(1) INTRO

Historical

1952 INA passed -- Power given to AG, INS; some power reserved for BIA (never part of
INS)

Established preference system for skilled workers and relatives of US citizens and
permanent residents.

Repealed Japanese exclusion & established a small quota for the Asia-Pacific Triangle

1964 Civil Rts Act

1965 Immigration Act of 1965. ***Congress removed RACE for immigration categories.
First fedl immigration statute w/o reference to race (explictly)***

Abolished national origins formula; replaced it w/ a per-country limit of 20K on every

country outside of the western hemisphere, and an overall ceiling of 160K for those
countries

Ceiling of 120K on immigration from western hemisphere w/ no country limits

Established eastern hemisphere preferences for close relatives & those who had
occupational skills needed in the US under a 7 category preference system.

Resulted in increase # of asian immig b/c they were able to use family visa.

1983 AG transferred some powers to EOIR, combined it with BIA

1986 Immigration Reform & Control Act (IRCA)crackdown on illegal immigration

Established 1-yr amnesty program for illegal aliens who had already worked & lived in
the US since 01/1982. Those eligible could apply for regularization of status and
eventually full citizenship.

Mandated intensification of Border Patrol activities including the auditing of employer I-

9 forms employer sanctions for those who hired undocumented workers.

1986 Immigration Marriage Fraud Amendments. Puts burden of proving the legitimacy
of marriages b/w USCs/LPRs and foreigners on the couples; presumed illegitimate until
proven otherwise.

2 yr conditional resident status to foreign-borns married to USC if the marriage

occurred w/in 2 yrs before GC app

Foreign born can start applying after 1 yr and 9 mo to remove conditions on the GC

Form I-751 is used & upon approval a 10-yr GC issued

Puts burden of

1990 Immigration Act; increased immigrant categories & introduction of diversity visa
program. INS budget doubled throughout the decade.

Began the battered spouse waiver in which a battered spouse who obtained
conditional perm residency could waive the reqt to remove the condition, & eventually
become LPR.

Created the diversity lottery system to even out the # of immigrants from nations that
were considered underrepresented in the US
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Increased # of new immigrants allowed per yr

Established temporary protected status for those jeopardized by armed conflict or

natural disasters @ home

1996 Antiterrorism & Effective Death Penalty Act; response to OK City bombing;
immigration rider which allowed for mandatory detention.

1996 Illegal Immigration Reform & Immigrant Responsibility Act (IIRIRA); passed in
response to loopholes! Drastic changes to the eligibility factors for suspension of
deportaiton

Amnesty to illegal imm who entered US before 1/1/82.

Renamed deportation & exclusion proceedings removal proceedings & expanded

grounds for deport

Major changes to immigration consequences for criminal cases

Mandatory detention for immigrants convicted of certain crimes

Permanent bar to permanent residence for those who falsely claimed to be US citizens

Increased # of border patrol agents & support personnel

Streamlined process for removing aliens via expedited removal

Restricted judicial review

Asylum must apply w/in 1 yr or SOL; less asylum

Introduced 3/10 yr bar

1996 Personal Responsibility & Work Opportunity Reconciliation Act; (welfare reform);
ends cash and medical assistance for most illegal imm

1997 - 245(i).

Allows uundocumented aliens and aliens who entered illegally to apply for GC in the US
if a family-based petition or labor cert was filed prior to 1/14/98.

2000 - AC21 American Cometitiveness in the 21st Century Act

Allows aliens to begin work w/ new employer @ the time of filing H-1B transfer instead
of waiting for the H-1B to be approved.

Alien could come under 245(i) from a filed labor cert and/or I-140 even though she is
not getting GC from this filing, the same rule does not apply to the alien who is being
substituted into an approved labor cert owned by the employer who filed; allows alien
to use her old priority date for a newly filed labor cert and approved I-140.

2000 Child Citizenship Act. Grants USC to LPR kids <18 y/o living w/ a USC parent in the
US.

2001 Special Registration (from certain countries); National Security Entry/Exit

Registration System; established a national registry for temporary foreign visitors (NI
aliens) arriving from certain countries, or who met a combo of intel-based criteria who
were IDed as presenting an elevated national security concern.

2002 -- Child Status Protection Act (CSPA)

Enacted to provide relief for kids who age out as a result of petition delays, locking in
the age of the kid at an earlier date and preserving the status of a child for many ppl
who would otherwise age out.
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Age of kid locks in on the date that the priority date becomes current less the # of days
the petition is pending, as long as the beneficiary applies for permanent resident status
w/in 1 yr of visa availability date.

2003 INS disbanded -- Congress passed Homeland Security Act due to 9/11

2005 Real ID Act

Created more restrictions on political asylum

Severely curtailed habeas corpus relief for immigrants (@ district level)

Increased immigration enforcement mechanisms

Altered judicial review

Imposed fedl restrictions on issue of state driver license to immigrants & others.

2005 PERM (Program Electronic Review Management).

Employer must pay 100% of the prevailing wage under 4 wage levels.

Cannot use 1 labor cert for >1 person (i.e., if filed labor cert for Mr. A and then Mr. A
quit and hired Ms. B to replace him, must file a new labor cert for Ms. B.)

Employer must file I-140 w/in 6 mo of labor cert approval.

GovernmentAgencies
5CabinetLevelDepts.DHS,DOJ[AG],DOL,HHS,SecretaryofState.

Department of State. Consular affairs

Labor or Health & Human Services. Labor certification, medical exams.

DoJ [AG] Executive Office for Immigration Review . IJs [removal proceedings]; Office
of the Chief Administrative Hearing Office - administrative law judges [employer
sanctions]; BIA -- Board of Immigration Appeals.

Department of Homeland Security

SERVICES CIS (visas, green cards, changing status)

ENFORCEMENT ICE (interior) & CBP (border)

2003NomoreINS;3DHSagenciestookover

USCIS. (Citizenship and Immigration Services) Benefits & services to aliens. LPR,
naturalization, adoption, refugee status, family immigration

ICE. (Immigration and Customs Enforcement) Functions include: investigation,

enforcement, detention of aliens, removal of aliens
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CBP. (Customs and Border Protection) Prevent terrorists & terrorist weapon from
entering the US; includes customs but not enforcement
SourcesofFederalImmigrationPower
Delegated/EnumeratedPowers.ConstitutiondoesntexpresslygrantCongressauthorityto
controlimmigration;takevariouspowersandputthemtogether.
Commerce Clause. Migration = Commerce.
Migration or Importation Clause. Interpreted as prohibiting Congressional attempts to
stop slave trade <1808.
Naturalization Clause. But, what about those who do not intend to become citizens; only
want to come to travel, study, etc.? Physical entry vs. Entry to political community.
War Clause.
ForeignAffairs.NoexplicitmentionintheConstitution,butintendedandalwaysexercised;
inferredfrompowertodeclarewar,maketreaties,etc.Primarilyinvalidatesstatestatutes
thatattempttoregulateimmigrationb/cthefedlgovtwouldbeliable.
Implied/InherentPowers.Congresspowerlimitedonlyw/respecttointernalaffairs;(1)
sovereigntyjdxoverownterritory,(2)internationalmaximofintllawthatanationhas
inherentpowertoregulateentranceofforeignersasitseesfit,(3)independence.
Congressmaymakerulesastoaliensthatwouldbeunacceptableifappliedto
citizens.

This authority is implied by Congresss war powers, foreign relation stuff, etc.

No alien has the RIGHT to enter the US; the power to exclude is the right of a sovereign
country, and authorization to enter, etc. can be revoked at any time.

Chinese Exclusion Case/Ping (1889). Congress may regulate immigration because

Constitution grants power of sovereignty and jurisdiction over its own territory as an
independent nation; further power to preserve independence &regulate security and
has power to void certificate because was granted by Congress and may similarly be
revoked at their will.

Fong Yue TIng (1893). Upheld statute that required deportation unless Chinese
laborers could get a white, credible witness to affirm how long the laborer had been in
the US. Held that Congress can establish requirements for naturalization, including
how to identify a credible witness.

Mezei (1953). Resident alien left the US for 19 mo; upon his return, AG got a secret tip
that the alien was a security threat, and summarily excluded him. No country would
accept him, so guy was stranded on Ellis Island, in detention. Held that this didnt
violate Constitution or any thing else Even though he was on Ellis Island he wasnt
in the US so the Constitution didnt apply. All administrative.

14th amendment not ltd to protection of citizens; noncitizens & citizens do get similar, but
not = constitutional treatment.

Yick Wo v. Hopkins (1886). Struck down San Francisco ordinance regulating laundries;
actual law was race/nationality-neutral but it was only enforced against Chinese
businesses.

236(a) says an alien may be arrested and detained pending a decision on whether the
alien is to be removed from the U.S.

Detention DURING deportation proceedings = constitutionally ok; detention hearings

would be pointless if those accused could not be held in custody pending inquiry into
their fitness to remain and stuff.
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A person seeking admission does not have the right to be free on bond; usually, will
face detention pending a deermination of admissibility, while a person who has
already been admitted must be considered for bond unless s/he meets the certain
really bad and terrible criteria (terrorism, criminal, etc.) for mandatory detention.

Demore v. Kim (2003). That the INA provides for civil detention with no bail does
not violate LPRs liberty interest; detention during removal proceedings is a
constitutionally permissible part of that process.

FOLLOWING a removal order, detention of the immigrant cannot exceed 6 mo unless

removal is in the foreseeable future or if there are other special circumstances
indicating a specific need for continued confinement. so policies still need to be
REASONABLE/serve a legit purpose--even if not a super compelling one which would be
reqd for stuff re: USC.

In proceedings prior to a detention ruling, detention serves the purpose of

preventing aliens from fleeing prior to or during such proceedings ; no need for a
specific showing that the particular alien is a flight risk-- since person is an alien, not
USC.

When it is clear removal is not gonna happen, detention no longer serves that
purported purpose.

Zadvydas (2001). Guy born in displaced persons camp deemed deportable; said
hes willing to leave but had no country to return to. Held that indefinite detention
of immigrants who have been ordered deported but have no where to go was
subject to Constitutional limits, under the plenary power doctrine.

Clark (2005). Detention statute could not be interpreted differently in cases

involving applicants for admission.
AcquiringCitizenship

N-400 = INS form used to apply for naturalization

Criteria for citizenship: (1) statutory eligibility; (2) discretion

FYI-- citizenship can be revoked if you voluntarily relinquish USC for tax purposes you
can NEVER become a USC again and you can NEVER receive a tourist visa to visit friends,
family
310Bynaturalization;316Sixbasicconcepts

Note: Marriage to USC automatic citizenship/GC/conditional GC If applicant entered

US illegally (eg walked over the border) & not covered under 245(i) [entered b4 12/00
w/ visa petition & thus grandfathered in]would not be able to get GC w/o leaving US
first.
Residence and physical presences, 316(a) -- LPR must have

Resided continuously for 5 yrs (applicant), 3 years (spouse).

Absences

< 6 mo; OK

B/w 6 mo & 1 yr; presumptively breaks continuity of residence

1 yr; breaks continuity as a matter of law

Was physically present for half the statutory period (3 or 5 yrs).

Resided w/in jdx where filing petition for 3 months prior to filing it AND applicant
must reside continuously w/in US from date of petition up to time of admission to
citizenship.
Age

18 y/o, or
5

Derivative citizenship -- when one parent is naturalized, but child must have been
admitted as permanent residence and reside w/ parent in US; no 5 yr reqt.

Automatic citizenship for adopted children residing in US w/ citizen parents.

Literacy; education; English language proficiency 312(a)(1,2) -- 2 exemptions: those
>50 y/o and living in US >20 yrs // >55 y/o and living in US 15 yrs.
Good Moral Character; 316(a)(e), 101(f)

Statute gives examples of what is NOT GMC: habitual drunkard, convictions

W/in 5 yrs preceding date of app

But aggravated felony convictions @ ANY TIME no good.

Attachment to constitutional principles, 316(a), 313(a)(4); aimed at Communists, other
totalitarian principles; army deserters.
Oath of allegiance.
ByBirth.
Jus Sanguinis [born to USC]; 301(c,d,e,g,h), 308(2,4), 309.

How many USC parents?

2 USC @ birth.

1 Are mom & dad married?

Yes USC @ birth; IF USC parent physically present in US 5 yrs before birth,
2 yrs after 14 y/o. 301(g).

No Which parent = USC?

Mom USC @ birth if mom physically present in US for continuous period

of 1 yr. 309(c).

Dad Legitimated?

Yes USC @ birth.

No depends on the state.

Jus Soli [born in USA]; 301-308.

14th Amendment.

General rule of universal citizenship by birth: People born in US or its territorial

possessions (except American Samoa and Swains Island) = USC @ birth-- including
tourists & undocumented migrants.

Three exceptions:

Foreign sovereigns and accredited diplomatic officials (ambassadors).

Foreign public vessels, meaning warships--not commercial vessels, in US waters.

Birth to alien enemies in hostile occupation of US territory.

FYI! Issues during naturalization can result in serious consequences! E.g., if criminal
conviction shows up, could be put into removal proceedings!! Get an FBI fingerprint
check before applying.
Dual citizenship -- Official US position is that it doesnt matter if you have dual
citizenship; other countries might though.
Denaturalization can happen. E.g., US finds out you lied, at any point, re: immigration
status; CIS learns marriage was a fraud; Nazi guards.
Derivativecitizenship
Child Citizenship of 2000 allows people to acquire citizenship derivatively through
parents naturalization.

Must be: <18 y/o, LPR, live in US, in legal & physical custody of USC parent.
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Neednt prove parents were legally separated or divorced or that child was born
into custody of naturalized parent when that parent naturalized.
WhybecomeUSC?

While an LPR is not reqd to obtain a visa each time s/he attempts to return from
abroad, LPR is still subject to all of the grounds of inadmissibility and deportability, &
could be placed in removal proceedings if any grounds apply.

No SOL on grounds of inadmissibility & deportability; no constitutional prohibition from

ex post fact laws-- so vulnerable to ever-changing immigration laws. especially scary
in post-9/11, bad economy, generally immigrant hostile era.

Although LPRs receive due process rights and a couple of other Constitutional
protections, still not entitled to FULL constitutional protection.
UndocumentedAliens
IRCAEmployerSanctions;274A

Knowingly -- CORE of IRCA. Actual OR CONSTRUCTIVE knowledge.

Prohibits hiring of unauthorized aliens.

Requires that employers use I-9 form; Regs say employers are required to examine an
employees documentation & complete I-9 w/in 3 business days of hire.

Employers dont have to fill out I-9 for: consultants or independent contractors

Must file I-9 for: employees, principals, owners

If employer pays w/ 1099, do not need to fill out I-9.

Employer must retain employees I-9s throughout period of employment & 3 yrs after.

I-9 Inspection Process

(1) DHS issues 72 hr NOI

(2) Inspection

(3) NOI to fine issue, w/ amt & reason.

Employers only need to show good faith effort to comply though.

Greencardscenarios
Entered and stayed in US legally Can get green card -- 245(k)
Entered and stayed in US illegally Cant get green card -- 245(k)
Stayed in US illegally, entered US
prior to 12/20/00 w/o
misrepresentation
Can get GC as long as an
immigrant visa petition or labor
cert was filed prior to 4/30/01 --
245(i)
Entered US at any time after
12/20/00, illegal entry, and illegal
stay
Can get GC if immigrant visa
petition or laor cert filed prior to
1/14/98 -- old 245(i)
Entered US w/ phony passport or
visa
Can get GC if spouse/parent has
GC or is a USC and helps file for
a I-601 waiver. Children born in
US (USC) cannot help w/ a 601
waiver, also need 245(i)
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Entered US w/ I-94, legal entry,
overstay.
Can get GC if spouse/parent is a
USC, as immediate relative. No
601 reqd unless fraud or material
misrepresntation found in
obtaining visa or entry.

A came to US w/ tourist visa on 8/21/06; granted a multiple visa which allowed entries b/w
6/20/05 & 6/20/10.

@ airport, granted I-94 valid until 2/21/07-- 6 mo.

Had RT ticket; set to leave 1/4/07-- got sick so she changed it to 1/31/07.

BF asked A to stay, so she remained in the US until 3/2/07 never filed for an extension w/
immigration office.

Result?

No 3 yr bar from entering b/c not out of status for 180 days.

But she cant use same visa. If she returns to a US airport, her multiple visa will be
cancelled by CBP b/c she overstayed her last I-9-- wont give her another I-94, and will
send A home.

Must apply for new visa. A must go to embassy/consulate @ home to apply for new visa.
Wont need a waiver for the overstay --- but, shell have trouble proving nonimm intent.

A left US on 9/5/07, but filed for an extension of tourist visa on 1/15/07 w/ USCIS. Left US w/o
an answer from USCIS. Returned to US. What result?

Could be denied entry unless she can prove that she had timely filed for an extension prior
to I-94 expiration.

Should show a copy of the Receipt Notice to prove timely filing of extension request-- &
SHOULD be permitted to enter on the same visa.

But if denied, after her exit, she does not have unlawful presence but the visa can be
determined as void since she remained past the initial I-94 expiration.

Note: if she stayed in US and visa extension denied, 180 day unlawful presence would
begin on date of denial.

Same facts but A left on 3/3/08, and never filed an extension

Barred for 10 years.

Same entry, left on 3/3/08, but filed an extension on 1/15/07 and was aproved tl 8/21/09.

3 year bar. (7 mo unlawful presence)

A never left, married USC bf on 3/3/08.

A would be able to get GC (assuming everything else ok). Husband must file I-130; A must
concurrently file I-485; to apply to remove 2 yr conditional status, must jointly file I-751
app

During interview, (in addition to proving bona fide marriage) A would have to prove that
she had no preconceived intent to come to the US to stay and get a GC-- original intent
was really to come temporarily for pleasure.

A comes legally, overstays, NTA issued. Pled voluntary departure but never left. Did not file
an appeal (most cts require u to waive the ct appeals process before entertaining voluntary
departure request). In 2008, married USC bf.

10 yr voluntary departure bar

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Cant adjust status to obtain GC in US.

If husband can prove extreme hardship, he can file for a 601 hardship waiver.

Recd GC 3/02; employer immediately transfers him back to Euope. Comes back to US 2x/yr
for 2 yrs up to 6/04. Couldnt return until 7/05. When and how to apply for USC?

Eligible to apply for N-400 in 7/98 since he left US and didnt return for <1 yr--provided he
stayed in US 30 mi b/w 7/04 and 7/08. Must also have filed all US tax returns and kept a
US residency.
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(2) IMMIGRANT VISAS

5 ways to get a GC: Fmaily based, employment based, religious based, investment based, asylum
based. Exceptions:

Children >21 y/o can get GC & USC if they were <21 y/o at time of filing and beginning of parents
GC process.

As of 10/09 if USC/LPR spouse died prior to 2d marriage anniversary, can still get GC.

Dont need an I-864 (Aff of Support) b/c spouse already died.

If widdower after <2 yrs of marriage but USC spouse filed I-30, dont have to file I-360 b/c the I-
130 automatically converts to I-360 upon spouses death.

May file I-360 if USC spouse

Died <2 yrs of marriage

@ time of death, spouse = usc, and not legally separated or divorced

& havent remarried.

The Fundamentals: Quotas and Preferences

Immigrants Exempt From the General Quotas

Immediate relatives INA 201(b)(2)(A)(i). Spouses and children [unmarried & 21 y/o]
of USC and parents of USC (if USC 21 y/o).

LPRs returning from temporary visits abroad.

Former USCs

Children born to LPRs temporarily abroad

Recipients of some permanent forms of discretionary relief from removal.

Refugees (but subject to separate numerical restrictions)

Parolees I-94

No green cards; neither immigrant nor non-immigrant

Immigrants Subject to the General Quotas

Family-sponsored immigrants (non-immediate relatives)

Employment-based immigrants

Diversity immigrants

[Overseas refugees--but considered separate.]

Quota Ceilings

Worldwide

Per country INA 202(b)

Employment-based immigrants exempt from per-country limits during any calendar

quarter in which the total worldwide ceiling for employment-based immigrants
exceeds the worldwide number of qualified applicants.

Selecting Individual Applicants: First come, first serve

When there are more applicants than available visas, first come first serve.

Priority date: Clock starts when applicant files the first relevant document, depending
on the category.

Quotas are based on applicants place of BIRTH---not nationality.

EG born in Russia in 1960, emigrated to Canada in 1962--have remained there ever

since. For quota purposes-- considered RUSSIAN.
FamilyImmigration
FamilyPreferenceCategories

1st preference: Unmarried sons & daughters of USCs

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2nd preference: Spouses & unmarried sons & daughters of LPRs

2A: Spouses and children of LPRs [children = <21 y/o

2B: 21 y/o sons and daughters of LPRs

3rd preference: Married sons & daughters of USCs

4th preference: Brothers & sisters of 21 y/o USC

TheBasics

Policy: Family reunification

201(b)(2) exempts immediate relatives & children born to LPRs abroad from
quota

203(d) gives preference to spouses and children accompanying or following to

join must classes of immigrants.

Waiting time for people not subject to quota? 2 factors:

(1) Supply & demand for visas; thus, varies by category.

(2) Country to which visa will be charged; thus, varies by home country.

Visa Office Bulletin: Indicates expected waiting time, based on category & priority
date.

V-Visas

Aging out --> Child Status Protection Act (CSPA): Preserves individual to benefit from
child status to the extent that the aging out was due to backlogs in adjudication
of visa petitions.

Section 2: For immediate relative purposes the beneficiarys age is frozen as of

the date the visa petition was filed; beneficiary treated as the child of a USC as
long as s/he was <21 y/o at the time parent filed the petition.

Section 3: For children of LPRs; consulate goes by the beneficiarys age at the
itme the visa becomes available (priority date for particular category becomes
current and the visa petition approved), but reduced by the amount of time the
visa petition was pending. Beneficiary must file the necessary forms w/ the
consulate w/in 1 year of the visa becoming available

CSPA Age:
Spouses
Same-Sex Marriages Family Visa

B/c federal govt. doesnt recognize gay marriages, doesnt count for visa
purposes, even if marriage was legally performed and recognized by a US state.

Defense of Marriage Act (DOMA) enacted in 1996. Two provisions: (1) states
need not give effect to acts, records, or judicial proceedings of other states
allowing same-sex marriages; (2) marriage means only a legal union between
one man and one woman as husband and wife, and the word spouse refers only
to a person of the opposite sex who is a husband or a wife.
Fraudulent Marriages

Immigration Marriage Fraud Amendments of 1986 (IMFA)

If not married for 2 years @ time of LPR application, granted conditional

permanent residence; after 1 year, govt. determines if marriage was legit

W/in 90 days of the 2nd anniversary of the grant of conditional residence, the
couple must file a petition to remove the conditional status, and submit
evidence that the marriage continues to be valid. <--an affirmative duty

If the marriage has been terminated, the noncitizen may request a waiver if
the marriage was entered into in good faith, and if

S/he will experience extreme hardship if required to leave the US.

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S/he is a victim of battery or extreme cruelty by the USC or LPR spouse.

Note: also applies to anyone else who acquires LPR status by being the son or
daughter of an individual through a qualifying marriage.

INA 204(a)(2)-- places restrictions on the person who obtains LPR status by
marrying a USC or another LPR and then, after termination of that marriage,
marries another noncitizen and seeks family-sponsored second preference status
for the latter.

Marriages entered while in removal proceedings are presumed to be fraudulent.

Petition will be denied unless parties can establish via clear and convincing
evidence that the marriage was entered into good faith.

If cant establish good faith basis to the marriage, noncitizen required to

remain outside the US for 2 years before s/he may return with an immigrant
visa-- note, the whole fraudulent marriage thing could be a ground for
inadmissibility upon return.

IMFA 5
INA101(b)(1)Child=unmarried,<21y/o,whois

(A) born in wedlock

(B) a stepchild, whether or not born out of wedlock, provided child was <18 y/o @ time
marriage creating step-status occurred

Relationships post-divorce:

Stepparent/child relationship can continue post divorce IF relationship continues.

Same thing applies to step-sibling relationships. Matter of Mourillion (1981).

(C) legitimated under law of childs residence/domicile or fathers residence/domicile

(doesnt have to be US), if legitimation occurs when child <18 y/o & child is in legal
custody of legitimating parent(s) @ time of legitimation.

(E) Adopted child provision: Child has to have been adopted while <16 y/o & has to
have been in the legal custody of, and have resided with, the adopting parent for 2
years. The biological parents may not thereafter receive any immigration benefits by
virtue of parentage. Adoptive parents may be anyone eligible to petition generally for
the immigration of their children-- USC s or LPRs.

(F) Orphan provision: Certain USCs [not LPRs] may petition for the admission of kids
<16 y/o who have experienced the death, disappearance, or abandonment of both
parents or sometimes one parent.

(G) Inter-country Adoption Act of 2000: Assigns primary regulatory responsibility for
foreign adoptions to the State Dept. and expands the range of children whom USC
parents may bring into the US. [interstate treaty]

Note: BIA scrutinizes foreign adoptions as it does marriages-- to make sure the
adoption didnt occur in bad faith, just for immigration purposes.
EmploymentBasedImmigration
EB1FirstPreference:PRIORITYWORKERS

Required:

I-140

Labor certification NOT required.

Quota: 28.6% of yearly worldwide limit of employment-based immigrant visas.

Persons with EXTRAORDINARY ABILITY. EB-1A.

Who may file: Persons of extraordinary ability in the sciences, arts, education,
business, or athletics. Extraordinary ability is "a level of expertise indicating that
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the individual is one of that small percentage who have risen to the very top of the
field of endeavor."

Required:

I-140; may self-file

Prospective employer/specific job offer NOT required as long as coming to US to

continue work in chosen field & must substantially benefit prospectively in the
US.

Extensive documentation showing sustained national or international acclaim and

recognition in field of expertise.
OUTSTANDING PROFESSORS & RESEARCHERS. EB-1B.

Who may file: Outstanding professors and researchers with 3 years experience in
teaching or research who are recognized internationally in an academic discipline.

Required:

I-140 by employer

Offer of ongoing employment for a tenure or tenure-track position, or for a

comparable position at a university, institute, or with a private employer to
conduct research.
EXECUTIVES/MANAGERS & SPECIALIZED KNOWLEDGE. EB-1C.

Who may file: Multinational executives or managers who have been employed
abroad in managerial or executive capacity for 1 year in the last 3 years prior to
entry with the overseas affiliate, parent, subsidiary, or branch of the U.S. employer.
Generally, has to be more than just managing people-- managing the $$, people,
and other stuff.

Required:

I-140 by employer.

Specific job offer to work in managerial or executive capacity.

EB2SecondPreference:MEMBERSOFPROFESSIONSHOLDINGADVANCEDDEGREES&ALIENSOF
EXCEPTIONALABILITY

Who may file:

Professionals holding an advanced degree (beyond a baccalaureate degree), or a

baccalaureate degree and at least five years progressive experience in the
profession.

Persons with exceptional ability in the sciences, arts, or business. Exceptional ability
means having a degree of expertise significantly above that ordinarily encountered
in the sciences, arts, or business.

Required:

Labor certification and job offer; OR

US employer files I-140

National interest waiver.

File I-140 for self and evidence of national interest

Quota: 28.6% of yearly worldwide limit of employment-based immigrant visas PLUS any
unused visas from the EB-1 category.

NOTE: Advisable for imm w/ foreign degree to get an equivalency letter, pass a test, or
obtain a univ acceptance letter for the next level of education-- to make sure the imm
ppl know what your degree means.
EB3ThirdPreference:SKILLEDWORKERS,PROFESSIONALS,&OTHERWORKERS

Who may file:

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Skilled workers are persons whose jobs require a minimum of 2 years training or
work experience that are not temporary or seasonal.

Professionals are members of the professions whose jobs require at least a

baccalaureate degree from a U.S. university or college or its foreign equivalent
degree; usually, BA+5 years experience or a masters degree

Unskilled workers (Other workers) are persons capable of filling positions that
require less than two years training or experience that are not temporary or
seasonal.

Required:

I-140, filed by prospective employer

Labor certification

Permanent, full time job offer

Quota: 28.6% of the yearly worldwide limit of employment-based immigrant visas PLUS
any unused from EB-1 and EB-2.
EB4FourthPreference:SPECIALIMMIGRANTS

Who may file: 19 subgroups; examples:

Ministers of religion; certain religious workers

Employees or former employees of US Govt. Abroad

Retired international organization employees

Alien minors who are wards of courts in the US

VAWA-- spousal abuse

Required:

I-360 -->except for Certain Employees or Former Employees of the US Govt. Abroad

They must file DS-1884, Petition to Classify Special Immigrant Under INA 203(b)
(4) As An Employee or Former Employee of the US Govt. Abroad

I-360: Petition for Amerasian, Widow(er), or Special Immigrant; used to classify an

alien as: 1. An Amerasian; 2. A Widow or Widower; 3. A Battered or Abused
Spouse or Child of a U.S. Citizen or Lawful Permanent Resident; or 4. A special
immigrant.

Labor certification NOT required

Quota: 7.1% of yearly worldwide limit of employment-based immigrant visas.

Purpose: INA 203(b)(4) generally not aimed at redressing labor shortages, but serve
a variety of miscellaneous functions, mostly concerned with the special circumstances
of the people they encompass
EB5FifthPreference:EMPLOYMENTCREATION

Who may file: Immigrant Investor

New entity that creates 10 jobs. Must invest $1 million or $500K (if the investment
is made in a targeted employment/underserved area) in a new commercial
enterprise that employs at least 10 full-time US workers (USC, LPR, asylee, or
refugee).

Nonactive role; Regional Center. Regional Center Pilot Program: Less restrictive;
invest $500K in a designated Regional center

Regional center: Economic unit, public or private, engaged in the promotion of

economic growth, improved regional productivity, job creation and increased
domestic capital investment.

The individual receiving the visa is not required to actively manage the business
invested in.
14

Visa offers conditional residency for 2 years. To become an LPR, must file I-829 to have
condition removed, within the 90 days before the 2nd anniversary of admission as a
conditional permanent resident. When condition removed, alien becomes an LPR.

Quota: 7.1% of yearly worldwide limit of employment-based immigrant visas.

Note:LaborCertification

US employer who is sponsoring an immigrant must obtain verification from the DOL
that there are insufficient available, qualified, and willing US workers to fill the position,
and that the employment will not have had an adverse effect on the wages and
working conditions of similarly situated US workers

Serves the limited purpose of establishing that there are insufficient available,
qualified, and willing US workers to fill the position and that the noncitizens
employment will not have an adverse effect on the wages and working conditions of
similarly situated US workers.

Three methods:

1) Schedule A occupations have been pre-determined to not have a adverse effect

on the wages and working conditions of US workers, and that workers are generally
unavailable for these positions.

Schedule A Group I: nurses & physical therapists; employer must show that the
applicant meets the criteria of the position including licensure or certification.

Schedule A Group II: persons of exceptional ability in the sciences or arts.

2) Waiver of job offer; govt. has discretion to waive job offer requirements

National Interest Waiver: A request that the job offer and labor certification
requirements be waived. Must show:

(1) That the area of employment is one of "substantial intrinsic merit;"

(2) That that person's employment will benefit the nation, not just the local
area; &

(3) That the particular applicant "will serve the national interest to a
substantially greater degree than would an available US worker having the
same minimum qualifications."

Physicians working in shortage areas or veterans facilities generally by default

get a waiver.

3) Labor certification

First, employer must request a prevailing wage determination.

Second, employer must demonstrate that it recruited within the US before filing
the application, but failed. Must demonstrate advertised position in several
places where a potential qualified American employee could reasonably find it.

Advertisements must contain: job location, employers name, specific job

description.

Note: Salary for labor certification must be higher than the prevailing wage.

Job description may not be unduly restrictive. Examples of requirements that

are presumptively unduly restrictive:

(1) different from those normally required for job in the US;

(2) exceed requirements listed in the Dictionary of Occupational Titles;

(3) include a foreign language;

(4) involve a combination of duties or

(5) require the worker to live on employers premises presumptively

unduly restrictive employer has to prove business necessity.

If job requirement is presumptively unduly restrictive, then the employer must

demonstrate that such requirements arise from a business necessity.
15
H1B PERMFiling LaborCert
Gives someone visa status Does not give visa status A future/prospective offer for
employment
ER must pay wages as stated in
Labor Condition Applicaiton filing.
Sole purpose is to allow ER who
petitioned for EE to apply for GC
for EE under EB-2 or EB-3.
ER does not have to pay the
stated salary in the PERM filing
until EE has a legal work permit
or until after GC approved.
If wages are changed either b/c of
increase in responsibilities or
economic issues, a new LCA
msust be filed w/ DOL, and must
either amend or file new H-1B.
ER is the only one who can sign
the 9089.
ER must pay 100% of the
prevailing wage under 4 levels.
Named labor cerifications file
dw/ DOL & req prevailing wage
testing.
Named labor cerifications file
dw/ DOL & req prevailing wage
testing.
Named labor cerifications file
dw/ DOL & req prevailing wage
testing.

16
(3) NON-IMMIGRANT VISAS

FORMS FOR NIV APPLICANTS:

I-20 Issued by school to accept foreign student into program

I-94 Arrival/departure record-->how long u can stay in US

I-102 Form to replace lost I-94

DS-156 NIV application when applying overseas w/ US consulate or emabssy.

DS-157 Supplemental NIV app when applying overseas

EnteringtheUSasaNonimmigrant;generally
Hurdles
Hurdle 1. Overcome presumption of immigrant intent.

INA operates under a presumption that all persons coming to the US, even on
nonimmigrant visas, are intending immigrants and wish to remain. This
presumption places a burden on the applicant to convince the consular officer that
s/he will depart the U.S. after completing the trip.

Doctrine of dual intent. One can simultaneously have the intent to remain
temporarily in the US and a future intent to be an LPR.

Where recognized. Statutorily recognized [& permitted] for H-1 (temporary

workers), L (intracompany transferees) and V (family reunification) visa
holders. DHS recognizes dual intent for E visas. Where doctrine recognized,
allows applicant to pursue LPR at the same time s/he is seeking a
nonimmigrant visa, extension, or change of status.

Where not recognized. Outside of these categories, may cause problems;

evidence of immigrant visa application likely weighs against applicant.

But note: Law isn't that you can NEVER apply for a green card-- it's just you
can't apply on THIS trip.

How to dispel consular officers suspicion of LPR intent?

Profs tip: Easiest way is to come w/ a round trip plane ticket!

Could show that you have some type of marital or familial tie to your home
country, or some type of career tie.

What if you have ties to the U.S.? A job waiting for you in the U.S. B-2s
cant work, so that would disqualify you substantively. Have to compare the
links.

Past immigration history if youve applied for an LPR visa or other visa thats
similarly consistent with an intent to remain permanently and been denied,
then it could be tough for you to show that you only wish to come temporarily.

Argue that you have alternative plans in mind, which is OK you intend to
remain only temporarily, but you hope to acquire LPR status some day if
the law permits it. Both prongs of your dual intent have to be legal for it to
be OK.

Situations where intent might pose a problem:

(1) Applying for one of the relevant nonimmigrant visas.

(2) Already received the visa but applying for admission at a designated port
of entry.

(3) Once admitted, alien might apply for extension of stay or for a change to
another nonimmigrant status that is similarly inconsistent with an intent to
remain permanently.
17

If after admission INS discovers that the alien originally entered with the intent to
remain permanently, the alien might be deportable as one who was inadmissible
at entry. INA 237(a)(1)(A).
Hurdle 2. Demonstrate qualification for a category in INA 101(a)(15)(A-V).

There are no catch-all nonimmigrant visas; each applicant must establish that s/he
qualifies under one of the designated nonimmigrant categories.
Hurdle 3. Avoid various grounds of inadmissibility.

Each category of nonimmigrant visa may be obtained only by individuals who meet
that categorys specific criteria, and the individual receiving the visa must comply
with all of its requirements for the entire time s/he is in the US. Waivers are
available for all grounds of inadmissibility except for grounds involving security and
terrorism stuff. INA 212(d)(3)
Process.
Scrutiny by US consulate abroad; in applicants home country.

Applicant files petition; if approved, applicant must interview with the consulate
officer; if approved, get visa, can travel to US.
Inspection at port of entry/border.

Even if applicant receives a visa, must undergo inspection @ border. to determine

whether person is an alien under INA; clearly and beyond a doubt admissible
under the INA; or bringing in contraband or complying w/ customs and other
regulations.
Length of stay determined by CDP.

Border inspector decides how long person will be allowed to remain in the US.
MaintainingLegalStatus

Deportable if alien failed to maintain his or her nonimmigrant status. INA 237(a)(1)(C)
(i)
Change of status. A request to move from one nonimmigrant classification to another.

INA 248 To qualify, person must be:

properly w/in status or eligible for reinstatement of status

[but may be eligible even if out of status, if due to extraordinary

circumstances beyond own control & no other status violations.]

w/in the classes of nonimmigrants that are not ineligible for change of status

nonimmigrant visa categories that dont permit change of status: Visa Waiver
Program; C-visas (transit); D-visas (crewman); K-visas (fianc(e)s); TWOVs
(traveling w/o visa); S-visas (informants).

some nonimmigrant visa categories have unique conditions for change of

status; e.g.:

J-visa (exchange visitor)-subject to a 2-year foreign residency requirement

& cannot change nonimmigrant status except to an A-visa (diplomatic) or
G-visa (international organization)

M-visa (vocational student)- may not change to an F-visa (academic

students) or to an H-visa (temporary worker).

admissible to the US

considered as not having had the preconceived intent to seek the change of
status before original admission.
18
Adjustment of status. A transition from nonimmigrant status to LPR status.
Extension of status. Keeps person in same status. Must file while still w/in the time
period under authorized stay

If fallen out of status,USCIS has discretion to allow extension; might allow:

if due to extraordinary circumstances beyond individuals control & no other

violations of status.

if violation was minor, excusable, or otherwise would result in extreme hardship.

No extension of status if

terms of status violated (e.g. unauthorized employment).

in removal proceedings
VisaWaiverProgram

Nationals of specified countries coming to the US as tourists or visitors for business

dont need to apply for a visa, but still must undergo inspection at the border.

May not remain in US longer than 90 days; period cant be extended unless its an
emergency, and cannot change nonimmigrant status or adjust status to LPR unless
seeking permanent residency based on marriage to a US citizen or as the child or
parent of a citizen.
NonimmigrantVisaCategories
Visitor[Business,Tourist]Visa.B.

Reqd intent. To overcome immigrant presumption, must demonstrate:

Trips purpose is to enter the U.S. for business, pleasure, or medical treatment;

That they plan to remain for a specific, limited period;

Evidence of funds to cover expenses in the United States;

Evidence of compelling social and economic ties abroad; and

That they have a residence outside the U.S. as well as other binding ties that will
insure their return abroad at the end of the visit.

Period of stay. Except for those who enter under the 217 visa waiver program, may
be admitted initially for up to one year and extended in six-month increments.
Business Visitors. B-1.

NOTE: NOT AN EMPLOYMENT/WORKER VISA.

ONE EXCEPTION: HOUSEKEEPER B-1 VISA. 6 mo.

Examples of business activities permitted under B-1:

(1) Consult with business associates

the accrual of profits is mostly overseas

the activity furthers international commerce

can be of legit commercial or professional nature,

nonimmigrant, though, cannot be for hire.

Nonimmigrant is directed by a foreign employer, payment is aboad, & esrvices

are not part of the US labor market and not ones for which a US worker would
have been hired.

(2) Attend a scientific, educational, professional or business convention, or a

conference on specific dates

(3) Settle an estate

(4) Negotiate a contract

(5) Participate in short-term training

19

E.g.: May come to negotiate transactions or participate in a business conference;

missionaries may engage in their vocation but may not sell items, solicit donations,
or receive salary or other compensation.

Controversy:

Companies like Google bring people in from India; can't get an H-1B so they use
this; whistle blowers tell and say not a working visa

Allows people to come for piano competitions; golf competitions-- for $$ prizes

If you sell prizes for a performance you can get this.

Tourism, Vacation, Pleasure Visitors. B-2.

Persons coming to US for pleasure, health reasons, to participate in amateur

athletics, & to accompany US Armed Forces personnel as a dependent.
TreatyTraders/Investors.E1/E2.

Who may apply? Trader must be engaged in substantial trade b/w US & home
country; investor must be developing or directing an enterprise in which s/he has
invested a substantial amount of capital. Applicant arrives under a reciprocal treaty
of commerce and navigation b/w US & country of nationality.

Trade. Broad dfn; can include banking, tourism, transportation, consulting

services, and insurance.

Substantial. Vague dfn; for traders, 50% of the activity; for investors, an
amount sufficient to establish a viable and not a marginal enterprise.

Period of stay. Admitted for an initial period of 2 years and may receive extensions
in 2-year increments indefinitely as long as business is maintained.

TemporaryWorkers.H.
Temporary Workers in Specialty Occupations. H-1B.

Who may file? Those who will engage in specialty occupations or are fashion
models of distinguished merit & ability, or persons providing service related to the
DoD.

Specialty occupation. A position that requires the theoretical and practical

application of a body of highly specialized knowledge and a bachelors or higher
degree (or its equivalent) for entry into the field.

Requirements.

Proof of specialty occupation, + any state licensure, if reqd to practice, & have
BA or BA equivalent [experience] in the specialty.

Application process:

#1. Employer must file a labor condition application to Dept. of L. stating that:

its paying prevailing wage or actual wage level, whichever is greater

wont adversely affect working conditions of similarly employed workers

no strike or lockout

notified existing employees of filing--providing them an oppty to object

#2. Employer submits I-129, Petition for Nonimmigrant Worker.

#3. Once I-129 approved, apply to embassy/consulate abroad.

Period of stay. May be admitted for up to 3 years; generally not extended past 6
years. If employer terminates applicant, employer responsible for return ticket.

But note: "H-1B" is a common starting point for the LPR process.

Can only come to the US 15 days before the start date of the thing youre going
to.

Quota. High in good times [high in 1990s], low in bad times [lowered in 2004]
20
Temporary Workers of All Types, Including Seasonal. H-2.

Agricultural, horses

Temporary-ness based on the petitioning employers actual need, not the nature of
the work.

Employer must attain a temporary labor cetification.

Training Not Available At Home. H-3.

Coming to US for 2 yrs to receive training not available in home country, except for
graduate med training and training programs designed to provide employment.
Spouse/child of H visa holder. H-4.

CANNOT WORK!!!!!!!
PersonsWithExtraordinaryAbility.O1.

Who may file?

People with extraordinary ability in the sciences, arts, education, business, or

athletics, w/ sustained inter/national acclaim; or

Note: Dentist who specializes in crafting extravagant fake teeth could be

admitted-- demonstrated artistry in crafting teeth.

People who have an extensively documented record of extraordinary achievement

in movies or TV.

Purpose of entry? To work in US in their area of expertise.

Requirements:

US employer or agent must

File petition on behalf of the person.

Obtain an advisory opinion attesting to the individuals extraordinary ability from

a labor organization or peer group in nonimmigrants field of expertise, if it exists.

Effect: Visa valid for duration of event for which individual is admitted, 3 years, w/
unlimited 1-yr extensions.

O-3 visa for spouse/child...may not work BUT can study full or part time.
InternationallyRecognizedAthletes&Artists.P.

Who may file?

(1) Athletes coming to US to perform or compete at an internationally recognized

(not necessarily extraordinary) level & members of internationally recognized
entertainment groups.

(2) Artists & entertainers coming to US under reciprocal exchange program.

(3) Individual artists or entertainers and groups coming to the US to perform, teach,
or coach in a culturally unique program.

Requirements:

US employer or agent (or organization sponsoring the program for (2),(3)) must

File petition on behalf of the person.

Consultation w/ peer group/labor org for (1) & (3).

Effect:

Athletes --> May enter for 5 yrs & can be extended for 5 yrs.

Otherwise --> for duration of the competition/event/performance for which applicant

is admitted, 1 yr; can extend in 1 yr increments to complete activity for which they
were admitted.
IntraCompanyTransferees.L.

L-1A Intracomp Transfer Exec or mngr

21

L-1B Intracomp Transfer Spec Knwledge EE

Who may file?

Professionals--particularly multinational corp execs & managers, & ppl w/ specialized

knowledge.

Managers must have a lot of authority & receive only general

supervision/direction from higher ups.

Note: May also be used for employees of charitable, religious, & other non-profit
organizations.

Must have been employed abroad by the parent, branch, or subsidiary corp of the
company continuously for 1 year out of the past 3 years.

Intent issue:

Does not preclude person from seeking LPR while pursuing or being present in the
US on an L visa.

Period of stay. L-1A: Max 7 yrs; L-1B: Max 5 yrs - But, for both, if applicant coming to
US to set up a NEW office, will only be granted an initial stay of 1-3 yrs.

Quota. None.
AcademicStudents.F1.

Who may apply. Ppl coming to engage in academic study in a full time program at an
approved institution. Applicant must show that s/he has sufficient $ to pay for the
education w/o having to work, & that s/he has sufficient preparation to complete the
course of study. Versus M visa which is for vocational school.

Schools F-1 can attend:

Public elementary school? NO.

Public secondary school? IF STUDENT CAN PAY FULL PER-CAPITA COST OF THE
EDUCATION then yes. 9 mo only w/ no renewals.

Foreign-born child adopted by US family? Child has NO status (f-1 or

otherwise) until the 2 yr physical possession reqts are met; @ discretion of
school to dis/allow student to attend classes in the meantime.

Approved private schools/colleges & public colleges? Yes.

Procedure.

#1. Approved institution accepts applicant.

#2. School issues I-20

Requirements:

Must maintain foreign residence.

B/c of natl. security concerns, EBSVERA requires educational institutions to keep

extensive records about foreign students.

IIRAIRA requires the Attorney General, in consultation with the Secretary of State
and the Secretary of Education, to collect individualized information from colleges
and universities on every foreign student they enroll.

Tight restrictions on employment. [Same for F-2 visa, for spouses and children.]

Applicant must show s/he has sufficient $$ to pay for full cost of education w/o
having to work.

NOTE: Violations make student (1) deportable AND (2) inadmissible for 5 years after
violation.

BUT falling out of status on F-1 has no bar consequences b/c the I-94 is marked
D/S (duration of stay).

Duration of stay. Until completion of the program; may be able to remain for practical
training or post-grad work related to study. For public secondary schools, its 12
months.
22

HYPO: Student; hardships in home country so he loses tuition for semester of school.
Rendered out of status.

Student must: file I-539 and related docs & I-20 to show hes been out of status <5
mo.

NOTE: STUDENTS ARE NOT REQUIRED TO ATTEND SUMMER SCHOOL SO SUMMER

MONTHS ARE NOT INCLUDED IN THE 5 MO.
VocationalStudents.M.

People who intend to enter vocational or other non-academic institutions. Must be

coming temporarily to the U.S. and must maintain foreign residence.

May not apply to change status to:

F-1

Any H-status (temp oworker) if the training received as voc student in US provided
the qualifications for that partic temp worker position.

Subject to 3/10 bar; 30 days to leave US @ end of study visa.

StudybasedExchangeVisitor.J1.

Who may apply. Coming to US as a student, researcher, professor, nonacademic

specialist, physician, international visitor, camp counselor, au pair, or summer student
in a travel/work program.

Requirements. Studies must be part of a specific program approved in advance by the

State Dept. & applicant must be sponsored by a US govt. agency, a recognized
internatl agency, or one of various private agencies.

Must be coming temporarily to US; must maintain forein residence.

Duration similar to F.

More advantageous than F-visa. Employment rules more liberal & many of the
exchange visitor programs provide fellowships other other $$. (J-2 visa, for spouses
and children, also have looser reqts than the F-2 re: working.]

Catch: 212(e) requires J-visitor return to home country for at least 2 years before
applying for LPR status, an immigrant visa, or a non-immigrant visa under H or L.
[Hardship waivers available.]

May not change Non Imm status if:

Admitted to US to receive grad medical training (unless a waiver)

An exchange visitor & reqd to meet foreign residence reqt (unless waiver)

If no waiver, may only apply to change to a diplomatic and other govtl officials
(A visa) or representative to international orgs (G vis).

Only 4 grounds for J- waiver

Exceptional hardship to a USC or LPR spouse or kid

Persecution of J holder in home country should s/he return

Home country has no objection to applicants remainder in US

US govt agency recommends waiver.

OPTVisa.Optionalpracticaltraining;12mo;canaplpyfora12mopdaftereachprogressive
degree;fileapp90daysb4gra,nolaterthan60daysofgrad,otherwiseoutofstatus.
CPTVisa.Curriculumpracicaltraining.Mustbeapprovedby1)foreignstudentadviserand
2)uscisofficials.Allowsstudenttointern/cooptofulfillareqtofdegreeprogram.E.g.,
phramacistwoulddothis,butJDstudentwouldntb/cbarexamdoesntreqinternship.
SpouseFianc(e)ofUSCVisas.K.

USC fianc/spouse must file petitions: I-129F. For K-3, must also file I-130.
23
Fianc(e) & minor kid. K-1/K-2.

Who may apply. Fianc(s) of USC (K-1) & that persons minor children (K-2).

Requirements to obtain visa. Applicant must show

legal capacity to marry

met USC w/in 2 years of filing the petition

otherwise admissible for a waiver.

Visa stipulations.

Must marry w/in 90 days of admission; otherwise removable.

Cannot change under 248 to another nonimmigrant status; once married,

become conditional resident, etc.
Spouse & kid. K-3/K-4.
Crimevictimvisas intentistohelpgovtsolveissue.
TVisa.VictimsofHumanTrafficking

Reqts:

(1) victim of trafficking

(2) present in US or @ a port of entry on account of trafficking

(3) comply with any reasonable request from a law enforcement agency for
assistance in the investigation or prosecution of human trafficking

But if <18 y/o @ time of victimization

OR unable to cooperate w/ law enforcement b/c of physical or psych trauma

Dont have to assist in investigation or prosecution to qualify.

(4) must show s/he will suffer extreme hardship involving severe and unusual harm
if removed from US
UVisa.VictimsofCriminalActivity.

victim of qualifying criminal activity.

suffered substantial physical or mental abuse as a result of having been a victim of

criminal activity.

have information about the criminal activity. If under the age of 16 or unable to
provide information due to a disability, a parent, guardian, or next friend may possess
the information about the crime on your behalf

were helpful, are helpful, or are likely to be helpful to law enforcement in the
investigation or prosecution of the crime. If you are under the age of 16 or unable to
provide information due to a disability, a parent, guardian, or next friend may assist law
enforcement on your behalf.

crime occurred in the United States or violated U.S. laws

admissible to the United States. If not admissible, may apply for a waiver
24
(4) EXCLUSION GROUNDS & WAIVERS

The inadmissibility/exclusion grounds apply to all non-citizens (immigrants and non-

immigrants, outside and inside the border) who have not been admitted as defined
by 101(a)(13). The non-citizens in the interior to whom the exclusion grounds apply
are those who snuck in ( 212(a)(6)) and those who seek to change/adjust/naturalize
status ( 248, 245 & 316, respectively). When multiple exclusion grounds apply to the
same behavior, have to find some waiver or counter-argument for each one.

Handy waiver provision in 212(d)(3). Waiver available under 212(d)(3) for non-
immigrant visa applicants who are subject to any of the exclusion grounds in 212(a)
except: (3)(A)(i)(I) (entering to spy or violate export law); (3)(A)(ii) (entering to engage
in unlawful activity); (3)(A)(iii) (entering to do something against the U.S. govt.); (3)(C)
(entering would have potentially adverse foreign policy consequences); and (3)(E)
(participated in Nazi persecutions of genocide). These waivers are granted fairly
liberally, but not automatically.

Note that the terrorist exclusion is waivable Perhaps Congress intended to allow
people who commit terrorist acts that coincide with U.S. foreign-policy interests
(e.g., assassinating someone like Saddam Hussein) to be admitted. Also, Congress
broadened the definition of terrorism so much after 9/11 that perhaps it wanted to
leave itself some wiggle room.
GroundsRelatedtoImmigrationControl
Integrityofdocuments.

(a)(7)(A,B). Non/Immigrants w/o valid passports & visas ;

(a)(5)(A). W/o labor cert, if reqd.

Etc.
Fraud.

(a)(6)(A). Surreptitious entry; present but never admitted or paroled, or arrived some
place other than an officially designated entry port.

(a)(6)(F). Document fraud

Misrepresentation: by fraud or willfully misrepresenting a material fact, seeks to

procure an immigration status Inadmissible for life. 212(a)(6)(C)(i).

Waiver for extreme hardship available under 212(i).

Falsely claimed citizenship Inadmissible. 212(a)(6)(C).

Subsection (II) provides exception for one whose parents are citizens, who
permanently resided in the U.S. prior to attaining age-16, and who reas. believes
that he or she is a citizen.

Waiver for extreme hardship available under 212(i).

Possible argument for falsely claiming to be USC on I-9? Employers dont like the extra
paperwork, etc. So prefer to hire USC; needed job to pay bills, taxes, etc. (not so
compelling tho)
Unlawfulpresence(outofstatus/expiredvisa&/orinUSbutnotadmittedorparoled).

3/10 Rule. (a)(9)(B). Noncitizens who, prior to voluntary departure prior to removal
proceedings have been "unlawfully present" in the US for:

b/w 180 days & 1 yr---> inadmissible for 3 years

1 yr---> inadmissible for 10 years

Note: Bar begins upon date of departure from U.S.

E.g., a person w/ 2 separate 4-month periods of unlawful presence would NOT be

inadmissible under the 180 day provision.

Is present without having been admitted Inadmissible. 212(a)(6)(A)(i).

25

Didnt enter at an authorized port of entry Inadmissible. 212(a)(6)(A)(i).

Subsection (ii) provides exception for battered women and children.

Thingsthatarentunlawfulpresence.

USCIS: the presence does not become unlawful, and thus the 180-day and 1-year
periods do not start to run until the migration judge hears the case and determines that
the violation has occurred.

Period during which asylum application is pending unlawful presence unless

employed w/o authorization

Timely filing before expiration; as long as you timely file application for extension, you
dont toll time of unlawful presence days once initial visa expires (assuming you
havent heard back re: application).

Time b/w ICE filing of notice to appear (beginning of proceedings) & the removal
hearing? The pendency of removal proceedings doesnt affect the lawfullness of ones
presence-- if presence is otherwise unlawful, remains so.
Othervisaviolations

Violated term or condition of student visa under F-status Inadmissible until the alien
has been outside the U.S. for a continuous period of 5 years after the date of the
violation. 212(a)(6)(G).

E.g. Dropped out of school

Is an immigrant and doesnt possess a valid, unexpired required document when

applying for admission Inadmissible. 212(a)(7)(A).

Waiver available under 212(k) if immigrant possesses an immigrant visa [doesnt say
valid and unexpired], and didnt and couldnt reas. have known that he or she was
inadmissible before traveling to the U.S. and applying for admission.

Is a non-immigrant and doesnt possess a valid, unexpired required document when

applying for admission Inadmissible. 212(a)(7)(B)(i).

Waiver available under 217 (special visa waiver program for non-immigrants from
certain countries) and under 212(d)(4) (unforeseen emergency in individual cases).
Priorremovalproceedings.

Didnt attend all or part of a removal proceeding Inadmissible for 5 years after such
aliens subsequent departure or removal. 212(a)(6)(B).

Has been ordered removed upon arrival previously Inadmissible for 5 years after date
of removal. 212(a)(9)(A)(i).

Subsection (iii) provides exception if AG consents to the aliens reapplication for

admission.

Has been ordered removed upon arrival on at least two previous occasions
Inadmissible for 20 years after last date of removal. 212(a)(9)(A)(i).

Subsection (iii) provides exception if AG consents to the aliens reapplication for

admission.

Has been ordered removed (not upon arrival) previously Inadmissible for 10 years
after the date of departure/removal. 212(a)(9)(A)(ii).

Subsection (iii) provides exception if AG consents to the aliens reapplication for

admission.

Has been ordered removed (not upon arrival) on at least two previous occasions
Inadmissible for 20 years after last date of removal. 212(a)(9)(A)(ii).

Subsection (iii) provides exception if AG consents to the aliens reapplication for

admission.

Has been ordered removed at any time previously and has been convicted of an
aggravated felony Inadmissible. 212(a)(9)(A)(i, ii).
26

Subsection (iii) provides exception if AG consents to the aliens reapplication for

admission.
PoliticalandNationalSecurityGrounds

Is a suspected terrorist Inadmissible. 212(a)(3)(B).

(i)--9 different terrorism-related exclusion grounds, some of which refer to those who
"engage" (or have engaged or are "likely" to engage) in terrorism.

All of the grounds describe individuals who are associated in specified ways with
either

(a) terrorist ACTIVITY or

(b) terrorist ORGANIZATIONS

(iv)(VI)-- terrorism exclusion extends to a person who provides "material support" for
a terrorist activity or for any of various at ors.

Presents a national-security threat If AG knows or has reas. ground to believe that

non-citizen seeks to enter the U.S. (i) to violate any law of espionage, or evade any
export law relating to goods, technology, or sensitive info., (ii) to engage in any other
unlawful activity, or (iii) to engage in any activity the purpose of which is to oppose,
control, or overthrow the U.S. govt. by unlawful means, then non-citizen is inadmissible.
212(a)(3)(A). Its not clear what exactly any other unlawful activity encompasses;
applying the ejusdem generis principle (activities that similarly threaten natl security)
appears to make subsection (iii) redundant.

Presents a foreign-policy issue Under 212(a)(3)(C), any non-citizen whose entry or

proposed activities in the U.S. would have problematic foreign policy consequences is
inadmissible. Exceptions for foreign officials and those whose beliefs, statements, and
associations would be lawful within the U.S.

Note: Special removal procedure for any of the above, except (3)(A)(ii) Under
235(c), an immigration officer or IJ who suspects that an arriving non-citizen may be
inadmissible on any of the above grounds except (3)(A)(ii) (entering to engage in
other unlawful activity) is required to order the person removed and report the
removal to the AG. If the AG concludes from confidential info that the person is
inadmissible on any of those grounds, and that disclosure of the info would be
prejudicial to the public interest, safety, or security, then the person may be removed
without a hearing.

Is an immigrant and is or was affiliated with a Communist/totalitarian political party

Inadmissible. 212(a)(3)(D). Exceptions for involuntary membership and past
membership.
REALIDActof2005.
CriminalGrounds

Convicted of or admits to having committed a crime involving moral turpitude

Inadmissible. 212(a)(2)(A)(i)(I).

EXCEPT: Under subsection (ii), not excludible if alien committed only one crime: (I) if
crime was committed > 5 years ago and applicant was < 18 at the time, OR (II) max.
penalty possible for crime was 1 year in prison and applicant wasnt sentenced to > 6
mos.

Waiver available under 212(h) if crime didnt involve murder or torture.

Convicted of or admits to having committed a crime relating to a controlled substance

Inadmissible. 212(a)(2)(A)(i)(II).

Waiver available under 212(h) if offense was possession of < 30g marijuana.

Multiple criminal convictions for which the aggregate sentences to confinement were > 5
years Inadmissible. 212(a)(2)(B).
27

Waiver available under 212(h) if convictions didnt involve murder or torture.

Drug dealer Inadmissible. 212(a)(2)(C)(i).

Prostitute Inadmissible. 212(a)(2)(D)(i). Waiver available under 212(h).

Felon who fled U.S. criminal jurisdiction Inadmissible. 212(a)(2)(E).

Waiver available under 212(h) if crime didnt involve murder or torture.

Waiver under 212(h)

If non-citizen is an LPR, and he or she has committed an aggravated felony since being
admitted as an LPR or hasnt lawfully resided continuously in the U.S. for at least 7
years up to the initiation of removal proceedings, then no waiver available.

Otherwise, AG discretionary waiver available if: (A - immigrant) crime was prostitution

or crime happened over 15 years before the application, person no longer constitutes a
threat, and person has been rehabilitated; (B - immigrant) extreme hardship; or (C -
alien) battered spouse or child.
EconomicGrounds

Is likely at any time to become a public charge Inadmissible. 212(a)(4)(A). Subsection

(C) provides an exception for a family-sponsored spouse or child of a citizen who presents
an affidavit of support.
PublicHealthandMorals

Has a communicable disease of public health significance 212(a)(1)(A)(i). Waiver

available under 212(g).

Non-immunized 212(a)(1)(A)(ii). Waiver available under 212(g).

Drug abuser or addict 212(a)(1)(A)(iv).

Have or had disorder & disorder associated w/ the disorder that may/has posed a threat
to others 212(a)(1)(A)(iii).
28
(5) ADMISSION PROCEDURE
Forthosewhoseekcertainstatuses>

B-2 and B-3 Employment-Based Visas--->Labor certification INA 212(a)(5)(A)

Employers of certain nonimmigrants must also apply for labor certification or file "labor
condition applications."
Visapetition
Formfiled.

Employment-based form: I-140. Employer files it

Family-based form: I-130. The USC/LPR relative files it

204(a)(1) allows certain battered immigrants to petition on their own behalf.

Also note nonimmigrant U-visas for certain domestic violence victims who
cooperate with the police

Where filed? Regional "service centers" which each serve a local "district;" some U.S.
citizen petitioners who live outside the U.S. may file in overseas offices.

Priority date. Quota-based visas given chronologically.

For family-based preference: Date visa petition filed

For employment-based preference: date on which petition filed--->date the request

for labor cert was accepted (if reqd)
Opportunitytosupportonespetition.

Must support petition w/ docs

No right to be heard orally-- but before an adverse decision can be made based on
derogatory non-classified info, applicant and/or petitioner must be made aware of the
info & given oppty to respond.

Procedure must comport w/ demands of due process-- Mathews v. Eldridge balancing

test applies.

Balancing test:

(1) Private interest that will be affected by the official action

(2) Risk of an erroneous deprivation of such interest through the procedures used
& the probable value, if any, of additional or substitute procedural safeguards

(3) Government's interest, including the function involved and the fiscal and
administrative burdens, that the additional or substitute procedural requirement
would entail
Denialofvisas.

When USCIS denies a visa petition, it must state its reasons for doing so.

Denials of visa petitions are subject to both (1) administrative and (2) judicial review.

Administrative review:

Forum depends on the type of petition

Denials of family-based petitions are appealable to the BIA

Denials of employment-based petitions are appealable w/in USCIS to AAO unit.

279. Judicial review:

Suits by the US authorized

Suits against the US not authorized

Federal question jdx under 28 USC 1331 might be available.

29
Visaapproval.

Once USCIS approves an immigrant visa petition, forwards approval to St. Dept.s
National Visa Center. NVA checks petition for accuracy & completeness; sends fils to
appropriate overseas US consulate.

Problem: HUGE backlog despite several congressional initiatives.

Revocations.INA205authorizesSecretaryofHomelandSecuritytorevokeaprevious
approvalofavisapetition"forwhathedeemstobegoodandsufficientcause."

Automatic revocation. Regulations-- 8 CFR 205.1-- Events that trigger automatic

revocation:

Filing fees/service charges not paid

If any of the follow happen BEFORE beneficiary/self-petitioner begins journey to the

U.S. OR, if applying for adjustment of status to LPR, before the decision to adjust
application is final:

Written w/drawal by petitioner

Death of beneficiary/self-petitioner

Death of petitioner unless:

Approved for I-360-- widower/special immigrant under 8 CFR 204.2(b)

USCIS decides not to (for humanitarian reasons)

Divorce (if marriage visa)

But if terminated b/c of abuse, divorce cant be sole factor for revocation

Remarriage of spouse of an abusive citizen/LPR when spouse has self-petitioned

under 204(a)(1)(B)(iii) or 204 (a)(1)(B)(iii)

Marriage of child (if applying via 201(b))

Legal termination of petitioner's LPR status unless b/c became USC

Discretionary revocation. USCIS may revoke a visa petition for any other "good and
sufficient cause" in the particular case, including a change of heart.

No revocation of petition once journey to U.S. begins. May not revoke once beneficiary
has begun his/her journey to the U.S.

Due process considerations re: revocation:

Notice. Beneficiary must receive notice of intention to revoke, and have an opportunity
to respond.

Administrative review. Revocations are appealable to the BIA in family cases and to
the AAO in employment cases.

Judicial review? Courts are divided over whether revocations of approved visa petitions
are reviewable in court.

Potential problem: If judicial review of visa petition denials but not revocations
of approved visa petitions, then, rather than deny a petition it does not wish to
approve, USCIS can just grant the petition and then immediately revoke the grant,
thus insulating its decision from judicial review. :-O!
Obtaningavisa>VisaApplication.

Shortly before the applicants priority date becomes current, a consular officer in the
country where the non-citizen resides adjudicates the application. The consular officer
determines whether the applicant is (a) eligible and (b) not inadmissible.

Under 222(e) and a State Dept. interim regulation, the latter promulgated post-9/11
as a natl security measure, all non-immigrant visa applicants except for those in a few
narrowly defined categories are required to appear for a personal interview with a
consular officer. If the consular officer approves the application, the officer issues a
visa, which is the non-citizens entry document.
30

No administrative appeal and no judicial review of the decisions of consular officers;

many scholars have criticized this consular absolutism. VISA APP DENIALS BY US
CONSULATE CANNOT BE APPEALED IN THE US--SEPARATE FROM JUDICIAL &
ADMINISTRATIVE SYSTEMS IN THE US!!!

Once issued, a visa is valid for only a limited time.

Note: INA 217. Visa Waiver Program. Nationals of certain countries can come to US
as tourists or business visitors 90 days w/o visa,w/ of a proof of return ticket, &
deemed not a security threat.
Actualadmission

@ border. Applicant travels to the U.S. and presents the visa to a Bureau of Customs
and Border Protection inspector at the port of entry.

Double-check system. Under a double-check system, the inspector may reexamine the
non-citizen to assure that none of the statutory inadmissibility grounds applies. The
inspector decides if person is clearly and beyond a doubt entitled to enter.

If any doubt, person gets a removal hearing.

Person shall be detained for a removal proceeding. INA 235(b)(2)(A)

AG has discretion to parole a noncitizen into the US temporarily for emergent reasons,
subject to some constraints in the case of certain individuals who are removable on
criminal or national security grounds. INA 212(d)(5), 236

Under some circumstances, can authorize an expedited removal or summary exclusion

If no problem, the person gets green card.

If person mutters the word asylum or persecution, then gets special interview with
asylum officer to see if has credible claim to asylum If credible claim, gets asylum
hearing.

Documentation. Everyone gets finger-printed and photographed (required of all visa

non-immigrants except for certain visa-waiver people).

Note: If no visa then no admission, but having a visa doesn't guarantee admission.
HearingsbeforeImmigrationJudges.

AG has discretion to permit noncitizens to withdraw their applications for admission and
depart immediately. INA 235(a)(4). Since formal removal order bars future
admission for up to five years (and longer for second removals and for aggravated
felons), vast majority give up and go home.

Notice to Appear formally begins the removal proceeding.

Hearing may proceed without counsel. INA 239(b)(3)

Government's burden to prove grounds for deportability; contained in Notice to Appear

Passport will prove citizenship (non-US)

If person is there, can prove remaining in US beyond period permitted

Charges look back to status as you entered and why now removable (doesn't matter if
reason why you have stayed is that you were waiting for IJ to rule on asylum petition)

INA 291. Arriving noncitizen bears burden of proving admissibility

INA 240(c)(2)(A). Noncitizen must prove that she is clearly and beyond doubt
entitled to be admitted and is not inadmissible under 212

INA 240(c)(2)(B). Noncitizen must make showing that they are admissible or that they
have been lawfully admitted by clear and convincing evidence

If charge is entry without inspection

Government has burden to prove alienage

Respondent must prove entry with inspection (time, place and manner of entry)
31
ExpeditedRemoval(formerlysummaryexclusion)

Once immigration inspector concludes that noncitizen is inadmissible under the two
listed grounds, person is ordered removed without further hearing. INA 235(b)(1)(A)
(i)

No administrative appeal except for returning LPRs, admitted refugees and people who
have already received asylum

No judicial review of whether the alien is actually inadmissible or entitled to any relief
from removal

Only permissible judicial review of expedited removals is on the issues of whether the
person is a citizen, whether the person was in fact ordered removed, and whether the
person comes within one of the above exceptions (LPRs, refugees, asylees). INA
242(e)(2)
AdjustmentofStatus.

Extending ones non-immigrant status.

Extending ones stay Under 8 C.F.R. 214.1(c), a non-immigrant may apply for an
extension of his or her current visa. But extensions arent available to those who
have overstayed or otherwise violated the terms of their existing stays, absent
extraordinary circumstances.

Changing to another non-immigrant status.

Change of status, 248 Under 248, certain non-immigrants can switch to

different non-immigrant categories without having to leave the U.S. to go to the
consulate office in their home country.

Requirements: (1) Must have been lawfully admitted as a non-immigrant, (2) must
be continuing to maintain that status, (3) must be eligible (certain categories of
non-immigrants are ineligible to change to certain other categories), and (4) must
obtain the favorable exercise of INS discretion.

Adjusting to LPR-status.

Adjustment of status, 245 Under 245, certain non-immigrants can become LPRs
without having to leave the U.S. to go to the consulate office in their home country.
In the deportability context, adjustment can provide affirmative relief from removal
and a means of attaining LPR status without leaving the U.S. See cancellation of
removal, part B; have to file application with the IJ. The IJs decision whether to order
removal (which reflects decision on adjustment of status) is appealable to the BIA,
but a BIA decision denying adjustment of status is not appealable.

Who can adjust, according to the requirements in subsection (a) (1) Must apply for
adjustment, (2) must be eligible to receive an immigrant visa and must be
admissible, and there must be an immigrant visa immediately available at the time
application is filed. For third requirement, seems one cant adjust status to
immigrant category for which theres a numerical limit and thus a backlog.

Exceptions: who cant adjust

Non-citizen who isnt an immediate relative-- 245(c)(2) cant adjust if s/he: worked
without authorization, is in an unlawful status when applying for adjustment, or is at
fault in failing to maintain lawful status since entry into the U.S.

Unlawful status-- 245(c)(7), a non-immigrant cant adjust if he or she wants to

adjust to employment-based LPR status and is in an unlawful non-immigrant status.

Worked w/o auth or violated visa-- 245(c)(8), a non-citizen cant adjust if he or she
worked without authorization or violated the terms of a non-immigrant visa.

EXCEPT: Under 245(k), if the non-immigrant is eligible to receive an immigrant visa

under one of the first three employment-based preferences, he or she may adjust
notwithstanding all of the above if he or she: (1) is, on the date of filing an
32
application for adjustment of status, present pursuant to a lawful admission; and (2)
since the time of such lawful admission hasnt, for an aggregate period of more than
180 days, failed to maintain continuously a lawful status, worked without
authorization, or otherwise violated the terms and conditions of his or her admission.

Limited appeal No provision for an administrative appeal and, under 242, no

judicial review of denials of adjustment of status.
33
(6) REMOVAL GROUNDS.
Admission.101(a)(13)(A);admissionisalawfulentryofthealieninto
theU.S.afterinspectionandauthorizationbyanimmigrationofficer.

Admission determines whether a non-citizen will be subject to the inadmissibility grounds

or the deportability grounds. (Under IIRIRA, no longer entry.)

Note: By replacing "entry" with "admission" and "admitted," Congress modified and
codified the Fleuti principle.

Note: "lawful entry".

Generally, courts have held that, there is only 1 admission to the US

Adjustment of status is not considered an additional admission.

ForNonImmigrants.

Every new lawful entry into the U.S. constitutes a new admission.
ForLPRs.

IIRIAIRA. A person who is a returning LPR will not be treated as if he or she is seeking a
new admission if:

1) the person has not abandoned the permanent residency

The required intent is NOT to maintain/retain LPR status, but instead, the LPR
must have had, at the time of departure from the US, the intent to return to
the US within a relatively short period.

Fleuti factors for inferring intent re: abandonment: (1) the length of the
absence, (2) the purpose of the visit, and (3) whether the alien had to procure
any travel documents in order to make the trip. Unclear if this still carries any
weight though.

(gay LPR returned from very short trip; since initial admission,
inadmissibility factors

2) the person's absence did not exceed 180 days

3) s/he was not engaged in illegal activity following departure

4) his or her departure was not while under removal or extradition proceedings &

5) the person is not inadmissible under one of the criminal grounds of

inadmissibility, unless granted a waiver or cancellation relief.

Documentary requirements.

If absence < 1 year, LPR satisfies this by just presenting his valid, unexpired green
card. 8CFR 211.3.

If LPR is planning on being out of the US for more than 1 year, he may apply in
advance for a reentry permit (typically not longer than 2 years). INA 223, 8 CFR
223.3.
Deportableb/cinadmissibleattimeofentryoradjustment.237(a)(1)(A)

A catch-all that repairs mistaken admission-decisions. Note that 237(a)(1)(A)

(deportable because was inadmissible at time of entry) applies to any entry, not just
the most recent one. Waiver available in 237(a)(H) for non-citizens who entered
fraudulently or whose inadmissibility directly results from fraud or misrepresentation.
Requirements for waiver: (1) is the spouse, parent, son, or daughter of a citizen or LPR;
and (2) was otherwise admissible at the time of admission. (Or is a domestic-violence
victim.)
Deportabilityforpostentryconductrelatedtoimmigrationcontrol.
34

Has overstayed or worked without authorization Under 237(a)(1)(B), a non-citizen

who is present in the U.S. in violation of the INA or any other U.S. law is deportable.

Is an IMFA non-citizen or immigrant investor whose conditional status was terminated

Deportable. 237(a)(1)(D).
Crimerelateddeportabilitygrounds.
Within 5 years after he or she was admitted, was convicted of a crime which
involved moral turpitude and for which the sentence was at least 1 year in
prison Deportable. 237(a)(2)(A)(i).

Crimes involving moral turpitude: involves dishonesty, involves baseness,

vileness, or depravity (from case law, in the eye of the beholder), theoretically
impossible to commit this crime without acting with moral turpitude (ignoring the
extreme cases, like mother stealing milk for her starving child). The stipulation that
the crime has to have been committed within 5 years after admission reflects the
idea that after a while a person becomes more a product of this country than of the
country from which he or she came.
Has been convicted of two or more crimes involving moral turpitude, not
arising out of a single scheme of misconduct Deportable. 237(a)(2)(A)(ii).

No fixed definition; doesn't make a lot of sense "contrary tosociety in

general." encompasses a lot of different things; sometimes you have to see if
there is an intent requirement--- if there is no intent requirement in the statute, it's
less likely to be a crime of moral turpitude (not an absolute rule though).

Examples of things NOT crimes of MT: simple assault (no major injury), DUIs; board
has a strange approach to determine if crime involving MT---

First look at the statute---> categorical approach.

Does the statute encompass conduct that would not be considered a crime
involving moral turpitude?

A lot of statutes are divisible-- if you violate some sections, would be a crime
of MT, other sections, not crime of MT.

Modified categorical approach

individual aspects of the case

Limited to certain documents in the "record of convic"

inditement

judgment of conviction

jury instructions

any guilty plea form

plea transcript

Generally, the rule had been that if not a crime of MT, or can't conclude CoMT
after looking at these documents, then not a CoMT

Matter of Salazar-Regino (pg 559)--- added another step

if u get to step 2 and u can't tell, board says u can go on and consider any
additional evidence

Recent 11th circuit case said this is dumb

probably gonna be totally overruled if it goes to scotus

for purposes of 237-- provisions for when subject to removal b/c of CoMT

1 requirement: (a)(2)(A)-- committed w/in 5 years of date of admission --

distinguish-- this does not say CONVICTED, it says COMMITTED.
35

Whats constitutes a single scheme of misconduct? The First Circuit and the BIA
have held that, 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
dissociate himself from his enterprise and reflect on what he has done. (Pacheco) In
contrast, the Ninth Circuit has held that there was a single scheme if the crimes
were planned at the same time and executed in accordance with that plan.
(Gonzalez-Sandoval)
Has been convicted of an aggravated felony Deportable. 237(a)(2)(A)(iii).

See the list of aggravated felonies in 101(a)(43). For instance, under (F) a crime of
violence (other than a political offense) for which the term of imprisonment is at
least 1 year is an aggravated felony; crime of violence is defined in 18 U.S.C. 16
as (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
thats 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.

Note that the second-to-last sentence of 101(a)(43) provides that the term
aggravated felony applies to violations of federal law, state law, and the law of a
foreign country for which the term of imprisonment was completed within 15
years. The implication of that sentence is that if you werent sentenced to
imprisonment at all in the foreign country, like if you paid a fine instead, then the
aggravated felony provision cant be applied to you.

Leocal v. Ashcroft Very important; cited not just for DUI but also for applying to
other statutes.

charged w/ 2 counts of DUI

causing serious bodily injury

issue: does this constitute aggravated felony

18 usc 16

element, use -- something-- of physical force against person or property of

another

any other offense thats a felony, by its nature, substantial risk of force against
person/property-- e.g. burglary of an occupied dwelling

remember that u can be convicted of aggravated felony w/o ever being sentenced
to prison.

also note that congress keeps adding to this

domestic violence offence--- deportable

really have to look at the state statute under which convicted

under OH law-- altho it's called domestic violence, it doesn't fit the requirements
of the federal law here.

so under OH law, for the most part, unless some special circumstance.. can
argue hasn't been convicted for purposes of iNA.

so must really be careful-- must carefully read and compare federal and state
statutes.
Has been convicted of any offense relating to a controlled substance (except
possession of < 30g marijuana) Deportable. 237(a)(2)(B).
Convictionsandguiltypleas.
36

Issues with respect to convictions: (1) Did the action that the court took amount to a
conviction for removal purposes? (2) Could any subsequent developments, like an
expungement or a vacation of the judgment, have erased the conviction? (3) Can the
non-citizen withdraw his guilty plea on the grounds that he wasnt aware of the
deportation consequences that pleading guilty would entail?

Vacating..

Rules for when vacated conviction can be used for immigration

Legal defect in the underlying proceedings ---> Yes

eg ineffective assistance of counsel

unknowing, involuntary plea

procedural defect

Otherwise, conviction still counts for immigration purposes

Key:

what u put in the motion -- does it allege constitutional violation or procedural

defect? etc

what the judge's order say re: vacation

did judge say it was to avoid deportation or for a procedural reason?

Strategy: In motion----

No equity

only legal grounds

Disipio case-- 5th circuit-- says vacating makes no difference--- if theres a conviction
it's a conviction it's a conviction!!

pg 559-- federal first offenders act

one instance where expungements impacted immigration, but it's been

overturned

9th circuit said this doesn't make sense.

so expungements just DONT work even if it's federallllll

Executive pardons? In some instances, will work.

Politicalandnationalsecuritygrounds
RelieffromRemoval

Not all deportable noncitizens must be deported.

Limitations to the Remedies:

Individuals who are properly notified of their removal hearings and fail to appear, &
individuals who receive voluntary departure and fail to leave on time, become ineligible
to apply for the following remedies for 10 years:

Cancellation of removal

Voluntary departure

Registry

Aggravated felons are disqualified from most of the major relief provisions (e.g.
cancellation of removal, voluntary departure, and registry). Aggravated felony
convictions preclude showing of good moral character element.

Those deportable on terrorist grounds are barred from most relief provisions (e.g.
cancellation of removal, voluntary departure, and registry).

Anyone applying for a form of relief that confers a right to reside in the U.S. must undergo
DHS scrutiny.

Judicial review. IIRIRA bars judicial review of

Judgements re: granting relief under provisions s/a cancellation of removal, voluntary
departure, and adjustment of status.
37

Decisions/actions by Attorney General for which IIRIRA grants the AG discretion.

Under 240A(e)(1), Attorney General may not cancel the removal and adjust status under
this section of more than 4000 individuals in a fiscal year.
CancellationofRemovalINA240A.
1. AG may cancel the removal of a noncitizen and allow the noncitizen to remain as an LPR
2. NOT a form of affirmative relief
But sometimes you can play the game if you think it will work for your client
There are aliens who are eligible for CIR for cancellation B
Sometimes immigration lawyers will say to the alien "if you were in
removal proceedings, you are eligible for COR, so we need to get you into COR"
Sometimes it's worth the risk but the circumstances must be SO
favorably that it's not much of a risk
You MUST make clear to your client the risks of taking this
If you're sure your client understands the risks and benefits
You can call ICE and ask them to put your client in removal proceedings
3. Can be sought in the alternative to other forms of relief
4. Measuring time
Service of NTA stops the time period
Time also stops when alien has committed an offense that renders the alien
inadmissible to the United States
Treatment of certain breaks in presence (d)(2)
Break more than 90 days will break the period
Benitez thinks there's a gap in this section - if you look at (d)(2) it says
"continuous physical presence"
There is nothing there about continuous residence which to me is
the language of cancellation A
Gap in the statute - appears to only cancellation A
For Permanent Residents INA 240A(a).

Requirements

(1) has been an LPR for 5 years,

(2) has lived 7 continuous years in US after having been admitted in any status,
and

(3) has not been convicted of any aggravated felony.

Note: A deportable noncitizen need not leave and return in order the qualify.

Does not require deportable noncitizens to identify a comparable inadmissibility

ground.
For Non-Lawful Permanent Residents INA 240A(b). Formerly Suspension of
Deportation.
General Branch-- Ten Year Cancellation of Removal

Removal would exceptional & extremely unusual hardship to family/// Matter

of Recinas, (applicant met the standard where she was single mother who
provided sole support for six children, including four who were US citizens)

Not hardship upon applicant-- upon ppl in USA

Continuous physical presence for 10 years prior to issue of NTA

Good moral character

Special Rule Cancellation of Removal for Battered Spouse or Child; slightly
relaxed reqts

Battered or subjected to extreme cruelty in the US

by LPR/USC spouse or parent, or parent of such a child

Or by USC/LPR whom alien intended to marry, where the marriage is not

legitimate b/c of LPR/USCs bigamy; AND

Continuous physical presence for 3 years prior to filing

38

Good moral character [note: can still be achieved if criminal conviction related to
abuse[

Not inadmissible under 212(a)(2) or (3), not deportable under 237(a)(1)(G) or (2)
(4) of 237(a), and has not been convicted of an aggravated felony; AND

Removal would result in extreme hardship to the alien, the aliens child, or the
aliens parent
NACARA.Grantedspecialdispensationstonationalsofcertainnamedcountries

Applies to Salvadorans, Guatemalans, and Eastern Europeans) rules vary

depending on the country where the person is from; generally, similar to suspension
of deportation.

Shifts burden-- INS has burden of proving that removal will not cause extreme
hardship

Big in the 1990s; it's time is mostly over

Registry.INA249

Confers discretionary authority on AG to award LPR status to certain noncitizens who

enter US before a specified date

Applicant may not fall within any of the more serious exclusion grounds

Must have maintained continuous residence

Must be of good moral character

Must be ineligible for citizenship

Generally unavailable for ten years to individuals who have failed to appear at
removal hearing or to comply with voluntary departure orders.
Legalization

Legalization: Allows certain noncitizens who had been residing unlawfully in the US
for several years to regularize their status

Realistic appreciation that millions of immigrants living underground would never be

apprehended and removed

Social harms that inevitably flow from the existence of huge underground
subculture

Compassion for people who had become part of American society

AdjustmentofStatusINA245

While in removal proceedings

Can apply for adjustment of status under INA Section 245 while in removal
proceedings except for arriving aliens with a narrow exception (see 8 C.F.R.
Section 1245.2(a)

Can be a defense to deportation even where a person is already a lawful

permanent resident

Must qualify for adjustment under INA 245 (see also INA 245(i))

A visa number must be currently available

Must be admissible to US (but see INA 245(i))

Not admissibe. If a person is not admissible to the US, he or she can file an
applicable waiver application with the IJ if a waiver is available for the ground of
inadmissibility. The main waivers for those in removal proceedings are:

212(i) waives the ground of inadmissibility where a person obtains or sought to

obtain an immigration benefit by fraud or material misrepresentation

must have a qualifying relative: spouse or parent (not child)

must show extreme hardship to the qualifying relative to receive the waiver
39

212(h) waiver of criminal grounds of inadmissibility under INA Section 212(a)(2)

and certain other grounds of inadmissibility (INA Sections 212(a)(2)(B), (D), (E)

Only applies to controlled substance offenses where the offense involved less
than 30 grams of marijuana for the persons personal use

Waives ground of inadmissibility for crimes involving moral turpitude

Different rules apply for permanent residents and non-lawful permanent

residents

However, never applies to persons convicted of (or who have admitted

committing acts that constitute) murder or criminal acts of torture

A returning lawful permanent resident seeking to overcome a criminal ground

of inadmissibility is not required to apply for adjustment in conjunction with a
212(h) waiver

Standard: to waive criminal grounds of inadmissibility (under INA 212(a)(2)(A))

must show that denial of admission would result in extreme hardship to the
United States citizen or lawful permanent resident spouse, parent, son, or
daughter of the applicant

LPRs: can apply for a 212(h) waiver only if they were lawfully residing in the US
for seven years prior to the commencement of proceedings AND they were not
convicted of an aggravated felony- (but see Martinez v. Mukasey, 519 F.3d 532
(5th Cir. 2008)(waiver under INA 212(h) available for someone convicted of an
aggravated felony if they obtain lawful permanent residence through adjustment
of status in the United States).

Non-LPRs: can apply for adjustment with a INA Section 212(h) waiver even if
convicted of an aggravated felony

No time reqt for US residence

NOTE: IJ enters final order of deportation ICE sends bag and baggage letter. If alien
doesnt report in accord w/ instructions, alein becomes an absentee and absconder
or fugitive. very diff to overcome some factors to consider when trying to
appeal/etc: --- grounds for an appeal or motion to repoen.

Emergency circumstances prevented u from leaving (eg wife pregers)

Didnt receive adequate translation @ every master calendar hearing biggie

EQUITY----ties to the US

Family ties?

Responsible resident, eg donates blood?

Regularly & honestly reports and pays taxes?

Criminal record?
AdjustmentofStatusforRefugeesandAsylees

A refugeee or asylee placed in removal proceedings may apply for Adj of Status
under 209.

Can also apply for a waiver of most gorunds of inadmissibility, including criminal
grounds, y aplpying for a waiver under 209(c), which is more generous than
212(h) or (i) and does not require a qualifying relative.

Standard for waiver under 209(c) AG can waive most grounds of inadmissibiity for
humanitarian reasons, to assure family unity, or when it is otherwise in the public
interest.
40
ASYLUMseenextpart
RequestTerminationforNaturalization

Under 8 CFR Section 1239.2(f), an immigration judge may terminate removal

proceedings to permit the alien to proceed to a final hearing on a pending application
or petition for naturalization when the alien has established prima facie eligibility for
naturalization and the matter involves exceptionally appealing or humanitarian factors
I751

A person whose I-751 application was denied by CIS may renew that application in
removal proceedings. The renewed application must be on the same ground as the
application that was presented to CIS
VacatingCriminalConvictions

In order for IJ to terminate based on vacated conviction, the conviction must be due to
a legal defect in the underlying proceedings.

Key is to allege a procedural or substantive defect in the underlying criminal

pproceedings.
StayofRemoval.TEMPORARYRELIEF.

A request to delay a removal order; request for the exercise of a discretionary benefit
in the form of temporary relief from removal

May be made to ICE district director or IJ.

Note: REAL ID Act could remove judicial review for this

WithholdingofRemoval.241(b)(3)(A).TEMPORARYRELIEFsee@asylumbelow

AG may not remove a person to a country where his life or freedom would be
threatened b/c of the persons race, religion, nationality, membership in a particuar
social group, or political opinion.

Applicant must show that it is more likely than not that he would be persecuted if
removed to home country.

VERSUS Asylum:

NOT discretionary

Higher standard

Does not allow a person to apply for a green card--it only prevents deportation to
the designated country

Presumption of future threat to life or freedom applies if applicant establishes past

persecution.

Bars:

Convicted of a particularly serious crime

Participation in persecution of others

Committed a serious nonpolitical offense outside of the US

Terrorism related grounds or is a danger to the US

a. Two prongs
Mandatory relief
Life or liberty would be threatened on account of (aka because NEXUS NEEDED)
Race
Religion
Nationality
Membership in a particular social group
Political opinion
Standard is Persecution is more likely than not [OBJECTIVE]
Harder to meet than asylum / higher burden
41
b. Less protections
Generally get work authorizations
Sometimes get public assistance
May not bring immediate relatives to US
v Worse things remain in legal limbo for decades
No provision to get LPR status
c. Useful if
you miss one year deadline for asylum
have criminal convictions that preclude you from asylum
look at the ACTUAL sentence, not just what served
use IDENT
ReliefunderArticle3oftheConventionAgainstTorture.TEMPORARYRELIEF

Applicant bears burden of establishing that its more likely than not that s/he would be
tortured if removed to the proposed country of removal.

Torture is defined as:

"any act by which severe pain or suffering, whether physical or mental, is

intentionally inflicted on a person for such purposes as obtaining ... information or a
confession, punishing him or her for an act he or she or a third person has
committed or is suspected of having committed, or intimidating or coercing him or a
her or a third person, or for any reason based on discrimination of any kind, when
such pain or 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." 8
C.F.R. 208.18(a)(1).
PrivateBills

Number of private bills introduced and the number enacted have slowed to a trickle
in recent years.

Members of Congress must be persuaded to introduce a private immigration bill.

Then such bill is routed to the immigration subcommittee of the Judiciary
Committee of the resepective houses.
DeferredActionJOHNMORTONMEMOJUNE17TH;DEFFERRDACTIONTEMPORARY
RELIEF

Similar to prosecutorial discretion.

Case is put on the back burner. Concerned more with efficiency issues than
sympathy but once on back burner it is most likely to stay there.

E.g., don't wanna give u a green card, but don't want to deport you
VoluntaryDeparture.TEMPORARYRELIEF

No removal hearing-->take voluntary departure instead of hearing. All

discretionary.

Ineligibility requirements in 240B(a)(1).

(a) Aggravated felon, terrorists, previously removed and returned early.

(b) May need to post bond.

(c) Maximum period of time: 120 days to leave US

Prior to conclusion of removal hearing:

Can obtain voluntary departure for 120 days if the request is made prior to or at the
master calendar or a continued master calendar hearing.

Cannot request any other relief; must concede removability; must waive appeal.
At the conclusion of removal hearing; must convince judge you qualify.

Additional requirements:
42

In US for 1 year prior to NTA

Good moral character for 5 years preceding application

Clear and convincing evidence that have mean$$$$ and intent to deport US

Maximum time you can stay in US is 60 days.

No judicial review for order denying voluntary departure.

Without option of voluntary departure the system would shut down.

By stipulation.

At any time prior to completion of proceedings, parties can agree to a 120 pd of

voluntary departure.

Reasons why alien might agree to voluntary departure:

(1) Aliens who are formally ordered "removed" (other than upon arrival at a port of
entry) are ineligible to return to the US for at least 10 years.

(2) Often there is little to gain by waiting for a removal hearing and in the meantime
the alien must either post bond or remain in detention. The alien who departs
voluntarily might simply try to reenter surreptitiously and evade apprehension.
43
(7) REMOVAL PROCEDURE

The usual removal procedure.

Within 48 hours of an arrest (7 days for those certified as suspected terrorists), the DHS
must decide whether there is prima facie evidence that the non- citizen is in the U.S.
unlawfully.

If there is prima facie evidence, the DHS (in particular, the Bureau of Immigration
Customs Enforcement, or ICE) issues a Notice to Appear, serves it on the person, and
files it with an immigration court.

The service of the Notice to Appear marks the official commencement of the removal
proceeding and vests jurisdiction in the IJ.

Then there is a master calendar hearing, which is similar to a preliminary hearing in the
criminal context.

Counsel.

Under 240(b)(4)(A), the non-citizen has the right to be represented by counsel, but
only at his or her expense.

Indigent non-citizens might be able to find help through a legal aid organization,
although those resources are stretched thin and many indigent non-citizens are forced
to go without counsel.

Detention.

Under 236(a), the govt. has the discretion to detain a non-citizen during removal
proceedings.

Release requires a finding that the person will not endanger persons or property and is
likely to appear for the removal proceeding.

Under 236(c)(1)(D), however, any non-citizen who is alleged to be inadmissible or

deportable on the basis of terrorist activities must be detained, pending removal
proceedings.

Detention is also mandatory for almost anyone whos inadmissible or deportable on

crime-related grounds, most arriving passengers, and individuals awaiting the
execution of final removal orders.
EvidenceandProofAdmissibilityofEvidence

Evidence There are a few specific rules to guide IJs in deciding what evidence is
admissible in removal hearings, but the formal rules of evidence dont apply. Hearsay
evidence is admissible, provided that its admission is fundamentally fair.

Burdens and standards of proof

In a removal proceeding, the DHS first has the burden of proving by clear and
convincing evidence that the subject of the hearing is a non-citizen.

The non-citizen then must prove either admissibility (clearly and beyond doubt
entitled to be admitted and is not inadmissible under section 212, 240(c)(2)(A)) or
lawful presence pursuant to a prior admission (clear and convincing, 240(c)(2)
(B)), including the time, place, and manner of his or her entry into the U.S. ( 291).

If non-citizen doesnt sustain that burden, he or she is rebuttably presumed to be

present in violation of law and thus deportable under 237(A)(1)(B).

Once it has been established that the non-citizen has been admitted, govt. has the
burden of proving deportability/denaturalization.

Std is clear and convicning.

MotionstoReopenorReconsider
44

Motion to reopen. --Reqursest to w/draw voluntary departure-- Used to present

material new facts that were not available and could not have been discovered or
presented at the former hearing.

Motion to reconsider. Used to call attention to errors of fact or law in the prior dedicion.
JudicialReviewofRemovalOrdersPetitionsforReview

General rule is: Once non-citizen has exhausted all of the administrative channels, he
or she has a right to judicial review of an administratively final order of removal.
Gaping exceptions to this rule in 242. A ct. may be able to use habeas corpus to get
around some of these limitations.

Step 1: Appeal administratively to BIA

Both the non-citizen and the DHS may appeal the decision of the IJ to the BIA. The
appellant must file with the IJ within 30 days of the IJs decision a notice of appeal
that summarizes the grounds for appeal. The filing of that notice automatically stays
execution of the IJs decision. The BIA may summarily dismiss an appeal if it lacks
an arguable basis in law or fact.

Petitions for review

242(a)(1) says that [j]udicial review of [an administratively] final order of removal
is governed by chapter 158 of title 28 of the U.S. Code. This is the Hobbs Act; the
non-citizen files a petition for review in the court of appeals in the circuit in which
the removal hearing was held.

Must file within 30 days after the administratively final removal order. A motion to
reopen or reconsider doesnt toll the clock.

The non-citizen also has to file a brief within 40 days after the administrative record
is available; otherwise, the court must dismiss the case unless a manifest
injustice would result.

Its routine practice for non-citizens to couple petition for review with motion for stay
of removal pending decision. If the court grants the petition, then the reviewing
court decides the merits solely on the basis of the administrative record.
Crime-Related Removal Orders

Limited judicial review for crime-related removal orders 242(a)(2)(C) says that no
court shall have jurisdiction to review a removal order if the person is removable on
almost any of the crime-related grounds. Cts. have consistently interpreted the section
as not barring review of whether the person is, in fact, removable only questions of
law and fact when the person has been found to be removable or has conceded the
point.
Denials of Discretionary Relief

Limited judicial review for denials of discretionary relief 242(a)(2)(B) says

[n]otwithstanding any other provision of law, no court shall have jurisdiction to
review prong 1 lists most of the major affirmative relief provisions available in
removal proceedings and prong 2 says discretionary decisions of the AG that are
authorized by Title II of the INA.
Expedited Removal Orders

Limited judicial review for expedited removal orders 242(a)(2)(A) says that cts. lack
jurisdiction to review, on the merits, expedited removal orders for arriving non-citizens
whom immigration inspectors believe to be inadmissible on documentary or fraud
grounds, or for those non-citizens who are present in the U.S., who are unable to prove
45
two years of continuous physical presence, and whom the AG has subjected to
expedited removal procedure.

Limited review of prosecutorial discretion 242(g). Note that the removal order itself
doesnt arise from these kinds of decisions or actions and thus isnt affected by 242(g).

Limited review of detention decisions While removal proceedings are pending, the AG has
the discretion whether to detain the non-citizen, release him or her on bond, or grant parole
without requiring bond. 236(a). Under 236(e), [n]o court may set aside any action or
decision of the AG under this section regarding detention or release of any alien or the grant,
revocation, or denial of bond or parole.

Habeas corpus A ct. may be able get around the above-mentioned limitations on review
through other sources of subject-matter jurisdiction, such as habeas corpus.

Other strategies General federal jurisdiction (28 U.S.C. 1331). Again, have to see how this
interfaces with the above-mentioned limitations on review. Injunctions and class actions.
Suppose a large class of non-citizens objects to a widespread DHS practice. Can they band
together and bring a class action seeking injunctive or declaratory relief? The S. Ct. hasnt
addressed directly whether the exclusivity of the petition for review would bar that procedure.
But in a landmark 1991 decision, McNary v. Haitian Refugee Center, the Ct. interpreted an
analogous exclusivity provision concerned with the legalization of agricultural workers and
held that the district court had jurisdiction to hear the case as a class action, to avoid delay
and procedural redundancy. Collateral attack in criminal proceedings. The S. Ct. held in United
States v. Mendoza-Lopez (1987) that the validity of an underlying removal order may not be
attacked collaterally in subsequent criminal proceedings unless the defendant had not earlier
been given a meaningful opportunity to seek direct judicial review of the deportation order.
ExceptionstoUsualRemovingProcedures
ExpeditedRemoval

See 235(b)(1). Expedited removal applies to non-citizens upon their arrival; it also
may be extended to non-citizens who are present in the U.S. without having been
admitted and who are unable to prove continuous physical presence in the U.S. for the
immediately preceding two years.

If an immigration officer at port of entry determines that an arriving non-citizen is

inadmissible under either the fraud ground or the improper-documentation ground, the
person is ordered removed without further hearing.

There is no administrative appeal, except for returning LPRs, admitted refugees, and
individuals who have already received asylum.

Under 242, the only judicial review available is for the issues of whether the person is
a citizen, whether the person was in fact ordered removed, and whether the person
comes within one of the above exceptions (returning LPRs, admitted refugees, and
asylees).

Because under 212(a)(9)(A) formal removal at a port of entry renders a person

inadmissible for 5 years, non-citizens often strategically withdraw their applications
when admission appears unlikely.
CriminalCases

The EOIR established an institutional hearing program in which deportation hearings for
incarcerated non-citizens are held in designated state or federal prison facilities. The
purpose of completing the removal hearings of imprisoned non-citizens before their
46
release is to permit the DHS to remove them from the United States at the moment of
release. See also administrative removal, 238(b). See also the procedure for
sentencing courts ordering removal, 238(c).
Prison Hearings
Administrative Removal
Judicial Removal
InAbsentiaRemovalHearings

If non-citizen is a no-show, a removal hearing will be held in absentia. At that hearing,

the DHS must prove by clear, unequivocal, and convincing evidence that the required
Notice to Appear was provided (or couldnt be provided because the non-citizen hadnt
notified the DHS of an address or telephone change) and that the person is deportable.
To get the removal order rescinded, the non-citizen must either (a) move to reopen
within 180 days, showing exceptional circumstances, or (b) move to reopen at any
time, showing that he or she either didnt receive notice or was in custody and was not
at fault in failing to appear. 240(b), p.841 CB.
NoncitizensReenteringAfterPriorRemovals

241(a)(5) expedites the removal of non-citizens who were previously removed or who
voluntarily departed, but who then reentered unlawfully. If the DHS finds that the
person has reentered unlawfully, the prior removal order is reinstated and the person
may be removed without further proceedings.
CrewMembers
TerroristRemovalProceedings

Closed hearings are hearings in which the only individuals allowed to be present are
the immigration judge, the respondent, counsel for the respondent (presumably), and
DHS officials. At least the respondent gets to see the governments evidence and
respond to it. Secret evidence proceedings are worse for the respondent in that the
respondent doesnt get to see the evidence, and therefore has great difficulty in
preparing a defense. Due process and fairness concerns. Id rather know the evidence
against me than not know but have my family and friends in the room with me. In
addition, 502 prescribes a special terrorist court procedure.
RescissionofAdjustmentofStatus

246 allows the AG to rescind a grant of adjustment of status within 5 years if the
person was in fact ineligible for adjustment at the time it was granted. With the
persons LPR status having been terminated, the DHS may then initiate removal
proceedings on the ground that the person has now overstayed his or her original non-
immigrant visa.
47
(9) REFUGEES & ASYLUM

Apply for REFUGEE status when OUTSIDE country

Apply for ASYLUM status when INSIDE country.

Forms for Asylee/Refugges:

I-589 Asylum Application

Asks why seeking protection and what he thinks will happen upon return to home
country
May add additional information
past activities, organizational affiliations, current whereabouts of family members
The circumstances of departure and travel to the US
Affidavits, news accounts, human rights reports (Amnesty International, Human
Rights Watch)

I-730 Refugee/Asylee Relative Petition; needs to be filed w/in 2 yrs of principals

asylum/refugee grant.
GeneralAsylum&Nonrefoulment.

INA 101(a)(42). Refugee =

outside home country. (a) person who is

outside country of nationality/last residence (if no nationality)

AND unable/unwilling to return to that country

AND unable/unwilling to avail self of that countrys protection

BECAUSE OF

persecution OR well-founded fear of persecution

on account of race, religion, nationality, membership in a particular social

group, or political opinion

OR w/in home country. (b)

person who is

inside country of nationality/last residence (if no nationality)

AND prosecuted OR well-founded fear of prosecution

on account of race, religion, nationality, membership in a particular social

group, or political opinion

NOT a person who persecuted others on account of race, religion, nationality,

membership in a particular social group, or political opinion.

the following are deemed to have been persecuted // well-founded fear of

persecution on acct of political opinion.

those who

have been forced to abort OR involuntarily sterilized

OR persecuted for

failure/refusal to abort/get sterilized

OR other resistance to coercive population control program

those who have a well founded fear that

s/he will be forced to undergo such a procedure

OR will be subject to persecution for such failure/refusal/resistance

Refugees are required by law to apply for LPR status 1 yr after entering the US w/
refugee status; asylees become eligible to apply for LPR status w/in 1 yr after being
granted asylum, but are not reqd to do so.

UNLESS APPLICANT CANNOT LIVE IN ANY REGION/CITY/PLACE IN HOME COUNTRY

CANNOT BE GRANTED ASYLUM--so must show that whatever the issue is, that its
nation wide.
RemediesavailabletorefugeeswhovealreadyreachedUS&seekprotectionfrom
48
persecution:

Asylum ; permits person to remain in US at least temporarily and in most cases

permanently. INA 208.

Withholding of removal ; or Nonrefoulment; prohibits forcible return to the country of

persecution, but not to third countries. INA 241(b)(3). Higher burden of proof than
asylum.
Refugeeprocedures.

Each year, President designates a certain number for certain geographic areas--must
still, as individuals, meet refugee requirements.

Apply overseas to DHS officer.

DHS officer reviews case & considers designated refugee categories.

Must have an individual or voluntary agency sponsor individual & provide assurance
person will have a job and housing after arrival.

Must not meet any of the grounds of inadmissibility--note, these are a little more
relaxed for refugees.

Public charge, labor certification, & visa documents -->not required.

Other grounds may be waived for humanitarian reasons, to ensure family unity, or in
the public interest-- except for controlled substance traffickers, Nazis, & those
inadmissible for security, foreign policy, or terrorism reasons.

Once individual is issued a travel document, s/he has 4 months to come to the US to
seek admission.

Upon admission, refugee receives work authorization.

May apply after 1 year for LPR status.

Asylumprocedures.

No quotas.
a. Two Prongs
Discretionary AG MAY grant
Alien bears burden of proving that a favorable exercise of discretion is warranted
Factors
Totality of circumstances!
Actions when alien flees other countries
Age and health of applicant
Family members in the US
Internal relocation
If alien tried to commit fraud in the system
Use of US passports is the WORST type of immigration fraud
Client should build up good factors
Pay taxes on time
Put kids in school
Stay out of CJ system
Standard is well-founded fear persecution [SUBJECTIVE]
Easier to meet than withholding of removal
One can have a WFF of an event happening when there is less than a 50% chance of
the occurrence taking place
On account of (aka because NEXUS NEEDED)
Race
Religion
Nationality
Membership in a particular social group
Political opinion
49
Testimony must be
Credible, persuasive, specific
Problems may arise because clients dont like to talk about it
a. More protections
Employment authorization
Can bring immediate family members to US
Access to some public assistance
v Routine mechanism for adjusting to LPR after one year in US
Must remain in US during this year
b. One year deadline
Exceptions apply
Changed circumstances
Purpose
Should be imminent fear
c. Termination
Can happen if changed circumstances @ adjustment interview
Extremely rare
A person seeking asylum at the border:

Prescreened in the expedited removal process.

Asylum officer will determine whether person has a credible fear of persecution.

If A.O. believes this--> Case set for hearing before an IJ.

If A.O. does not believe this-->Person may request review by an IJ on the question of
credible fear.

If IJ determines person does have a credible fear-->Case set for full hearing of the claim

If IJ determines person does not have a credible fear-->No further administrative or

judicial review.
A person seeking asylum from within the US.
Who is not in removal proceedings: AFFIRMATIVE ASYLUM

Submit an affirmative application for asylum to USCIS (not EOIR).

Non-adversarial interview w/ A.O.

Applicant has right to counsel; may submit affidavits of witnesses & other
supporting docs.

An A.O. reviews application, and either:

Grants asylum

Does not grant asylum--> Case referred for institution of removal proceedings.

May renew application for asylum de novo before immigration judge.

Judges decision subject to BIA appeal & judicial review.

Who is in removal proceedings: DEFENSIVE ASYLUM.

Submit a defensive claim for asylum & withholding of removal.

Kids:

Child still a child even if >21 y/o as long as parents file I-589 asylum petition before
child turns 21 y/o even if final granting took place after kid turned 21 y/o, child can
adjust to GC status and get a work permit in b/w.

Kid shouldnt get married or get pregg--1 instance where if she has an illiget kid, kid
cant bring kid in w/ kids grandmamas case.
PersecutionorFearofPersecution.
50

INA 101(a)(42). Refugee status requires persecution OR a well-founded fear of

persecution.

If individual has not suffered persecution himself, must be able to demonstrate a well-
founded fear of persecution upon his return--->thus, even if the person had a reasonable
fear upon his exit from that country-- must be able to show that those circumstances still
exist.

Matter of Acosta (1985). El Salvador taxi co-op; threatened by anti-govt. gorillas (his
friends & coworkers were killed) & disfavored by the government. -->guerrillas basically
said the taxi company was too capitalistic & Acosta believes govt. thought it was too
socialistic.

Did individual suffer persecution?

Generally, harsh conditions shared by many other persons did not amount to
persecution.

Since no persecution, does individual have a well-founded fear of persecution?

1) alien must have a fear of persecution

Ct finds Acosta did fear persecution.

2) Fear must be well-founded

For Acostas fear to be well-founded -- must show

(1) he possesses characteristics the government or the guerrillas seek to overcome

by means of punishment of some sort

(2) the govt. or the guerrillas are aware or could easily become aware that he
possesses these characteristics

(3) the govt. or the guerrillas have the capability of punishing him

& (4) the govt. and the guerrillas have the inclination to punish him.

** fear of punishment from govt. unfounded-- not based on his personal

experiences or any other events--just a subjective impression.

**even so, the conditions in El Salvador have CHANGED SIGNIFICANTLY since he

left-- he couldnt work as a taxi driver anymore--- and no proof that the guerrillas
would continue to attack after the people stopped working at the company.. &
guerrillas are much weaker.

3) Persecution feared must be on account of race, religion, nationality, membership in

a particular social group, or political opinion

& 4) alien must be unable or unwilling to return to country of nationality or to country

in which he last habitually resided b/c of persecution or his well-founded fear of
persecution.

**must be able to show that the threat or persecution persists country wide-- Acosta
didnt show that he would be persecuted if he moved to a new city.

A person who has suffered persecution & is, as a result, unwilling to return, qualifies
as a refugee even if a change in conditions has eliminated any well-founded fear of
future persecution.
OnAccountofRace,Religion,Nationality,MembershipinaParticularSocial
Group,orPoliticalOpinion.
Race, Religion, Nationality.
Political Opinion.

INS v. Elias Zacarias. (1992-- Scalia.) Guatemala; does a guerrilla organizations attempt
to coerce a person into performing military service = persecution on account of...political
opinion under 101(a)(42)? No; refusing to join is not in itself a political position; must
51
show hed be persecuted b/c of political opinion, not b/c of refusal to fight. &&&& no
indication that the guerillas mistakenly BELIEVED that petitioners refusal was for
political reasons. Stevens dissent-- not taking a position is a political opinion.

Imputed political opinion doctrine.

Neutrality as political opinion
Refugees sur place. Applicants who were not refugees when they left home, but who
become refugees while abroad.

Situations where you see this:

Violated home countrys emigration laws and will face severe punishment upon return.

Once leaving country of origin, applicant began to express political views or to engage in
political associations that could lead to persecution upon return.
ParticularSocialGroup.
General Definition of Social Group.

Immutability test. Persecution on account of membership in a particular social group =

persecution directed towards an individual who is a member of a group of persons all of
whom share a common, immutable characteristic. Whatever the characteristic is
(which depends on case by case basis), it must be immutable-- one that members of
the group either cannot change, or should not be required to change b/c it is
fundamental to their identities or consciences.

Matter of Acosta (same as above).

Here, the 2 characteristics defining petitioners group: (1) being a taxi driver & (2)
refusing to participate in guerrilla-sponsored work stoppages. Neither is immutable b/c
they could have just changed jobs or cooperated with the guerrillas. While this might
suck, the internationally accepted concept of a refugee doesnt guarantee an individual
to work in the job of his choice.

Family-related social groups

Applicant alleges that his/her own family constitutes a social group.

Applicant alleges that the family members of similarly situated others can comprise a
social group.
Sexual Orientation & Social Group.

Matter of Toboso-Alfonso (1990). Applicant asserts that if he returns to Cuba, he will be

persecuted b/c hes gay; says the Cuban govt. has it documented that hes gay, and
constantly sends him notices to appear @ police station, get a physical exam, and
ultimately this sometimes leads to him being detained in police stations for days at a
time w/ no charge. Once, when he missed 1 day of work, he was sentenced to 60 days
at a forced labor camp for being gay. Granted asylum; stressed fact that he wasnt
being persecuted for any ACTS-- just the homosexual label-- and that apart from
anything else-- the official legal homosexual label could not be changed, making it
immutable.
Gender & Social Group

FGM is grounds for asylum.

Matter of Kasinga (1996). FGM =\ .... Forced to enter polygamous marriage in Togo;
fear of imminent FGM; fled first to Ghana, but feared husband and aunt would find her,
so she went to Germany. In Germany, a Nigerian guy gave her his sisters passport so
she could come to the US. As soon as she arrived at the border--didnt use fake
passport-- filed for asylum.
52

Defined group as young women of the Tchamba-Kunsuntu Tribe who have not had
FGM...and who oppose the practice

Domestic VIolence & the Problem of the Non-State Actor.

On Account of--Nexus Requirement

Islam v. Secretary of State for the Home Department

MethodsofProof.
MaterialFacts.
Membership in a persecuted group.
Past persecution.
RelevantEvidence.
The applicants own testimony.

REAL ID Act.
ExceptionstoEligibility.

208(b)(2). (A) In general.

(i) participated in persecution of others on account of race, religion, nationality,

membership in a particular social group, or political opinion

(ii) convicted by final judgment of particularly serious crime & thus danger to US
community

aggrevated felony conviction = particularly serious crime conviction

(iii) committed serious nonpolitical crime out of US prior to arrival in US

(iv) reasonable grounds to regard as danger to US security

(v) terrorist activity under 213(a)(3)(B)(i)(I-VI) or 237(a)(4)(B) unless AG determines

not a danger [as per 213(a)(3)(B)(i)(VI).

(vi) firm resettlement

FirmResettlement.INA207(c)(1).

(vi) firm resettlement

US law permits DHS to remove asylum applicants to 3d countries in which they are not
firmly resettled.

One is firmly resettled in another country if, before arriving in the US, the person
received an offer to resettle permanently in that country.

No firm resettlement if person's entry into the 3d country was a necessary

consequence of his flight from prosecution, s/he remained in that country only as
long as was necessary to arrange onward travel, & significant ties were not
established. 8 CFR 208.15(a).

Also, no firm resettlement if conditions attached to residence are so substantially &

consciously restricted, that in fact the person was not resettled. 208.15(b).

Vs. safe 2d country [a.k.a. safe country of asylum]. Under IIRIRA, US law permits
DHS to remove asylum applicants even to 3d countries in which they are not firmly
resettled; there must be a bilateral or multilateral agreement, and certain minimum
safeguards must be resent. 208(a)(2).
PastWrongdoing.
53

Three 208(b)(2) Exceptions.

Persecution participant. (i) participated in persecution of others on account of race,

religion, nationality, membership in a particular social group, or political opinion

Coerced persecution assistance?

Particularly serious crime. (ii) convicted by final judgment of particularly serious

crime & thus danger to US community

aggravated felony conviction = particularly serious crime conviction

Serious nonpolitical crime. (iii) committed serious nonpolitical crime out of US prior
to arrival in US

AG can designate certain crimes as meeting (ii), (iii) criteria.

A particularly serious crime automatically makes the person a danger to the

community.

No need for separate determination [(1) PSC? (2) danger to comm?]

Matter of Carballe. The seriousness of a crime will have to be judged by considering

the nature of the conviction, the circumstances and underlying facts of the conviction,
the sentence imposed, & whether the type and circumstances of the crime indicate the
alien will be a danger to the community. If YES-- then the answer to is alien a danger
to community of US is YES too--by default. Need not make separate determination.

For both the serious nonpolitical crime exception & for the particularly serious
crime exception, the level of the crimes seriousness depends solely on the nature
of the crime.

Vs. UNHCR balancing test. Under the 1951 UNHCR convention, the nature of the
offense is balanced against the degree of persecution feared; the more severe the
persecution that the applicant fears, the graver the crime must be before it can be
considered serious. In the US though we dont look at circumstances extraneous to
the conviction in question.

Aggravated felony: asylum vs. w/holding removal. An aggravated felony conviction

alone precludes asylum, & an aggravated felony conviction w/ a 5-yr sentence imposed
bars w/holding of removal.
DiscretioninAsylumCases.

(iv) reasonable grounds to regard as danger to US security

(v) terrorist activity under 213(a)(3)(B)(i)(I-VI) or 237(a)(4)(B) unless AG determines not

a danger [as per 213(a)(3)(B)(i)(VI)].
Procedure.
Threeavenuesforapplyingforasylum:

(1) upon arrival @ airport/etc.

(2) after arrival-- typically w/in 1 yr of admission

(3) during the removal process as a defense to removal-- typically w/in 1 yr of

admission
Applying@border:

Asylum officer makes summary determination whether non-citizen has credible fear
of persecution

If AO determines non-citizen doesnt have credible fear of persecution, AO orders non-

citizen to be removed.

Non-citizen can request review by immigration jude.

Detained during these proceedings

54

No other administrative review unless non-citizen testifies under oath to have been
lawfully admitted as an LPR, refugee, or asylee.

If AO determines no-citizen does have credible fear, placed in removal proceedings &
then is permitted to file an application for asylum w/ the immigration judge.
Filingdeadlines.

STRICT. w/in 1 year of arrival to U.S. INA 208(a)(2)(B).

must prove by clear & convincing evidence that arrived w/in the yr

2 exceptions: INA 208(a)(2)(D).

1) changed circumstances which materially affect the applicant's eligibility for

asylum

2) extraordinary circumstances relating to the delay in filing.

extraordinary circumstances = events or factors directly related to the failure to

meet the 1-yr deadline. 8 CFR 208.4(a)(5) E.g.: physical, mental, & legal
disabilities, & occasionally ineffective assistance of counsel.

if no clear & convincing evidence that applicant arrived during the past yr &
neither exception applies, then asylum denial = final; no judicial review. INA
208(a)(3).

Problem: Genuine refugees are escaping traumatizing persecution-- their first goals are
going to be finding friends or family & food and shelter, etc. Many dont speak English.
Many dont know about asylum procedures---most ppl need an atty to fill out asylum
app but most refugees dont have the $$ for one.
Safecountriesoforigin

Some European govts have lists of safe countries that neither practice the kinds of
persecution mentioned in the CAT, nor return refugees to countries that will persecute
them. Lists used in 2 ways:

1) safe third country restriction

2) safe country of origin constraint.

asylum complaints from countries that are on the safe list are presumed
ineligible.
WithholdingofRemoval.241(b)(3)(A).

AG may not remove a person to a country where his life or freedom would be
threatened b/c of the persons race, religion, nationality, membership in a particuar
social group, or political opinion.

Applicant must show that it is more likely than not that he would be persecuted if
removed to home country.

VERSUS Asylum:

NOT discretionary

Higher standard

Does not allow a person to apply for a green card--it only prevents deportation to
the designated country

Presumption of future threat to life or freedom applies if applicant establishes past

persecution.

Bars:

Convicted of a particularly serious crime

Participation in persecution of others

Committed a serious nonpolitical offense outside of the US

Terrorism related grounds or is a danger to the US

55
a. Two prongs
Mandatory relief
Life or liberty would be threatened on account of (aka because NEXUS NEEDED)
Race
Religion
Nationality
Membership in a particular social group
Political opinion
Standard is Persecution is more likely than not [OBJECTIVE]
Harder to meet than asylum / higher burden
b. Less protections
Generally get work authorizations
Sometimes get public assistance
May not bring immediate relatives to US
v Worse things remain in legal limbo for decades
No provision to get LPR status
c. Useful if
you miss one year deadline for asylum
have criminal convictions that preclude you from asylum
look at the ACTUAL sentence, not just what served
use IDENT
BeyondProsecution>ConventionAgainstTorture.

Timeline.

1984. UN adopted Convention against Torture & Other Cruel, Inhuman or Degrading
Treatment or Punishment.

1990. US Senate ratified CAT w/ modifications.

1998/9. Congress passed legal mechanisms so CAT could actually be utilized.

Not self-executing
HAIDERVHOLDER(6THCIR2010).
TherecordcompelledtheconclusionthattheharminflicteduponthealienbythepoliceinAlgeria
rosetothelevelofpersecution,forpurposesofeligibilityforwithholdingofremoval;alienwasrepeatedly
stopped,searched,andaccusedofbeingaterroristbypolice,andthepoliceconfiscatedhisproperty,
physicallyassaultedhimbypunchinghimfourtimesintheearandstrikinghimwithagunthreetimesin
hisbackandshoulder,anddetainedhimforfivehours,whileinterrogatinghimaboutallegedterrorist
connectionsandstrikinghimrepeatedlyinthebackwithagun,andthreeseparatetimesthealiensuffered
sexualabuseandhumiliationatthehandsofthepolice,twiceinpublicplaces.ImmigrationandNationality
Act,241(b)(3)(A),8U.S.C.A.1231(b)(3)(A).
** General policy concerns:
56
1) protect kids.!
Cspa
Child citizenship act
Adam walsh act - if ur a convicted child offender -- criminal acts, esp against a kid-- esp
sex/murder/etc. U cant file an i-130 for someone else unless DHS grants a waiver. DHS has sole and
unreviewable discretion.
2) get highly educated and world reknowned entertainers, scientists, artists, and entrepreneurs w/ or w/o
ERs
EB 11, NIW
3) Balance
Eg Amnesty with Er sanctions in 90s
(1)Intro.........................................................................................................................................1
Historical ..................................................................................................................................1
Government Agencies .............................................................................................................3
Sources of Federal Immigration Power......................................................................................4
57
Congress may make rules as to aliens that would be unacceptable if applied to citizens........4
Acquiring Citizenship.................................................................................................................5
Undocumented Aliens ..............................................................................................................7
Greencard scenarios ..............................................................................................................7
(2)Immigrant Visas ....................................................................................................................10
Family Immigration ................................................................................................................10
Employment-Based Immigration ............................................................................................12
(3)Non-Immigrant Visas ............................................................................................................17
Entering the US as a Nonimmigrant; generally.......................................................................17
Nonimmigrant Visa Categories ...............................................................................................19
Crime victim visas intent is to help govt solve issue. ..........................................................24
(4)Exclusion Grounds & Waivers................................................................................................25
Grounds Related to Immigration Control ................................................................................25
Political and National Security Grounds..................................................................................27
Criminal Grounds....................................................................................................................27
Economic Grounds..................................................................................................................28
Public Health and Morals.........................................................................................................28
(5)Admission Procedure.............................................................................................................29
For those who seek certain statuses--> .................................................................................29
Visa petition ...........................................................................................................................29
(6)Removal Grounds..................................................................................................................34
Admission. 101(a)(13)(A); admission is a lawful entry of the alien into the U.S. after
inspection and authorization by an immigration officer. .....................................................34
Relief from Removal ...............................................................................................................37
(7)Removal Procedure................................................................................................................44
Evidence and Proof - Admissibility of Evidence ......................................................................44
Motions to Reopen or Reconsider............................................................................................44
Judicial Review of Removal Orders - Petitions for Review ......................................................45
Exceptions to Usual Removing Procedures.............................................................................46
(9)Refugees & Asylum................................................................................................................48
General- Asylum & Nonrefoulment. .......................................................................................48
Persecution or Fear of Persecution..........................................................................................50
On Account of Race, Religion, Nationality, Membership in a Particular Social Group, or
Political Opinion......................................................................................................................51
Methods of Proof. ...................................................................................................................53
Exceptions to Eligibility...........................................................................................................53
Discretion in Asylum Cases.....................................................................................................54
Procedure................................................................................................................................54
Beyond Prosecution --> Convention Against Torture. ............................................................56
58