IMMIGRATION OVERVIEW Brown Fall 2011

I. Citizens are NOT subject to Immigration Control a. Can travel freely b. Can break U.S. Laws without fear of effect on immigration status Sources of Immigration Law a. Immigration and Nationality Act (INA) i. Federal Statutory Law b. Federal Court Precedent i. SCOTUS ii. Federal Courts of Appeals (Circuit Courts) iii. Board of Immigration Appeals (BIA) 1. Administrative Appeal Court under DOJ c. INA and Immigration Agency Regulations in the Code of Federal Regulations i. Established by federal agencies concerned with Immigration Persons a. Immigrant i. LPR Alien admitted for permanent residence ii. Immigrant Intent Remain PERMANENTLY in the U.S. iii. Eligible to naturalize after several years of residence iv. Major Statutory Categories 1. Family Sponsored 2. Employment Based 3. Diversity b. Non-Immigrant i. Alien admitted for temporary, specific purpose ii. Non-Immigrant Intent Remain TEMPORARILY in the U.S. and then leave iii. Major Categories 1. Tourist (B-2) 2. Student (F-1, J-1) c. Undocumented Immigrant i. Two ways of becoming undocumented 1. Entered illegally (Without Inspection at the Border) 2. Overstayed Non-Immigrant Visa (Went out of status) Immigration Status a. Only Applicable to Aliens b. Category of Admission i. Admission Inadmissibility 1. Even if you qualify for immigrant or non-immigrant category, you must also be admissible a. You CANNOT fall under any inadmissibility grounds - INA 212(a) i. Consular offices check abroad and officers check at border ii. Removal Deportability 1. To Stay in the U.S. as an alien, you must NOT ONLY maintain legal immigration status, but also AVOID falling under any deportability grounds INA 237 Who Enforces Immigration Law?

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Federal Government i. Different Federal Agencies regulate different steps and spheres of immigration 1. State Department a. Regulates and enforces immigration laws overseas for foreign nationals trying to enter the U.S. i. DHS retains right to review decisions of the consular officers b. Within the U.S. it oversees educational exchange programs and refugee affairs 2. DHS a. Enforces and regulates immigration within the U.S. b. USCIS United States Citizenship and Immigration Service i. Administratively regulates Non-Citizens with issues such as visa application processing c. ICE Immigrations and Customs Enforcement i. Enforcement of immigration laws and regulations within U.S. d. CBP Customs and Border Patrol i. Immigration Enforcement along U.S. borders 3. DOL a. Regulates employment related immigration 4. HHS a. Regulates public health issues related to immigration and refugee resettlement through two departments i. Office of Refugee Resettlement 1. Also responsible for unaccompanied minors ii. Public Health Service 5. DOJ a. Through EOIR (Executive Office of Immigration Review) adjudicates cases involving i. Aliens right to remain in US (Removal Hearings) ii. Unauthorized hiring of aliens iii. Employment Discrimination against aliens b. Three Units of EOIR i. OCIJ Office of the Chief Immigration Judge 1. Oversees immigration judges who adjudicate removal hearings 2. Decisions NOT BINDING precedent ii. BIA Board of Immigration Appeals 1. Hears appeals from IJs and USCIS decisions 2. Decisions are BINDING & PRECEDENT 3. Judicial Review of BIA decisions can be done by: a. Federal Circuit Courts of Appeals b. SCOTUS iii. OCAHO Office of the Chief Administrative Hearing Officer 1. Adjudicates unauthorized employment of aliens and job discrimination against aliens Legal Terminology

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INA Immigration and Nationality Act (1952) i. Title 8 of U.S. Code and regulations in 8 CFR 1. Except regulations for DOS in 22 CFR, DOL in 20 CFR, and DHS Organization in 6 CFR b. Alien Any non-citizen of the U.S. Changes in Immigration Policy Through Time a. 1940-2003 AG responsible for Immigration i. Created INS within DOJ 1. Functions of INS Included a. Law enforcement, inspection b. Prosecution, detention of non-citizens c. Applications for immigration benefits b. 9/11 led to Homeland Security Act (HSA) and DHS i. HAS dissolved INS and created DHS Nationality a. A U.S. Citizen = U.S. National i. EXCEPT Natives of American Samoa and Swains Island b. Three Ways of Becoming a Citizen i. Being Born in U.S. soil ii. Being born abroad to 1 or 2 Citizenship parents 1. Exceptions exist depending on physical presence of citizen parents in U.S. and marital status iii. Naturalizing 1. LPR for 5 years 2. Pass a literacy and citizenship test 3. Must show attachment to Constitutional Principles of U.S. and good moral character c. Losing U.S. Citizenship i. ANY citizen can voluntarily give up citizenship through expatration ii. Naturalized citizens can lose citizenship if defects found in original order 1. Applications for Immigration benefits on path to citizenship (visas, permanent residency) and includes fraud d. Legal Consequences of Citizenship i. Can be transmitted OR can sponsor family members for admission into the U.S. ii. Voting and Political Rights iii. Tax, Military, and Jury Obligations iv. Protection against Extradition for Crime v. Eligibility for 1. Government Funded Programs 2. Government Jobs 3. Certain Occupations vi. Freedom of Movement Admission of Non-Citizens a. Non-Immigrants (Temporary Entrants) Tourists, Students, Temp Workers i. NO QUOTAS ii. Two Major Requirements a.

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1. Fall w/in a statutory category (for non-immigrants most require to leave U.S.) 2. NOT fall w/in inadmissibility grounds OR qualify under waiver iii. Most non-immigrants apply for a visa directly with consulate abroad 1. Once admitted through USCIS they can sometimes a. Alter the length of stay b. Change status to other non-immigrant category c. Adjust status to immigrant (LPR) b. Immigrants i. Two Categories 1. LPR 2. Undocumented Immigrants that were not lawfully admitted ii. LPRs Rights 1. Reside permanently in the U.S. unless they are found removable 2. Work in the U.S. iii. Must meet same major requirements as Non-Immigrants 1. Three Major Statutory Categories a. Family Sponsored b. Employment Based c. Diversity 2. All Three Categories divided into preferences! a. Immigrants can only migrate if they qualify under preference category iv. Quotas Limit 1. Overall number to admit for category annually worldwide 2. Number to admit from a single country annually v. QUOTAS EXCEPTIONS 1. Immediate relatives of U.S. Citizens are unlimited 2. Refugees are admitted under a different quota system c. Asylees & Refugees i. Asylees Refugees seeking admission from within the U.S. or at a port of entry ii. Refugees Refugees who apply from outside the U.S. d. Adjustment of Status i. Admission as an Immigrant (LPR) from w/in the U.S. Expulsion a. Deportability Grounds somewhat similar to inadmissibility grounds i. Used to be called Deportation and now called REMOVAL b. Most common types of Removal i. Overstay of Non-Immigrant Visa ii. Violation of terms of Non-Immigrant Visa iii. Never Admitted into the U.S. iv. Criminal Conviction unrelated to immigration system c. Means of Removal i. Informal Voluntary Departure ii. Formal Removal Hearing 1. Advantages of going to a Removal Hearing a. Can determine eligibility for forms of discretionary relief from removal (asylum, voluntary departure)

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Can be appealed to BIA by alien (NOTE ICE can also appeal) Barring some exceptions, alien can also obtain judicial review of BIA decision in Federal Circuit Courts or even SCOTUS.

Other Sanctions a. IRCA Immigration Reform and Control Act of 1986 i. Punishes employers for violation immigration laws 1. Knowingly employing aliens not authorized to work 2. Hiring without verifying immigration paperwork ii. Punishes employers for discriminating against immigrants or non-immigrants 1. On basis of National Origin 2. On basis of Citizenship Status b. Related Criminal Offenses i. Illegal Entry, Transporting, Smuggling, Harboring unlawful aliens c. Civil penalties for commercial carriers who transport improperly documented aliens

IMMIGRATION & THE CONSTITUTION FEDERAL POWER

I. Plenary Power a. Congress has PLENARY powers over exclusion and removal or aliens i. Plenary FINAL, NO JUDICIAL REVIEW 1. Special Judicial Restraint exercised by SCOTUS a. SCOTUS Over no conceivable subject is the legislative power of Congress more complete ii. Plenary Powers of Congress Include: 1. Discrimination on race, gender, legitimacy 2. Restriction of political speech 3. Disregard procedural due process when excluding aliens iii. Created by leap from Federalism cases to cases involving individual rights 1. SCOTUS struck down state attempts to exclude aliens a. Constitution only gave this power to Federal Government b. Court relied on Federalism argument to uphold federal exclusion statute as valid exercise of power to regulate interstate commerce c. Court then found exclusion power inherent in national sovereignty NOT dependent on any constitutional grant d. Court adopted PLENARY POWER DOCTRINE b. Plenary Power Doctrine i. Congressional exercise of exclusion power NOT reviewable for compliance with constitutionally protected individual rights 1. Court today has both extended and qualified various aspects of exclusionary power ii. Harisiades v. Shaughnessy (1952 Class 4) 1. Defenses a. Permanent Residency confers VESTED RIGHT equal to that of citizenship to remain in country and to Constitutional Protection

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If power to deport the defendants exist, it cannot be found to be a reasonable exercise of that power and it violates substantive due process 2. Courts Holding a. Vested Right Defense i. LPRs failed to naturalize and thus, as foreign citizens, retained rights under international law that U.S. Citizens do not have 1. Diplomatic Protection of Home Country 2. Protection from Conscription for Military Service 3. Treaty Privileges b. Due Process i. Exercise of power to deport under prohibition on Communist membership reasonable 1. Judiciary cant decide whom to exclude because this is a POLITICAL QUESTION 2. US Citizens are sent out of the country based on the threat posed by communism and LPRs dont deserve greater protection from hardship than citizens st c. 1 Amendment Argument i. The First Amendment does not protect speech inciting violence and government overthrow 3. Dissent (Douglas & Black) a. Reject Font Yue Ting (1893) giving Congress absolute power over deportation i. Right to Remain should be a Due Process Right of LPRs Fiallo v. Bell (1977 Class 4) 1. INA did not permit immigration benefits to be conferred on alien children of US Citizen fathers born out of wedlock a. Fathers and children argued this violated equal protection 2. Court stated that they had previously accepted limited judicial responsibility under the Constitution even with respect to Congressional power to regulate admission and exclusion of aliens (Limited Judicial Review Power over Immigration) Nguyen v. INS (2001 Class 4) 1. Court found plenary Congressional power allowed Congress to discriminate against fathers in certain laws that established citizenship by descent a. Potential for paternity fraud b. Mother carries and gives birth to the child and more likely to create close bond with the child th Jean v. Nelson (11 Cir 1984 Class 4) 1. Aliens in exclusion proceedings have NO Constitutional rights that pertain to immigration, even when challenging detention 7 Rationales for Doctrine 1. Political Question b/c foreign affairs implicated 2. Alien a guest, so presence is a privilege NOT a right

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Constitutional protection is an unfair advantage for aliens already protected by international law 4. Aliens lack allegiance necessary for Constitutional protection 5. Inherent sovereign source of Congress plenary power protects its exercise from constitutional review 6. Alien seeking admission to U.S. is legally outside the U.S. 7. Removal of aliens is poetic justice for U.S. citizens sent abroad to fight Communism (DOESNT APPLY ANYMORE) Three Building Blocks of Plenary Congressional Power OVER IMMIGRATION i. Chinese Exclusion Case Inherent Federal Power to exclude aliens ii. Ekiu Rejection of Due Process Limits on exercise of Federal Power to exclude aliens iii. Fong Yue Ting Extended principles of inherent Federal Power and rejection of due process limits to deportation CRACKS ON THE PLENARY POWER DOCTRINE nd th i. Francis v. INS (2 Cir 1976 5 Class) 1. 10 years after admission as an LPR, Francis was convicted of a marijuana possession and put in deportation proceedings a. Applied for discretionary relief allowing AG to grant discretionary relief to deportable alien who had left the U.S. and was then applying for admission to return i. Denied because he had never departed, but then Francis petitioned for Court of Appeals review 2. Appeals court applied Fiallo rationale of limited judicial review for the rationality of the provision a. Rational Basis Test i. Court found NO rationality in provision that gave relief solely on basis of physical absence from UF Qualifications to the Plenary Power Doctrine i. THE LAST THING YOU WANT TO ARGUE IS THE CONSTITUTIONAL BASIS FOR A CASE ii. Avoidance 1. Courts will often interpret immigration statutes favorably to aliens in order to a. Avoid having to decide Constitutional questions involving the statute AND b. Escape the harsh results of the Plenary Power Doctrine iii. Habeas Corpus 1. Courts formerly recognized aliens rights to judicial review of removal orders through writs of habeas corpus a. HOWEVER, Real ID Act of 2005 106(a)(2) i. It amended INA to bar judicial review of removal orders via habeas corpus means 2. Judicial review of removal orders restricted to Federal Appellate Review a. Procedures in INA 242(b)(9) & (g) iv. Procedural Due Process 1. Clearly required in expulsion cases and most cases involving exclusion of returning LPRs

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EX Plasencia LPRs have procedural due process rights for review of admission denials 2. Lower courts classify due process challenges as procedural (even when they may be substantive) in order to avoid plenary power doctrine. Rational Basis Test 1. Lower courts often translate plenary power doctrine into a rational basis test, even when equal protection or substantive due process is involved 2. EX Francis Analyzed Rational Basis for INA discretionary relief provision only applicable to LPRs who had left the US 3. EX Fiallo Analyzed rational basis for INA provision denying immigration benefits to out of wedlock alien children born to U.S. citizen fathers First Amendment 1. Some authority states that immigration statutes are subject to same First Amendment as other statutes, but there is NO CONCLUSIVE authority st a. EX SCOTUS applied 1 Amendment to INA provisions in Harisiades to find deportable speech NOT PROTECTED under Amendment. 2. BUT!! st a. SCOTUS may have restricted 1 Amendment by holding aliens barred from bringing selective prosecution claims (Reno) Separation of Powers 1. Separation of Powers challenges may be somewhat less vulnerable to plenary power doctrine than individual rights challenges 2. INS v. Chadha a. It was unconstitutional for Congress to legislate outside of normal two-house + presidential approval process. Prolonged Detention 1. Courts have shown willingness to consider Constitutional limitations on plenary power doctrine where prolonged detention is challenged 2. Zadvydas v. Davis (2001 Class 5) a. Admitted aliens ordered removed, but cannot be removed to another country, to challenge their detention after 6 months b. To rebut the presumption of unconstitutional detention, government must provide evidence of removal to happen in reasonably foreseeable future th 3. Otherwise indefinite detention would be 5 Amendment/Due Process Violation a. Aliens entitled to due process protections th 4. Clark v. Martinez (2005 5 Class) a. Extends Zadvydas to inadmissible (never admitted) aliens 5. BUT!! th a. Demore v. Hyung Joon Kim (2003 5 Class) i. Mandatory detention for entire duration of removal proceedings was upheld as Constitutional ii. For those who pose danger to society or flight risk INA 236(c) b. Substantive due process NOT violated by detention with definite termination point a.

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Plenary Power Doctrine LITE i. Theory in which SCOTUS would confirm that even immigration statutes are subject to Constitutional restraints and deny that the Plenary Power Doctrine ever existed ii. INSTEAD 1. The Plenary Power Doctrine would have been only a reminder that immigration statutes reflect sensitive policy judgments by the political branches Sources of the Federal Immigration Power a. Enumerated Powers i. Commerce Clause (U.S. Const. Article I, 8, cl. 3) 1. Congress may regulate commerce with foreign nations a. Passenger Cases & Henderson v. Mayor of NY (1849 & 1976) i. Invalidated state attempts to regulate immigration by taxing arriving passenger ships on grounds that it violated federal power to regulate commerce with foreign nations 1. 4 Judge Dissent on whether commerce clause extended to people in 1849 disappeared by 1876! b. Head Money Cases (1884) i. Upheld constitutionality of federal statute regulating immigration as a valid exercise of commerce clause power 2. Congressional power to regulate activities substantially affecting interstate commerce EVEN if effect is indirect (Wickard v. Filburn) a. Economic effects of immigration on interstate commerce ii. The Migration or Importation Clause (U.S. Const. Article I, 9, cl. 1) 1. Congress can prohibit migration or importation of persons beginning in 1808 (Reference to Slave Trade) iii. The Naturalization Clause (U.S. Const. Article I, 8, cl. 4) 1. Congress is authorized to establish a uniform rule of naturalization a. Taney J. dissenting in Passenger Cases found that power was necessary to prevent States from giving citizenship on their own and interfering with privileges and immunities clause 2. Limited to citizenship, NOT extended to immigration regulation INA 316 iv. The War Clause (U.S. Const. Article 1, 8, cl. 11) 1. Congress has the power to declare war a. Daniel J. dissenting in Passenger Cases found that it was limited to regulation of alien enemies b. Implied Powers i. Chinese Exclusion Case (1889) 1. Congress passed Chinese Exclusion Act in 1882 barring future immigration, but allowed Chinese in the country since 1880 to receive certificates giving them right to return to the U.S. if they left the country a. Certificates revoked in 1888 when Ping was away and he was not allowed to enter the U.S. 2. ISSUE Does statute revoking validity of Pings immigration certificate violate US-China treaty, and does revocation of Pings right to land violate Constitution? a. Treaty Issue

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i. Last action in time controls, therefore, the statute nullifies contradictory points of the US-China treaty Constitutional Issue i. Federal power to revoke right to land drawn from 1. Commerce Clause (Foreign Affairs Power) 2. National Security Interest 3. Sovereignty/Independence (U.S. not subject to foreign control over entry into it)

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ii. Framers Intent 1. Did Framers mean to vest immigration regulation in Federal Government or States? a. Uniformity Strong policy reason for Federal b. Franklin and Continental Congress urged States to pass laws restricting immigration of criminals c. It is UNLIKELY that the Framers omitted specific grant of immigration power to Federal Government because they thought it too obvious Beyond the Constitution a. Curtiss-Wrights (1936) Extra-Constitutional Theory of Federal Power over External Affairs i. Sovereignty passed from Britain to U.S. at independence to States in their collective capacity ii. Constitution only intended to reallocate powers States already possessed in individual capacities iii. So ALL sovereign power remained with Federal Government and NO Federal sovereign power dependent on Constitutional grant Residual State Power a. State Preemption by Federal i. Test Compare scope of Federal and State actions b. Two arguments against State regulation of Immigration i. Uniformity (Henderson) ii. Embroilment (Chy Lung v. Freeman) 1. Single state or state official could start quarrel with foreign nation c. What State regulation IS ACCEPTABLE? i. Power to exclude certain classes of undesirable immigrants not expressly prohibited in absence of federal legislation Limits to the Federal Immigration Power a. Individual Rights Limitations i. Appears that SCOTUS is barring any consideration of individual rights limitations in the Federal Exclusionary power on the basis of sovereignty 1. They seem to be making individual rights limitations a political question not open for judicial review b. Due Process Clause i. No person *NOT CITIZEN BUT PERSON+ shall be deprived of life, liberty, or property, without due process of law 1. Liberty Interest a. Those privileges long recognized as essential to the orderly pursuit of happiness by free men

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Property Interest a. Requires a legitimate claim of entitlement not just unilateral expectation AND b. The entitlement must arise from independent legal source outside the Constitution ii. Process due and ELDRIDGE TEST 1. Balance of Factors Test a. Private interest affected by official action b. Risk of erroneous deprivation of interest through procedures used and probable value of any additional/substitute procedural safeguards c. Government interest including function involved and fiscal and administrative burdens posed by additional/substitute procedural safeguards iii. Procedural Due Process in Exclusion Cases 1. Knauff v. Shaughnessy (1950 Class 4) a. Court rejected due process rights/protections for aliens i. Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned 2. Mezei (1953 Class 4) a. Mezei is an entrant alien for constitutional purposes because of his two year absence, marking a clear break in his continuous presence i. Because Mezei was denied admission to U.S. NO RIGHTS are being violated by his continued exclusion on Ellis Island 1. The fact that other countries also deny him is no problem to U.S. b. Dissent i. Mezei is being deprived of liberty interest so he has a procedural due process right to be heard 1. Indefinite confinement has become means of enforcing exclusion, leading to deprivation of liberty 3. Plasencia (1982 Class 4) a. Plasencia could invoke due process clause privileges for review of denial of admission because he was an LPR and his trip was not lengthy iv. What are the practical implications of extending Due Process Rights to ALL entering aliens? 1. Eldridge Test does NOT require full evidentiary hearing, only a process reflective of the financial and administrative costs to the government 2. Aliens must STILL meet substantive requirements of entry First Amendment in Deportation Context i. In Harisiades SCOTUS fond that the First Amendment did NOT apply to the defendants because they had participated in non-protected speech! th ii. Discrmination v. Meese (Cal 1989 5 Class) 1. Aliens found deportable on basis of support for Popular Front for the Liberation of Palestine (PFLP)

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INA 241(a)(6)(D, F, G, H) Prohibited advocating world Communism 2. District Court rejected government contention that plenary power doctrine st overruled a 1 Amendment protection in a deportation context st a. Court applied general 1 Amendment protection test and found INA provisions substantially overbroad st 3. Court held that deportability violated aliens 1 Amendment rights because their support for PFLP didnt amount to inciting imminent lawless action iii. Reno v. American-Arab Anti-Discrimination (1999 Class 5) 1. Same aliens from Meese returned to court at the Federal Level after INS recharged them deportable under different INA provisions a. They claimed selected prosecution because the government was NOT seeking to deport other similarly situated aliens with technical immigration violations 2. IIRAIRA (1996) Restricted judicial review of AG decision to commence proceedings or execute removal order 3. SCOTUS held that deportable aliens NOT entitled to defense of selective prosecution a. Through IIRAIRA provision, Congress intended to protect AGs discretionary authority 4. Decision seems to deny selective prosecution defense even to LPRs iv. Kleindienst v. Mandel (1972 Class 5) 1. Alien was a Marxist Scholar who has barred entry under statutory provision prohibiting those advocating doctrines of world communism st a. Citizens sued on grounds of deprivation of their 1 Amendment rights 2. SCOTUS implicitly held INA inadmissibility statute to be Constitutional a. AG could deny a statutory inadmissibility (exclusion) waiver whenever there was a facially legitimate and bona fide reason for doing so a.

Immigrant Priorities
I. Benefits to LPR Status a. Green Card i. Demonstrates authorization to work 1. Most non-immigrants NOT authorized to work ii. Proof of Permanent Legal Status in US iii. May receive some government benefits b. May NATURALIZE after initial qualifying period Quotas and Preferences a. To be an immigrant you must have positive credentials that fit into one of the admission categories i. Family, Employment, Diversity b. Not enough to merely be free of criminal record or contagious disease c. Immigrants Exempt from General Quotas i. Spouse, parents, and children of U.S. Citizens 1. For parent, citizen must be 21 or older INA 201(b)(2)(A)(i)

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2. Children must be under 21 and unmarried INA 101(b)(1) LPRs returning from temporary visits abroad INA 101(a)(27)(A), 201(b)(1)(A) Certain former U.S. Citizens INA 101(a)(27)(B), 201(b)(1)(A) Children born to LPRs temporarily abroad INA 201(b)(2)(B) Recipients of certain forms of discretionary relief from removal - INA 201(b)(1)(C, D, E) Refugees INA 201(b)(1)(B) 1. But subject to different numerical restrictions vi. Parolees 1. Secretary of HS has discretion to parole alien into the US temporarily INA 212(d)(5) a. Typically used for aliens needing to enter the US for urgent personal reasons or to allow applicants for admission to remain at large while admissibility determination is pending i. Legally parolee remains outside US, not admitted vii. Special Groups admitted ad hoc by Congress INA 201(b)(1)(C) 1. One time, limited number immigrant visas to underrepresented countries 2. Congress has also awarded to aliens coming as part of unusual immigration a. Allowed non immigrant nurses to adjust to relieve nursing shortage Immigrants Subject to Quotas i. Intro to Quotas 1. 1 or 2 caps may be present for a prospective immigrant a. Always an ANNUAL CAP for each category b. In addition, some categories have PER COUNTRY LIMITS 2. In creating caps, Congress decides who should get preference over whom fundamental immigration decision ii. Family Sponsored Immigrants 1. Not as close as immediate relatives INA 203(a) 2. Total annual worldwide limit 480,000 BUT (Take away immediate relatives admitted in the previous year + children born to LPRs temporary abroad) + leftover unused employment-based visas from previous year a. Some parole grants may also reduce the number INA 201(2)(1)(A)(ii) b. If formula results in less than 226,000 it will be automatically bumped up to 226,000 INA 201(c) 3. Immigration Act of 1990 produced new formula and controversial provision subtracting number of immediate relatives admitted from family-based quotes iii. Employment-Based Immigrants 1. Includes certain occupational skills and investors INA 203(b) 2. Total annual worldwide limit 140,000 + any leftover unused familysponsored visas from previous years iv. Diversity Immigrants 1. From countries with low immigration rates to US INA 203(c) 2. Total annual worldwide limit 50,000 a. Lowered from official rate of 55,000 in INA 201(e) to offset NACARA admissions from Guatemala and El Salvador v. Per Country Limits ii. iii. iv. i. v.

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Based on country where prospective immigrant is BORN a. Applicant charged to that country 2. Combined numbers of immigrants for family and employment based visas from one country can be NO MORE THAN 7% of combined worldwide limits for family-sponsored and employment-based immigrants 3. Diversity immigrants are also subject to 7% cap per country 4. EXEMPTIONS a. Preference Category 2A of Family Sponsored Immigrants are exempt from per-country limits b. Employment-based prospective immigrants exempt from cap in fiscal quarters where NOT enough qualified applicants to fill worldwide quote for employment-based visas Family Preference Categories INA 203(a) i. First Preference 1. Unmarried Sons and daughters of U.S. citizens a. 23,400 per year + any leftover fourth preference visas ii. Second Preference 1. Spouses and unmarried sons and daughters of LPRs a. 114,200 a year + leftover first preference visas + amount by which total worldwide family ceiling exceeds 226,000 2. Subsection 2A a. Spouses and children of LPRs get 77% of annual quota for second preference visas b. 75% off 2As also exempt from per country limits 3. Subsection 2B a. Unmarried adult (21 or over) children of LPRs iii. Third Preference 1. Married Sons and Daughters of U.S. Citizens a. 23,400 per year + leftover first and second preferences iv. Fourth Preference 1. Brothers and sisters over-21 of U.S. citizens a. 65,000 + leftovers Family Immigration: The Basics i. Family reunification a major policy tenet of immigration 1. Family 80% of all immigration to U.S. ii. INA established first comprehensive family preferences with passage in 1952 1. INA 201(b)(2) Exempts immediate relatives from quotas 2. INA 203(a) Gives special preferences to other family relationships 3. INA 203(d) Brings in accompanying children and spouses of new permanent residents iii. Visa Bulletin 1. Department of State Visa Office a. Helps applicants and attorneys assess wait times for immigrant visas by preference categories and relevant countries with per-country quota backlogs i. C Current, U Unavailable (already reached for year)

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iv. Visa Petition Process 1. U.S. Citizen or LPR petitioner files a visa petition with USCIS to establish a claim relationship 2. USCIS approves they forward to State Dept. and they send it to the consulate abroad 3. Beneficiary files a visa application with consulate 4. Beneficiary interviewed at consulate and visa decision made v. Wait Times 1. Wait times for certain family preference categories are long a. Despite policy of family reunification i. Third Preference Married Sons + Daughters of US Citizens ii. Fourth Preference Siblings of adult citizens b. More than 4.5 million waiting for family preference visas as of 10/10 2. Two attempts by Congress to relieve wait lines nd a. Division of 2 Family Preference into 2A and 2B and allocation of greatest amount of visas to 2A i. 2A Spouses and Children of LPRs ii. 2B Over-21 unmarried children of LPRs b. Created a V visa in Legal Immigration Family Equity Act (LIFE) i. Allowed 2A beneficiaries waiting more than 3 years to come to US as non-immigrant and work ii. INA 101(a)(15)(V), 214(o)(1)(A) vi. Problem of Aging Out 1. Victims a. Beneficiaries of visas intended for children under 21 who turn 21 before their priority date is current 2. Child Status Protection Act of 2002 (CSPA) a. Seeks to alleviate this problem by not counting administrative processing time against beneficiaries i. Beneficiarys age freezes on date citizen petitioner flies visa petition ii. Or if petitioner was LPR, on date petitioner naturalizes iii. CSPA 2, codified in INA 201(f) b. CSPA also applies to asylees & refugees who petition for their children to come as derivatives i. Age frozen on a date asylum application petition is filed c. CSPA 3 addresses aging out of children of LPRs i. Age when visa becomes available (priority date current and visa petition approved) amount of time visa was pending (administrative processing time) ii. INA 203(h) iii. Beneficiary could lose out or win solely based on arbitrary nature of processing time (out of his/her control) vii. Same Sex Marriages th 1. Adam v. Howerton (9 Cir 1982 Class 7)

Adams (US Citizen) married Sullivan whose visitor visa had expired, having gotten a marriage license from county clerk in Colorado, and petitioned INS for immediate relative visa for Sullivan, which was denied i. Affirmed by BIA b. Issues and Reasoning i. Must citizens spouse within meaning of INA 201(b) be opposite sex 1. Some weight given to federal agencys interpretation of statute a. INS had interpreted as barring homosexual spouse 2. Use cannon of statutory construction giving term its common meaning a. Spouse commonly means person of opposite sex 3. Further support found in Congress intent to exclude homosexuals as part of mandatory exclusion provisions in INA 212(a) ii. If so, is statute Constitutional or does it violate Equal Protection? 1. Adams claimed violation through discrimination based on sex and homosexuality (Strict Scrutiny) a. Court finds strict scrutiny review inappropriate i. Relies on PLENARY POWER OF CONGRESS 2. Court applies rational basis test and finds rational basis in conferring spousal immigration benefit to heterosexual couples only c. Holding i. Court finds INA 201(b) is not unconstitutional for denying immigration benefit preferences to homosexual spouses 2. Congress repealed bar on gays and lesbians for admission to US in 1990 a. Amended INA 212(a) viii. Defense of Marriage Act (DOMA) - 1996 1. All FEDERAL Statutes and regulations are to be interpreted as referring to heterosexual unions a. Reaction to Hawaiis move to recognize same-sex marriage 2. DOMA + Conflicting State Law a. What effect on DOMA + Immigration Laws with i. States having found State laws similar to DOMA unconstitutionally discriminatory AND ii. States that have legalized same-sex marriage b. Currently at least 5 cases challenging DOMA pending in federal courts, some in States that have legalized gay marriage

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i. None of these cases are specific to immigration DOMA + Obama Administration a. 02/11 AG Eric Holder and Obama Administration announced they would no longer defend DOMA in court because they found it unconstitutional i. However, they would continue to enforce current immigration law 1. Exercise discretion on case by case basis 4. Proposed Legislative Repeals of DOMA a. Respect of Marriage Act of 2011 (Repeal DOMA) b. Uniting American Families Act of 2011 i. Would Amend INA to allow citizens and LPRs to sponsor same-sex partners under family-based immigration ix. Same-Sex Marriage-Based Family Petitions 1. ICE and Newark IJ closed removal proceedings of husband of male US citizen in June 2011 a. BUT!! i. Australian husband of San Fran man ordered removed after spousal petition denied on basis that non-petitionable relationship in August 2011 x. Fraudulent Marriages 1. For immigration benefit, marriage must not only be legally valid in the jurisdiction where it was done BUT ALSO factually genuine a. Factually Genuine Test i. Whether at inception parties intended to establish a life together b. Cannot have been entered into solely for immigration benefit i. Sham Marriages can be bilateral or unilateral xi. Immigration Marriage Fraud Amendments of 1986 (IMFA) 1. Based on + justified by an internal study done at INS that was later found to be invalid a. Found suspicion of fraud in 30% of high risk cases reviewed b. INS Commissioner presented to Congress as though 30% of ALL marriage-based petitions fraudulent 2. IMFAs key provision of conditional permanent residence for new spouses of US Citizens or LPRs INA 216 a. First two years of permanent residence are conditional b. Couple must file petition to lift condition within the 90 days immediately preceding 2-year anniversary of admission for permanent residence and must appear for interview together 3. ELEMENTS TO ESTABLISH TO LIFT CONDITION a. Marriage was legally valid, not just judicially annulled or terminated b. Not entered into for immigration purposes c. No fee paid for filling petition 4. If decision is unfavorable, permanent residence status is terminated, but alien can contest finding removal hearing INA 216(c)(3)(D) 3.

g.

a. Government has burden of proof at the removal hearing Conditional Permanent Residence Waivers a. Waivers are BOTH statutory and discretionary i. Removal would entail extreme hardship INA 216(c)(4)(A) ii. Where marriage was terminated BUT conditional resident was not at fault INA 216(c)(4)(B) iii. Where spouse or children have been battered or otherwise subjected to extreme cruelty INA 216(c)(4)(C) 1. Aka WAVA Petition (Violence Against Women Act) 6. IMFAs Collateral Effects a. Conditional residence also applies to any children who acquired permanent residence through the conditional resident spouse INA 216(a)(1), 216(g)(2) b. Also places restrictions on an LPR who acquires status through marriage, terminates that marriage, then marries an alien, and seeks to confer immigration benefits on that alien INA 204(a)(2) i. Must have been 5 years since acquired LPR status before petitions for new spouse OR ii. Must establish prior marriage wasnt entered into to evade any immigration law provision Other Family Members i. In addition to spouses, U.S. recognizes as qualifying relationships for family sponsored immigration 1. Children, Parents and Siblings a. Does NOT recognize grandparents, nieces, and nephews, aunts, and uncles ii. Siblings 1. Matter of Mourillon a. Facts i. Naturalized US Citizen petitioned for stepsister (had common father) 1. Rejected by INS because petitioner illegitimate and had not been legitimized by father a. Didnt fall within sibling relationship through common parent within meaning of INA 101(b)(1) & (2) ii. Petitioner contended that 1. He was legitimized by father under Law of Curacao AND 2. He and Stepsister qualified as siblings through other common parent (Her mother and his stepmother) b. Holding i. BIA REJECTS legitimacy claim 1. It was not legitimized by Curacao Law so it doesnt qualify as legitimate under INA 101(b)(1)(c) 5.

iii.

iv.

v.

vi.

Cant qualify as brother and sister under father ii. BIA ACCEPTS qualifying relationship through common mother/stepmother 1. He qualified as stepchild of common mother under INA 101(b)(1)(B) AND 2. Family relationship between stepsiblings had continued, despite the unknown status of the parents marriage a. Beneficiary stepsister lived with petitioner stepbrother as non-immigrant student 2. There is NO sibling relationship when one alleged sibling was never the child of claimed common parent a. EX Step-Relationship that only began after sibling turned 18 (Matter of Garner 1975) 3. If each sibling can identify a time the was child (minor) of a common parent then a sibling relationship can be established, EVEN if this was never at the same time (Matter of Gur 1977) Out-of-Wedlock Children 1. Congress amended INA in 1986 to allow for immigrant petitions based on father/child relationships when child born out of wedlock as long as father has or had a bona fide parent-child relationship with the person INA 101(b)(1)(D) a. BUT!!! th i. Nguyen v. INS (2001 8 Class) 1. SCOTUS upheld gender-based distinctions for citizenship by descent a. Found it did not violate equal protection because served government objective of ensuring reliable proof of biological relationship Special Immigrant Juvenile Status INA 101(a)(27)(J) 1. For alien children declared dependent on US Juvenile court or committed to long term foster care because of abuse, neglect, or abandonment 2. Must also show that no in aliens best interest to be returned to the home country a. Best interests of child standard 3. Recipients get LPR, but can never petition for parents Foreign Adoptions 1. Popular because there are fewer adoptable very young children in U.S. a. Definite racial element in attitude toward domestic adoptions in U.S. b. Various foreign countries have stopped or restricted adoptions of their children by U.S. parents 2. China is currently #1 and the vast majority are girls, and is followed by Ethiopia a. China + Ethiopia = 53% of 2010 foreign adoptions Adopted Children + Immigration

a.

h.

INA amended in 1957 to include adopted in child definition and orphan added in 1961 INA 101(b)(1)(E), 101(b)(1)(F) 2. Restrictions at preventing fraud a. Child must have been adopted under 16 b. Must have been in legal custody of and residing with parent for at least 2 years c. Adoption cannot have been entered into solely for immigration purposes (like marriage) d. Is adopting parent a close relative, does biological parent also live with child and adoptive parent? 3. Orphans INA 101(b)(1)(F) a. Certain US citizens may petition for children under 16 who have experienced death, disappearance, or abandonment of 1 or both parents 4. What happens when a biological fathers consent cant be obtained? a. Balancing inability or unwillingness to consent against right to assert parental rights vii. Family Unification Policy in Perspective th 1. Is 4 Family Preference for siblings a precipitator of chain migration? a. LPR Naturalizes, brings sibling, sibling brings family, naturalize, etc 2. Wait times for family visa categories dropped between 2009 and 2010 3. 2A preference category of spouses and children of LPRs saw especially sharp declines a. Suggested Reasons i. Economic recessions reduces incentive to immigrate ii. LPRs naturalizing to bring family over as immediate relatives Employment Preference Categories INA 203(b) i. First Preference 1. Priority Workers a. Examples i. Extraordinary ability in the sciences, arts, education, business, or athletics ii. Outstanding professors and researchers iii. Executives and managers b. 28.6% of employment visas annually + leftover from fourth and fifth preferences ii. Second Preference 1. Members of the Profession holding advanced degrees and aliens of exceptional ability a. Must have an advanced degree b. 28.6% of employment visas annually + leftover from first preference iii. Third Preference 1. Skilled workers, professionals without advanced degrees, and other workers whose labor needed in US a. 28.6% of employment + leftover from first and second preferences i. No more than 10,000 may go to other workers

1.

i.

iv. Fourth Preference 1. Special Immigrants a. Including certain religious workers and long-term foreign employees of U.S. government v. Fifth Preference 1. Employment Creation a. Entrepreneurs who invest at least $1 million dollars and employ at least 10 American Nationals i. Must fulfill future conditions 1. They give you a conditional visa and when you fulfill this conditions you receive an LPR status b. 7.1% of employment visas annually Employment-Based First Three Preferences i. Recent History 1. Emphasis on skills and education, de-emphasis on unskilled labor 2. Immigration Act of 1990 a. Doubled overall ceiling on employment-based immigrants and assigned higher priority to professional and highly-skilled workers b. Also reduced admission of unskilled workers 3. In 2000 Congress exempted most preferences from per-country limits ii. Overview 1. First, Second, and Third Preferences represents skills that Congress thinks are needed in U.S. a. 40,000 a year each preference for a 120,000/year total b. First and Second have been perennially underutilized in last several years 2. Fourth preference only employment based because it relates to individuals past or present work INA 101(a)(27) a. 10,000 a year 3. Fifth preference employment based because intended to create employment for U.S. workers a. 10,000 a year 4. As of Nov. 2010, 90% processed as adjustment of status i. First Preference (Superstars) 1. General Eligibility Requirements a. Three Prongs INA 203(b)(1) i. Extraordinary ability in the sciences, arts, education, business, or athletics demonstrated by sustained national or international acclaim ii. Outstanding professors and researchers iii. Multinational executives and managers 2. Extraordinary Ability Level of expertise indicating that individual is one of the very small percentage who are at the top of their field ii. Second Preference (Stars) 1. General Eligibility Requirements a. Two Prongs INA 203(b)(2)

b.

c.

i. Professionals with advanced degrees or their equivalent ii. Exceptional ability in the sciences, arts, or businesses Usually requires job offer and labor certification by Dept. of Labor INA 203(b)(2)(A), 212(a)(5)(A, C) i. National security waiver used to bypass job offer and labor certification requirement INA 203(b)(2)(B) Must Show this to qualify for waiver i. Area of employment must have a substantial intrinsic merit ii. Employment will benefit the nation and not just the local area iii. Applicant will serve the national interest to a substantial greater degree than would an available U.S. worker having the same minimum qualifications

iii. Third Preference 1. General Eligibility Requirements a. Three Prongs INA 203(b)(3) i. Skilled labor for which qualified U.S. workers not available ii. Professionals with at least a Bachelors iii. Other workers capable of performing unskilled labor for which qualified U.S. workers not available b. Job offer and labor certification required c. No more than 10,000 of 40,000 can go to third prong of unskilled workers in one year INA 203(b)(3)(B) iv. Labor Certification nd rd 1. INA requires for 2 and 3 Preferences INA 212(a)(5)(D) nd a. Unless 2 Preference has National Security Waiver 2. Designed to ensure immigrants employment will neither displace nor otherwise disadvantage U.S. workers 3. Statutory Requirements a. Not sufficient U.S. workers able, willing, qualified, and available at time of visa application and in place where it is offered b. Will not adversely affect wages and working conditions of U.S. workers similarly employed 4. Process a. Long, hardship-creating administrative delays i. Last attempt to reduce delay PERM 2005 1. Must file visa petition within 180 days after labor certification granted or labor certification expires 2. Schedule A Lists occupations automatically labor certified by DOL a. Currently lists physical therapists, nurses, and immigrants of exceptional ability in sciences or arts 3. Schedule B Lists occupations for which labor certification is usually not granted b. PERM Application Process

i. If you are NOT on Schedule A you must file individual application for labor certification 1. Request to State Workforce Agency to determine the prevailing wage for the job 2. Taking certain steps to determine whether qualified U.S. workers are available a. Posting job at workplace i. Serves as notice to employees that employer intends to hire for the job b. Advertising jobs in publications relevant to jobs 3. Once done with first two steps you apply directly with DOL Employment and Training Administration 4. Labor Certification application does not require documentation a. But if ETA selects for audit you must show supporting documentation 5. Decided by ETA Certifying Officer a. CO may refer special or unique problems or pre-designated types of cases to Office of Foreign Labor Administration b. Employer can also request CO to review prevailing wage as decided by State Workforce Agency 6. If PERM labor certification is denied, the employer can request administrative review 7. Special Congressional grant for applicants adjusting status a. If you have been waiting for labor certification or more than 180 days, you may change to another employer or job in same occupational classification without USCIS or DOL approval v. Displacing American Workers Matter of Marion Graham 1. Facts a. Prospective Employer wants live-in-domestic worker and child monitor i. BALCA find that live-in requirement was not a business necessity 1. Graham failed to demonstrate specifically why a livein worker was needed b. Presumption that job requirements unduly restrictive when (20 CFR 656h) i. Other than those normally required for U.S. job ii. Exceed requirements in Dictionary of Occupational Titles iii. Include a foreign language

j.

iv. Involve a combination of duties v. Require worker to live on employer premises c. Must prove business necessity when job requirements are found to be unduly restrictive (A-C) or its functional equivalent (D-E) vi. Business Necessity 1. Matter of Information Industries a. PERM 2-part test for Business Necessity i. Job duties and requirements bear reasonable relationship to occupation in context of employer business ii. Are essential to perform job duties required by employer in a reasonable manner 2. Subsequent change in PERM rules for live-in requirement replace business necessity with essentiality to job performance and lack of cost effective alternatives 3. Foreign language proficiency requirements a. BALCA split over whether business necessity when clients only speak foreign language out of preference i. BALCA majority found no business necessity where nonEnglish speaking workforce gave rise to foreign language requirement 1. In Re Lucky Horse Fashion 4. Two Functions in Single Job a. BALCA found that in order to have business necessity, one must show that hiring two employers would be infeasible not just inefficient or costly i. In Re Robert L. Lippert Theatres vii. Many (Majority) of Labor Certifications are filed on behalf of existing employees 1. Few files on behalf of unauthorized employees for fear of sanctions 2. Most filed for employees on temporary work visas (H-1B) th th Employment-Based 4 & 5 Preferences i. Fourth Preferences (Special Immigrants) - INA 203(b)(4) 1. Not aimed at redressing labor shortages 2. All special immigrant categories in INA 101(a)(27) except (A) and (B) including a. Accompanying spouse and children of immigrant b. Overseas U.S. government employee c. Some children of international organization employee d. Special juvenile immigrants ii. Fifth Preferences (Immigrant Investors) 1. History a. Entered on non-preference basis before 1978 i. Exempted from labor certification b/c had to invest minimum amount AND serve as principal manager AND employ at least 1 U.S Citizen or LPR Worker b. 1978-1990 Tried to get labor certification and employment-based visa on own companies, but substantial barriers

k.

l.

Other Option is to enter as non-immigrant investor under INA 101(a)(15)(E)(ii) 3. Policy Debate a. Creates jobs and improves trade balance b. Way for rich to buy citizenship 4. Immigrant Investor Program INA 203(b)(5) (1990) a. 10,000 visas for investors and families b. Must invest in commercial enterprise un U.S. with $1 million and employ at least 10 Americans (Can also invest $500k in some rural, underemployed areas) c. Conditions i. DOH can terminate if it finds within 2 years that it was intended solely as means of evading immigration laws ii. Affirmative requirement to petition for removal of conditions during 90 day period, preceding two year anniversary of admission as an LPR d. Evasion Provision Ensures that investment involves actual risk e. Policy Rationales for Investor Program i. Overcomes resistance to foreigners buying up America by making the foreigners American ii. Hastens admission of people who would have invested in US anyways in order to create jobs for Americans much sooner f. Historically LOW admission rates but an increasing spike in program admissions in 2009 and 2010 Accompanying Spouse or Child INA 203(d) i. Child or spouse accompanying or following to join immigrant from any of the three categories is entitled to the same preference status and same place in line as a principal immigrant - 22 CFR 42.53(c) 1. Relationship must be created before principals admission as LPR 2. Accompanying Up to 6 months after issuance of principals visa or adjustment of status 3. Following to join No time Limit a. Employment fourth preference special immigrants may take accompanying spouse or child but not those following to join Selecting Individual Applicants i. Priority Date Established the date they file their first relevant document 1. U.S. processes applications in monthly batches, so must wait until priority date becomes concurrent ii. Use hospital style triage approach to allot visas from all the family and preference categories within per country limits See INA 202(e) 1. Amount of visas each year in each preference category within one countrys per country limit reflects percentage of that visa preference category allotted worldwide in relation of all the other preference categories rd a. EX If 3 preference family visas are 10% of the family visas available in that year worldwide, 10% of family visa in over-subscribed country rd would go to 3 preference applicants

2.

m. Diversity Immigrants i. Immigration laws conscious influence on distribution of immigrant admissions by national origin ii. Vast majority of immigrants since 1970 come from Asia, Mexico, Latin America, and Caribbean 1. Geographic Proximity and Economic Disparities iii. 1990 saw the enactment of permanent immigrant preferences based on diversity INA 203(d) 1. Annual Statutory Calculations a. 5 year accounting of LPR admitted/adjusted by foreign state b. Any one state with more than 50,000 ineligible for diversity lottery c. Six Regions classified as either low or high admission i. Africa ii. Asia iii. Europe iv. Oceania v. North America excluding Mexico vi. Mexico, Latin America, Caribbean d. High admission = More than 1/6 of total LPRs grants for preceding 5 years i. EX If 90% of past 5 years LPRs are from High Admission regions, low admission regions get 90% of diversity visas 2. Selection by lottery but NO GUARANTEE INA 203(e)(2) a. Applicant must have specific levels of education or work experience b. Processing Delays, other problems, often prevent paperwork completion within fiscal year requirement i. Because of this All 50,000 spots are RARELY filled 3. Countries Ineligible for 2012 Diversity Visas a. Brazil, Canada, Mainland China, Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, Poland, S. Korea, UK (Save N. Ireland), Vietnam iv. Technical Errors 1. 2011 State Department Lottery program made error in choosing lottery recipients a. They cancelled lottery results and voided offers to the winners of permanent residence

Non-Immigrant Priorities
I. Elements a. Specific Purpose b. Temporary visit of fixed duration Criteria a. Less demanding because not for permanent residence

II.

III.

IV.

V.

VI.

b. Mostly unrestricted numerically Immigrant Presumption a. Aliens seeking admission presumed to be immigrants, so they must REBUT that presumption by showing they are qualified to be non-immigrant INA 214(b) i. To qualify you must fit into a non-immigrant category in INA 101(a)(15) Two Statutory Hurdles a. Fitting into one of the specific statutory pigeonholes b. Avoid affirmative grounds of admissibility Process for entering the US as Non-Immigrant a. Application for visa at US Consulate Abroad b. Presentation of visa to CBP Immigration inspector at port of entry c. Some undergo ADITTIONAL or ALTERNATIVE PROCESSES i. Temporary Workers May need labor certification ii. Person or employer in US may need to file visa petition with USCIS Students a. F-1 Visa for Principal Students and F-2 for families INA 101(a)(15)(F) i. Requirements 1. Full-Time Course of Study a. May take less for initial difficulties with adjustment to English or American educational system 2. Admitted for the duration of status a. Must petition for extension to school, who then informs USCIS 3. Must demonstrate sufficient funds a. Employment limited to on-campus i. Only off-campus if after first year it is economically necessary (must obtain permission from USCIS) b. Optional practical training (OPT) may be utilized after completion of each higher education level i. Some further extensions are available for certain science/technological fields b. M Visa for vocational students INA 101(a)(15)(M) c. J Visa for Exchange Students INA 101(a)(15)(J) i. Purpose 1. Enable visitors to benefit countries of origin 2. Foster intellectual and cultural exchange 3. Build positive foreign relations ii. Advantages for students 1. Slightly more liberal employment rules 2. Many programs provide funding 3. Like F-1 may stay for duration of status, as long as the student maintains satisfactory advancement iii. Au Pairs as foreign exchange visitors 1. Required to attend post-secondary school part-time iv. Disadvantages for Students 1. Can be difficult to obtain 2. Must be in program pre-approved by State Department

VII.

Must be sponsored by US government, international, or approved private agency v. Foreign Residence Requirement INA 212(e) 1. Some J-1 holders required to return to country of origin for two years after visa expires before they can return to US a. FOUR WAIVERS available i. Request by interested US government agencies ii. Exceptional Hardship iii. No Objection letter from home country iv. Persecution b. NOTE** i. Exceptional hardship or persecution based waivers must go through USCIS, who then sends it to the Waiver Review Division of the Office of the Exchange Visitor Program Services of the State Departments Bureau of Consular Affairs d. IMPORTANT*** i. Ask student: Do you want ability to work while studying or do you want to stay in the U.S. after finishing? 1. J-1 Ability to work while at school! a. Mostly good for people with families 2. F-1 Ability to stay in the US after graduation e. Motivations i. Perception of quality of US universities ii. Hopes of living permanently in the US iii. Importance of English in global economy iv. Hands-on instructional methods popular f. Benefits to US i. Broaden perspective ii. Contribution to Research iii. Strengthen local economies with foreign funds g. Controversy i. State legislative tuition in 1980s to raise tuition for foreign students to help lower costs for resident students ii. IIRAIRA Restrictions 1. Banned from public elementary schools, charges for public high schools 2. Government authorized to collect information on every foreign student from schools, otherwise schools would lose authority to accept foreign students iii. 9/11 Restrictions 1. Visa process made more complicated and protracted 2. Creation of SEVIS and US VISIT information collection and access programs a. Collects information normally protected by Family Education Rights and Privacy Act of 1974 (FERPA) 3. Student Rates dropped immediately after 9/11 but have risen again since 2005 Treaty Traders and Investors INA 101(a)(15)(E) a. E-1 = Treaty Traders INA 101(a)(15)(E)(1) b. E-2 = Treaty Investors INA 101(a)(15)(E)(2)

3.

c.

VIII.

Requirements i. Must have treaty with Non-Immigrants country (EX NAFTA) 1. Many of these treaties specific to traders and investors, some only cover one or the other a. Currently U.S. has such treaties with 80 countries 2. Treaty interpretive sources include a. INS Regulations b. Operation Instructions c. State Regulations d. Volume 9 of Foreign Affairs Manual d. Conditions i. Initial two-year authorized stay followed by unlimited possible two-year extensions ii. No intent to retain LPR status iii. Require intent to depart upon termination of status e. Dual Intent i. Intent to leave the US by expiration of lawful stay AND ii. Hope of acquiring LPR status Temporary Workers a. We sought workers and human beings came b. Issues with Temp (Guest) Worker Program i. Long-Term Status ii. Exploitation iii. Effect on Domestic Working Conditions c. Special Occupations (H-1B) INA 101(a)(15)(h)(i)(b) i. Specialty Occupation 1. One requiring theoretical and practical application of body of highly specialized knowledge and at least a Bachelors Degree or equivalent INA 214(i)(l) ii. Coming Temporarily to US 1. Up to 6 years iii. Standard, legal way to begin LPR Process 1. Congress expressed declaration in 1990 that intent to seek permanent status not evidence of intention to abandon foreign residence INA 214(h) iv. Fixing administrative and quota delay issues for H-1Bs seeking to adjust 1. 2002 Congress permitted yearly extensions of H-1B status beginning one year after application for labor certification or visa petition v. History 1990 Immigration Act separated most agricultural workers, athletes, and entertainers from H-1B status vi. Labor Certification Application (LCA) Required 1. Employer files with DOLs Employment and Training Administration (ETA) INA 212(n) a. Employer must show i. Paying at least the greater of prevailing wage or actual wage in that workplace ii. Working conditions for similar workers wont be affected iii. No strike or lockout happening AND iv. Notified existing employees of filing to give a chance to object

d.

vii. Policy Concerns 1. Criticism from DOL trade unions 2. 1996 audit from DOL Inspector General called paper shuffles inadequately protecting American workers 3. Employers abusing by failing to pay prevailing wage 4. Argument that H-1Bs are just an industry device to intensify job competition and reduce wages a. Now employers pay $1000 fee for H-1B worker i. Fee revenues go to job training for US workers 5. H-1B dependent firms subject to more rigorous requirements in labor condition applications 6. H-1B Workers have PORTABILITY OF VISA a. They can switch jobs to avoid employer exploitation viii. Numerical Limit 1. 65,000 a year a. Exempts higher education institutions, nonprofits, and governmental research institutions i. Plus another 20,000 a year added for aliens with masters or higher degrees from US institutions Lesser Skills and Labor Shortages (H-2) i. H-2A (TOMATOES, GRAPES) 1. Agricultural labor or services of temporary seasonal nature 2. Requirements a. Must have foreign residence that have no intention of abandoning b. Must be coming temporarily to the US 3. Process a. Third Party hired to collect workers in a foreign country with the collaboration of the US government i. People go to their government labor department and put in bids to work in the United States b. American companies pay for the room and board, and travel expenses i. However, they will end up subtracting the amount from the paid wages c. If you are a good worker, then the US company will likely tell the thirdparty to get you back i. If you are not a good worker then you will either not be brought to work in the US again or transfer you to another company 4. H2-A History a. Bracero program between the US and Mexico bringing Mexican laborers to replenish workers who had left to fight in WWII b. 1986 Congress created H-2A designation with simpler processes for labor condition certification INA 218 c. 2009 DOL allows employers simply to attest to compliance and releases adverse effect wage rates for each state governing what employers must pay farmworkers

IX.

Two House Bills seeking to overhaul this program a. HR 2164 i. Shifting oversight to the Department of Agriculture b. HR 2895 i. Bill to issue work documents good for 10 months/year of agricultural work in US ii. H-2B (LANDSCAPING) 1. Perform other temporary service of labor if unemployed persons capable of performing such services or labor that cannot be found in US 2. Initial admission = Up to 1 year a. With possibility for 1 year extensions b. Adding up to a total stay of 3 years 3. Like H-2As since 2009 the DOL only requires employers to attest to compliance 4. No more than 66,000 a year INA 214(g)(1)(B) a. Doesnt count workers family or anyone granted H-2B status in preceding 3 years (Real ID Act) INA 214(g)(1), (9)(A) b. It is split into 33,000 for each 6 months of fiscal year INA 214(g)(10) 5. Policy Concerns a. Benefit of cheap labor v. Cost of Welfare b. Are foreign workers better of coming even though they are sometimes exploited? c. Do exploitative employers ensure foreign composition of labor force? 6. Potential for new guest worker program with delayed legalization program currently very low a. Growing US Latino Population b. But currently there is 1 bill in Congress proposing path to legalization for agricultural worker e. Miscellaneous Other Temporary Workers i. Other Categories Including INA 101(a)(15) 1. Crew members of foreign vessels (D) 2. Foreign Journalist (I) 3. Official representatives of foreign government and international organizations (A, G) 4. Religious Workers (G) ii. Disney Provision INA 101(a)(15)(Q) 1. Authorized Admission for up to 15 months 2. Limited to Disneys Purposes of bringing youth to work at Disney theme parks, work must be vehicle to achieve objectives of cultural component 3. No quota, no required showing that not displacing US workers a. More like exchange students iii. TN Visa for NAFTA Professionals O Visa INA 101(a)(15)(o) a. NO NUMERICAL LIMITATIONS b. Athletes, entertainers, persons in the arts, sciences, education, and business of extraordinary ability

5.

X.

XI.

XII.

XIII.

i. Demonstrated by sustained national or international acclaim Certain support staff or family may also be brought over Initial Admission 3 years i. With possibility of 1 year extensions P Visa a. NO NUMERICAL LIMITATIONS! b. P 1 i. Internationally recognized athletes or members of internationally recognized entertainment groups performing in specific events 1. Athletes Initial admission up to 5 years with 5 year extensions 2. Others Initial admission of 1 year with 1 year extension c. P 2 i. Artists and entertainers in reciprocal exchange programs d. P-3 i. Entertainers or artists providing culturally unique programs L Visa - Foreign Managers or Executives - INA 101(a)(15)(L) a. Managerial, executive, or other specialized employees of private corporations or firms coming to US to continue working for that company b. May bring accompanying spouse and children c. Must have been working for the company for at least 1 year of the preceding 3 years B Visa Tourist INA 101(a)(15)(B) a. More than 75% non-immigrant admissions in 2009 were tourists b. B-2 Visa = Pleasure, B-1 Visa = Business i. Difference is that B-2 Visa prohibits employment c. Unless from Visa Waiver Program country (90 days) the initial admission from 6 months to 1 year with extensions of 6 months i. Visa Waiver can extend to 40 days 1. It has to be for particular reasons (health, weather, etc) th d. Matter of Healy and Goodchild (1979 11 Class) i. Facts 1. Non-immigrants entering on B-2 Visas to study at unapproved school found inadmissible as B-1 non-immigrants a. 101(a)(15)(B) i. Specifically calls out educational study as a separate category non-included 2. Congress did not intend B-2 to be a catch-all category 3. Even though intended school does not qualify for a F-1 Visa program, and aliens are admissible as B-2 a. Allowing them to attend school on B-2 Visas would undermine the purpose of the F-1 Visa program and the school approval process Fiances and Fiancees INA 101(a)(15)(K), 214(d) a. K-1 Alien Fiance b. K-2 Accompanying/following children c. IMFA added requirement that fianc(e)s have met during previous two-year period preceding filing c. d.

d. XIV.

XV.

XVI.

Congress added K-3 and K-4 in 2000 to permit foreign spouses of US Citizens (and any children) to enter and work in the US while immigrant visas being processed - INA 101(a)(15)(K)(ii) S Visa Snitch INA 101(a)(15)(S) a. Able to share critical reliable information about ordinary criminal or terrorist organizations b. Greater emphasis on use following 9/11 T Visa Trafficking a. Created by the Trafficking Victims Protection Act of 2000 i. Victims of severe forms of trafficking when persons are physically present in the US or at port of entry 1. Must demonstrate (1) extreme hardship and (2) severe harm upon them b. May Work within the U.S. i. May also grant working privileges to accompanying/following family members c. Limit of 5,000 a year but has never been reached d. May adjust to LPR status after 3 years U Visa a. Victims of Trafficking and Violence Prevention Act of 2000 (U-Visa) i. Created by the Violence Against Women Act of 2000 (VAWA) 1. Crime has to have occurred in the United States b. Suffered substantial physical or mental abuse as result of any to several enumerated acts of violence i. Must possess information concerning criminal activity and help law enforcement investigate of prosecute c. May work, bring family members if extreme hardship otherwise d. Limit of 10,000 a year e. May Adjust to LPR after 3 years f. U Visa v. VAWA i. VAWA Self-Petitions For abused spouses of US Citizens and LPRs 1. Elements a. Abuser has to have legal status as an LPR or Citizen b. Must have been a good faith marriage c. Must demonstrate good moral character 2. Purpose a. Immigration relief for immigrant victims of abuse whose legal status would otherwise depend on abusive citizen or spouse 3. Benefits a. Ability to apply for LPR Status ii. U Visa For victims of violent crimes who cooperate with law enforcement in the investigation and/or prosecution of their perpetrators 1. Elements a. Substantial physical/mental abuse as a result of being a victim of a certain criminal activity b. Possession of information on criminal activity c. History of being helpful or likelihood of being helpful to law enforcement d. Criminal Activity violated US laws or occurred in the US

i. Immigration status of the perpetrator or lack of status does not matter 2. Purpose a. Aimed to strengthen ability of law enforcement to prosecute crimes against immigrants Benefits a. Lawful status and employment authorization for 4 years b. Ability to petition for derivatives c. Can adjust after 3 years

3.

XVII.

XVIII.

XIX.

V Visas and LIFE Act a. Permits spouses and children of LPRs to be admitted as non-immigrants while they wait for priority dates to become current BUT i. Only if visa petition filed before December 2000 ii. Only if visa petition approved by USCIS iii. Only after wait has exceeded 3 years b. NO NUMERICAL LIMITS c. Allowed to Work INTENT TO REMAIN PERMANENTLY a. Most non-immigrant categories require either i. Person seek to enter temporarily (B, H, J, L Visas) OR ii. Have foreign residence that has no intention of abandoning (B, F, J) OR iii. BOTH!! b. Issues i. If the intent changes, you will need to determine 1. Whether alien was inadmissible at entry, thus deportable INA 237(a)(1)(A) 2. Whether alien is Deportable because failed to maintain a non-immigrant status INA 237(a)(1)(C)(i) 3. Whether could be negative factor in discretionary determinations ii. Ultimately the determinations are a question of fact, whether there was a preconceived intent to remain permanently or a genuine change of mind c. Dual intent distinct from preconceived intent i. Can come to the US with intent to remain temporarily but HOPE to remain permanently 1. A desire to remain in this country permanently in accordance with the law, should the opportunity to do so present itself, is not necessarily inconsistent with lawful non-immigrant status Matter of Hosseinpour (1975) d. Ethical Issues for immigration attorneys raised by intent to remain issues i. Lawyer needs to be very clear in explaining the consequences of the clients present intent to immigrate on eligibility for non-immigrant visa, as long as it doesnt suggest which course of action client should take CHANGE OF NON-IMMIGRANT STATUS a. Adjustment of Status INA 245 b. Change of Status INA 248 i. Alien CANNOT GO OUT OF STATUS!! INA 212(a)(9)(B)(i) ii. Not enough to be currently in non-immigrant category eligible for change of status and wanting to change to non-immigrant status eligible for change of status 1. Must also obtain a favorable exercise of administrative discretion

Inadmissibility or Exclusion Grounds

I. Inadmissibility or Exclusion Grounds INA 212(a) a. Various classes of aliens ineligible to receive visas and to be admitted to the US i. Barring qualification for statutory waivers b. Alien is inadmissible at a port of entry i. Aliens who entered without inspection (EWI) are inadmissible on that basis even if they are still in the US INA 212(a)(6)(A) ii. Changed by IIRAIRA 1. Before entry determined the set of grounds governing someones removal a. EWI aliens were subject to deportation, not exclusion (inadmissibility) grounds c. Distinct from deportability grounds, which govern aliens already admitted to US 1. In the Past a. Inadmissible were Excluded b. Deportable were Deported 2. Now a. Aliens found inadmissible and deportable are BOTH SUBJECT TO REMOVAL d. Inadmissibility can affect future visa applications or even naturalization if someone is found to have been inadmissible at the time of entry or adjustment of status INA 237(a)(1)(A) e. A Magic Mirror st i. 1 federal legislation designating excludable classes passed in 1875 1. Federal Appeals court called inadmissibility grounds a magic mirror reflecting the dears and concerns of past Congresses 2. Excluded prostitutes, mental defectives, lunatics, idiots (1882) 3. Also excluded insane, polygamists, aliens with contagious disease (1891) 4. Also excludable anarchists after McKinley Assassination f. Immigration Control Grounds i. Related to Integrity Documents 1. Valid Passport, visas INA 212(a)(7) 2. Labor Certification INA 212(a)(6)(D) 3. Document Fraud a. Once formally ordered to pay fines under INA 274C become inadmissible b. Procurement of Immigration documents, benefits, or admission by fraud INA 212(a)(6)(C)(i) c. Written or oral false claims of citizenship Separate ground of inadmissibility INA 212(a)(6)(C)(i) ii. Related to Surreptitious Entry 1. Under IIRAIRA being present in the US without having been admitted or paroled, or having arrived not at an official port of entry INA 212(a)(6)(A) 2. Assisting with unlawful entry INA 212(a)(6)(E), 212(d)(11) g. Going Out of Status or Unlawful Presence i. Unlawfully present for more than 180 days makes you inadmissible for 3 years

h.

i.

j.

ii. Unlawfully Present for more than 1 year makes you inadmissible for 10 years INA 212(a)(9)(B) iii. Unlawful Presence Defined 1. Present in US after period of stay authorized OR present without being admitted or paroled a. Unlawful presence is CONTINUOUS, NOT ADDED UP 2. Time granted for voluntary departure does NOT count toward continuous unlawful presence 3. Violation of admission (visa) terms does not constitute unlawful presence, but does render alien deportable INA 237(a)(1)(C)(i) 4. If you are under 18 it does not count INA 212(a)(9)(B)(iii)(I) 5. If you have a bona fide (not frivolous) asylum application pending, doesnt count UNLESS worked without authorization INA 212(a)(9)(B)(iii)(II) iv. Special Issues 1. Pendency of removal proceedings (once alien has received Notice to Appear) does not affect the lawfulness of your presence a. Time spent waiting of hearing does count if otherwise unlawfully present 2. USCIS designates entire waiting period for timely-filed, non-frivolous application as authorized by AG for purposes of INA 212(a)(9) a. 120 day maximum tolling allowed for aliens waiting for administrative processing of application for extension of stay or change or adjustment of statue i. As long as person has not worked without authorization Effect of Removal i. Failure to attend removal hearing Inadmissible for 5 years INA 212(a)(6)(B) ii. Ordered removed upon arrival Inadmissible for 5 years INA 212(a)(9)(A) iii. Ordered Removed after arrival Inadmissible for 10 years nd iv. Ordered removed for 2 time Inadmissible for 20 years v. Aggravated Felons Inadmissible forever vi. DHS has discretion to waive by allowing to apply for admission INA 212(a)(9)(A)(ii) Entering Without Admission i. If either unlawfully present for aggregate of more than 1 year OR removed for any reason and then entered or tries to enter without being admitted THEN 1. You will be inadmissible for 10 years INA 212(a)(9)(C) Political + National Security Grounds i. In 1903 barred anarchists and those believing in or advocating violent overthrow of US or of all government ii. Grew after WWII and during Cold War, when and part or present membership in or affiliation with the communist party 1. Eliminated need to prove advocacy for violent overthrow of government 2. Now no longer exclusion ground for non-immigrants and subject to broad exceptions for immigrants INA 212(a)(3)(D) iii. INA of 1952 1. Entering US to engage in activities prejudicial to public interest INA 212(a)(27)

2.

k.

l.

3. 4. iv. 1990 Act 1. People whose entry or activities might adversely affect US foreign policy INA 212(a)(3)(C) v. Certain national security and political grounds CANNOT be waived by DHS Secretary INA 212(d)(3)(A) vi. McGovern Amendment in 1977 1. When non-immigrant is excludable solely by reason of membership or affiliation with proscribed organization, the Secretary of State should recommend a waiver UNLESS he/she can certify that the persons admission would be contrary to national security interests vii. Constitutionality of INA 212(a)(3)(C, D) st 1. Do excluded (inadmissible) aliens have 1 Amendment Rights? Lookout List i. 1990 Act requires DHS and Secretary of State to update list and delete anyone who applies for admission and whose excludability has since been eliminated by INA amendments ii. Used for Counterterrorism Purposes Terrorism Exclusions i. 411 of PATRIOT ACT and REAL ID ACT 1. Expanded range of terrorism related inadmissibility grounds ii. INA 212(a)(3)(B) 1. 9 Different terrorism-related exclusion grounds a. Individual associated with terrorist activity OR terrorist organizations 2. Defines a. Terrorist Activity, Engage, Terrorist Organization iii. Contexts 1. Admission to US 2. Analog in deportability grounds INA 237(a)(4)(B) 3. Disqualification of asylum or refugee iv. Material Support Provision INA 212(a)(3)(B)(iv)(VI) 1. Matter of S-K (2006 Class 13) a. Facts i. Burmese ethnic and Christian minority woman denied asylum on basis of material support of terrorist organization 1. Gave money to opposition group that used some violence in self-defense against military junta ii. BIA found that statutory language of material support mandated them to deny 1. US maintained a diplomatic relationship with the Burmese government and maintains an embassy there

INA 212(a)(28) Catch All Category for Political Viewpoints considered undesirable by Congress a. Covers activities of speech, expression, and association Likely to engage in espionage, sabotage, or other subversion INA 212(a)(29)

Material Support because money specifically called out in statute, and because amounted of 1/8 of monthly income 3. Terrorist Organization because used weapons for more than purely monetary gain 2. INA 212(a)(3)(B) Logic/Elements a. (1) Finding that it is a terrorist organization i. Organization must engage in terrorist activity as defined in INA 212(a)(3)(B)(iv) 1. Two Elements for Terrorist Activity a. Must be unlawful where committed or would have been unlawful in US b. Must involve one of list of enumerated acts in INA 212(a)(3)(B)(iii) i. Includes material support b. (2) Finding that alien offered material support 3. Has Mens Rea Element a. Must know or should have known it was a terrorist organization 4. EXCEPTION!! a. Duress i. DHS and State refused to recognize until 2007 1. Prompted by some harsh outcomes ii. Requires terrorist organization to be officially recognized by the U.S. government iii. Test TOTALITY OF CIRCUMSTANCES v. Defining Terrorist Organization 1. Growing consensus that NOT all organizations satisfying statutory criteria equally dangerous 2. Attention focused on breadth of terrorist activity qualifying acts, not as much on unlawful event m. Criminal Grounds INA 212(a)(2), (h) i. Most have analogs deportation grounds 1. Aggravated felony Deportation ground without an inadmissibility analog 2. No waiver available: a. Admitted LPRs if convicted of aggravated felony b. LPRs who havent resided in the US continuously for 7 years preceding removal proceedings ii. Rationale for Harsher Treatment of LPRs 1. Congress wanted to expedite removal of aggravated felons 2. Congress reasoned that LPRs should be held to a higher standard than undocumented immigrants 3. Aliens willing to jeopardize LPR status by committing crimes might have higher recidivism rates iii. Relief and Discretion INA 212(h) 1. Discretion will not be exercises for violent or dangerous crimes UNLESS denial would result in exceptional and extremely unusual hardship

2.

n.

o.

Economic Grounds i. History 1. 1990 Act a. Repealed many, leaving only two explicit economic grounds i. Labor Certification INA 212(a)(5)(A) 1. Evidence that you will become employed ii. Public Charge INA 212(a)(4) 2. 1996 Congress added ground for people who formally renounces US Citizenship to evade taxes INA 212(a)(10)(e) ii. Public Charge 1. State Department defines it as a. Primarily dependent on US government for subsistence, demonstrated by receipt of public cash assistance for income maintenance b. Many governed programs that provide aid but are not intended to be primary source of cash for income maintenance, like Medicaid, Food Stamps, etc c. Public Charge Programs TANF, Supplemental Security income 2. Predicting Likelihood individual will become public charge a. Factors to be considered in INA 212(a)(4)(B) b. Welfare Reform Act of 1996 made affidavits of support legally binding when no employment INA 213A 3. Affidavits of Support a. Sponsor must be over 18, US Citizen or LPR, and domiciled in the US b. Ended practice of family-sponsored immigration by US Citizens domiciled abroad c. Income must be 125% of poverty level d. Mandatory for immediate relative and family-sponsored petitions INA 212(a)(4)(C) 4. WAIVER OF PUBLIC CHARGE GROUND a. If give public charge bond INA 213 b. Sponsor promises to indemnify the US or governmental unit in which beneficiary becomes public charge Public Health and Morals i. 1990 Act significantly narrowed field of public health-related exclusion ii. Physical or Mental disorderly is only a basis for exclusion if associated behavior posses a specific threat INA 212(a)(1)(A)(iii) 1. Discretionary Waivers are possible INA 212(g)(3) iii. Drug Addicts and Abusers are inadmissible INA 212(a)(1)(A)(iv) iv. AIDS Issue 1. 1993 Congressional Amendment to INA 212(a)(1)(A)(i) a. Excluded aliens determined by HHS to have communicable disease of public health significance including HIV/AIDS i. HIV/AIDS language deleted in statute in 2008 ii. Then in 2010 HHS removed as communicable disease of public health significance

II.

2010 HHS removed AIDS as communicable disease of public health significance a. NOTE*** i. No longer inadmissibility grounds under INA 212(a)(1)(A)(i) 1. HIV testing NO longer required v. Public Morality 1. 1990 Act significantly trimmed list a. Polygamist aliens only excluded now if coming to US to practice polygamy INA 212(a)(10)(A) b. Involvement in prostitution or other commercialized vice still inadmissible INA 212(a)(2)(D) Admission Procedure a. Modern Admission i. Little substantive or procedural protection from the Constitution 1. BUT!! INA and regulations make for more complicated by fairer process ii. More exacting procedures for Immigrants than Non-Immigrants iii. Four Modern Hurdles for Admission nd rd 1. Labor Certification required for 2 and 3 preference employment-based immigrants and SOME non-immigrants INA 212(a)(5)(A) 2. Visa Petition filed with USCSI for some statutes a. To establish beneficiary meets category requirements 3. Getting a Visa Application at Consulate Abroad a. After Visa petition is approved i. Applicant must prove that he/she meets category requirements AND doesnt fit into any inadmissibility ground b. 9/11 More intensive background checks 4. Actual Admission to US a. Formal application for admission at port of entry b. Visa is essential but it doesnt guarantee admission INA 212(a)(7) i. Can be denied at the port of entry c. CBP Officer can double-check and reexamine to see if there are any inadmissibility grounds i. Efficiency v. In-Depth Review 1. You must sacrifice one of the two in the admission process b. Visa Petitions i. Parties 1. Filler = Petitioner 2. Alien on whose behalf filed = Beneficiary ii. Forms 1. Family Sponsored = I-130 2. Employment-Sponsor = I-140 iii. Self-Petitions st 1. Some 1 Preference employment can self-petition INA 204(a)(1)(E) 2. Battered Spouse Waiver INA 204(a)(1) a. Violence Against Woman Act (VAWA) 2.

c.

Battered or subject to extreme cruelty by citizen or LPR spouses Also available for alien children Issue No protection from removal on ground of present without admission i. Conditional LPR/Alien must risk removal e. Good moral character requirement has discretionary waiver where disqualifying behavior linked to original violence 3. Victims of Trafficking and Violence Prevention Act of 2000 (U-Visa) a. Non-immigrant visa for some domestic violence victims who cooperate with police iv. Filing Petitions 1. Priority Dates a. Family-Based Date petition is filed INA 203(e)(1) b. Employment Date request for labor certification accepted for processing v. Approved Petitions 1. USCIS sends to States National Visa Service Center (NVC) in Portsmouth, NH vi. Visa Petition Processing Backlogs 1. USCIS Backlog Elimination Plan a. Now charging $1000 premium processing fee (in addition to regular fee) for 15 day processing since 2001 vii. Denial of Visa Petitions 1. USCIS must state the reasons for denying BUT Denials subject to administrative and judicial review a. Administrative Review i. Family = BIA ii. Employment = USCIS until called Administrative Appeals Office (AA0) b. Judicial Review i. IIRAIRA amended federal district court jurisdiction to cover only suits by the US but not against it INA 279 ii. Federal Question jurisdiction under 28 USC 1331 might be option viii. Revocation of Petitions 1. DHS Secretary may revoke previous approval for good and sufficient cause INA 205 2. Also there are certain automatic revocation grounds 8 CFR 205.1 3. Beneficiary must be given notice of intent to revoke and opportunity to respond 4. Cant revoke the Visa once beneficiary has begun journey to the US INA 205 Visa Applications i. Nearly all aliens need Visas to enter the US 1. Immigrants INA 212(a)(7)(A) 2. Non-Immigrants INA 212(a)(7)(B)(i)(II) 3. Basic information required under INA 221, 222 ii. Visa Waiver Program INA 217

b. c. d.

d.

Joint DHS and State Program Countries with historically low rates of visa refusals Up to 90 days enter without visa Requirements a. Country must give reciprocal privileges to US Citizens b. Present Return Ticket c. Not be a Safety Treat 5. Designated Countries 8 CFR 217.2(a) a. 36 countries in the list as of 8/4/2011 b. 30 European i. Including Eastern European Nations (Czech Republic, Hungary, etc) iii. Visa Applications Generally 1. Visas only valid for a limited time a. Immigrant visa must be used within 6 months INA 221(c) b. Non-Immigrant visas vary by category and country of origin 2. Attorneys not generally welcome at consulate interviews 3. Anti-Discrimination Provision INA 202(a)(1)(A) a. No person shall receive any preference or priority or be discriminated against in the issues of an immigrant visa because of the persons race, sex, nationality, place of birth, or place of residence iv. Non-Immigrant Visa Applications 1. Form DS-156 2. Document Requirements a. B-2 Tourists usually need none b. E-1, E-2 Need extensive to show substantive requirements met c. Some official organization documents can already be on file at consulate 3. Requiring Prior USCIS visa petition approval a. H = Temporary Worker b. L = Intra-company Transferee c. K = Fiance(e) d. O = Extraordinary Alien e. P = Athlete of Performing Artist 4. Burden of providing individual eligibility always on applicant a. Even if visa petition already approved b. State has the burden to decide personal eligibility or applicant v. Immigrant Visa Applications 1. Alien living in US considered resident of consular district of last residence abroad a. Can be hardship for some aliens to return to their country b. Regulations require consulate to accept application from alien physically within district and planning to remain long enough to process the visa 2. Must go to consulate in home country for interview to secure the visa Appealing Consular Decisions

1. 2. 3. 4.

e.

i. Generally NO APPEAL POSSIBLE 1. No administrative appeal or judicial review of consular decisions ii. Limited Safeguards 1. Principal consular officer required to review all refusals (internal consular review) 2. State Dept. may issue advisory provision a. Binds consulate on an interpretation of law, but only advisory on fact of application of law to facts iii. INA 104(a) may forbid State from providing administrative appeals of visa denials 1. DHS Secretary may not alter or reverse a consular officers denial a. But can refuse consular officer approved iv. CONSULAR ABSOLUTISM 1. Courts will refuse to review consular visa denials Actual Admission at the Border i. Customs and Border Protection (CBP) Job to Determine 1. If traveler is a US Citizen a. If not If any inadmissibility grounds apply ii. Post 9/11 Procedures 1. Fingerprint and photograph all non-immigrant visitors 2. Scan all travel documents iii. Primary Inspections at ports of entry 1. Scanning Passport & Visa 2. Checking lookout list on computer 3. Secondary inspections for more intensive scrutiny if doubts/complications in primary iv. When inadmissible 1. Standard Clearly and beyond a doubt entitled to admission a. If not person shall be detained for removal proceedings INA 235(b)(2)(A) 2. DHS Secretary has discretion to parole, unless criminal or national security grounds, into US v. Removal Hearings (Few Such Hearings) 1. Vast Majority do not exercise statutory right a. Expedited Removal b. Refuse Detention c. Lack attorney i. Legal Services Organizations with Legal Services Corporation funding prohibited from representing most aliens ii. Except for LPRs, refugees, asylees, battered spouse waiver eligible, H-2A farm-workers d. Desire to Avoid formal removal order barring future admission for up to 5 years INA 212(a)(9)(A) 2. Instead withdraw application for admission and depart immediately INA 235(a)(4) a. Discretion of DHS Secretary b. Also incentive for CBP to reduce paperwork, fit airline schedules

Removal proceeding begun by Notice to Appear (NTA) filing immigration INA 239(a) a. Specifies time and place of hearings b. Alleged facts c. Charged inadmissibility grounds d. Individuals procedural rights e. Given 10 days to procure counsel INA 239(b)(3) 4. Appeals from IJs decisions a. For a judicial review of removal order you must file petition for review directly in the Court of Appeals at the federal level INA 242(a)(1) 5. Burden of Proof a. Arriving alien bears burden of proving admissibility b. Standard of Proof Unclear i. Maybe IIRAIRA requires clearly and beyond a doubt entitled to be admitted and is not admissible INA 240(c)(2)(A) ii. Higher standard than beyond a reasonable doubt iii. Entitled to Enter Qualifies under a category c. Undocumented Aliens i. Must show that you were lawfully admitted by clear and convincing evidence in a removal hearing INA 240(c)(2)(B) vi. Expedited Removal 1. Also called Summary Exclusion INA 235(b)(1) 2. When does it apply? a. When CBP determines that arriving aliens are inadmissible under INA 235(b)(1)(A)(i) i. Fraud INA 212(a)(6)(C) ii. Lack of Proper Documents INA 212(a)(7) 3. Asylum Screening Interviews INA 235(b)(1)(A)(i, ii) a. When aliens indicate i. Fear of persecution OR Intention to apply for asylum b. To determine whether case is strong enough to proceed 4. Process a. Once found inadmissible under INA 212(a)(6)(C) or 212(a)(7), ordered removed without further heading INA 235(b)(1)(A)(i) i. No administrative appeal or judicial review of admissibility or relief from removal INA 242(e)(5) 1. Except returning LPRs, admitted refugees, and asylees INA 235(b)(1)(C) vii. Other Special Removal Procedures 1. National Security and Foreign Policy Cases a. Immigration officer or judge who suspects alien inadmissible under national security or foreign policy inadmissibility grounds shall order alien removed INA 235(c)(1) b. DHS Secretary automatically reviews orders

3.

2.

i. If concludes inadmissible (on confidential info) orders removed without further hearing Terrorism Cases a. Special removal procedure for alleged terrorists applies to inadmissible and deportable aliens i. Distinct from INA 235(c) procedure

Adjustment of Status (AOS)

I. Substantive Criteria a. Must be admissible as immigrant b. Immigrant category must be current INA 245(a) i. AOS application allowed to be filed at the same time as visa petition if approval of visa petition would make visa immediately available c. 1990 Act Required applicant to be inspected and admitted OR paroled into US to qualify d. 1994 Temporary legislation allowed aliens normally disqualified to adjust if paid $1000 penalty fee i. INA 245(i) Exemption (Lapsed in 1998 but pre-1998 applications can still get it) e. 1998 Some 1, 2, 3, 4 employment categories could adjust if they were out of status as long as they had entered the US lawfully and not out of status for more than 180 days INA 245(k) f. INA 245(i) i. Allows aliens out of status for more than 180 days otherwise inadmissible under INA 212(a)(9)(B)(i) to avoid being found inadmissible by not leaving the US and adjust internally g. No administrative appeal of denial of adjustment of status i. Wait for ICE to initiate removal proceedings and renew Adjustment of Status before Immigration Judge h. No judicial review of discretionary component of Adjustment of Status INA 242(a)(2)(B)(i) i. Applies to review of Immigration Judge and USCIS AOS denials ii. Courts have held that review is allowed for statutory eligibility challenges when there is a question of law INA 242(a)(2)(D) Context of Admission a. INA 243(a) Alien lawfully ADMITTED for permanent residence b. Federal Courts of Appeals agree that Adjustment of Status is NOT ADMISSION th i. 7 Circuit holds only initial admission counts for removal grounds that depend on admission

II.

Deportability Grounds
I. General Considerations a. IIRAIRA Changed entry to admission i. If alien never lawfully admitted, must contend with inadmissibility, not deportability grounds 1. Therefore, undocumented aliens are inadmissible and not deportable under law History a. First in Alien and Sedition Act of 1798

II.

III.

IV.

V.

i. President authorized to deport 1. Resident alien citizens of nations at war with US 2. Aliens judged dangerous for peace and safety of US ii. Authorization to deport aliens dangerous to peace and safety of US provision expired after 2 years, but Alien Enemy Act remains on books Theory of Deportation a. Deportation Removal of Alien from Interior of the US b. Justifications i. Check on Admission Process ii. Expelling those who violate conditions of admission Current Deportability Grounds INA 237(a) a. Grounds for removing deportable aliens i. Returns The confirmed movement of an inadmissible or deportable alien out of the US not based on an order of removal ii. Most of the voluntary returns are Mexican nationals who have been apprehended by the US Border Patrol and are returned to Mexico iii. Voluntary Departures and returns down from 2007 Meaning of Entry a. No deportation proceedings unless alien made an ENTRY i. Usually detrimental as 1. Inadmissibility grounds generally broader than deportability 2. Affirmative relief provisions narrower 3. Constitutional and Statutory procedural safeguards are fewer b. Essential Elements of several deportation grounds i. Time or manner of entry ii. EWI Entered without Inspection iii. Crime of moral turpitude after entry c. IIRAIRA amended Entry with Admission i. But Congress left some provisions with entry intact 1. Inadmissibility grounds a. INA 212(a)(3)(C)(i), 212(a)(5)(A)(i), 212 (a)(6)(E), 212 (a)(7)(i)(I) 2. Deportability grounds a. Inadmissibility at entry INA 237(a)(1)(E) b. Becoming public charge within 5 years of entry INA 237(a)(5) d. Entrys effect on procedure i. Arriving aliens and EWI aliens have slightly different standards of proof for required proof of admissibility INA 240(c)(2) ii. Aliens present in US at least 2 years exempt from expedited removal procedure required for all the aliens who are inadmissible on document or fraud - INA 235(b)(1)(A) 1. Entry determines presence iii. Alien ordered removed or an alien who voluntary departed who reenters, can be ejected without new removal hearing INA 241(a)(5) e. Definition of Admission refers to entry INA 101(a)(13) i. Means the lawful entry of alien into US after inspection and authorization by immigration officer f. Rosenberg v. Fleuti (1963)

i. RULE 1.

2.

Innocent, casual, and brief excursions not necessarily intended as departure disruptive of LPR status are subjective to entry consequences a. AKA Inadmissibility Grounds Fleuti Test (To determine if Departure is Intended) a. Length of Time Absent b. Purpose of visit/absence c. Procurement of Travel Documents LPR who went to Mexico for a few hours charged deportable for inadmissibility at entry on basis of psychopathic personality (homosexuality)

ii. Facts 1.

VI.

iii. Holding 1. Court avoids constitutional question by finding statutory interpretation issue under INA 101(a)(13) a. LPR departure to foreign place is NOT an entry if NOT INTENDED or REASONABLY TO BE EXPECTED or not voluntary 2. Effectuates Congressional purpose to construe intent exception to entry as meaning intent to depart in manner meaningfully interruptive of aliens permanent residence 3. Caselaw used by court a. DePasquale Case i. Respondent was going from NY to Detroit 1. The train passes through Canada and then he was told that he was ineligible for entry ii. Court calls deportation a punishment 1. Continued enjoyment of US hospitality should not be subject to meaningless and irrational hazards b. Delgadillo Case i. LPR was in a ship which was torpedoed and he was taken to Cuba to recoup 1. He was told that he was ineligible for reentry ii. Congress should not have intended to make right to remain so dependent on capricious circumstances c. Kwong Hai Chew Case i. Returning resident alien entitled as due process, to hearing on charges underlying any attempt to exclude him iv. Dissent 1. Activist judging to construe the statute because it should be left for legislature 2. Congress did NOT choose to alter entry definition Abandonment of Permanent Residence a. Turns on intent to return to US within relatively short period (Khondagholian v. Aschcroft) b. Must be temporary visit abroad with above requisite intent i. Not intent to retain LPR Status ii. If visit grows longer because you are waiting for an event to occur 1. You must retain intent to return to the U.S. within a short time period c. All admissibility requirements remain

VII.

VIII.

i. Absence under 1 year Green Card only ii. Reentry permits for trip 2 years or less INA 223 d. INA 101(a)(13)(C) LPR not regarded as seeking admission into US unless: i. Abandonment/Relinquished LPR status ii. Absent from more than 180 days iii. Departed during removal proceedings iv. Committed a 212(a) offense v. Unauthorized place or manner of entry e. Matter of Collado-Munoz i. If LPR falls under one of the 6 subcategories, apply FLEUTI TEST before they can determine admission 1. Fleuti doesnt apply f. Richardson v. Reno i. If LPR falls under one of the 6 subcategories, apply FLEUTI TEST before can determine if seeking admission ii. Unless doesnt mean the converse Grounds Related to Immigration Control a. Entry Without Inspection (EWI) i. Criminal offense to enter without inspection INA 275 ii. After prior removal order, EWI becomes a felony INA 276 iii. Crime for even US citizens to enter surreptitiously b. Entry while Inadmissible and Related Issues INA 237(a)(1)(A) i. Correcting the Admission process ii. Very Common Inadmissible because of Fraud INA 212(a)(6)(C)(i) 1. Also under INA 212(a)(7)(A) Not in possession of valid entry documents a. Theory of Provision Fraud renders entry document invalid 2. Falsely Claimed US Citizenship a. IIRAIRA makes Alien inadmissible for being present without admission because never validly admitted (Never Inspected) c. Post-entry Conduct Related to Immigration Control i. Immigrants receiving conditional permanent residence (through marriage or investment) whose immigrant status is terminated INA 216 and 216(a) 1. Become Deportable INA 237(a)(1)(D) 2. Policy aim of expelling those who fail to comply with conditions of admission ii. Aliens who are inadmissible at the time of adjustment of status are also deportable INA 237(a)(1)(A) Criminal Related Deportability Grounds a. ICEs ways of identifying immigrants crimes i. Alien will reveal on form during interview ii. Information provides tip iii. Employs full time investigators b. What is a conviction? i. INA 101(a)(48)(A) IIRAIRA 1. Formal judgment of guilty entered by court OR if adjudication of quilt withheld where

2.

3. 4.

5.

6.

7.

Judge or jury has found an alien guilty OR alien has entered a plea of guilty or nolo contendere OR has admitted to sufficient facts to warrant a finding of guilty AND b. Judge has ordered some form of punishment, penalty, or restraint on aliens liberty to be imposed Probation Punishment (Matter of Punu) a. Finding or admission of guilt + order of punishment i. Probation = Conviction Conviction = Crime NOT Civil Offense Finality of Conviction a. There is division among courts now about whether INA 101(a)(48)(A) requires finality Post-Conviction a. Cant be collaterally attacked in removal proceedings b. Other post-conviction remedies can be pursued in court that entered conviction Padilla v. KY (2010 Class 17) a. Criminal defense lawyers must advise clients of possible immigration (deportation) consequences of a guilty plea b. As of 2010 there are 28 states plus DC that have rules requiring courts to advise criminal defendants of the possible immigration consequences of their pleas Expungements a. Complex rules for whether can erase convictions for immigration purposes b. Not under State Rehabilitative Statutes i. Based on plain language of statutory conviction definition and Congressional purpose of uniform results across states c. Bad Counsel can erase conviction i. When conviction vacated because criminal court failed to comply with state statutes requiring judges to advise alien defendant if possible deportation consequences of guilty please 1. CEASE TO EXIST FOR IMMIGRATION PURPOSES d. Reversed Convictions i. Government has decided convictions NOT VALID for immigration purposes once reversed because of flaws in original judgments ii. Alien has burden of proof when seeking to reopen removal proceedings that conviction not vacated for immigration or rehab purposes (Matter of Chavez-Martinez 2007) e. General Rule on Invalid Convictions i. Convictions expunged or vacated because of legal error dont count for immigration purposes ii. Convictions expunged for reasons of rehab or to prevent deportation continue to exist

a.

c.

Federal First Offender Act (FFOA) a. Expungements or simple narcotic possession convictions by first-time offenders b. Pre and Post IIRAIRA i. Pre-IIRAIRA 1. Extended to Immigration ii. Post-IIRAIRA 1. 2 courts and AG have expressly declined to considere whether IIRAIRA changed that th c. 9 Circuit held that State FFOA and equivalent expungements qualify as conviction for immigration law purposes and can trigger removal i. Nunez-Reyes v. Holder (2011) d. Foreign equivalent expungement recognized for immigration i. Dillingham v. INS (2001) 9. Executive Pardons a. Presidential or governmental pardon eliminates deportability under INA 237(a)(2)(A) i. Moral Turpitude crimes, aggravated felonies, high speed flight from immigration checkpoints included INA 237(a)(2)(A)(v) 10. Miscellaneous Collateral Attacks a. Old Writ of Error coram nobis sometimes used to vacate for error at trial Crimes Involving Moral Turpitude INA 237(a)(2(A)(i, ii) i. Committed within 5 years...after the Date of Admission INA 237(a)(2)(A)(i) ii. Sentencing Requirements 1. Sentence of 1 year or longer may be imposed 2. Potential NOT actual punishment is the KEY iii. Two Crimes involving moral turpitude 1. Nature or length of sentence immaterial 2. Not arising out of single scheme of criminal misconduct a. Pacheco Test i. To be single scheme, crimes must take place at same time, no substantial interruption allowing change to reflect b. Gonzales-Sandoval Test i. Sufficient for two crimes to be planned at same time and exist according to plan 3. Can be anytime after admission INA 237(a)(2)(A)(ii) iv. Judicial Recommendations Against Deportation JRAD 1. Pre-1990 JRADs were binding on INS a. Prohibited from deporting aliens on basis of crime 2. 1990 Act repealed provision but retained validity of pre-1990 JRADs v. Drug Offenses 1. Main Ground INA 237(a)(2)(B) a. Uses federal definition of controlled substance

8.

d.

Illicit Trafficking in a controlled substance Aggravated felony INA 101(a)(43)(B) 3. Ground for aggravated felonies INA 237(a)(2)(A)(iii) Aggravated Felonies i. Distinct from Moral Turpitude Crimes 1. Dont have to be committed within 5 years after admission in order to incur deportability ii. Consequences of Aggravated Felony Classification 1. Eliminates MOST discretionary relief 2. Deletes Procedural Safeguards 3. Triggers mandatory detention from beginning of removal proceedings to removal INA 236(c)(1)(B) 4. Forever prevents return to US unless DHS gives special permission - INA 212(a)(9)(A)(ii) a. 20 year prison term if found in US unlawfully without permission INA 276(b)(2) b. Sentence in federal criminal case can be increased significantly if previously removed for aggravated felony conviction iii. Aggravated Felony Definition INA 101(a)(43) 1. Originally modest (murder, drug, firearms trafficking) 2. Now made ENORMOUS by amendments a. BIA has interpreted provisions to encompass misdemeanors (Matter of Small 2002) 3. Measuring sentences/imprisonment a. Term of Imprisonment sentence actually imposed b. Punishable/May be Imposed Maximum possible sentence under criminal statute iv. Retroactivity Issues 1. Two different meanings of the term retroactivity and must distinguish b/w a. Effective date in change of definition of aggravated felony b. Effective dates of provisions assigning specific consequences to aggravated felony convictions v. Leocal v. Ashcroft (2004 Class 18) 1. Holding a. Court rejected as too narrow an analysis, looks at use in context of entire statutory definition i. 18 USC 16(a) 1. Use implies active employment, unnatural to say that actively employ force against person/property by accident a. Therefore, Leocals DUI is not a 16(a) crime of violence ii. 18 USC 16(b) 1. Substantial risk of use of physical force relates to whether type of offense is likely to require physical 2.

e.

force, not whether reckless conduct may result in physical force a. Therefore, Leocals DUI is not a type of offense likely to require use of physical force to accomplish b. Court used Categorical Test, looking not at facts of the case, but at the FL statute whether statute required use of force as element of guilty c. BIA changed positions on DUI issue i. Originally held DUI was a crime of violence, but later overruled that except for in circuits where DUI had already held to be crime of violence ii. In Leocal the court upheld DUI as a crime of violence because th 11 Circuit had so held th 1. However, 11 Circuit only held this because they had been following BIAs original holding that DUIs were crime of violence vi. Judicial Deference to Administrative Interpretation 1. Courts have held that federal courts need not to defer to BIA determination of what constitutes an aggravated felony a. Criminal statutory interpretation outside BIAs special competence and Congressional delegation 2. Otherwise, most Federal Courts hold to CHEVRON PRINCIPLE giving deference to administrative agencies interpretation of federal statute they administer a. CHEVRON TEST i. Dispute about an agencys final decision 1. Has Congress spoken directly about the question at issue? a. If Yes END OF THE MATTER, Court and Agency must give effect to Congress intent b. If No Court does NOT impose its own construction of statute, RATHER give deference to Agency vii. Uniform, generic federal meaning for certain crimes 1. SCOTUS found that vehicle burglary does not satisfy uniform, generic federal meaning of burglary, which requires breaking and entering of building or structure a. Vehicle burglary is NOT an aggravated felony Controlled Substance Offenses i. Convictions of controlled substance offenses render alien deportable INA 237(a)(2)(B) ii. Illicit trafficking in controlled substance = aggravated felony in INA 101(a)(43)(B) as well as a deportable offense 1. Includes any drug trafficking crime a. Drug Trafficking Crime Any felony punishable under Controlled Substance Act

IX.

X.

BUT!!! if State felony but federal misdemeanor, not a drug trafficking crime for immigration purposes (Lopez v. Gonzales 2006) a. This is key because many states make even possession of small amounts of weed a felony, while it is held to be a federal misdemeanor f. Aiding and Abetting Aggravating Felonies i. SCOTUS held that aiding and abetting theft was an aggravated felony INA 101(a)(43)(G) Gonzales v. Duenas-Alvarez (2007) ii. May extend to all aggravated felonies th 1. 9 Cir. Held as a matter of first impression that aiding and abetting can be a crime of violence, thus an aggravated felony (Ortiz-Magna v. Mukasey 2008) th i. BUT!!! 9 Circ. Reserved full consideration of MENS REA issue for aiding and abetting aggravated felonies for future case. (US v. Grajeda 2009) Political and National Security Grounds a. REAL ID Act of 2005 expanded terrorism deportability grounds to cover ALL of terrorism inadmissibility grounds INA 237(a)(4) i. Before deportability grounds were narrower 1. Unlike inadmissibility, they did not cover alien likely to engage in terrorist activity or representative of terrorist organization. Other Deportability Grounds a. Reflect economic, moral, health-related concerns i. E.g. INA 237(a)(1)(C)(ii), 2(B)(ii) b. Public charge within 5 years INA 237(a)(5)

2.

Relief from Deportability

I. Policy a. Need to weigh conduct against other factors i. Long term residence ii. Unusual degree of hardship iii. Likelihood of persecution in another country b. Reduce administrative costs i. Voluntary departure, avoid formal removal proceedings Affirmative Defenses a. Alien has burden of proof Remedy Variables to Consider a. Deportability grounds to which provision supplies defense b. Prerequisites to obtaining relief c. Whether relief automatic or subject to someones discretion i. Once prerequisites are met ii. How far reaching are the consequences iii. Who decides whether to grant relief (IJ/BIA or USCIS) Limitations of Relief from Removal a. 10 year bar on relief for those who fail to appear in removal proceedings or fail to leave on time for voluntary departure INA 240(B)(7) & 240B(d) i. Relief Cancellation of removal, voluntary departure, registry

II. III.

IV.

b.

V.

Aggravated Felons i. Expressly barred from 1. Cancellation of removal INA 240A(a)(3), 240A(b)(1)(c) 2. Voluntary Departure INA 240B(a)(1) 3. Registry INA 249 ii. Precluded to show good moral character c. Terrorist Bar i. Deportable on terrorist grounds barred from relief 1. Cancellation of removal INA 240A(a)(3), 240A(b)(1)(c) 2. Voluntary Departure INA 240B(a)(1) 3. Registry INA 249 d. Applicants for relief subject to background checks i. For forms of relief conferring right to reside in US 1. Cancellation of removal, adjustment of status, registry, asylum 2. DHS performs identity, law enforcement, national security background checks ii. Relief not granted until background checks are cleared e. Judicial Review i. No judicial review for overwhelming majority of judgment denying discretionary relief INA 242(a)(2)(B) ii. Some judicial review of agency determinations that alien statutorily ineligible for discretionary relief Cancellation of Removal a. Lasting relief from removal b. Two Types i. Cancellation of Removal Part A INA 240A(a) 1. Available only to certain LPRs ii. Cancellation Removal Part B INA 240A(b) 1. Available to certain non-permanent residents (can be undocumented) c. Cancelling of Removal Part A i. Three Historical Cases 1. Matter of L (1940 Class 19) a. Long term LPR deportability triggered because left and reentered the US with moral turpitude conviction b. AG gave him relief available for long term LPRs in exclusion, but not in deportation proceedings 2. Matter of GA (1956 Class 19) a. Long term LPR convicted of deportable marijuana possession, then incurred additional deportability charge by leaving and returning the US b. Given discretionary relief for long term LPRs available for inadmissibility charges, based on harm of double-deportability for same conviction 3. Francis v. INS (1976 Class 19) a. Extended discretionary relief for inadmissibility INA 212(c) to deportability in order to uphold equal protection

d.

ii. It violates equal protection to give discretionary relief only to long term LPRs who leave the US at some point and then return iii. Availability and Eligibility 1. First requirement 5 years of LPR Status a. Regulations hold that LPR status terminates upon entry of final administrative order of exclusion, deportation, or removal - 8 CFR Section 1.1(p) 2. Second Requirement 7 years of continuous residence in US after admission in any status INA 240A(a)(2) a. Non-immigrant stays fully counted (Matter of Blancas 2002) iv. Disqualifications 1. Aggravated felons INA 240A(a)(3) v. Discretion 1. Must show merits favorable exercise of discretion in addition to establishing statutory eligibility a. Factors Matter of CVT 1998 iv. Limits on new Discretionary Relief 1. Matter of Granados 1979 a. INA 212(c) is not a defense to deportation unless deportability ground also inadmissibility ground 2. BIA overrules itself in Matter of Hernandez-Casillas a. As long as deportability ground not analogous to non-waivable exclusion ground, INA 212(c) relief could apply 3. AG reverses and reinstates Granados in 1990 a. So that INA 212(c) application would relate to statutory language on admission 4. Effect of AG reversal was to make relief unavailable to some LPRs charged with offenses Congress didnt deem serious enough to make a basis for exclusion 5. IIRAIRA codified and resolved the issues a. Deportable aliens no longer required to identify comparable inadmissibility ground b. Do not have to leave US to qualify for relief c. Available to inadmissible AND deportable resident aliens Cancellation of Removal Part B i. Principal Beneficiaries = Undocumented Immigrants ii. Availability and Eligibility 1. Available to inadmissible and deportable aliens 2. 10 years of physical presence a. Inadmissibility ground that it most often waives is presence without admission b. Arriving aliens returning from temporary visits abroad after 10 years of presence in US can also apply iii. Two Separate Branches 1. General Branch 2. Special branch for certain domestic violence victims iv. Requirements

v.

vi.

vii.

viii.

ix.

10 years continuous physical presence Good moral character Exceptional and Extreme Unusual Hardship Relaxed for Domestic Violence Victims a. Shorter physical presence required, more lenient hardship standard, good moral character sustained if disqualifying conduct linked to Domestic Violence Extreme Cruelty for VAWA Relief 1. Court Split over whether establishment of extreme cruelty is reviewable th th a. 9 Reviewable v. 10 Non-Reviewable Two hurdles to clear for relief 1. Establish Statutory Eligibility 2. Received favorable exercise of discretion (applicant must show that merits discretion) Numerical limits 1. Limited to 4000 grants per year INA 240A(e)(1) a. 4324 admitted in 2010 i. IJs and BIA can reserve decision on pending applications until quota again permits Continuous Physical Presence 1. Extended from 7 years to 10 years INA 240A(b)(1)(a) 2. NTA service automatically ends continuous physical presence INA 240A(d)(1) 3. Bright Line rules for destruction for continuous physical presence INA 240A(d)(2) a. Single absence of more than 90 days OR b. Cumulative absences of more than 180 days 4. INA 240A(d)(2) came from IRCAs provision allowing that brief, casual, and innocent absences did not destroy continuous physical presence Hardship 1. Must show exceptional and extremely unusual hardship a. Hardship has to be to qualifying family member, not to alien applicant INA 240A(b)(1)(D), (b)(2)(E) 2. VAWA prong exceptions a. Only extreme hardship b. Can be to alien applicant himself/herself 3. Hardship determination is discretionary in nature, so not directly reviewable INA 242(a)(2)(B)(i) a. BUT!! when circumstances change, alien can move to reopen removal proceedings with IJ or BIA, depending on where the case ended i. Decision to reopen is discretionary to IJ of BIA b. If reopen the case the court must decide i. Whether applicant meets statutory prerequisites for removal ii. Whether discretion should be favorably exercised c. Reopen decision IS REVIEWABLE i. Denials of Re-Openings also reviewable!

1. 2. 3. 4.

e.

Courts often exercise discretion to stay removal to at least glance at motions, any motion to reopen usually delays removal 4. Congressional intention for exceptional and extremely unusual hardship a. Substantially beyond that which ordinarily would be expected to result from aliens deportation i. That US child would fare less well in other country is insufficient 5. Matter of Recinas a. Undocumented alien, single Mexican mother of 6, found to demonstrate exceptional and extremely unusual hardship to her 4 US Citizen children b. Uses cumulative test of factors i. In this case cumulative factors pushing to hardship well beyond norm in most removal cases (Cumulative Factor Test) 1. Heavy financial and familial burden on respondent (single mother of 6 children) 2. Lack of support from childrens father 3. US Citizens childrens lack of Spanish 4. Lawful US residence of all immediate family and concomitant lack of family in Mexico ii. Key that there is no family in Mexico and all her family is in the U.S. 6. Other Hurdles to Cancellation of Removal B a. Good Moral Character i. For 10 years preceding application INA 240A(b)(1)(b) 1. Not Good Moral Character under INA 101(e) = Alcoholics, False obtaining of benefits b. Disqualifying Grounds INA 240A(c) i. Includes crew members, certain exchange visitors, most are inadmissible or deportable on national security or political grounds c. Discretion i. AG (immigration court) may cancel removal of alien satisfying statutory prerequisites INA 240A(a), (b) d. Separation of Powers i. Congress struck down provision requiring Congressional acquiescence to cancellation grants in 1988 ii. SCOTUS had struck down other in 1983 on separation of power grounds NACARA Nicaraguan and Central American Relief Act of 1997 i. Relief for Nicaraguan and Guatemalan nationals in the US, many of whom are victims of prolonged Civil Wars ii. Two Kinds of Reliefs 1. A type of amnesty for Nicaraguan and Cuban nationals 2. Right to apply Pre-IIRAIRA cancellation of removal and adjustment of status

d.

VI.

VII.

Results in special rule of cancellation of removal for certain Guatemalan, Salvadorian, and Eastern European Nationals iii. Special Rule Cancellation of Removal 1. Must have entered before 1990 2. Must affirmatively apply 3. Only 7-year physical presence required 4. Only extreme hardship to self or family members 5. Remedy is still discretionary 6. Exempt from the 4000 a year numerical limit iv. Effects on Immigrant Quotas 1. One-half of Salvadorian and Guatemalan adjustments are subtracted from diversity ceiling rd 2. Other half are subtracted from other workers prong of 3 employment preference category 3. BUT!! Reduction to either quota cannot exceed 5000 in one year 4. Still doing maximum reductions each year because of thousands of NACARA beneficiaries Registry INA 249 a. AG Discretionary authority to award LPR status to certain aliens who entered before a certain date i. Current date is Jan 1, 1972 ii. Date set by periodic amendments b. Criticism i. Constantly decreasing utility of remedy ii. Should replace with specific qualifying period c. Requirements i. Cant fall within more serious inadmissibility grounds ii. Maintained continuous residence iii. Good moral character iv. Unavailable to aliens who failed to comply with voluntary departure or appear at removal hearing INA 240(b)(7), 240B(d) Legalization and Adjustment of Status a. Legalization and Adjustment of Status i. Legalization 1. Last Big Scale was in 1986 through IRCA ii. Adjustment of Status INA 245 1. Dual Function (in deportability context) a. Affirmative relief from removal b. Means of attaining LPR status without leaving US 2. Establishing admissibility a. Like consular processing LPR applicants, can apply for various waivers of inadmissibility grounds 3. Continuous Lawful Presence requirement a. Excludes many potential out of status applicants 4. Unavailable as remedy for 10 years to those failing to show at removal hearing or comply with voluntary departure order INA 240(b)(7), 240B(d)

a.

5. VIII.

In removal proceedings a. Once initiated, application for adjustment of status is filed with IJ

IX.

Private Bills a. Congress Passed 2 private bills in 2010 i. First passed in 5 years 1. 1 for wife of military service member killed in Iraq 2. 1 for Japanese man never legally adopted by American mother who was killed in a car crash b. No Automatic because stays of removal pending Congressional Consideration i. In practice, agencies stay removal when they receive subcommittee chairs requests for reports ii. Therefore, introducing a private bill can suspend removal, even if bill never passed Limited Relief from Removal a. Deferred Action i. Usually in unusually sympathetic cases ii. AKA prosecutorial discretion, non-priority status iii. ICE free to proceed, but case on backburner iv. Former INS Operations Instruction: Non-Priority Status 1. Spurred by FOIA litigation by John Lennon and Yoko Onos immigration lawyer 2. Standard Where humanitarian factors would make deportation unconscionable 3. Since disappeared, no Federal Register notice v. Former INS Memo on Deferred Action 1. Greater use of prosecutorial discretion needed to balance IIRAIRA harshness 2. Overriding criterion for initiating removal = relative importance of federal government interest 3. Specific Factors to be considered a. Is person an LPR b. Duration of Residence c. Criminal History d. Humanitarian Concerns e. Past Immigration Violations f. Likelihood of Ultimate Removal g. Availability of Alternative Courses of Action h. Length of Bar to Future Return i. Past Cooperation with authorities j. Military Service k. Role in Community l. Availability of Detention Space 4. Deferred Action does not create any right or benefit a. Todays decision to commence removal proceedings is non-reviewable INA 242(g) 5. Current ICE Guidelines a. Likelihood of future eligibility for permanent residence b. Likelihood of success on merits, fairness, and efficiency c. Special humanitarian considerations

X.

d. Military Service Is Deferred Action Legal a. INA 237(a) provides that deportable alien SHOULD be removed Voluntary Removal INA 240B a. In exchange there will be no FORMAL removal order issues i. At aliens own expense ii. EXCEPTION INA ( 241(e)(3)(C) b. Two Types i. INA 240B(a) either in lieu of removal proceedings or before removal proceedings 1. Not eligible for Voluntary Removal under INA 240B(a)(1), (c): a. Aggravated felons, inadmissible for terrorism grounds, previously removed and unlawfully returned 2. May be required to post bond INA 240B(a)(3) 3. Voluntary departure period may be as long as 120 days INA 240B(a)(2) ii. INA 240B(b) at conclusion of removal proceedings 1. More restrictive 2. Same categories of eligibility as INA 240B(a) plus others 3. 1 year of physical presence immediately proceedings Notice to Appear is required INA 240B(b)(1)(A) 4. Good moral character for 5 years immediately preceding application INA 240B(b)(1)(B) 5. Bond Mandatory INA 240B(b)(3) 6. Maximum period 60 days INA 240B(b)(2) c. Who can grant Voluntary Departure? i. ICE only AND it has to be in lieu of removal proceedings INA 240B(a) 1. When Notice to Appear not yet filed ICE can grant on own 2. When Notice to Appear already filed and proceedings Commenced ICE has 2 options b. Join with alien in motion to IJ to dismiss the case and then grant Voluntary Departure c. Join with alien in requesting IJ to grant Voluntary Procedure ii. IJs can grant under INA 240B(a) or (b) but depends on timing 1. IJs can only grant INA 240B(a) Voluntary Departure up to 30 days after Master Calendar Hearing a. Unless ICE stipulates to grant at some point later in removal proceedings b. Alien must apply for Voluntary Departure or during Master Calendar hearing c. After deadline passes, only more restrictive INA 240B(b) available d. Effect on Unlawful Presence i. 3 year bar on aliens unlawfully present for more than 180 days but less than 1 year who voluntarily departed prior to commencement of removal proceedings INA 212(a)(9)(B)(i) ii. Departure before or after NTA filing has LEGAL SIGNIFICANCE e. Government Savings i. Pre-Hearing Voluntary Departure ENORMOUS SAVINGS 6.

f.

XI.

Harmful Presence i. Incentive for ICE to pressure aliens to accept Voluntary Departure even where alien has colorable asylum claim g. Benefits to Aliens i. Avoid 10 or 20 year bar on return from formal removal order (20 years for second offense) INA 212(a)(9)(A) ii. Low gain from waiting for removal hearing, especially if they have to post bond or remain in detention 1. After voluntary departure they may be able to enter illegally h. Effect on Other Forms of Relief i. If granted Voluntary Departure but fail to leave within designated time, ineligible for other remedies including adjustment of status INA 240B(d)(1)(B) 1. BUT!! in cases where circumstances change, can request BIA to withdraw grant of Voluntary Departure a. Risky because removal order is reinstated ii. Voluntary Departure unavailable for 10 years to aliens failing to appear at removal hearings or failed to honor the terms of prior Voluntary Departure order INA 240(b)(7), 240B(d)(1)(B) i. Judicial Review of Voluntary Departure Denials Barred INA 240B(f), 242(a)(2)(B)(i) i. DHS Secretary authorized to limit eligibility for Voluntary Departure INA 240B(e) 1. Non-Delegation doctrine might come into play, but it has not been invoked a. Non-Delegation Doctrine i. One branch of government cant authorize another to carry out its constitutional delegated authority ii. INA 240B(e) appears to delegate legislative power to DHS Other Forms of Limited Relief a. Objects to Destination INA 241(b)(2) i. Multi-Step approach to selection removal country 1. Aliens designation of preferred country 2. Removed there UNLESS exception applies a. If exception applies here, must be removed to country of which subject, national, or citizen b. If Second exception apply, IJ must choose from 1 of 6 other possibilities in INA 241(b)(2)(E)(i-iv) c. If removal to any of these possibilities impracticable, inadvisable, or impossible IJ free to designate other country that will accept alien b. Stays of Removal i. Can request ICE to grant discretionary temporary stay when need more time to take care of personal matters ii. Should also request stay of removal when filing a motion to reopen removal proceedings iii. 4 Factor Balancing Test from Hilton v. Braunskill 1. Whether applicant made strong showing that likely to succeed on merits 2. Whether will be irreparably injured if no stay 3. Whether stay will substantially injure other parties 4. Whether public interest lies

XII.

XIII.

iv. INA 242(f)(2) prohibits enjoining of removal order without clear and convincing evidence as a matter of law 1. SCOTUS held that traditional balancing test above governs motions for stays of removal NOT INA 242(f)(2) Miscellaneous Defenses to Removal a. Proof of US Citizenship = Complete defense to removal b. Unsuccessful Defenses i. Removal of some parents results in UNCONSTITUTIONAL de facto removal of US Citizen Children 1. Child cant make real choice about where to live 2. Childs removal not inevitable because parents could live children with foster parents and they are free to return when older ii. Constitutional Defense characterizing removal as punishment 1. Deportation cannot be classified as punitive iii. Estoppel of deportation for government official wrongdoing or incompetence 1. SCOTUS held that may be impermissible with at least a showing of affirmative misconduct a. Unclear what would constitute affirmative misconduct Deportation Procedure a. Overview i. Apprehension 1. DHS has powers outside of search or arrest warrants, vested in all employees bearing title immigration officer INA 287(a) 2. Power to interrogate any person believed to be alien as to right to be in US 3. Power to arrest any alien if reason to believe in IS in violation of immigration laws AND is likely to escape before an arrest warrant can be obtained 4. Within a reasonable distance from any external boundary, power to board any vessel in US territorial waters and any train, aircraft, or other vehicle for the purpose of searching for aliens 5. Within 25 miles of any external boundary, power to enter private lands other than dwellings for patrolling purposes th ii. 4 Amendment Limitations 1. Immigration officer must have reasonable suspicion suspect is not a citizen OR There must be reasonable suspicion that person is not only an alien, but also that the person is in the US in violation of immigration laws 2. Other actions require probable cause to believe that person is alien unlawfully present th 3. Important Variables for 4 Amendment Protections a. More demanded in interior than border b. More demanded when mobile units performing roving patrols than at stationary checkpoints c. More demanded for search than stop or interrogation d. More demanded for arrest b. Before Removal Hearing i. Must have prima facie evidence to issue Notice to Appear (NTA) 1. NTA Functions

c.

Explains nature of procedure Time and place of appearance before IJ Instructs person to keep government apprised of address and consequences if he/she fails to do so INA 239(a)(1) d. Specifies deportability grounds charged and recited factual allegations th i. 9 Cir Res Judicata bars removal proceedings on same charges as prior removal proceedings ii. DHS must decide whether to detain pending final removal decision 1. Mandatory Detention for a. Aggravated Felons b. Inadmissible on Criminal Grounds c. Inadmissible or Deportable on Terrorism Grounds d. Most arriving passengers (including those subject to expedited removal) e. Aliens awaiting execution of final removal orders 2. When Detention is not Mandatory, DHS has options INA 236(a) a. Detain alien without bond b. Release on cash bond of at least $1500 c. Release on conditional parole d. Release permitted only when DHS finds alien wont pose danger to persons or property AND is likely to appear for future proceedings 3. Alien can obtain De Novo bond redetermination hearing before IJ 8 CFR 1003. 19 (Often by Phone) iii. Not permitted to work while removal proceedings are pending INA 236(a)(3) iv. Miranda Rule inapplicable for deportation proceedings 1. DHS internal regulations only require warning of right to silence and counsel once formal proceedings initiated v. After NTA filed, an alien has Master Calendar hearing, sometimes by telephone vi. Interval between Master Calendar and Individual Calendar 1. Either party can request continuance (IJ can grant for good cause shown) 2. Either party can move to a. Change venue b. Remand to DHS for consideration for application that would moot removal proceedings c. Supress Evidence 3. Limited Discovery Possible The Removal Hearing i. Exempt from Administrative Procedure Act ii. IJ advises alien of right to counsel at no cost to government and provides with a list of free legal services iii. IJ takes pleading if it has not happened already 1. Alien and counsel must admit or deny each allegation, then concede or deny deportability iv. Burden of Proof 1. Once ICE clears the burden of proving alien is an alien

a. b. c.

The burden shifts to alien to prove by clear and convincing evidence that lawfully present in two ways INA 240(c)(3)(A) a. Applicant for Admission (Anyone present without admission) i. Clearly and beyond a reasonable doubt that he/she is entitled to be admitted and NOT inadmissible under INA 212 b. Lawfully present pursuant to prior admission by clear and convincing evidence under INA 240(c)(2) 3. All aliens must also prove Time, Place, and Manner of Entry INA 291 a. If the alien cant, this creates a rebuttable presumption that he/she is unlawfully present, thus deportable under INA 237(a)(1)(B) i. However, IIRAIRA addition of presence without admission as inadmissibility ground renders INA 291 superfluous 4. Alien also has burden of proving eligibility and deservedness for any relief requested INA 240(c)(4)(A) 5. For lawfully present aliens, the burden shifts to ICE to prove deportability ground by clear and convincing evidence INA 240(c)(3)(A) 6. NOTE*** a. Unlike criminal proceedings, adverse inferences CAN be drawn from silence, particularly Citizenship i. Matter of Guevara 1. Limited immunity can be granted to an alien in removal proceedings through agency order rendering testimony non-incriminating in criminal proceedings v. Presentation of Case 1. If deportability contested, ICE presents first 2. IJ free to interject additional cases 3. Second phase if IJ finds alien deportable for application of relief vi. Civil Procedure 1. Rules of Evidence DO NOT apply a. Admission of any relevant evidence b. Fundamental fairness test for hearsay 2. EOIR provides interpreter vii. Admissibility of Evidence 1. All testimony under oath or affirmation a. 8 CFR 1003.34, 1240.7(b) 2. Alien has right to cross-examine governments witnesses INA 240(b)(4)(B) a. Government must make reasonable effort to produce the witness at hearing before reporting hearsay i. Inadequate efforts 1. Governments only evidence, a hearsay statement alien had originally provided to avoid felony prosecution, and had also failed to make any reasonable effort to produce declarant 2. INS tried to introduce affidavit from aliens spouse alleging sham marriage, but didnt produce spouse

2.

d.

3. Illegal Evidence Review of Decisions i. Administrative Review - BIA 1. BIA Aschcroft Rule a. Expanded 1 member decisions and Affirmances Without Reasoned Opinion (AWOs) i. BIA decides large share of cases with AWOs done by single member b. Process i. Appellant files Notice of Appeal within 30 days of IJ decision ii. Screening BIA member can enter summary dismissal if (8 CFR 1003.1(d)(2) include 1. Notice of appeal fails to specify reasons 2. Appeal filed for improper purpose like delay or lacks arguable basis in fact 3. Indicates intent to file brief but fails to explain 4. Appeal does not fall within BIA jurisdiction 5. Appeal is untimely c. Single Member Decisions the Norm and must act alone UNLESS 1 of 6 enumerated situations where it must refer to 3 member panel i. Inconsistent rulings among IJs ii. Decision not in conformity with the law iii. Finding of fact is clearly erroneous iv. Major national impact v. Need to reverse decision vi. Need for precedential decision vii. Proposed 7 situation Complex, novel, or unusual issue of law or fact d. Opinions designated for publication become binding precedent for IJs and DHS Officials e. Reduced BIA from 23 to 11 members i. Those cut were the most favorable to the aliens ii. Raised doubts about independence over BIA 1. AG had never cut BIA members in history iii. Some membes reduced ruling favorable to aliens once they knew cuts were coming iv. TODAY 15 BIA members! 2. Reforms and Efficiency Concerns a. Balance efficiency goals with justice interests of fairness, accuracy, consistency, public acceptability ii. Motions to Reopen or Reconsider INA 240(c)(6)(A), (c)(7)(A), (c)(7)(C)(i) 1. Grounds for Denial a. INS v. Abudu (1988 Class 24) i. Movant did not establish prima facie case for substantive relief sought ii. Failed to introduce previously unavailable, material evidence

XIV.

Procedural Restrictions a. Can only file 1 motion to reconsider removal order i. Must file within 30 days of final administrative decision b. Can only file 1 motion to reopen a removal order iii. Judicial Review of Removal Orders 1. Right to judicial review once all relevant administrative authorities have passed on removal case 2. Common procedure to file petition for review in U.S. Court of Appeals for circuit where removal hearing held INA 242(b)(2) a. Must be administratively final to be reviewable INA 242(b)(2) b. Must have exhausted all administrative remedies, including appeal to BIA INA 242(d)(1) c. Must file within 30 days of final order INA 242(b)(1) d. Exceptions for removal orders based on criminal convictions and challenges to denial of discretionary relief still reviewable on questions of law INA 242(a)(2)(B,C,D) 3. Surge in Federal Filings iv. Petitions for Review INA 242(a)(1) 1. No more automatic stay of renewal a. Must move court in order to grant it INA 242(b)(3)(B) i. Result is that aliens join their motion for stay with their petition for review 2. Exhaustion of remedies required a. Includes raising issue before BIA b. Res Judicata and Collateral Estoppel apply 3. Filing from Overseas Permitted 4. Source of Review a. Court decides merits solely on basis of administrative record INA 242(b)(4)(A) 5. Scope of Review a. Findings of fact upheld unless any reasonable adjudicator would be compelled to conclude the contrary INA 242(b)(4)(B) i. Functional equivalent of substantial evidence test? ii. INA upholds substantial evidence test standard for removal orders INA 240(c)(3) e. Execution of Removal Order i. Must be removed within 90 days of final order INA 241(a)(1) ii. DHS Secretary may execute order if alien in prison for conviction of nonviolent offense before sentence completed if State consents INA 241(a)(4)(B) iii. Aliens cooperation in securing necessary travel documents important INA 274D iv. Detention possibly mandatory for some aliens INA 241(a)(2) v. Bag and Baggage Letter for aliens not in DHS detention to report at specific time and place Prosecutorial Discretion a. Removal Process i. Apprehension

2.

XV.

XVI.

ii. Formal Administrative Hearing iii. Determination of Appropriate Relief iv. Potential to Culminate in Federal Court Review b. Prosecutorial Discretion Comes in i. Prioritizing enforcement actions to achieve goals 1. Aliens with serious crimes 2. National Security Danger 3. Recently entered US illegally ii. Deciding whether to initiate removal proceedings IJs Functions a. Four Separation of Function Problems i. Adjudicator has been investigator in same case or factually related case ii. When not adjudicating cases, the adjudicator investigates and prosecutes other unrelated cases iii. At hearing, empowered to perform prosecutor-type functions like presenting evidence and examining witnesses iv. Supervisor has investigation and prosecutorial responsibilities b. Influence of INS on Chief Office of the Immigration Judge i. Matter of RM (2001 Class 22) 1. IJ recused self from case after Chief IJ granted INS request he had earlier denied, but wrote opinion criticizing process 2. Chief IJ lacks legal authority to overrule IJ decision and is required by ethical rules to refrain to acting in case where one party has made ex parte communication to him 3. Chief IJ can investigate complaints, but not without giving other party an opportunity to be heard 4. Chief IJ intervention undermined immigration court by protecting INS from having to make legal case before BIA c. Bush Administrations DOJ hiring scandal i. Selection of IJs by political affiliation ii. Led to hiring procedure change (Now responsibility of EOIR) Immigrant Representation a. Having winnable cases is a key concern for pro-bono attorneys b. Fraud i. All service agencies for immigrant communities 1. Sometimes known as Notarios by Latin American Aliens c. Finding Lawyers for the Indigent i. Trying to match up private attorneys and alien agricultural workers ii. Issues can Include 1. Mobility of Client Population 2. Language Barriers in serving non-English speaking population 3. High costs incurred 4. Lack of potential for large fee awards 5. Legal Services Corporation funding barriers d. Is there a constitutional Right to Counsel i. Aguilera-Enriquez v. INS (1975 Class 22)

1.

2.

3.

4.

Mexican LPR convicted of smuggling cocaine across border and ordered deported a. He argued that INA 242(b)(2) which only gives an alien the privilege of counsel at no expense to government is unconstitutional as violating due process Holding a. Due process would only require assistance of counsel if necessary to provide fundamental fairness i. Since deportability charge here is irrefutable, there was fundamental fairness without a lawyer Dissent a. Deportation is a punishment, so deserves the same level of due process procedural protection as criminal proceedings b. Deportation proceedings, unlike parole hearings, are adversarial hearings where the IJ is not there to help alien but there to determine aliens deportability Conflict over Content of Due Process a. NOTE*** i. Always mention Mathews v. Eldridge (1976) 1. Established Procedural Due Process Balancing Test a. Private Interests at Stake b. Probable value of procedural element in reducing risk of erroneous deprivation of private interest c. Governments interest in dispensing with procedural element in question

e.

f. g.

h.

Legal Aid i. 1996 Congress prohibited grant of Legal Services Corporation (LSC) funds to any organization providing legal assistance for or on behalf of any alien except for 1. LPRs present in US 2. Un-rejected applicants for adjustment of status with specified relationships to US Citizens present in US 3. Asylees or refugees present in US Pro-Bono Legal Services i. Remote detention facilities and travel costs often prohibit for pro bono attorneys Equal Access to Justice Act i. Normally allows prevailing parties in certain adversarial proceedings with government agency to recover attorney fees from Government 1. Unless agencys position substantially justified ii. SCOTUS barred this for removal proceedings Ardestani v. INS (1991) Authorization to Practice i. 8 CFR 1292.1 Representation of others 1. Attorneys in US 2. Law Students and graduates not yet admitted to bar when a. Alien requests

i.

Law student supervised by attorney as part of legal aid program or law school clinic and working for free c. Law graduate supervised by licensed attorney and working for free d. Immigration official permits 3. Reputable Individuals if representing for free 4. Accredited Representatives ii. Florida v. Matus 1. Facts a. Matus was performing functions as lawyer in Florida when he did not have a Florida Bar License 2. Holding a. Florida enjoined Matus from the unauthorized practice of the law iii. Regulations Defining the Practice of Immigration Law 1. Preparation or filing of any brief, document, application, or petition on behalf of another person a. Preparation i. More than just filling in blanks on form, instead the study of facts and applicable laws combined with advice 2. Civil Offence for unauthorized practice of immigration law a. Also penalties for frivolous false fillings 3. Crime to knowingly present immigration documentation/application with false statement or based on complete lack of reasonable basis in law or fact Discipline of Immigration Practitioners i. Discipline of Immigration Practitioners 1. Immigration attorneys not only subject to jurisdictional ethical and disciplinary rules, but also DHS and EOIR rules 2. Sanctions 8 CFR 1003.102 a. Permanent expulsion from practice before DHS and/or EOIR b. Temporary Suspension c. Public or Private Censure d. Others as deemed appropriate 3. Prejudicing the client a. Ineffective assistance of counsel ONLY basis for withdrawing a guilty plea (criminal) or reopening removal proceedings ONLY IF client was prejudiced i. Should government have to prove prejudice in disciplinary proceedings? ii. Ineffective Assistance of Counsel 1. Most Common Claims a. Ineffective assistance in criminal proceedings should vacate the conviction on which removal is based b. Counsel ineffective in removal proceedings 2. People v. Pozo a. Facts

b.

3.

i. Cuban immigrant claimed ineffective assistance of counsel because NOT advised by attorney of immigration consequences of guilty pleas (sexual assault, escape) ii. They tried to get convictions vacated in criminal trial court b. Holding i. Court invokes 2 Part Strickland Test 1. Attorneys performance fell below objective standard of reasonableness 2. Deficient performance resulted in prejudice to the defendant c. RULE i. Strickland/Hill v. Lockhart Test 1. Failure to Discuss v. Affirmative Misadvice Padilla v. Kentucky (2010) a. Facts i. A native of Honduras who was an LPR and served in the Vietnam War Faces deportation for transporting Marijuana in the trunk of his car ii. Counsel advices him that there is no need to worry about deportation if he pleaded because he had been in the country for a long time 1. Padilla states that he would have gone to trial if he knew this pleading would affect his standing in the US b. Holding i. Criminal defense attorneys must advise alien clients of deportation risks of guilty plea 1. Where law is unambiguous, advise the guilty plea or conviction will result in deportation 2. Where the law is unclear advise the plea may result in deportation 3. In any case, cant remain silent about immigration consequences c. Reasoning i. SCOTUS held that criminal defense attorneys have an affirmative duty to inform clients or potential immigration consequences ii. Justice Stevens notes the broad expansion of deportable offenses and the restrictions on discretionary authority to prevent deportation 1. Rejects the classification of removability as a collateral consequence and finds that because of its severely penalizing nature 2. Uses ABA and other professional practice standards to establish hat advising clients of potential

d.

e.

immigration consequences is objectively reasonable standard Concurrence Alito i. Affirmative obligation on criminal defense attorney should be limited to notice that there may be potential immigration consequences ii. Can refer to immigration attorney iii. Immigration is too specialized field to impose obligation on defense attorneys to understand and communicate to client Dissent Thomas, Scalia th i. 6 Amendment protections do not mean to go outside criminal context ii. Potential issues stemming from immigration consequences should be resolved by the legislature

Immigration and National Security

I. National Security as Part of Immigration Law a. AEDPA Antiterrorism and Effective Death Penalty Act (1996) i. Both antiterrorism and Immigration-related programs b. Post-9/11 i. USA PATRIOT ACT ii. EBSVERA Enhanced Border Security and Visa Entry Reform Act iii. Homeland Security Act (HSA) Created the DHS in 2003 iv. REAL ID Act of 2005 Detention of Noncitizens a. Post 9/11 resort to increase in preventive detention b. Detention in Connection with Removal Proceedings i. Inadmissible or deportable for terrorist activities INA 236(c)(1)(D) ii. INCE can overrule IJs decision to release alien on bond 1. Once ICE determines aliens shouldnt be released, IJs release order must be stayed pending BIA appeal 2. Alien can be detained for up to 90 days 3. ICE not required to demonstrate or allege any reasons, can merely file appeal to BIA to keep alien detained Detention on Connection with Removal Proceeding a. Immigration Enforcement and National Security i. Matter of D-J- (A.G. 2003) 1. AG reversed IJ and BIA decisions to release undocumented Haitian who arrived by boat on bond (National Security Justifications) ii. Release of undocumented immigrants encourage others to do the same iii. 9/11 increased need to prevent undocumented immigrants from avoiding immigration inspection process b. Blocking FOIA requests on immigration detainees c. D.C. Circuit confirmed judicial deference to government in National Security (Center for National Security Studies v. USDOJ)

II.

III.

IV.

V.

VI.

i. Dissent 1. Found governments national security justifications vague and that insufficient weight given to competing interest of publics ability to assure that government respecting detainees constitutional rights Certification Program a. Created by US PATRIOT ACT in 2001 INA 236A b. AG can certify alien for mandatory detention pending removal or termination of removal proceedings INA 236A(a)(1,2,5) c. Certification Grounds i. Reasonable grounds to believe alien inadmissible or deportable on National Security Grounds INA 236A(a)(3) US Visit a. DHSs U.S. Visitor and Immigration Status Indication Tech. System i. Fully operational for arrivals as of 2009 ii. Implementation for Departures is still under discussion b. Applies to all aliens 14-79 i. Exceptions to tourist or business visitors Canadians c. Finger Scans and digital photos taken of all i. Both consular offices during visa processing and immigration inspectors at ports of entry 1. Also collected when aliens exit National Security: Enforcement and Profiling a. Enhanced Border Enforcement i. Most border enforcement focused on illegal immigration 1. Also general law enforcement issues ii. Post 9/11 increases in personnel, training, technologies iii. Passenger Manifests (EBSVERA) 1. Commercial airlines, sea transport companies required to give immigration inspectors passenger lists with prescribed details b. Profiling i. Definition Law enforcement strategies focusing on individuals with particular attributes believed to correlate with targeted misconduct ii. Issues When attributes are protected from discrimination 1. Race, Gender, Religion iii. Need to balance government interest against harms of government-sponsored discrimination iv. Equality v. Profiling 1. Stopping everyone costs time, money, public support, and most people are innocent 2. Failure to stop one terrorist causes massive social calamity v. Short time to make a choice, limited information possible vi. Stereotypes more useful than not 1. BUT claims of discrete individuals sacrificed to disembodied social interest

Refugees and Asylees

I. Refugee and Asylum Policy

a. b.

II.

III.

Clash between compassion and self-interest Proper Function i. Humanitarian project to relieve suffering? ii. Humanitarian rights ends, to deter violations or repair damage post facto? iii. National self-interest, based in sovereignty? c. Flight from Persecution or Flight from Poverty i. Friendlier for refugees from Communist Block than countries friendly to the US d. Suspicion of Refugees i. Some see high level of fraudulent claims ii. Urge short adjudication periods or bar on work authorization to reduce or liit numbers iii. Or may just turn genuine refugees away Refugee Basics a. Two Theaters i. Offshore Refugees (Overseas) = Refugee Status 1. Like type of legal immigration from overseas INA 208(a) ii. Onshore Refugees (within U.S. or at border) = Asylum Status 1. Like Waiver of inadmissibility/deportability INA 208(b) b. Statutory Grant i. Refugee Refugee and Asylees ii. Asylum Only 1 remedy from persecution, with right to remain temporarily, usually permanently in US 1. Withholding of Removal Another remedy for persecution, but only to not be removed to country of persecution INA 241(b)(3) iii. Means to Survive in US 1. Qualified Alien Eligible for most federal welfare benefits a. For first 7 years, against after 10 years INA 402, 431(b)(2,3,4) 2. Eligible for Work Authorization a. Overseas refugee status, withholding of removal History of Refugees in US a. American public strongly opposed to allowing large numbers of Holocaust Refugees b. No legal provisions exempting refugees from normal immigrant restrictions c. 1951 Convention Relating to the Status of Refugees i. US held off signing until 1968 ii. Defines refugee, delineates protections to be given to refugees within a countrys borders iii. BUT NO REQUIREMENT TO ADMIT OVERSEAS REFUGEES d. UNHCR Protection Role i. Includes assistance to refugees and delivery of service 1. Some argue that emphasis on assistance to refugees comes at expense of protection a. Volatile refugee camps e. US Ad Hoc Refugee Admission i. Legislation passed to deal with specific crises ii. AG also paroled certain groups into US INA 212(d)(5) Parole Power f. Parole Power i. Temporary relief for individuals turned numerically significant component

g.

h.

ii. But no meaningful criteria for qualifying nor procedural protection when request denied iii. Congressional Functions 1. Unlimited Executive Discretion 2. No Meaningful Congressional Role 3. Uncertain consequences for Parolee iv. Seventh Preference (1965) 1. For Communist-dominated or Middle Eastern Countries persecuted a. Only 6% of total quota limited visas The Refugee Act of 1980 i. Principal Statutory Law on Refugees ii. Statutory Definition Refugee INA 101(a)(42) 1. Includes refugees within their country of origin iii. Presidential Determination 1. Determines maximum number to be admitted in coming year INA 207(a) 2. Also specifies allocation among countries or regions 3. Procedure a. President must make appropriate consultation with Congress b. Alternatively, should presidents decision be subject to confirmation in both houses?? iv. DHS Secretary may also admit some refugees 1. Subject to Presidential Determination 2. Cant be firmly resettled in foreign nation 3. Must be of special humanitarian concern to US and admissible INA 207(c)(1) v. Admissibility INA 207(c)(3) 1. Automatic exemption from labor certification, public charge and required documents 2. DHS has discretion to waive most others 3. Extends to accompanying/following to join spouses or children INA 207(c)(2) vi. LPR eligible after 1 year INA 9 209(a) vii. Effect on Parole Power 1. Prohibited DHS Secretary from paroling any statutorily-defined refugee unless compelling public interest reasons for particular alien INA 212(d)(5)(B) 2. Statutory definition does not cover solely war or natural disasters, so parole still happens on those grounds viii. Two Key Offices Established 1. Health and Human Services Office of Refugee Resettlement a. Funds and administers federal resettlement programs INA 411 2. States Bureau of Population, Refugees, and Migration (PRM) a. Coordinates Refugee policy Deviations from Refugee Act Procedures i. 1980 Paroling of Cuban, Haitian refugees by President Carter ii. Lautenberg Amendment of 1990 1. Loosened refugee status requirements for Soviet Jews, Soviet Evangelicals, Indochinese, Iranian religious persecuted

IV.

V.

VI.

VII.

Only credible basis for concern about possibility of such persecution required to show fear of persecution 3. Renewed regularly until 2010 iii. Anti-Communist Tilt of Refugee Admission 1. Since WWII to mid-1980s a. Refusal to admit significant numbers of refugees not fleeing communism 2. Legal basis to focus on anti-communist refugees INA 207(a)(3) Asylum and Nonrefoulment a. Two remedies for refugees within or at border of U.S. i. Asylum INA 208 1. Opportunity for LPR status and permission to remain ii. Withholding of Removal (Nonrefoulment) INA 241(b)(3) 1. Prohibits forcible return to country of persecution 2. BUT!! Not to third countries b. Application procedures are the same for both i. Asylum applicant automatically treated as applicant for withholding as well Procedure for Adjudicating Asylum and Withholding Claims a. Depends on timing i. When removal proceedings initiated 1. An application is filed with IJ ii. When removal proceedings Not Instituted 1. Affirmative applications with USCIS 2. Adjudicated by asylum officers a. Specially trained in international law, country conditions, interviewing techniques 3. Non-Adversarial Interview 8 CFR 208.9(b) 4. Right to counsel and to submit witness affidavits and other documents 5. Asylum officer can grant asylum or refer case to IJ for removal proceedings a. Applicant can renew asylum application de novo before IJ 6. IJ decisions subject to BIA appeal and judicial review Enforcement of 1967 Protocol in US Courts a. Domestic enforcement of international conventions depend on whether treaty is self-executing i. Self-Executing No domestic legislation required to implement conventions legal obligations ii. Non-Self Executing Legislation is required to implement 1. Without legislation U.S. Courts not required to follow convention b. 1967 Protocol is considered as Non-Self-Executing i. Matter of D-J 1. AG deflected arguments that US violated 1967 Protocol by declaring Protocol non-self-executing Persecution or Fear of Persecution a. A discretionary form of relief i. Only eligible for discretion if qualify as refugee under statutory definition INA 101(a)(42)(A) b. 4 Elements to qualify

2.

c.

d.

i. Alien must have fear of persecution ii. Fear must be well founded iii. Persecution must be in account of 1. Race 2. Religion 3. Nationality 4. Membership in particular social group 5. Political Opinion iv. Unable or unwilling to return because of persecution or well-founded fear of persecution 1. Return to either country of nationality or country where last habitually resided Acosta i. Fear of Persecution 1. First element of refugee definition 2. Must demonstrate primary reason for seeking asylum is fear a. Genuine apprehension or awareness of danger in another country 3. Persecution Harm or suffering inflicted on individual to punish for possessing a belief or characteristic persecutor seeks to overcome a. Excludes internally displace persons fleeing civil or military strife ii. Well Founded Fear of Persecution 1. Second element of refugee definition 2. To show fears of persecution by government to be well-founded, must demonstrate a. Possess characteristics that the government was seeking to introduced by punishment b. Government was aware or could easily become aware that he possessed the characteristics c. Government must have the capability and the inclination to punish 3. Court finds Acostas fear is NOT well-founded a. Persecution on account of political opinion or membership in a particular social group are rejected b. Unable and Unwilling to Return i. The well-founded fear cant just exist in one place in the country, it must exist nationwide iii. Persecution on Account of Political Opinion and/or Membership in Particular Social Group 1. Third Element of Refugee Definition 2. Two grounds Acosta stated were rejected by the Board iv. Unable or Unwilling to Return 1. Fourth Element of Refugee Definition 2. Well founded fear of persecution cant just exist in one place in the country a. Must exist nationwide Past Persecution v. Future Persecution i. From persecution OR well-founded fear of future persecution INA 101(a)(42) 1. Past Persecution Automatically qualifies as refugee INA 101(a)(42)

VIII.

Government can only rebut by showing changed circumstances demonstrating absence of well-founded fear 8 CFR 208.13(b)(1)(i)(A), 208.16(b)(1)(A) i. Matter of CYZ (1997) 1. Board held that forced sterilization constituted NOT ONLY past prosecution but ongoing persecution 2. Also held that spouse of person subject to forced population control also entitled to refugee status 3. Must be legally married and have objected to forced abortion or sterilization (Matter of SLL 2006) 2. Future Persecution Must be primary motivator for seeking asylum nd a. But 2 Circuit held that additional fear of economic hardship does not make ineligible for asylum based on well-founded fear of persecution or political opinion e. Well-Founded Fear Definition i. Refugee experts found that while clearly requires objective risk of persecution, it does not require subjective fear f. Definition of Persecution i. Harm or suffering inflicted on individual to punish him for possessing belief or characteristics persecutor seeks to overcome ii. Proposed DOJ asylum regulations 1. Infliction of objective serious harm or suffering subjectively experienced as serious harm or suffering by applicant, regardless of whether persecutor intends to cause harm 2. Home government must be either inflicting party or unwilling or unable to control a private actor from inflicting the harm iii. Individualized Harm th 1. 9 Circuit rejected BIA holding that general evidence of violence in a country negates persecution (Bolanos-Hernandez v. INS 1985) a. As long as applicant has also received individualized threat general violence can make specific threat more credible g. Coercive Population Controls as Persecution i. Matter of Chang (1989) 1. Board rejected asylum application based on Chinas one child policy 2. Found that likely economic sanctions for having three children didnt rise to level of persecution a. Rather a reasonable policy response to extreme population problem ii. Tiananment Square Massacre eventually changed INA refugee definition 1. Forced abortion or sterilization or persecution for failure or refusal to submit to abortion or sterilization persecution on account of political opinion iii. Major Hurdle for Chinese Couples is showing well-founded fear On Account Of a. Race, Religion, and Nationality i. Race Ethnic group referred to as race in common usage ii. Nationality Citizenship status or membership in an ethnic or linguistic group iii. Religion

a.

It has increased from secular Muslims and Soviet Jews UNHCR Handbook does not define religion Probably sufficient that the persecutor rightly or wrongly imputes a particular religion to applicant and persecutes for that reason (Rizal v. Gonzales 2006) 4. International Religious Freedom Act of 1998 a. Created Office on International Religious Freedom in State i. Issues annual report on International religious freedom, to be used in adjudicating asylum cases iv. Political Opinion 1. INS v. Elias Zacarias a. Facts i. 18 year old Salvadorian deportable for entry without inspection (EWI), asylum applicant on basis of political opinion 1. Feared persecution from guerillas for not joining, and retaliation from government if joined guerillas b. Holding i. Court rejects premise that Elias resisted guerillas on account of political opinion 1. Fear and/or neutrality does not equal political opinion 2. Political opinions of persecutors (recruiters) cant be transferred to Elias-Zacarias a. Generalized political motive inadequate to establish fear of persecution on account of political opinion ii. Court also finds that Elias failed to demonstrate that the fear is well-founded 1. Well-founded fear that the guerillas will prosecute him because of his political opinion c. Dissent i. Refusal to join the guerillas was politically motivated 1. Political opinion can be expressed negatively as well as affirmatively 2. Even if negative opinion motivated by desire to live ordinary life, still kind of political expression asylum provisions meant to protect 3. Implied threat to take or kill him if he did not change position a. This is persecution on account of political opinion 2. Imputed Political Opinion Doctrine a. So long as persecutor believes applicant holds a particular view and intends to persecute them because of it, it doesnt matter that the belief is wrong

1. 2. 3.

b.

9 Circuit held that even falsely or cynically imputed political opinion could suffice for asylum (Lazo-Majano v. INS 1987) c. Matter of R.A. i. Limited Lazo-Majano to only permitting cynically imputed political opinion for political opinion asylum in extreme domestic violence 3. Neutrality as Political Opinion a. Pro-Neutrality i. Motive for any political choice may be at least in part nonpolitical, including choosing to remain neutral ii. Reasons for political choice are not significant for INA 241(b)(3) and 208(a) iii. Improper for government to inquire into motivations and presents issued of how to determinate to what extent motivations acceptable and non-acceptable b. Anti-Neutrality i. Authorities in 1952 do NOT recognize neutrality 1. Concentrate on nexus to nature and severity of punishment or nexus to mere possession of political opinion ii. Key element of political opinion in refugee status Rupture of refugees normal relationship with the state 1. Neutrality distorts the meaning of political refugee iii. Demeans true martyr for whom asylum intended c. Complications th i. 9 Circuit requires conscious and deliberate choice to remain neutral for political asylum The Nexus Requirement i. Connects persecution to protected ground 1. EX Fatin women acknowledged to form social group but claim failed because they could not show persecution solely on account of being a woman ii. Common Sense Meaning of Because of 1. But For Qualifications a. Causation can be found when consequence would have occurred anyways as long as the negligent act is a substantial factor i. Consequences unforeseeable, intervening forces too numerous or independent of negligent iii. Proposed But for Test for Nexus Requirement 1. Refugee policy recognizes the ability to help persecuted, so established grounds to help people persecuted on particularly bad discrimination bases 2. As long as persecution would not have happened BUT FOR existence of protected group, persecution also being based on additional grounds irrelevant to refugee analysis because it doesnt lessen harm or diminish the need for protection 3. Floodgates still not a danger because asylum applicant, once can show on account of/but for, must also show

b.

th

IX.

a. Harm feared rises to the level of persecution b. Fear of Harm occurring is well founded 4. But For Test would be subject to 2 tort law modifications a. Substantial Factor i. But for a sufficient BUT not necessary condition for nexus, in some cases, either protected or unprotected ground alone would have been enough to prompt persecution, but as long as protected ground was substantial motive in persecution then nexus would be met b. Proximate Cause i. Where persecution would not have occurred bur for a protected ground, but protected ground and persecution too remote, nexus would not be met 5. Arguments For the But For Test a. Text, Logic b. Policy Results c. Practical Workability 6. Protected Ground as Factor in Persecution a. REAL ID Act requires proof that 1 of 5 protected grounds was/will be at least 1 central reason for persecuting INA 9 208(b)(1)(B)(i) Particular Social Group a. Matter of Acosta i. Applies doctrine of ejusdem generis (general words used in an enumeration with specific words should be construed in a manner consisted with specific words of the same kind) ii. Other enumerated refugee grounds describe immutable characteristics that cant be changed or shouldnt be required to be changed because fundamental to identify or conscience iii. THEREFORE 1. Particular Social Group persons who share a common, immutable characteristic a. Characteristics must be either unchangeable or one shouldnt be required to change because fundamental to individual members identity or conscience i. Apply on Case on Case Basis b. Arthur Helton Essay i. Social group category meant to be catch all, and UN has recognized many social groups 1. Women, children, elderly 2. Family, worker, unemployed, trade union 3. Young, adopted, illegitimate, disabled 4. Migrant worker, slave, illiterate c. Proposed DOJ Asylum Regulations recognize Acosta Immutability Test i. But for claims where social group based on past experience, only valid if at time occurred, as unchangeable or so fundamental to identify or conscience should not have been required to change ii. Voluntary Association Test Rejected d. UNHCR Guidelines 2 Prong Formula

e.

f.

i. Share common characteristics other than being persecuted OR ii. Perceived as group by society Sexual Orientation and Social Group i. Matter of Toboso-Alfonso 1990 1. Gay Cuban man in exclusion proceedings granted withholding of removal for membership in social group of Cuban homosexuals 2. IJ didnt find merited discretionary grant of asylum because of cocaine conviction a. HOLDING i. BIA upholds IJ immutability finding, especially in absence of INS challenge ii. Finally, BIA affirms IJ finding that Tobosos freedom and life would be threatened by a return to Cuba because the government told him to leave or be jailed for 4 years ii. Pitcherskaia v. INA 1997 1. Reversed BIA asylum denial calling forced psychiatric treatment (electroshock) a cure for homosexuality sought by the government was not a harm iii. Well-Founded fear for gays and lesbians today No Clear Answer 1. Must be more than discrimination 2. Trend of denying the claims if events too sporadic 3. Helpful to show a pattern and practice of persecution of gays iv. INS memo reminding that Toboso-Alfonso was binding precedent and that INS regarded homosexuals as a social group Gender and Social Group i. Why protections for Women? 1. Women and children most likely to be refugees, especially from conflict 2. International Law ignores persecution women face for challenging social norms 3. Gender not a persecution grounds for refugee status in either UN convention or US Statute ii. Fain v. INS 1. Facts a. Iranian woman seeks asylum or withholding on particular social group (and political) grounds as woman opposed to gender-oppressive laws i. Calls social group educated, free-thinking, Westernized Iranian women who refuse to conform to governments gender-specific laws and norms 2. Holding a. Court adopts Acosta immutability test and finds that sex, as specifically mentioned by Acosta, as a social group, by Fatins group is narrower b. Applies 3 Part Test i. Identified Acosta particular social froup ii. Established the member group iii. Shown would be persecuted or has well-founded fear based on membership

Court finds Fatin would only suffer persecution if actively refused to conform i. Rather than fitting into smaller, refugee-qualifying group of women who would choose to suffer consequences of noncompliance 1. Instead fits into larger group of women finding gender-specific laws offensive and not wanting o comply d. First US court to hold explicitly that women Social Group iii. Matter of Kasinga 1. Board granted asylum to Togolese woman opposed to female genital mutilation (FGM) practiced by her tribe and threatened by her polygamous marriage a. Found i. Kasinga is a credible witness ii. FGM practiced by her tribe Persecution iii. Part of a Social Group consisting of young women of her tribe who have not undergone FGM who oppose the practice iv. Well-founded fear that persecution feared would be on account of her social group v. Fear is countrywide b. Board also finds that the tribes FGM is persecution because it seeks to overcome womens sexuality i. Moreover, it finds that malignant intent is not required, and avoids addressing INS proposed shocks the conscience test c. Passes Acosta Test i. Being a young woman and a tribe member cannot be changed, and having an intact genitalia is so fundamental to identity shouldnt be required to be changed d. On Account Of i. Finds FGM practiced on young tribe women who havent undergone to overcome their sexuality iv. Post-Kasinga 1. Involuntary FGM Persecution? a. Universalism yes in Arlington b. Cultural Relativism No in Baltimore (IJ found not all cultures abhor FGM) 2. FGM and Past Persecution a. Matter of AT (2008) i. AG reversed BIA finding that rebuttable presumption from past persecutions was overcome because FGM couldnt be performed twice 1. FGM actually often performed twice 2. Rebuttable presumption extends not just to FGM but also to any future persecution on same ground (membership in a particular social group)

c.

X.

XI.

XII.

Refugee Sur Place a. Applicants who were not refugees when they left home but became so from abroad i. UNHCR recommends careful examination of 1. Whether authorities in the home country are likely to know of applicants activities 2. How they are likely to view those activities b. US Courts less inclined to find well founded fear for political opinion cases when fear comes from post-departure activities i. BUT SEE Rodriguez-Roman 1. Court cited UNHCR in finding that severe punishment (imprisonment) for unauthorized emigration can be persecution if departure is politically motivated Domestic Violence and the Problem of the Non-State Actor a. When the immediate source of feared violence is intimate partner and not the government b. Matter of R-A i. BIA reversed IJ asylum grant to Guatemalan victim of extreme domestic violence by husband ii. Asylum Granted on basis of 1. Political opinion (her resistance denied his right to dominate her) 2. Particular Social Group (Guatemalan women intimately involved with men believing in domination of women) iii. BIA held that undeniable persecution could not be linked to political or social group grounds iv. RAs social group lacked a voluntary associational relationship (Sanchez-Trujillo) and its fulfillment of the Acosta Test was insufficient v. BIA also wanted showing abuse of women expected by social or adverse consequences for lack of abuse vi. Tortured Path of R-A (Class 31) c. Unable or Unwilling Standard i. Explicitly recognized by UNHCR vii. No requirement of state actor 1. States knowing tolerance or refusal or inability to offer effective protection suffices viii. DOJs Proposed Regulations set out factors for consideration 1. Government Complicity 2. Attempts to obtain protection from government 3. Perfunctory official action 4. Pattern of government unresponsiveness 5. General country conditions 6. Governments policies with harm or suffering at issue Standards of Proof a. Different standards between asylum and withholding i. Asylum Well-Founded Fear INA 101(a)(42) ii. Withholding Life or freedom would be threatened INA 241(b)(3) b. Would be threatened i. Withholding applicant must establish clear probability

XIII.

More likely than not that life or freedom threatened on account of one or more statutory grounds 2. More than 50% Chance c. Well Founded Fear i. Asylum Applicant must show a reasonable possibility of suffering such a persecution 1. If reasonable person in those conditions would fear persecution - 8 CFR 208.13(b)(2)(B) a. INS v. Cardoza-Fonseca i. If reasonable person in circumstances would fear persecution 1. Less than 50% Chance th 2. 9 Circuit 10% chance is sufficient (Montecino v. INS 1990) d. Not well-founded if internal relocation is reasonable 8 CFR 208.13(b)(2)(i)(C)(ii) i. Rebuttable presumption that relocation not reasonable alternative if government perpetrated or sponsored persecution e. 1951 Convention Rights i. Establishing refugee status entitled to rights under Convention 1. SCOTUS declared those who can show well-founded fear of persecution not entitled to anything, are only entitled to discretionary grant of asylum Methods of Proof a. Two Important Problems i. What commonly occurring facts material to likelihood of persecution? ii. What evidence relevant to (and sufficient to establish) facts? b. Material Facts i. Membership in a Persecuted Group 1. Does group membership establish hat particular applicant sufficiently likely to incur consequences? 2. Can establish well-founded fear of persecution by showing pattern or practice of country persecuting the group and the applicants inclusion in the group? 8 CFR 208.16(b)(2)(iii) ii. Qualifier 1. Applicants fear of persecution upon return must be reasonable c. Past Persecution ii. Evidence of past can help establish well-founded fear of future persecution 1. Creates rebuttable presumption in asylum cases iii. Two Ways Government can Rebut Presumption 1. Show any fundamental change in circumstances eliminating well-founded fear 2. Show persecution could be avoided by internal relocation that would be reasonable considering all the circumstances iv. Courts have sometimes found non-repeatable persecution to be a continuing harm constituting well founded fear of future persecution 1. Sterilization or FGM v. Past Persecution is independent basis for refugee status (even when no threat of future) INA 101(a)(42) vi. If no well-founded fear of future persecution, asylum must be denied on discretionary grounds UNLESS - 8 CFR 208.13(b)(1)(iii)

1.

d.

f.

Demonstrated compelling reasons for being unable or unwilling to return OR Reasonable possibility that may suffer other serious harm upon removal to the country vii. Withholding of Removal Issue 1. Past Persecution is NO BASIS for withholding 2. If you cant qualify for discretionary grant of asylum by showing compelling reasons or other serious harm, can use past persecution to establish a threat to life or freedom Applicant Testimony i. Difficulty of obtaining documentary or witness testimony in asylum cases ii. Assessing Credibility 1. Relevant Factors a. Demeanor b. Candor c. Responsiveness d. Inherent Plausibility e. Consistency 2. BUT!! BIA increasingly deferential to IJ credibility determinations, even when IJ deny for lack of corroborating evidence iii. REAL ID Act attempts uniform standard 1. Testimony without corroboration is sufficient ONLY if adjudicator finds testimony credible, persuasive, and sufficiently fact-specific INA 208(b)(1)(B)(ii) 2. Also applies in withholding removal INA 241(b)(3)(C) iv. Corroborating evidence must be provided if adjudicator requests unless applicant does not have it and cant reasonably be expected to provide it INA 208(b)(1)(B)(iii) 1. Also applies in Withholding of Removal INA 241(b)(3)(C) th v. Damaize-Job (9 Cir 1986) 1. Reverses BIA denial of withholding and asylum on basis that BIA decisions not supported by substantial evidence 2. Finds IJs concentration on DOB inconsistencies trivial and pre-textual, and the questioning of credibility based on Damaizes failure to marry the mother of his children impermissible and wholly unconnected to credibility and persecution a. IJ also focuses on Damaizes failure to apply for asylum in other countries vi. BIA reviews on Clearly Erroneous Standard vii. IJ must give specific reasons for questioning credibility 1. Damaize-Job Minor inconsistencies will NOT support adverse credibility determination 2. Damaize-Job Rejects impermissible use of character evidence viii. Deliberate Lies 1. Applicant who lied about being from Mexico to avoid being returned to El Salvador found more credible because lie showed true fear of persecution State Department Opinions i. States annual Country Reports 1. Most compile describing of human rights

1. 2.

XIV.

ii. Bureau of Human Rights and Humanitarian Affairs Advisory Opinions 1. May supply in individual asylum cases 2. Formerly automatically supplied and often regurgitated iii. Concerns with State Participation 1. Problems of Accuracy a. State with diplomatic concerns, cant always provide accuracy needed for admissible evidence 2. Problems of Fairness a. No opportunity to cross-examine authorial and discover any foreign policy influence iv. Legislative v. Adjudicating Facts 1. Legislative Facts General Conditions of the Country a. Fact finder needs best available information more than crossexamination 2. Adjudicating Facts Likelihood of persecution of the party a. Shouldnt be evidence without cross-examination g. Other Relevant Evidence i. Advice from UNHCR 1. US law has no formal provision for UNHCR participation in asylum case adjudication 2. Individual attorneys can get opinions from UNHCR that can be admitted as evidence ii. Other Sources of Information 1. DHS Document Center a. Information on human rights conditions b. DHS can also rely on International Organizations, private voluntary agencies, news organizations 2. BIA Administrative Notice a. Equivalent of Judicial notice b. Accepts certain facts as true without taking evidence EXCEPTIONS TO ELIGIBILITY a. Firm Resettlement i. Applicant statutorily disqualified if firmly resettled in third country INA 208(b)(2)(A)(iv) ii. DOJ regulations hold applicant firmly resettled if he/she received offer to permanently resettle elsewhere iii. Not firmly resettled if third country entry 1. Necessary as a consequence of flight from persecution 2. Remained only as needed to arrange travel 3. Significant ties are not established iii. Also not firm resettlement if conditions on residence substantially and consciously restricted b. Past Wrongdoing i. Persecution Bar 1. Participation in persecution of others on account of any statutory refugee ground

XV.

Statutorily ineligible for asylum and withholding INA 208(b)(2)(A)(i), 241(b)(3)(B)(1) 4. Possible Defenses a. Coercion is still unclear 5. BIA found former IRA membership doubly ineligible for asylum and withholding a. Persecutor bar because of IRA role persecuting others on account of political opinion b. No nexus for asylum claim because feared persecution was for safety concerns, not political opinion (Matter of McMullen 1984) ii. Terrorism Exception 1. AG finding of reasonable grounds for belief someone danger to US security INA 208(b)(2)(A)(iv), 241(b)(3)(B)(iv) U.S. Asylum Procedure a. Two separate adjudication systems i. USCIS 1. Affirmative application 2. No authority to grant withholding 3. Asylum officer grants or refers to IJ for initiation of removal proceedings 4. Upon referral BOIR procedure kicks in ii. EOIR IJs and BIA 1. Already in removal proceedings Defensive application 2. Apply with IJ 3. IJs decision appealable to BIA 4. Reviewable in court under INA b. Asylum application automatically treated concurrently as withholding application in case asylum denied c. Required background checks before asylum can be granted INA 208(d)(5)(A)(i) i. Possible inadmissibility grounds, deportability, other illegibility d. Opportunity for Permanent Residence i. After living 1 year as asylee in US can adjust to LPR status ii. Former 10,000 year cap is gone! e. Criticism of Asylum Adjudication i. Political Bias 1. Foreign policy, asylees from regimes unfriendly to US 2. Statistical favoring of anti-Communist asylees, disfavoring of Salvadorian, Guatemalan, Haitian applicants 3. Discrimination claim by Slavadorian and Guatemalan applicants resulted in settlement including re-adjudication of thousands of asylum claims ii. Long Delays 1. Administrative resources limited 2. Prolong period of uncertainty for genuine refugees a. HOWEVER, also provides benefits and may incentivize fraudulent applicants iii. Unfounded Claims 1. Two incentives a. Hope of erroneous grants

a.

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XVII.

b. Interim benefits while claim pending iv. Fiscal Costs v. Procedural Fairness 1. Access to counsel 2. Governments foreign language interpreters 3. Process for Children a. Elian Gonzales case and who can apply for asylum on behalf of a child 4. Concerns about national security vulnerabilities 5. Sloppy standards of IJs, BIA, and State Department 6. Peremptory review by overburdened, efficiency-pressured asylum officers 7. Wide variance among individual IJs and asylum officers f. Reforming Asylum Adjudication i. Should asylum officers be in EOIR instead of USCIS? ii. Should they be lawyers? iii. Should they be the sole (but appealable) arbiters? Filing Deadlines a. One Year Bar i. Must provide clear and convincing evidence of filing within 1 year of arrival INA 208(a)(2)(B) ii. TWO EXCEPTIONS 1. Changed circumstances affecting eligibility for asylum 2. Extraordinary circumstances relating to failure to meet deadline a. Physical, mental, legal disabilities b. Ineffective assistance of counsel 3. NOTE** a. If neither exception found, asylum denial is final with NO JUDICIAL REVIEW INA 208(a)(3) iii. Arrival Last Arrival iv. Asylum Practitioner Resistance to Bar 1. Unreasonable a. Applicants lack English and knowledge of US Legal System 2. Asylum applications are labor intensive Restricting Access a. Safe Countries of Origin U.S. Doesnt do this!! rd b. Returning Asylum seekers to 3 Countries i. First and Third Countries 1. First Country of Asylum First resettlement option 2. Safe Third Country Option for asylum, resettlement ii. COULDA SHOULDA THEORY 1. Applicant who passed through a country could and should have sought asylum there st rd 2. 1 Country refuses to decide asylum claim on merits, sends applicant to 3 Country iii. Policy problems of Third Country Restrictions 1. Orbiting Refugees a. Shuttling refugees without resettling

XVIII.

Chain Refoulement a. Ends up back in country of persecution 3. Legal freedom of refugee to choose asylum country? 4. Third country might not have fair asylum procedures, be party to 1951 Convention iv. Minimum Legal Requirements 1. Third country explicitly agreed to readmit and to accord fair status for determination or effective protection 2. No well-founded fear of persecution in third country 3. No well founded fear of being refouled by third country to persecuting country 4. Destination country cant knowingly return to third country what will violate 1951 Convention Rights 5. Destination country cant knowingly return to third country that will breach any human rights agreements rights destination country party to 6. Third country will provide fair refugee status determination or effective protection without determination 7. Third Country willing and able to provide effective protection 8. Return prohibited if would violate internationally-recognized right to family unit 9. Destination country required to apply each criteria on case-by-case basis before returning v. Best Practice Criteria 1. Should not be returned if the alien has no meaningful links 2. Neither if third country not bound by the 1951 Convention and 1967 Protocol a. Reliance on safe country lists should be avoided vi. Canada-US Agreement (2002) 1. Respective responsibilities of each country for asylum seekers who traveled through others territory before applying 2. Country of last presence Person physically present in other country just before claiming refugee status as land border port of entry Responsible for deciding asylum claim 3. Exceptions Family unity, Transient Passengers 4. In practice a. Many more travel through US before applying in Canada i. Issues presented by US detention, other unfavorable refugee policies 5. Canadian Federal Courts struck down agreement as unconstitutional because return to US is unsafe Expedited Removal a. Trend in Western Nations i. Deter fraudulent entries, reduce asylum applications, dispose cheaply & quickly of filed applications b. Triggers when immigration officer determines inadmissible for lack of documents or fraud INA ( 235(b)(1)(A)(i) c. Credible Fear Interview INA 235(b)(1)(B) i. When requests asylum or indicates fear of persecution

2.

XIX.

XX.

ii. Credible Fear Requires significant possibility alien would establish asylum eligibility 1. If Credible Fear Detained and placed in removal Proceedings 2. If NO Credible Fear Ordered removed, summary report with facts and reasons of findings d. Judicial Review? i. Upon requests IJ will review finding 1. Within 24 hours to 7 days e. 1997-1999 Data i. 80-90% on suspected fraud grounds 1. Inadmissible for life INA 212(a)(6)(C) a. Possibility of returning people to persecution ii. Invalid Documentation only inadmissible for 5 years INA 212(a)(9)(A)(i) Detention a. Asylum Seeker Detention i. Norm in expedited removal cases 1. At least until credible fear finding ii. Possible during removal proceedings b. Compatibility with 1951 Convention i. UNHCR condemns asylum seeker detention 1. Article 31 Illegal entry or presence penalties prohibited for refugees directly fleeing persecution as long as promptly present to authority Barriers to Asylum Process a. Criminal Prosecutions of Asylum-Seekers for Illegal Entry i. Increase in federal prosecutors bringing charges against asylum seekers entering with false documents b. Denying Employment Authorization i. 1994 DOJ regulation amendments bar work authorization until 180 days after application filing INA 208(d)(2) 1. Marked drop in applications after rule change ii. Asylum confers automatic right to work INA 208(c)(1)(B) c. Sanctioning frivolous applications i. Attorney sanctions apply in asylum proceedings ii. Applicants knowing filling permanent ineligibility for any immigration benefits INA 208(d)(6) d. Application Fees i. NONE e. Pre-Inspection i. Pre-flight inspection stations in 12 airports 6. Canada, Bahamas, Bermuda, Aruba, Ireland ii. No recourse to adjudicative system iii. Establishment of more than required f. VISAS and Carrier Sanctions i. Carriers wont board people without required visas ii. Barrier for prospective asylum seekers g. Interdiction of Vessels on the High Seas

i. Pushback operations to address problem of boat people (Haitian Migrant Interdiction Program)

Undocumented Immigrants
I. Origins a. Roots in the Bracero Program b. Pattern begins with pioneer immigrants i. Young males in low-skill, low wage jobs c. Academic Theories i. Push Factors Impelling people to leave home country 1. Poverty, persecution, armed conflict ii. Pull Factors Attractions of receiving country 1. Economic opportunity, political freedom, personal safety, family reunification Scale a. Currently estimated 11.1 million undocumented immigrants b. 29% of foreign born US residents in 2005 Impact i. Economic Impact i. Beneficial on the Balance? 1. Undocumented Immigrants direct and indirect tax contributions v. services received 2. Creating jobs by continuing, sustaining marginal enterprises employing Americans, keeping labor costs down 3. Undocumented immigrants especially responsive to the labor market! j. Fiscal Impacts i. Undocumented immigrants both pay taxes and increase government spending ii. Congressional Budget Office found consensus that tax contributions exceed costs from use of government services k. Other Impacts i. Vulnerable to violent crime in border regions 1. No evidence undocumented immigrants turn to crime ii. Negative Public Opinion 1. Fear of Crime, Racism and Xenophobia, Economic Insecurity l. Tolerated arrangement i. Economically beneficial to immigrants and US FOUR CATEGORY OF POLICY RESPONSES a. Enforcement initiatives focused on fortifying border or policing interior b. Legalization of status of at least some within the US c. Encouragement of self-deportation by making daily lives in US unsuitable i. Recognition that mass deportation impractical ii. Conflicts with statutory, constitutional rights of undocumented immigrants d. Reduction of future flow of undocumented immigrants by giving aliens more attractive alternatives to illegal immigration Enforcement of Immigration Laws a. Removal

II.

III.

IV.

V.

b. c.

d.

e. f.

g. h.

i. Principal device for combating immigration law violations ii. Cost of removing all undocumented immigrants prohibitive 1. Alternative Reliance on increased criminal and civil sanction sot deter violations a. Increase in home raids and workplace raids Increasing emphasis on Enforcement i. Resources devoted to borders, especially Mexico Border Deaths and Risks of Clandestine Entry i. Drowning common crossing Rio Grande ii. Border Patrol increases and Operation Gatekeeper responsible by deliberately rerouting to more difficult crossing paths Increased Enforcement... Counterproductive? i. Reduced odds unauthorized crossers apprehended 1. Strategy forces immigrants to cross in remote areas where enforcement recourses are scarce ii. Also makes crossing back more difficult, forcing undocumented to remain in US for longer periods Burgeoning Coyote Business i. Vast majority keeps trying until succeed Enforcement Backlash in 2011 i. Obama Administration stated focus on removing criminals has been strongly questioned ii. DHS Secured Communities Program 1. Goal to connect local law enforcement with federal immigration officials th th iii. Lawsuits from Civil Rights Groups claiming DHS violated 4 and 5 Amendment State Incursions into Federal Government CLASS 34! Employer Sanctions i. Immigration and Control Act of 1986 1. Three Legalization Programs a. Undocumented immigrants b. Agricultural Workers c. Cuban and Haitian Entrants 2. Simultaneously sought to reduce future incentives for undocumented immigration 3. Employer Sanctions INA 274A a. Civil fines or criminal punishment for knowing hire of undocumented immigrants ii. Debate over Employer Sanctions 1. Pro a. Deter surreptitious entries and overstays 2. Cons a. Administrative burden on employers b. Job Discrimination i. Led to INA 9 274B prohibiting certain discriminatory acts iii. Unlawful Acts under INA 274A 1. Knowingly hiring unauthorized worker INA 274A(a)(1)(A)

i.

Continuing to employ alien knowingly he/she has become unauthorized INA 274A(a)(2) iv. Authorized Worker INA 274A(h)(3) 1. LPR, nonimmigrant category automatically authorized to work, or have received work authorization from USCIS v. Grandfather Provision of IRCA 1. Neither hiring or continuing to employ sanctions apply to aliens hired before IRCA enactment vi. BUT employment doesnt include casual domestic employment (not regular) 8 CFR 274a.1(h) vii. Meaning of knowing 1. Constructive knowledge is sufficient (Mester Manufacturing v. INS 1989) 2. Knowledge imputed where deliberate failure to investigate suspicious circumstances a. Government must give employer reasonable time for compliance after it acquires knowledge (New El Rey Sausage 1991) viii. Statutorily-Required Verification INA 9 274A(b) 1. Affirmative employer obligation and procedural offense for failure to comply INA 274A(a)(1)(B) 2. Steps a. Examine documents b. Documents can both establish identity and employment authorization or establish only one or other c. Assure document reasonable appears genuine on its face d. Attest on form to performance of required verification, and employee must attest to status on same form ix. DHS Secretary is Enforcement Authority 1. Charged with investigating and prosecuting violations INA 274A(e) 2. ICE serves Notice of Intent to Fine or Warning Notice 3. Partys right to request formal hearing before Administrative Law Judge (ALJ) INA 274A(d)(ii)(C) 4. ICE Standard of Proof Preponderance of Evidence x. Criticism 1. AFL-CIO has urged FULL REPEAL a. Increased exploitation of undocumented immigrants b. Compromises national security by driving undocumented immigrants underground xi. Obama Administration has increased I-9 Audits since 2009 1. Movement away from workplace raids of Bush Administration to focus on employer practices Document Fraud i. Key implementation problem ii. Led to E-Verify Program 1. Data bank with names and Social Security numbers of every authorized worker in the US 2. Intent to eliminate document fraud

2.

VI.

iii. Riddled with inaccuracies 1. 90 day safe harbor provision to rectify any inaccuracies internally and with Social Security Administration and DHS Legalization, Post-Secondary Education, DREAM ACT, & Drivers Licenses CLASS 35

CITIZENSHIP
I. OVERVIEW a. Acquiring Citizenship i. Two Key Principles 1. Just Soli Right of the land 2. Jus Sanguinis Right of the blood a. Conferred on children of extant citizens 3. Most countries combine both b. Just Soli i. Only Constitutional mention Requirement that the President be naturally born th ii. 14 Amendment 1. All persons born or naturalized in the US are subject to jurisdiction thereof, are citizens of the US and the states in which they reside c. Jus Sanguinis i. Requires 1 or 2 citizen parents at the time of birth ii. Additional residence requirements to prevent chain of non-resident citizens 1. Physical presence and residence requirements are only for parents iii. Born abroad to 2 US citizen parents INA 301(c) iv. Born abroad to 1 US citizen and 1 Non-citizen parent INA 301(g) v. Descent law in force at birth (usually) determines whether acquired citizenship by descent Citizenship Acquired After Birth a. Authority i. Congress authorized by Constitution to establish a uniform Rule of Naturalization Article 1, 8, cl. 4 ii. Immigration Act of 1990 transferred authority from courts to AG INA 310(a) 1. Now DHS delegated to USCIS 2. Courts have jurisdiction to review naturalization denials DE NOVO INA 310(b,c) iii. Naturalization Nationality conferred after birth INA 101(a)(23) Basic Requirements a. Lawful Permanent Residence INA 318 i. Excludes those admitted on basis of fraudulent documents or otherwise inadmissible b. Residence and Physical Presence INA 316(a) i. Continuous residence for 5 years as LPR ii. Physically present for at least half of 5 years iii. Continuous residence while application pending iv. Period can reduce to 3 years if married to citizen v. Exceptions to residency and LPR status made for military service INA 328, 329 c. Good Moral Character INA 316(a)(3)

II.

III.

IV.

V. VI.

i. Required during all residence and physical presence periods ii. Grounds precluding good moral character INA 101(f) d. Age INA 334(b) i. Must be 18 or older for administrative naturalization 1. Under 18 will have a derivative naturalization e. English Language INA 312(a)(1) i. Must demonstrate understanding, including ability to read, write, and speak words in ordinary usage ii. Exceptions to physically disabled, elderly with long term residence f. Knowledge of Civics INA 312(a)(2) i. Knowledge, understanding or fundamentals of history, principles, and form of government in the US g. Political Requirements INA 313 i. Ineligible classes include opposition to organized government and communists Process a. File application with USCIS INA 334(a) b. USCIS examiner interviews applicant under oath, examining English skills INA 335(a) c. Criminal Background Check Performed d. Examiner must announce grant or denial within 120 days, or applicant entitled to district court hearing INA 336(b) Child Citizenship Act of 2000 Class 35!! Dual Nationality a. Three Fundamental Principles i. Every sovereign state decides its nationals ii. Typical law provides alternative, multiple routes to nationality iii. In actual practice rules vary from state to state b. Jus Soli birth with two different national parents (jus sanguinis) could produce triple nationality c. Renouncing Citizenship to Gain Another i. Varies among countries and US officially has NO opposition on dual citizenship