Immigration Law Outline Bittner – Fall 2019 FEDERAL AGENCIES AND COURTS Department of Homeland Security – Umbrella for 3 agencies (1) Customs & Border Patrol Examines applicants for entry into U.S. at POEs - Primary inspection: brief - Secondary: in office, detailed questioning Also patrols land around POEs, apprehending EWIs If denied entry 1) Expedited Removal INA 235 (counts a deportation) 2) If permitted, can withdraw application for admission (doesn’t count as deportation) (2) Immigration & Customs Enforcement Interior Enforcement Represents U.S. in removal proceedings in Immigration Court (OPLA) Homeland Security Investigations (HSI)– combats federal law violations (arms trafficking, SEVIS violations) (Money laundering, Bulk Cash Smuggling - Cybercrime (Child Pornography) - Human Smuggling/Trafficking - Immigration violations, Document and Benefit Fraud - Narcotics and Weapons Trafficking - Transnational Gang Activity - Export Violations - International Art and Antiquity Theft - Enforcement & Removal Operations(ERO) – boots-on-ground police Coordinates with local law enforcement Alternatives to Deportation (ATD) – GPS monitoring, can be a ramping up or down Intensive Supervision (ISAP) – ICE check-ins, home visits (3) USCIS – benefits side Nearly all applications filed by mail to lock box to regional service center/national benefits center ASC – application support center for biometrics 9 USCIS asylum offices Physical paper A-file Department of Justice Executive Office of Immigration Review (EOIR) – Umbrella for Immigration Courts Reports directly to AG Role of Immigration Judges – Appointed by AG - Determine whether FN is inadmissible or removable - Determine application for relief (waiver) 1 - Requires discretion by AG granted in INA Bond Hearings Board of Immigration Appeals If determined removable right of appeal to BIA 8 CFR 1003.1(b) Review body of member of statutes Reviews some appeals from DHS (USCIS) decisions (ex. I-130) AG Referrals (can be referred before or after BIA has ruled) - As directed by AG (ex. Matter of A-B) - As decided by majority chair of BIA - When requested by DHS Secretary Administrative Appeals Office (AAO) Reviews other USCIS denials These denials inform what appeal rights exist Very few precedential decisions Appellate Review Post – BIA Petition to U.S. Circuit Court of Appeals Review of Constitutional claims or questions of law (not review of exercise of discretion) INA 242(a)(2)(D) Administrative Law Precedent applies Administrative Procedure Act (APA) for general review of USCIS denial by Fed. Dist. Court THE IMMIGRANT ADMISSION SYSTEM Department of State (DOS) Most FNs wishing to travel to U.S. require VISA (exception, visa waiver countries) DOS stationed abroad to decide on VISA applications INA 221, 222 - VISA = [permission to travel to U.S. and apply for admission; DOES NOT guarantee admission] CBP at POE has authority to deny admission - Sometimes denial reviewable by IJ this is the “removal hearing” one is entitled to when not subject to ER & denied admission INA 273 – liability for busses/airlines – “alien smuggling” (why airlines require VISAs) VISA denials generally non-reviewable in Fed. Court - 9/11: DOS DHS as authority over visa policy DHS can veto visa issuance but cannot require approval of visa denied by DOS Bureau of Consular Affairs National Visa Center (NVC) based in New Hampshire - Created by DOS for completion of VISA application filed sends case abroad for interview and decision Overseas Citizens Serviced – protection & services of Americans abroad Passport Services – issuance of passports Bureau of Population, Refugees, & Migration (PRM) 2 Oversees refugee programs, principle point of contact with UNHCR Bureau of Educational & Cultural Affairs (ECA) Programs fostering international mutuality (Fulbright, exchange, au pairs, J visas) U.S. CITIZENSHIP BY BIRTH Jus soli – right of land/ground (if born in U.S. Citizen) 14th Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” U.S. v. Wong Kim Ark: returning USC = USC despite Chinese Exclusion Act INA 301(a): Person born in U.S. and subject to jurisdiction thereof Jus sanguinis – right by blood; applies when evaluating derivative citizenship to someone born abroad to USC parent(s). Statutes have been amended multiple times amendments do not apply retroactively Must look at the law in effect at the time of the child’s birth See USCIS “Nationality Charts” Current jus sanguinis laws: Child Born in Wedlock Outside of U.S.: (1) Both parents are USCs [INA 301(c)]: The child acquires USC at birth, so long as one of the parents had residence in the U.S. (or one of its outlying possessions) prior to the child’s birth. o “Residence” is defined as a person’s place of general abode, meaning a person’s principal, actual dwelling place in face, without regard to intent. INA 101(a)(33). (2) One USC parent, one alien parent [INA 301(g)]: The child acquires USC at birth only if the USC parent resided in the U.S. for 5 years prior to the child’s birth, 2 years of which were after the age of 14. o Military service abroad counts toward physical presence requirement (3) One USC parent, one U.S. National parent [INA 301(d)]: The child acquires USC at birth if the U.S. citizen parent was physically present in U.S. (or one of its outlying possessions) for a continuous period of at least one year prior to the child’s birth. o U.S. National = person who owes permanent allegiance to the U.S. (INA 101(a)(22)), AND either: Born in “an outlying possession of the U.S.,” INA 308, which means in the American Samoa and Swains Islands, INA 101(a)(29); or Born of a parent or parents who are non-citizen nationals who meet certain physical presence or residence requirements (see chart). Child Born Out of Wedlock Outside of U.S.: (1) USC Father – The child acquires USC only if: (a) USC Father resided in the U.S. for 5 years prior to child’s birth, 2 years of which were after the age of 14; and i. A blood relationship between child and father is established by clear and convincing evidence; 3 Father was a USC at the time of child’s birth; Father (unless deceased) has agreed in writing to provide financial support for the child until the child reaches 18; and iv. One of the following criteria is met before the child reaches 18: ¤ Child is legitimated under the law of his/her residence or domicile; ¤ Father acknowledges in writing under oath the paternity of child; or ¤ Paternity of child is established by adjudication of competent court. (2) USC Mother – The child acquires USC only if: (a) USC mother was a USC at the time of the child’s birth; and (b) USC mother resided in the U.S. for 5 years prior to child’s birth, 2 years of which were after the age of 14. [Note: A child born to USC mother after 12/23/1952 but before 6/12/2017 (the date Sessions v. Morales-Santana was decided) acquires USC at birth if mother was (a) USC at time of child’s birth; and (b) physically present in U.S. for 1 continuous year prior to child’s birth.] ii. iii. Dual Nationality Overview - Due to overlap of jus soli and jus sanguinis, a child may acquire the citizenship of the state where it is born, plus the distinct nationality or nationalities of its parents - When attaining citizenship through naturalization, the original state of citizenship may deem the naturalization to a second nationality to be expatriating - State granting naturalization may require renunciation of prior citizenship or documentary proof of loss of the original citizenship - Some treaties clarify and explicitly recognize dual citizenship Dual nationality in the US - Arises when: Child born in US to immigrant parents Birth outside of the US to one or more USC parents Naturalization with a renunciation requirement, but renunciation not recognized in the country of origin (Naturalization to USC requires only an oath of renunciation of foreign allegiance.) Naturalization, loss of original citizenship, but resumption of original citizenship permitted. This is how Australia does it. Policies of Various Countries - Largest “sending” countries to US (Mexico, the Philippines, the DR, Canada, and India) recognize USborn children to their citizens as citizens of their countries - China does not count children born in the US to Chinese parents to be citizens of China - Dual citizenship in general is on the rise worldwide - Many countries altered their laws to permit retention of original nationality despite naturalization to a second country of citizenship: Canada, Argentina, Colombia, Costa Rica, the DR, El Salvador, France, Israel, Ireland, Italy, Panama, Switzerland, and the UK - Even countries that deem naturalization to US to constitute expatriation might not know about it, effectively permitting dual citizenship unknowingly - Little evidence exists to suggest dual citizenship is harmful to national interest of the US 4 TRAVEL BAN Travel Ban 1.0 Executive Order Not in effect anymore Banned entry for all foreign nationals from a number of countries for 90 days Banned entry for all refugees for 120 days Was enjoined pretty quickly Travel Ban 2.0 Executive Order Tried to contain some justification for why entry from the 6 countries would be banned for 90 days Suspended all refugee entries for 120 days Lawsuits were filed based on Establishment Clause of the 1st Amendment, alleging that this ban was motivated by religious animus (based upon statements by the President) Injunctions were issued because it was held that the purpose of the ban was motivated by religious animus 9th Circuit upheld the injunctions Travel Ban 3.0 Not issued by an Executive Order; instead it was issued by a Presidential Proclamation - Proclamations to suspend the entry of aliens or class(es) of aliens is warranted by § 212(f) of the INA - Proclamation also relied upon INA § 215(a) Why was this Travel Ban not issued based upon religious animus - It was based on review. The second travel ban directed DHS to do some review. Between that time and the third Travel Ban, that apparently happened. - Justifications – the Countries in question: Did not investigate their people and have enough information sharing Had a significant terrorism presence - Considerations Whether the countries had electronic passports with embedded data in them to confirm the person’s identity. Whether the Country reported lost or stolen passports Whether the Country would give the U.S. more information than was included in the passports Whether the Country was a potential terrorist safe haven Countries in Question - Chad, Iran, Libya, North Korea, Venezuela, Somalia (had those problems plus a terrorist presence), Iraq was treated specially (Nationals should be considered with additional scrutiny) - Immigrants v. Nonimmigrants Restrictions Immigrants: people coming to the U.S. permanently to live Nonimmigrants: people coming to the U.S. temporarily (e.g., student visas) Travel Ban provided a tailormade Travel Ban for each country - Chad, Libya, and Yemen are treated the same No immigrants No B-1/B-2 Non-immigrants (i.e., tourist visas) - Iran No immigrants 5 No Non-immigrants except for students - North Korea All immigrants and non-immigrants - Syria All immigrants and non-immigrants - Venezuela All employees of certain government agencies and their family members - Somalia Must apply for a waiver Approximately 5.1 percent of subject applicants having been issued a visa pursuant to the waiver process as of March 31, 2019 - Waivers are decided by the consulate official abroad Three Categories of People that this Ban Applies to: - People outside of the U.S. the day of the proclamation who didn’t already have their visa - __ Categories of People that this Ban Does Not Apply to: - Legal permanent residents - Foreign nationals who are paroled in (paroled in basically means that the DHS officials let you in) - Foreign nationals who already have a visa substitute - Dual nationals - Asylees, refugees who have already been admitted Allows for Waivers on a Case-By-Case Basis - When should waivers be permitted? If it would cause undue hardship to the foreign national, if the foreign national does not pose a safety threat, and entry would be in the national interest of the U.S. If the foreign national has sufficient ties to the U.S., has sufficient business in the U.S., has a close family member, denial would cause undue hardship, is an infant or adopted child or needs medical care, travel related to the ___ immunities act, U.S. sponsored exchange visitors, …….. Trump v. Hawaii Affirmed the District Court that the Ban violated INA § 212(f) Supreme Court - Holdings: (1) This Court assumes without deciding that plaintiff’s statutory claims are reviewable, notwithstanding consular nonreviewability or any other statutory nonreviewability issue. (2) The President has lawfully exercised the broad discretion granted to him under § 1182(f) [INA § 212(f)?] to suspend the entry of aliens into the United States. (3) Plaintiffs have not demonstrated a likelihood of success on the merits of their claim that the Proclamation violates the Establishment Clause 6 DACA President Obama’s creation of June 2012 to prevent deportation of young people who came to the U.S. prior to age of 16, present since 6/15/2007, and attended school Basic Criteria - Must be at least 15 y/o to apply for DACA If under 15 y/o, can apply only if in removal proceedings - Have to show you were in U.S. continuously for 5 yrs before the date DACA was enacted - Childhood arrivals: must have arrived in the U.S. when 15 and under - Have to either be in school, graduated from school, military service (not allowed to be in the military under U.S. laws, but might have been able to with fake paperwork) November 2014, Obama tried to expand DACA (DACA+) and add DAPA - DAPA would have extended same protection to parents of USC or LPR children - DAPA and DACA+ did not get to go into effect because of a lawsuit Texas v. United States o Violated APA (no notice and comment) o A substantive argument that it violated the APA (basically that there was no law allowing this o Take Care Clause: arguing that the President was not making sure that the law was executed (this argument not even addressed by Circuit Court) o Burdened the State: if Texas had to issue additional drivers licenses to these people, it would cause economic harm to the state DACA Litigation Update (see notes) NATIONAL SECURITY & SCREENING SYSTEMS US-VISIT (Visitor and Immigrant Status Indicator Technology) Began in 2003 and overseen by DHS’ Office of Biometric Identity Management (OBIM). Original objective was “to create an integrated, automated entry and exit system . . . that records the arrival and departure of aliens; verifies the identities of aliens; and authenticates travel documents presented by such aliens through the comparison of biometric identifiers.” Requirements: - Fully deployed for entry checks, but not fully deployed for exits and no checking of exits at southern land border - Through airport kiosk, checks fingerprints and photographs of non-USC entrants to the U.S. with the info on file for the visa - All non-USCs entering through air and sea borders must give biometrics - All non-USCs entering land borders must give biometrics (except Canadians and Mexicans) 2016 ICE report analyzing 2015 entries found that 1.17% of 45 million visa holders overstayed. SEVIS (Student and Exchange Visitor Information System) Monitors student and exchange visa holders, F, J, and M Internet-based, overseen by ICE Imposes extensive reporting requirements on schools and requires schools to use SEVIS $200 student fee; $180 exchange visitor fee 7 Response to terrorist attacks, 1993 World Trade Center bomber and 9/11 attackers had entered on student visas and not attended school USCIS Screening Uses Application Support Centers (ASCs) to take biometrics of applicants for benefits with USCIS If benefit application decision is delayed because background checks haven’t been completed, applicant can sue in federal court, but not likely to succeed (Agency is permitted the time to perform background checks in the name of national security). Regular Registration: All non-USCs required to inform USCIS of change in address [INA 265] - Failure to do so is a ground of removal [INA 237(a)(3)(A)], but rarely enforced NSEERS (National Security Entry-Exit Registration System) [Formally cancelled in 2016] Permitted DHS to require specified classes of non-USCs to submit to special registration and fingerprinting. EXPEDITED REMOVAL – INA § 235(B)(2) a. Fast-track deportation by an immigration officer (IO), not a judge - Constitutes a large portion of total removals from the U.S. and is increasing b. Applies to arriving aliens who: - Have no entry documents; - Have fraudulent or invalid documents; or - Have committed immigration fraud in the past c. Detention mandatory during first part of screening procedure and discretionary later d. IO’s decision that alien is inadmissible under INA 212(a)(6)(C) – Fraud/Misrepresentation; or INA 212(a)(7) – lack of valid passport, visa, or other required documents, IS NOT SUBJECT TO FURTHER REVIEW unless alien indicates intention to apply for asylum or fear of return to native country. e. Same consequences as removal order by IJ – barred from reentry for 5 years, waivable [INA 212(a)(9)(A)(i). f. IO has discretion to permit foreign national to withdraw application for admission and return voluntarily (Voluntary Return (VD)), rather than be issued an ER order g. Expansion of ER beyond POEs - INA 235(b)(1)(A)(iii), 8 C.F.R. 325.2(b)(1) - Authorizes DHS the “sole and unreviewable discretion” to apply ER to noncitizens who have not been admitted or paroled into the U.S., if they do not “affirmatively show, to the satisfaction of an immigration officer,” that they have been continuously present in the U.S. for the preceding 2 years. Pursuant to a new regulation in July 2019 Used to be that ER was used within100 miles of the border if the noncitizen could not prove he/she was physically present for the past 14 days. h. Judicial Review of ER 8 - - Very limited; Only habeas corpus if Identity challenge Claim to USC, LPR, or refugee/asylee, only after exhausting administrative remedies. INA 235(b)(1)(C) Challenge to the validity of the system can be filed in D.C.C. within 60 days of the implementation of the challenged regulation, procedure, or policy. i. ER and Asylum Seekers (see next section for more information) - ER order not issued if non-USC indicates intention to apply for asylum or a fear of persecution. INA 235(b)(1)(A)(i) - If fear is claimed, IO must complete interview and transfer non-USC to detention center for an interview with the USCIS asylum office - Prior to issuing an ER, IO is required to read to the non-USC in a language he can understand: advisal on p. 506. - Officer must record sworn statement, written by the officer in English, summarizing the person’s story, must be signed by the interviewee - Current lawsuit against CBP by AIC and Al Otro Lado concerning ER of non-USCs claiming fear. Asylum Seekers Credible Fear Interview (CFI) - Entrants requesting asylum or claiming fear have a credible fear interview, by which the AO determines whether there is a credible fear of persecution defined by INA 235(b)(1)(B)(v), to mean whether there is: “a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 208.” - Must take place within 48 hours of arrival in detention center - Asylum seeker entitled to consult with anyone after admission and before CFI as long as not at government expense and does not cause unreasonable delay - If AO finds credible fear full merits hearing before an IJ in Immigration Court Discretion to be released in the meantime - If no finding of credible fear ER Right to review negative finding by an IJ; must be completed within 7 days. o If IJ affirms removed o If IJ reverses referred for full hearing and can be released Detention - Within 7 days of positive CFI, DHS must use standardized worksheet to assess eligibility for parole Eligible if: Identity is established No flight risk No danger to the community No other risk factors - Decision not to parole must be explained in writing Distinguishing Credible Fear & Reasonable Fear - If foreign national has previously been removed from U.S., CFI standard does not apply 9 - Instead, have the right to a reasonable fear interview Basically the same process but the standard is reasonable fear rather than credible fear, which has a higher burden Migrant Protection Protocol (MPP) (aka. the “Remain in Mexico” Program) - Returns asylum seekers who have been inspected at a port of entry and put into removal proceedings to Mexico to await their proceedings. - Lawsuit: Innovation Law Lab v. Nielsen Although the district court issued a preliminary injunction in April 2019, the program continues to be operational because of a stay of the injunction issued by the 9th Circuit Court of Appeals in May 2019. Unaccompanied Alien Children a. Demographics 2009: majority of UACs came from Mexico (~80%) Now: majority of UACs come from the Northern Triangle of Central America (Honduras, El Salvador, etc.) b. What is pushing these children out of their countries to the United States? Violence, dangerous conditions, gang activity, economic conditions, poverty The option to apply for asylum and for juvenile visas in the U.S. c. 2014 Surge of UACs: during the 2014 FY the number of UACs was larger than ever before Most of these UACs were 14 y/o and up and male. d. UACs dealt with by Office of Refugee Resettlement (ORR) within the Department of Health and Human Services e. ICE provides transportation; they are supposed to move them out from where ever they may be to the custody of ORR within 72 hours f. Flores Agreement Requires government to not detain minors for more than 20 days (but this occurs all the time) Flores Agreement was supposed to be made regulatory, but it never was The Administration used Flores as a justification for separating families since Flores requires that children, but not their parents, be released within 20 days, it was necessary to separate the kids. New regulations to end Flores would let government detain children indefinitely g. Trafficking of Victims Protections Reauthorization Act of 2008 (TVPRA) Contiguous Country Children (children from Canada & Mexico): - Voluntary return rather than deporation Non-Contiguous Country Children: - Cannot be subject to ER; rather, they are put in formal removal proceedings in immigration court h. If a UAC wants to apply for asylum: 10 Asylum application is submitted to USCIS, who determines their asylum eligibility initially (unlike for adults, where USCIS has no jurisdiction). - Child goes to asylum office and it is a non-adversarial atmosphere - If application denied they get a second bite at the apple in immigration court - Nobody helps these children unless they have an attorney Much greater percentage of children are removed when they do not have an attorney. NON-IMMIGRANT VISAS (NIV) INA 214(b) – presumption that foreign national seeking admission is an immigrant until they satisfy the consular officer they are entitled to status under INA 101(a)(15). Application Process for NIV Application submitted to State Department, Consular Section (Form DS-160) - Visa issued by consulate, a stamp in the passport - Foreign national presents visa at a POE - USCBP determines admissibility and establishes the authorized period of admission - Status can be changed or extended by USCIS Exemptions Visa Waiver (INA 217) - Visitor for Business or Pleasure - Available to citizens of 38 designated countries Historically low denial rates; Machine readable passport required - Admitted for 90 days (this is firm: no extension, no change of status) Canadians & Mexicans (see below information) Non-Immigrant Categories set out in INA 101(a)(15) A: diplomats D: crewman G: designated/accredited representatives J: exchange visitors M: vocational student P: artist/entertainer S: witnesses B: tourist/business E: treaty of trade or commerce E-1: Treaty Trader E-2: Treaty Investor H: temporary workers H-1B: specialty occupations and fashion models H-1C: nurses H-2A: temporary, seasonal agricultural worker H-2B: temporary, seasonal nonagricultural worker H-3: temporary trainee K-1: fiancé K-2: spouse of USC (created to be faster than immigrant visa issuance; it isn’t) K-3: minor child of a K-1 or K-2 N: refers back to G, foreign representatives Q: international cultural exchange T: victims of trafficking C: transit F: student I: media L: intra-company transferees L-1A: Managers & Executives L-1B: Specialized Knowledge O: extraordinary ability in sciences, arts, education, business, or athletics R: religious workers U: victims of crime, cooperative with law enforcement 11 Special Canadian/Mexican Options TN Visa: Allows citizens of Canada and Mexico, as NAFTA professionals, to work in the U.S. in prearranged business activities for U.S. or foreign employers Canadians: can enter without visa for up to 6 months (VWP just 90 day maximum stay) Mexicans: border crossing card = can stay up to 30 days and must physically remain 25-75 miles from border, depending upon port of entry Canadians & Mexicans Canadians and Bermudians are visa exempt, 8 CFR 212.1(a) - Presented at border with application, adjudicated by USCBP - Exceptions A, E, K and S visas - NAFTA admissions governed by 8 CFR 214.6 - Canadians apply at the border - Application to USCIS also permitted - Canadians admitted for up to 3 years Mexicans require visa application at Consulate - Visas valid for 1 year, admission up to 3 years - Mexicans subject to visa requirements in all other categories Change of nonimmigrant status INA §248 FN maintaining NIV status can change status by application to USCIS. Regulations post 9/11impose additional restrictions on visitors changing status to F-1, foreign student Careful reading of §214(b) applies to application for visa and applications for admission. An application to change status is neither; and therefore, an examination of nonimmigrant intent would be improper on an application to change status. Dual Intent Dual Intent Doctrine: permits nonimmigrants to express a desire to live in U.S. permanently but still maintain a temporary intent for the current visit Section 214(b) provides a specific carve out for foreign nationals applying for H-1B and L visas State Department cable recognizes that determining the intent of an 18 year old student is probably not possible. Blurring line between non-immigrant and immigrant status FY 2014, more non-citizens became LPRs through adjustment of status than admission on an immigrant visa (535k v. 480k) More dramatic in employment based category - 134k adjustments v. 22k new arrivals IMMACT90 recognized dual intent for H-1B and L visa applicants. There is a push to expand this to other categories such as O and P visas. J-1 Exchange Visitor Overview - Cultural exchange visa for students, professors, teachers, trainees, specialists, foreign medical graduates, international visitors, au pairs, student travel/work programs - Program must be designated by DOS’s Bureau of Educational & Cultural Affairs (BECA) 12 Popular programs: Au Pair, summer camp counselors, Graduate Medical Training for Foreign Medical Graduates (ECFMG), university scholars/students, Fullbright Scholarship Section 212(e) - Two year home residence requirement Skills list, State Dept. list of skills needed in home country Government funding, US government or home country Graduate medical training - Waiver of the two year requirement No objection letter from the home country Statement from interested government agency Extreme hardship to US citizen or LPR spouse or child Persecution based upon race, religion, or political opinion Physicians who serve 3 years in medically underserved area F-1 Student Visas Duration of stay = however long they remain in status as a student Requirements: - Admission at school approved by AG - Sufficient funds or arrangements to cover 12 months of expenses - Academically prepared for full course load - Sufficient knowledge of English or arrangements with school - Unlawful presence memo, Injunction: Guildford College v. Neilson Barred from off-campus employment unless extreme financial hardship arises after arrival in U.S.; can work on-campus if not displacing U.S. workers - Can work in practical training relating to degree program - If violate, subject to removal and other penalties Student Application Process - Apply for acceptance to approved schools. Schools must be authorized by DHS following submission of an application (I-17) - Student and Exchange Visitor Information System (SEVIS) - Upon approval, application for F-1 visa at consulate - Nonimmigrant Intent – What is that 18 year old thinking? - Admission and maintenance of status Must maintain full course load Student Employment - On campus, part time employment permitted - Off campus employment must be authorized Extreme Financial hardship arising after admission Curricular Practical Training o Authorized by Designated Student officer on Form I-20 o Required part of curricular program Optional Practical Training o 12 months following graduation o STEM extension for additional 24 months Employer must be E-verify Designated STEM fields Business Visitor (B-1) 13 Permitted to engage in business but not work Bricklayers v. Meese held foreign workers could not perform labor in the U.S. pursuant to a contract with their foreign employer - Created an uproar from foreign companies and governments - Regulation now in place that permits foreign employee to “install, service, or repair commercial or industrial equipment or machinery purchased from a company outside the United States or to train U.S. workers to perform such services.” 9 FAM 402.2-5(E)(1) Foreign source for all compensation K-1 Visa (fiancé) INA 214(d) Requirements: - Must have (physically) met within 2 years of filing Waivable in limited conditions (extreme Islam) - Bona-fide intention to marry - Willing & able to get married within 90 days of foreign national’s arrival INA 245(d) prohibits K Visa holder from adjusting status in U.S. based on marriage to someone else - If married and spouse abusive may be eligible for VAWA L-1 Intra-Company Transferee Overview - L-1A: Managers and Executives Valid for 7 years - L-1B: Specialized Knowledge Valid for 5 years - Requirements: 1 year employment abroad within last 3 years in qualifying position - Approved Blanket L petition streamlines process Blanket L Application - No petition to USCIS required - Application submitted directly to U.S. Consulate Form I-129S Support letter o Explanation of position, experience, expertise and terms of employment Supporting documents o Diplomas transcripts o Passport Eligibility for Blanket L - Managers and Executives - Professionals with specialized knowledge Requires college degree Specialized knowledge - No prevailing wage requirement Wage must be reasonable for the position (may otherwise raise question of credibility - Non-degreed individuals with specialized knowledge not eligible for Blanket L, may still be eligible for individual petitions Blanket L Procedures - Consulate issues visa valid for 5 years Visa requires presentation of I-129S for admission to United States - Consulate endorses I-129S for validity period 14 FN presents visa and I-129S at the border Admission corresponds to validity of I-129S, not the visa. I-94 issues and governs period of authorized stay Individual Petition for L-1B - Submitted to USCIS, must be approved before application for visa at consulate - I-129 with supporting forms - Support letter - Evidence of specialized knowledge Proprietary knowledge helpful, not required Advanced knowledge of the subject matter Specialized knowledge is required of position H-1B, Specialty Occupation Specialty Occupation: Requires specific degree, or equivalent, that imparts a specific body of knowledge used and applied in the daily duties of the occupation Areas of current contention - DOL publications often use language such most employers require a degree in computer science - Degree must include apply to the specific job duties - Level one wages indicate that the duties are not complex and do not require a degree Labor condition application - LCA, ETA-9035, filed with Department of Labor - Employer agrees to 4 conditions, certified by DOL Employer will pay the higher of the prevailing wage or actual wage o Prevailing wage is a term of art. Must be determined in accordance with DOL regulations Working conditions will not adversely impact working conditions of US workers similarly employed No strike, lockout or work stoppage Notice to bargaining unit, if not bargaining unit, notice is provided at the site of employment H-1B Cap - H-1B Cap is 65,000 each fiscal year - Exemption for advanced degree graduates from U.S institutions limited to 20,000 additional visas - Lottery held April 1 each year Fiscal year begins October 1 - Cap Exempt if previously counted - Universities and affiliated non-profits are cap exempt - FY2020 190,098 petitions in April 2019 - Down from 236,000 and 233,000 in the 2015 & 2016 H-1B Limited to six years - Six year maximum period - AC21 Extensions If PERM application is filed one year before expiration of six year period, one year extension is permitted If I-140 is approved, entitled to 3 year extension until priority date becomes current - Recapture time Premise is that six years means 2190 days Days outside U.S. can be recaptured and tacked on to the end - Commuters and intermit H-1B employees may never reach six years 15 IMMIGRANT VISA CATEGORIES I. Family-Based Immigration & VAWA Petitioner (USC or LPR) files Form I-130 (Petition for Alien Relative) with USCIS - Establishes petitioner’s USC/LPR status and the existence of a valid family relationship (within the immediate relative or family preference categories). - If the case is in a family preference category, a priority date is automatically established Priority date = date USCIS accepts I-130 petition After reviewing petition, USCIS will either approve or reject - Immediate relative petitions usually approved within roughly 5-9 month time; shorter time because unlimited number available - Family preference petitions usually take longer to approve because limited number available (visa bulletin). Once approved, USCIS assigns foreign national a priority date. Because of backlogs, foreign national must wait for an available visa number; usually several years or longer. Once USCIS approves the I-130 petition (and for family preference individuals, a visa number is available), the foreign family member may apply for a green card. Two basic paths to apply for the green card: - Consular processing: procedure of applying for an immigrant visa from outside the U.S. through a U.S. Embassy or consulate in a foreign country. - Adjustment of status: process that a non-immigrant visitor (e.g., student, tourist, etc.) uses to change status to a permanent resident from inside the U.S. A. Immediate Relatives Unlimited number available – not subject to numerical limitations or quotas There are no derivative beneficiaries of immediate relative petitions Immediate relatives include: (1) Spouses of USCs (2) Parents of USCs (USC must be over 21 y/o) (3) Unmarried children (under 21) of USCs Stepchildren: Includes stepchildren if petitioner married stepchild’s biological parent before stepchild turned 18 y/o. Adopted Children: Includes adopted children if child was adopted before he/she turned 16 and adoptive parent had legal custody of and jointly resided with the child for at least 2 years while the child was under 21 y/o (2 years is in the aggregate) o Also includes child adopted after he/she turned 16, but before he/she turned 18, if the child is the birth sibling of another child who was adopted by the same parent(s) before the other child turned 16 y/o and who either immigrated: through the family-based petition process; or as an orphan based on an adoption by the same parent B. Family Preference Categories 226,000 cap for these categories: (1) F1: Unmarried sons & daughters (over 21 y/o) of USC – [23,400] (2) F2: Spouses & Children of LPRs [114,200] 16 F2A: spouses & unmarried minor children (under 21 y/o) – [77%] F2B: adult children (over 21 y/o) – [23%] (3) F3: Married sons & daughters (any age) of USC – [23,400] (4) F4: Siblings of USC (USC must be over 21 y/o) – [65,000] Derivative Beneficiaries - No derivative beneficiaries for Immediate Family petitions! Must file new and separate petitions for each immediate relative, including minor children - Only exist for Family Preference petitions; the following may be included as derivative beneficiaries on Family Preference petitions: Minor Children of F1 and F2B Spouses & Minor Children of F3 and F4 - Child Status Protection Act (CSPA) addressed the “age out” problem in part “Age out” Problem: for minor children, the wait for a visa is often so long that they “age out” by reaching the age of 21 before a visa becomes available and, therefore, no longer qualify. Calculating Age under CSPA: o (Age when visa became available) – (amount of time petition was pending) = (age for purposes of qualifying for the derivative beneficiary visa) o Example: Facts: Pablo was born on 01/01/1990. On 04/01/2005, a petition was filed for his mother. That makes Pablo a derivative beneficiary of his mother. USCIS approved Pablo’s mother’s petition 3 years later on 03/31/2008, when Pablo was 18 years and 3 months old. Visas were not available at that time so Pablo and his mother had to wait until they were available before applying for permanent residence. That happened on 10/01/2013, when Pablo was 23 years and 9 months old. Calculating CSPA Age: Result: Even though Pablo’s biological age is over 21 years, he remains a minor child under the immigration laws. He can take advantage of this benefit only if he seeks to acquire permanent residence within one year of visa availability (i.e., before 10/1/2014). Marriage Marriage must be: - A legal marriage according to the law of its place of celebration Consummation not strictly required, except for proxy marriages - A valid marriage at the place of intended residence (i.e., no child brides or polygamous marriages) - A bona fide marriage – not entered into for the purpose of evading immigration law Opposite of bona fide marriage = sham marriage Valid Marriage Test: At the time of the marriage, did the couple intend to establish a joint life together? - The parties’ intention at the time of entering the marriage is what is controlling - Dabaghian v. Civiletti: quick divorce not sufficient to disprove intent at time of marriage 17 Practically this means: (1) Does the couple live together? (or have good reason for living apart) (2) Do they hold themselves out publicly as a married couple? Invalid Marriage Marriage Fraud - Marriage Fraud Provisions: INA 204(c) Penalty o Lifelong ban on subsequent immigrant visa petitions o Only ban for beneficiary spouse, not petitioner o Petitioner could be prosecuted criminally: visa fraud, false statement, conspiracy, marriage fraud INA 275(c) up to 5 years prison and $250,000 fine INA 204(a)(2) o If you get LPR based on marriage then divorce your petitioning spouse, then petition for another spouse, you bear the burden of proving by clear and convincing evidence the validity of the earlier marriage through which you adjusted o This is true for a 5 year period after adjustment o Doesn’t apply if you become naturalized USC before you petition for the later spouse o This is not an uncommon fact pattern Conditional Residency & Removal of Conditions - Conditional Residency: If applicant is granted permanent residency based on a marriage that is less than 2 years old at the time of the grant, the residency is conditional (this includes children too). INA 216. This means in the 90 day period prior to the expiration of the conditional residency, must file a petition to remove conditions EXCEPTION: Cuban Adjustment Act - Removal of Conditions: I-751 Application to Remove Conditions Interview may/may not be required (USCIS’s discretion) If application denied by USCIS, can renew before the IJ in removal proceedings Two Kinds: (a) Joint petition, signed by both spouses; or (b) Waiver of joint petition – 3 waivers of I-751 joint filing requirement: (1) Marriage entered into in good faith, but terminated by divorce. ¤ If divorced before the 90 day period prior to expiration of residency, can file early. Can also file late. (2) Entered into marriage in good faith, but battered or subjected to extreme cruelty by spouse. ¤ Child can file under this provision if battered by either parent. (3) Extreme hardship if conditional residency terminated and subsequent removal. ¤ No specific qualifying relative requirement (unusual) Marriage After Initiation of Removal Proceedings – INA 204(g) & 245(e) - Higher burden of proof – Must prove validity of the marriage by clear and convincing evidence, not lower preponderance of the evidence standard - Marriage based petitions after the initiation of removal proceedings are always subject to an interview of marriage. However, not a difficult requirement if it’s a bona fide marriage 18 II. Self-Petitioners – VAWA & Widow(er)s VAWA Filed on form I-360 - Woman (and men) can self-petition as spouse of USC or LPR if battered or Subjected to extreme cruelty or their good faith marriage turned out to be bigamous Process by which abused spouses of USC’s and LPR’s can self-petition – Must show: (a) File by the filing deadline; and Filing deadline: during the marriage or within 2 years of legal termination of marriage (filed with Vermont Service Center) (b) Show the following: (1) Entered into marriage in good faith; (2) Lived with the USC/LPR spouse; (3) Were abused or subjected to extreme cruelty (or good faith marriage turned out to be bigamous; and o Burden on applicant to show they qualify for the relief sought Clear domestic violence charges easy to prove Emotional and psychological abuse harder to prove, but possible with corroborating evidence: affidavits, recordings, counseling records (4) Applicant demonstrates good moral character Additional waivers of inadmissibility grounds available, if related to the abuse - If spouse of LPR granted deferred action (i.e. no deportation and a work permit) while they wait for visa to become available - If spouse in removal proceedings special cancellation of removal application for abused spouses of LPR’s/USC’s in removal proceedings - Unlawful presence and working without authorization inadmissibility waived - Reentry after removal waived if related to the abuse Widow(er) Petitions (not available for widows of LPRs) If no Form I-130 pending at the time of USC spouse’s death, widow(er) must file Form I-360 within 2 years of the USC spouse’s death If USC spouse filed Form I-130, then died, spouse remains a spouse as defined by the Act - Widow(er) doesn’t need to file anything; Form I-130 automatically converted to Form I-360, and children (unmarried and under 21 y/o) may be included regardless of whether they were filed on the original I-130 petition. No length of marriage requirement INA 204(l) allows for retention of adjustment of status petition upon death of some petitioners, if certain conditions met (??) T & U Visas: Victims of Certain Crimes T Visas: victims of a severe form of human trafficking who show removal would result in extreme hardship - The term “severe forms of trafficking in persons” means: 19 (1) sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or (2) the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery. TVPRA, 22 USC 7102(9) U Visas: victims of qualifying crimes who cooperate with law enforcement - See I-918B for list of qualifying crimes, or substantially similar - No statute of limitations; however, law enforcement must sign the I-918B U visa certification in order to apply - Can include as derivatives lawful spouse and unmarried children under 21, as of the date application is filed If overseas, derivatives receive visa to enter U.S. - Valid for 4 years, EAD, can apply for legal permanent residency after 3 years - U visas: huge backlog since 2014 - Generally defers removal; ICE can request expedited determination of prima facie eligibility or adjudication - U visa grant counts as lawful admission if previously EWI III. Employment-Based Immigration Employment Visa Preference Categories 1. EB-1: “Priority Workers” 40,040 cap (28.6%) + unused 4th and 5th preference Subcategories: - EB-1A: Persons with extraordinary ability in sciences, arts, education, business, athletics *Can self-petition - EB-1B: Outstanding professors and researchers - EB-1C: Multinational executives or managers LCA NOT required 2. EB-2: Professionals Holding Advanced Degrees and Persons of Exceptional Ability 40,040 cap (28.6% + unused 1st preference National Interest Waivers: LCA and employer petitioner requirements can be waived if in the national interest. INA 203(b)(2)(B) and CFR 204.5(k)(4)(ii). - National interest standard not defined by statute or regulation - Defined in Matter of Dhanasar – 3 Prong Test: (1) The foreign national’s proposed endeavor has both substantial merit and national importance; (2) The foreign national is well positioned to advance the proposed endeavor; and (3) On balance, it would be beneficial to the U.S. to waive the requirements of a job offer and thus of a labor certification - Important regional impact insufficient because not national in scope - Scientific research that is published and presented generally meets national scope requirement 20 - AAO is satisfied when foreign national has “demonstrated a past history of achievement with some degree of influence on the field as a whole.” This generally means extensive citation of the petitioner’s published work AAO has held that just 4 published articles that have been cited over 400x satisfies this criterion Extensive publication not cited doesn’t cut it 3. EB-3: Skilled Workers, Professionals, and Unskilled Workers (Other Workers) 40,040 cap (28.6%) + unused 1st or 2nd preference - Unskilled workers – no more than 10,000 4. EB-4: Certain “Special Immigrants” 9,940 cap (7.1%) - Religious workers – no more than 5,000 5. EB-5: Immigrant Investors 9,940 cap (7.1% - 3,000 minimum reserved for investors in rural or high unemployment areas Labor Certification – INA 212(a)(5) Overview - A market test to determine: (1) No domestic workers are available to do the work; and (2) The immigrant will not adversely affect the wages and working conditions of similarly employed U.S. workers - Which preference categories is it required for? EB-1: not required (and EB-1A can self-petition) EB-2: required unless waived (national interest waiver) EB-3: always required - Most labor certifications filed for employees already working for the applying employer in nonimmigrant status with work authorization - Labor certification application process is called PERM (Program Electronic Review Management) (in effect since 2005) PERM is the employer’s application o In PERM app., employers must attest to having met the regulatory requirements o Employer must save, but not submit, documentation of having met the requirements (subject to audit upon request) 1) Labor Certification process/requirements before Employer files ETA 9089 “Basic Labor Cert. Process,” 20 CFR 656.17 – Employer must make good-faith recruitment effort to find U.S. workers willing and able to do the job. To satisfy recruitment requirements, employer must satisfy the following: (1) Timing requirement: Employer must conduct recruitment efforts in the 30-180 day period prior to filing the ETA 9089; (2) Employer must place a job offer with the state wage agency (SWA) for at least 30 days; SWA in Ohio = “Ohio Means Jobs” (3) Employer must place print ad on 2 different Sundays in a newspaper of general circulation; and (4) Do 3 of 10 additional recruitment steps, only if: 21 The job requires experience and advanced degree, and a professional journal would normally be used to advertise the position. o Professional journal can be used in lieu of one of the Sunday general newspapers. Labor certification is denied if: (1) U.S. worker is willing and able to do the job Employer can only reject a U.S. worker for job-related reasons (2) Employer conducts inadequate recruitment Job requirements cannot be unduly restrictive Employer must pay prevailing wage Job Duties and Requirements, 20 CFR 656.17(h) - Unless required by “business necessity,” the job opportunities and requirements must: (1) Be normal for the occupation and must not exceed the Specific Vocational Preparation level assigned to the occupation as shown in the O*Net Job Zones; o O*Net – Each LCA requires an O*Net code on the ETA-9089 Lists occupations, along with typical tasks, knowledge/skills/abilities they require, and Specific Vocational Preparation (SVP) required See https://www.onetonline.org (2) Not have a foreign language requirement (3) Not require combined occupations - Business Necessity To establish “business necessity” for LCA, employer must demonstrate that the job requirements: (1) bear a reasonable relationship to the occupation in the context of the employer’s business and; (2) are essential to perform in a reasonable manner the job duties as described by the employer. Matter of Information Industries, Inc. Foreign language requirement: demonstrating business necessity for foreign language requirement may be based upon: o The nature of the occupation (e.g., translator); or o The need to communicate with a large majority of the employer’s customers, contractors, or employees who cannot communicate effectively in English 2) Employer files ETA-9089 with the Department of Labor Process - On ETA-9089, employer attests under penalty of perjury that: (1) The job is and has been open to U.S. workers w/o discrimination (2) The job is not available due to strike or lockout (3) Employer has the financial ability to pay the wage - ETA-9089 requires information about the non-citizen whom the employer wants to hire - Non-citizen must also sign the form under penalty of perjury that he/she will take the job if the LCA is approved Exception: Schedule A – 20 CFR 656.5 - For certain occupations short of U.S. workers, employers can skip DOL and file ETA 9089 and I-140 directly with USCIS. 22 This is because Congress has already determined that hiring foreign workers in these jobs will not displace U.S. Workers or adversely affect their wages. Applicable Jobs: Licensed nurses, physical therapists, and noncitizens of exceptional ability in the sciences, arts, or performing arts 20 C.F.R. 655 & 656 - Common reasons for denial: Some of the required experience was obtained by the intending immigrant while working for the applying employer Job description is unduly restrictive - Prohibitions: Substituting a different intending immigrant on the LCA after filing o This necessarily means that the employer already knows the intended employee Barter or sale of applications or approved certifications Intending immigrant’s payment of the costs of the LCA - Denials appealed to BALCA (= Board of Alien Labor Certification Appeals) Judicial review in fed. Dist. Ct. available after exhaustion of administrative remedies per the APA - Employers misusing system or violating regulations subject to: Suspension of right to file future LCA’s Required to use supervised recruitment for future LCA’s Criminal sanctions for willful misrepresentations Portability - INA 204(j) adjustment applicant whose application has been pending for more than 180 days are permitted to change jobs or employers if: (1) The new job is in the same or similar field for which the visa petition was filed; and (2) the labor certification remains valid - Thus, the LCA’s market test/protection to U.S. workers is virtually meaningless - If the new job is in a different locale, the prevailing wage determination is meaningless as well, as it is regional 3) Procedure Post-LCA approval Employer files I-140 with USCIS with the LCA approval within 180 days of its approval, or it expires (!) Validity of DOL’s adjudication of the market test portion of the LCA can’t be questioned by USCIS However, USCIS can deny I-140 based on other grounds: - Employee not qualified for the job - Employer unable to pay the wage - Misrepresentation or fraud by employer or employee 4) Approved I-140 send to USCIS for adjustment of status (485) or abroad for consular processing 23 ADMISSION PROCEDURES AND ADJUSTMENT OF STATUS Admission Procedures Important Basic Definitions - Immigrant: foreign national with intention to remain in U.S. permanently - Non-Immigrant: foreign national with intention to stay in U.S. temporarily - Arriving Alien: “an applicant for admission coming or attempting to come to U.S. POE.” 8 CFR 1.2 3 Steps: (1) Approval by USCIS of immigrant visa petition in U.S. (I-130 if family based; I-140 if employment based) If consular processing is selected, the USCIS will send the file to the National Visa Center (NVC) automatically when the petition is approved to initiate consular processing with the U.S. Consular post designated on the form. (2) NVC: will contact foreign national applicant when priority date becomes current; applicant will have to return forms, fees, and documents. Required documentation governed by DOS’s reciprocity schedule Documents are not available for some countries Reciprocity schedule – see website (3) Consular Processing Decides whether the foreign national is admissible to the U.S. (inadmissibility governed by INA 212) USCIS approval of the underlying petition does NOT mean that the foreign national is admissible to the U.S. Visa interview takes place at U.S. Consulate in the country of the visa applicant’s citizenship, unless visa applicant has lawful status in a 3rd country or return to home country would cause hardship or not possible due to war (e.g., Somali cases processed by U.S. Consulate in Nairobi, Kenya) Medical exam by approved physician required o Must be done shortly before the interview at the U.S. Consulate Upon Approval - An issued visa is valid for 6 months. INA 221(c) - Applicant will not receive permanent resident status until he has returned to the U.S. for admission pursuant to the visa - Visa presented at POE to CBP - Once admitted, CBP notes (stamps) in the passport that the LPR entered the country that date and notifies USCIS that the LPR has entered the country - USCIS sends the permanent residency card (I-551, or green card) to the immigrant in the mail - If already LPR and gone less than 12 months: green card sufficient for reentry If not, deemed to be “seeking admission” – INA 212 applies Exceptions to Visa Requirement - Mexicans may have Border Crossing Cards to be used at southern land POEs (specific area 25-75 miles) - Canadians can enter with just their passport 24 - Visa Waiver Program No extension of stay beyond the 90 days No adjustment of status Can apply for asylum At POE - Applicant for admission is either (1) admitted; (2) removed; or (3) allowed to withdraw application for admission (VD) - Proof of Admission: Admission to U.S. stamped in Passport I-94 cards (electronic—must download after admission to U.S.; land borders still give paper I94s) - I-94 or passport stamp says how long visa holder can stay, not the visa itself - Overstaying visa generally voids the validity of the visa. INA 222(g) Parole - Parole permits immigration officials to physically allow a foreign national to enter the U.S., but it is legally distinct from an admission - Persons who are paroled into the U.S. are not admitted - Parole is appropriate for “urgent humanitarian reasons or significant public benefit.” Most often: extremely ill people and asylum applicants Issued I-94s reflecting parole (not admission) Can file 485 if immediate relative of USC Parole-in-Place (PIP) - Program to assist family members of USCs on active military duty - Even if the foreign family member entered EWI, he/she can apply to USCIS for PIP Discretionary, but if granted, then the family member is eligible to adjust status based on the family relationship - PIP does not cure the permanent bar to admission caused when a foreign national re-enters or attempts to re-enter the U.S. unlawfully after deportation Advance Parole - Permits applicants to leave U.S. while their applications are pending and re-enter lawfully - Inadmissibility bars still apply - Typically utilized by applicants for adjustment of status Adjustment of Status – INA 245 Overview - Process of becoming an LPR from within the U.S. after approval of an immigrant visa petition (i.e., Already here and applying for LPR) - If the foreign national is eligible for adjustment of status and is an IR or their immigrant visa category is not backlogged, they can file adjustment of status application (485) together with immigrant visa petition - USCIS examiner makes same inquiry as consular officer to determine if the adjustment applicant is admissible to the U.S. 25 If found inadmissible, USCIS will deny application outright or notify of the necessity to file a waiver (if applicable) Unless foreign national obtained advanced parole, leaving U.S. while 485 pending = abandonment Qualifications – INA 245(a) - Must have been admitted or paroled (no EWI) Disqualifications – INA 245(c) - Working without authorization (Exception for IR of USC under INA 201(b)) - Entering on Visa Waiver Program - Not maintaining lawful status (unless not their fault (e.g., delay in processing)) INA 245(i) - Allows adjustment of status in U.S. notwithstanding EWI and unlawful presence for certain individuals—those who: (1) Had a visa petition or labor certification filed for them on or before 1/14/1998; and (2) Were beneficiaries of an immigrant visa petition or labor certification filed for them on or before 4/30/2001 AND were physically present in U.S. on 12/21/2000 INADMISSIBILITY – INA 212 Overview - Admission and admitted mean the lawful entry into the U.S. after inspection and authorization by an immigration officer. INA 101(a)(13)(A) - Wave-in (erroneous) admission is still an admission. Matter of Quilantan BUT SEE INA 237(a)(1)(A) – still deportable if inadmissible at time of entry or adjustment of status (but the inadmissibility was not detected then) - Parole is not admission INA 101(a)(13)(B) – “Shall not be considered to have been admitted” - Presumption that returning LPR’s are not seeking admission. INA 101(a)(13)(C) Exceptions: abandonment/relinquish; >6 months; illegal activity; left while in removal proceedings; criminal grounds (even if committed long time ago) Inadmissibility vs. Deportability - Inadmissibility grounds apply to foreign nationals who have not been admitted - Deportability grounds apply to foreign nationals after admission Inadmissibility Timing – When is FN’s inadmissibility evaluated when applying for immigration benefits? - By Consular officer when applying for a visa abroad - By CBP when applying for admission to the U.S. - By USCIS when applying for adjustment of status (even when applying for naturalization) Health related INA 212(a)(1)(A) 9 communicable diseases 42 CFR 34.2 (b) (HIV removed in 2010) Can also be denied if: - Not adequately vaccinated - Drug abuser Note: they check for drugs in one’s system when they do the blood draw - Mental disorders with threatening behavior 26 Waivers – 212(g) (doctor must sign off) Criminal grounds INA 212(a)(2)(A) A. (1) CIMT - Defined in case law (2)Controlled Substances Offenses - Violation of (or conspiracy or attempt to violate) any law or regulation of a State, the U.S., or a foreign country relating to a controlled substance (as defined in § 102 of the CSA (21 U.S.C. 802)) - WAIVER for <30g of weed (212(h)) What is a criminal conviction? – 101(a)(2)(A) A formal judgement of guilt of the noncitizen entered by a court or, if adjudication of guilt has been withheld, where: (i) A judge or jury has found the noncitizen guilty or the noncitizen has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, AND (ii) The judge has ordered some form of punishment, penalty, or restraint on the noncitizen’s liberty to be imposed THUS: the following count as convictions Suspended sentences Court-ordered drug treatment or domestic violence counseling alternative to incarceration disposition if a guilty plea is taken (even if later vacated) Exceptions: - Crime committed when under 18 y/o, and committed (and alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the application for a visa or other documentation and the date of application for admission to the U.S. - Petty crime – The maximum penalty for the crime did not exceed imprisonment for 1 year, and if convicted, was not sentenced in excess of 6 months. (remember: **suspended sentences count**) B. Multiple Criminal Convictions 2 or more offenses in which aggregate sentence of 5+ years regardless of whether crimes were CIMT C. Other (1) Controlled substance traffickers (2) Prostitution and commercialized vice (3) Certain aliens involved in serious criminal activity who have asserted immunity from prosecution National Security INA 212(a)(3) A. Generally – anyone who AG/consular officer believes to be engaging in: (1) sabotage/espionage (2) “any other unlawful activity” (3) Violent overthrow of U.S. government B. Terrorist Activities (1) had engaged in “terrorist activity” (2) suspected/like to engage (determined by AG, DHS, or consular officer) (3) Inciting “terrorist activity” (4) Representative of a “terrorist organization” (5) member of “Terrorist organization” Exception 27 “Terrorist Activity” – any activity unlawful under laws of place where committed and involves (I-IV) hijacking, seizing/detaining, violent attack on internationally protected person, assassination, chemical warfare, ATTEMPT/CONSPIRACY Public Charge INA 212(a)(4) Immigration Violation INA 212(a)(6) A. EWI – aliens present without admission/parole – INA 212(a)(6)(A) Exception – VAWA if there is a connection between battery/cruelty and unlawful entry B. Misrepresentation – by fraud or willfully misrepresenting material fact Misrepresentation Requires: - Affirmative act before a U.S. official on foreign national’s own application - Must be willful (i.e., knowingly and intentional) Falsely claiming USC most common, on job application & purchasing firearms - Does NOT apply to falsely claiming LPR - Exception – Good faith belief they were actually USC (mostly applies to children) Waivers INA 212(i) - Spouse, son, or daughter of USC (not parent unless VAWA) - Form 601 – requires 2 years abroad + consular – 601A state-side, just have to do interview abroad C. Alien smuggling Waiver if you smuggled your own family members (immediate relatives: spouse, parent, children) INA 212(d)(11) D. Not being in possession of visa or entry document when applying for admission – INA 212(a)(7) Waiver 212(k) Unlawful Presence/Prior Removal INA 212(a)(9) A. Prior Removal Arriving: 5 year bar for one prior removal (under 235(b)(1) (ER) or 240) - 20 year bar for >1 removal or convicted of Aggravated Felony Already here: 10 year bar for one prior removal - 20 year bar for >1 removal or convicted of Aggravated Felony B. Unlawful Presence – EWI or VISA overstay (presence begins upon expiration of stay) If unlawfully present 6 months – 1 year 3 year bar If unlawfully present >1 year 10 year bar Exceptions - Minors do not begin accruing until >18 years old - Asylum – no accrual of unlawful presence during pending asylum application C. Unlawfully present after previous Immigration violations PERM BARS Unlawfully present >1 year + leave + come back unlawful presence aggregated Exception – 10 years outside U.S. DHS Secretary consent Waivers – only if VAWA and connection between abuse & entry (NO 601, NO PIP, NO 245(i)) 28 DEPORTABILITY – INA 237(a) Inadmissibility at Entry and Status Violations A. Inadmissible at time of entry, adjustment, or violated status – 237(a)(1)(A) Turns all 212 grounds into deportability grounds, no statute of limitations Waiver INA 237(a)(I)(H) discretionary waiver if deportable due to fraud or misrepresentation when obtaining immigrant visa or admission - Available to spouses, parents, and children of USCs/LPRs - Akin to INA 212(i) waiver, but broader (includes parents of USC/LPR) (remember INA 212(i) only available to spouses/children of USC/LPR) B. Present in U.S. in violation of law – 237(a)(1)(B) Applies to visa overstays, visa revocations Applies to the undocumented who enter EWI but are being charged with being inadmissible now C. Failure to maintain non-immigrant status – 237(a)(1)(C) (1) related to changes between non-immigrant (INA 248) (2) violations of health-related (INA 212(g)) conditions Criminal Grounds Besides deportability, criminal offenses carry other consequences like: - Ineligibility for Naturalization – must maintain “good moral character” INA 101(f) AggFel, CIMT, (maybe) OVI (discretionary, depends on state) What is a “conviction”? – see above in Criminal Inadmissibility grounds State v. Kona – trial court required to advise foreign national of possible immigration consequences of diversion program - ORC 2943.031 - If not satisfied, foreign national has right to withdraw prior guilty plea A. CIMT CIMT is: - “conduct which is inherently base, vile, depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general . . . Moral turpitude has been defined as an act which is per se morally reprehensible and intrinsically wrong . . . whether the act is accompanied by a vicious motive or a corrupt mind.” Matter of Franklin 1994 - “evil intent is a requisite element for a crime involving moral turpitude.” Matter of Khourn - Includes both felonies and misdemeanors - 6th Cir negligence crimes are not CIMT - Reckless may be sufficient, depending on amount of harm caused CIMT Removability: (1) One CIMT if committed within 5 years of admission (possible sentence of >1 year) (2) Two or more CIMT not arising from the same scheme of criminal misconduct, regardless of sentence imposed DEPORTABLE regardless of actual imposed sentence (remember suspended sentences count!) – Padilla v. Kentucky (2010) 29 B. Aggravated Felonies = mandatory detention & ineligibility for almost all relief from removal IRRELEVANT if crime is a misdemeanor under state law, defined in INA 101(a)(43) Includes: - A – murder, rape, sexual abuse of minor - B – Illicit trafficking of controlled substance - C – Firearms trafficking - D – Certain money laundering > $10,000 - E – Explosive materials/firearms offenses (enumerated) - F – “crime of violence” 18 USC 16 (actual sentence > 1 year) - G – Burglary (actual sentence > 1 year) - H – Kidnapping - I – child porn - J – Racketeering (possible sentence >1 year) - K – Prostitution, peonage, slavery - L – sabotage/treason - M – Fraud/Tax evasion >$10,000 - N – Alien Smuggling (exception if immediate relative) - O – Re-entry after removal due to AggFel - P – Falsifying U.S. Passport (actual sentence > 1 year) - Q – Failure to appear for crime (possible sentence > 5 years) - R – Commercial bribery (actual sentence > 1 year) - S – Obstruction of justice (actual sentence > 1 year) - T – Failure to appear for felony charge (possible sentence > 1 year) - U – Attempt/Conspiracy merges with substantive offense C. Controlled Substances Any controlled substance violation = deportable & inadmissible Exception: <30g of weed Still renders one inadmissible, though waiver available (USC/LPR immediate relatives) under INA 212(h) D. Certain Firearms offenses E. Miscellaneous crimes (1) espionage, sabotage, treason & sedition which has possible sentence > 5 years (2) 18 USC 871 – threats against the President and successors (3) 18 USC 960 – expedition against friendly nation F. Domestic Violence, stalking, violation of protection order – 237(a)(2)(E) (1) Defined under 18 USC 16: stalking, child abuse, & child abandonment REGARDLESS of length of sentence imposed renders one deportable – 237(a)(2)(E)(i) (2) Judicial Determination of violation of protection order render one deportable – 237(a)(2)(E)(ii) Public Charge Deportable if one “within 5 years of the date of entry, has become a public charge from causes not affirmatively shown to have arisen since entry.” 30 - Extremely seldom litigated removal provision Failure to register and falsification of documents – INA 237(a)(3) (1) Change of address (2) Failure to register or falsification of documents (3) Document fraud - turns on INA 274C (forging, counterfeiting, falsely making document; use, attempt, or possession of any such documents) - Waiver: LPRs if previous penalty imposed under 274C and was incurred only to assist/aid/support spouse or child (4) Falsely claiming Citizenship Fraud & Misrepresentation Fraud or misrepresentation to obtain immigration benefit usually renders one deportable under 237(a)(1)(A) for being inadmissible under 212(a)(6)(C) However, separate deportability ground – 237(a)(3)(C) - Requires extra procedural step of subject to an order under 274C Fraud The term "fraud" is not defined by the Immigration and Nationality Act. We believe it should be used in the commonly accepted legal sense, that is, as consisting of false representations of a material fact made with knowledge of its falsity and with intent to deceive the other party. The representation must be believed and acted upon by the party deceived to his disadvantage. Matter of G-, 7 I. & N. Dec. 161, 164 (B.I.A. April 9, 1956) Fraud and Willful Misrepresentation - Both fraud and willful misrepresentation require a "material" misrepresentation. A "misrepresentation is material . . . if it tends to shut off a line of inquiry which is relevant to the alien's eligibility, and which might well have resulted in a proper determination that he be excluded." Matter of Ng, 17 I. & N. Dec. 536, 537 (BIA 1980) (emphasis added). Materiality - A concealment or misrepresentation is material if it "has a natural tendency to influence, or was capable [*17] of influencing, the decision of" the decision making body to which it was addressed. Kungys v. U.S., 485 U.S. 759, 770, 108 S. Ct. 1537, 99 L. Ed. 2d 839. To establish that Beleshi's statements were "material," "the Government is not required to prove that the [applicant] would not have been granted a visa but for the misrepresentation." U.S. v. Kalymon, 541 F.3d 624, 635 (6th Cir. 2008). Beleshi v. Holder, E.D.Mich. No. 12-11681, 2014 U.S. Dist. LEXIS 129129, at *16-17 (Sep. 16, 2014) Willful Misrepresentation To the contrary, the INS must show that the alien obtained a visa by fraud (with its concomitant intent requirement) or by "willfully misrepresenting a material fact." INA § 212(a)(6)(C)(i); 8 U.S.C. § 1182(a)(6)(C)(i). "The element of willfulness is satisfied by a finding that the misrepresentation was deliberate and voluntary." Witter v. I.N.S., 113 F.3d 549, 554 (5th Cir.1997). The INS does not need to show intent to deceive; rather, knowledge of the falsity of the representation will suffice. See [i]d.; Forbes v. INS, 48 F.3d 439, 442 [*464] (9th Cir.1995); Espinoza-Espinoza v. INS, 554 F.2d 921, 925 (9th Cir.1977). More on Willful Misrepresentation - 187 F.3d at 330 (emphasis in original). As the dissent concedes, this is also the current position of the BIA, and indeed, has been since it decided Matter of Kai Hing Hui more than thirty years ago. See 15 I & N Dec. at 290 ("We interpret the Attorney General's decision in Matter of S- and B-C- [9 I & N Dec. 436 (AG 1961)] as one which modified Matter of GG- [7 I & N Dec. 161,164 (BIA 1956)] so that the intent to deceive is no longer required before the wilful [sic] misrepresentation charge comes into play."). - Parlak v. Holder, 578 F.3d 457, 463-464 (6th Cir.2009) 31 POST-CONVICTION RELIEF Expungements/sealings absolutely ineffective and can actually make things more difficult in terms of obtaining records, collateral attack Ineffective Assistance of Counsel (IAC) - IAC in Criminal Courts Padilla v. Kentucky – held that a lawyer has the obligation, based on the Sixth Amendment right to effective assistance of counsel, to advise a client that there may be immigration consequences, such as deportation, for pleading guilty to a particular criminal offense. If lawyer failed to inform defendant of immigration consequences for pleading guilty, defendant should file a motion to vacate/withdraw guilty plea for ineffective assistance of counsel in the court where he/she plead Padilla does not apply retroactively - IAC in Immigration Courts In re Lozada – held that Fifth Amendment guarantees right to counsel in the removal context, and that there is a denial of due process only if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case. Immigrant must file a motion to reopen and meet the three prongs of Lozada: o Allegations must be supported by an affidavit of the aggrieved immigrant setting forth in detail the agreement that was entered into with counsel with respect to the actions to be taken and what representations counsel did or did not make to the respondent. o The representative who competence is being impugned must be informed of the allegations and provided an opportunity to respond. o The motion to reopen must reflect whether a formal complaint has been filed with appropriate State Bar authorities regarding the lawyer’s ethical or legal responsibilities and if not, why not. INA 212(h) Waiver applies for inadmissibility - Applies to waive criminal ground of inadmissibility in some situations (not Aggravated Felony) 212(a)(2)(A)(i)(I) – CIMT 212(a)(2)(A)(i)(II) – Controlled Substance Offenses (only if less than 30g of marijuana) 212(a)(2)(B) – Multiple criminal convictions 212(a)(2)(D) – prostitution and commercialized vice 212(a)(2)(E) – certain aliens involved in serious criminal activity who have asserted immunity from prosecution - Either LPRs or nonresidents may apply for this waiver. This waiver may be filed either together with adjustment of status application or can be a stand-alone waiver. Matter of Sanchez: available to LPRs who departed from the U.S. and were readmitted after committing a deportable offense - Four general circumstances where an alien can request a 212(h) waiver: (1) When denial of admissibility would result in extreme hardship to the immigrant’s spouse, children, or parent who is a U.S. citizen or LPR o Indicators of hardship: Family ties and impact; Social and cultural impact; Economic impact; Health conditions and care; Country conditions (2) For prostitution/commercial vice convictions (212(a)(2)(D)(i)-(ii)) OR when the conviction is at least 15 years old; and: 32 o Alien has to prove that alien’s admission would not be contrary to the national welfare, safety, or security of the U.S. o The alien has been rehabilitated o No need to prove extreme hardship to a relative (3) When the immigrant is a VAWA self-petitioner o Spouse, parent or child of USC or LPR who has been battered/abused (4) As a defense in removal (deportation) proceedings when used with an application for adjustment of status or to retroactively waive inadmissibility at the time of a prior admission Retroactivity - Much litigation; determined by case law - The ex post facto clause does not apply to deportation statutes if Congress has stated otherwise - Due process does apply, however, low burden - “rational basis” for the retroactivity satisfies due process - INS v. St. Cyr: presumption against retroactivity; however, courts defer to clear Congressional intent Rule of Lenity - Resolve doubts of statutory interpretation in favor of the alien. Fong Haw Tan v. Phelan (1948) Constitutional Avoidance - When possible interpret statutes in a manner to avoid raising serious constitutional questions Registry - Exists as a sort of statute of limitations but is extremely limited - Those who entered before Jan. 1, 1972 and have been continuously present may become LPRs if registered by 1986 - Cut-off date of 1986 has not been extended REMOVAL, DETENTION, RELIEF FROM REMOVAL A. Removal Overview Since 1996, deportation and expulsion are both called removal - Deportation: for those already in the U.S. - Expulsion: for those at the border Those put into removal at the border are generally classified as arriving aliens Generally 2 parts: (1) Determining removability/inadmissibility Requires DHS to prove alienage, as a threshold matter, if Respondent denies alienage INA 212 inadmissibility grounds apply to non-citizens who haven’t been admitted to the U.S. INA 237 deportability grounds apply to non-citizens after admission (2) Adjudication of any applications for relief from removal Governing Authority in removal/detention - Statutes, regulations, and due process - Due process in removal/detention context: 33 Fundamental rights of fairness and Constitutional rights, when applicable Determined by case law when challenged and contested Not applicable in removal/detention: - Rules of Civil Procedure or Criminal Procedure - Rules of Evidence (except when they do – rules of evidence “loosely applied” in removal/detention) - Generally, all evidence is admissible in removal, even multiple layers of hearsay, unauthorized documents, etc. - Its all admitted and IJ has discretion to determine what weight to give evidence Immigration Judge’s Authority – INA 240(b)(1) - Administer oaths, receive evidence, interrogate, examine, and cross-examine the Respondent and any witnesses - Subpoena power – However, Respondent must move IJ for issuance of subpoenas desired by Respondent, and IJ will grant or deny the motion Removal Process Initiated by DHS serving upon Respondent the charging document, which is the Notice to Appear (NTA), Form I-862 INA 239 governs contents of NTA and requirements of service Proceedings formally commence when NTA is filed by DHS with the Imm. Court Respondent may or may not be detained by DHS Initiation of Removal Proceedings – INA 239 (1) Notice to appear must be served on the alien in person or by mail (if there is proof of attempted delivery to last address provided by alien) (2) Notice to appear must include: (a) The nature of the proceedings against the alien (b) The legal authority under which the proceedings are conducted (c) The acts or conduct alleged to be in violation of the law (d) The charges against the alien and the statutory provisions alleged to have been violated (e) The time and place at which the proceedings will be held (f) Information informing the alien that he may be represented by counsel (at own expense), and will be provided a period of time to secure counsel and a current list of counsel (g) The requirement that alien must immediately provide AG with written record of an address and phone number, or change in address or phone number (failure to do so – ordered removed 240(b)(5)) (3) Notice of change in time or place of proceedings must be provided to alien Removal before Immigration Court (1) Master Calendar Hearing for alien to respond to the NTA (think “admit/deny”) (2) Individual hearing to: (a) Determine alienage, deportability, or inadmissibility if not conceded by the Respondent; and/or (b) Adjudicate any applications for relief from removal B. Detention Arrest by DHS INA §287 power to arrest w/o a warrant 8 CFR 287.3 pertains to arrest w/o a warrant 34 Must make a custody determination w/in 48 hrs of arrest to release on own recognizance; release on bond; or continue to detain INA §236 administrative warrant & mandatory detention Legality of 236(c) upheld by SCOTUS: Nielsen v. Preap, 138 S. Ct. 954, 200 L. Ed. 2d 333 (2019) caselaw file in Carmen - Question presented in Preap: “[w]hether a criminal alien becomes exempt from mandatory detention under [INA § 236(c)] if, after the alien is released from criminal custody, the Department of Homeland Security does not take him into immigration custody immediately.” Justifications for detention Ensures Respondent appears for removal hearings Ensures that Respondent will actually leave the U.S. if ordered removed Removes possibility of danger to society Deters other immigrants from breaking U.S. immigration laws Problems with detention generally Separates Respondent from family and friends Causes Respondent to lose employment Removes economic breadwinner from the family Reduces access to counsel, especially with remote detention locations Detention of arriving aliens INA §235(b) says arriving aliens not in expedited removal shall be detained; however may be released on parole, 8 CFR § 212(d)(5): - Serious medical conditions - Pregnant women - Certain juveniles - Witnesses in govt proceedings - Detention not in public interest. Bond redetermination ICE Field Office Director (FOD) decides whether to detain or release on bond. INA 236(a): 8 CFR 236.1(c) If detained or want a lower bond, IJ has jurisdiction for a bond redetermination hearing IJ determines if Respondent is a flight risk or danger to society IJ considers job history, length of residency in the community, family ties, record of appearance at court, previous criminal or immigration violations IJ bond redetermination Repondent and DHS have right to appeal IJ bond redetermination If DHS reserves right to appeal, bond decision automatically stayed for one day (can’t get released same day but on the next you can) If DHS actually appeals the bond decision, the stay continues until the BIA rules. 8 CFR §§ 236.1(d)(4), 1003.19(i) 1988 study of Chicago bonds found IJ reduced legacy INS bonds by over 2/3 ICE Detention Facilities 35 In 2018: of the 250 detention facilities nationwide, 21 large facilities hold 50% of the detained population - 7 owned by ICE, operated by private company - 7 owned and operated by private company - 7 county jails that have intergovernmental service agreements (IGSA‘s) with ICE Other 50% of the detained population held in county jails w/IGSA’s NEW DETENTION FACILITIES RECENTLY BUILT, LOUISIANA & MISS. Problems with ICE detention facilities Violations of applicable performance standards Sub-par medical care The largest facilities are distant from urban areas, access to counsel Detained far from family and friends Disproportionate racial impact –2012, 90% DETAINED ARE LATINO - Cesar Guauhtemoc Garcia Hernandez, Immigration Detention as Punishment, 61 UCLA L. Rev. 1346, 1360-72 (2014) (history of immigration detention) - Yolanda Vazquez, Constructing Crimmigration: Latino Subordination in a “Post-Racial” World, 76 Ohio St. L.J. 599, 654 (2016) ICE detention tools Online detainee locator system ATD – alternatives to detention ISAP – intensive supervision New smartphone app Indefinite detention When final removal order, removal supposed to be accomplished w/in 90 days and “shall” be detained during that time. INA §241 After 90 days, discretion to release under supervision. INA § 241, 8 CFR §§ 241.4, 241.5 After 6 months of detention, if foreign national provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Govt must respond w/evidence sufficient to rebut that showing. Zadvydas v. Davis, 533 U.S. 678 (2001). Pedro & Central Ohio Worker Center File a habeus w/federal district court C. Relief from Removal Relief Private bills – extremely rare (only 2 from 2005-2016) Most applications for relief have 2 parts for the IJ’s consideration: (1) Statutory eligibility for the relief sought; and (2) Whether the applicant merits a favorable exercise of discretion Overview INA 240A(a) for certain LPRs - If granted, LPR cancellation allows the LPR to maintain her LPR status, despite her removability INA 240A(b) for certain non-LPRs - If granted, non-LPR cancellations grant LPR status upon an EWI or person admitted as a non-immigrant 36 LPR Cancellation of Removal Requirements: (1) 5 years LPR status (2) 7 years residency in the U.S. (3) Not been convicted of an aggravated felony Time-Stop Rules of INA 240A(d)(1): - Service of (valid) NTA stops accrual of continuous residency NTA that does not specify the time and place of alien’s initial removal hearing is still valid “so long as a notice hearing specifying this information is later sent.” Matter of Bermudez-Cota (2018) o Distinguished the holding in Pereira v. Sessions, which held that NTAs that do not specify the time and place are defective and not valid. - Commission of a 212(a)(2) or 237(a)(2) or (4) offense stops accrual of continuous residence Time of commission (not conviction) IJ must determine if favorable discretion warranted (AG may cancel removal) - Generally granted, but can’t be granted twice - Matter of C-V-T outlines the factors to be considered – essentially a balancing test of positive and negative equities: Favorable Considerations Factors Deemed Adverse Family ties within the U.S. Nature and underlying circumstances of the grounds of exclusion or deportation Residence of long duration in U.S. (now removal) that are at issue (particularly when the inception of residence occurred at a young age) The presence of additional significant violations of this country’s immigration Evidence of hardship to the respondent laws and his family if deportation occurs The existence of a criminal record and, if Service in U.S. armed forces so, its nature, recency, and seriousness A history of employment, the existence of The presence of other evidence indicative property or business ties of a respondent’s bad character or Evidence of value and service to the undesirability as a permanent resident of community this country Proof of genuine rehabilitation if a criminal record exists Other evidence attesting to a respondent’s good character Non-LPR Cancellation of Removal Requirements: (1) 10 years continuous physical presence in the U.S. (2) Has a USC/LPR spouse, child, or parent (3) Good moral character for 10 years (the 10 year period immediately prior to date of app.) “good moral character” defined in the negative in INA 101(f) (4) Demonstrate that the qualifying relative would experience “extreme and exceptionally unusual hardship,” if the Respondent were removed from the U.S. To a qualifying relative (USC/LPR spouse, parent, child) Hardship above and beyond that normally associated with deportation (typical hardship not enough) 37 In the context of a relative remaining in the U.S. without the applicant, examples of typical hardship (i.e., insufficient here): o Emotional or psychological suffering from missing the applicant; reduction in economic situation/standard of living; etc. o In the context of traveling to foreign country with the applicant, examples of typical hardship (generally insufficient here): o Economic deprivation, lower standard of living, schools, medical Numerically capped at 4,000/FY. After 3,800 are issued, IJs and BIA must delay final decisions until Oct. 1 of following FY Non-LPR Cancellation Time Rules - Same time-stop rules of 240(A)(d)(1) apply (issuance of the NTA and commission of certain crimes) - Also, 240(d)(2) concerning breaks in physical presence Departure from the U.S. in excess of 90 days or 180 days in the aggregate breaks the required continuous presence Exception for military service – 240A(d)(3) Voluntary Departure Overview - Required to depart the U.S. voluntarily and at own expense within a certain amount of time - Agency could grant VD rather than commencing § 240 removal proceedings this doesn’t happen anymore - In reality, 2 types: (1) Pre-Conclusion VD – INA 240B(a) (2) Post-Conclusion VD – INA 240B(b) Pre-Conclusion VD - It is a “privilege, not a right” - IJ can give 120 day period to depart - No good moral character requirement - IJ still has authority to decide if merits favorable exercise of discretion Typically granted (couple examples of denials; couple examples of appeals of denial) - Not required to have travel document at time of request. Have to show it to ICE later Post-Conclusion VD - Respondent must demonstrate: One year physical presence in U.S. prior to issuance of NTA Good moral character for 5 years prior Not deportable under 237(a)(2)(A)(iii) or (a)(4) [aggravated felon / security grounds] By clear and convincing evidence, he has the means and intention to depart the U.S. 60 day max period (stayed if appeal pending) Must pay minimum $500 VD bond within 5 business days Same procedure as pre-conclusion VD VD Under Safeguards - For the detained - Respondent remains in ICE custody until placed on the flight - Must be specific flight out of U.S. with no domestic connection - Must be direct flight out of U.S. with no domestic connection - Respondent is free of ICE custody once on plane and arrives in foreign country like normal person, not a deportee 38 - Quicker departure period, determined by IJ Penalties for Failure to Depart Under VD - Not eligible for relief from removal or adjustment of status for 10 years - Subject to civil fine - If file a motion to reopen or reconsider case during the VD period, VD order converts to removal order - VD order automatically converts to removal order if failure to depart ASYLUM & WITHHOLDING OF REMOVAL Refugee vs. Asylee Refugees: approved as refuges overseas and enter the U.S. with that status - Number of refugees admitted is set by the President Asylees: apply for asylum in the U.S. They are granted asylum status if they establish that they meet the definition of a refugee. - No numerical cap on number of asylees per year - “Nonrefoulment” – not returning refugee to the country where he/she will be persecuted Definition of Refugee “any person who, owing to a well-founded fear of being persecuted for reasons of (1) race, (2) religion, (3) nationality, (4) membership of a particular social group, or (5) political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country.” Forms of Relief from Removal (2 persecution-based, & withholding under CAT): (1) Asylum, requiring a well-founded fear of future persecution – INA 208 - Can work, travel, bring spouse/kids, and adjust status (2) Withholding of removal (=nonrefoulment), requiring threat to life or freedom – INA 241(b)(3) - Can work and live in the U.S., but no adjustment of status and no bringing family (3) Withholding of removal under the Convention Against Torture (CAT) Qualifications for Asylum To qualify for asylum, one must be faced with: (1) Persecution (2) On account of (nexus requirement) (3) Race, religion, nationality, political opinion, or social group A Closer Look at Asylum Qualifications/Criteria Persecution Infliction of suffering or harm upon those who differ in a way regarded as offensive Must be by government actors or actors the government is unwilling or unable to control Discrimination is not persecution, unless: o Extremely severe and pervasive, as to threaten life or liberty, or deliberate imposition of severe economic disadvantage Depends on your Circuit; difficult claim to establish Type of harm is relevant: bodily harm, imprisonment, serious threats of death or substantial bodily harm 39 - Past Persecution Past persecution, if established by applicant, creates a presumption of a well-founded fear of future persecution – 8 CFR 208.13 Government has burden to rebut this presumption by showing either: (1) A fundamental change in circumstances that removes the well-founded fear of persecution; or (2) That the applicant could avoid future persecution by relocating to another part of the country and that it would be reasonable to expect the applicant to do so. Same showing required of government for withholding of removal (8 CFR 208.16) - Future Persecution INS v. Cardoza-Fonseca (1987): o An applicant for asylum is required to “present ‘specific facts’ through objective evidence to prove either past persecution or ‘good reason’ to fear future persecution.” o If such evidence is not available, the applicant’s testimony will suffice if it is credible, persuasive, and specific o “Mere assertions of possible fear” are insufficient Mixed Motive Persecution - Some asylum applicants may claim that he/she has been persecuted for more than one reason, where only one of the reasons would satisfy the nexus requirement. - In cases of more than one motive, an “applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.” INA 208(b)(1)(B)(i) - “one central reason”: the applicant must show that a protected ground is more than an “incidental, tangential, or superficial” reason for the harm. Political Opinion - Political opinion is assessed in terms of the threatened persecution on account of the asylum applicant’s political opinion, not the political opinion of the persecutors. INS v. Elias Zacarias (1992) - BUT, political opinion can be imputed to the asylum applicant by the persecutor Particular Social Group (PSG) - Past Definition of PSG: Individuals bound together by a characteristic so immutable or so fundamental to their identity that they should not be required to change it. Matter of Acosta (1985). o Taxi driver cooperative not a PSG because members could change jobs and working in their job choice was not a fundamental characteristic. - Successful PSG Examples: sexual orientation; clan membership; women of a particular tribe not subjected to female genital mutilation and oppose the practice; former members of Salvadoran national police - New Definition of PSG (Matter of M-E-V-G 2014): PSG if: (1) Composed of members who share a common immutable characteristic; (2) Defined with particularity; and (3) Socially distinct within the society in question (i.e., must be perceived as a group by society) 40 Applicant’s burden to establish that the PSG exists in the society in question Country reports, expert witness testimony, and press accounts Examples o o o o o Matter of M-E-V-G: Board rejected PSG of “Honduran youth who ha[s] been actively recruited by gangs but who ha[s] refused to join because they oppose the gangs” because “although he was subjected to one of the many different criminal activities that the gang used to sustain its criminal enterprise, he did not demonstrate that he was more likely to be persecuted by the gang on account of a protected ground than was any other member of the society.” Matter of W-G-R: Board rejected PSG of former member of the Mara Salvatrucha in El Salvador Hernandez-Avalos v. Lynch: approved asylum under PSG of nuclear family for a mother who was targeted by the Mara 18 for her refusal to permit her 12 y/o son to join Matter of Kasinga: PSG (Female genital mutation example listed above) Matter of A-R-C-G: approved PSG of married women in Guatemala who are unable to leave their relationship Overruled by Matter of A-B Asylum Procedure Overview - Application for asylum (Form I-589) must be filed within one year of arrival in the U.S. – INA 208(a)(2)(B) No time deadline for filing for withholding of removal - Asylum applicants must be advised of right to counsel, provided a list of pro bono representation, and be advised that knowingly filing a frivolous application makes them permanently ineligible for any benefits under the Act. INA 208(d)(4)&(6) - Absent extraordinary circumstances, interview/hearing should take place within 45 days of filing and final adjudication within 180 days. INA 208(d)(5) - 2 Types of Applications: (1) Affirmative: filed with USCIS, as the applicant is not in removal proceedings (2) Defensive: filed with immigration court in removal proceedings, including after ER order was vacated due to positive CFI - In order to receive grant of asylum, adjudicator also must find a favorable grant of discretion is warranted. INA 208(b)(1)(A) Affirmative Asylum Applications - Adjudicated by Asylum Officer (AO) in non-adversarial manner. 8 CFR 208.9 - AO considers the application, applicant’s testimony, and documentation provided by the applicant, the State Department, and any other credible sources State Department Country Reports and Religious Freedom Reports - If AO doesn’t grant refers to immigration court for removal if applicant has no lawful status Defensive Asylum Applications - If in removal proceedings, no right to non-adversarial interview of your application by AO (except for UACs) UACs have the right to have their I-589 adjudicated by the AO and only have an adversarial adjudication if not approved by the AO - Application is adjudicated by IJ in adversarial proceeding whereby the DHS is represented by an attorney of the ICE Office of Chief Counsel - If applicant already has a removal order, cannot apply for asylum unless the immigration court grants a Motion to Reopen (context: opening up old removal case and filing new asylum claim) If Motion to Reopen is denied, can request reasonable fear interview from AO If reasonable fear is found, then can apply for withholding of removal before the IJ 41 Appeal - If IJ denies appeal as of right to Board of Immigration Appeals (BIA) Maintains asylum status during appeal and petition for review and can renew Employment Authorization Document (EAD) Automatic stay of removal during appeal to BIA - If BIA affirms denial Petition for Review (PFR) of removal order to the Circuit Court of Appeals No automatic stay of removal during PFR; may need to move Ct. of App. for a stay if ICE seeks removal Trump Administration’s Changes to Asylum Law and Immigration Judge Authority Matter of A-B (2018) - AG referred himself the decision - Issue: “whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum or withholding of removal.” - Holdings: “Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by nongovernmental actors will not qualify for asylum.” “a group’s recognition for asylum purposes is determined by the perception of the society in question, rather than by the perception of the persecutor.” To be a PSG, individuals must share a characteristic other than risk of persecution. Persecution can’t be what defines the group: “Social groups defined by their vulnerability to private criminal activity likely lack the particularity required . . . , given that broad swaths of society may be susceptible to victimization.” - New Persecution Standard: (1) Intent to target a belief or characteristic; (2) Severe; (3) Inflicted either by the government of a country or by persons or an organization that the government was unable or unwilling to control Employment Authorization Document (EAD) An asylum applicant can receive an EAD after application has been pending for 180 days, unless he/she causes a delay in processing; if so clock stops If offered an expedited court date & don’t accept clock stops If offered “ ” and do accept, but judge denies clock stops Withholding of Removal Procedure - Made on same form (I-589) - Must demonstrate more than a 50% chance of persecution if removed - No one year filing deadline - Usually apply simultaneously with asylum and CAT Withholding of Removal is Inferior to Asylum in a Number of Ways - Offers no pathway to LPR or USC; doesn’t let you immigrate your family - Harder to be granted - If granted, just means you won’t be sent to country you face danger; may be sent to another country willing to take you 42 - If conditions change, DHS can start new case to argue that you should be sent back Withholding Under CAT - Different from asylum and withholding of removal in that: Torture is the relevant inquiry – must show it is more likely than not that they would be tortured by the government, or by people working for or with the consent of the government, if they were returned to a particular country There is no requirement that the feared torture be related to protected reasons - Similar procedures as withholding of removal “More likely than not” (over 50% chance) standard - Similar benefits as withholding of removal E.g., only means you won’t be sent to country of danger, not somewhere else if available; DHS can start new case to send you back if conditions change; offers no pathway to LPR or USC and doesn’t let you immigrate family TEMPORARY PROTECTED STATUS (TPS) AND ITS PENDING LITIGATION Overview - The Secretary of DHS can designate TPS for foreign countries suffering from: Ongoing armed conflict (e.g., civil war) Natural disaster, or epidemic Other situations posing a serious threat or the ability of the home country to handle the return of its citizens - Typically issued in 18 month increments Eligibility - Be a national of a country designated for TPS, or a person without nationality who last habitually resided in the designated country; - Must be already in the U.S. when the country designated - File TPS Application (Form I-821) during the open initial registration or re-registration period, or meet the requirements for late initial filing durin any extension of your country’s TPS designation May also request EAD by filing I-765 at the same time as TPS Application, or later - Have been continuously physically present in the U.S. since the effective date of the most recent designation date of your country; and - Have been continuously residing in the U.S. since the date specified for your country Exception to continuous physical presence/residence requirements for brief, casual and innocent departures from the U.S. When filing an initial TPS application, you must submit: - Identity and Nationality Evidence: to demonstrate your identity and that you are a national of a country designated for TPS (or that you have no nationality and you last habitually resided in a country designated for TPS). - Date of Entry Evidence: to demonstrate when you entered the United States. - Continuous Residence (CR) Evidence: to demonstrate that you have been in the United States since the CR date specified for your country (see your country’s TPS web page to the left). Current Administration’s Treatment of TPS - Overview Countries designated for TPS pre-Trump: Somalia, South Sudan, Syria, Yemen (still have it), Honduras, Nepal, El Salvador, Nicaragua, Haiti, Sudan 43 - Trump administration ended TPS for the last 6 countries, set to expire between Nov. 2018 – Jan. 2020 Pending Lawsuits Ramos v. Nielsen, 2018 (N.D. Cal.) Preliminary injunction on TPS rescission for El Salvador, Haiti, Sudan, Nicaragua! DHS Secretary “changed the criteria applied by prior administrations, and did so without any explanation or justification, violating the APA” Evidence that this was done to “justify a pre-ordained result” desired by White House o “shithole countries” commentary Questions of animus as motivations CUBAN ADJUSTMENT ACT (CAA); NICARAGUAN ADJUSTMENT AND CENTRAL AMERICAN RELIEF ACT (NACARA); HAITIAN REFUGEE IMMIGRATION FAIRNESS ACT (HRIFA) Cuban Adjustment Act (CAA) If admitted or paroled into the U.S., can adjust status after being physically present for one year - Their spouses, too, even if the spouse isn’t Cuban If charged as arriving aliens, can adjust status in the Immigration Court Nicaraguan Adjustment and Central American Relief Act (NACARA) Overview - Citizens of Nicaragua, El Salvador, Guatemala, Cubans, some former Soviet Union/Eastern Europeans who are long-term residents of the United States - Have to meet certain criteria that varies by country Former Soviet Union/Warsaw Pact - could apply for pre-IIRAIRA suspension of deportation if: - Entered U.S. before Dec. 31, 1990 - Applied for asylum on or before that date - Were a national of former Soviet Union or eastern bloc country when filing for asylum Guatemala – same benefit if: - Entered U.S. on or before Oct. 1, 1990 - Registered for ABC benefits on or before Dec. 31, 1991; or - Applied for asylum on or before April 1, 1990 El Salvador – can apply for old suspension of deportation if: - Entered U.S. on or before Sept. 19, 1990 - Applied for asylum on or before April 1, 1990; or - Registered for ABC settlement or applied for TPS on or before Oct. 31, 1991 Nicaraguans and Cubans – can receive permanent residency if: - Entered U.S. before Dec. 1, 1995; and - Applied for adjustment of status before April 1, 2000 Haitian Refugee Immigration Fairness Act (HIFRA) 8 C.F.R.§ 245.15 specifies the criteria 44 For citizens of Haiti physically present in the United States since Dec. 31, 1995; admissible unless grounds waived (public charge, EWI, unlawful presence all waived) Applications had to have been received by March 31, 2000 However, relief possibly available for dependents of HIFRA applicants NATURALIZATION & DENATURALIZATION A. Naturalization History INA 1952 (still the basic statute): - Eliminated racial qualifications - Prohibited denial based on race or sex - Prohibited certain subversives from naturalizing - Precluded those with pending deportation or outstanding deportation order - Eliminated declaration of intention and certification of arrival as requirements - Enlarged grounds for expatriation and denaturalization 1990 Act transferred authority over naturalization from judiciary to AG = now its administrative USCIS Modern Naturalization Process Written application adjudicated by USCIS officer who makes decision whether to grant or deny. INA 335 Generally only an interview of the applicant, but examiner has discretion to investigate and subpoena witnesses and documents If approved oath ceremony. INA 310(b) If denied reasons must be stated; applicant has the right to a hearing before a USCIS officer. INA 336; 8 CFR 336.2(b) If denied after that can seek de novo judicial review in federal district court pursuant to APA. INA 310(c) Requirements for Naturalization – INA 316: (1) Age – must be at least 18. INA 334(b)(1) - Exception: child naturalized by operation of law if they are LPR and residing with parent when parent naturalizes. INA 320 Child Citizenship Act of 2000 grants automatic citizenship to children admitted as LPRs who reside in the U.S. with their USC parent (2) Residence and Physical Presence - Must be LPR residing continuously in U.S. for 5 years 3 years for spouse of USC who was USC for the whole 3 years and living “in marital union” with the USC. INA 319 - Must be physically present in U.S. for half of that time Absences over 6 months presumed to break continuous residency requirement o Can be overcome by demonstrating lack of intention to abandon residence Over one year outside of country disqualifying, start over - Exceptions (a) Residency requirement waived for if employed abroad by U.S. government, U.S. research institutions, certain U.S. companies, or public international organizations. INA 316(b) 45 (3) (4) (5) (6) (7) (b) Physical presence requirement waived for employees of U.S. government employed overseas or certain religious organizations. INA 316(c), 317 (c) Special military laws o One year honorable service in U.S. military, don’t have to satisfy residency or physical presence requirements. INA 328 o Noncitizens who were lawfully present in the U.S. at time of enlistment who served in activeduty during period of military hostilities don’t have to be LPRs and no required residency or physical presence. INA 329 2002, Pres. Bush declared U.S. to be in armed conflict with hostile force that has not since been terminated since then, any non-LPR in military is eligible for expedited naturalization pursuant to 329. Generally must be USC or LPR to even join the military, so who benefits? MANVI (Military Accessions Vital to the National Interest: permits non-LPRs to enroll in military if possessing special skills ¤ Asylees, refugees, students, certain nonimmigrants can join military. 10 USC 504(b)(2) ¤ Not presently open Must have Good Moral Character (GMC) for past 5 years (or 3 if spouse of USC) - GMC defined in negative in INA 101(f) (1) a habitual drunkard; (2) ___; (3) inadmissibility under INA 212; (4) one whose income derived principally from illegal gambling; (5) convicted of 2+ gambling offenses committed within such period; (6) made false testimony for benefits under this Act; (7) confined to prison for aggregate period of 180 days or more, regardless if committed within such period; (8) aggravated felony; (9) Nazis - USCIS can consider earlier conduct as well - Criminal background checked by fingerprints and FBI background check - 101(f)(3) only applies to crimes committed during the required period - Aggravated felony disqualification, 101(f)(8) is forever (agg.fel. defined in 101(a)(43)) Must demonstrate knowledge of U.S. civics and history (INA 312(a)(2)) - Waived for the disabled - Easier test (less potential questions) for those over 65 y/o who are LPRs for over 20 years. INA 312(b) - Regulation instructs examiners to consider applicant’s situation (education, background, age, length of residency, knowledge gaining opportunity, etc.) when choosing questions Knowledge of English Language (INA 312(a)(1)) - Exemption if: (a) Over 50 and LPR for 20 years (b) Over 55 and LPR for 15 years (c) Disabled. INA 312(b) Oath of Allegiance. (8 CFR 337; INA 337) Attachment to Constitutional principles and well-disposed to good order and happiness of the U.S. B. Denaturalization - May be denaturalized if it were illegally procured or procured by concealment of a material fact or willful misrepresentation. INA 340 - Maslenjak v. U.S. (SCOTUS 2017): the government must make a two-part showing to meet its burden. (1) The misrepresented fact was sufficiently relevant to one or another naturalization criterion that it would have prompted reasonable officials, “seeking only evidence concerning citizenship qualifications,” to undertake further investigation; and (2) That investigation “would predictably have disclosed” some legal disqualification. 46
