested nationally o The cases get to the SC on procedural matters, not on the issue of the country defending it's borders It is for the voters and not the judges o Who can we deport w/o raising constitutional issues? Chinese exclusion o Ping o Ting o 1892 statute All Chinese laborers became deportable unless they were living in the US prior to the date the law was enacted Had to have a certificate of identity Would need a white witness to prove that they were there on the date of the act And would need to show there was an unavoidable cause for not having the certificate o SC confirms The right to expel foreigners who have not become naturalized If they desire and it s in the best interest of the country Also have the right to prohibit entry into the US Can pick and choose who People permanent in the US are on the same footing as citizens Are on a different footing than those entering Could congress pass a law today finding inadmissable all people from Ireland? o Under Ping and Ting, the answer is yes o Those decisions have never been overruled Wong wing v. us
o o

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The act that allwed the rule for certificate, also allowed 1 year in prison with hard labor o Tried to differentiate from ting, in that Wong had been sentenced to confinement, and violated 5 tha nd 6th amendment Because he was punished w/o indictment o Ct held that being held and hard labor was unlawful and violated the constitution Federal structure for immigration o All are part of the Department of Homeland Security o Customs and border protection Are in charge of the port of entries Screen both people and cargo Broken into primary and secondary inspection Secondary is needed when the status of someone's right to enter the US is questionable 4 things can happen Can be admitted Can be immediately deported w/o seeing an immigration judge Can be allowed to withdrawal his application for entry Differed inspection When you're at inspection, you're not legally here yet o ICE Immigration and customs enforcement Take care of deportation Border patrol
o o

Bureau of citizenship and immigration service Assign stuff to field offices Have application support systems DOJ Office of immigration review Immigration judges Immigration appeals Removal/bond proceedings Airlines can be fined for brining people who aren't allowed here here FBI Does fingerprint checks

Visa Allows a person to make an application for entry into the US Must be done by all aliens, unless permanent resident aliens o Reviewed by an agent of DHS Department of labor o Sometimes gets involved in employer sanctions o Has a board of labor certification appeals Office of refugee resettlement o Deal primarily with unaccompanied minors o Takes care of them until an adult can be found to take custody of them and help them appear for al hearings, etc.
o

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1. Being admitted to the US a. Two types i. Immigrants 1. Immigrant visa ii. Non-immigrants 2. What is an immigrant? a. Permanent resident, lawful permanent resident (lpr), green card holder i. Permanent resident 1. Comes to live here permanently 2. Non-immigrant has a permanent residence outside the US a. Has no intention of abandoning that permanent residence i. Coming for a temp. visit 1. Tourist, student, etc. ii. When the purpose of their visit is over, they return to their home domicile ii. Immigrant 1. Comes to US to remain permanently iii. Categories of immigrant visas 1. Family a. Immediate relatives i. 201.2ba 1. Spouses, children or parents of US citizens 2. Child (101 b1) 1. Unmarried, under age of 21 2. Child born into a marriage 3. Step-child 1. Whether or not born in marriage, providing child had not reached the age of 18 at the time the marriage creating the relationship is performed 4. Child born out of wedlock to a mother 1. Easy cheesy 5. Child born out of wedlock to a father 1. Must have a bonafide relationship with the child 6. Adopted child 1. Adoption must take place before age of 16 2. Child must be in legal custody and residing with the adopting parents for at least two years 3. If that child has a sibling, then the same adopting parents can adopt that child before age of 18 4. Natural parents don't get benefits of immigration 7. Orphan 1. The death or disappearance or abandonment of both parents OR if there is a
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3. ii. 1. b. i. ii. iii. c. i. d. i. e. i. FB2b child FB2a FB-1

surviving parent, that parent is incapable of providing for the child and signs a release for the child to live with someone else 2. Must be done before age of 16 3. Natural parents don't get benefits or immigration No quota- no waiting period Parent Relies on the definition of child 1. If doesn't meet one of those will not be defined as a parent Over the age of 21 Called sons and daughters of US citizen Must have once been a child- fit the definition of Spouses and children of lawful permanent residents Unmarried sons and daughters of lawful permanent

residents FB3

Unmarried lawful brothers and sisters of US citizens f. Deritive beneficiary i. Spouses and chidren of beneficiaries 1. Ex: you're filing for your brother, when his visa is available, it includes his wife and children ii. If the petitioner dies before they've approved, it wipes out the petition g. Preference categories 2. Employment 3. Diversity 4. Refugees b. Fiallo v. bell i. Father petitioned obo child ii. It's a fundamental right of the sovereign to determine who can come into the states iii. Step-mothers have an easier time adopting than fathers iv. Amended in 1986 c. Only family based is subject to numerical d. Immediate derivatives for family based Common law marriage in TX is recognized in immigration law Adams v. howerton o Involved same sex marriage o Ct. rejected same sex couples w/in definition of "spouse" o Rejected that it violated due process clause o Rational basis test Don't get married to have children Defense of marriage act
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Marriage means only a legal union between one man and woman as husband and wife o Spouse means only on person who is of the opposite sex Lawrence v. TX o Close scrutiny when leg. Intrudes on intimate personal relationships o Question will now arise- does this Lawrence decision trump the same sex marriage denial? Fraudulent marriage o Dabagian During Iranian issue Tons of people were getting married to keep Iranian students here By the time Dabagian was approved him and the wife were separated and no longer living together. Once he was approved as a permanent resident, filed for divorce In order to deny or rescind based on a marriage Must establish that it was fraudulent or invalid from the inception Did the parties intend to establish a marital relationship and live happily ever after? It is the citizens burden to establish that it's a valid marriage for immigration purposes How? Wedding photos, statemetns on joint bank accounts, etc. Interviews Usually interview alien spouse first Surprise visit to the house Ethics o Who is the client? The spouse or the alien? Make sure they know that if the atty discovers something funny is going on you will immediately withdrawal Let the know the spouse and the alien could go to the Fed. Penn because of their lies The alien will be deported and can never come back to the US again Permanent residency o Must be filed w/in 3 months o If denied, and put in deportation can renew w/ judge If parties divorced before or US citizen won't sign waiver o Alien can still have 751 approved Establish extreme hardship if the waiver not granted Very difficult to do Establish that the divorce was not their fault Still have to prove it was a bonafide marriage Violence against women act (VAWA) o Show physical or mental abuse has occurred o Abused spouse can self-petition The abuser must be a US citizen or a lawful permanent resident Must be a valid, legal marriage Must have subjected petitioner to battery or extreme cruelty
o

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Must Must

Must Young v. Reno o Young was adopted by a US citizen and immigrated to the US. She became a citizen and then petitioned for her multiple bros and sisters. o Bros and sisters were revoked- saying sibling rel. was severed by adoption and immigration into the US o Chevron Two step process for an agency interpretation for a statute it interprets Cts will look @ statute and ask themselves: "has congress directly spoken on the question at issue?" If the intent is clear- it's over If it is ambiguous, the ct. must determine whether the agency's determination is based upon a permissible construction of the statute o Natural parents can't get benefits from a former child In the matter of Kong o For a sibling rel. to exist, the pet. must establish that s/he and the beneficiary once qualified as children of a common parent o Congress did not define brothers and sisters, so the ct. looked at the construction of the statue and says it falls within the law o Gives full meaning to 101.b1e- denying any benefits to natural parents o Gives the agency deference

Must have documentation Hospital reports, police reports, witnesses have lived w/ the abuser be residing in the US Or the abuse must have been while living in US be of good moral character

1. Employment immigration a. 1st preference trickles down into the other preferences b. Preferences ranked on the career i. 1st preference is alien of extreme ability (EB11) 1. Gold medal winner in the Olympics, nobel prize winners, at the top of your field 2. How to prove ability a. Have other EB11s write letters b. Define the field ii. Second level of 1st preference (E12) 1. Outstanding professor or researcher a. Person cannot self-petition 2. Needs to be full-time 3. Need 3 years experience 4. Research needs to be recognized in the int'l community iii. 2nd preference 1. Professionals and those with advanced degrees a. Advanced degree is tricky because our degree system is different than those of other countries 2. Must show that the work has extrinsic merit iv. E3 and E2 1. Labor certification application
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Must talk with employer and find out what the job is i. Get pay range 1. Part of the process is maintaining the prevailing wage for the job b. Make sure you have that before the process begins 2. Must be 180 day period before the filing of the application 3. Employer must pay 4. Employer must run a major add in a Sunday newspaper in the city where the immigrant is going to work a. Another mandatory add 5. Then a 30 day job order w/ state employment agency a. So that the labor department can see them 6. The HR dept must also post the job on a bulletin board c. Labor certifications are taken care of in GA i. Right now taking a year ii. Cannot file the I-140 petition until you have the approved labor certification 1. Must be filed w/in 180 days of the labor certification Two ways to get people here Family Employee

a.

1st incredible at their work 2nd professors, etc. 3rd CEOs EB2- requires masters degree or above Can self petition for National interest certification EB-3 usually requires the employer to prove there is no American for that position Labor certification required Mainly electronic filing Important Needed in order to file 1-40 Filing creates the priority date Place in line Why not file labor certification? If they came legally, they will have to go back to their place of origin, and may have to wait 10 years or more Employer could be sanctioned because they have an undocumented worker working for them May take forever for the person to be able to work here EB-5 Green cards for green backs You bring money to the US, we give you a greencard It's got to be a new or failing (but rescued) business Must create 10 full time jobs for US workers 2 year conditional visa

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Must show that there were 10 jobs and your investment is still in place

Visitors Usually need a visitors visa Must be applied for at the US consolate They have TOTAL discretion Give 5 year or 10 year multiple visit visa B1/B2 visa Costs $133 worldwide Non-refundable Some came come in on a visa waiver A visa Give immunity Requires a waiver of immunities G visa For people working at NAD bank Required 50/50 mexican/US citizens Used often for people who work for World Bank I visa For members of the international media N visa NATO F visa Student visa Must be taking 12 credit hours K visa Fiance visa Hybrid visa Can petitoin for someon to come here as a fiancee T visa Victims of trafficking - Immigrant visa allocation Family based (take a long time) and employment based. - Employment based 2nd preference (EB2) and 3rd preference (EB3). - Exceptional exception EB2 Employer requests someone through the Department of Labor. - Labor certification process Electronic through a large extent since 2005. Important because it is necessary to file I-40. - Labor certification filing date creates the Priority date. - If you file one of this, and the person is undocumented, they have to go back to their home country. - Employer signs attestation to the labor certification. - Employer sanctions If he lies saying the worker lives out of the country currently when really hes already working for him. - EB3 case Length of time it takes to process petition waits of over 8 years from time priority date is created. - Non-immigrant temporary visas R1 for religious affiliations. - Ministers of religion treated better by the system than all other religious workers. - If you are married to a US citizen, you can apply for permanent residence under I-94. - A public school cannot refuse to educate a child because he is undocumented. - Fiance Hybrid visa.
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______________________________________________________________ Non immigrant visa Immigrant intent o Kiss of death on non-immigrant visa o most common reason for denial B1 visa o Can do work in US if you're on payroll outside US Even construction work o Under NAFTA there is a little more wiggle room for visitors H2a agriculture worker program o Migrant workers H2b o Used for landscapers Not considered agricultural o Almost never allow families to come to the US o Usually for one year at a time H1b o Quota of 65k/yr o Employer has to want to hire the foreign national into the position o First question: What do you ordinarily require for this job? o Hiring preference of bachelor's degree o Last year went to systems analysts o Must pay a training fee of $1500 and a fraud detection fee and $320 for the filing fee Colleges and universities don't have to pay the training fee Tn o Doesn't allow dual intent O visa P visa o Artists/ athletes L1a o Can lead to multi-national manager executive L1b o For people with special knowledge E3 o For Australians o Requires the employer to get a labor condition application Just says what the wage is and that they're gonna pay that o Send it to the person in Australia, with a letter, and then the person gets an E3 visa o No fees, no petition T visa o Victim of trafficing U visa o Victim of certain criminal act and helped the police convict the criminal E2 visa o For investors o Doesn't matter where you were born, it's the passport you carry
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101a13A- entry- lawful entry of an alien into the US after inspection and authorization by immigration officers Lawful permanent residents have one entry- when they come in, when they go out and come back in, it's not considered re-application o Unless they have abandoned their residence When he comes back, it will be re-admission o Also if they have been outside US for 180 days o Or if they have been convicted of an offense of a certain law Will be seeking an admission Unless has been granted waiver or cancelation of removal A non-immigrant seeking admission either has a visa stamped in the passport or Grounds of admissibility o Are important when you apply for a visa o 10 grounds Health grounds Tb, or some other communicable disease of public health concern Establish that certain vaccinations have been had Physical or mental disorders Present or past If had in past must show not a threat to public safety Drug abusers/drug addicts If you can show that you had a single use of mary jane and you were just experimenting, there shouldn't be an issue Economic grounds (sec 212.84) Persons likely to become a public charge Means you'll be dependant upon the gov't for assistance Either by public cash or long term care How to overcome Family based- the citizen who is filing the petition has to submit an affidavit of support It's a contract, signed w/ the US gov't, along with wages, etc. to show that he meets the poverty guidelines Entering the US to perform skilled or unskilled labor Requires labor certifications Medical graduates from non-approved medical schools, w/o passing certain tests, etc. Former citizens who renounced citizenship for tax purposes 212a(2)A criminal grounds If you are convicted of, admit committing, or admit essential elements of crime involving moral turpitude, or violation of any reg. in the US or country regarding controlled substances Don't need a conviction If you've been convicted of two crimes and the aggregate sentence was 5 years or more Controlled substance traffickers
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Who the consulate knows or has reason to believe the person was doing it Money launderers Diplomats who have been granted immunity from prosecution for a seriously criminal offense Any felony Any crime of violence Security and related grounds Sabotage, etc. terroristic activities People who entered illegally Misrepresentation or fraud Entering by fraud or misrepresentation

____________ __________________________________________________ Grounds of inadmisability Ineligable for citizenship Usually for aliens who have avoided service in the armed forces Doesn't apply to those that were here on a non-immigrant visa 212A9 Part A Bans admission of aliens who have been deported from the US or were subject to expedited removal Cannot return to US for 10 years Unless aggrivated felony- 20 years Part B Unlawful presence in the US If you come in on non-immigrant visa and you remain in longer than authorized If a person has illegal presence for more than 180 days and less than a year Cannot come back for 3 years If illegal presence for more than one years Cannot come back for 10 years Can waiver if a parent or spouse will suffer extreme hardship if waiver isn't granted Can't come in until waiver is granted Part C Unlawful presence when deported and come back in illegally No waiver Must live out for 10 years Must get permission to reapply Waivers Section 212E J1 2 year foreign residency requirements US gov't or state gov't agency requests a waiver If there is a spouse or child citizen, show exceptional hardship Not easily granted Section 212G Must have a spouse/unmarried son or daughter/parent citizen Medical waivers
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No waiver for drug abusers or drug addicts 212H Criminal activity- must show there would be an extreme hardship to US citizen relative (close) If crime is violent or dangerous Standard for granting waiver is higher Must show extraordinary circumstances Will not get waiver for when you've committed murder or torture Have to had been a lawful resident for at least 7 years prior to deportation proceedings Does not apply to a non-lawful permanent resident _________________________________________________________________ 212I More and more prevalent Waiver for a person who has committed fraud or misrepresentation for committing fraud to become citizen Must show that there is an extreme hardship upon a qualifying relative Extreme hardship can be construed narrowly Can still deny waiver in discretion Klimese v. Mandell Inadmissibility because of personal beliefs Extradition We extradite with Mexico The SK case Grounds of inadmissibility SK was a Burmese national A chin Christian Was in the US and applied for assylum, withholding of deportation and relief of tortue She was denied for all three forms of relief On the ground that she had donated $685 to the Chin National Front They were considered a terrorist organization Discuss the acts that require terrorist organization Noff Was born in Germany Moved to England Worked for US military in Germany after the war Married w/ permission of US commanding general to US guy She was denied entry Aliens have no fundamental right to enter the US It's a privilege which is granted by the sovereign Was ultimately granted legal status and lived in the US forever Established rule that executive w/ AG and dept of state can use secret evidence to exclude a person from the US and don't have to give that person a hearing If prejudicial to the US Deportation proceedings are subject to constitutional review Deportation grounds are typically not subject to review

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Modern admission procedures Some visas require petitions filed first h, l, o, p, q Someone must file petition and it must be approved before alien can file for visa at the consolate All applicants for non-immigrant visas must be fingerprinted and interview Adjustment of status 245 of the act Must qualify for the visa Must be a visa available Must not be inadmissablie Cannot leave the country w/o permission In order to file Must have been inspected and admitted or parolled to the US Transits w/o visas are not eligible Cannot have certain circumstances Entered on visa waiver Have overstayed their I-94 If the applicant had engaged in unauthorized employment 245 I Must pay $1010 plus an additional $1k for the privlidge of applying to permanent resident status This is for those who are here illegally Must have had a visa or labor petition before 4/30/2001 Had to have been physicaly present in the US on 12/21/2000 If it is denied there is no appeal Can file a motion to re-open OR Get put in deportation proceedings and have to renew your status Preconcieved intent Would want to wait a while before getting married Consular decisions on whether to grant visa or not Generally non-reviewable 1. Aliens have full constitutional rights in procedure in deportation proceedings a. Civil in nature a. Miranda warnings not required 2. Port of entry a. No 4th amendment rights a. Not in the US yet a. Can be searched w/o probable cause 3. 287a2 a. Tells the immigration offer they have the power to arrest w/o warrant i. Must have reason to believe 1. Alien 1. In US illegally 2. Is likely to abscond before warrant can be issued a. Bond
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4. a. a. 5. a. 6. a. a.

a.

a. 1. 2.

i. $1500 if eligible ii. Hearings are separate from removal hearings Rules of evidence Are used as guidelines Hearsay is allowed if probative and fundamentally fair Deportation The person has the right to designate the country of deportation Asylum Prior to 1980 i. Almost unheard of Refugee act of 1980 i. Sec. 207- overseas refugee program 1. Must have persecution and/or a well founded fear of persecution ON ACCOUNT OF a. Race, religion, nationality, membership of social group, political opinion 1. What is persecution a. Involves infliction of harm or suffering in a way that is regarded as offensive, to overcome some characteristic of the person i. Can be physical, psychological, economic 2. Future persection a. Difficult to show a. Discretionary a. "well founded fear" i. Must establish that would be persecuted based upon one of those statutory reasons 1. Fear is subjective 1. Reasonable basis for the rear is objective standard 1. Need not be a certainty, only a reasonable possibility 1. Establishing past persecution shifts burden to gov't 1. Persecutor must have the inclination to persecute Matter of chan i. Legislation based on China's population control law, which meant some people were forced to be sterelized or forced abortions, but not the official policy 1. The fear was a particular social group 1. The person that was opposed to the one child only policy a. Ct rejected this argument because the policy was countrywide and did not fit the definition, and the law had built in exceptions Matter of MA

In the matter of MA a. Niceraguan person denied In the matter of something else a. Fiji case a. Cu de tas
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3.

4.

5. 6.

a. Against the indo-figians Assylum a. Must show that the gov't is unwilling or unable to control the crimes i. Mere existance of crimes doesn't show ii. Must show some political nexus btwn non gov't violence Estetic case a. Clear probability of persecution a. No subjective component a. Must be objective evidence a. More likely than not standard i. Must be established by objective evidence a. 240h is country specific Lawful resident status a. One year after being granted assylum Assylum a. Must be a realistic liklihood of persecution a. Good reason to fear the persecution

The power comes outside the constitution, in that every soviergn nation can control it's borders and who comes in Assylum o Must apply w/in one year of arriving to the country Under 208 May be based on future and past persecution Element of firm resettlement applies o Firm resettlement Not applied to removal Witholding Only witholds deportation to a specific country o Aguirre Kid was in a student organization in guatemala o Aggrivated felonies Per se serious crimes Withholding is barred for aggrivated felonies o The matter of YL Torture o Torture is not allowed o No state shall return someone to another state where they might be tortured or killed

1. Enforcement a. Almeda sanchez case i. Factory raids ii. If you can't walk away then it's a siezure, if there was a siezure, there's a right to 4th amendment protection iii. If the person refuses to answer, there must be some minimal level of objective evidence which would justify further questioning b. Ponce
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Presence in an area where undocuments hang out is not enough to justify a stop c. Reasonable suspicion (particularized suspicion) i. Based on the totality of the circumstances ii. Nature and use of area iii. What kind of vehcile is it 1. Won't smuggle aliens in a Mini d. If the stop is based on racial profiling only, exclusionary rule applies e. Miranda warnings i. Not required because it's not criminal proceedings ii. Could make the argument that if you illegally entered the US, there is a crime, but they won't charge with a crime, so dont worry about it iii. If they're gonna' be arrested must be given their rights 1. Notice and hearing a. Alien is give 10 days before a hearing b. Can be waived c. If the alien has no attorney, the judge will usually give the alien time to seek counsel i. That's usually a one-time thing d. Master calendar hearing i. Have to plead the allegations ii. This is where you present evidence, etc. 1. Judge can refuse to allow evidence iii. Relief is determined iv. Can appeal e. Can have an attorney i. But must be no cost to gov't ii. Free legal services 1. Usually people or agenicies that represent aliens that aren't lawyers iii. Arises from 5th amendment f. Immigration judges i. Administer oaths ii. Receive evidence iii. Interrogate iv. Examine and cross examine witnesses v. Develops the record 1. Needs to do so farily g. All imm cts have interpreters i. Entitled to a competent interpreter ii. Don't need simultanious interpretation h. Burden of proof i. Gov't has to first prove that the person is an alien ii. Gov't must establish that the alien is removable i. Motions to re-open i. If you can get the trial aty to agre to it, you can get it re-opened 1. Motions to re-open a. 240b5C
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i.

b. c. d. 2. a. b. 3. a. b. c.

i. Must show that there is now evidence that is available that wasn't avail Only entitled to one Must be filed w/in 90 days Does not stay the execution of deportation i. Must request a stay of deportation ii. Can be telephonic Motion to reconsider To review errors of an earlier decision or appraisal of law OR facts Only entitled to one Detention People with orders of deportation Indefinite detention raises a serious constitutional problem i. Statute cannot authorize indefinite detention Mandatory detention is ok i. Esp if removable under criminal grounds

1. Employers sanctions a. Outgrowth of the immigration and control act of 1986 b. History i. Prior to 1986 1. TX provisio a. Most undocumented workers were coming to TX 2. Laws had to come out of judiciary committee ii. Post 1986 1. Legalization program a. Aka amnesty program 2. Also had the agricultrural workers 3. Also can't discriminate 4. Employers sanctions provision a. 274A i. It's unlawful to hire, or recruit someone who isn't lawfully allowed to work in the US ii. Hire means accept someone for employment for wages 1. Does not include casual hires for domestic employment 1. Domestic employment that is sporadic, irregular or intermittent 1. Once in a while, ok, but on a regular basis, not casual 2. Or independent contractors or volunteers 1. One who carries on his own independent business, contracts to do a specific job according to his own means and methods iii. Has penalties for hiring those who are not authorized to work in US 1. Requires employees fill out I-9 1. Birth certificate is ok for id
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Must discharge the employee within a reasonable period of time (if you know they're illegal) v. Knowing includes constructive knowledge b. Failure to comply with verification system i. Means you didn't fill out the form ii. If you fill out the I-9 while lying, can be charged criminally iii. If there is a complaint against your company, it's like you're in Federal court 1. Defenses 1. Good faith and substantial complaince c. Penalties i. First violation $275 min and $2200 max/ violation ii. Consider size of business in assessing the penalties iii. Consider good faith of employer and what they tried to right

iv.

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