IMMIGRATION OVERVIEW – Brown – Fall 2011
I.
II.
III.
IV.
V.
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?
a.
VI.
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. Alien’s 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
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.
VII.
VIII.
IX.
X.
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. LPR’s 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)
b.
c.
XI.
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
b.
iii.
iv.
v.
vi.
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. Court’s 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 can’t 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 don’t deserve
greater protection from hardship than citizens
c. 1st 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
Jean v. Nelson (11th 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
3.
c.
d.
e.
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 (DOESN’T 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
i. Francis v. INS (2nd Cir 1976 – 5th 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 alien’s 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
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
a. EX  SCOTUS applied 1st Amendment to INA provisions in Harisiades
to find deportable speech NOT PROTECTED under Amendment.
2. BUT!!
a. SCOTUS may have restricted 1st 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”
3. Otherwise indefinite detention would be 5th Amendment/Due Process Violation
a. Aliens entitled to due process protections
4. Clark v. Martinez (2005 – 5th Class)
a. Extends Zadvydas to inadmissible (never admitted) aliens
5. BUT!!
a. Demore v. Hyung Joon Kim (2003 – 5th 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.
v.
vi.
vii.
viii.
f.
II.
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 Ping’s immigration certificate violate
US-China treaty, and does revocation of Ping’s right to land violate
Constitution?
a. Treaty Issue
b.
III.
IV.
V.
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)
ii. Framer’s 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-Wright’s (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
2.
c.
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!
ii. Discrmination v. Meese (Cal 1989 – 5th Class)
1. Aliens found deportable on basis of support for Popular Front for the Liberation
of Palestine (PFLP)
INA § 241(a)(6)(D, F, G, H)  Prohibited advocating world
Communism
2. District Court rejected government contention that plenary power doctrine
overruled a 1st Amendment protection in a deportation context
a. Court applied general 1st Amendment protection test and found INA
provisions substantially overbroad
3. Court held that deportability violated aliens’ 1st Amendment rights because
their support for PFLP didn’t 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 AG’s
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”
a. Citizens sued on grounds of deprivation of their 1st 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.
II.
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)
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.
d.
1.
e.
f.
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)
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
a. Division of 2nd 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. Beneficiary’s 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
1. Adam v. Howerton (9th Cir 1982 – Class 7)
a.
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 citizen’s spouse within meaning of INA § 201(b) be
opposite sex
1. Some weight given to federal agency’s 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 Hawaii’s 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
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. IMFA’s 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.
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 wasn’t 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. Didn’t 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 doesn’t
qualify as legitimate under INA § 101(b)(1)(c)
5.
g.
a.
iii.
iv.
v.
vi.
Can’t 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
parent’s 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!!!
i. Nguyen v. INS (2001 – 8th 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 alien’s 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
1.
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 father’s consent can’t be obtained?
a. Balancing inability or unwillingness to consent against right to assert
parental rights
vii. Family Unification Policy in Perspective
1. Is 4th 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”
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 individual’s
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 Bachelor’s
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
1. INA requires for 2nd and 3rd Preferences – INA § 212(a)(5)(D)
a. Unless 2nd Preference has National Security Waiver
2. Designed to ensure immigrant’s 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)
Employment-Based  4th & 5th 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
2.
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 principal’s admission as LPR
2. Accompanying  Up to 6 months after issuance of principal’s 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 country’s
per country limit reflects percentage of that visa preference category allotted
worldwide in relation of all the other preference categories
a. EX  If 3rd preference family visas are 10% of the family visas available
in that year worldwide, 10% of family visa in over-subscribed country
would go to 3rd preference applicants
m. Diversity Immigrants
i. Immigration law’s 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.
II.
Elements
a. Specific Purpose
b. Temporary visit of fixed duration
Criteria
a. Less demanding because not for permanent residence
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
3.
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 Department’s 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 1980’s 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)
c.
VIII.
Requirements
i. Must have treaty with Non-Immigrant’s 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 Bachelor’s 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 DOL’s 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 won’t 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
5.
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. Doesn’t count worker’s 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 Disney’s 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
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)
d. Matter of Healy and Goodchild (1979 – 11th 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 fiancé(e)s have met during previous two-year period preceding
filing
c.
d.
X.
XI.
XII.
XIII.
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.
3.
XVII.
XVIII.
XIX.
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
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 client’s present
intent to immigrate on eligibility for non-immigrant visa, as long as it doesn’t 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 someone’s 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”
i. 1st 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, doesn’t
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
iv. Ordered removed for 2nd 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.
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)
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 person’s admission
would be contrary to national security interests
vii. Constitutionality of INA §§ 212(a)(3)(C, D)
1. Do excluded (inadmissible) aliens have 1st 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
2.
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 haven’t 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
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
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
1. Labor Certification required for 2nd and 3rd 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 doesn’t 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 doesn’t 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
1. Some 1st 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.
II.
b.
c.
d.
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 State’s 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
1.
2.
3.
4.
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 person’s 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
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 officer’s denial
a. But can refuse consular officer approved
iv. CONSULAR ABSOLUTISM
1. Court’s 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
3.
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. Individual’s 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
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.
II.
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
i. 7th Circuit holds only initial admission counts for removal grounds that depend on
admission
Deportability Grounds
I.
II.
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
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. Entry’s 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.
ii. Facts
1.
VI.
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)
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 alien’s
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 doesn’t 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” doesn’t 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. ICE’s 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
a.
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
alien’s 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. Can’t 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 don’t
count for immigration purposes
ii. Convictions expunged for reasons of rehab or to prevent
deportation continue to exist
8.
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
c. 9th 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 JRAD’s
v. Drug Offenses
1. Main Ground – INA § 237(a)(2)(B)
a. Uses federal definition of controlled substance
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. Don’t 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, Leocal’s 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.
d.
e.
force, not whether reckless conduct may result in
physical force
a. Therefore, Leocal’s 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
11th Circuit had so held
1. However, 11th Circuit only held this because they had
been following BIA’s 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 agency’s 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
2.
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
1. 9th 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)
i. BUT!!! 9th 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)
Relief from Deportability
I.
II.
III.
IV.
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 someone’s 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
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 didn’t 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
1.
2.
3.
4.
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
a. 9th Reviewable v. 10th 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 IRCA’s 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!
d.
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 alien’s 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 children’s father
3. US Citizens children’s 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
a.
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
2. Other half are subtracted from “other workers” prong of 3rd 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)
5.
VIII.
IX.
In removal proceedings
a. Once initiated, application for adjustment of status is filed with IJ
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 chair’s 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 Ono’s 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. Today’s 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
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 alien’s 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.
X.
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. Alien’s 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 can’t make real choice about where to live
2. Child’s 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
3. Important Variables for 4th 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
a.
b.
c.
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
i. 9th 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 won’t 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
2.
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 government’s 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. Government’s 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 alien’s spouse
alleging sham marriage, but didn’t produce spouse
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 (AWO’s)
i. BIA decides large share of cases with AWO’s 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 IJ’s
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
2.
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. Alien’s 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
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 Administration’s 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.
e.
f.
g.
h.
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
alien’s 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. Government’s interest in dispensing with
procedural element in question
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. LPR’s 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 agency’s 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
b.
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
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. Attorney’s 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
i. 6th 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.
II.
III.
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 shouldn’t 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)
IV.
V.
VI.
i. Dissent
1. Found government’s national security justifications vague and that insufficient
weight given to competing interest of public’s ability to assure that government
respecting detainee’s 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. DHS’s 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 country’s
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 president’s decision be subject to confirmation in
both houses??
iv. DHS Secretary may also admit some refugees
1. Subject to Presidential Determination
2. Can’t 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. State’s 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
2.
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-1980’s
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 convention’s 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
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 Acosta’s 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 can’t 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 can’t 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)
a.
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
a. But 2nd 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
1. 9th 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 China’s one child policy
2. Found that likely economic sanctions for having three children didn’t 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
1.
2.
3.
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) can’t 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 doesn’t matter that the
belief is wrong
9th 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 refugee’s normal relationship with the state
1. Neutrality distorts the meaning of political refugee
iii. Demeans true martyr for whom asylum intended
c. Complications
i. 9th 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 doesn’t 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.
b.
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 can’t be
changed or shouldn’t 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 shouldn’t be
required to change because fundamental to individual member’s
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 didn’t 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 Toboso’s 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 government’s
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 Fatin’s 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
c.
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 women’s 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 shouldn’t be required to be changed
d. On Account Of
i. Finds FGM practiced on young tribe women who haven’t
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 couldn’t 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)
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 applicant’s
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. RA’s 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. State’s knowing tolerance or refusal or inability to offer effective protection
suffices
viii. DOJ’s 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. Government’s 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
1.
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
2. 9th 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 applicant’s inclusion in the group? – 8
CFR § 208.16(b)(2)(iii)
ii. Qualifier
1. Applicant’s 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.
2.
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)
v. Damaize-Job (9th Cir 1986)
1. Reverses BIA denial of withholding and asylum on basis that BIA decisions not
supported by substantial evidence
2. Finds IJ’s concentration on DOB inconsistencies trivial and pre-textual, and the
questioning of credibility based on Damaize’s failure to marry the mother of his
children impermissible and wholly unconnected to credibility and persecution
a. IJ also focuses on Damaize’s 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. State’s annual Country Reports
1. Most compile describing of human rights
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. Shouldn’t 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
a.
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
XVI.
XVII.
b. Interim benefits while claim pending
iv. Fiscal Costs
v. Procedural Fairness
1. Access to counsel
2. Government’s 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. Doesn’t do this!!
b. Returning Asylum seekers to 3rd 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
2. 1st Country refuses to decide asylum claim on merits, sends applicant to 3 rd
Country
iii. Policy problems of Third Country Restrictions
1. Orbiting Refugees
a. Shuttling refugees without resettling
2.
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 can’t 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 other’s 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
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 won’t 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.
II.
III.
IV.
V.
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
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
iii. Lawsuits from Civil Rights Groups claiming DHS violated 4th and 5th 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)
2.
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 doesn’t 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. Party’s 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
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, & Driver’s Licenses – CLASS 35
CITIZENSHIP
I.
II.
III.
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”
ii. 14th 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)
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