I) Immigration and the Constitution
a) Sources of the Federal Immigration Power
i) The Enumerated Powers – Nothing specifically says Congress may regulate
immigration
(1) The Commerce Clause
(a) Congress may “regulate commerce with foreign nations”
(i) Passenger Cases – Supreme Court invalidates state attempts to
regulate immigration
(ii) Wickard v. Filburn – Congress may regulate activities substantially
affecting interstate commerce, even when the effects are indirect
1. The economic effects of larege-scale immigration on both
interstate and international commerce are compelx and
cotroversial, and substantial
(2) The Migration or Importation Clause
(a) The migration or importation of such persons as any of the states now
existing shall think proper to permit, shall not be prohbited by the
Congress prior to the year 1808.
(3) The Naturalization Clause
(a) Congress may establish a uniform Rule of naturalization
(i) Congress made lawful admission as a permanent resident a
prerequisite to naturalization
(4) The War Clause
(a) Congress is authorized to regulate alien enemies – nationals of
countries with which the United States is at war
ii) Implied Constitutional Powers
(1) Chae Chae Ping (The Chinese Exclusion Cases)
(a) The government of the United States, through actions of the legislative
department, can exclude aliens from its territory
1. Jurisdiction over its own territory to control aliens is an
incident of every independent nation
2. If the United States could not control aliens it would be to that
extent subject to the control of another power
(b) To preserve its independence, and give security against foreign
aggression and encroachment, is the highest duty of every nation, and
to attain these ends nearly all other consideations are to be
suboridnated
(i) If the government of the United States, through its legislative
department, considers the presence of foreigners of a differen race
in this country to be dangerous to its peace and secuirty, their
exclustion is not to be stayed because at the time there are no
actual hostilities with the nation of which the foreigners are
subjects
(c) Decisions of the legislature are conclusive upon the judiciary
(i) If the govenrment of the country of which the foregners excluded
are subjects is dissatisfied with this action it can make complaint to
the excutive head of our government, or resort to any other
measure which, in its judgment, its interests or dignity may
demand
1. There lies the other country’s only remedy
(d) Whatever license a foreigner may obtain while in the country, when
that alien departs, the license is at the will of the United States after
departure, revocable at any time, at its pleasure.
iii) Beyond the Constitution
(1) Historically, nations have found that national governments must control
immigration in their collective capacity
b) Limits to the Federal Immigration Power
(1) Ekiu
(a) No procedural due process right for a noncitizen to enter the United
States
(2) Fong Yue Ting
(a) No procedureal due process for a noncitizen subject to deportation
(i) Overruled if you could prove via a white witness that you were a
resident at the time the law was passed
(3) Shaughnessy
(a) Although an LPR has a right to be heard, one who leaves without
permission or authorization does not retain the right to a hearing upon
return to the country
(i) Whatever the procedure authorized by Congress is, it is due
process as far as an alien denied entry is concerned
(4) Harisiades
(a) Substantive Due Process
(i) LPR’s have a vested right to substnitve due process and should
have the same rights as citizens
(ii) If an LPR is deported, the decision is subject to a rational basis
review
(b) Speech
(i) Out Constitution sought to leave no excuse for violent attack on
the status quo by provding a legal alternative – attack by ballot
1. This means freeedmo to advocate or promote adverse beliefs
by means of the ballot box, but it does not include the practice
or incitement of violence
2. The fist amendment simply does not protect people that want to
promote the violent overthrow of the government
(c) Ex Post Facto
(i) Membership in the Communist party was always a ground for
deportation
1. Congress has maintained a standing admonition to aliens, on
pain of deportation, not to become members of any
organization that advocates overthrow of the United States
Government by force and violence
(5) Zadvydas
(a) Reasonable Detention Period
(i) If an alien is going to be deported, it is assumed that the alien must
go somewhere
(ii) Court must ask whether the detention in question exceeds a period
reasonably necessary to secure removal
1. After 6 months, if the aline provides good reason to believe tha
tthere is no signifcant likelihood of removal in the reasonably
foreseeable future, the Government must respond with
evidence sufficient to rebut that showing
II) Immigrant Priorities
a) The Fundamentals: Quotas and Preferencing
i) Immigrants Exempt From the General Quotas
(1) Immediate Relatives
(a) Spouse of United States Citizens
(b) Parents of United States Citizens
(c) Children of United States Citizens
(2) LPR’s returning from temporary visits abroad
(a) They were either exempt at the time of their original admission or they
were already counted once before
(3) Certain former US citizens
(4) Children born to LPRs temrporarily abroad
(5) Persons who receive certain permanent forms of discretionary relief from
removal
(6) People fleeing persecution
(7) Parolees
(a) The Attorney General has the discrediton to “parole” a noncitizen into
the United States temporarily
(b) Typically used for urgent persoanl reasons or to allow applicants for
admission to avid detention pending determinations of admissiblity
(c) A gran to f parole is not considered admission – the parolee is still
outside of the United States in the eyes of the law
(8) Special Ad Hod groups
ii) Immigrants Subject to the General Quotas
(1) Programs and Ceilings
(a) Three main programs for immigrans subject to general quotas:
(i) Family-Sponsored Immigrants
1. 480,000 – (number of immediate relatives who were admitted
in the preceding fiscal year) + ((employment-based visas that
were available in the preceding fiscal year bue were not used)
2. Ceiling must always be at least 226,000
a. Minimum addresses the fear that high immediate relative
numbers would wipe out too many of the visas allotted to
other family members
(ii) Employment-Based Immigrants
1. 140,000 + (Family-sponsored visas that were available in the
preceding year but were not used)
(iii)Diversity Immigrants
1. Annual ceiling of 55,000
(2) Preference Categories and Sub-Ceilings
(a) Family Sponsored Program
(i) 1st: Unmarried sons and daughters of United States Citizens
1. 23,400 + (Visas that the 4th preference applicants don’t need)
(ii) 2nd: Spouses and unmarried sons and daughter of LPRs
1. 114,200 + (Visas that the 1st preference applicants don’t need)
+ (Amount by which the total worldwide family-sponsored
ceiling exceeds 226,000)
a. 2nd is the only preference that refers to the relatives of
LPRs
b. Due to extreme backup, Congress provided that whenever
the total ceiling for faimly-sponsored immigrants exceeded
226,000, the total excess would go to the 2nd preference.
2. 2A’s: Spouses and “children” of LPRs
a. At least 77% of the 2nd go to 2A’s
b. 75% of 2A’s exempt from the per-country limit
3. 2B’s: All other 2nd Preference Immigrants
(iii)3rd: Married sons and daughters of United States citizens
1. 23,400 + (Visas that the 1st and 2nd prefernce applicants don’t
need)
th
(iv) 4 : Siblings of over-age-21 United States citizens
1. 65,000 + (Visas that the 1st, 2nd, and 3rd preference applicants
don’t need)
(b) Employment Based Immigrants
(i) Priority Workers
1. 28.6%
(ii) Members of the Professions holding Advanced Degrees
1. 28.6%
(iii)Skilled Workers, Professionals
1. 28.6%
(iv) Special Immigrants (Religious workers and long-term foreign
employees of U.S. Government)
1. 7.1%
(v) Employment Creation
1. 7.1%
(c) A spouse or chilld who is accompanying, or following to join an
immigrant who is within any of the three broad perference categories
is entitled to the same preference status and the same place in line as
the principal immigrant
(3) Selecting Individual Applicants
(a) Generally, whoever files first is first in line to get a visa
(i) Prioirty Date – Date on which the applicant files the relevant
document
1. Starts the prioirty clock
(ii) Immigrants at the front of the line are processed in monthly gulps
(b) System is complicated by the pe-country limit
iii) Family Immigration
(1) The Basics
(a) Exempt from quotas
(i) If the prospective immigrant is exempt from the quota, then the
only delay are those needed for the applicant to gather up the
necessary documents and fro the relevant government agencies to
process them
(b) Subject to quotas
(i) Supply of visas, demand of visas, and length of wait vary from one
preference category to another
(ii) Wait is afffect by the country to which the visa will be charged
(c) Monthly Visa Bulletin
(i) Chart that indicates, for every comibnation of country and
preference category, how long ago the people who are now about
to receive visas first applied
1. Displays the priority date of the person who will be in line for
the next month
a. Current - If there is no backlog at all for the particular
preference/country comibnation, the class is said to be
current, and the letter C appears
b. Unavailable – If no visas will be available that month, the
letter “U”, for unavailable, appears
i. Occurs when the annual numerical limits for the year
have already been reached
(ii) Status Change During the Wait
1. Typically a status change will occur because a person was
married or because the person turned age 21
a. INS regulations provide that upon most changes in status or
either the petitioner or the beneficiary, the application is
automatically treated under whatever category the enw
circumstances dictate
i. Practical effect is that the prioirty date is the date on
which the immediate relative petition was originally
filed, not the later date on which the person changed
status
(2) Spouses
(a) Same Sex Marriages
(i) At present, no state clearly recognizes these
1. DOMA (Defense of Marriage Act) – No state shall be required
to give recognition to a samae sex marrigae from another state.
a. Any Federal regulation where the word spouse appears,
assumption should be of one man and one woman
(b) Fraudulent Marriages
(i) Marriage must be legally valid in the jurisdiction in which it was
celebrated
1. Parties must be marriageable age
2. Parties not already married to others
3. Ceremony performed by authorized officeila
(ii) Marriage must be factually genuine
1. Standard Test: Whether, at the inception of the marriage, the
parties intended to spend a life together
(iii)Two Types of Sham Marriages
1. Bilarteral – Both spouses marry solely to failitate immigration
a. The intending immigrant spuose typically pays the citizen
or LPR spouse to enter into the marriage
2. Unilateral – The beneifciary spouce deceives the petitioner
spouse as to the beneificiary’s feelings and intentions
(iv) “Conditional” Permanent Residence
1. Whenever a noncitizen receives LPR status as an immediate
relative, as a family-sponsored second preference immigrant,
or as a fiance of a United States citizen by virtue of a marriage
that is less than two years old, the resulting permanent
residence will be subject to certain conditions subsequent. The
Attorney General Must terminate LPR status if he finds:
a. The marriage was entered into for the purpose of procuring
immigrant status,
b. The marriage has been judicially anulled or terminated OR
c. A fee was given for the filing of the petiition
2. Conditional resident and spouse have an affirmative duty to
jointly petition the INS for removal of the condition and to
appear at an INS interview in connection with the petition
a. Petition must be filed during the 90 day period immediately
preceding the second anniversary oof the person’s
admission for permanent residence – If not filed on time
and without a good reason, permanent residence status is
terminated
b. Petition seeks to establish that the marrigae was legally
valid, that it has not been judicially annulled, or terminated,
that it was not entered into for immigration purposes, and
that no fee was paid for the filing of the petition
c. If the INS decision is favorable after petition, the condition
is removed
3. Immigrant may ask Attorney General for waiver
a. Finding of extreme hardship to conditional resident,
spouse, or dependent child OR
b. Meet 3 Conditions:
i. Marriage was entered into in good faith
ii. Marriage was terminated for cause
iii. Conditional resident was not at fault in failing to meet
the usual requirements OR
c. Extreme Cruelty
i. The battered spouse or child was battered by or was the
subject of extreme cruelty perpetrated by his or her
spouse or citizen or permanent resident parent and the
alien was not at fault n failing to meet other
requirements
(v) No Marriage While Awaiting Deportation - §240(h)
1. A visa may not be approved by reason of immediate relative
statuse by reason of a marriage which was entered into during
the period that an alien is awaiting a deportation hearing until
the alien has resided outside the United States for a 2-year
period beginning after the date of the marriage
a. May be avoided in two ways:
i. Don’t get married until you leave the country –
Voluntary departure would be the best method for this
ii. Get divorced during proceeding and then get remarried
– Still have to avoid the INS sham divorce statute
(divorce msut be genuine)
2. Recently reached a compromise bill:
a. If you get married during this time, it will not be
recognized unless you leave for you years or you prove
with clear and convincing evidence that the marriage is real
(c) Other Family Members
(i) “Children”
1. Must be unmarried and under age 21
(ii) Sibling
1. To establish the existence of a sibling relationhip the petitioner
must show that he and the beneficiary are, or once were,
“children” of a common “parent” within the meaning of the
statute
(iii)Stepchild
1. Unmarried person under the age of 21 years who was not born
out of wedlock, provided the child has not reached the age of
eighteen years at the time the marriage creating the status of
stepchild occurred AND
2. Must establish that the marriage which created the steprelationships still exists at the time the visa petition to accord
the stepsibling classification is being considered OR
3. Where the parties have legally separated or where the marriage
has been terminated by divorce or death, the appropriate
inquiry is whether a family relationship has continued to exist
as a matter of fact between the stepparent and stepchild
a. Same inquiry for stepsiblings
iv) Employment Based Immigration
(1) The First Three Preferences: Superstars, Stars and Others
(a) General Eligibility Requirements
(i) First Preference - Superstars
1. Three Prongs
a. Immigrants with extraordinary ability in the sciences, arts,
education, business or athletics which has been
demonstrated by sustained national or international
acclaim.
i. Extraordinary Ability – Level of expertise indicating
that the individual is one of that small percentage who
have risen to the very top of the field of endeavor
b. Professors and researchers who are outstanding
c. Certain multinational executives and managers, who need
not demonstrate any particlua level of fame or success
(ii) Second Preference – Starts
1. Two Prongs
a. Members of the professions holding advanced degrees or
their equivalent
b. Immigrants with exceptional ability in the sciences, arts or
business
2. Generally requires that the applicant demonstrate a job offer
from an American employer
a. INS has the discretion to waive this requirement in the
ntional interest, but national interest requirement may be
waived if the applicant can show
i. That the area of employment is one of subtantial
intrinsic merit
ii. That the person’s employment will benefit the nation,
not just the local area, AND
iii. That the particular applicant will servie the national
interest to a substantially greater degree than would an
available US worker having the same minimum
qualfications
3. Generally requires that an applicant obtain labor certification
(iii)Thrid Preference – Others
1. Three Prongs
a. Immigrants capable of performing certain skilled labor for
which qualified U.S. workers are not available
b. Immigrants who have baccalaureate degrees and are
members of the prosfessions
c. Other workers who are capable of performing unskilled
labor for which qualified US workers are not available
2. No provision for national interest waivers
3. No more than 10,000 of these may be provided to prong (c) –
Other workers in a single fiscal year
(b) Labor Certification
(i) Labor certification required for those that apply under the second
and third employment-based preferences
1. National interest waivers are sometimes possible for second
preference applicants
(ii) Designed to assure that the immigrant’s employment will neither
displace nor disadvantage American workers
(iii)When labor certification is required, it is merely the first step in the
process
1. Next step would be to get a visa petition
(iv) Obtaining Labor Certification
1. Check 2 schedules published by Labor Department
a. Schedule A – Occupations that the Labor Department has
pre-certified as meeting the statutory requirements for labor
certification
i. If listed in Schedule A, labord ckertificiation is deemed
to have been automatically granted
ii. Immigrant or employer bypasses the Labor Department
entirely and files an application with the INS, which
then decides whethher the immigrant’s job really does
fall within one of the Schedule A occupations
iii. Physical therapists, professional nurses, and immigrants
of exceptional ability in the sciences or arts
b. Schedule B – Occupations that will not meet the statutory
creiteria for labor certification
i. Applicant whose occupation is on that list must apply
for a waiver and make certain showings beyond those
usually required
2. If the occupation is not listed on Schedule A, an individual
application for labor certification must be file
a. Application submitted to the local offoce of the state
employment service
3. File goes to Dept of Labor
a. Application is adjudicated by a certifying officer
i. Employer must document its unsuccesful attempts to
recruit American workjers at the prevailing wages
4. If the CO finds that the applicant meets all the requirements,
labor certification is granted
a. If the CO finds that the applicant does not meet the
requirements, the CO issues a Notice of Findings
i. Explains the problem and gives the applicant 35 days to
submit documentray evidence or written argument to
cure the defect
ii. If the applicant fails to reply, labor certification is
denied
(v) Displacing American Workers
1. An alien seeking to enter the US for the prupose of performing
labior is inelgible to receive a visa unless the Sec of Labor has
determined and certified that:
a. There are not sufficient workers in the US who are able,
willing, qualified, and available
i. At the time of applciation for a visa and
ii. At the time of admission into the US AND
iii. At the place wherhe the alien is to perform such labor
AND
b. The employment of the alien will not adversely affect the
wages and working conditions of US workers similarly
employed
2. Employers desiring to employ aliens must apply for labor
certification:
a. Must show that the job opportunity has been and is being
descirbed without unduly restrictive requirements.
Presumed unduly restrictive if:
i. They are other than those normally required for the job
in the US
ii. Execeed the requirements listed in the Dictionary of
Occupational Titles
iii. Include a foreign language
iv. Involve a combination of duties OR
v. Require the worker to live on employer’s premises
b. Business Necessity- Must Show:
i. That the job requirements bear a reasonable
realationship to the occupation in the context of the
employer’s business AND
ii. That the requrements are essential to perform, in a
reasonable manner, the job duties as described by the
employer
(2) The Fourth Preference: Certain “Special Immigrants”
(a) Mostly concerned with the special circumstances of the people they
encompass
(3) The Fifth Preference: Immigrant Investors
(a) Approximately 10,000 visas per year are reserved for immigrans who:
(i) Establish new commercial enterprises in the United States
(ii) Invest at least $1,000,000 (Need not be paid all up front, they need
only be actively in the process of investing that amount)
(iii)Employ at least ten Americans
(b) Sham Immigrant Investors
(i) Someone could start a new company, invest the requisite capital,
hire ten or more American, acquire LPR status, and then
immediately sut down the company, lay off the employees, and
withdraw funds
(ii) Conditions subsequent
1. Attorney General may terminate the immigrant investor’s
status within two years upon finding:
a. That the establsihment of the commercial enterprise was
intended solely as a means of evading the immigration laws
OR
b. The vaious requirements for 5th prefernce statuts ar enot
being sustained
2. Petition for removal of conditional status within 90 days prior
to the second year after admission
v) Diversity Immigrants
(1) Admits up to 50,000 diversity immigrants each year
(2) Attoney General tabluates, for each foreign state, the number of people
from the state who became LPRs during the preceding five-year period as
immediate relatives, family-sponsored immigrants, and employment-based
immigrants
(a) Any foreign state for which that five-year number exceeds 50,000 is
classified as a “high admission state”
(b) Every other state is “low admission”
(i) All 50,000 diversity visas are allocated to natives of low-admission
states
(3) World Divided into six regions:
(a) Region is high admission if its natives accounted for more than onesixth of the total LPR grants of the preceding five-year period
(i) Africa
(ii) Asia
(iii)Europe
(iv) North America (other than Mexico)
(v) Oceania
(vi) South America, Mexico, Central America, and the Caribbean
(4) Attorney General computes, for each region, the total population of the
low-admission states of that region
(5) Attorney General divides up the 50,000 visas between two groups:
(a) The group of high admission regions
(b) The group of low-admission regions
(6) Attorney General must figure out what percentage of the last five years’
immigrants were natives of high-admission regions
(a) Low-admission regions receive that percentage of the 50,000 visas
(b) High-admission regions get the rest
(7) Within the low-admission regions, the visas are allocated among the
different regions in proportion to the populations of the low-admission
states in those regions
(a) Within the group of high-admission regions, the visas are allocated
amont the regions in propstion to the populations of the low-admission
states in those regions
(8) Two Other Requirements:
(a) Individual must meet specified requirements concerning education
level or work experience
(b) Not more than 7% of the 50,000 vissas may go to natives of any single
state in a given year
III) Nonimmigrant Priorities
a) Statutory Interpretation relating to Immigration
i) Literal Plain Meaning Rule – Focuses on the lieteral language of the statute.
When that language admist of only one meaning, the court must adopt that
meaning even if doing so will produce absurd results
ii) Social Prupose Rule – Court seeks out the purposes of the legislation and
adopts whicheve interpreation will best advance those purposes
iii) Golden Rule – Intermediate approach. The court fives the literal language its
ordinary meaning, unless doing so would produce an absurd result
b) Treaty Traders and Investors
i) Both categories are ordinarily admitted for two years initially
(1) Unlimited number of possible two-year extensions
ii) No need to intend to retain one’s foreign residence
(1) Both require an intent to depart upon termination
iii) Categories:
(1) E-1: Treaty Traders; E-2: Treaty Investors
(a) Persons entitled to enter the United States under and in pursuance of
the provisions of a treaty
(b) Eligibility of a given individual rests ultimately on the terms of the
particular treaty
c) Temporary Workers
i) Three Cateogires of Temporary Workers:
(1) H-1B’s – Requires that a person be in a specialty occupation
(a) Occupation that requires theoretical and practical application of a body
of highly specialized knowledge
(b) Occupation that in the United Staes, requires at least a bachelor’s
degree in the particula specialty or the equivalent of a bachelor’s
degree
(c) Individuals who work temporarily for a US employer but whose slaray
will be paid by his foreign employer
(i) Salary need not be paid by the US employer, it may be paid by the
foreign employer
(d) Must be coming temporarily to the US
(i) May be admitted for up to six years
(ii) May enter with the hope of attaining LPR status at some future
time
1. Noncitizen’s seeking of permanent resident status is not
evidence of an intention to abandon a foreign residence for
obtaining an H-1B visa
(e) Employer must file a Labor Condition Application (LCA)
(i) Employer attests to serveral things:
1. It is paying at least the prevailing wage level in the area of
employment or the actual wage level at the place of
employment (whichever is greater)
2. The owrking conditions of similarly employed workers will not
be adversely affected
3. There is not a strike or lockout
4. The employer has notified its existing employees of the filing
(f) Abuse of H-1B Petitions
(i) Not adequately protecting American workers
(ii) Not maying the prevailing wage
(g) Immigration Act of 1990
(i) Limited the annual admissions of H-1B visas to 65,000
(2) O – Athletes, entertainers, persons in the other arts, the sciences,
education, and business
(a) Nonimmigrant must have extraordinary ability demostrated by
sustained national or international acclaim
(b) Initial admission may be for a period of up to three years, with
possible one-year extensions
(3) P – Entertainers
(a) P -1: Internationally recognized athletes, and members of
internationally recognized entertainment groups performing in specific
events
(b) P – 2: Artists and entertainers who wish to enter under reciprocal
exchange programs
(c) P – 3: Artists whou would provide programs that are culturally unique
ii) Lesser Skills and Shortages: H-2’s
(1) Comes to the US to:
(a) Perform agricultural labor or service of a temporary or seasonal nature
OR
(b) Perform other temporary service or labor if unemployed persons
capable of performing such service or labor cannot be found in this
country
(2) Both prongs require that the person have a residence in a foreign country
which he has no intention of abandoning
(3) Employer must obtain from the Dept of Labor a cdedrtification that
sufficent American workers cannot be found and that nonimmigrants’
employment will not depress the wages or working conditions of
American workers
(4) H-2B’s
(a) Initially admitted for up to a year
(i) May receive one year extensions up to a total stay of three years
(ii) Must first apply for labor certification
(iii)Labor Depts’s temproray labor certification is merely advisory
d) Educational Categories
i) Students
(1) F-1
(a) Private institutions
(i) F-1 status may not be granted to permit a child to attend a public
school
(ii) May not be granted to permit a student to attend a public secondary
school unless the student pay the full per-capita cost of education
1. Maximum duration of 12 months
(b) Attorney General required to colect information on every foreign
student they enroll
(i) An institution that fails to provide the required information
automatically loses its authoirty to accept foreign students
(ii) Required Information
1. Identity
2. Address
3. Dates of any changes in immigration status
4. Whether the student is maintaining full-time student status
5. Any disciplinary action the institution has taken as a result of
criminal conviction
(iii)Attorney General must analyze the information and file a report
with Congress
(c) Duration of Student’s Stay
(i) Admitted for “Duration of Status”
(ii) A designated school official estimates a reasonable completion
date for the particular program and may add a grace period up to
one year
1. Student may remain in the United States until that date,
assuming he or she remains in a full0tmie student in good
standing
2. If unable to complete his studies by this time, the student
applies to the university for an extension
a. Extension will be granted upon a showing of “compelling
academic or medical reasons”
i. May include change of major or research topic,
unexpected research problems, or documented illness
b. University must inform the INS of the extension
(d) Eligibility
(i) Must demonstrate sufficient funds
(ii) Stringent restrictions on employment
1. May work on campus up to 20 hours per week while school is
in session and 40 hours per week during school vacations
2. Off campus employment is generally allowed only when
unforeseen circumstances arising after admission make
employment after the first year economically necessary and the
INS grants permission
3. May work up to 20 hours per week off-campus after the first
year without a showing of economic necessity
i. Student must be on good academic standing and the
empler must attest that it has recruited 60 days for the
position and this it will pay prevailing wages
4. May engage in “practical training” for limited time periods
ii) Exchange Visitors
(1) J-1 for visitor, J-2 for spouse and children
(a) Purpose
(i) Mutual exchange program in which students, teachers, scholars,
and others enter the country temporarily to pursue various
education-related goals
(ii) Provide training that will enable the visitors to benefit their
countries of origin when they return, to foster intellectual and
cultural interchange, and in the process to build positive foreign
relations
(iii)Summer Camp Counselors
(iv) Au Pairs
1. Foreing national who comes to the US for a year to live with a
host family, provde child care, and attend a post-secondary
educational institution
2. Problems with exploitation as a means attaining cheap labor
3. Requirements
a. Over 18 years old
b. Secondary school graduate
c. Proficient in English
d. Pass a background check
e. Must attend a postsecondary educational insitution for at
least six hours per week
f. Limited to 45 hours per week of child care
g. Duration of stay is one year
(v) Maximum Stay
1. Depends on the category
a. Students in degree programs may remain as long as they
are pursuing full courses of study at the institutions for
which they were approved and are maintaining satisfactory
advancements
(vi) Difference between J-1 and F-1
1. Might not qualify for J-1
a. Studies must be part of a specific program approved in
advance by the State Department
b. Applicant must be sponsored by a U.S. government agency
or a recognized international agency, or one of various
private agencies
e) Tourists
i) 101(a)(15)(B)
(1) Authorizes the admission of certain nonimmigrants who want ot visit the
United States temporarily either for business (B-1) or for pleasure (B-2)
(2) Time Period
(a) Authorized period of initial admission ranges from six months to one
year
(i) Extensions may be granted in 6 month increments
(3) Denial
(a) Typical reason for denial is that the consular officer believes the
applicant intends to remain permanently
(4) People Given Visas For Pleasure May Not Stay for Education
(a) B-2 was not intended to be a catch-all category for all who wish to
come to the US temporarily for whatever purpose
f) Finaces
i) Fiance: K-1 Children: K-2
(1) Requirements
(a) Must have met each other during the two-year period preceding the
filing of the petition
(2) K-3: Spouses of citizens while the immigration documents are processing
(a) K-4: Children of spouses
g) A Few Other Nonimmigrant Categories
i) T: Victims of Trafficing
(1) Voctims of a severe for of trafficking in persons who are physically
present in the Unted States or a port of entry as a result of the trafficking
(2) If age 15 or over, the person must comply with any reasonable request for
assistance in the investigation or prosecution of the trafficking
(3) Person must demonstrate extreme hardship involving unusual and severe
harm upon removal
(4) Attorney General may grant T status to accompanying designated family
members
(5) Principal T immigrant may work
(6) Limit of 5,000 per year
ii) U: Victims of Abuse
(1) Those who have suffered substantial phyiscla or mental abuse as a result
of any of several enumerated acts of violence
(a) Rape, torture, trafficking, domestic violence, incest, sexual assault,
prostitution, female genital mutilation, involuntary servitude,
abduction, felonious assault, and several other criminal acts
(2) Must possess information concerning the violence and must help
prosecute
(3) Various family members may be admitted if extreme hardship would
otherwise ensue and the investigation or prosecution would be harmed
without those family members’ assistance
(4) Limit of 10,000 per year
(5) May work
(6) May adjust to LPR status after three years after certain conditions
iii) V: Long Divided Families
(1) Spouses and children of LPR’s
(2) Permits the admission of nonimmigrants while they wait for their priority
dates to become current, but only if the petition was filed before Decemer
21, 2000
(3) No numerical limits
(4) Employment is permitted
(5) Adjustment of statuse to permanent residence is contemplated
h) General Nonimmigrant Problems
i) Intent to Remain Permanently
(1) Most nonimmigrant categories require either that the person seek to enter
the country temporarily, or that the person have a foreign residence which
he has no intention of abandoning, or both
(2) Problem
(a) If, after admission the INS discovers that the person originally entered
with the intent to remain permanently, he or she might be deportable
as one who was inadmissible at entry or as one who failed to maintain
his or her nonimmigrant stause
(i) Finding of preconceived intent to remain can also be a negative
factor in various discretionary determinations
(b) Genuine Change of Mind Not Precluded
(i) If the change occurs very soon after the intial entry, the
immigration authorities are more likely to suspect fraud
1. Question is one of fact
(c) Dual Intent
(i) A desire to remain in this country permanently in accordance with
the law, should the opportunity present itself, is not necessarily
inconsistent with lawful nonimmigrant status
(3) Intent to remain raises both legal and ethical issues
IV) Exclusion Grounds and Waivers
a) Grounds Related to Immigration Control
i) Preservation of the Integrity of Documents
(1) 212(a)(7) – Excludes immigratns and nonimmigrants who are not in
possession of valid passports and visas
(2) 212(a)(5)(A) – Excludes immigrants if they do not have labor certification
(3) Fraud
(a) 274C – Doucment related fraud subjects aliens to fines and exclusion
(b) Noncitizens who procure visas, admission, or certain other documents
or benefits by fraud or misrepresenatation become inadmissible for life
ii) Surreptitious Entry
(1) 212(a)(6)(A) Excluded if present in the United States without having been
admitted or paroled
(a) Includes those that arrive at places other than officially designated
ports of entry
iii) Out of Status
(1) 212(a)(9)(B) – Unlawfully present in the United States for 180 days or for
one year inadmissible for three years or ten years, respectively
(a) Contemplates continuous unlawful preesentce, not an aggregate of two
or more separate stays (“For a period” of more than 10 years)
(b) Violation of Terms of Admittance
(i) 237(a)(1)(C)(i) – Presence does not become unlaful until the
immigration judge hears the case and determines that the violation
has occurred
(c) Notice to Appear
(d) Document filed by the INS to begin removal proceedings if they think
someone is in the United States unlawfully
(i) Time from the issuance to the time of removal order counts as
unlawful presence unless the persul ultimately is found not to be
deportable
1. Not necessarilly final word, this issue is still unclear
(e) Nonimmigrants Applying for Extension of Stay
(i) Entire period in which a timely filed, nonfrivolous application for
either extension of stay or change of status is pending as a prediod
of stay authorized by the Attorney General (for purposes of
212(a)(9)
iv) 212(a)(6)(B) – Failure to Attend Removal Hearing
(1) Any noncitizen who fails to attend hor or her removal hearing without
reasonable cause rendered inadmissible for five years
b) Political and National Security Grounds
i) Exclusion in General
(1) 212(a)(3)(A) – Excludes individuals believed to be seeking entry to
engage in specified unlawful activities, including espionage, sabotage, and
the forceful overthrow of the Government
(a) (3)(A)(ii) – Extended to the case in which the consular officer of the
the Attorney General has reason to believe that the person seeks to
enter the United States to engage in any other unlawful activity
ii) Terrorist Activities
(1) Any alien who has or the Attorney General has reasonable grounds to
believe has terrorist ties
iii) Foreign Policy
(1) An alien whose entry or proposed activities in the US the Secretary of
State has reasonable ground to believe would have potentially serious
adverse foreign policy consequences for the United States is inadmissible
(a) Exceptions
(i) An alien who is an official of a foreign government or a candidate
for election to a foreign government
(ii) An alien shall not be excludable because of the alein’s past,
current, or expected beliefs, statements, or associations if such
would be lawful within the US unless the Secretary of State
personally determines that the alien’s admission would
compromise a compelling US foreign policy interest
iv) Immigrant Membership in Totalitarian Party
(1) Any immigrant who is or has been a member of an affiliated with the
Communist or any other totalitarizn party, domestic or foreign, is
inadmssible
v) Participant in Nazi persecutions or genocide
(1) Any alien who associated with the Nazi government in Germany
vi) Association with terrorist organizations
(1) Any alien who the Secretary of State, after consultation with the Attorney
General (or vice versa) determines has been associated with a terrorist
organization and intends while in the US to engage solely, principally, or
incidentally in activities that could endanger the welfare, safety, or
security fo the US is inadmissible
c) Criminal Grounds
i) Criminal and related Grounds
(1) 212(a)(2) – Any alien convicted of, or who admits having committed, or
who admits committing acts which constitute the essential elements of
(a) A crime involving moral turpitude
(b) A violation of any law relating to a controlled substance
(2) Exception
(a) Any alien who committed only one crime if
(i) The crime was committed when the alien was under 18 years old
AND
(ii) The crime was committed more than 5 years before the date of
application for a visa or other documentation OR
(b) Any alien who committed only one crime if
(i) The maximum penalty possible for the crime of which the alien
was convicted did not exceed imprisonmnet for one year AND
(ii) The alien was not sentenced to a term of imprisonment in excess of
6 motnhs
(3) Multiple Criminal Convictions
(a) Any alien convicted of 2 or more offenses for which the aggregate
sentences to confement were 5 years or more is inadmissible
d) Economic Grounds
i) Three Economic Grounds For exclusion
(1) 212(a)(5)(A) – Labor Certification
(2) 212(a)(10)(E) – Those who formally renoucned their US citizenship for
the purpose of avoiding taxation by the United States
(3) 212(a)(4) – Noncitizens likely at any time to become public charges
(a) Meaning of Public Charge
(i) Primarily dependent on the government for subsistence as
demonstrated by either the receipt of public cash assistance for
income maintenance or institutionalization ofor long-term care at
government expense
1. Mere receipt of public funds does not make a person a public
charge
a. Non Public Charges – Food Stamps, Medicaid, CHIP,
EMS, Head Start, Job training programs, soup kitchens…
(ii) Main question is whether the assistance program is intended to be
a primary source of cash for income maintenance
(b) Evidence that a person will likely become a public charge
(i) Upon entry, a person should have a permanent job lined up, or in
the alternative sufficient funds to provide support until a job is
found
(ii) Factors
1. Age, health, family status, financial status, education, skills,
and affidavits of support
(iii)Affidavits of Support
1. Sponsor states a willingness to come to the applicant’s aid in
the event later aid is needed
a. Welfare reform of 1996 made this a binding contract on the
sponsor
i. Must be legally enforceable against the sponsor by the
sponsored immigrant, the Federal Government, any
state, or by any other entity that provides any means
tested public benefit
ii. The promise is binding for 40 qualifying quarter years
(ten years) after the immigrant last receives benefits or
until naturalization if sooner
b. Sponsor must be a US national or an LPR
c. Sponsr must be over age 18
d. Sponsor must be domiciled in the United States
e. Sponsor must be the person who is petitioning for the
immigrant’s admission
2. If the petitioner lacks the required resources, he or she may join
with another person as a co-sponsor
a. A co-sponsor will ot suffice unless the petitioner is also
eligible to be a sponsor
3. Sponsor’s income must be at least 125% of the poverty level
4. For immediate relative and family-sponsored petitions,
affidavits of support are mandatory
e) Public Health and Morals
i) Health
(1) 212(a)(1) – Neither a physical nor a mental disorder is generally a basis
for exclusion unless the associated behavior poses one of several specified
threats
(a) Even if there is a threat, deiscretionary waivers are possilbe
(b) Drug addicts and drug abusers are specifically inadmissible
(2) 212(a)(1)(A)(ii) – Expressly excludes noncitizens who are determined by
the Department of Health and Human Services to have a communicable
disease of publich health significance, which shall include infection with
HIV
(a) The Attorney General has discretion to waive that exclusion ground
for spouses and certain other close family members of US citizens or
LPRs
ii) Morals
(1) List has been significantly trimmed over the years
(a) Prostitution and other commercialized vices remain on the list
V) Admission Procedure
a) Modern Procedure: Preliminary Comments
i) Four Hurdles to the Admission Procedure
(1) Labor Certification
(a) Applies only to immigrants applying under the 2nd and 3rd
employment-based preferences
(2) Visa Petition
(a) Filed with the INS to establish the the noncitizen beneficiary meets the
definition of the particular status
(3) Obtaining Visa
(a) Visa Application
(i) Filed with the US consulate abroad after the visa petition is
approved
(ii) Beneficiary will need to presuade the consulate that he fits the
grounds for definition of the applicable status, but also that none of
the grounds for inadmissibility applies
1. Process involves paperwork and sometimes a personal
interview
(4) Actual Admission
(a) Person appears at authorized entry point and formally applies for
admission
(i) Visa is essential for admission, but it does not guarantee admission
1. INS inspector may reexamine the noncitizen to assure that
none of the statutory inadmissibility grounds applies
b) Visa Petitions
i) Procedure – Petition is a Standard Form
(1) Parties
(a) Party who files the form is the petitioner
(b) The noncitizen on whose behalf the petition is filed is called the
beneficiary
(2) Forms
(a) I-I30 – Petition filed on behalf of immediate relatives
(i) In immediate relatives and family preference cases, the US citizen
or LPR is the one who must file the visa petition
1. If the family member declines to do so, the would-be
immigrant is generally to apply for LPR status
2. Exceptions have been made for battered immigrants to apply
on their own behalf
(b) I-I40 – Petition filed on behalf of employment-based immigrants
(i) Certain employment-based first preference immigrants may either
petition for themselves or have others, such as their employers,
petition for them – 204(a)(1)(E)
(ii) For most employemt-based preferences, the petitioner must be the
employer – 204(a)(1)(F,G,H)
(3) The INS comprises three geographich “Regions”
(i) Eastern, Central, and Western
(ii) Each region encompasses several local districts
(iii)Each of the three regions operates a regional office that adjudicates
a wide variety of applications and petitions for which personal
interviews are assumed to be generally unnecessary
1. Burlington, Vermont; Dallas, Texas; Laguna Niguel, California
(iv) Most visa petitions filed within the US are mailed directly to these
regional offices
1. Certain petitioners who live outside the US may file in INS
offices overseas
2. Designated US consulates may adjudicate certain visa petitions
that are “clearly approvable”
(4) Priority Date
(i) Family Based – Date visa petition was filed
(ii) Employment Based – Date the request for labor certification was
accepted for processing
(5) Interview
(i) INS has the discretion ot require both the petitioner and the
beneficiary to appear in person for an interview
1. In practice, this is seldom invoked because most of the
decisions can be made without a personal interview
ii) Decision
(1) No Right to Hearing Provided in the INA Prior to Adverse Decision
(i) However, before an adverse decision can be made on the basis of
derogatory non-classified information of which the petitioner or
beneficiary is unaware, he or she must be given that information
and an opportunity to respond
1. Process must comport with due process
(2) Denial of Visa
(i) When the INS denies a visa petition it must state its reasons for
doing so
1. Denials are subject ot both administrative and judicial review
a. INS denials of family-based petitions are appealable to the
BIA
b. Denials of employment-based petitions are normally
appealable to the INS Associate Commissioner for
Examinations, who has delegated apellate function to the
Administrative Appeals Unit
(ii) The Attorney General may revoke a previous approval of a visa
petition for what he deems to be good and sufficient cause
iii) Approval of Visa Petition
(1) Procedure
(i) When the INS approves the visa petition, it forwards the approval
to the State Department’s National Visa Center (NVC) in
Portsmouth, New Hampshire
(ii) NVC checks the petition for accuracy and completeness, creates a
file, and mails Packet III to the visa applicant
(iii)NVC sends the file to the appropriate US consulate overseas
(iv) This begins the application process
1. The approval of a visa petition may not be revoked once the
beneficiary has begun his or her journey to the US
(2) Delay in Processing
(i) Premium Processing – For $1,000 employment-based petitions will
be processed within 15 days
1. Money has been pledged to use the additional revenues to hire
additional staff to reduce the processing times for other
petitioners as well
(3) Preparation of Forms
(a) The preparation of forms to effect a change in immigration status
requires legal training and familarity with immigration law, and failing
to properly prepare the forms courl result in great harm, including
deportation
(b) Practice
(i) Preparation or filing of any brief or other document, paper,
application, or petition on behalf of another person
(c) Preparation
(i) The study of the facts of a case and the applicable laws, coupled
with the giving of advice and auxiliary activites including the
incidental preparation of papers
1. Does not include the lawful functions of a notary public or
service consisting solely of assistance in the completion of
blank spaces on printed Service forms by one whose
remuneration, if any, is nominal and who does not hold himself
out as qualified in legal matters or in immigration and
naturalization procedures
(d) Although the act of recording a client’s responses to the question on I130 does not require legal skill or knowledge, the act of determining
whether the I-130 should be filed at all does require special legal skills
c) Visa Applications
i) Comparison Between Nonimmigrant and Immigrant Visas
(1) Similarities
(a) Both are designed to screen the applicants to determine whether they
are elgibile for the status they seek
(b) Both visa issuance provides a document that permits the applicant to
obtain transportation to the US and which satisfies the requirement for
admission
(2) Difference
(a) More detailed attention ordinarily given to immigrant visa applications
(b) Numerical differences
(i) The need to sevice the large and widespread demand for
Nonimmigrants is why there are more consular posts with NIV
jurisdiction
ii) Nonimmigrant
(1) Application is usually made at the consular post abroad where the alien
resides
(2) Dcuments
(a) (B-2) Tourist visas are issued almost immediately without the need for
supporting documents
(b) Other may require substantive documentation
(3) Immigrant
(a) Applcations ordinarily made at the consular post abroad that services
the applicant’s residence
(b) Applicant must phyiscally attend the scheduled interview with the
consul to secure the visa
(i) Residence reule, found to be the last place of residence, may bring
hardship
1. hardship may deem necessary for waiver of presence
iii) Consular Officers
(1) Given great deal of subjective discretion
(2) There is no administrative appeal, and n ojudicial review, or a consular
decision denying an application for either an immigrant, or a
nonimmigrant visa
(a) Limited Safeguards:
(i) State Department regulations require the principal consular officer
at the particular post to review all refusals
(ii) Visa Office (VO) in Washington D.D. may issue an advisory
opinion
1. Binds the consulate on an interpretation of law
2. On a questio of fact or an advisory opinion of the law to the
facts, the opinion is purely adivsory
3. Attorneys are officially denied access to either the wording of
the advisory request submitted by consular officers or the
written advisory ipinion itself
(3) Pros and Cons of Consular Absolutism
(a) Pro
(i) Administrative Efficiency and Convenience
(ii) Consular officers are well-trained and specifically picked as the
best in their field
(iii)Limited record is avaiable for judiciary to review
(iv) Consular officers would write out their opinions in a manner that
would deny review
(b) Con
(i) Reduces biases – Prospect of review would encourage
accountability
(ii) Goes with principals of fairness and justice
(iii)To err is human, and any exercise of discretion is potentially
fallible
d) Actual Admission
i) Upon arriving at US ports of entry, travelers encounter INS immigration
inspectors
(1) Determine whether the person is a US citizen, and whether the person is
inadmissible
(2) Visas
(a) If the noncitizen passenger has a visa he has laready undergone
rigorous screening at his Consulate
(b) If the noncitizen lacks a vis he will generally be inadmissible on that
ground alone
(c) Primary Inspection
(i) Quick process that entails scanning the passport and visa and
possibly checking a lookout list on the computer
(d) If there are doubts, the person is referred to a secondary inspection,
where they receive more intensive scrutiny
ii) Hearings Before Immigration Judges
(1) Removal Hearing
(a) Only a small proportion of those arriving passengers whom the
immigration officers refuse to admist actually exercise their statutory
right to a hearing because:
(i) Expedited Removal
(ii) Many are unwilling to accept detention
(iii)Some might feel intimidated
(iv) Some want to avoid a formal removal order, which would bar
admission for up to five years
1. 235(a)(4) – Attorney General has the discretion to permit
noncitizens to withdraw their applications for admission and
depart immediately
(b) Notice to Appear
(i) Formally begins when the removal proceeding
1. Specifies the time and place of the hearing, the alleged facts
and charged exlsuion grounds, and the individual’s proceducral
rights – 239(a)
2. Hearing may not start until ten days after service to afford the
person some opportunity to secure counsel
a. Noncitizen may request an earlier date – 239(b)(1)
(c) Noncitizen v. INS
(i) 291 – Noncitizen bears the burden of proving admissibility
1. Must prove that he is clearly and beyond doubt entitled to be
admitted and is not inadmissible under section 212
iii) Appeals from Immigration Judge Decisions
(1) The statute authorizes both the noncitizen and the INS to appeal to the
Attorney General from an adverse decisionof the immigration judge in
removal proceedings
(a) Authority dleegated to the BIA
(i) 242(a)(1) – Generally, judicial review of a removal order, whether
for deportation or inadmissibility, is by petition for review filed
directly in the court of appeals
iv) Expedited Removal (summary exclusion) – 235(b)(1)
(1) Applies whenever the immigration officer at the border determines that an
arriving noncitizen is inadmissible under :
(a) 212(a)(6)(C) – Fraud
(b) 212(a)(7) – Lack of proper documents
(2) Exception
(a) Noncitizens who indicate a fear of persecution or an intentio to apply
for asulum receive screeinging interviews to determine whether their
cases are strong enough to warrangt providing the regular asulum
procedures
(3) Procedure
(a) Once the inspector concludes that an arriving noncitizen is
inadmissible for fraud or lack of documents, the noncitizen or ordered
removed without further hearing
(i) Administrative appeal only applies to returning LPR’s, admitted
regugees, and people who have already received asylum
(ii) No judicial review of whether the alien is actually inadmissible or
entitled to any relief from removal
(b) Only permissible judicial review ois on the issues of:
(i) Whether the person is a citizen
(ii) Whether the person was in fact ordered removed
(iii)Whether the person comes within one of the above exceptions
(c) Statute purports to bar constitutional challengesto the statute
(4) Applcation
(a) Applies to noncitizens upon their arrival
(b) 235(b)(1)(A)(iii) - Attorney General has the unreviewable discretion to
extend it to noncitizens who:
(i) Are present in the US without having been admitted AND
(ii) Who are unable to prove continuouse physical presence in the US
for the immediately preceding two years
v) Othe Special Removal Procedures
(1) National Security and Foreign Policy Cases
(a) 235(c) – Speical procedureds for tension between fairness and not
disclosing secure confidential information
(i) If an immigration officer or an immigration judge suspects that an
arriving alien may be inadmissible under 212(a)(3)(A)(i) or (ii), the
officer or judge shall order the alien removed
(ii) Attorney General automatically reviews these removal orders and
concludes, based on confidential information, whether further
inquiry is to be conducted
(2) Terrorism Cases
(a) May be removed through another expedited process
(i) Applies to both inadmissible AND deportable noncitizens
e) Adjustment of Status - 245
i) Adjustment applicant must be admissible as an immigrant, and the particular
immigrant category must be current – 245(a)
(1) Immigration visa must be “immediately available” at the tome the
application is filed
(a) If the applicant is subject to a numerical quota, a visa will not be
considered “immediately available” unless the latest Visa Office
Bulletin shows that the preference categoyr is current or that the
person’s priority date has been reached
(b) INS must approve a visa petition
(i) INS generally permits the simulatenous submission of the visa
petitionand the adjusment of status application, provided approval
of the visa petition would make the visa immediately avaialable
ii) Extra Requirements – 245(i)
(1) Pre 1990 – Applicant had to be inspected and admitted or paroled
(2) 1994 – Restrictions temporarily softended to encourage adjustment of
status
(a) Exempted certain nonctizens from the disqualifications created by
their entires without inspection
(i) Applicant had to pay $1,000 to qualify for adjustment of status
(3) 1998 – Temporary, limited restorations of 245(i)
(a) Requirements come and go and face an uncertain future
(b) Still can be used for someone that file before 1998
(4) Consequence of 245(i)
(a) Under 212(a)(9)(b)(i), you Become inadmissible for 3 years/10 years
for being present after visa application runs out
(i) Important point is that both parts of this ground become applicable
only when the person actually leaves the country.
(ii) If you can apply for adjustment of status, you don’t have to leave
the country
(iii)Millions of people benefited, much more at astake than leaving the
country and re-attaining a visa
iii) Employment Based Immigrants – 245(k)
(1) Otherwise eligible applicants for the 1st, 2nd, 3rd, and some 4th
preeference employment-based slots could adjust their status, even if
currently or formerly out of status, provided they had entered lawfully and
were not out of status more than 180 days
iv) No administrative appeal from an INS decision denying an application for
adjustment of statuse
(1) Must wait for the INS to initiate removal proceedings and then renew the
adjustment application before the immigration judge
VI) Deportation Procedure: Removal Process
a) Apprehension
i) INA expressly charges the Attorney General with the administration and
enforcement of the immigration laws
(1) AG given both the power and the duty to control and guard the boundaries
oand border os the United States against the illegal entry of aliens
ii) 287(a) – Specific powers given to INS employees without a search or arrest
warrant
(1) The power to interrogate any person believed to be a noncitizen as to their
rights to be in the US
(2) The power to arrest any noncitizen in the country if there is reason to
believe that the alien is in the US in violation of the immigration laws and
is liekly to escape beofre an arrest warrant can be obtained
(3) Within a reasonable distance from any external boundary , the power to
board any vessel within US territorial waters and any train, aircraft, or
other vehicle, for the purpose of searching ofr noncitizens AND
(4) Within 25 miles of any external boundary, the power to enter private lands
other than dwellings for the purpose of patrolling the border
iii) Immigration Officers Include:
(1) All immigration inspectors at the border
(2) All border patrol agenst
(3) All investigators
(4) The Attorney General may also deputize properly trained state employees
to perform investigation, apprehension, and detention functions
iv) In certainsituations the immigration officer must have a reasonable suspicion
that the subject is not a citizen or that he or she is within the US in violation of
the law
(1) Other actions require probable cause to believe the person is a oncitizen
who is here unlawfully
v) Proceedings begin when the INS served on the subject a document called an
“order to show cause”
b) Before the Hearing
i) Within 48 hours of the arrest, the INS must decide whether there is prima
facie evidence that the arrested alien is in the US in violation of law
ii) If there is prima facie evidence, the INS issues a Notice to Appear, serves it
on the alleged noncitizen, and files it with the immigration judge
iii) Notice to Appear
(1) Nature of the proceedings
(2) Deportability Grounds
(3) Factuall allegations necessary to establish those charges
(4) The time snad place of the person’s required appearance before the
immigration judge
(5) Instructions on the person to keep the government apprised of his address
and the conseqences of failing to do so
(6) Gives the person a chance to secure counsel before the removal hearing
may be scheduled
iv) Decision to Detain
(1) Removal proceedings typically take at least several months, and
sometimes several years to complete
(2) Mandatory for Certain Categories of Noncitizens
(a) Almost anyone who is inadmissible or deportable on creim-related
grounds
(b) Those who are inadmissible or deportable on terrorism grounds
(c) Most arriving passengers
(d) Individuals awaiting the execution of final removal orders
(3) If decision not to detain, the INS has the discretion whether to detain the
person without bond, release on cash bond of at least $1,500, or release on
conditional parole
(4) If detaines, person has a right to a prompt and informal redetermination
hearing before an immigration judge
(5) Miranda inappliable to deportation
(a) When the INS decides to institute removal proceedings, it must advise:
(i) Any statements the person makes can be used against him or her
(ii) Must advise of the right to counsel at the person’s own expense
(iii)Must provide a list of any free legal services programs avaialge in
the locale
(b) Each of tehse rights comes into play only at some point after the INS
has made the decision to institute formal proceedings
c) The Removal Hearing
i) Judge
(1) Immigration Judge presides over the hearing which is held at the
immigration court
(a) IJ’s are not Article III judges
(2) If the individual is not already represented, the IJ advises of the right to
counes at no expense to the government and makes sure the person has
received a list of any free legal services programs availabe in the district
where the hearing is being held
ii) Burden
(1) INS has the burden of proving by clear and convincing evidence that the
subject of the hearing is a noncitizen
(2) Burden on the INS to prove by clear and convincing evidence that the
subject of the hearing is a noncitizen
(3) Burden shift to the noncitizen to prove by clear and convincing evidence
that he or she is lawfully present pursuant to a prior admission
(4) Burden shift to the INS to prove the alleged deportability grounds by clear
and convincing evidence
(a) One may be ordered removed only on the grounds formally charged,
but at any time during the proceeding the INS may lodge additional
charges
(i) Noncitiznen may receive a reasonable continuance to prepare to
meet those charges
(5) Burden shift to noncitizen to establish eligibility and deservedness for any
affirmative relief for which he or she applies at the hearing
iii) Hearing
(1) If contested, the INS presents its case first
(a) Case may consits of documetns, testimony, or both
d)
e)
f)
VII)
a)
(2) FRE does not apply
(a) Heasay evidence is perfectly admissible as long as it is relevant
Adminsitrative Review
i) Either the noncitizen or the INS may appeal the decision of the IJ to the BIA
ii) Appellant has 30 days to file summarizing the grounds to the appeal
(1) Filing automatically stays notice of execution of the IJ’s decision
iii) Incentive for the noncitizen to appeal solely to delay removal
(1) BIA may summarily dismiss an appeal if it lacks an arguable basis in law
or fact or for certain other reasons
Judicial Review
i) Removal order must be administratively final – 242(a)(1)
ii) Petitioner must exhaust all administrative remedies
(1) Appeal must be within 30 days of the final removal order – 242(b)(1)
(2) No longer stay removal unless the court affirmativel declares otherwise –
242(b)(3)(B)
(3) Court may reivew not only the finding of deportability, but also the
denials of motions to reopen – 242(b)(6)
(4) The reviewing court decides the case on the basis of the record, not by
taking new evidence of its own – 242(b)(4)(A)
The Execution of the Removal Order
i) Attorney General directed to remove noncitizens within 90 days of the times
their orders become administratively final
(1) Exception – Stay in connection with Motion to Reopen or Motion to
Reconsider
Deportability Grounds
General Considerations
i) The Theory of Deportation
(1) Harsh Sanction
(a) Can entail great economic hardship, restricted personal freedom, and
fundamental and unwelcome lifestyle changes
(2) Consequences and Purposes of Deportation
(a) Form of incapactiation
(b) Roots of deportation to the historical prcatices of banishment
(c) Check on the admission process
(i) Device for removing those noncitizens who should not have
entered in the first place or were admitted but hsoul dnot have been
(d) Remedy for breach of a valid contract
(e) Remove from our midst noncitizens whose continued presence
Congress finds injurios to the public welfare
ii) Current Deportability Grounds – 237(a)
(1) Inadmissible at time of entry or of adjustment of status or violates status
(a) Inadmissible
(b) Present in violation of law
(c) Violated nonimmigrant staus or condition of admission
(d) Termination of conditional permanent residence
(e) Marriage Fraud
(f) Smuggling
(2) Criminal Offenses
(a) General Crimes
(i) Crimes of moral turpitude
(ii) Multiple criminal convictions
(iii)Aggravated felony
(b) Controlled Substances
(c) Firearm Offenses
(d) Miscellaneous Crimes
(3) Failure to Register of Falsification of Documents
(a) Change of address
(b) Document Fraud
(c) Falsely claiming citizenship
(4) Secuirty and Related Grounds
(a) In General
(b) Terrorists
(c) Foreign Policy
(d) Nazis
(5) Public Charge
(6) Unlawful voters
b) The Meaning and Significance of “Entry” and “Admission”
i) Entry – Pre-IIRIRA
(1) No deportation proceedings could be brought until the noncitizen had
made an entry
(2) Either the manner or the timing of the person’s entry was an essential
element of most of the specific deporation grounds enumerated in the preIIRIRA version of the INA
(3) Entry into the US was an essential element of certain criminal offenses
ii) Admission - IIRIRA
(1) Determines whether a noncitizen will be subject to the inadmissibility
grounds or the deportability groudns
(a) Amended many of the specific inadmissiblity and deportability
grounds by replacing “entry” with “admission”
iii) Entry still a crucial concept in immigration law
(1) Some of the inadmissibility grounds still use enter/entry
(a) Some of the deportability grounds still use the term
(2) Congress’s decision to change only slected grounds of inadmissiblity and
deportability, and to leave other grounds intact, was clearly deliberate
(3) Criminal provisions continue to make “entry” an essential element of
various offenses
(4) Entry can made a difference when it comes to procedure
(a) Standards of proof for the two classes vary slightly – 240(c)(2)
(b) Expedited removal procedure is inapplicable to noncitizens who have
been present in the US at least two years
(i) Arguably, entry determines presence
(c) If a person who has been removed subseqently reenters the US, the
prior removal orderis reinstated and the perosn can be ejected without
a new removal hearing
(d) Fleuti – An innocent, casual, and brief exustion by a resident alien
outside this country’s borders may not have been intended as a
departure disruptive of his resident alien status and therefore may not
subject him to the consequences of an “entry” in the country on his
return
(i) IIRIRA changing “entry” to “admission” effect on Fleuti 101(a)(13)
1. Admission – The lawful entry of the alien into the US after
inspection and authorization by an immigration officer
2. An LPR shall not be regarded as seeking an admission for
purposes of the immigration laws unless the alien:
a. Has abandoned or relinquished that status
b. Has been absent from the US for a continuous period in
excess of 180 days
c. Has engaged in illegal activity after having departed the US
d. Has departed from the US while under legal process
seeking removal of the alien from the US, including
removal proceedings under this Act and extradition
proceedings
e. Has committed an offense of 212(a)(2)
f. Is attempting to enter at a time or place other than as
desingted by immigration officers or has not been admitted
to the US after inspection and authorization by an
immigration officer
(ii) Question of whether “unless” means if one of the listed event has
occurred, the statute implies that an LPR who has made an entry is
regarded as seeking an admission
1. To fall within a category, does it mean you have not been
admitted, or does not say one way or another
(iii)Some courts say that use of the word entry in the definition of
admission means that Fleuti is still applicable
c) Deportability Grounds Concerned With Immigration Control
i) Entry Without Inspection
(1) Repealed as a deportability ground and made a ground for inadmissibility
(a) Criminal offense
(b) After a prior removal order, the offense can be a felony
ii) Entry While Inadmissible and Related Issues
(1) Entry While Inadmissible
(a) 212(a)(6)(A)(i) – An alien present in the US without being admitted or
paroled, or who arrives in the US at any time or place other than as
designated by the Attorney General, is inadmissible
(b) 237(a)(1)(A) – Any alien who at the time of entry or adjustment of
status was within one or more of the classes of aliens inadmissible by
the law existing at such time is deportable
(i) Reflects view of deportation as an instrument for correcting errors
or lapses in the admission process
(2) Fraud
(a) 212(a)(6)(c)(i) – Any alien who, by fraud or willfully misrepresenting
a material fact, seeks to prcure a visa, other documentation, or
admission into the US or other benefit provided is inadmissible
(i) Documents - 212(a)(7)(A) : Fraud rendered the documents invalid
1. An alien who is not in possession of a valid unexpired
immigrant visa, reentry permit, … is inadmissible
(ii) Claims of false US citizenship
1. 237(a)(3)(D) - Any alien who falsely represents or has falsely
represented himself to be a citizen of the US for any purpose is
deportable
2. 212(a)(6)(C)(ii) - A noncitizen who gains entry by falsely
claiming to be a US citizen has not been inspected and
therefore is deportable for having entered without inspection
iii) Post-Entry Conduct Related to Immigration Control
(1) Present in Violation of the Law
(a) 237(a)(1)(B) – Any alien who is present in the US in violation of this
Act or any other law of the US is deportable
(i) Sometimes invoked for a violation of the conditions of his or her
stay
(ii) Simoltaneously trigger 237(a)(1)(C)(i) – Failure to maintain, or to
comply with the conditions of one’s nonimmigrant status
(2) Violation of Conditional Status
(a) Applies to both marriages and immigrant investors
(i) 237(a)(1)(D) – Any alien with permanent resident status on a
conditional basis under 216 who has had such status terminated
under 216 is deportable
(3) Inadmissibility at the time of adjustment of status
(a) 212(a)(1)(A) – Same grounds as inadmissiblity at the time of entry
(4) Administrative Requirements
(a) 261-266 – Registration, address reporting for various classes of
noncitizens present in the US
(i) Wilful violations of these requirements are criminal offenses (266)
and can be grounds for deportability (266(b)
(5) Smugglers
(a) 237(a)(1)(E) – Any aien who knowingly has encouraged, induced,
assisted, abetted, or aided any other alien to enter or to try to enter the
US in violation of law is deportable
d) Crime-Related Deportability Grounds
i) What is a Convition?
(a) 101(a)(48)(A) – The term conviction means, with respect to an alien, a
formal judgment of guilt of the alien enterd by a court
(1) Erasing A Conviction
(a) Withdrawing Guilty Pleas
(i) Parrino – Withdraw does not constitute manifest injustice simply
because the noncitizen was unaware of the collateral consequences
of the guilty plea
(ii) Pozo – Determination of whether the failure to investigate the
consequences of a guilty plea constitutes ineffective assistance of
counsel
1. Turns to a significant degree upon whether the attorney had
sufficient information to form a reasonable belieft that the
client was in fact an alien
(2) Expungements
(a) BIA interpreted the statutory language of conviction to mean that
expungement under a state rehabilitative statute never erases the
conviction for immigration purposes
(i) Courts and the BIA have retreated from this significantly
(3) Executive Pardons
(a) 237(a)(2)(A)(v) – A pardon eliminates deportability for moral
turpitude, aggravated felonies, and high-speed flight
ii) Crimes Involving Moral Turpitude
(1) 237(a)(2)(A)(i) –
(a) Any alien who is convicted of a crime
(i) If an alien has an appeal as of right, the conviction becomes final
when the appeal is confirmed
(ii) If the appeal is discretionary, the pendency of th review does not
affect the finality of the conviction
(b) Involving moral turpitude
(i) Term comes from old cases that use old language, “vile and
depraved” – every crime that involves dishonesty, even petty theft.
1. The only way to be sure that a crime involves moral turpitude
is to consult the list in a treatise.
(ii) Elements of the crime in the abstract must involve moral turpitude
(c) Committed within five years after the date of admission AND
(d) Is convicted of a crime for which a sentence of one year or longer may
be imposed
(i) Potential punishment is what counts for this purpose
iii) Two Crimes Involving Moral Turpitude
(1) 237(a)(2)(A)(ii)
(a) Any alien who at any time after admission
(b) Is convicted oof two or more crimes involving moral turpitude
(c) Not arising out of a single schme of criminal misconduct
(i) Courts are split as to what constitutes a scheme
1. Some courts hold that the crimes must take place at one time,
and hter must be no substantial interruption that would allow
the participaln to disassociate himself from his enterprise and
reflect on what he has done
2. Some courts hold that the statute refers to a single schmere
rather than to a single act
a. Scheme is sufficient if it s planned at the same time and
executed in accordance with that plan
(d) Regardless of whether conrifned therefor and regardless of whether the
convictions were in a single trial
(e) Is deportable
(2) Judicial Recommendations Against Deportation (JRAD)
(a) Pre-1990
(i) Sentencing judge, at the time of sentencing or within thrity days
thereafter, could make a recommendation that the perosn not be
deported
1. Prevented the INS from deporting the person on the basis of
the particular crime
(b) Immigration Act of 1990
(i) Repealed JRAD provision
1. Retroactive in that it prohibited courts from issuing future
JRADs even in connection with pre-1990 convictions
(3) Drug Offenses
(a) 237(a)(2)(B) – Any alien who at any time after admission has been
convicted of a violation of any law or regulation relating to a
controlled substance, other than a single offense involving marijuana,
is deportable
(b) 101(a)(43)(B) – Illicit trafficking in a controlled substance, including a
drug trafficking crime is an aggravated felony
(4) Aggravated Felonies
(a) 237(a)(2)(A)(iii) – Any alien who is convicted of an aggravated felony
at any time after admission is deprtable
(b) Consequences of Committing Aggravated Felony
(i) Aggravated felonies don’t have to be committed within five years
after admission in order to give rise to deportability
(ii) Makes a perosn deportable without regard to the potential or actual
sentence
(iii)Calling a crime an aggravated felony eliminates most discretionary
relief possibilities
(iv) Deletes certain procedural safeguards
(v) Triggers mandatory detention from the time removal proceedings
begin until the time the person is removed
(vi) Prevents the person after removal from ever returning to the United
States without special permission from the Attorney General
(vii)
Subjects the person to a 20 year prison term if found in the
US unlawfully without special permission
(c) Expanded over the years to the point that it need not be aggravated and
need not be a felony
(d) 101(a)(43):
(i) Mruder, rape, or sexual abuse of a minor
(ii) Illicit trafficking in a controlled substance
(iii)“
“ Firearms
(iv) Money laundering and related crimes if the fund are more than
$10,000
(v) A crime of violence for which the term of imprisonment is at least
one year
1. An offense that has an element the use, attempted use, or
threatened use of physical force against the person or property
of another OR
2. Any other offense that is a felony and that, by its nature,
involves a substantial risk that physical force againts the person
or property of another may be used in the course of committing
the offense
(vi) A theft offense or burglary offense which the term of
imprisonment is at least one year
(vii)
Demand for ransom
(viii)
Child porn
(ix) RICO
(x) Managing prostitution
(xi) Transmitting national defense information
(xii)
Crime involving fraud or deciet in which te loss to the
victim exceeds $10,000
(xiii)
Alien smuggling
(xiv)
Altering a passport
(xv)
Failure to appear by a D for service of sentence if the
offense is punishble by imprisonment for a term of 5 years or more
(xvi)
Bribery, counterfeiting, forgery
(xvii)
Perjury, obstruction of justice
(xviii)
Failure to appear before a court pursuant to a court order
answer to or dospose of a charge of a felony for which a sentence
of 2 years imprisonment or more may be imposed
(xix)
An attempt or conspiracy to commit any of these offenses
(xx)
Incorporating Paragraph:
1. The term applies to an offense described in this paragraph
whether in violation of Federal or State law and applies to such
an offense in violation of the law of a foreign country for
which the term of imprisonment was completed within the
previous 15 years.
2. Notwithstanding any other provision of law, the term applies
regardless of whether the conviction was entered before, on, or
after the date of enactment of this paragraph
(e) 101(48)(B)
(i) Any reference to a term of imprisonment or a sentence with respect
to an offense is deemed to include the period of incarcertaion or
confinement ordered by a court of law regardless of any
suspension of the imposition or sentence in whole or in part
(5) Miscellaneous Crminal Grounds
(a) Random crime related grounds
(i) None of these requires that a particular sentence be imposed or that
the crime be committed with a certain number of years after
admission
(b) Deportability grounds that do not require a criminal conviction at al
(i) Smuggling
(ii) Marriage Fraud
(iii)Breach of certain registration and reporting requirements
(iv) Illegal voting
(v) War crimes
(vi) Affiliation with subversive groups
(vii)
National Security
(c) Failure to maintain status or to comply with the conditions of that
status
(i) 237(a)(1)(C)(i) – Any alien who was admitted as a nonimmigrant
and who has faile dto maintain the nonimmigrant status in which
the alien was admitted or th which it was changed, or to comply
with the conditions of any such status is deportable
b) Political and National Security Grounds
II) Relief From Deportability
a) Recurring Limitations
i) Individuals who are properly notified of their removal hearings and fail to
appear, or who receive voluntary departure and fail to leave on time, become
ineligible to apply for any of several specified remedies for ten years
ii) Aggravated felons are expressly disqualified from most of the major relief
provisions, including cancellation of removal and registry
(1) A conviction of an aggravated felony precludes a showing of good moral
character, which itself is a required element of several releive provisions
iii) Anyone who is deportable on terrorist grounds is barred from several forms of
discretionary relief
iv) Judical review of discretionary relief severely curtailed in IIRIRA
b) Lasting Relief
i) Cancellation of Removal – 240A
(1) Cancellation of Removal: Part A (Certain Permanent Residents)
(a) General Applicability and Scope
(i) The Attorney General may cancel removal in the case of an alien
who is inadmissible or deportable from the US if the alien:
1. Has been an alien lawfully admitted for permanent residence
for not less than [at least] 5 years
a. LPR status terminates upon entry of a final administrative
order of exclusionor deportation
i. Administrative order is deemed final when the BIA
affirms it or the time ofor filing a BIA appeal lapses
2. Has resided in the US continuously for 7 years after having
been admitted in any status
a. 240A(d)(1) – Any period of continuous residence or
continuous physical presence in the US shall be deemed to
end when the alien is served a notice to appear or when the
alien has committed an offense [involving drugs or moral
turpitude]
b. 240A(d)(2) – An alien shall be considered to have failed to
maintain continuous physcial presence in the US if the
alien has departed from the US for any period in excess of
90 days or for any peridos in the aggregate exceeding 180
days
3. Has not been convicted of any aggravated felony
a. National security offenders are ineligible pursuant to
240A(c)(4)
(b) Discretion – Applicant must show he or she merits the favorable
exercise of discretion
(2) Cancellation of Removal: Part B (Certain nonpermanent residents)
(i) The Attorney General may cancel removal of AND adjust to the
status of LPR, an alien who is inadmissible or deportable if the
alien:
1. “May” implies administrative discretion
a. Not normal to deny these, but such does happen
(ii) Has been physically present in the US for a continuous period of
not less than 10 years immediately preceding the date of such
application
1. Thus, the only real inadmissibility requirement that may be
waived is presence without admission
2. Arriving noncitizens who return from temprorary visits abroad
after ten years of undocumented presence in the US may apply
3. Service of a Notice to Appear ends physical presence
a. Impossible to reach the ten-year theshold while waiting for
a removal hearing or an appellate proceeding
(iii)Has been a person of good moral character during such period
1. 101(f) – Defines persons who lack good moral character
a. alcoholism, criminal activites, false testimony…
i. List is not exhaustive
(iv) Has not been convicted of an offense under [lots of statutes] AND
(v) Exceptional and Extremely Unusual Hardship to the alien’s
spouse, parent, or child, who is a citizen of the US or an LPR
1. Mere showing of economic detriment not enough
2. Two Settings for Exceptional and Extremely Unusual
Hardship:
a. Noncitizen applies to the IJ for cancellation
i. Applicant has the burden of establishing the required
hardship
ii. Appealable to the BIA
iii. Courts barred from reviewing any judgment regarding
the granting of relief
b. Inelligible for canecllation at the time of proceedings, but
becomes eligible before the actual removal
i. Proper procedure is a motion to reopen removal
proceedings
ii. BIA and IJ have discretion in motions to reopen
iii. Appealable to the Judiciary
(b) The Attorney General may cancel removal of AND adjust to LPR an
alien who is inadmissible or deportable from the US if the alien
demonstrates they have been victims of domestic violence
(i) Mus show extreme cruelty
(c) 240A(e)(1) – Attorney General may only grant this to an aggregate of
4,000 individuals in any fiscal year
(d) 240A(c) – Disqualified Groups
(i) Crew members, certain exchange visitors, political or certaint
people inadmissible or deportable on political or national security
grounds
(e) NACARA
(i) Statute granted special dispensations to nationals of certain named
countries
1. Two Kinds of Relief:
a. Amnesty
i. Goes to certainnationals of Cuba and Nicaragua
b. Right to apply for canellationof removal:
i. Must have entered prior to 1990
ii. Must affirmatively apply
iii. Must have been present for 7 years (presence does not
end with Notice to Appear)
iv. Exception and extremely unusual hardship to oneself or
to one’s family members
v. Still discretionary
vi. Exempt from the 4000 person limit
ii) Registry
(1) 249 - A record of lawful admsission for permanent residence may, in the
discretion of the Attorney General may be made in the case of any alien, if
no such record is otherwise available and he shall saitsfy the Attorney
General that he is not inadmissible insofar as it relates to [bunch of
statutes], and he establishes that he
(a) Entered the US prior to 1/1/1972
(b) Has had his residence in the US continuously since such entry
(c) Is a person of good moral character AND
(d) Is not ineligible to citizneship and is not deportable under [statutes[
(i) Disqualifies noncitizens who have invoked a special statutory
exemption from military service but who, as the price for that
exemption, had to give up eligibility for citizenship
(2) Confers a discretionary authroity on the Attorney General to award LPR
status to certain noncitiznens who entere the US before a specified date
(a) Congress advances date from time to time
iii) Legalization
(1) General Legalization in 1986: 245A
(a) Legalization in Two Phases:
(i) May 5, 1987 – May 4, 1988, Eligible individuals could apply to the
INS for “temporary resident alien” (TRA) status – 245A(a)(1)(a).
1. Principal requirement of continuous unlawful redience from
January 1, 1982 until the filing of the application
2. If eligible, the application had to be granted – No discretionary
hurdle
(ii) A person who received TRA status had to apply for LPR status
during the two-year period that began one and one-half years after
he or she had attained TRA status
1. Elgibility
a. Consitunous residence since attainment of TRA status
b. Admissibility as an immigrant
c. Demonstration of certain English language skills and
knowledge of American history and government
2. If the person did not apply in time, TRA status terminated
3. LPR status must be granted after one meets the statutory
requirements
(b) No provision for the families of legalized immigrants
(i) Upon attaining LPR status, the individual could file a familysponsored second preference visa petition for his or her spouse or
childrent
(2) SAW: Legalization of Agricultural Workers - 210
(a) Two Phases
(i) Temproray residnet status
1. Main requirement was that th eperson had performed seasonal
agricultural services in te US for at least 90 man-days, during
the period ending on May 1, 1986
(ii) Permenent resident status
1. Easier than converting under general legalization program
(3) Cubans and Haitians
(a) If you were a national of one of several nations, if you apply for
cancellation part B, requirements will be more lenient than they
usually are.
(i) Now, if you are a national for Nicaragua or Cuba, you get an
automatic legalizaiton, granted there are no big background or
criminal problems.
iv) Adjustment of Status
(1) Dual Function in the Deportability Context
(a) Affirmative Relief from Removal
(b) Means of attaining LPR status without leaving the US
v) Private Bills
(1) Legislation that provides LPR status for a specific individual when
existing general provisions would not
(2) Must persuade a Member of Congress to introduce the bill
(a) Routed to the Immigration subcommittees of the House and Senate
Judiciary Committees
(i) Both now have formal rules that lay out the procedures for, and
discuss generally the substanitve criterai for granting, private
immigration legislation
c) Limited Relief
i) Deferred Action
(1) Extraordinary sympathetic factors would make removal unconscionble for
some aliens
(2) The INS could not remove all deportable individuals even if it wanted to
(a) Require apprehension, investigation, processing, possibly detention,
prosecution, adjudication, removal, record-keeping
(3) INS policy has been to refrain from initiating removal proceedings in
certain unusually compassionate cases
(4) Case is put on the back burner
(a) INS remains free to proceed against the person in the future if its
workload or its priorities change, realistically, since the actual reason
for holding back is the presence of exceptionally sympathetic factors,
relief will typically be permanent unless those individual factors
change
(i) Regardless, the person can never attain LPR status
ii) Voluntary Departure
(1) Voluntary Departure – 240B
(a) The person who receives and accepts a grant of voluntary departure
leaves the US voluntarily, in exchange no formal removal order issues
(b) 240B(a)
(i) The Attorney General may permit an alien voluntarily to deprat
the US at the alien’s own expense in lieu of being subject to
proceedings under 240 or prior to the competion of such
proceedings, if the alien is not deportable:
1. Because of an aggravated felony
2. For terrorism reasons
3. For being removed but then returning while still inadmissible
(ii) The person may be required to post bond (a)(3)
(iii) The voluntary departure period may be as long as 120 days
(iv) May be granted either before proceedings begin or while they are
going on
(c) 240(b)(B)
(i) The Attorney General may permit an alien voluntarily to depart the
US at the alien’s own expense if, at the conclusion of a proceeding
under 240, the immigration judge enters an order granting
voluntary departure in lieu of removal and finds that
1. The alien has been physically present in the US for a period of
at least one year immediately preceding the date the notice to
appear was served
2. The alien is, and has been, a person of good moral character for
at least the 5 years immediately preceding the alien’s
application for voluntary departure
3. The alien is not deportable under [same as (a)] AND
4. The alien has established by clear and convincing evidence that
the alien has the means to depart the US and intends to do so
(ii) The bond is mandatory, not discretionary
(iii)The maximum period allowed is 60 days
(iv) May be granted only at the conclusion of removal proceedings
(d) The DOJ regualtion s empower both the INS and the EOIR to grant
voluntray departure, but in differing circumstances:
(i) The INS has the authroity to grant only under (a), and only in lieu
of proceedings
1. If proceedings have commenced (Notice to Appear), and the
INS agrees to voluntary departure, the INS has two options:
a. Join with the noncitizen in a motion to the IJ to dismiss the
case at which point the INS may grant VD
b. Join with the noncitizen in a motion to grant voluntary
departure
(e) Advantages for Noncitizen
(i) Noncitizens who are formally ordered removed are ineligible to
return to the US for at least ten years
1. Still subject to 212(a)(9) restrictions
(ii) One who departs voluntraitly might evade apprehension
(f) 240B(f) – Bars judicial review of an otder denyin voluntay departure
under (b)
iii) Objections to Destination – 241(b)(2)
(1) Aleins Arriving at the United States
(a) Countries to which alien may be removed
(i) [With some exceptions], an alien who arrives at the US shall be
removed to the country in which the alien boarded the vessel or
aircraft on which ht eh alien arrived in the US
1. If the alien came from a country next to the US, and the alien is
not a national of that country, the alien should be sent to the
country from which the alien came before entering the nextdoor country
2. If the government of the countries above are unwilling to
accept the alien into that country’s territory, removal shall be to
any of the following countries, as directed by the Attorney
General:
a. The country of which the alien is a citizen, subject, or
national
b. The country in which the alien was born
c. The country in which the alien has residence
d. A country with a government that will accept the alien into
the coutry’s territory if removal to each country above is
impracticable, inadvisable, or impossible
(b) Other Aliens
(i) Selection of Country By Alien:
1. Any alien ordered removed (except above) may designate one
country to which the alien wants to be removed AND
2. The Attorney General shall remove the alien to the country that
the alien so designates
(ii) Limitation on Designation
1. AN alien may designate a foreign territory contiguous to the
US only if the alien is a native, citizen, subject, ro national of,
or has resided in, that designated territory or island
(c) Disregarding Designation
(i) The Attorney General May Disregard a Designation if
1. The alien fails to designate a country promptly
2. The government of the country does not inform the Attorney
General finally, within 30 days after the request, whether the
government will accept the alien
3. The government of the country is not willing to accept the alien
into the country
4. The Attorney General decides that removing the alien to the
coutnry is prejudicial to the US
(d) Alternative Removal Country
(i) If the alien is not removed to a country above, the Attorney
General shall remove the alien to:
1. The country from which the alien was admitted to the US
2. The country in which is licated the foreign port from which the
alien left for the US
3. A country in which the alien resided before the alien entered
the country from whicht e alien enterd the US
4. The country in which the alien was born
5. The country that had soveregnty over the alien’s birthplace
when the alien was born
6. The country in which the alien’s birthplace is located when the
alien is ordered removed
7. Any other country whose government will accept the alien into
that country
iv) Stays of Removal
(1) After issuance of a final removal order, alien is generally given a cedrtain
amount of time to take care of any personal matters before leaving the US
(2) If there is not enough time, the INS in its discretion may give a grant of a
temporary stay
III) Deportation Procedure – The Courts
a) A Sampling of Specific Procedural Ingredients
i) Representation
(1) In removal proceedings, the aliens shall have the privilege of being
represented, at no expense to the Government, by counsel of the alien’s
choosing who is authorized to practice in such proceedings
(2) Authorization to Practice
(a) A person entitled to representation may be represented by any of the
following:
(i) Attorneys in the US
(ii) Law students and law graduates not yet admitted to the bar,
provided that
1. Appearing at the request of the person entitled to representation
2. Student - Filed a statement that he or she is participating, under
direct superivision with renumeration that does not come from
the person represented
3. Graduate – Filed a statement that the person is appearing under
the supervision of a licensed attorney or accredited
representative
4. The law student’s or law graduate’s appearance is permitted by
the official before whom he or she wishes to appear
a. In 1997, changes were made:
i. Now you can work under any qualified individual
ii. You can work for any non-profit organization.
iii. It is okay to receive renumeration, provided you don’t
get money directly or indirectly from a client.
(iii)Reputable Individuals
1. Any reputable individual of good moral character, provided
that:
a. He is appearing on an individual case basis, at the request
of the person entitled to representation
b. He is appearing without direct or indirect remuneration and
files a written declaration to that effect
c. He has a pre-existing relationship or connection with the
person entitled to represenattion
i. May be waived as a matter of administrative discretion
d. His appearance is permitted by the official before whom he
wished to appear
(b) Organizations
(i) Non-profit, religious, charitable, social service, or similar provided
that:
1. It makes only nominal charges
2. It has adequate knoledge, information, and experience
ii) Discipline fo Practicioners
(a) There are extra ethical rules for lawyers that represent aliens in
removal proceedings
(i) Bribery, gross payments, false statements, …
(ii) Engages in frivolous behavior when he or she knows that his or her
actions lack an arguable basis in law or in fact, or are taken for an
imporper purpose, such as to harass or to cuase unnecessay delay
(iii)Engages in conduct that constitutes ineffective assistance of
counsel
(iv) Engages in the unauthorized practice of law
iii) Paying for a Lawyer
(1) Four reasons attorneys don’t want to represent agricultural clients:
(a) Mobility of the client population
(b) Language barreiers involved in serving a non-English speaking
population
(c) The high costs incurred in cases involving aliens
(d) The lack of any potential for large fee awards
(2) Legal Aid
(a) The IJ must advise the repsondent of the availability of free legal
services programs
(3) Pro Bono Legal Services
(a) Bar Associations often maintain referral services that provide the
names of attorneys who have volunteered to take on deportation cases
pro bono
b) Evidence and Proof
i) Illegally Obtained Statements
(1) Legally coerced statements
(a) 5th makes these suppressible in deportation proceedings
(2) Self-Incrimination
(a) Privilege applies in deportation cases as long as the statement would
be incriminating
(b) 235(a)(5) – An applicant for admission may be required to state under
oath any information sought by an immigration officer regarding:
(i) The purposes and intentions of the applicant in seeking admission
to the US, including:
1. The applicant’s intended length of stay
2. Whether the applicant intends to remian permanently or
become a US citizen
3. Whether the applicant is inadmissible
a. 235(a)(1) 0 An applicant present in the US who hasa not
been admitted is deemed to be an applicant for admission
i. Combination suggests that an immigration officcer may
require a noncitizen who is present wihtout having been
admitted to state under oath any information regarding
inadmissibility
ii) Burden of Proof and Sufficiency of the Evidence
(1) Scope of Judicial Review
(a) No decision of deportability shall be valid unless it is based upon
reasonable, substantial, and probative evidence
(i) Judicial review is limited to ascertaining whether the evidence
relied upon by the trier of fact was based on reasonable,
substantial, and probative evidence
(ii) Where the decision rests upon evidence of such a nature that it
cannot be said that reaonable person might not have reached the
conlcusion which was reached, the case may not be reversed
because the judgment of the appellate body differs from that of the
adminsitrative body
(2) Burden of Proof
(a) No deportation decision may be entered unless it is found by clear,
unequivocal [Congress repealed unequivocal], and convincing
evidence that the facts alleged as grounds for deportation are true
(i) Falls somewhere between preponderance of the evidence and
beyond a reasonable doubt
(ii) Applies only in the case of noncitizens who have previosly been
admitted
(b) Alien’s Burden of Proof
(i) In every removal proceeding, the burden is on the noncitizen to
prove either:
1. If the alien is an applicant for admission, that the alien is
clearly and beyond doubt entiteld to be admitted and is not
inadmissible under 212 OR
2. By clear and convincing evidence, that the alien is lawfully
present in the US pursuant to a prior admission
(c) Exception to the Government’s Burden of Proof:
(i) A person against whom proceedings are brought has the burden of
proving time, place, and manner of his or her entry into the US
1. If not sustained, the person is rebuttably presumed to be in the
US in violation of law
(d) INS must establish alienage before the burden of proving time, place
and manner of entry will shift
(i) Methods of Proving Alienage
1. Apprehending officer asks about citizenship
2. DOJ could grant a limited immunity that would prevent the use
in subsequent criminal proceedings, of statemetns the person
makes during the deportation hearing
3. Silence
a. In a deportation case it is permissible to draw adverse
inferences from the defendant’s decision to remain silent
i. However, silence must be combined with other
evidence to constitute clear, unequivocal and
convincing evidence
c) Judicial Review of Removal Orders
i) Petitions for Review
(1) 242(a)(1) – Judicial review of a final order of removal [other than
expedited removal 235(b)(1)] is governed only by [the Hobbes Act]
(a) Under the Hobbes Act, one files a petition for review in the court of
appeals
(2) Petition for review is filed in the circuit in which the removal hearing was
held – 242(b)(2)
(a) Time Limits
(i) Appeal must be filed no later than 30 days
1. Motion to reopen or reconsider does not toll the clock
(ii) Noncitizen must file a brief within 40 days after the administrative
record is avaialable
1. Otherwise, the court must dismiss unless a manifest injustice
would result – 242(b)(3)(C)
(iii)There is no time limit on the filing of the government brief
(3) Stay of Removal
(a) There is no automatic stay of removal
(i) Person must move the court to grant a stay – 242(b)(3)(B)
(ii) Person’s departure does not bar judicial review, the case proceeds
in the person’s absence
(b) It is now routine practice for noncitizens to couple their petitions for
review with motions for stays of removal pending decision
(i) Courts must decide:
1. Invest time studying the merits before deciding the motion for
a stay, and then, if the stay is granted, study the meirts again
2. Deny the stay and allow the INS to remvoe the petitioner from
the coutnry before the court can decide whether the petition is
meritorious
3. Grant the stay without examining the merits, permitting the
person to buy time in the US by filing a nonmeritorious
petition
a. 9th Circuit grants automatic stay, and the INS has 7 days to
oppose
(4) Exhaust all Administrative Remedies
(a) One must exhaust all administrative remedies that are available of
right – 242(d)(1)
(b) Res judicata and collateral estoppel are fully applicable – 242(d)(2)
(5) Decided Solely on the Record
(a) 242(b)(4)(A) – The court of appeals shsall decide the petition only on
the adminsitrative record on which the order of removal is based
(i) Charging document
(ii) Transcript of the removal hearing
(iii)Documentary evidence
(iv) Decision of the IJ
(v) Papers connected with the BIA proceeding
(vi) Decision by the BIA
(6) Scope of the Court’s Reivew
(a) 242(b)(4)(B) – The administrative findings of fact are conclusive
unless any reasonable adjudicator would be compelled to conlcude to
the contrary
ii) Exceptions to the Availability of Review
(1) Crome-Related Removal Orders
(a) No court shall have jurisidiction to review any final order of removal
against an alien who is removable by reason af having committed
[almost any crime covered in the Code] - 242(a)(2)(C)
(i) Because courts always have jurisdiction to determine their own
jurisdiction, the courts have consistently inerpreted this as not
barring review of whether the person is removable
1. i.e. Court may review whether a crime is an aggravated felony
(ii) Provision does not strip courts of their habeas corpus jurisdiction
to review removal orders for which petitions for review are based
(2) Denials of Discretionary Release
(a) 242(a)(2)(B) – No court shall have jurisdiction to review:
(i) any judgment regarding granting of relief under:
1. Cancellation of removal
2. Voluntray Departure
3. Adjustment of status
4. Waivers of inadmissiblity
(ii) 242(a)(2)(B) - any other decision or action of the Attorney
General the authority for which is specified to be in the discretion
of the Attorney General, other than the granting of relief under
asylum procedures
1. Refers to
a. Revocation of visa petition
b. Refugee admissions
c. Adjustment of status of refugees
d. Detention pending removal of arriving nonctizens
e. Change of nonimmigrant status
f. Registry
2. Two Issues
a. Only those authorized by this Title does not refer to:
i. Laws relating to citizenship
ii. Decisions contained in statutes or statutory provisions
that did not amend the INA
b. Even when a provision withi Title II makes relief
contingent on the favorable exercise of administrative
discretion, it is not clear that all judicial discretion is barred
i. Depends on what exactly is within the discretion of the
Attorney General – Whether the person is eligible at all
for the decision (?)
(3) Expedited Removal Orders
(a) 242(a)(2)(A) – Courts lack the jurisdiction to review expedited
removal orders
(i) A court may use habeus corpus to review certain things, but not the
merits of the case
(b) 242(e)(3)(A) – D.C.. District Court may review:
(i) Whether 235(a) is constitutional OR
(ii) Whether the Attorney General’s regulations or other written poliyc
statements comply with the statute and other laws
(4) Voluntary Departure Regulations
(a) 240B(e) – The Attorney General may by regulation limit elgibiltiy for
voluntary departure under this section for any class or classes of aliens.
No court may review any regulation issued under this subsection
(5) Prosecutorial Discretion
(a) 242(g) – No court shall have jurisdiction to hear any cause or claim by
or on behalf of any alien arising from the decision or action by the
Attorney General to commence proceedings, adjudicate cases, or
execute removal orders against any alien under this Act
(b) Narrowly construed to bar only the three actions mentioned
(6) Detention Decisions
(a) 236(a) – Attorney General has discretion to detain noncitizen, release
him or her on bond, or grant parole without requiring bond
(b) 236(e) – No court shall set aside any action or decision of the Attorney
General under this section regardin ghte detention or release of any
alien or the grant, revocation, or denial of bond or parole
(i) Does not bar the use of habeus corpus to challenge the
constitutionality of 236 itself
iii) Habeus Corpus
(1) 242(a)(1) – Judicial Review of a final order of removal is governed only
by [the petition for review procedure]
(2) 242(e)(2) – Judicial Review of any determination made under 235(b)(1)
(3) Repealed 212(c) – Gave courts habeus corpus jurisdiction as an alternative
to general petitions for review
(a) 212(c) relief remains available for alins whose convictions were
obtained trhrough plea agreements and who would have been eligible
for 212(c) relief at the time of their plea then in effect – St. Cyr
(b) Court seems to imply that Congress did not intend to eliminate habeus
corpus review for cases in which there were questions of law
iv) Other Stategies
(1) General Federal Question Jurisdiction
(2) Injunctions and Class Actions
(3) Collateral Attacks in Criminal Proceedings
(4) Consolidating Reviewable Claims
d) Exceptions to Usual Removal Proceedings
i) Expedited Removal
ii) Criminal Cases
(1) Prison Hearings
(a) Deportationsbased on criminal convictions are to be started as
expeditiously as possible after the date of the conviction
(i) Held in desgnated state of federal prison facilities
(b) 238(a)(1) – Attorney General is to hold deportation hearings for
aggravated felons before they complete their criminal sentences
(c) Goal is to complete all the administrative steps, including any BIA
appeal, before the person’s release from incarceration so that the
person may be immediately removed from the US without additional
detention
(d) 212(a)(2) – Requires Attorney General to detain most noncitizen
criminal offenders as soon as they are released from criminal
incarceration
(i) Most courts have founds such mandatory detention unconsitutional
(e) Problem of securing counsel from within prison
(2) Administrative Removal
(a) 238(b) for Aggravated felons who are not LPRs
(i) Noncitizen must receive:
1. Notice of the charges
2. Opportunity to be heard
3. Reasonable opportunity to inspect and to rebut the evidence
4. Record must be maintained
5. Adjudicator may not be the person who issued the charge
6. 14 days before the Attorney General executes the removal
orders so that the person will have time to seek extremely
limited judicial review
(b) Procedure requires the usual removal procedure with an
administratively final decision by the INS, the adjudicator is an INS
officer, and the entire proceeding is done on paper, without
opportunity for evidentiary hearing or even an interview
(3) Judicial Removal
(a) 238(c) – A US district court shall have jurisdiction to enter a judicial
order of removal at the time of sentencing aganst an alien who is
deportable, if such an order has been requested by the US Attorney
with the concurrence of the Commissioner and if the court chooses to
exercise such jurisdiction
(i) 238(c)(2) – Before deciding whether to exercise this jurisdiction,
the judge must hold what amounts to a mini-removal hearing on
the issues of both deportability and affirmative relief
(ii) 238(c)(3)(i) – A judicial order of removal or denial of such order
may be appealed by either party to the court of appeals for the
circuit in which the district court is located
(iii)238(c)(4) – Denial of a requiest for a judicial order of removal
shall not preclude the Attorney General from initiating removal
proceedings upon the same ground of deportability or upon any
other ground of deportability under 237(a)
(iv) 238(c)(5) – The Attorney General may, pursuant to a plea
agreement which calls for the alien, who is deportable under thie
Act, to waive the right to notice and a hearing under this section,
and stipulate to the entry of a judicial order of removal from the
US as ac ondition of the plea agreement, or as a condition of
probation or of supervised release or both
1. INS will not be bound by federal prosecutors’ promises of
nonremoval unless the prosecutor has first secured written
authorization from the INS
iii) In Absentia Removal Hearings
(1) 239(a)(1)(F)(i) and (ii) – Notice to Appear instructs the person to privde
his or her address and telepohone number and to inform the INS of any
changes of address or telephone number
(2) Consequences of Failure to Notify
(a) Removal hearing will be held in absentia – 240(b)(5)(A) and (B)
(i) At the hearing the INS must prove by clear, unequivocal, and
convincing evidence tha the required notice was provided and that
the person id deportable
(ii) To get the removal order rescinded person must:
1. Move to reopen within 180 days, showing exceptional
circumstances
a. Serious illness of the alien or death of an immediate
relative of the alien or something else no less copelling and
must be beyond the person’s control – 240(e)(1)
2. Must move to reopen at any time, showing he or she either did
not receive the required notice, or was in custdoy and was not
at fault in failing to appear
(3) Judicial Review
(a) The only issues the court has the jurisdiction to address are
(i) Adequacy of the notice
(ii) The reasons for the person’s absence AND
(iii)Deportability
(4) Other Adverse Consequences
(a) Becomes ineligible for various discretionary remedies until ten years
after the removal order
(b) Renders the perosn inadmissible to the US for five years following
their eventual departure
iv) Noncitizens Reenterning After Prior Removal
(1) 241(a)(5) – If the Attorney General finds that an alien has reentered the
US illegally after having been removed or having departed voluntairly,
under an order of removal,
(a) The prior order of removal is reinstated from its orignial date and is
not sujbect to being reopened or reviewed,
(b) The alien is not elgibile and may not apply for any relief under this Act
AND
(c) The alien shall be removed under the prior order at any time after
reentry
v) Crew Members
(1) Conditional Permit - Typically allowed to stay up to 29 days
(a) If not a Bona Fide crew member, INS has the discretion to revoke the
conditional permit, take the person into custody, and require the
captain to detain the person on board of the vessel
(b) Person removed without ever having received a hearing
vi) Terrorist Removal Proceeding
(1) Special proceeding balancing the rights of the noncitizen with the
importance of national security
vii) Rescission of Adjustment of Status
(1) 246 – Attorney General may rescind a grant of adjustment of status, within
five years, if the person was in fact ineligible for adjustment at the time it
was granted
(a) With the LPR status having been terminated, the INS may then be able
to initiate removal proceedings on the ground that the person has now
overstayed his or her original nonimmigrant visa
(2) Proceedings must be intitiated, not concluded within 5 years of the
adjustment
IV) Refugees
a) Overseas Refugees
i) People that are physically situated outside of the interior of the US, outside the
border. In some other country. Likley to be in a country where they
temporarilly sought asylum. In the case of overseas refugees, all of the
decision making takes place overseas
(1) 207(a) - Presidential Determination
(a) President makes annual determination of how many refugees may be
admitted in the upcoming fiscal year
(i) Determination specifies how that total is to be allocated among
refugees fleeing various countries and regions of the world
1. Most recent priority system
a. Individuals who are in the greatest, or the most immediate
danger
b. Certain refugees from certain countries including former
Soviet Union, Vietnam, Iran, Cuba, Bosnia, Burma and
some African countries
c. Specified family links to the US
d. Specified family links to the US
(ii) President may provide additional slots for unforseen emergency
refugee situations that cannot be accommodated by the originally
announced quota – 207(b)
(iii)Appropriate consulation is required for all of the above provisions
(2) 207(c)(1) – Attorney General Admittance
(a) Subject to the Presidential determinations, the Attorney General may
admit any refugee
(i) Who is not firmly resettled in any foreign country
(ii) Is of special humanitarian concern, AND
(iii)Is admissible
(b) Automatically exempted from certain exclusion grounds
(i) Labor certification
(ii) Public Charge
(iii)Required documents
(c) Spouses and childred accompanying are admitted under the same
criteria – 207(c)(2)
(d) Attorney General may later terminate the refugee status upon a
determination that the principal refugee did not in fact meet the
refugee definition at the time of admission - 207(c)(4)
(e) The Attorney General may not parile into the US an alien who is a
refugee unless the Attorney General determines that compelling
reasons in the public interest with respect ot that particular alien
require that the alien be pariled into the US rather than be admitted as
a refugee under 207 – 212(d)(5)(B)
(3) A refugee whose status has not been termianted, and who is still
admissible receives LPR status after one year – 209(a)
(4) Office of Refugee Resettlement
(a) HHS office charged with funding and admisnitering various federal
programs relating to resettlement – 411
(5) Internally Displaced Persons (IDPs) – Refugee definition extended to
persons still within their country of origin
b) Asylum and Nonrefoulement (same exact application process)
i) Asylum – Permits the person to remain in the US at least temporarily and in
most cases, permanently – 208
(1) Any alien who is physically present in the US or who arrives in the US,
irrespective of such alien’s status, may apply for asulum
(a) Further reaching than withholding – resultis in permission to
permanently resettle in the US
(2) Adjustment of Status
(a) 209(b) - Maximum number of adjustments:
(i) Attorney General may adjust the status of nor more than 10,000
refugees in a fiscal year who:
1. Applies for admission
2. Has been physically present in the US for at least one year
3. Continues to be a refugee
4. Is not firmly resettled in any foreign country
5. Is admissible (with some exceptions)
(3) Asylum Procedure
(a) Two Different Procedures
(i) Removal Proceedings Intitiated
1. If the INS has initiated removal proceedings, the application is
filed with the IJ
a. Resulting decision is appealable to the BIA
(ii) Affirmative Applications
1. If removal proceedings have not yet been instituted, one may
take the initiative and apply to the INS
a. Adjudicated by geographically dispersed INS asylum
officers, who have received specialized training
2. Initial Proceedings
a. Applcant receives a nonadversial interview
b. The applicant has a right to counsel and may submit
affidavits of witnesses and other documents
c. Asylum officer either grants asylum or refers the case to an
IJ for removal proceedings
i. Person may renew the applcation de nove before the IJ
ii) Nonrefoulement – Withholding of removal - 241
(1) Definition
(a) The Attorney General may not remove an alien to a country if the
Attorney General decides that the alien’s life or freediom would be
threatened in that country because of the alien’s race, religion,
nationality, membership in a particular social group, or political
opinion
c) Persecution or Fear of Persecution
i) Forms of persecution
(1) The infliction of objectively serious harm or suffering that is subjectively
experienced as serious harm or suffering by the applicant, regardless of
whether the persecutor intends to cause harm - DOJ
(2) Harm or suffering could consist of confinement or torture
(3) Economic deprivations or restrictions so severe that they constitute a
threat to an individual’s life or freedom
ii) Not Persecution
(1) Term requires more than simply governmental discrimination
(2) Minor disadvantage or trivial inconvenience not enough
(3) No other motivation, such as dissent or disagreement with the conditions
in another country or a desire to experience greater economic advantage or
personal freedom in the US satisfies the definition
(a) All reasons for escape other than persecution are simply irrelevant to
the refugee definition – victims of other fates are ruled out unless they
also fear persecution
iii) Fear
(1) Primary motivation for requesting refugee status must be a genuine
apprehension of danger in another country (Acosta)
(a) The term clearly contemplates that harm or suffering by the applicant,
must be inflicted upon an individueal in order to punish fim for
possessing a belief or characteristic a persecutor seeks to overcome
(b) The home government must be either the party that is inflicting the
harm or unwilling or unable to control a private actor who is inflicting
it
(c) A refugee must do more than show a well-founded fear of persecution
in a particular place or abode within a country – he must show that the
threat of persecution exsits for him country-wide
(i) If the government is either the perpetrator or the sponsor of the
persecution, there is a rebuttable presumption that relocation is not
a reasonable alternative
iv) Past Persecution
(1) A person who has already suffered persecution in a given country, and
who as a result is unwilling to return to that country, qualifies as a refugee
even if a change in conditions has eliminated any well-founded fear of the
future persecution
v) Individualized Pesecution
(1) Need for individualized targeting
(a) Generally harsh conditions shared by many other persons does not
amount to persecution (Acosta)
(i) Views
1. Exposure to the general dangers of war or other strife is not
persecution
2. Must adequately distinguis one’s situation from that of others
in the country
(b) Department of Justice View on Individualism
(i) The IJ shall not require the applicant to provide evidence that he or
she would be singled out individually for persecution if:
1. The applicant established that there is a pattern or practice in
his or her country of nationality or last habitual residence of
persecution of a group of persons similarly situated to the
applicant on account of [5 groups] AND
2. The applicant establishes his or her own inclusion in and
identification with such group or persons such that his or her
fear of persecution upon return is reasonable
vi) Adverse Impact of Facially Neutral Law
(1) Prosecution or Persecution
(a) Courts have generally found that criminal prosecution is not
persecution
(i) Prosecution can be regarded as persecution where:
1. The prosecution is found in fact to be a pretext for persecution
on account of one of the requirements OR
a. Singling out of a particular group that is being prosecuted
2. The punishment for the particular crime is found to be
excessive.
a. Usually a pretty good indication that the prosecution is a
pretext
(ii) Congress has changed the statute to say that forced abortion or
forced sterilization will constitute persecution on account of
political opinion.
1. Must have favorable exercise of discretion
2. Limited to 1000 persons per year
d) On Account of Race, Religion, Nationality, Membership in a Particualar Social
Group, or Political Opinion
i) Race, Religion, Nationality
(1) Race and Nationality
(a) Relatively infrequent, but rising lately
(2) Religion
(a) Conscientious objector claims have raised questions about relgious
persecution
(b) International Religious Freedom Act
(i) Creates office charged with monitoring relgious persecution
around the world
ii) Political Opinion
(1) Political Opinion by Doing Nothing (Elias-Zacarias)
(a) Not political opinion if the only evidence is that ht eperson has done
nothing
(i) Persecution on account of political opinion is persecution on
account of the victim’s persecution, not the persecutor’s
1. Must be the actual political opinion, not something that you do
or say
(b) Neutrality may be a political opinion, but must prove that this is the
political opinion
(i) A rule that one must identify with one of two dominant factions in
order to possess a political opinion, when many persons may be
opposed to the views of both factions would frustrate the purpose
of the refugee act
(ii) Must make a conscious and deliberate choice to remain neutral
(2) Imputed Political Opinion
(a) As long as the persecutor believes the applicant holds a particular view
and intends to persecute the person because of it, it does not matter
that the belief is wrong - View is accepted by all that matter
(i) 9th – Even falsely or cynically imputed political opinion may
suffice
(3) Refugees Sur Place
(a) Applicants who were not refugees when they left home, but who
become refugees while abroad
(i) Conditions at home changed while they were away
(ii) Refugees actions or words
1. Because a person may assert an unpopular opinion for the very
purpose of creating eligibility for asylum, UNHCR urges a
careful examination of the circumstances
2. Courts have been less inclied to find a will founded fear of
persecution based on political opinion when the fear arises
because of post-departure activities
3. Common Fact Sitautions
a. Departure or failure to return violated the country’s
emigration laws
b. After leaving the country, the applicant began expressing
new views or engaging in political associations that might
lead to persecution upon return
c. The applicant applied for asylum, was turned down, and
now fears that the very act of having applied for asylum
will prompt the government of the country of origin to
brand him a subversive or a traitor
iii) Particular Social Group
(1) General Defintion of Social Group
(a) Group of persons all of whom share a common, immutable
characteristic (Acosta)
(i) Characteristic that is so fundamental to individual identity or
conscience that it ought not be required to be changed
1. Might be inherent characterisitic or one based on pastexperience
a. Past Experience
i. When past experience defines a particular social group,
the past experience must be an experience that, at the
time it occurred, the member either could not have
changed or was so fundamental to his or her identity or
conscience that he or she should not have been required
to change it (DOJ)
b. Employment is not immutable
c. Gays officially recognized as a social group
2. Must be determined on a case-by-case basis
(ii) Whatever the common characteristic that defines the group, it must
be one that the members of the group either cannot change, or
should not be required to change because it is fundamental to
either individual identities or consciousness
(iii)Homogeneous requirement in Sanchez-Trujillo to hard to define
(b) Groups must be so fundamental to identity that a person would have to
face the persecution due to inability to comply with standards outside
of the group
(i) People who find the practices of a country merely offensive or
people that do not wish to compy with the practices do not qualify
1. i.e. Iranian women who find the laws so abhorrent that they
refuse to conform even though the routine penalty for
noncompliance is 74 lashes, a year’s imprisonment, and in
many cases brutal rape and death
(c) People that would be unable to escape otherwised accepted
persecution if they were returned to their country
(i) The characteristic must be so fundamental to the idividual of a
person that they should not be required to change it
1. i.e. Young women of the Tchamba-Kunsuntu Tribe who have
not hd FGM, as practiced by that tribe, and who oppose the
practice
a. The characteristic of having intact genitalia is one that is so
fundamental to the identity of a young woman that she
should not be required to change it
(ii) In looking at the otherwise accepted persecution, must settle
between relativism and universalism
(2) The Problem of the Non-State Actor
(a) Two Situations
(i) Situations in which the state will not provide protection
1. Factors to consider
a. Attempts by the applicant to obtain protection from
government officials and the resultant response
b. Official action that is perfunctory
c. General country conditions
d. Government’s denial of services
e. That nature of the government’s policies with respect to the
harm or suffering at issue
f. Any steps the government has taken to prevent infliction of
such harm or suffering
(ii) Situations in which the state is unable to provide protection
(b) Nexus
(i) There must be a conncection between the serious harm and the
failure of state protection
1. If the refugee claimaint is at real risk of seruios harm at the
hands of a non-state agent for reasons unrelated to any of the
Convention grounds, but the failure of state protection is for
reason of a Convention Ground, the nexus requirement is
satisfied
2. If the refugee claimant is at real risk of serious harm at the
hands of a non-state agent for reasons related to any of the
Convention grounds, but the failure of state protection is not
for reason of a Convention Ground, the nexus requirement is
satisfied
iv) Well-Founded Fear and Would Be Threatened: Standards of Proof
(1) A fear is well-founded if a reasonable person in the applicant’s
circumstances would fear persecution
(a) Less than a 50% chance
(b) At least a 10% chance
e) Methods of Proof
i) Material Facts
(1) Membership in a Persecuted Group
(a) Group membership, with nothing more, is normally insufficeint to
create a high enough probability that the particular applicant would
actually suffer the feared persecution
(i) Absent special circumstances, more will generally be required
(b) DOJ requires applicant to show well-founded fear of persecution by
showing a pattern or practice of the country persecuting a group of
people and the applicant’s inclusion in that groups – such that the
applicant’s fear of persecution upon return is reasonable
(2) Past Persecution
(a) Material in Two Ways:
(i) Can help the applicant establish a well-founded fear of future
persecution
(ii) Made an independent basis for refugee status even when there is
no threat of future persecution
(b) Rebuttable presumption that one who has suffered past persecution has
a well-founded fear of future persecution
(i) Two Ways to Rebut Presumption
1. By showing any fundamental change in circumstances that
eliminates the required well-founded fear on one of the
protected grounds OR
2. By showing that the applicant could avoid future persecution
by relocating to another part of the applicant’s country and
under all of the circumstances it would be reasonable to expect
the applicant to do so
(c) Discretionary component of asylum addresses other issues that may
arrive
(i) If a person is found to be a refugee solely on the basis of past
persecution, discretionary relief must be denied unless the person
has demonstated:
1. Compelling reasons for being unable or unwilling to return
2. A reasonable possibility that he or she may suffer other serious
harm upon removal to that country
(d) Past persecution is not an basis for eligibility for withholding of
removal
(i) Requires that life or freedom would be threatened
1. Future persecution is more likely than not
ii) Relevant Evidence
(1) The Applicant’s Own Testimony
(a) Asylum claimants rarely able to offer corroborative evidence of
specific acts or threats
(b) Often must rely on their own testimony
(c) Credibility
(i) Minor Inconsistencies
1. When there are merely minor inconsistencies about which the
applicant would have no reason to fabricate, these should not
conclusively mean that an applicant is not credible
(ii) Character/Morality
1. The personal choices that an asylum applicant has made
concerning marriage, children, and living arrangements should
not be used to evaluate the applicant’s credibility concerning
his claims of persecution, unless they reflect some
inconsistency in a relevant portion of the applicant’s testimony
(iii)Failure to Apply Elsewhere
1. Failure to apply for asylum in a country which the applicant
passses or in which he worked prior to his arrival in the US
does not provide a valid basis for questioning the credibility of
persecution claims
a. It is quite reasonable for an individual who has experienced
persecution to seek a homeland with more stability and that
offers more promising economic opportunities
(iv) Judges Determination
1. Reviewing courts generally accord great deference to the
credibility determination of the IJ who views the witness as the
testimony is given and the applicant’s demeanor
a. De novo standard for questions of law
(v) Evidence from other sources refuting testimony
(vi) Internally Inconsistent
1. Decision will not be disturbed when :
a. The discrepencies and omissions described by the IJ are
actually present
b. These discrepancies and omissions provde specific and
cogent reasons to conclude that the respondent provded
incredible testimony AND
c. The respondent has not provided a convincing expalantion
for the discrepancies and omissions
(vii)
Character Evidence
(viii)
Deliberate Lies
1. Not always an adverse finding
a. May show that a person fears their country so much that he
would lie to keep from going back
(ix) Vague or Evasive statements may distract from credibility
(x) Inherently Unbelievable Stories
1. testimony of persecution in a country that is a democracy with
a good human rights record
(d) Testimony Alone
(i) DOJ and UNHCR say that the testimony of the applicant, if
credible, may be sufficient to sustain the burden of proof without
corroboration
(ii) Whenever it is reasonable to expect corroborating evidence, even
an applicant whose testimony is found credible must offer such
evidence or explain why he or she did not
(2) State Department Opinion
(a) Human Rights reports are considered by thoses involved in asylum
adjudication proceedings
(i) Largely based on foreign policy
(b) Advisory Opinions in Individual Cases
(i) SD provides individualized letters in a small fraction of cases
(c) Advice from UNHCR
(i) US has no formal provision for UNHCR participation
(ii) Attorneys for asylum claimants frequently ask for expressions of
tis views about the particular cases, and when avaialbe, UNHCR
accomodates the requests and the letters are admitted into evidence
(d) Other Sources of Information
(i) Documentation Center within the INS with Information on human
rights
(ii) BIA taking notice of country conditions generally
1. Accepts certain facts as true
a. Noticed facts can not be contraverted
b. Noticed facts must not be used in such a way as to deny the
applicant an individualized adjudication
c. Applicant must have a meaningful opportunity to submit
rebuttal evidence
f) Exceptions to Eligibility
i) Firm Resettlement
(1) 207(c)(1) – Refugees and asylum claimants are disquaified if they are
firmly resettled in another country
(a) No analogous provision for withholding of removal
(2) A person will be considered firmly resetlted in another coutnry if before
arriving in the US the person received an offer to resettle permanently in
another country
(a) Exceptions
(i) Entry in the thrid country was a necessary consequence of his
flight from persecution
(ii) Remained in the country only as long as was necessary to arrange
onward travel AND
(iii)Significant ties were not established OR
(iv) Conditions attached to residence can be so substantially and
consciously restricred that in fact the person was not resettled
1. No right to work
(3) Different than Safe Third Country
(a) US law permits the INS to remove asylum applicant to third countries
in which they are not firmly resettled
ii) Past Wrongdoing – 208(b)(2)(A)
(1) Not eligible if the Attorney General finds that:
(a) The alien ordered, incited, assisted, or otherwise particiapted in the
persecution of any person on account of race, religion, nationality,
membership in a particular social group, or political opinion
(b) The alien, having been convicted by a final judgment of a particularly
serious crime, constitutes a danger to the community in the US
(i) Both the same ground, only one factual determination
(ii) Particularly serious crime is more serious than a serious
nonpolitical crime, although many crimes may be classified as both
(iii)Aggravated Felony
1. Asylum
a. 208(b)(2)(B)(i) – An alien who has been convicted of an
aggravated felony shall be consdered to have been
convicted of a particularly serious crime
2. Withholding of Removal
a. 241(b)(3)(B) – An alien who has been convicted of an
aggravated felony (or felonies) fo rhw hich the alien has
been sentenced to an aggregate termo of imprisonment of at
least 5 years shall be considered to have committed a
particularly serious crime
i. Aggravated felonies that don’t have a sentence of five
years must be evaluated based on the merits of the case
(iv) Factors:
1. Nature of the conviction
2. Circumstances and underlying facts of the conviction
3. Type of sentence imposed
4. Whether the type and circumstances of the crime indicate that
the laine will be a danger to the community
5. Crimes against persons are more serious than crimes against
property
(c) There are serious reasons for believing that the alien has committed a
serious nonpolitical crime outside the US prior to the arrival of the
alien in the US
(i) Look to whether the nature and purpose of the crime was
committed out of genuine political motives and not merely for
personal reasons or gain
1. There shoul be a close and direct causal link between the crime
committed and its alleged political purpose and object
(d) There are reasonable grounds for regarding the alien as a danger to the
security fo the United States
(e) The alien is inadmissible under [statute relating to terrorist activity
g) Discretion in Asylum Cases
i) Use of fraud and circumvention of orderly asylum procedures may be
important factor in determining to grant asylum
(1) Circumvention should be a serious adverse factor, but it should not be
considered in such a way that the practical effect is to deny relief in
virtually all cases
ii) Look to the Totality of the Circumstances
(1) Wethere the alie passed through any other coutnries or arrived in the US
dreictly from his country
(2) Whether orderly refugee procedures were in fact available to help him in
any country he passed through
(3) Whether he made any attempts to seek asylum before coming to the US
(4) Length of time the alien remained in the thrid country
(5) Living conditions, safety, and potential for long-term residency in a thirdcountry
(6) Whether the alien has relatives in the US or other personal ties to this
country which motivated him to seek refuge here rather than elsewhere
(7) Extent of the alien’s ties to any country that he does not fear persecution
(8) Seriousness of fraud the alien engaged in to circumvent procedures
(9) General humanitarian considerations such as tender age or poor health
iii) Applcaint has the burden of proving that favorable exercise of discretion is
warranted
(1) Alien should present evidence on any relevant factors which he believes
support the favorable exercise of discretion in his case
h) Procedure
i) Two Separate Procedures
(1) EOIR: Already in Proceedings
(a) Person applies for asylum and/or withholding of removal by filing an
application with the immigration judge
(i) Decision is appealable to the BIA
(ii) BIA decision is appealable in court – 242(a)(1)
(2) INS: Affirmative Applications
(a) Applications filed with asylum officers
(i) INS officers specially trained in International law, country
conditions, and asylum law
(ii) Officerts are based in several major cities throughout the United
States
(b) Nonadversial Interview
(i) Noncitizen may be represented by counsel and may submit
documentary evidence
(c) Decision
(i) If the officer grants the application, then applicant will be admitted
(ii) If the officer denies the application, then refers the case to an IJ for
the intiation of removal proceedings
1. EOIR proceedings with IJ, BIA, and reviewing court kick in
ii) Problems with Adjudication Process:
(1) Political Bias
(a) Critics charge that various officials who decide asylum cases
improperly emphasize political factors
(2) Long Delays
(a) INS and IJ’s have considerable applications each year, which may take
years to get through
(b) Prevents applicants from security and peace of mind
(i) However, very act of applying entitles applicants to some benefits
(3) Unfounded Claims
(a) Many intermim benefits while the claim is pending
(4) Fiscal Costs
(a) Costs behind the hearings, appeals, benefits, and detention can be
considerable
(5) Procedural Fairness
(a) Assusing the noncitizens how or learn of their right to apply for
asylum
(i) Regulations require the INS to provide the necessary application
forms only when the noncitizen affirmatively requests forms or
expresses fear of future persecution
1. Similar regulations apply to the IJ
iii) Time Constraints
(1) Time to Finish Proceedings
(a) 208(d)(5)(A)(ii) – In the absence of exceptional circumstances, the
initial interview shall commence not later than 45 days after the date
an application is filed
(b) 208(d)(5)(A)(iii) – In the absence of exceptional circumstances, final
administrative adjudication of the asylum application, not including
adminsitrative appleal, shall be completed within 180 days after the
date an application is filed
iv) Barring or Discouraging Access to Asylum Seekers
(1) Filing Deadlines
(a) 208(a)(2)(B) – With some exceptions, asylum shall not apply to an
alien unless the alien demonstrates by clear and convincing evidence
that the application has been filed within 1 year after the date of the
alien’s arrival in the United States
(i) Exceptions
1. 208(a)(2)(D) – An application for asulum of an alien may be
considered if the alien demonstrates to the satisfaction of the
Attorney General either:
a. The existence of changed circumstanes which materally
affect the applicant’s eligibility for asylum OR
b. Extraordinary circumstnaces relating to the delay in filing
an application within the [one year period].
(b) Once the administrative officials find an absence of clear and
convincing evidence that the applicant arrived during the past year,
and also find that neither of the exceptions applies, the asylum denials
are final – No Judicial Review is permitted
(i) 208(a)(3) – No court shall have jurisdiction to review any
determination of the Attorney General [concerning the limit]
(2) Safe Countries
(a) Countries that neither practice persecution nor return refugees to
countries that will persecute them
(i) Asylum claimiants from countries that are on the safe list are
presumed ineligible
(b) 208(a)(2)(A) – Safe Third Country
(i) The Attorney General may determine that the alien may be
removed, pursuant to a bilateral or multilateral agreement, to a
country in which the aliens’s
1. Life or freedom would not be threatened on account of [five
grounds], AND
2. Where the alien would have access to a full and fair procedure
for determining a claim to asylum or equivalent temporary
protection,
3. Unless the Attorney General finds that is in the public interest
for the alien to receive asylum in the US
(ii) Attorney General’s decision is not reviewable under 208(a)(3)
(iii)Provisioin is inoperative unless the US enters into a safe third
country agreement
1. No such agreement exists
(3) Expedited Removal
(a) If an immigration officer invokes the expedited exclusion provision,
and the person either requests asylum or otherwise indicates a fear of
persecution, then an asylum officer interviews the person and performs
a preliminary screeding to decide whether there is a credible fear of
persecutuion
(i) Credible Fear of Persecution
1. 235(b)(1)(A)(i) – An asylum officer shall conduct interviews of
aliens at a port of entry or at such other place designated by
the Attorney General
a. 235(b)(1)(B)(v) – Credible fear of persecution means that
there is a significant possibility, taking into account the
credibility of the statements made by the alien in support of
the alein’s claim and such other facts as are known to the
officer, that that alien could establish eligibility for asylum
(ii) Detention For Further Consideration
1. 235(b)(1)(B)(ii) – If the officer determines at the tim eof the
interview that an alien has acreidble fear of persecution ,t hat
alein shall be detained for furthef consideration fot he
applicatio for asylum
(iii)No Credible Fear
1. Upon finding none, the alien is removed
a. 235(b)(1)(B)(iii)(I) – If the officer determines at the time of
the interview that an alien does not have a credible fear of
persecution, the officer shall order the alien removed from
the US without further hearing or review
b. 235(b)(1)(B)(III)(II) – The officer shall prepare a written
record of a determination undder (I). Such record shall
include:
i. A summary of the amterial facts as stated by the
applicant
ii. Such additional facts relied upon by the officer, AND
(4)
(5)
(6)
(7)
(8)
iii. The officer’s analysis of why, in the light fo such facts,
the alien has not establised a credible fear of
persecution
(iv) Review
1. Upon the individual’s request, an immigration judge will
promptly review
a. 235(b)(1)(B)(iii)(III) – The Attonrey General shall privde
by regulation and upon the alien’s request for prompt
review by an im immigratoin judge of a determination
under (I) that the alien does not have a credible fear of
persecution
i. Such review shall include an opportunity for the alien
to be heard and quastioned by the immigration judge,
either in person or by telephonic or video connection
ii. Review shall be concluded as expeditiously as possible,
to the maximum extent practicable within 24 hours, but
in no case later than 7 days after the date of the
determination under subclause (I)
2. There is no other administrative review unless the person
attests under penalty of perjury that he or she has already been
admitted as an LPR, a refugee, or an asylee - 235(b)(1)(C)
a. Nor, with one very limited excpetion, is there any judicial
review – 242(a)(2)(A), 242(e)
Detention
(a) Those who apply for asylum in removal proceedings are subject to the
same detention rules as anyone else in those proceedings.
(i) May be held without bond, released on bond, or paroled without
bond – 236(a)
Denying Employment Authorization
(a) 208(d)(2) – An applicant for asylum is not entitled to employment
authorization, but such authorization may be provided under regulation
by the Attorney General.
(i) An applicant who is not otherwise eligible for employment
authorization shall not be granted such authorization prior to 180
days after the date of filing of the application for asylum.
Sanctioning Frivolous Applications
(a) 208(d)(4)(A) – The Attorney Generlal shall advise the alien of the
consequences of knowingly filing a frivolous application for asylum
(b) 208(d)(6) – If the Attorney General determines that an alien has
knowingly made a frivolous application for asylum and the alien has
received the notice under (4)(A), the alien shall be permanently
ineligible for any benefits under the INA.
Application Fees
(a) 208(d)(3) – The Attoreny General may impose fees for the
consideration of an application for asylum.
Preinspection
(a) 235A authorization - Idea that passengers can be inspected before they
travel all the way to the US and if found inadmissible, will not face
another voyage home
(b) Interdiction
(i) Intercepts vessels suspected of carrying entrants and turns them
away before they reach the nation’s shores.
1. Prevalant with Haitians
V) Undocumented Migrants
(1) Immigration Offense
(a) Entry Without Inspection - 275(a)
(i) Forbids Any Alien Who:
1. Enters or attempts to enter the US at any time or place other than
as designated by immigration officers
2. Eludes examination or inspection by immigration officers OR
3. Attempts to enter or obtains entry to the US by a willfully false or
misleading representation or the willful concealment of a material
fact
(b) Reentry of Deported Alien
(i) Any alien who:
1. Has been denied admission, excluded, deported, or removed or has
departed the US while an order of exclusion, deportation, or
removal is outstanding shall be fined
(ii) The Supreme Court has held that a person could not constitutionally be
convicted under 276 wihtout ahving had at some point, a meaningful
opportunity to contest the validity of the underlying deportation order
(c) Fraud
(i) 18 USC 1001
1. Felony to defraud the US government
(ii) 274C
1. Expands the range of document related violations and prescribes
civil penalties to be imposed after administrative proceedings
(iii)Marriage Fraud – 275(c)
1. Any individual who knowingly enters into a marriage for the
purpose of evading any provision of the immigration laws shall be
imprisoned for not more than 5 years or fined not more than
$250,000, or both
(iv) Immigration-Related Entrpreneuership Fraud
1. Any individual who knowingly established a commercial
enterprise for the purpose of evading any provision of the
imigration laws shall be imprisoned for not more than 5 years, or
fined, or both
(d) Facilitating Illegal Immigration
(i) 274(a)(1)(A)(B)(C)(D) – Generally covers:
1. Bringing noncitizens to the US other than at designated prots of
entry
2. Transporting, within the US, noncitizens who are present in
violation of law
3. Harboring such persons
4. Inducing illegal entry
(ii) Mens rea required
(2) Employer Misconduct
(a) Employer Sanctions
(i) 274A – Unlawful Employment of Aliens
1. 274A(a)(1) It is unlawful for a person or other entity to:
a. Hire, recruit, or refer for a fee, for employement in the US an
alien knowing the alien is an unauthorized alien with respect to
such employment OR
i. 274(h)(3) – Unauthorized alien means an alien that is not
that the time EITHER:
ii. An alien lawuflly admitted for permanent residence
iii. Authorized to be so employed by this Act or the Attorney
General
b. To hire for employment in the US an indvidual without
complying with the paperwork requirements of 274A(b)
2. 274A(a)(2) - Continued Employment
a. It is unlawful for a person or other entity, after hiring an alien
for employment in accordance with (1), to continue to employ
the alien in the US knowing the alien is an unauthorized alien
with respect to such employment
3. Grandfather Clause
a. Above sections shall not apply if the employment or continued
employment has occurred before the date of the enactment of
the Act
4. Casual Employment
a. DOJ – Employment does not include causal employment by
individuals who provide domestic service in a private home
that is sporadic, irregular, or intermittent
5. Knowing
a. Constructive knowledge is enough
i. Deliberate failure to investigate suspicious circumstances
imputes knowledge
ii. Statute requires only that the employer verify that the
document on its face appear genuine
iii. Willful blindness – Awareness that the fact was highly
probable and a conscious decision to avoid enlightenment
b. INS – Knowledge which would fairly be inferred through
notice of certain facts and circumstances which would lead a
person, through the exercise or reasonable care, to know about
a certain condition
i. Reason to know standard (beyond willful blindness)
c. Continue To Employ
i. The INS must provide an employer with a reasonable
amount of time for compliance after the employer acquires
knowledge that an employee is unauthorized
(3) Verification Procedure
(a) First, the employer must examine certain documents furnished by the
employee – 274(b)(1):
(i) (b)(1)(B) Documents that Simoltaneously establish the employee’s
identity and his or her employment authorization OR
1. (i) United States Passport
2. (ii) Resident alien card, alien registration card, or other
document designated by the Attorney General, if the document:
a. Contains a photograph of the individual and such other
personal identifying information relating to the individual
which the Attorney General finds:
i. Is evidence of authorization of employment in the US
AND
ii. Contains security features to make it resistant to
tampering, counterfeiting, and fraudulent use
(ii) (b)(1)(C) – Documents that establish only employment
authorization AND
1. (i) Social Security Card OR
2. (ii) Other documentation evidencing authorization of
employment in the US which the Attorney General finds, by
regulation, to be acceptable for purposes of this subsection
(iii)(b)(1)(D) – Documents establishin only identity if individual
1. (i) Driver’s license or similar document issued for purpose of
identification by the state if it contains a photograph or other
information that the Attorney General, by regulation, finds
sufficient
2. (ii) – If the individual is under 16 years of age or in a state that
does not provide ID cards other than a driver’s license,
documentation which the Attorney General finds, by
regulatioin, as a reasonable means of identification
(b) Second, Employer Attestation -274A(b)(1)(A)
(i) Employer must attest under penalty of perjury, on a standard INS
form, that it has performed the required verification
(c) Third, Employee Attestation – 274A(b)(2)
(i) Employee must attest, under penalty of perjury on the form that the
Employer attested on that the alien is
1. A citizen or national of the US
2. An LPR OR
3. An alien who is authorized to work
(d) Fourth, Retention of Document – 274A(b)(3)
(i) The employer must retain the form and make it available for
inspection by the INS or other related employment group until:
1. In the case of referral for a fee
a. Three years after the date of the recruiting or referral
2. In the case of hiring an individual the latter of
a. Three years after the date of hiring OR
b. One year after the date the individual’s employment is
terminated
(4) Enforcement
(a) The INS is charged with investigating and prosecuting violations
(i) Sometimes makes arrangement with Labor Department
(ii) Any person with knowledge of a potential violation of 274A may
file a complaint with the INS
(b) If violation, INS serves Notice of Intent to Fine
(i) Party has a right to request a hearing before an administrative law
judge (ALJ)
(ii) INS must prove its case with a preponderance of the evidence
1. IF the INS proves its case
a. Civil Fines imposed
i. Higher fines for substantive violations than paperwork
violations
b. Criminal Proceedings
i. Pattern or practice of violating the substantive
provisions – prison up to six months
ii. Ten or more unauthorized workers within 12 month
period – prison up to five years
(c) Judicial Review of the final administrative decision is avaialble by
petition for review in the court of appeals
b) Prohibitions on Discrimination – 274B
i) General Rule
(1) (a)(1) – It is an unfair immigration-related employment practice for a
person or other entity to discriminate against any individual with respect
to the Hiring, Recruitment, Referral for a Fee, or Discharge from
employment
(a) Because of the individual’s national origin OR
(b) Because of the individual’s citizenship status if the individual is a
member of a protected group
(i) A Protected Individual is 274B(a)(3):
1. A citizen or national of the United States OR
2. Noncitizens:
a. An LPR
b. Granted temporary residence – Legalization 210(a)
c. Refugee
d. Asylum
3. A protected individual is not:
a. An alien who fails to apply for naturalization within six
months of the date the alien first becomes eligible to apply
for naturalization AND
b. An alien who has applied on a timely basis but has not been
naturalized as a citizen within 2 years after the date of the
application UNLESS
i. The alien can establish that ht ealien is actively
pursuing naturalization
ii) Right to Prefer Equally Qualified Citizens – 274B(a)(4)
(1) Regardless of the rest of the provision, it is okay to prefer to hire, recruit,
or refer an individual who is a citizen or national of the US over another
individual who is an alien if the two individuals are equally qualified
(a) Does not apply to termination of employment
iii) Retaliation or intimidation prohibited – 274B(a)(5)
iv) Treatment of Certain Documentary Practices as Emplyment Practices –
274B(a)(6)
(1) A person’s or other entity’s request for more or different documents than
are required or refusing to honor documents tendered that on their face
reasonably appear to be genuine shall be treated as an unfair immigrationrelated employment practice IF
(a) Made for the purpose or with the intent of discriminating against an
individaul in violation of the anti-discrimination clause
v) Exceptions:
(1) Does not apply to
(a) A person that employers three or fewer employeees
(b) A person whose discrimination is covered under Title VII
(c) Discrimination that is required by law to do business with the
Government
vi) Penalties are drafted to match those of 274A
vii) Procedure
(1) People that Can Bring Suit – 274B(b)(1)
(a) Party who alleges discrimination
(b) Anotehr person adversely affected
(c) INS officer
(2) Can’t file with both IRCA and EEOC
(a) Exception is that if one of those parties has dismissed the case as
outside the scope of the applicable statute – 274B(b)(2)
(b) EEOC and OSC have entered into a memorandum of understanidng
that makes each agency an agent of the other for the sole purpose of
allowing charging parties to file charges to satisfy the statutory time
limit
(i) Memorandum also permits the agencies to refer charges to each
other when appropriate
(3) Filing and Investigating Within Time Period
(a) 274B charge must be filed within 180 days of the discriminatory act –
274B(d)(3)
(i) Same time limit as Title VII
(b) Special Counsel is supposed to deicde, withing 120 days after
receiving the charge, whether there is a reasonable cause to believe the
charge is true 247B(d)(1)
(4) Complaint Filed if Complaint is Supported
(a) If the OSC finds that there is a reasonable cause to believe the charge
is true, the OSC ay file a complaint with the Administrative Law Judge
– 247B(d)(1)
(i) ALJ has received special training in the subject of employment
discimination – 274B(e)(2)
(5) Hearing
(a) After the complaint is filed, the ALJ conducts a recorded evidentiary
hearing – 274B(e), (f)
(b) Conviction
(i) If the ALJ finds by a preponderance of the evidence that the
charged party has violated 274B, the ALJ orders that party to:
1. Cease the violation AND
2. Pay a civil fine within the applicable statutory range
3. Comply with any additional sanctions the ALJ deems
appropriate
(c) Review
(i) No Administrative review
(ii) Either side may obtain judicial review in the court of appeals –
274B(i)
(d) District Court Enforcement Action
(i) Unappealed decision of the ALJ is not directly enforceable
1. Either the charging party or the OSC may petition a federal
disctric court to order the charged party to comply, presumably
under penalty of contempt – 274B(j)(2)
(6) In any of the proceedings, the prevailing party, other than the government,
may recover attorney fees from the losing party if the latter’s argument
were without reasonable foundation in law and fact – 274B(h), 274B(j)(4)
(7) Disparate Impact
(a) Title VII allows disparate impact claims
(i) Employer may defend by producing evidence of a business
necessity for the challenged policy
(b) ALJ decisions have consisitently held that the alien must show
intentional discrimination to prevail
c) Undocumented Migrants and Public Benefits
i) Rights of Undocumented Migrants
(1) Access to the courts
(a) Tort, contract, divorce, recover lost wages, workers’ compensation
(2) Right to own real property
(3) Right to serve as trustee
(4) Right to acquire and convey personal property
(5) Consitutional Rights
(a) 4th, 5th, 6th, and 14th
(b) Courts have used the 14th EP to strike down state laws denying
benefits
(6) Labor Rights
(a) NLRA
(i) May vote in union elections
(b) FLSA
ii) Denial of Rights
(1) Federal and state governments permitted to discriminate against all aliens
for some purposes and to disntinguish between LPRs and undocumented
aliens
iii) Limited Ability to Exercise Rights
(1) Fear of exposing their undoucumented status
(2) Access to power in the form of money and information
iv) Public Benefits
(1) Federal
(a) 1996 Welfare Act made undocumented aliens ineligible for all publisn
benefits:
(i) Contracts, loans, professional or commercial licenses, retirement
benefits, welfare, health or disability benefits, food assistance,
housing, post-secondary education
(ii) Any other simial benefits provided by the federal government
(b) Exceptions
(i) Emergency disaster relief
(ii) Emergency medical care
(iii)Treatment for communicable diseases
(2) State and Local Benefits
(a) Ineligible unless the state passes post-Welfare Act legislation to the
contrary
(b) States are authorized to restrict or prohibit paymet of general cash
public assistance to noncitizens
(i) Restrictions may not be broader than any of those provided by the
federal programs
(c) Ineligible for preferential post-secondary tuition rates
v) Proposition 187
(1) Prohibited schools from allowing undocumented migrants
(a) Schools required to report violators to the INS
(2) Prohibited publicly funded health facilities from serving undocumented
migrants except in medical emergencies
(3) Welfare Act found to preempt 187 as occupying the field
VI) Citizenship
a) Why Should the Law Classify People As Citizens or Noncitizens and Apply
Different Obligations to Each Group?
i) Terminology
(1) Citizen
(a) Subsect of nationals that are almost 100% of the entire group
(2) National
(a) People who owe permanent allegiance to the United States
(i) American Samoa and Swains Island
(ii) Because this group is so small, it is usually referred to as the same
group
(iii)Outside of the US, these people are referred to as Nationals
(iv) Much more important term in international law than in domestic
law
ii) Welfare Reform – 1996
(1) Until 1996, LPRs were given most of the same rights as LPRs
(a) Welfare reform legislation changed the situation
(i) LPRs are generally ineligible for most of the major forms of
Federal and State assistance
1. States are authorized to impose on LPRs the same
disqualifications that the Federal law imposes
(b) Inelgibility from Federal Benefits
(i) Unqualified
1. Undocumented migrants and nonimmigrants
a. Ineligible for alsmot all public assistance
(ii) Qualified Noncitizens
1. People Affected
a. LPRs,
b. Refugees and Asylum
c. Parolees
2. Benefits Lost
a. Supplemental Security Income
b. Food Stamps
c. Anything the state authorizes
3. Exceptions
a. First five years after admission as a refugee or the grant of
asylum or withholding of removal
b. LPRss who have worked for 40 quarter-years without
having received any federal means-tested public benefits
c. People dealing with the Armed Forces
(c) Policy
(i) For Distinction between LPRs and Citizens
1. Assuring that immigrants become self-reliant
2. Still receive the emergency assistance necessary for survival
a. EMS, Fire, Contagious disease control
3. Not making the same commitment to us, so we should not
make the same contribution to them
(ii) Against Distinction between LPRs and Citizens
1. Extremely harsh consequences
a. Humanitarian concerns
2. LPRs pay taxes
a. They fund these programs the same that citizens do
(iii)Reasons Not to Become a Citizen
1. May lose citizenship in one’s home country
2. May have certain emotional ties to home country
a. Citizenship is often a means of identity for noncitizen
(d) Safeguards
(i) Deeming Provisions
1. Supposed to come in with an affidavit fo support from sponsor
2. Supposed to take in income fo the sponsor
3. The only situation that it matters when LPRs are excluded from
thse programs is when something happens to the sponsors
(ii) Inadmissible
1. If within the first five years, you somehow do qualify for
public assistance, you will be deported
a. Exception
i. Prove that the need is because of circumstances after
you come from the US
b) Schuck Articles
i) Citizenship
(1) Very easy to get
(2) Hard to lose, once you become a citizen
(3) Naturalization rates are fairly low
(a) Fewer people apply than one would expect
ii) Dangers of Devalued Citizenship
(1) Political Dangers
(a) Politicians have little incentive to respond to the claims of noncitizens
(b) Person chooses not to participate in the democracy
(i) Inf order for democracy to work, the governed people must have
the right to have a stay in the democracy
(c) If LPRs want to disadvantage themselves, they should have the right to
do so
(i) Why should we worry about them if they are not worried about it\
1. Depends on how much we think of these things as a collective
enterprise for the good of the community
(d) Nothing in Federal Law disqualifies LPRs from voting
(i) The states decide who can vote, even in federal elections
(ii) All fifty states have laws that inhibit voters
(iii)Some municipalities allow noncitizens to vote in certain local
elections
(2) Cultural Dangers
(a) Immigrants should become integrated members of the community
(b) What is the role of the individual?
(i) In a real community, people make sacrifices for one another
1. To what extent does one owe an obligation to the country
a. Refusing to naturalize is evidence that you are not willing
to contribute to society
b. Legal obligations as a citizen that LPRs don’t have
i. Jury Duty
ii. Draft – opportunity to opt out on the condition that you
forfeit all possibility for citizenship in the future
c) Aleinikoff Article
i) Question of whether the courts should give the same protection to noncitizens
ii) Problem with reading significance into an LPR’s decision not to pursue
naturalization
d) Necessity for the Concept of Citizenship
i) Emotional attachment makes necessity for distinction
(1) Devalued attachment if there is no ramification
e) Procedure
i) Acquiring Citizenship
(1) At the moment of birth
(a) Two Methods
(i) Jus Soli (rights in the soil)
1. Acquiring citizenship by being born in the territory
2. US has the most liberal standards
a. Exception is children of diplomats
(ii) Jus Sanguinis (rights in the blood)
1. Inheriting citizenship through parents
2. All persons born or naturalized in the US, and subject to the
jurisdiction thereof, are citizens of the United States
a. Subject to the jurisdiction thereof
(b) Family History
(i) Must figure out which law applies
1. The law that determines whether the applicant is a citizen is the
one that applied at the time of the applicant’s birth
a. If a parent is important, must look t the law that existed at
the parent’s birth to determine the parent’s citizenship
(c) If an applicant loses their citizenship because of a retention
requirement, they may regain the citizenship simply by taking an oath
of office.
(2) Naturalization – Later in life
(a) 1990 – Congress changed the Law
(i) Instead of court swearing the citizen in, the INS could do so
1. In order to preserve the solemnity of the ceremony, Congress
changed the law again, giving delegates the authority to
naturalize.
a. Court determines their own jurisdiction to naturalize
(b) Denial of Naturalization
(i) Trial de novo over whether the person was eligible
(c) Dual Citizenship
(i) Ultimately up to the country to accept oath of renunciation
(ii) Other country may or may not require renunciation oath
1. State Department assumes that you really don’t mean it
a. Must go to the US consular office and affirmatively
renounce citizenship
b. Has been applied retroactively
(iii)Two Points
1. Every country decides who its own citizens
2. Every country varies
ii) Loss Of Citizenship
(1) Denaturalization (Revocation of Naturalization)
(a) The only people that have to worry about this are people who acquire
citizenship through naturalization in the first place
(b) Under the law, you can be denaturalized at any time (no s of l)
(i) If naturalization was illegally procured
(ii) If naturalization was procured by misrepresentation of a material
fact
(c) The phrase illegally procured means that you in fact were not eligible
for naturalization at the time it was acquired
(i) No bad faith requirement
(d) Administrative Reopening of Case
(i) Attorney General may reopen the case if less than two years have
gone by
1. If more than two years, the process goes to Court
(ii) Administrative Denaturalization
1. Burden of proof on applicant to prove eligibility
(e) Nazi War Criminals who misrepresented their admissiblity
(2) Expatriation
(a) Applies to Any US citizen
(i) Voluntary performing of any specified acts – 349
1. Serving in foreign army
(b) Supreme Court has held that it would be unconstitutional to force
relinquishment of citizenship
(i) Must have the intent to renounce citizenship