Sources of Federal Immigration Power
Enumerated Powers: the federal government can
only exercise the powers granted to it or those
“necessary and proper” to the execution of those
granted powers. McCulloch v. Maryland.
- The Naturalization Power Art I, Sec. 8, cl. 4.:
Congress has the power to “establish a
uniform Rule of Naturalization” in order to
avoid confusion from different state laws on
citizenship
- The Commerce Power Art I, Sec. 8, cl. 3.:
Congress can regulate commerce with foreign
nations and among the several states and
with the Indian tribes. The Court held in the
Head Money Cases that Congress could tax
each non-citizen arrival. The Court held
unconstitutional in Edwards v. Cali. a
California statute making it a crime to bring
an indigent person into the state (infringing
on federal power). The Court said the
transportation of persons is commerce even
where the transportation is not commercial
- The Migration and Importation Clause Art I
Sec 9, cl. 1.: forbids the Congressional
limitation of entry of persons the States
currently want to admit until the year 1808.
(seems to authorize the power after 1808).
This was a ban on congressional attempts to
limit the importation of enslaved people.
- The War Power Art 1, Sec. 8, cl. 11: grants
Congress the power to declare war, which
would allow them to stop the entry of enemy
aliens
Unenumerated or Implied Powers:
- The Foreign Affairs Power: In Chae Chan
Ping, J. Field associated immigration
legislation power with foreign affairs and the
ability to exclude other nationals
- Inherent Power: In Chae Chan Ping, J. Field
suggests that the power to exclude is an
inherent power of sovereignty and
nationhood
-
-
The Rule of Necessity: In Chae Chan Ping, J.
Field suggests that if the U.S. was not allowed
to exercise this power, it would mean the
nation would be subject to other nations’
control
Structural Justifications: In Chae Chan Ping, J.
Field uses sovereignty to imply control over a
territory, imply equality with other nations
-
-
-
-
Eras of Immigration Policy
Chinese Exclusion History
1868 Burlingame Treaty with China: US
accepted Chinese immigration and China
accepted emigration. Treaty declared that it
was a human right to change his “home and
allegiance”
- In 1875 and 1882, the earliest federal
statutes limiting immigration prohibited the
entry of “criminals, prostitutes, idiots,
lunatics, and persons likely to become a
public charge.”
- The 1875 Act had distinct bias against China,
Japan, and “the Orient” and women who
might engage in prostitution (included
European)
 The 1882 Act, followed by 1884, 1888, and
1892, were the Chinese Exclusion laws
- 1885 Act prohibited immigration for those
with pre-arranged jobs (compare with policy
today, where having a job lined up is a boon)
Historical context:
- CA Gold Rush brought Chinese immigrants in
large numbers starting in 1849. U.S. mining
and railroad industries sought cheap labor,
which was still six times what migrants could
have made in China.
- Even with the need for cheap labor, antiChinese racism was strong in the West
- In 1852, California passed a tax on Chinese
miners to force them from the profession
-
-
-
-
-
In 1869 the transcontinental railroad was
completed, putting 10,000 laborers out of
work. Their movement into other professions
depressed the new industries wages
From 1873-1878 there was a severe
recession. People blamed the Chinese for
American joblessness.
The anti-Chinese sentiments made their way
from the local and the state level into
national politics
1879 a Congressional Bill limits the number of
Chinese passengers allowed on arriving ships,
but it is Presidentially vetoed
1880 Presidential election, both parties’
platforms called for limits to Chinese
immigration
1880 Supplemental Treaty allowed the U.S. to
regulate/limit/suspend immigration
1882 Chinese Exclusion Act: a 10 year
moratorium on Chinese labor migration. It
was renewed several times and extended
indefinitely in 1904, remaining law until 1943.
- Exceptions included those who had
documentation from the US stating they
had arrived before Nov. 17, 1880, OR
those who had documentation from
China saying they were merchants,
students, teachers, or travelers
- Enforcement was difficult, and in 1884
Congress made the certificate of entry
the only valid evidence to establish right
to reentry
1888 Scott Act barred a Chinese immigrant’s
return, even with the entry certificate
Act of May 5, 1892 authorized the
deportation of Chinese people “unlawfully in
the U.S. The Act also required current
laborers to apply for a certificate of
residence, which would be issued only on the
affidavit of a “credible” (read: white) witness.
They must obtain the certificate within a
year.
1893 McCreary Act extended the deadline 6
months.
J. Field dissents, saying that there is actually a
difference between exclusion and
deportation, especially for those who came
here lawfully. Here, there is punishment for a
failure to obtain the certificate of residence.
Punishment requires an indictment, trial, and
conviction.
C.J. Fuller dissents, largely on the same
grounds as J. Field: deportation is different
from the political right to exclude because
the right to expel is the right to deprive “that
which has been lawfully acquired” – “No
euphemism can disguise the character of the
act: it directs judicial function and inflicts
punishment without a judicial trial. This is
legislative banishment, and is void.
-
Wing Wong v. United States (1896)
- Wing Wong and others were sentenced to
hard labor before deportation.
 J. Shiras reasons that judicial trial is required
for an “infamous punishment” like hard labor.
Act of May 5, 1892 effectively created a
criminal provision, which invoked 5A and 6A
constitutional protections

-
Chinese Exclusion Cases
Chae Chan Ping v. United States (1889)
- CCP left the US to visit his family in China.
While he was in China, the Scott Act made his
re-entry certificate invalid
 SCOTUS holds denial of re-entry for CCP was
proper and not forbidden by the Constitution
or Int’l law (see Burlingame Treaty)
- J. Field reasons that regulation of immigration
is a feature of national sovereignty and that
since both the Scott Act and Burlingame
Treaty were the supreme law of the land, the
last expression of sovereign will (i.e. policy)
must control
Fong Yue Ting v. United States (1893)
- Three Chinese laborers were detained for
failing to have a certificate of residence as
required by the Act of May 5, 1892. One
laborer was unable to produce a white
witness to confirm he was in the country
lawfully.
 SCOTUS holds that the right to deport
noncitizens is just as “absolute and
unqualified” as the right to prohibit their
entry
- J. Gray draws from Vattel and Ortolan, who,
respectively, argue that this power is about
national security and that foreigners are here
by permission, not by right.
- The process provided by Congress (to have a
judge inquire as to why a person does not
have a certificate of residence) is the process
that is due here – it’s ok for this fact finding to
be done by executive officers too, with no
judicial review
- J. Brewer dissents, arguing that deportation is
a deprival of life, liberty, and property, thus
requiring due process – the Scott Act puts the
due process under the discretion of the
executive, but the Constitution requires more
-
Yick Wo v. Hopkins (1886)
- An ordinance in SF was discriminately applied
against Chinese laundromats.
 SCOTUS rules that alien enjoy 14A equal
protection. Here SF was applying a law in a
clearly discriminatory way.
Anti-Communist History
-
pre-1990 INA Section 212(a)(28) listed
excludable aliens, including “anarchists”
and members of the communist party, or
those who advocate for communist
doctrines
Kleindienst v. Mandel (1972)

-
-
-
This case is the first in which the court agrees
to look at the reason behind the exclusionary
rule. This is no longer a political question. The
question does not invoke the compelling
interest standard, but it’s also not the
political question doctrine
(Facially legitimate) and (bona fide) or
facially (legitimate and bona fide)
SCOTUS holds that Mandel’s denial of entry
does not infringe on American citizen’s 1A
right to receive information and ideas
J. Blackmun reasons that if the Court were to
accept 1A challenges to exclusion, the
exceptions would swallow the rule of plenary
power in the realm of immigration control.
Exclusion is inherent in sovereignty. Chae
Chan Ping.
“When the executive exercises exclusion
power on the basis of a facially legitimate and
bona fide reason, the courts will neither look
behind the exercise of that discretion, nor
test it by balancing its justification against the
1st A.”
J. Marshall dissented, arguing that the gov’t
was denying Americans the chance to hear
Mandel speak, and that the gov’t should have
to prove that their exclusion is “necessary to
protect a compelling interest.”
Naturalization
Citizenship
Jus Soli: citizenship determined by place of birth
- 14 A: all persons born or naturalized in
the United States are citizens
- The Allotment Act conferred citizenship
on Indians, overruling the Elk v. Wilkins
decision.
Jus Sanguinis: citizenship determined by
parentage INA 301(c), (d), (e), (g), (h); 308 (2), (4),
and 309
- The law at the time of birth governs
(Congress has changed this several times)
Law used to be the law that citizenship
went to children born abroad to citizen
fathers who had lived in the U.S. It
wasn’t until early 1900s after the 19 A
that it was sex neutral.
For children born outside U.S. territory
- If both parents are citizens, the child is a
citizen at birth so long as at least one
parent resided in the U.S. prior to the
child’s birth. Weedin v. Chin Bow
- If one parent is a non-citizen, the citizen
parent must have been present in the
U.S. for at least 5 years before birth,
including at least 2 years after the age of
14.
-
-
“Nationals” is a broader category than “citizens”
- (Children born to Indians maintaining their
tribal status were not citizens, but were
nationals) (overturned)
- Nationals term was also useful category for
people born in the territories, excluded from
the 14 A by the insular cases. This is no longer
true, with the exception of American Samoa,
where people are nationals but not citizens
Naturalization History
Evolution tends to add requirements, except for
the elimination of the racial requirement
Other requirements:
- Residence period (5 years of lawful
permanent residency, or shorter if married)
- Oath of renunciation of other statehood
- Good moral character (semi defined in
section 101(f): list of factors that are
incompatible with good moral character)
- Pledge to the Constitution
Racial and national origins bars on naturalization
were only eliminated in 1952. INA 311.
- 1790-1870: only whites could naturalize. This
came under attack post Civil War to expunge
the Dred Scott decision. Racism against
Indians and Asians prevented full
abandonment of racial barriers
- 1870-1952: White/Black divide. 1882 explicit
disqualification of Chinese people from
citizenship (unique in singling China out).
During WWII, U.S. was embarrassed to be
compared to Nazi Germany for being the only
two nations in the world with racial
restrictions on naturalization. 1940, Congress
opened Naturalization to the Western
Hemisphere. In 1952, there was wholesale
reform
INA 1965 amendments
- Abolished national origins formula, replacing
with an Eastern Hemisphere per-country limit
of 20K, and a total limit of 160k for all Eastern
states
- 120k limit from Western Hemisphere with no
country limits
- Eastern Hemisphere preferences for close
relatives, occupational skills etc
1990 Immigration Act (current form)
- See chart below
- Overlayed by per country limit rules
Applying to FS and EB
Numerically unrestricted
Numerically restricted (421,000 - largely unchanged since 1990)
Immediate Relatives
§201(b)(A)(2)
Family Sponsored
§203(a)
226,000+
Employment Based
§203(b)
140,000+
“Diversity” § 203(c)
55,000
Refugees
50,000+
Highest priority immigrants
FS1:
Citizens’ unmarried
son/daughter (older
than 21, so not in
the IR category)
23,400
EB1:
1A “Priority workers,” those of
extraordinary ability,
(“sustained national or
international acclaim”). No
need to have an employer.
Some countries don’t have ties
to the U.S. because there was
historic discrimination, and
now the system prioritizes
people with either connections
or money/education.
System comes from
the 1980 Refugee Act
set a presumptive
number of 50,000 and
auth president to issue
annual number, and a
regional allocation
Was 70k, then Syrian
crisis, 85k in 2016,
107k for 2017
Spouses, Parents, and
Children of U.S. citizens
“Spouses”
“Parents” are only eligible to
be immediate relatives to
citizens who are older than
21. (This means that children
of undocumented
immigrants cannot get
immigrant status for their
parents until age 21)
“Children” defined in 201(b):
below the age of 21 and
unmarried. Step children
may be a child if the
marriage took place before
the child was 18, adopted
children may be a child if the
adoption took place before
age 16
FS2: Lawful
Permanent
Resident’s spouse or
unmarried
son/daughter
114,200
(2A): 77% of the
slots reserved for
spouses and minor
children
(2B) unmarried
nonminor children
FS3: Citizen’s
married
son/daughter
23,400
FS4: Citizen’s (21+)
brother/sister
“Chain migration”
came from anxiety
over this provision,
but Trump admin
treated the term as
this whole chart
1B: Outstanding professors
and researchers. Must have a
job offer.
40,000
1C: Executives or Managers of
a multinational corps (This is
the bulk of the EB1 workers)
EB2: Professionals w/
advanced degrees whose
services are sought by an
employer (40,000)
EB3: Professionals with
Bachelor’s degrees or workers
who could fill positions which
Americans do not want
(40,040) (unskilled workers
capped at 10,000) Labor cert
and job offer required.
EB4: Special immigrant
workers, “other” religious
workers (invites fraud), special
immigrant juveniles - children
in the U.S. adjudicated as
dependent on state fam court
(9,940) this category is
scheduled to expire Feb 18,
2022, extension?
EB5: investors (employers, not
employees) “millionaires’
preference”
10,000
This diversifies the immigrant
stream (so that it is not as
dominated by Latin America
and Asia) This was to get Euro
immigrants, and, tagging along,
Africa
55,000 visas per year,
distributed regionally, drawn in
a LOTTERY. People submit
electronic applications to be
entered.
 Must be from an
authorized country.
 Must have HS
education or
 Within 5 years
preceding the
application: at least 2
years’ experience in
an occupation that
requires at least 2
years’ experience
23M applications / ~0.1%
chance
Winning applications often take
more than 1 stop b/c it
attaches family, taking up more
than 1/55,000
These categories are overlaid by per-country rules (with
some exceptions) - based on place of birth
Total FS and EB immigrants from any given country
cannot exceed 7% of the total FS/EB immigration
There used to be more
unrestricted types. But they
were put into the EB4 “special
immigrant” category
In 1990, the target immigrants to the U.S. was 675k per year for everyone. Because
there were 254k unrestricted, Congress put a 421k cap on this batch of restricted
category, projecting that these numbers would be steady
Derivative Status: Section 203(d) allows the spouse or minor child to be admitted as
derivatives at the same time as a family member qualifying for admission under
203(a-c). They count against the quota for the category of the principal. Relationship
must have existed at the time of the principal’s migration. This lowers the number of
principals who can get in that category. Applies to both accompanying and following
family. Does NOT apply to IR column.
Trump suspended the
program altogether,
Biden put it at 125k
(campaign promise)
Overseas Refugee
Program: U.S.
voluntarily reaches out
into other countries
where there are
refugees or people
who would like to be
refugees and brings
them here
NOT the asylum
system
Immigration Attack
Family
Is the alien related to a U.S. citizen?
- If the alien is a Spouse  Immediate Relative. No numerical cap.
- If the alien is a Parent, the U.S. citizen must be over age 21 Immediate Relative. No numerical cap.
- If the alien is a Child,
- Is the Child under the age of 21 and Un-married?  Immediate Relative. No numerical cap.
- If the Child is adopted, the adoption must have taken place before the age of 16
- If the Child is a step child, the marriage must have taken place before the child was 18
- Is the Child above the age of 21, but Unmarried?  FS1. Cap and Subject to Per Country Rules.
- Is the Child married?  FS3. Cap and Subject to Per Country Rules.
- If the alien is a Sibling, the U.S. Citizen must be over age 21  FS4. Cap and Subject to Per Country Rules.
Is the alien related to a Lawful Permanent Resident?
- If the alien is a Spouse  FS2A. Cap, 77% reserved for 2A, and subject to Per Country Rules.
- But consider the section on validity of marriage, in red below
- If the alien is a Child and unmarried
- And is a minor  FS2A. Cap, 77% reserved for 2A, and subject to Per Country Rules.
- And is not minor  FS2B. Cap, 23% allowed for 2B, and subject to Per Country Rules.
- If the alien is a Parent or Sibling or a married Child  no benefit. Seek citizenship for the relative or otherwise seek EB or
Diversity lottery.
Employment
Immigrants
Family Based Immigration
Immigrant visas are processed by Priority Date:
the date on which a visa petition is filed, OR the
date on which the employer filed for labor
certification.
The Visa Office in the State Department adds a
person to the Waiting List when their applications
are Documentarily Qualified. The list is ordered by
PD. PDs convert from one FS category to the
another. 8 C.F.R. 204.2(1)
Diversity is processed via lottery numbers rather
than PD.
PD does not necessarily move forward; it may
move backwards depending on PDs of the people
who recently become DQ.
Child Status
-
-
For IR, Child must be a Child at the time of
visa petition
For a Child whose LPR parent naturalizes
when they are a still a child, the application
converts to IR
For LPR’s Child under FS2(a)
- What is the age of the child when the
Visa becomes available, Minus the time it
took to approve the visa, but not the
time it took to become current
Validity of Marriage
Immigration Marriage Fraud Amndmts of 1986
INA § 216: all persons who obtain LPR status
based on a marriage that is less than 2 years old
at the time, receive such status “on a conditional
basis” valid only for two years. The DHS may
terminate the status in those two years. (it was
thought that sham marriages would not last two
years)
§ 216(b): If the Secretary of Homeland Security
finds that the marriage was to secure immigration
or has been annulled or terminated, or paid for,
the Secretary shall terminate the LPR status
The Secretary will also terminate status if the
alien does not file for removal of the conditional
basis or submit to a personal interview. §216(c)(2)
§ 216(c), d(1): The conditional basis is removed
after two years if the marriage was legitimate and
the joint petition (I-751 form) was filed on time
(within 90 days of the end of the second year of
the conditional period) to convert the conditional
status to LPR
in practice
- I-751 triggers a “receipt form” with an 18month extension of the conditional period
- Applying to naturalize after 3 years pushes
adjudication forward, and USCIS then
adjudicate the petition to remove the
condition
216 does not apply to spouses in a derivative
beneficiary context. B/c when Congress did not
see a problem with people marrying potential
immigrants.
If the conditional basis is not removed, the person
and any derivatives of the marriage becomes
deportable. There is a form to appeal to an
immigration judge
- Preponderance of the Evidence standard is
applied to termination of permanent resident
status.
§ 216(c)(4) requires a conditional LPR wants to file
for the condition removal petition alone to seek a
waiver of the joint petition requirement.
216(c)(4)(A): extreme hardship waivers
(difficult to get)
- 216(c)(4)(B): marriage was terminated but
entered into in good faith by alien, / alien not
at fault waiver for not meeting joint petition
requirement (easier)
- 216(c)(4)(C): battered spouse waiver (easier)
(but violence must be very serious)
- 216(c)(4)(D): battered after marriage
ceremony
Note the (c)(4) does not cover all situations that
would pass the Bark test but later fall apart
-
Bark v. INS (9th Cir. 1957): Sham Marriages: the
key issue is whether the parties did not intend to
establish a life together at the time they were
married.
must be able to prove the genuineness of
the marriage under a clear and
convincing evidence standard for the
marriage to be the basis of LPR status –
245(e) Immigration Marriage Fraud Act
Matter of Luna (BIA 1983): The Validity of the
marriage is determined according to the law of
the place of celebration, whether in or outside of
the U.S.
- The marriage must also be lawful in the
intended place of residence in the U.S.
See Matter of Darwish (BIA 1973) (a
polygamous marriage), see also Matter
of Zappia (BIA 1967) (marriage between
first cousins obtained in SC where
residence was in WI)
- This rule barred same sex spouses until
2013.
Applications may not be granted for marriages
that were legally terminated by the time that the
benefit is conferred. Matter of Boromand (BIA
1980)
Immigration may not be granted if the spouses
have legally separated under a formal, written
separation agreement. Paez-Basto v. Acting Set’y
(M.D. Fla. 2014)
Sham divorces would allow sons and daughters to
get higher FS preference. Divorces will not be
recognized when the parties continue to live
together and own property jointly.
(D) Application of grounds
The grounds for inadmissibility of aliens
under subparagraphs (A) and (B) shall apply
to immigrants seeking admission or
adjustment of status under paragraph (2) or
(3) of section 1153(b) of this title. (EB2 and
EB3)
Employment Based Immigration
Labor Certification: EB2 and EB3
INA 212(a)(5) Labor certification and qualifications
for certain immigrants (an inadmissibility ground)
(A) Labor certification
(i) In general
Any alien who seeks to enter the
United States for the purpose of
performing skilled or unskilled labor is
inadmissible, unless the Secretary of
Labor has determined and certified to the
Secretary of State and the Attorney
General that(I) there are not sufficient workers
who are able, willing, qualified (or
equally qualified in the case of an alien
described in clause (ii)) and available at
the time of application for a visa and
admission to the United States and at
the place where the alien is to perform
such skilled or unskilled labor, and
(II) the employment of such alien
will not adversely affect the wages and
working conditions of workers in the
United States similarly employed.
Under threat of random /
selective audit
Labor Certifying Officer will either approve,
require additional info, notify selection for
audit, or deny the application.
Denials can be appealed to the Board of Alien
Labor Certification (BALCA)
If approved, the certification must be filed
with USCIS within 180 days along with the
employee’s visa petition on Form I-140
-
(ii) Certain aliens subject to special rule
(Equally Qualified)
For purposes of clause (i)(I), an alien
described in this clause is an alien who(I) is a member of the teaching
profession, or
(II) has exceptional ability in the
sciences or the arts.
General rule: cannot hire someone subject to this
standard if there is a US worker who is qualified
(meets job qualifications) BUT for people in (ii)
you can pass over citizens with minimum
qualifications if they’re not AS qualified as your
desired alien candidate
2.
3.
4.
A labor certification may be rejected if the job
“requirements” are too strict according to the
Specific Vocational Preparation Level assigned to
the job title
- Exceptions to this level can be sought if
there is a Business Necessity: See Digital
Technology Solutions
1. The job duties and requirements bore a
reasonable relationship to the
occupation
2. Was essential to perform the job in a
reasonable manner
Exceptions to Labor Certification
Labor Certification
1.
Employers file a labor certification application
directly with DOL: Form ETA 9089.
- Used to be done job-by-job
- Replaced by Program Electronic Review
Management (PERM)
- Employer files electronically with the
DOL
- Vast majority of the applications will be
approved if they meet the procedural
requirements without any factual
investigation
- Employer attests that they
comply with the statutory
requirements
Schedule A: (statutory supplement pg. 714) DOL
has made a categorical determination that
212(a)(5)(A)(i) is satisfied
- Especially nurses and physical therapists
- Exceptional ability in the sciences or arts
(not performing arts)
EB-1:
-
For example, (A)
Consider Visinscaia v. Beers on how
exceptional a dancer needs to be (agelimited competition, esoteric field not
enough)
National Interest Waivers (203(b)(2)(B)(i))
Waives job offer requirement (and therefore
labor certification)
In the early days, lawyers were creative and
aggressive in seeking these waivers, now much
harder to obtain
- 1998: NY Dept of Transportation case put
strict standards on what is in the national
interest
- Benefit from the person has to be
national in scope
Dec 2016 Dhanasar case
- National Interests Waiver Standard:
- Endeavor has to have
1. Substantial merit and national
importance
2. The foreign national is well positioned to
advance the proposed endeavor
3. On balance, it would be beneficial to the
U.S. to waive the job offer requirement
and certification
Teaching will not be regarded as national
importance; research more likely
Entrepreneurs can enter through National Interest
Waiver -- Investments that will employ people in a
manner that satisfies the NI criteria
EB-5 does not require LC, but are Conditional on 2
years investment. Dried up demand.
Non-Immigrants
K-1 fiancé visa allows a non citizen to be admitted
to the U.S. on the condition that parties marry
within 90 days of admission.
 Once married, the non citizen can adjust
status to lawful permanent resident
K-3 visa allows a person who married a U.S. citizen
overseas to enter the U.S. pending their
immigrant visa petition.
Tourist and Business travelers:
Limited work visas: E, H, I, L
L (transferees of multinational
companies - can lead to adjustment of
status under EB1(c) - not numerically
limited)
- Former categories split off from H for
separate regulation: O, P, Q, R,
- O: non-immigrants with extraordinary
ability
- P: other lesser athletes authors
entertainers
- Q: so-called int’l cultural exchange
programs (created for EPCOT center)
- R: religious workers
Exchange programs: J
- E.g., Fulbright’s, au pairs
Students: F, M
- M for vocational schools
Passing through: C, D
- C: for transit through the U.S. (layovers)
- D: for crew members who have layovers
Diplomatic: A, G, NATO
- A: foreign diplomats,
- G: reps and employees of int’l orgs
- NATO
Transitional Visas: K, N, S, T, U, V
- Temporary statuses with contemplation
of later getting LPR status
- K: for 90-day fiancés of U.S. citizens
- N:
- S
- T, U: protection visas for victims of
crimes, who are cooperating with
prosecution
- T: trafficking (sex or labor)
- U: victims of other crimes (much
more discretionary) cap 10k
- V: spouses and minor children of LPRs
-
B-Visas for Business or Pleasure
B1: temporary for business (coming for
conferences e.g., but not to work)
B2: Temporary for pleasure (tourism, personal
affairs)
H-visa for temporary work
H1B: Specialty Occupation, requires theoretical
and practical application of a body of highly
specialized knowledge. Capped, but with
important loopholes that raise the # admitted in
practice. Mostly CS and electrical engineering.
- Can be looking for permanent job (Dual
Intent ok), no foreign residence needs to be
maintained.
- BA degree or higher
- Not including O and P categories
H2: Temp or seasonal employment, requires labor
certification. Need to maintain foreign residence.
- H2A: agriculture. Extremely expedited
approval process for timely harvest.
Uncapped
- H2B: Other. Capped. Landscaping,
housekeeping, amusement park workers.
DACA
Inadmissibility
101(a)(13)(A) defines admission and admitted as a
lawful entry of the alien into the U.S. after
inspection and authorization by an immigration
officer.
- This provision used to be about entry
- EWI: Entrant without Inspection,
subject to deportation → those
whose are not admitted and are
seeking admission
Special rule in 101(a)(13)(C) (Fleuti Doctrine): LPRs
shall not be regarded as seeking admission
UNLESS
- They gave up LPR status
- They were gone more than 180 days
(brief)
- They engaged in illegal activity after
departing (innocent)
- Left while under removal / extradition
proceedings (casual)
- Committed an offense under 212(a)(2)
(criminal inadmissibility grounds) unless
granted a waiver under 212(h)
o Non innocent people who
cannot take innocent trips
- Trying to sneak back in
Inadmissibility Grounds (212(a))
1.
2.
3.
4.
5.
6.
7.
8.
9.
Health related grounds
Criminal and related grounds
Security and related grounds
Public charge
Labor cert and other qualifications
Illegal entry and immigration violations
Documentation requirements
Persons ineligible for citizenship
Previously removed (and other
immigrant violations)
10. Truly miscellaneous
- Practicing polygamists
- Unlawful voters
- Renouncing U.S. citizenship to avoid
taxes
212(g) - Waiver of health grounds
212(h) - Wavier of criminal grounds
- (can apply to some deportability situations
– see below)
- 212(h)(1)(A) has 15 year passage
requirement
- 212(h)(1)(B) is for extreme hardship to the
citizen or LPR spouse/parent/child
- 212(h)(1)(C) is for VAWA self-petitioners
212(i) - Waiver of fraud grounds
1 – Public Health (212(a)(1))
212(a)(1)(A)(i): diseases determined by the
Department of Health and Human Services to be a
communicable disease
- Tuberculosis
- Syphilis
- Gonorrhea
- Leprosy
- Diseases quarantinable by presidential order
- Diseases that are a part of a public health
emergency
212(a)(1)(A)(ii): a set of vaccine preventable
diseases
- Measles, mumps, and rubella
212(a)(1)(A)(iii): applicants with a physical or
mental disorder, and accompanying threatening
behavior
212(a)(1)(A)(iv): drug abusers and addicts
Waivers available to immigrants under 212(g) or
non-immigrants under 212(d)(3)(A)
2 -- Criminal Grounds (212(a)(2))
WAIVERS
212(d)(3)(A): If talking about nonimmigrants then
practically all inadmissibility grounds are waivable
(not some security related grounds)
For Immigrants:
(A) Conviction of Certain Crimes
(i)
Any alien convicted of…
I.
A crime involving moral
turpitude
II.
A crime involving a controlled
substance (not 30g or less of
pot)
(ii)
(i)(I) does not apply if
(I)
committed under age 18 and
more than 5 years before
seeking visa/entry
(II)
the max penalty was less than a
year and the alien was not
actually sentenced to more than
6 months
(B) Multiple criminal convictions
Any alien convicted of 2 or more offenses for
which the ag sentences were 5 years or more is
inadmissible
CIMTs
(Aggravated Felonies) – CAUTION-- AFs are not
necessarily inadmissibility grounds, but could
count as MT crimes
237(a)(2)(A)(iii) and 101(a)(43) - aggravated
felonies
 Deportable if committed any time after
admission
 Includes murder, drug trafficking,
firearms trafficking, rape/sexual abuse of
a minor, money laundering of funds over
10,000, “crime of violence where term of
imprisonment is at least 1 year,” theft or
burglary offense (at least 1 year),
offense involving fraud in which loss to
victim is at least 1 year
 Definition changes apply
retroactively
Crime Involving Moral Turpitude (case law
definition) an act of baseness, vileness or
depravity in the private and social duties which a
man owes his fellow men, or the society in
general, contrary to the accepted and customary
rule of right and duty between a man and man
“Reprehensible conduct and some degree of
scienter, whether specific intent,
deliberateness, willfulness, or recklessness
(some culpable mental state)”
- Malum in se (in and of themselves
wrong) and not merely malum
prohibitum (societally created offenses,
e.g. licenses, regulations)
- Evil intent (scienter)
- Recklessness often sufficient, but we would
want to see a higher level of harm for lower
levels of mens rea
Buckets of CIMTs
- Theft
- Serious property crimes (arson, burglary,
embezzlement)
- Fraud
- Forgery, perjury
- Violence (a more recent development)
- Serious crimes against persons (murder,
voluntary manslaughter, rape,
aggravated assault, kidnapping)
-
“Conviction”
Conviction: (101(a)(48)(A)) far broader than how
states define conviction for state law purposes
- Very much on the table for reform (Biden
admin is working on this)
Two prongs / options
 Formal judgment of guilt… entered by
the court (E.g. finding guilt at the
conclusion of a bench trial, accepting the
jury’s guilty filing, accepting the
defendant’s guilty plea (this is a court
action, not non-citizen’s action)
 If an adjudication of guilt has been
withheld, where judge does not formally
enter the defendant’s guilt, but
i.
A jury found the non citizen
guilty / non citizen has
entered plea of guilty / non
ii.
citizen has entered a plea of
nolo, or admission to
sufficient facts to warrant a
finding of guilt (Alford plea)
AND
Some punishment, penalty,
restraint of liberty
Vartelas v. Holder (CB pg. 581)
(C)(v): people who have been convicted cannot
take innocent trips
This does not apply retroactively to people
convicted before this provision was enacted and
effective (1996)
3 – Security / Foreign Policy / Terror
212(a)(3)(A): inadmissibility based on national
security grounds
- Entry to engage in activity that threatens U.S
security
- Intent to engage in espionage
- Overthrow of the govt by unlawful
means
- Other unlawful activities
212(a)(3)(C): inadmissibility based on foreign
policy grounds
- Sec of States has Reasonable ground to
believe the alien’s entry or proposed
activities would have potentially serious
adverse foreign policy consequences
- Exceptions: candidates for foreign govt
office may not be excluded solely for
their speech or expected speech
Exceptions: prevents exclusion on the
basis of the aliens past, current, or expected
beliefs, statements, or associations which would
be lawful in the U.S. unless the SoS personally
determines that their entry would compromise a
compelling U.S. foreign policy interest
Compelling FP interest is a significantly
higher standard than “potentially seriously
adverse FP consequences”
Immigration courts may not second guess
determination under 212(a)(3)(C) as long as the
SoS provides a “facially reasonable and bona fide
reason”
212(a)(3)(B): inadmissibility based on terrorismrelated grounds
After 9/11 immigration control and
national security became increasingly
intertwined
Defining terrorism (“A very broad net”)
Any unlawful use of a weapon or
dangerous device “other than for mere
personal monetary gain” INA
212(a)(3)(B)(iii)(V)(bb)
o Spouses and children of these persons
may also be inadmissible. INA
212(a)(3)(B)(i),(ii).
Engaged in terrorist activity is defined
broadly in 212(a)(3)(B)(iv)
o Includes providing material support for
terrorist activity or orgs
Terrorist Orgs
- Membership in or endorsement or support of
can result in immigration and criminal
consequences
- INA 219 sets out how the SoS can designate
terrorist orgs
Tier I
- Must threaten U.S. security (non
justiciable political question)
- But courts can review if an org is foreign
and engages in terrorist activity
- Any person, citizen or not, who provides
material support is subject to severe
criminal penalties
Tier II
- Has only immigration consequences, not
criminal or asset forfeiture
Tier III
-
Includes any group of two or more
individuals, whether organized or not,
which engages in terrorist activity or
inciting it, preparing or planning a
terrorist activity, and gathering
information on potential targets
212(d)(3) makes almost everything waivable for
nonimmigrants including the terrorist grounds
- 212(d)(3)(A) is a waiver for
nonimmigrants
 212(d)(3)(B) is a narrow special waiver in
relation to terrorism – applies to
immigrants and non immigrants
o Designed for people who
contributed $ to armed groups
that the U.S. supports
(C) Misrepresentation
(i) fraudulently seeking a visa or other
documentation, or admission, or benefit provided
under this Act (INA)
(ii) false claims of citizenship, including to evade
employer sanctions provisions
(iii) waiver applies only to (i)
o 212(i) - Waiver of fraud grounds (Supp
143)
o Applies only to immigrants who is the
spouse, son, daughter of the U.S. citizen
or LPR if the refusal of admission would
cause extreme hardship on the
citizen/LPR
(D) Stowaways
(E) Smugglers
9 – Previous Removal or Unlawful Presence
4 – Public Charge (212(a)(4))
(A) Any person who in the opinion of the
consular officer at the time of application for
a visa or in the opinion of the AG at the time
of application for a visa, is likely at any time
to become a public charge is inadmissible
- Highly significant for the number of visa
petitions it disqualifies
212(a)(1)(A) - sponsor must show on Form I-864
that they can support all sponsored immigrants
plus their own household at a minimum of 125%
of the federal poverty line. Takes legal
responsibility if the immigrant becomes a public
charge and sponsor/petitioner did not support
them.
6 – Illegal entrants and immigration
violators (212(a)(6))
A)
(i)
(ii)
Aliens present w/o admission or parole
are inadmissible
Except for battered women and children
212(a)(9)(B): 3 or 10 year bars for single periods
of 180 days but less than one year (3), or greater
than one year (10) and then departed
212(a)(9)(C): permanent bar for an 1) aggregate
unlawful presence of more than 1 year / has been
ordered removed 2) thereafter attempts to
reenter unlawfully
222(g): if a nonimmigrant overstays a period of
authorized admission, his visa is void. New
admissions must be on the basis of a new visa.
212(a)(9)(B)(v): Waiver for extreme hardship for
U.S. citizens or LPRs… where the immigrant is a
spouse or son or daughter of the citizen or LPR
212(f) – Presidential Catch-All
gives President the right to “suspend entry of all
aliens or any class of aliens” where he “finds” that
their entry “would be detrimental to the interests
of the United States.”
This is a very broad grant of power. Trump v.
Hawaii. Court goes beyond Kleindienst’s “facially
legitimate and bona fide” reason review to the
extent of rational basis review (is entry policy
plausibly related to Government’s state
objectives?): Muslim Ban proclamation passes the
test
Nonimmigrant admissions
1.
2.
3.
4.
5.
Immigrant Admissions
Preliminary petition with USCIS to establish eligibility
for one of the non-immigrant admissions categories
Secure nonimmigrant visa from U.S. consular officer
- In person interview for all applicants aged 14-79
- Officer ascertains eligibility. If a waiver is
available, the officer can assist with the
application to be forwarded for adjudication
- Important issues: financial means are sufficient,
dual intent
Internal review
- INA 104(a) exempts individual visa decisions
from the SoS supervision, but the Dept. of State
has a de facto internal review
- Second reviewing officer may issue a different
decision (but not reverse the initial decision)
- Under doctrine of consular non-reviewability,
courts do not review consular decisions
Exceptions for visa requirement: Mexico and Canada
- Border Crossing Cards for Mexican citizens
- Canada exception admits for study or temp stay
with only passports
- Visa Waiver program (39 countries with specific
criteria)
- Cannot extend stay or change status
- Waive rights: cannot contest removal
Visa =/= period of admission. Overstaying period of
admission will void visa
0.
1.
2.
3.
Labor Certification
Visa petition filed by a family member (Form I-130) or
employer (Form I-140)
- Some can petition for themselves without an
employer (EB1, EB4, EB5)
- VAWA petitioners can self-petition
Visa processing:
- If immigrant visa is obtained outside of the
US:
o Endorsed petition is filed and
checked for completeness, held until
priority date is current
o When current, it is sent to local
consulate
- If immigrant visa is obtained through
adjustment of status in the US
At the port of entry
- CBP officer inspects docs
- If he finds no disqualifications based on admission
category, inadmissibility grounds, and supporting
documentation, he will keep the immigrant visa
and make an LPR admission notation on the
passport.
- He will forward papers for issuance of a
Permanent Resident Card, Form I-551 (green card)
good for 10 years - must renew the green card
every 10 years (to keep security features of card
current)
212(d)(5)(A) allows Parole - staying without admission - for urgent humanitarian reasons or significant public benefit
 When parole ends, they are “returned to custody” often to be treated as an application for admission
 Parole may make someone eligible for adjustment of status to LPR
Fiction: that someone paroled into the U.S. is not “in” the U.S.
Since 1996, if you are paroled into the country, you have not been admitted
 Still vulnerable to inadmissibility grounds
Advance parole: allows noncitizens in the U.S. to leave and then return (E.g., DACA)
Parole in place: for noncitizens who entered w.o. Inspection and are unlawfully present, but who have a spouse, widow(er), parent,
son, or daughter in the U.S. military
Crime category (defined by INA)
inadmissibility
deportability
CIMTs
x
x
Controlled substance offenses
x
x
Money laundering
x
Firearms offenses
x
Domestic violence offenses
x
Aggravated Felonies
X (but consider that this can also be a CIMT or Controlled Substance offense)
Adjustment of Status
USCIS examiner makes all the same determinations
about inadmissibility as a consular officer would for
an immigrant visa petition.
 But inadmissibility grounds for unlawful
presence only trigger if the alien leaves
Criteria for adjustment of status: INA 245(a) and (c)
245(a)
- The status of an alien who was inspected and
admitted or paroled into the United States or the
status of any other alien having an approved
petition for classification as a VAWA selfpetitioner may be adjusted by the Attorney
General, in his discretion and under such
regulations as he may prescribe, to that of an
alien lawfully admitted for permanent residence
if (1) the alien makes an application for such
adjustment, (2) the alien is eligible to receive an
immigrant visa and is admissible to the United
States for permanent residence, and (3) an
immigrant visa is immediately available to him at
the time his application is filed.
245(c)
- 245(c)(2) bars adjustment for those who worked
w.o. Authorization
- Does not apply to immediate relatives NOR
to special immigrants (H, I, J, K)
- 245(c)(8) bars aliens who was employed while
the alien was unauthorized or has violated the
terms of the nonimmigrant visa
- (c)(2) exception gets read into this section
too
Deportability
No equivalent of 212(f) - President cannot invent
new grounds for deportability
INA 237(a)
1. Inadmissible at the time of entry or of
adjustment of status or violates status
- INA 237(a)(1)(A) - Noncitizens are
deportable if they were inadmissible
when they entered (e.g., all
inadmissibility grounds can become
deportability grounds) - no time limit
o But see 237(a)(1)(H) Waiver for
spouse, parent, sons, or
daughters of a U.S. citizen or
LPR
o The analogous inadmissibility
waiver (212(i)) is not eligible to
parents
- INA 237(a)(1)(B) - period of admission
overstays are deportable
- INA 237(a)(1)(C) - noncitizens who fail to
maintain their status or violate the
conditions of their admission are
deportable - e.g. students who leave
school, temp workers who abandon their
authorized employment
2. Criminal offenses – see next block
3. Failure to register and falsification of
documents
- INA 237(a)(3) - non citizens who stay in
the U.S. for more than 30 days must
register, be fingerprinted, and provide
their U.S. address and written notice of
any address change
- INA 237(a)(3)(C) - non citizens who enter
via fraud are deportable - often thought
of as being mistakenly admitted
(deportable under 237(a)(1)(A).
o The use of fraudulent immigration
documents can make a non-citizen
deportable under a3C but only after
an extra procedural step.
o 247C imposes civil and criminal
penalties, and the adjudication is
separate from the removal
proceeding
4. Security and related grounds
5.
-
-
6.
A. Similar to 212(a)(3)(A) on inadmissibility
B. Terrorist activities
C. Foreign policy
D. Nazi persecution, genocide, torture,
extrajudicial killing
 See 212(a)(3)(E)
E. Severe violations of religious freedom
 See 212(a)(2)(G)
F. Recruitment of use of child soldiers
 Same was 212(a)(3)(G)
Public charge
INA 237(a)(5) makes deportable any person
who becomes a public charge from causes
that did not arise since entry
Case law has limited this to rare cases where
1. Public assistance program imposed
an obligation to repay the agency
2. The agencies demand for
reimbursement has not been
satisfied
Unlawful voters
212(h) waiver of crime-based inadmissibility can
apply to some deportability situations
- If a LPR has departed and has been
readmitted after committing the offense
- If an LPR is seeking admission at a port of
entry
- If an LPR stays in the U.S. after committing
the offense and is filing for an adjustment of
status
- Does NOT apply for people who do not have
a basis for adjustment of status
Crime Based Deportability – 237(a)(2)
See “Conviction” definition in Inadmissibility
Section.
Major categories of crime-based deportability
grounds in INA 237(a)(2)
- Moral turpitude
-
Aggravated felonies
Drug crimes
Firearms offenses
Crimes of domestic violence
Several miscellaneous offenses
Aggravated Felonies
DHS may charge multiple grounds for the same
underlying offense / facts
237(a)(2)(A)(iii) and 101(a)(43) - aggravated
felonies
 Deportable if committed any time after
admission
 Includes murder, drug trafficking, firearms
trafficking, rape/sexual abuse of a
minor, money laundering of funds over
10,000, “crime of violence where term of
imprisonment is at least 1 year,” theft or
burglary offense (at least 1 year), offense
involving fraud in which loss to victim is at
least 1 year
 Definition changes apply retroactively
 AFs are not necessarily inadmissibility
grounds, but could count as MT crimes
 Consequences
- Ground for deportation
- Mandatory detention
- Administrative removal
- Bars to discretionary relief
- May not obtain asylum, cancellation of
removal, or voluntary departure
- Bar to naturalization
- IF deported, technically permanently
barred from re-entry
o Criminal prosecution upon reentry
CIMTS
237(a)(2)(A)(i) - crimes involving moral turpitude
(CIMTs)
Deportable if (conviction required)
- ONE CIMT was committed within 5 years
after the date of admission and a
sentence of one year or longer may be
imposed
- TWO or more CIMTs not arising out of a
single scheme of misconduct no matter
the timeline or length of sentence
Step 2: determine the elements of the violated
statute
237(a)(2)(B) - drug offenses
- Deportable: Any (INA) conviction related to a
controlled substance,
o except for a single offense for
possession of 30g or less of
marijuana for personal use
 This exception is not
mirrored for inadmissibility
grounds
o Possession of drug paraphernalia,
driving under the influence can be
related to a controlled substance
- Deportation ground for any narcotic drug
addict includes any alien who is a drug abuser
or addict” no matter if there has been a
conviction (ii)
Relief from Removal
Categorical Analysis: Moncrieffe, Descamps, and
Mathis together
The approach to determining if a crime involves
moral turpitude must be “categorical” – that is,
the defendant’s specific conduct is irrelevant, and
the court looks at the statute of conviction versus
the statute of removal
Step 1: determine elements of removal ground
Step 3: analyze whether the elements of the
statute of conviction categorically satisfy the
removal ground
Step 4: Modified Categorical Approach:
determine whether the parts of the statute that
Private Bills - very rare today - not since 2012
Registry INA 249
- Authorizes LPR status for non-citizens
who entered before Jan 1 1972 and have
continuously resided. Must establish
they are not deportable for national
security or terrorism related reasons and
are a person of good moral character.
Gov’t must exercise discretion.
- Cutoff date has not been updated since
1986  Few people today are eligible –
in 2018, only 42 noncitizens used this
registry, in 2020, 53 people
3. Adjustment of Status INA 245
- Can be defensive in removal proceedings
if they qualify for an admission category
- E.g., marriage to a U.S. citizen during
deportation proceedings
4. Cancellation of Removal INA 240A effectively erases prior history for
removability purposes (but this history may
still be relevant for naturalization)
For LPRs - cancellation maintains their LPR status
despite removability (240A)(a))
- 240A(a)(1): must have been an LPR for at
least 5 years
- 240A(a)(2): must have resided in the U.S.
continuously for at least 7 years after
lawful admission
-
240(a)(3) Bars eligibility for LPRs
convicted of an aggravated felony
- 240A(d)(1)(A): Stop Time Rule: the
service of a notice to appear (NTA) in a
removal proceeding stops the clock on
continuous residence
- Purpose was to prevent people
from dragging out the
immigration proceedings to get
over the time bar
- Workarounds can be made by
DHS by “repapering” the case revoking the former NTA and
issuing a new one after the
requisite time has accrued
- NTA needs to have elements
including e.g., time and place
- 240A(d)(1)(A): Stop time rule also applies
when the noncitizen has committed an
offense referred to in 212(a)(2) that
render the alien inadmissible or
removable under 237(a)(2) or (4)
- Barton v. Barr: CB pg 660 - continuous
presence stops when an offense is
committed even though he was not
seeking admission at the time and that
212 was inapplicable to him as an
admitted LPR
- Disqualification for Agg Fels and Meriting
discretion
For Non-LPRs - confers LPR status (240A(b))
(capped at 4,000 a year)
- Much harder to get than 245A(a)
- Continuous physical presence for 10
years
- Stop time rule applies
- Continuous presence not kept if
within the 10 years the person
left the U.S. for any period
longer than 90 days or for any
periods in the aggregate
exceeding 180 days
-
-
-
Good moral character for 10 years
preceding the application for
cancellation
- Disqualified for Conviction of
CIMT, agg fels, 2+ DUIs
(rebuttable presumption),
- 101(f) has a list of things
inconsistent with good moral
character
Non-conviction of a set of disqualifying
crimes AND
Exceptional and extremely unusual
hardship to a spouse, parent, or child
who is a citizen or LPR
Removal Procedures
Normal Removal Procedure –
Immigration Court
In 1903 Yamataya v. Fisher:
Procedural due process does apply to deportation
of those who were admitted and have been
present long enough
INA 240 applies to both inadmissible and
deportable
Right to a notice: Notice to Appear
- May be served either personally or by mail,
or to counsel on record
- A NTA that does not have a time and place is
defunct and does not stop time
- (question if this also makes jurisdiction of the
immigration court invalid?)
- Gives authority of an in-absentia hearing if
no-show after the NTA
SCOTUS in Marcello v. Bonds: decision maker in a
deportation hearing may be a “special inquiry
officer” (e.g., who professionally might be both an
adjudicator and a prosecutor)
Serrano-Alberto v. Attorney General (3rd Cir.
2017)
- SA appeared pro-se, applying for asylum via
video conference
- Procedural due process requires a reasonable
opportunity to present evidence on their
behalf
Judge Krause opinion
- The IJ’s cumulative behavior: hostile
interaction + cutting applicant off +
unfamiliarity with the record
- Removal order will be overturned where
1) the procedure was deficient 2) and
prejudice resulted
- The potential for affecting the outcome
is enough Cham v. AG
Aguilera-Enriquez v. INA (6th Cir. 1975)
AE was being deported for criminal conviction
- At IJ level, he was not represented by counsel
Court: he was not deprived of “fundamental
fairness” by virtue of the lack of counsel
- But in a footnote the court did suggest that in
some circumstances a noncitizen may require
counsel to adequately present his case, and
the govt must appoint
GN: no courts have found lack of court
appointed counsel to be a DPC violation
Franco-Gonzalez v. Holder (U.S. District Court for
the Central District of California 2013)
Judge Gee opinion
- Permanent injunction decided under the
Rehabilitation Act (federal Disability Rights
Act)
- Holding: those with mental disabilities, such
that they could not represent themselves at a
deportation hearing, are entitled to a
Qualified Representative (could be lawyer,
could be law student, could be a trained
disability rights advocate, e.g.) either probono or at gov’t expense (govt can be
required to pay for reasonable
accommodation)
Children and representation
JMEF v. Lynch (9th Cir. 2016)
Ultimately dismissed for lack of jurisdiction
As govt witness, IJ Wiel claimed he could teach 3
and 4 year olds enough that they could
adequately represent themselves
INA 240(c)
Burden of Proof
(2) Burden on alien
In the proceeding the alien has the burden of
establishing(A) if the alien is an applicant for
admission, that the alien is clearly and
beyond doubt entitled (GN hates this
standard, pre 1996 the rule was if
inspecting officer does not decide clear
and beyond doubt, and then at trial it
was on the alien to prove by
preponderance of the evidence) to be
admitted and is not inadmissible under
section 1182 of this title; or
(B) by clear and convincing evidence,
that the alien is lawfully present in the
United States pursuant to a prior
admission.
(3) Burden on service in cases of deportable aliens
(A) In general
In the proceeding the Service has the
burden of establishing by clear and
convincing evidence that, in the case of
an alien who has been admitted to the
United States, the alien is deportable. No
decision on deportability shall be valid
unless it is based upon reasonable,
substantial, and probative evidence.
Non-Standard Removal Procedure
Most common form of non-standard:
- Expedited Removal (43% in 2018) 235(b)
- Seeking admission+ no docs/fraudinvalid docs/fraud in past  extend
interview w/ inspector + ø hearing
(235b1)
W/in 100m land/maritime border +
present<2yrs  ø hearing (235b1Aiii)
-
Reinstatement of Prior Removal Orders (39%)
Recent stats skewed by use of Title 42 (public
health removal under COVID conditions)
INA 238(b) - streamlined written procedures for
Administrative Removal of ag felons who are not
LPRs (or are conditional LPRs)
- Carried out in ICE
- Right to counsel at your own expense (if you
can find one quickly enough)
- Subject to judicial review
- Opportunity to request Withholding of
Removal / CAT claim
INA 241(a)(5) Reinstatement of Removal Orders
(second most common)
- If an alien was previously removed and
illegally re-enters and is caught, ICE can use
the same removal order and execute it again
w/o a formal hearing
- Opportunity to claim mistaken identity
- Credible fear screening for Withholding or
CAT
- Subject to judicial review, but this is not
review over the prior removal order
o Although a few circuits have allowed if that
prior removal order had a “gross miscarriage
of justice”
Moralez-Izquierto v. Gonzales (9th Cir. 2007)
upholding reinstatement
Due Process
*Yamataya v. Fisher (1903) CB pg. 306
10 years after Fong Yue Ting
- Govt argues Yamataya did not have any
entitlement to a hearing of any kind
J. Harlan opinion:
You cannot deport people without due process
Due process does not need to be a judicial trial,
but there must be due process if you are deporting
someone
o What she received was due process (had
hearing, even though she did not
understand the language or the
proceeding)
Knauff v. Shaughnessy (1950) CB pg. 309
Decided 4-3, dissenters were the dissenters in
Mezei -- Clark recused himself bc he was the AG
who denied Knauff the hearing
Knauff, an alien spouse of a U.S. citizen married
overseas during WWII was detained on security
grounds / “confidential information” and denied
admission
 She challenged on the lack of opportunity to
hear and rebut the claims against her
Majority opinion
Knauff has no grounds to complain / no cause of
action
o Even if the War Brides Act authorizes her
entry, that is still a privilege
 “Whatever the procedure authorized by Congress
is, it is the due process as far as an alien denied
entry is concerned”
Justices distinguish Yamataya as being about
deportation, and this is about denial of entry
Kwong Hai Chew v. Colding (1953)
Sailor gets job on U.S. merchant vessel, when he
returns the govt wants to exclude him
-
Court says he was an LPR and effectively never left
the country because this was his domestic job that
happened to go overseas
o His entitlement to a hearing is still good
after this trip
o He is assimilated to LPR status who has
never left the U.S. → entitled to
procedural due process upon return
*Shaughnessy v. Mezei (1953)
- Mezei has lived in Buffalo NY for 25 years.
Married, has family. Visits Romania to see his
dying mother. Has trouble getting into Romania
and then trouble getting back. He was excluded on
Security grounds with no hearing.
- Mezei was excluded but no country would take
him back, so he was suck on Ellis Island
- District Court found him effectively detained and
ordered him allowed to enter
J. Clark opinion
- Knauff controls.
- Unlike Kwong Hai Chew, he was gone a lot longer,
there were potential security concerns
 No due process (or, Knauff due process – that
authorized by Congress), even after living in
the country for 25 years… if you are seeking
entry on your return, you are excludable
Procedural Due Process Revolution
Goldberg v. Kelly (1970)
Welfare case
Demise of the right / privilege distinction
Does not matter if Congress did not have to give
you a benefit, if they take it away, they have to
give you a hearing
Board of Regents v. Roth (1972) and Perry v.
Sindermann (1972)
Public employment cases
Entitlement doctrine: if there is a legal rule that
says X are the criteria to receive the benefit, this is
a statutory entitlement
If dispute as to the fulfillment of the criteria, you
are entitled to a hearing
Matthews v. Eldridge (1976)
Balancing test for the sufficiency of process
Interests at stake for the individual
Interests of the govt
The gain to accurate decision-making that can
be expected from added procedural
protections
Landon v. Plascencia (1982) CB pg. 42
Background
Plascencia, a citizen of El Salvador, entered the
U.S. as LPR in March 1970. She traveled to Mexico
in 1975, and made arrangements to assist in illegal
entry of Mexican and Salvadorian nationals.
She was detained and excluded for aiding and
abetting illegal entry
She argues she was denied due process in her
exclusion hearing
J. O’Connor opinion
Court agrees that P can invoke the DPC, but does
not decide what process is due or whether the
process she received was insufficient
 An alien seeking initial admission has no
Constitutional rights regarding his application
Once an alien gains admission…
A continuous present alien is entitled to a fair
hearing when threatened w deportation
Only rarely held that executive administrative
procedures were inadequate, there is some
process due
In Knauff, we say that seeking initial admission is a
privilege, but once a person gains admission and
develops the ties to LPR status, they have
Constitutional rights
NO DISTINCTION BETWEEN PRIVILEGE AND
ENTITLEMENT - contra procedural due process
revolution
In Kwong Hai Chew v. Colding, Court held that a
merchant sailor asea for 5 months had never left
the U.S. and therefore the admission statute did
not apply to him
The court does recognize Constitutional rights for
aliens returning from a brief trip abroad
In Rosenberg v. Fleuti, the Court described Chew
as holding that a returning alien is entitled to a
hearing on the charges underlying any attempt to
exclude him
In Mezei, the Court rejected the claim of due
process rights regarding admission for an alien
who had left for 20 months
Plascencia was absent only a few days and the U.S.
concedes that she has a right to due process
Remand for inquiry as to the sufficiency of process
3 part balancing test from Matthews v. Eldridge
includes
1.
Interests at stake for the individual
2.
Interests of the govt
3.
The gain to accurate decision-making
that can be expected from added
procedural protections
J. Marshall dissent
Would find Plascencia’s process insufficient for
lack of adequate and timely notice of her charges
and her right to retain counsel and present a
defense
-
101A-13-c
•
Exception only applies to LPRs, not students
Difference between Plascencia and Mezei is length of
absence
INA 235(c): authority for secret procedure. Does not
preclude asylum or other possible relief.
INA 240: national security info is exempted from 240’s
guarantee of a removal hearing with a reasonable
opportunity to examine the evidence against them
Asylum
101(a)(42)(A); refugee: any person who is outside
any country of such person’s nationality or, in the
case of a person having no nationality, is outside
any country in which such person last habitually
resided, and who is unable or unwilling to return
to, and is unable or unwilling to avail himself or
herself of the protection of, that country because
of persecution or a well-founded fear of
persecution on account of race, religion,
nationality, membership in a particular social
group, or political opinion
- For purposes of determination…. A person
who has been sterilized or persecuted for
failure to undergo or for other resistance to a
coercive population control program…shall
be deemed to have been prosecuted on
account of political opinion / a person who
has a well founded fear that they will be
forced to undergo such a procedure subject
to persecution for such failure, refusal or
resistance shall be deemed to have a well
founded fear of persecution on account of
political opinion.
Imputed political opinion ok
Real ID Act 2005:
To establish that the applicant is a refugee… the
applicant must establish that race, religion, or
political opinion was or will be at least one central
reason for persecuting the applicant
241(b)(3)(A) – withholding of deportation (non
refoulement) - Non-discretionary Protection from
Removal - the AG may not remove an alien to a
country if the AG decides that the alien’s life or
freedom would be threatened in the country b/c
of the alien’s race, religion, nationality,
membership in a particular social group, or
political opinion
- Must be more likely than not INS v.
Stevic
-
-
Consider the political priorities of the era
(e.g. cold war era taking refugees only from
Communist countries)
Refugee law is being used to send messages
of condemnation about the home countries
If a refugee has a spouse or child who is NOT a
refugee, they may get derivative status under 207
 Once admitted under 207, they are
admitted as a “refugee” status,
 After a year, they can convert to LPR
under 209
209 - adjustment to LPR status (for both
refugees and asylees)
208(a)(1) - Discretionary Grant of Asylum - any
alien who is physically present in the U.S. or who
arrives in the U.S. (whether or not at a designated
port of arrival and including an alien who is
brought to the U.S. after having been interdicted
in international or U.S. waters), irrespective of
such alien’s status, may apply for asylum in
accordance with this section, or, where
applicable, section 235(b)
 Must show “well founded fear of
persecution” upon a return OR have
suffered past persecution there (consider
101 definition – including past
persecution goes beyond International
Law obligations under the refugee
convention – discretion here is therefore
less constrained)
Non-refoulment for torture is prohibited
regardless for motivation for torture
8 CFR 208.13(b)(2)((iii) - no requirement that you
individually would be singled out - pattern of
practice is enough
207 - overseas admission of “refugees of special
humanitarian concern to the U.S.”
Affirmative and Defensive petitions for asylum
 Presentation of self and asylum case Vs. as
defense to a removal proceeding (sometimes
during an expedited removal proceeding)
 Must assert fear, get credible fear
screening by asylum officer
 Can get limited IJ review if
denied, but if denied there,
no judicial review and no
BIA recourse
Romeike v. Holder (6th Cir. 2013)
- 6th Cir affirms BIA overturn of immigration
judge’s grant of German couple application
for asylum based on “persecution” (fines) by
the German government for homeschooling
their child – in Germany, children must
attend a public or state approved private
school.
INS v. Cardoza Fonseca (1987)
J. Stevens opinion
- Withholding and Asylum are different based
on their mandatory / discretionary nature
- Asylum has greater benefits and is
discretionary (well-founded fear)
- Withholding has fewer benefits and is
mandatory (more likely than not)
- Usual international understanding is there is
not difference between non refoulement
standard and the well-founded fear standard
for refugees
- The int’l standard is the lower standard (wellfounded fear)
INS v. Elias-Zacarias (1992)
- E-Z, a native of Guatemala, was apprehended
entering the U.S. without inspection. In his
deportation proceedings, he requested
asylum and withholding of deportation.
- Guerillas came to E-Z’s home when he was 18
and asked them to join. The family refused.
Guerillas said they should think about it and
that they would be back. E-Z was afraid of
gov’t retaliation if he joined the guerillas. He
left Guatemala for fear that the guerillas
would return.
- The IJ denied asylum, the BIA affirmed, and
the Ninth Cir. Reversed
 J. Scalia reverses, reasoning that EZ did not
prove that he was persecuted for a political
opinion rather than a mere refusal to fight,
which might have been for any number of
reasons – need at least some evidence
establishing persecutor’s motives
Matter of S-P (BIA 1996)
A Tamil from Sri Lanka had been beaten and
detained by the Sri Lankan army after the soldiers
raided an insurgent camp where he had been
conscripted as a welder.
- It was possible he was punished for
- Intelligence gathering
- For political views imputed to him
- For criminal conduct
- Or for a mix of these
But S-P produced evidence that made it
reasonable to believe that the persecution was in
part motivated by imputed political views
antithetical to the govt
Matter of J-B-N & S-M (BIA 2007)
- “Our standard of mixed motives has not been
radically altered by [the Real ID Act]”
- Applicant must present direct or
circumstantial evidence of a motive that is
protected under the Act
- The protected ground cannot play a minor
role in the past or fears of future
mistreatment
- It cannot be incidental, tangential, superficial,
or subordinate to another reason for harm
Particular Social Group
During the 1990s, this category was used for
- Those persecuted for their sexual orientation.
Matter of Toboso-Alfonso (BIA 1990)
- Clan membership. Matter of H. (BIA 1996)
- Women resisting / fleeing FGM. Matter of
Kasinga (BIA 1996).
Courts were receptive to claims for
- Former membership in the Salvadoran
national police Matter of Fuentes (BIA 1988)
-

Membership in a family. Hernandez-Alvarez
v. Lynch (4th Cir. 2015)
NOT receptive to asylum claims for
- Groups defined by their youth. Escobar v.
Gonzales (3rd Cir. 2005)
- Groups defined by their wealth. Matter A-ME & J-G-U (BIA 2007)
- Groups who agreed to serve as police
informants. Matter of C-A. (BIA 2006)
Matter M-E-V-G (BIA 2014) - during the Obama
presidency
Background
- MEVG claims he suffered persecution and
fears future persecution in Honduras b/c of a
gang who beat, kidnapped, and assaulted him
and his family. Threatened to kill him if he did
not join the gang.
- He claims membership in a class of youth
who have been actively recruited by gangs
but have refused to join
Board Member Guendelberger
- The Common Characteristic that defines the
social group must be one that “the members
of the group either cannot change or should
not be required to change b/c it is
fundamental to their individual identities or
consciences” Matter of Acosta (BIA 1985)
An applicant for Asylum based on MEVG must
establish that the group is
1. Composed of members who share a common
immutable characteristic (can’t change or
shouldn’t have to)
2. Defined with particularity, and
 Must have “clear benchmarks” about
who is / is not included
 Must be discrete and have definable
boundaries
 Must not be amorphous,
overbroad, diffuse, or subjective
3.
E.g., poverty, houselessness, or
youth are not sufficiently
particular. Escobar v. Gonzales
Socially distinct within the society in question
 There is considerable overlap between
this and the Particularity requirement
 E.g., landowners could pass
these tests in a underdeveloped
/ oligarchical society but not in
Canada
 To be socially distinct, a group must “be
perceived as a group by society”
 Whether society would perceive
the group as sufficiently
separate or distinct to meet the
social distinction test
 Society can consider persons to comprise
a group w/o being able to ID the
members on sight
 Therefore efforts to hide membership do
not deprive the group of protected
status
 This analysis requires looking at the
society and the group – if the common
immutable characteristic were known,
those with it in the society would be
meaningfully distinguished from those
who do not
Women, DV, and “Particular Social Group”
Matter of A-B- criticized and overruled A-R-CG but then itself was overruled by AG
Garland in 2021
Matter of A-R-C-G- (BIA 2014)
Background
- Respondents are a mother and her 3
minor children, fleeing domestic violence
o Weekly beatings after she had
her first child
o Broke her nose
o Threw paint thinner at her
o Rape
- Police “would not interfere with a marital
relationship
- Threatened with death if she called
police again
- Tried to leave but was threatened with
death if she did not return to him
 Believes husband will harm her if she
returns to Guatemala
Procedure Posture
- An IJ denied respondents’ applications
for asylum and withholding
- They appeal the denial of their
withholding applications
Vice Chairman Adkins-Blanch
 We find that the lead respondent is a
member of the particular social group
“married women in Guatemala who are
unable to leave their relationship”
- The IJ determined that there was
inadequate evidence to establish that the
abuse occurred to “overcome” her status
- The IJ said the result was a criminal act,
not persecution for her status
- DHS now concedes that respondent
established past harm rising to the level
of persecution and that persecution was
on account of a particular social group
comprised of married women in
Guatemala who cannot leave their
relationship
- DHS seeks remand for factual
development, respondent claims she has
met her burden of proof
- Particular Social Group MEVG analysis
1. Common immutable characteristic
 Gender is immutable

marital status can be immutable
where the person is unable to leave
the relationship
2. Defined with particularity
 Terms are well defined in
Guatemalan society
3. Socially distinct within the society in
question
 Unrebutted evidence that Guatemala
has a “culture of machismo and
family violence”
 Laws are in place to protect victims
of DV, but enforcement is
problematic (National Civilian Police
fail to respond to requests for
assistance)
 Persecution on account of
 DHS concedes
 Remand to IJ
 Respondent must establish that the
govt is unwilling or unable to control
the private persecutor
 Then burden shifts to DHS to
demonstrate there has been
a fundamental change in
circumstances such that
there should no longer be a
well founded fear of
persecution
Matter of A-B- (Attorney General Sessions
2018)
Background
- Respondent applied for asylum based on
past persecution by her husband as a
member of El Salvadorian women who
are unable to leave their domestic
relationships where they have children in
common
Respondent asserts her ex husband
abused her physically, emotionally, and
sexually during and after their marriage.
Procedural Posture
- IJ denied all relief and ordered removal
- BIA reversed and remanded with an
order to grant asylum after completion of
background checks
o Found the adverse credibility
finding “clearly erroneous”
o Respondent’s particular social
group is very similar to accepted
particular social group in ARCG
o Clear error in finding that she
could leave her husband
o Respondent established that her
ex husband persecuted her
because of her status
o El Salvador was unwilling or
unable to protect the respondent
AG Sessions
- “Generally, claims by aliens pertaining to
DV or gang violence perpetrated by nongovernmental actors will not qualify for
asylum… such claims are unlikely to
satisfy the statutory grounds for proving
group persecution that the government
is unable or unwilling to address. The
mere fact that a country may have
problems effectively policing certain
crimes… or that certain populations are
more likely to be victims of crime, cannot
itself establish an asylum claim.”
- AG’s reasonable interpretation of
ambiguous terms like “membership in a
particular social group” is entitled to
deference
- In R-A-, the BIA denied that “Guatemalan
women who have been involved
intimately with Guatemalan male
-
companions who believe that women are
to live under male domination”
 BIA said that the group seemed to
have been defined for the purposes
of the asylum case and not because it
was a social group in Guatemala
 BIA said that R-A-’s husband
persecuted her because she was his
wife, not because she was a member
of some class of women
 Where perpetrator is a private actor,
the internal flight option is more
often good
Matter of A-B- has been overturned by AG
Garland
UK uses “women” as a particular social
group – GN agrees with this line of thinking
Bars to Protection
1 year deadline (no basis in refugee convention,
only for asylum)
Applicants must file their claim within 1 year of
arriving in the U.S. INA 208(a)(2)(B). Exceptions to
this rule are in exceptional circumstances. INA
208(a)(2)(D).
- Physical or mental conditions may be
“exceptional circumstances” if they relate
directly to the failure to meet the 1 year
deadline. 8 CFR 208(a)(4), (5)
- Ineffective assistance of counsel may count
- Possession of another temp legal status until
a reasonable time before the filing
- No judicial review of an admin finding of
failure to comply with the deadline, INA
208(a)(3) but a person denied by an asylum
officer can obtain de novo review by an IJ and
then appeal up through the BIA.
Withholding of removal is not subject to deadline
(but standard of proof is higher)
Firm Resettlement
Asylum is not available to those who have “firmly
resettled in another country” INA 208(b)(2)(A)(vi).
Happens if a “prior to arrival in the U.S., he or she
entered into another nation with, or while in that
nation received, an offer of permanent resident
status, citizenship, or some other type of
permanent resettlement. 8 CFR 208.15
- Can be overcome if they prove the entry was
a necessity of flight and they did not stay long
enough to establish ties or that the
conditions on their residence were so
restricted that they were not in fact resettled.
Withholding of removal is not barred by firm
resettlement (but consider that non-refoulement
would not be broken by sending them back to the
country of resettlement)
- Not the same as the safe third country
exception
- Asylum seekers not eligible if there is a safe
third country w which there is a bilateral
agreement
- U.S. has such an agreement with Canada
- Under trump, honduras, el salvador were
made safe third countries (a farce –
Biden admin terminated)
Serious Crimes
Those who committed a serious nonpolitical
crime outside the U.S. prior to arrival. INA
208(b)(2)(A)(iii) and 241(b)(3)(B)(iii)
- Asylum applicants who participated in
political protests involving burning buses,
using force to remove passengers, breaking
store windows, attacking police cars held to
be serious nonpolitical crimes even though
they were politically motivated. INA v.
Aguirre-Aguirre (1999)
- Analysis entails whether the political
aspect outweighed criminal character, if
there was gross disproportion of means
and ends, whether atrocious acts were
committed
Non Political crimes must be “serious”
 Balance the nature of the offense and
the degree of persecution feared
- UN High Commissioner for Refugees: If a
person has a well-founded fear of very
serious persecution (e.g. endangering life
or freedom) then the crime must be very
grave in order to exclude them.
o US: Aguirre-Aguirre court rejected
this – crime is not less serious bc of
the persecution feared or faced
Those who have been convicted of a particularly
serious crime in the U.S. INA 208(b)(2)(A)(ii) and
241(b)(3)(B)(iii)
- “Asylum is barred to an individual who,
having been convicted by a final judgment of
a particularly serious crime, constitutes a
danger to the community of the U.S.”
- BIA has concluded that the dangerousness
prong is automatically satisfied by conviction
of a particularly serious crime. Matter of
Carballe (BIA 1986)
- Commentators agree “PSC” is more heinous
conduct than “SC”
- UNHCR handbook concludes that a PSC refers
to a capital crime or a very grave punishable
act”
o Agg Fels with a min 5 year sentence
are automatically PSCs for the
purposes of withholding of removal
INA 241(b)(3)(B)
 Agg Fels with a min
sentence less than 5 years
are case by case
 Agg Fels disqualify one
for asylum. INA
208(b)(2)(B)(i)
Temporary Protection
INA 244(b)(1)
Sec of Homeland Security has the authority to
designate countries for granting their nationals
TPS when
a. The AG finds that there is an ongoing armed
conflict within the state and, due to such
conflict, requiring the return of nationals of
that state to that state would pose a serious
threat to their personal safety
b. The AG finds that
i. There has been an earthquake, food,
drought, epidemic, or other substantial,
but temporary disruption of living
conditions in the state affected
ii. The foreign state is unable, temporarily, to
handle adequately the return to the state
of nationals of the state, and
iii. The foreign state officially has requested
designation under this subparagraph or
c. The AG finds that there exist extraordinary
and temporary conditions in the foreign state
that prevent nationals of the state from
returning to the state in safety
Tldr if conditions are bad enough, would not send
people who are already in the U.S. back to their
country of origin
TPS is typically 18 months renewable
People with TPS are eligible for work auth
Available to people already in the US - not a pull
factor
Convention Against Torture (CAT)
U.S. became a party in 1994, did not make
reservations to the non refoulement provision
Art 3: Includes an agreement not to deport
anyone to a country where there is substantial
grounds for believing they would be in danger of
being subjected to torture
-
No exceptionssss to the non-refoulement
provision
Acts that constitute torture often give rise to a
valid protection claim under the non-refoulement
protection of 241
- BUT if torture occurs e.g. for reasons outside
of the protected classes, asylum or
withholding would not cover
Applicants under the CAT file the same form as
for asylum claims (I-589)
- Check box for additional filing for CAT
- Means there are a lot of non meritorious
claims under CAT,
- The IJ will look at asylum, withholding
(usually before) CAT and only determine CAT
if they fail their first two
o Most of the people whose claims
under torture convention are being
reached because they have crimes
removing their protection under the
asylum or witholding reviews
- Can be initiated during expedited removal
and trigger a credible fear screening
- Those denied protection under the CAT can
appeal to the BIA and then a petition of
review to the Courts of Appeals upon a final
order of removal
INS concluded that bars to withholding could not
apply to CAT without violating U.S. international
law obligations. But they do have 2 forms of CAT
relief:
1. Withholding
- Most people
- Essentially the same as non refoulement
under 241
1. Deferral of removal
- Those who have persecuted others,
committed PSCs, or S nonpolitical Cs, or
who constitute a security danger
-
-
Allows an eligibility for work auth but it
can be terminated more easily than
asylum or withholding of removal if
conditions change and permit
deportation to a 3rd country or to the
home country
Regs contemplate that people granted
this might be held in detention (8 CFR
208.17(C)
In 2017, 935 out of 50,000 claims were granted,
80% withhold of removal, 20% deferral
Could DV be brought as a torture convention
claim?
 Under CAT, need to show a certain level of
gov’t acquiesce
 U.S. reservation on the issue of
acquiescence: police not interfering
would not be enough
 More likely than not standard of proof in the
US
Detention
Pre order —-------/ 90 days*-----/—--- 6 mo-- →
“may” 236(a) but
must (236(c)) for
most criminal
grounds or all
terrorist grounds
In Jennings,
expedited
removal, if
seeking asylum,
“shall” – other
arriving
noncitizens,
“shall,” and
must if
criminal or
terrorist
241(a)(2)
“may”
241(a)(6)
Žadvydas
Removal
must be
reasonably
foreseeable,
otherwise it
is an
effective
indefinite
detention,
and they
235(b)(2)(A)
“shall”
are not
longer being
held “for”
removal
Zadvydas v. Davis (2001)
J. Breyer opinion
INA 241(a)(6) which authorizes post-removal
period detention, does NOT authorize an
indefinite detention
- You are only detaining for purposes of
removal IF REMOVAL IS A REASONABLY
FORESEEABLE OUTCOME – if it is not, then
you’re not detaining them for that reason any
more
- “MAY” → need to have deportation be
reasonable foreseeable
- 6 months presumption of legality for
detention before removal
- After 6 months, individual has right to a
hearing to see if there is a reasonable
prospect of removal
Demore v. Kim (2003)
C.J. Rehnquist opinion
236(c): detention is mandatory for noncitizens
alleged to be removable for criminal convictions
Distinguish from Zadvydas
- Congress made a reasonable categorical
determination that these people are a flight
risk
- This preorder detention is temporary and
short term, as compared to indefinite
- Individualized hearings on flight risk are not
required
 Mandatory detention for this category of
people is Constitutional b/c it’s usually brief
and reasonable
Jennings v. Rodriguez (2018)
 In each category, lower court gave a
Zadvydas interpretation, reading into the
statute a requirement that pre-order
detention w/o a hearing on flight or danger
could only go for 6 months
 After that, you would need to get a hearing
 At that hearing, the govt would have the
burden of proof that detention is justified
J. Alito opinion
- Shall detain… “For future consideration of the
application of asylum” 235(b)(1)
- Shall detain… “For a removal proceeding”
235(b)(2)
- “For two hours”
- “For an event”
 Alito: for is durational, not purposivist
Judicial Review