Immigration Law Aleinikoff

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Immigration Law
Authors Thomas Aleinikoff
David Martin
Hiroshi Motomura
Maryellen Fullerton
Juliet Stumpf
Text Image of Immigration and Citizenship: Process and Policy (American Casebook Series)
Immigration and Citizenship: Process and Policy (American Casebook Series)
Taught by
Taught at
Related course(s)


FEDERAL IMMIGRATION POWERS[edit]

    1. 'Historical Context – The Chinese Exclusion Act & Proclamation 9645'
      1. The Chinese Exclusion Act of 1882:
        1. The Chinese Exclusion Act of 1882 excluded immigrants of Chinese descent.
        2. The Scott Act of 1888 amended the Chinese Exclusion Act and prohibited Chinese immigrants traveling abroad from returning to the U.S. arguably in violation of treaties formed with the Chinese government.
        3. Extreme deference is generally given to congress’s authority (Plenary Powers)
      2. Proclamation 9645 of Sept. 24, 2017:
        1. AKA the “Muslim Travel Ban.”
        2. Suspends immigration or travel to the U.S. from 8 mostly Muslim countries.
        3. Intended to reduce threats of terrorism.
        4. Proclamation justification: countries have poor information-sharing protocols and identity management with strong terrorist organization presence.
      3. 'Foundational Cases'
        1. Chae Chan Ping v. United States, 130 U.S. 581 (1889):
          1. P was a Chinese citizen who was a U.S. resident and prevented from returning to the U.S. under the Scott Act. P argued new law violated terms of a treaty with China.
          2. Supreme Court held the Scott Act and Chinese Exclusion Act were constitutional under the Plenary Powers doctrine. Congress has power to override treaties.
        2. Fong Yue Ting v. United States, 149 U.S. 698 (1893):
          1. P was a Chinese immigrant who applied for a certificate of residence in the U.S.
          2. The Geary Act required a witness who was white to sign off on the certificate application. Petitioner violated the rule requiring a white witness and was imprisoned with no other criminal history. P petitioned for habeas writ.
          3. Held: Congress has power to pass such legislation under plenary powers doctrine. Also, Yick Wo ruling does not apply here because unlike the defendant in that case, P was not legally domiciled in the U.S.
  • Wong Wing v. United States, 163 U.S. 228 (1896): Supreme Court held the 5th and 6th amendment prohibit imprisonment to hard labor for non-citizens convicted of illegal entry into the U.S. without a jury trial.
  1. Zadyvas v. Davis, 533 U.S. 678 (2001):
    1. Plaintiff was a resident alien who was convicted of crimes and ordered removed. No country would accept him, and he remained in detention beyond the statutory 90-day holding period. P filed writ of habeas corpus.
    2. Supreme Court held removable aliens may be detained for only a period reasonably necessary to secure the alien’s removal after the initial 90-day removal period.
    3. Resident aliens are entitled to do process and holding a detained alien beyond the statutory time limit violates congressional intent and violates due process rights. The court also held that holding a detained alien indefinitely also violates due process.
    4. DHS’s decision to hold P against statutory language violated Congress’s plenary powers. Under the plenary powers doctrine, congress has the authority to make the laws.
  2. 'Sources of Federal Power and Plenary Powers Doctrine'
    1. Constitutional Framework:
      1. Enumerated Powers:
        1. “Necessary and Proper” Clause (Art. I, § 8)[1]
        2. The Commerce Clause (Art. I, § 8, cl. 3)
        3. The Power of Naturalization (Art. I, § 8, cl. 4)
        4. War Powers (Art. I, § 8, cl. 11)
        5. The Migration and Importation Clause (Art. I, § 9, cl. 1):
          1. Denied power to Congress to deny immigrants prior to 1808. Implies power was granted post-1808.
          2. Most likely of use to deny Congress the authority to outlaw slavery.
        6. The Foreign Affairs Power:
          1. No explicit mention in the Constitution.
          2. Power is implied through war powers, power to regulate commerce with foreign nations, and power to make treaties and send/receive ambassadors.
        7. Inherent Power: The power to regulate immigration is an attribute of sovereignty.
      2. Constitutional and Structural Powers:
        1. The Rule of Necessity:
          1. Exercise is necessary for continuity of government.
          2. If the government did not have authority over immigration, we would be subject to espionage, violence, outside political influence, overcrowding, etc.
          3. The Constitution is written in broad and general terms because it is expected that the government would run into unforeseen occasions[2].
        2. Structural Justifications:
          1. Self-Preservation: Considers public health, welfare, or security concerns.
          2. Self-Definition:
            1. Immigration laws reflect deep “societal norms” (e.g, what American’s considered to be a “family” is the nuclear family).
            2. Can also be based on economic, moral, and social considerations (e.g, the “good moral character” test)
  • The Plenary Powers Doctrine:
    1. Courts give exceptional deference to Congress in immigration law (and other administrative law areas)
    2. Derived from legislative concerns over presence of foreigners of different races and public safety issues.
    3. Runs contrary to concept of judicial review.
  1. Equal Protection (U.S. Const. Amend. XIV): Protects all persons against laws with discriminatory purpose or facially neutral laws applied in a discriminatory manner[3].

IMMIGRATION ACTORS & CITIZENSHIP[edit]

    1. 'Federal Agencies and Court Actors'
      1. The Department of Homeland Security (“DHS”):
        1. Customs and Border Protection (“CBP”):
          1. Inspections
          2. Border Patrol
        2. Immigration and Customs Enforcement (“ICE”):
          1. Interior Enforcement of Customs and Immigration Laws
          2. Enforcement and Removal Operations
        3. U.S. Citizenship and Immigration Services (“USCIS”):
          1. Replaced the Immigration and Naturalization Service.
          2. Service-side of immigration management
          3. Adjudicates applications for benefits such as asylum claims, naturalization applications, or applications for permanent residents.
          4. Offices and Processes:
            1. Forms and applications usually completed by mail.
            2. Applications sent to an adjudication “officer” for determination.
  • Interviews conducted as necessary.
  1. Administrative Appeals Office (“AAO”):
    1. Reviews determinations of DHS examiners.
    2. E.g., denials of visa petitions, worker status, etc. – other decisions not reviewable by IJs or the BIA.
    3. Difficult to determine definitively the AAO has cases over beyond removal proceedings which go to EOIR.
  2. The Department of Justice (“DOJ”):
    1. Executive Office for Immigration Review (“EOIR”):
      1. Immigration Judges (“IJs”):
        1. AKA “Immigration Court”
        2. Ensures due process concerns are addressed (unlike in informal settings).
  • Adjudicates formal removal proceedings.
  1. Authority derived from INA §§ 101(b)(4) and 204(a)(1).
  2. The Board of Immigration Appeals (“BIA”):
    1. Multi-member body appointed by the Attorney General.
    2. Hears appeals from IJ decisions in exclusion cases and removal proceedings.
  • Decisions are subject to review by the Attorney General.
  1. Authority derived from 8 C.F.R. 1003.1(b): “non-citizens found removable by IJs have a right to appeal to the BIA.
  2. The Attorney General (“A.G.”):
    1. The A.G. appoints BIA judges and takes appeal cases on “referral.”
    2. The A.G. can also take referrals sua sponte.
    3. Next step is to petition for review to the U.S. Circuit Court of Appeals (8th Circuit in Minnesota).
Review of IJ Decisions
Removal Proceedings DHS charging document → IJ removal determinationPetition for review to → BIA reviews IJ determinationPetition for review → U.S. Cir. Ct. App.
OR referral to ↗ OR referral to→ A.G.Petition for review ↗
Review of IJ Decisions
Terms of Release Pending Hearing (Bond Redetermination) DHS makes decision on terms of releaseNon-citizen seeks review→DHS seeks review→ IJ

Non-citizen seeks review→DHS seeks review→

BIANon-citizen seeks habeas relief→ U.S. District Court
  • The Department of State (“DOS”):
    1. The Bureau of Consular Affairs:
      1. National Visa Center: Office issues immigrant and non-immigrant traveling visas.
      2. Passport Services
      3. NOTE: Consular cases are non-reviewable
    2. The Bureau of Population, Refugees, and Management
    3. The Bureau of Education and Cultural Affairs
  1. The Department of Labor (“DOL”):
    1. 'Board of Alien Labor Certification Appeals (“BALCA”)
  2. The Department of Health and Human Services (“DHHS”)
    1. 'The Public Health Service (“PHS”)
  3. 'Citizenship'
    1. Acquisition of Nationality by Birth:
      1. Jus Soli[4]:
        1. Means “right of land.”
        2. Confers citizenship based on birth within a national territory.
      2. Jus Sanguinis:
        1. Mean “right of blood.”
        2. Citizenship is conferred based on descent – irrespective of place of birth.
      3. The U.S. follows both doctrines of acquiring citizenship.
      4. 'U.S. Const. Amend. XIV, § 1: “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.” [5]
      5. 'Children of unauthorized migrants and temporary lawful visitors are naturalized citizens.
    2. Nationals and Citizens of U.S. at Birth (INA § 301):
8 U.S.C. § 1401
§1401 Nationals and citizens of United States at birthThe following shall be nationals and citizens of the United States at birth:
(a) a person born in the United States, and subject to the jurisdiction thereof;'
(b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe:Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;
(c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;
(d) a person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States;
(e) a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person;
(f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States;
(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years:Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined insection 288 of title 22by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States, or (B) employed by the United States Government or an international organization as defined insection 288 of title 22, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date; and
(h) a person born before noon (Eastern Standard Time) May 24, 1934, outside the limits and jurisdiction of the United States of an alien father and a mother who is a citizen of the United States who, prior to the birth of such person, had resided in the United States.
  • Children Born out of Wedlock (INA § 309):
8 U.S.C. § 1409
(a) The provisions of paragraphs (c), (d), (e), and (g) ofsection 1401 of this title, and of paragraph (2) ofsection 1408 of this title, shall apply as of the date of birth to a person born out of wedlock if-
(1) a blood relationship between the person and the father is established by clear and convincing evidence,
(2) the father had the nationality of the United States at the time of the person's birth,
(3) the father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and
(4) while the person is under the age of 18 years-
(A) the person is legitimated under the law of the person's residence or domicile,
(B) the father acknowledges paternity of the person in writing under oath, or
(C) the paternity of the person is established by adjudication of a competent court.
(b) Except as otherwise provided in section 405 of this Act, the provisions ofsection 1401(g) of this titleshall apply to a child born out of wedlock on or after January 13, 1941, and before December 24, 1952, as of the date of birth, if the paternity of such child is established at any time while such child is under the age of twenty-one years by legitimation.
(c) Notwithstanding the provision of subsection (a) of this section, a person born, after December 23, 1952, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person's birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year.

DERIVATIVE CITIZENSHIP, NATURALIZATION, AND LOSS OF CITIZENSHIP[edit]

    1. 'Derivative Citizenship (Jus Sanguinis)'
      1. Children Born Outside the U.S. and Residing Permanently in the U.S.; Conditions Under Which Citizenship Automatically Acquired; Determinations of Name and Birth Date (INA § 320):
8 U.S.C. § 1431
(a) 'In generalA child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled:'
(1) At least one parent of the child is a citizen of the United States, whether by birth or naturalization.'
(2) The child is under the age of eighteen years.
(3) The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.
(b) 'AdoptionSubsection (a) shall apply to a child adopted by a United States citizen parent if the child satisfies the requirements applicable to adopted children undersection 1101(b)(1) of this title.'
(c) 'Name and birth dateA Certificate of Citizenship or other Federal document issued or requested to be amended under this section shall reflect the child's name and date of birth as indicated on a State court order, birth certificate, certificate of foreign birth, certificate of birth abroad, or similar State vital records document issued by the child's State of residence in the United States after the child has been adopted or readopted in that State.'
  1. Children Born Outside the U.S.; Conditions for Acquiring Certificate of Citizenship (INA § 322):

8 U.S.C. § 1433[edit]

(a)

Application by citizen parents; requirements[edit]

A parent who is a citizen of the United States (or, if the citizen parent has died during the preceding 5 years, a citizen grandparent or citizen legal guardian) may apply for naturalization on behalf of a child born outside of the United States who has not acquired citizenship automatically undersection 1431 of this title. The Attorney General shall issue a certificate of citizenship to such applicant upon proof, to the satisfaction of the Attorney General, that the following conditions have been fulfilled:[edit]

(1) At least one parent (or, at the time of his or her death, was) isa citizen of the United States, whether by birth or naturalization.
(2) The United States citizen parent-'
(A) has (or, at the time of his or her death, had) been physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years; or
(B) has (or, at the time of his or her death, had) a citizen parent who has been physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years.
(3) The child is under the age of eighteen years.
(4) The child is residing outside of the United States in the legal and physical custody of the applicant (or, if the citizen parent is deceased, an individual who does not object to the application).
(5) The child is temporarily present in the United States pursuant to a lawful admission and is maintaining such lawful status.
(b) Attainment of citizenship status; receipt of certificateUpon approval of the application (which may be filed from abroad) and, except as provided in the last sentence ofsection 1448(a) of this title, upon taking and subscribing before an officer of the Service within the United States to the oath of allegiance required by this chapter of an applicant for naturalization, the child shall become a citizen of the United States and shall be furnished by the Attorney General with a certificate of citizenship.
(c) 'Adopted childrenSubsections (a) and (b) shall apply to a child adopted by a United States citizen parent if the child satisfies the requirements applicable to adopted children undersection 1101(b)(1) of this title.'
(d) 'Children of Armed Forces membersIn the case of a child of a member of the Armed Forces of the United States who is authorized to accompany such member and reside abroad with the member pursuant to the member's official orders, and is so accompanying and residing with the member-'
(1) any period of time during which the member of the Armed Forces is residing abroad pursuant to official orders shall be treated, for purposes of subsection (a)(2)(A), as physical presence in the United States;'
(2) subsection (a)(5) shall not apply; and
(3) the oath of allegiance described in subsection (b) may be subscribed to abroad pursuant tosection 1443a of this title.
  • Physical Presence in the U.S.:
    1. Policy issue due to expatriates who wanted to maintain U.S. citizenship for their children indefinitely.
    2. Jure Sanguinis – current law requires a periodic parental residence in the U.S. to eliminate perpetual jure sanguinis with families that no longer have roots in the U.S.
  1. USCIS Form N-600 (Application for Certificate of Citizenship) (INA § 322)
  2. Derivative Citizenship[6]: Citizenship is given to children through the naturalization of parents or sometimes to foreign-born children adopted by U.S. citizen parents if certain conditions are met.
  3. 'Naturalization'
    1. The Basic Statutory Provisions of Naturalization (INA § 316):
      1. Age:
        1. Applicants for naturalization must generally by 18 or older.
        2. Children whose parents become naturalized become citizens through derivative citizenship.
      2. Residence and Physical Presence (INA § 316):
        1. Generally:
          1. Applicants must have been admitted as lawful permanent residents (“LPRs”) and resided continuously in the U.S. for at least 5 years.
          2. During the 5 years immediately prior to applying, applicant must have been continuously present for at least 2-1/2 years.
  • Also required to have resided in the state which application is filed for at least 3 months.
  1. Applicants who leave the U.S. for a continuous period of 1 year or more will not satisfy the requirements and must restart the clock.
  2. U.S. Employment Abroad (INA § 316(b)): Applicants working for the U.S. government or other specific employer types may be granted an exception to the continuous physical presence rule.
  3. Spouses of U.S. Citizens (INA § 319):
    1. Residence requirement is reduced to 3 years for spouses of U.S. citizens.
    2. Must have obtained LPR status and live in “marital union” with spouse for 3 years immediately before filing application.
  4. Military Service (INA § 328):
    1. No continuous presence requirement for military service members.
    2. Generally, LPR status required to enlist, however it was expanded to other non-citizens after 9/11 to encourage enlistment.
  5. Good Moral Character (INA § 316(a)):
    1. GMC is defined in part by INA § 101(f) and 8 C.F.R. § 316.10).
    2. INA § 101(f):
8 U.S.C. '§ 1101''''
101(f) For the purposes of this chapter-No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established is, or was-
(1) a habitual drunkard;
(3) a member of one or more of the classes of persons, whether inadmissible or not, described in paragraphs (2)(D), (6)(E), and (10)(A) ofsection 1182(a) of this title; or subparagraphs (A) and (B) ofsection 1182(a)(2) of this titleand subparagraph (C) thereof of such section (except as such paragraph relates to a single offense of simple possession of 30 grams or less of marihuana), if the offense described therein, for which such person was convicted or of which he admits the commission, was committed during such period;
(4) one whose income is derived principally from illegal gambling activities;
(5) one who has been convicted of two or more gambling offenses committed during such period;
(6) one who has given false testimony for the purpose of obtaining any benefits under this chapter;
(7) one who during such period has been confined, as a result of conviction, to a penal institution for an aggregate period of one hundred and eighty days or more, regardless of whether the offense, or offenses, for which he has been confined were committed within or without such period;
(8) one who at any time has been convicted of an aggravated felony (as defined in subsection (a)(43)); or
(9) one who at any time has engaged in conduct described insection 1182(a)(3)(E) of this title(relating to assistance in Nazi persecution, participation in genocide, or commission of acts of torture or extrajudicial killings) or 1182(a)(2)(G) of this title (relating to severe violations of religious freedom).
  1. 8 C.F.R. § 316.10 – Good moral character.
(a) Requirement of good moral character during the statutory period.
(1) An applicant for naturalization bears the burden of demonstrating that, during the statutorily prescribed period, he or she has been and continues to be a person of good moral character. This includes the period between the examination and the administration of the oath of allegiance.'
(2) In accordance with section 101(f) of theAct, theServiceshall evaluate claims of good moral character on a case-by-case basis taking into account the elements enumerated in this section and the standards of the average citizen in the community of residence. TheServiceis not limited to reviewing the applicant's conduct during the five years immediately preceding the filing of theapplication, but may take into consideration, as a basis for its determination, the applicant's conduct andactsat any time prior to that period, if the conduct of the applicant during the statutory period does not reflect that there has been reform of character from an earlier period or if the earlier conduct and acts appear relevant to a determination of the applicant's present moral character.
(b) Finding of a lack of good moral character.
(1) An applicant shall be found to lack good moral character, if the applicant has been:'''''
(i) Convicted of murder at any time; or
(ii) Convicted of anaggravated felonyas defined in section 101(a)(43) of theActon or after November 29, 1990.
(2) An applicant shall be found to lack good moral character if during the statutory period the applicant:
(i) Committed one or more crimes involving moral turpitude, other than a purely political offense, for which the applicant was convicted, except as specified in section 212(a)(2)(ii)(II) of theAct;
(ii) Committed two or more offenses for which the applicant was convicted, and the aggregate sentence actually imposed was five years or more, provided that, if the offense was committed outside theUnited States, it was not a purely political offense;
(iii) Violated any law of theUnited States, any State, or any foreign country relating to a controlled substance, provided that the violation was not a single offense for simple possession of 30 grams or less of marijuana;
(iv) Admits committing any criminalactcovered by paragraphs (b)(2) (i), (ii), or (iii) of this section for which there was never a formal charge, indictment, arrest, or conviction, whether committed in theUnited Statesor any other country;
(v) Is or was confined to a penal institution for an aggregate of 180dayspursuant to a conviction or convictions (provided that such confinement was not outside theUnited Statesdue to a conviction outside theUnited Statesfor a purely political offense);
(vi) Has given false testimony to obtain any benefit from theAct, if the testimony was made under oath or affirmation and with an intent to obtain an immigration benefit; this prohibition applies regardless of whether the information provided in the false testimony was material, in the sense that if given truthfully it would have rendered ineligible for benefits either the applicant or the person on whose behalf the applicant sought the benefit;
(vii) Is or was involved in prostitution or commercialized vice as described in section 212(a)(2)(D) of theAct;
(viii) Is or was involved in the smuggling of a person or persons into theUnited Statesas described in section 212(a)(6)(E) of theAct;
(ix) Haspracticedor is practicing polygamy;
(x) Committed two or more gambling offenses for which the applicant was convicted;
(xi) Earns his or her income principally from illegal gambling activities; or
(xii) Is or was a habitual drunkard.
(3) Unless the applicant establishes extenuating circumstances, the applicant shall be found to lack good moral character if, during the statutory period, the applicant:
(i) Willfully failed or refused to support dependents;
(ii) Had an extramarital affair which tended to destroy an existing marriage; or
(iii) Committed unlawfulactsthat adversely reflect upon the applicant's moral character, or was convicted or imprisoned for such acts, although the acts do not fall within the purview of§ 316.10(b)(1) or (2).
(c) Proof of good moral character in certain cases-
(1) Effect of probation or parole.An applicant who has been on probation, parole, or suspended sentence during all or part of the statutory period is not thereby precluded from establishing good moral character, but such probation, parole, or suspended sentence may be considered by theServicein determining good moral character. Anapplicationwill not be approved until after the probation, parole, or suspended sentence has been completed.'''''
(2) Full and unconditional executive pardon-
(i) Before the statutory period.An applicant who has received a full and unconditional executive pardon prior to the beginning of the statutory period is not precluded by§ 316.10(b)(1)from establishing good moral character provided the applicant demonstrates that reformation and rehabilitation occurred prior to the beginning of the statutory period.'''''
(ii) During the statutory period.An applicant who receives a full and unconditional executive pardon during the statutory period is not precluded by§ 316.10(b)(2)(i) and (ii) from establishing good moral character, provided the applicant can demonstrate that extenuating and/or exonerating circumstances exist that would establish his or her good moral character.'''''
(3) Record expungement-'''''
(i) Drug offenses.Where an applicant has had his or her record expunged relating to one of the narcotics offenses under section 212(a)(2)(A)(i)(II) and section 241(a)(2)(B) of theAct, that applicant shall be considered as having been “convicted” within the meaning of§ 316.10(b)(2)(ii), or, if confined, as having been confined as a result of “conviction” for purposes of§ 316.10(b)(2)(iv).'''''
(ii) Moral turpitude.An applicant who has committed or admits the commission of two or more crimes involving moral turpitude during the statutory period is precluded from establishing good moral character, even though the conviction record of one such offense has been expunged.'''''
  1. Knowledge of Civics and History (INA § 312(a)(2)):
    1. Waived for disabilities considerations (mental/physical)
    2. Special consideration to those older than 65 who have resided in the U.S. for over 20 years.
    3. Evaluation questions are chosen with “due consideration.”
    4. Oral test conducted at naturalization interview.
  2. English Language Proficiency (INA § 312(a)(1)):
    1. Applicant must demonstrate reading/writing capabilities.
    2. Applicants over 50 who have been LPRs for over 20 years are exempt.
    3. Applicants over 55 who have been LPR for over 15 years are exempt.
    4. Persons with certain mental/physical disabilities exempt.
  3. Oath of Allegiance (INA § 337(a))
  4. Attachment to Constitutional Principles (INA § 316(a))[7] [8]
  5. Married Persons and Employees of Certain Non-Profit Organizations (INA § 319(a); Battered Spouse:
8 U.S.C. § 1430
319(a) Any person whose spouse is a citizen of the United States, or any person who obtained status as a lawful permanent resident by reason of his or her status as a spouse or child of a United States citizen who battered him or her or subjected him or her to extreme cruelty, may be naturalized upon compliance with all the requirements of this subchapter except the provisions of paragraph (1) ofsection 1427(a) of this titleif such person immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least three years, and during the three years immediately preceding the date of filing his application has been living in marital union with the citizen spouse (except in the case of a person who has been battered or subjected to extreme cruelty by a United States citizen spouse or parent), who has been a United States citizen during all of such period, and has been physically present in the United States for periods totaling at least half of that time and has resided within the State or the district of the Service in the United States in which the applicant filed his application for at least three months.
  • USCIS Application for Naturalization (Form N-400)
  1. 'Loss of Citizenship'
    1. Denaturalization (INA § 340)[9]:
8 U.S.C. § 1451
(a) Concealment of material evidence; refusal to testify'[10]'
(c) Membership in certain organizations; prima facie evidence
(d) Applicability to citizenship through naturalization of parent or spouse
(e) Citizenship unlawfully procured
  1. Usually for naturalization status that has been:
    1. Illegally procured,
    2. Procured through concealment of a material fact, or
    3. Procured by willful misrepresentation.
  2. The misrepresentation or other grounds for denaturalization must be material to the naturalization decision (a mere omission is not enough).
  3. Children and spouses of denaturalized citizens will lose their derivative citizenship.
  4. Procedure is initiated by DHS (INA § 340).
  5. Standard is clear and convincing evidence.
  6. Notice requirement is 60 days.
  7. Expatriation:
    1. Definition: The practice of stripping a citizen of his citizenship.
      1. A person has the right to renounce their citizenship and expatriate to another country to become a citizen of that country.
      2. A U.S. citizen could be forced to expatriate under the Expatriation Act of 1868.
    2. Renunciation Outside of the U.S.:
      1. Under INA § 349(a), a person must have permanent residency outside of the U.S. in order to renounce their U.S. citizenship.
      2. E.g. 1, Prison inmates who wanted to renounce their citizenship and declare their intent to join the Soviet Union in 1978 to secure their freedom was not allowed.
      3. E.g. 2, Japanese internment camp prisoners could not be forced to renounce in order to make it easier to relocate them overseas.
      4. There is a general, world-wide consensus regarding the policy issue of statelessness. A person must belong to one state before they can renounce another. Most countries have this provision written into their laws.
    3. Loss of Nationality by Native-Born or Naturalized Citizens (INA § 349):
8 U.S.C. § 1481
§ 1481 Loss of nationality by native-born or naturalized citizen; voluntary action; burden of proof; presumptions
(a) A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality-'
(1) obtaining naturalization in a foreign state upon his own application or upon an application filed by a duly authorized agent, after having attained the age of eighteen years; or
(2) taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of eighteen years; or
(3) entering, or serving in, the armed forces of a foreign state if (A) such armed forces are engaged in hostilities against the United States, or (B) such persons serve as a commissioned or non-commissioned officer; or
(4) (A) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years if he has or acquires the nationality of such foreign state; or (B) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years for which office, post, or employment an oath, affirmation, or declaration of allegiance is required; or
(5) making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State; or
(6) making in the United States a formal written renunciation of nationality in such form as may be prescribed by, and before such officer as may be designated by, the Attorney General, whenever the United States shall be in a state of war and the Attorney General shall approve such renunciation as not contrary to the interests of national defense; or
(7) committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions ofsection 2383 of title 18, or willfully performing any act in violation ofsection 2385 of title 18, or violatingsection 2384 of title 18by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if and when he is convicted thereof by a court martial or by a court of competent jurisdiction.
(b) Whenever the loss of United States nationality is put in issue in any action or proceeding commenced on or after September 26, 1961 under, or by virtue of, the provisions of this chapter or any other Act, the burden shall be upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence. Any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this chapter or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily.
  1. Restrictions on Loss of Nationality (INA § 351):
8 U.S.C. § 1483
§ 1483 Restrictions on loss of nationality
(a) Except as provided in paragraphs (6) and (7) ofsection 1481(a) of this title, no national of the United States can lose United States nationality under this chapter while within the United States or any of its outlying possessions, but loss of nationality shall result from the performance within the United States or any of its outlying possessions of any of the acts or the fulfillment of any of the conditions specified in this Part if and when the national thereafter takes up a residence outside the United States and its outlying possessions.'
(b) A national who within six months after attaining the age of eighteen years asserts his claim to United States nationality, in such manner as the Secretary of State shall by regulation prescribe, shall not be deemed to have lost United States nationality by the commission, prior to his eighteenth birthday, of any of the acts specified in paragraphs (3) and (5) ofsection 1481(a) of this title.'
  1. Procedures in Expatriation Cases:
    1. U.S. consulate abroad investigates facts and files report with Department of State’s Bureau of Consular Affairs.
    2. If State Department agrees, a certificate of loss of nationality (CLN) is filed with immigration authorities and a copy is sent to the individual.
    3. The individual can contest the CLN by asking the Bureau of Consular Affairs to review their case, and the determination may be appealed in federal court.
    4. Claimants may also seek declaratory judgement within 5 years after the final administrative determination was made in federal court.
    5. Claimants outside of the U.S. are permitted to travel to the U.S. for a hearing under INA §§ 360(b) and (c), and judicial review is available under habeas corpus.

NON-IMMIGRANT ADMISSIONS, CATEGORIES, AND PROCEDURES[edit]

    1. 'Admission Categories for Non-Immigrants and Non-Immigrant Visas'
      1. Definition of “Immigrant” (INA § 101(a)(15)):
8 U.S.C. § 1101(a)(15)
§ 1101 Definitions''''
(a) As used in this chapter-'
(15) The term "immigrant" means every alien except an alien who is within one of the following classes of nonimmigrant aliens-The list is extensive. Generally, non-immigrants are non-citizens who seek admission to the U.S. for a temporary stay and a specific purpose.Categories include students, visitors and tourists, business and work, diplomats and employees of foreign governments, and affiliation with international organizations.
  1. 3-Part Inquiry for Determining Admissions:
    1. Does the person qualify for one of the statutory admissions categories (family, employment, or other)?
    2. If not, is denial of admissions unconstitutional?
    3. Do they fit into one of the inadmissibility grounds?
  • Admissions Categories Reflect Values of U.S. Congress:
    1. Nuclear family (see INA § 201(b)) for “immediate relatives” provision; § 203(d) for derivative beneficiaries).
      1. Reflects a particular conception of “family.”
      2. Problems arise when the family member is too attenuated from the person seeking admissions.
    2. Diversity
    3. Productivity/economic considerations
    4. Humanitarian concerns
  1. Admission Categories:
Non-Immigrant Category Visa Type''''
Visitors for business B-1
Visitors for business – visa waiver program
Visitors for pleasure B-2
Visitors for pleasure – visa waiver program
Transit aliens C
Treaty traders and investors, plus spouses/children E
Academic students F
Vocational students M
Spouses/children of academic/vocational students F, M
Exchange visitors, plus spouses/children J
Diplomats and other representatives A, G, N, NATO
Temporary workers and trainees, spouses/children H, O, P, Q, R, TN
Foreign media, plus spouses/children I
Fiancé(e)s of U.S. citizens, and their children K
Intra-company transferees, plus spouses/children L
  1. Short-term B-1 or B-2 visitors and students account for most non-immigrant admissions.
  2. Key considerations for non-immigrant clients:
    1. What are basic requirements for maintaining status (i.e., academic degrees or licensure, past work for employer or affiliates, admission to an accredited school, etc.)?
    2. Any required labor market test or attestation.
    3. Duration of stay, including renewal options.
    4. Scope of authorization, if any.
    5. Treatment of family members, including their own work authorization.
    6. Procedural steps including forms and filing fees.
    7. Options for later becoming an LPR.
  3. “Immigrant Intent” – Students and Exchange Visitors:
    1. General requirement for all non-immigrant admissions that the non-citizen has a residence in a foreign country and can demonstrate they have no intention to abandon that residence once in the U.S.
    2. A desire to remain in the U.S. lawfully upon expiration is not inconsistent with lawful non-immigrant statuses.
  4. Foreign Students, Cultural Exchanges, and Vocational Students in the U.S.:
    1. Foreign Students (F-Visas):
      1. F-1 visas: to students themselves
      2. F-2 visas: to spouse and children of the student
      3. To obtain, the student must:
        1. Only accepted for period of program’s study.
        2. Be accepted by school approved by the A.G.,
  • Have sufficient funds or other arrangements to support themselves and their families for 12 months, and
  1. Have adequate scholastic preparation to pursue their full course of study.
  2. No off-campus employment
  3. Cultural Exchanges (J-Visas):
    1. J-1 visas: to the cultural exchange students themselves
    2. J-2 visas: to spouse and children of the cultural exchange student
    3. Programs wishing to sponsor must:
      1. Be bona fide educational/cultural exchange programs with clearly defined purposes and objectives;
      2. Must return abroad for 2 years to adjust to any other non-immigrant status to become LPR – if home country needs their professional services.
  • Have at least 5 exchange visitors annually;
  1. Provide cross-cultural activities; and
  2. Be reciprocal when possible.
  3. Vocational Students (M-Visas):
    1. Distributed in the same manner as F and J visas to students and their spouses/children.
    2. Fewer M-visas granted each year than others.
    3. Vocational students not permitted to work on or off campus.
    4. Adequate scholastic preparation for program.
  • Business and Entrepreneurial Non-Immigrants:
    1. Visitors for Business (B-1 Visas):
      1. No petition required. Self-petition.
      2. No labor certification required.
      3. Not for performing skilled/unskilled labor.
      4. Process started in home country.
  • Temporary Workers[11]:
    1. Temporary Workers with “Specialty Occupations” or Professional Positions (H-1B Visa):
      1. 3 years, extendable up to 6 years.
      2. Bachelor’s degree or higher.
      3. Employer must file a Labor Condition Application (LCA) or “attestation”:
        1. Job is offered at the prevailing wage, and
        2. No adverse working conditions.
  • Employers must try to fill positions with U.S. citizens first.
  1. File I-129 (Petition for Non-Immigrant Worker)
  2. Once visa petition is approved, the non-immigrant must demonstrate qualification (through advanced degrees degrees) – Labor certification.
  3. Temporary Agricultural Workers (H-2A Visas):
    1. Both H-2 categories require less education.
    2. Typically, seasonal, always temporary.
    3. Usually hiring is done for harvesting cycles for farm work.
  4. Temporary Non-Agricultural Workers (H-2B Visas):
    1. Requirements:
      1. Temporariness: Examine the nature of the need for the duties to be performed (not nature of the duties themselves).
      2. Labor market test: Employer incapable of finding other labor from within the U.S.
  • Employer must obtain labor certification from the DOL, file a visa petition with USCIS, and then the worker can receive their visa at the U.S. consulate.
  1. Persons with Achievement and Acclaim:
    1. Persons with Extraordinary Ability (O-Visa):
      1. Demonstrated by sustained national or international acclaim.
      2. Category allows for:
        1. Performing artists
        2. Entertainers
  • Athletes
  1. Chefs
  2. Business persons (non-H-1B)
  3. Supporting actresses, stage crew, etc. may be admitted with O-2 visa.
  4. Spouses and children of O-1 and O-2 non-immigrants may be admitted with an O-3 visa.
  5. Persons with a High Level of Achievement (P-Visa):
    1. Less accomplished/prominent than the O-type.
    2. Must achieve a basic standard of international recognition, defined as a “high level of achievement evinced by a degree of skill and recognition substantially above the well known in more than one country.” (8 C.F.R. 214.2(p)(3)).
    3. P-2 and P-3 categories include essential function and support personnel. P-4 is for family members including spouses and children.
    4. Dual intent is permitted for both P and O visas (may seek nonimmigrant status and LPR status at the same time).
  6. Intracompany Transferees (L-1 Visa):
    1. Intracompany transferees are required to fulfill a managerial, executive, or involve specialized knowledge for admission.
    2. Transferees used extensively by foreign corporations to work in U.S. based branches or subsidiaries.
    3. “Specialized Knowledge” requires special knowledge of company or product and its application to international markets, or an advanced level of knowledge of processes or procedures of the company.
    4. Process:
      1. Employer files preliminary petition with DHS.
      2. Initial admission for up to 3 years (extendable to 7 years).
      3. Dual intent is permitted (may seek nonimmigrant status and LPR status at the same time).
    5. Treaty Traders and Treaty Investors (E-Visas):
      1. Must be an international agreement under whose terms an E-non-immigrant seeks to carry on activities in the U.S.
      2. Treaty traders (E-1 visas) and treaty investors (E-2 visas). Both E-visa types may include employees of the traders or investors.
      3. May be admitted for up to 2 years initially.
      4. No preliminary petition required by sponsoring entity.
      5. Process is initiated by applying for an E-visa in the U.S. consulate office.
  • V-Visas for Family Members of LPRs
  • K-Visas for Fiancées or Spouses of Citizens or their Children (if under 21)
  • Victims of Sex Trafficking and Violence:
    1. Sex Trafficking Victims (T-Visas):
      1. Requirements for applying for T-visa (INA § 101(a)(15)(T)(i)):
        1. Must be severe case,
        2. Must be in the U.S. because of their victimization,
  • Must be under 18, and
  1. Must be a severe hardship upon removal.
  2. Allows for stay up to 4 years and allows for adjustment to LPR status after 3 years.
  3. Victims of Violence (U-Visas):
    1. Must have suffered substantial physical or mental abuse as a result of having been a victim of criminal activity.
    2. The victim must possess information concerning the criminal activity and have been certified by a law enforcement official as helpful to their investigation.
    3. DHS can waive all inadmissibility grounds.
  4. Policy Consideration:
    1. Effect of free trade agreements on non-immigrant populations – some visa types move more freely across borders than other visa types, but only with certain countries.
    2. Controversies over temporary workers:
      1. The Border Security, Economic Opportunity, and Immigration Modernization Act (2013) proposed higher caps for H-2 visas and making it easier to adjust to LPR status but was dead in the water in the House of Representatives.
      2. Dichotomy between “They’re taking our jobs” vs. stagnating growth in certain industries.
    3. 'Admission Procedures'
      1. 4 Basic Procedural Paths to Non-Immigrant Status:
        1. Non-citizen applies for a non-immigrant visa type at the U.S. consulate abroad. This authorizes travel but does not guarantee admission. Admission is decided at the port of entry. Category and expiration date should be generated on the admission documents.
        2. Citizens of 38 countries (predominantly in Europe) are not required to obtain visas to be admitted as business, visitor, or tourist for up to 90 days (visa waiver program).
        3. A non-citizen who has been lawfully admitted as a non-immigrant who is maintaining that status may change to a different non-immigrant status under INA § 248.
        4. Other rules apply to non-citizens from Canada or Mexico:
          1. Non-citizens from Canada may generally be admitted as non-immigrants without a visa for up to 6 months.
          2. Non-citizens from Mexico may be admitted with a Border Crossing Card, which allows a stay of up to 30 days, within 25 to 75 miles of the U.S.-Mexico border (depending on port of entry).
        5. Other Required Steps:
          1. Some employment-related categories require supporting documents and a preliminary petition to be filed on behalf of the non-immigrant.
          2. Prospective students must present documents from their school (usually an I-20 form).

REFUGEES AND ASYLEES[edit]

          1. 'Asylum and The U.N. Convention Against Torture'
            1. The U.N. Convention Against Torture and other Cruel and Unusual, Inhuman or Degrading Treatment of Punishment:
              1. Commonly known as the U.N. Convention Against Torture (“UNCAT”).
              2. International human rights treaty under the review of the U.N. that aims to prevent torture and other acts of cruel, inhuman, or degrading treatment or punishment around the world.
              3. The convention requires states to take effective measures to prevent torture in any territory under their jurisdiction and forbids states to transport people to any country where there is reason to believe they will be tortured.
              4. The text of the convention was adopted by the U.N. General Assembly.
              5. Purpose is Humanitarian Protection and creates an international legal framework for protection of Refugees.
            2. Asylum and “Non-Refoulment”:
              1. Article 3 of UNCAT bans non-refoulment of asylum seekers and refugees.
              2. Refoulment” is the act of returning or extraditing a person to a country where there are substantial grounds for believing there is a danger of that person being subjected to torture or other cruel, inhuman, or degrading acts.
  • Asylum in the U.S.:
    1. Applications for Protection:
      1. Treated automatically as non-refoulment.
      2. Must be filed within one year of arrival in the U.S (INA § 208(a)(2)(B)).
      3. 4 Types of Applications:
        1. 'Affirmative Applications:'
          1. Applicants who are not going through removal proceedings.
          2. Applications are submitted to USCIS for review, and denials of asylum claims are reviewed by IJs.
        2. 'Defensive Applications:'
          1. If applicant is already in removal proceedings, the asylum claim goes directly to the IJ.
          2. Asylum claim usually brought after applicant is ordered removed as a defensive remedy.
          3. Applications in Expedited Removal Proceedings.
        3. Work Authorization usually granted for well-founded/non-frivolous asylum claims.
      4. 'Substantive Criteria for Asylum'
        1. Definition of “Refugee” (INA § 101(a)(42)):
8 U.S.C § 1101(a)(42)
§ 1101 Definitions
(a) As used in this chapter-
(42) The term "refugee" means (A) 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, or (B) in such special circumstances as the President after appropriate consultation (as defined insection 1157(e) of this title) may specify, any person who is within the country of such person's nationality or, in the case of a person having no nationality, within the country in which such person is habitually residing, and who is persecuted or who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The term "refugee" does not include any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion. For purposes of determinations under this chapter, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well-founded fear that he or she will be forced to undergo such a procedure or 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.
  1. Authority and Conditions for Granting Asylum (INA § 208):
8 U.S.C. § 1158: Asylum
(a) Authority to apply for asylum
(1) 'In generalAny alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable,section 1225(b) of this title.'
(2) Exceptions
(A) 'Safe third countryParagraph (1) shall not apply to an alien if the Attorney General determines that the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien's nationality or, in the case of an alien having no nationality, the country of the alien's last habitual residence) in which the alien's life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection, unless the Attorney General finds that it is in the public interest for the alien to receive asylum in the United States.'
(B) Time LimitSubject to subparagraph (D), paragraph (1) shall not apply to an alien unless the alien demonstrates by clear and convincing evidence that the application has been filed within 1 year after the date of the alien's arrival in the United States.
(C) Previous asylum applicationsSubject to subparagraph (D), paragraph (1) shall not apply to an alien if the alien has previously applied for asylum and had such application denied.
(D) 'Changed circumstancesAn application for asylum of an alien may be considered, notwithstanding subparagraphs (B) and (C), if the alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant's eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within the period specified in subparagraph (B).'
(3) 'Limitations on judicial reviewNo court shall have jurisdiction to review any determination of the Attorney General under paragraph (2).'
(b) Conditions for granting asylum
(1) In general
(A) 'EligibilityThe Secretary of Homeland Security or the Attorney General may grant asylum to an alien who has applied for asylum in accordance with the requirements and procedures established by the Secretary of Homeland Security or the Attorney General under this section if the Secretary of Homeland Security or the Attorney General determines that such alien is a refugee within the meaning ofsection 1101(a)(42)(A) of this title.'
(B) Burden of proof
(i) 'In generalThe burden of proof is on the applicant to establish that the applicant is a refugee, within the meaning ofsection 1101(a)(42)(A) of this title. To establish that the applicant is a refugee within the meaning of such section, the 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.'
(ii) 'Sustaining burdenThe testimony of the applicant may be sufficient to sustain the applicant's burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant's testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. In determining whether the applicant has met the applicant's burden, the trier of fact may weigh the credible testimony along with other evidence of record. Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.'
(iii) 'Credibility determinationConsidering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant's or witness's account, the consistency between the applicant's or witness's written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim, or any other relevant factor. There is no presumption of credibility, however, if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal.'
(2) Exceptions
(A) 'In generalParagraph (1) shall not apply to an alien if the Attorney General determines that-'
(i) the alien ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion;'
(ii) the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States;
(iii) there are serious reasons for believing that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States;
(iv) there are reasonable grounds for regarding the alien as a danger to the security of the United States;
(v) the alien is described in subclause (I), (II), (III), (IV), or (VI) ofsection 1182(a)(3)(B)(i) of this titleorsection 1227(a)(4)(B) of this title(relating to terrorist activity), unless, in the case only of an alien described in subclause (IV) ofsection 1182(a)(3)(B)(i) of this title, the Attorney General determines, in the Attorney General's discretion, that there are not reasonable grounds for regarding the alien as a danger to the security of the United States; or
(vi) the alien was firmly resettled in another country prior to arriving in the United States.
(B) Special rules
(i) 'Conviction of aggravated felonyFor purposes of clause (ii) of subparagraph (A), an alien who has been convicted of an aggravated felony shall be considered to have been convicted of a particularly serious crime.'
(ii) 'OffensesThe Attorney General may designate by regulation offenses that will be considered to be a crime described in clause (ii) or (iii) of subparagraph (A).'
(c) Asylum Status
(1) 'In generalIn the case of an alien granted asylum under subsection (b), the Attorney General-'
(A) shall not remove or return the alien to the alien's country of nationality or, in the case of a person having no nationality, the country of the alien's last habitual residence;'
(B) shall authorize the alien to engage in employment in the United States and provide the alien with appropriate endorsement of that authorization; and
(C) may allow the alien to travel abroad with the prior consent of the Attorney General.
(2) 'Termination of AsylumAsylum granted under subsection (b) does not convey a right to remain permanently in the United States, and may be terminated if the Attorney General determines that-'
(A) the alien no longer meets the conditions described in subsection (b)(1) owing to a fundamental change in circumstances;'
(B) the alien meets a condition described in subsection (b)(2);
(C) the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien's nationality or, in the case of an alien having no nationality, the country of the alien's last habitual residence) in which the alien's life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien is eligible to receive asylum or equivalent temporary protection;
(D) the alien has voluntarily availed himself or herself of the protection of the alien's country of nationality or, in the case of an alien having no nationality, the alien's country of last habitual residence, by returning to such country with permanent resident status or the reasonable possibility of obtaining such status with the same rights and obligations pertaining to other permanent residents of that country; or
(E) the alien has acquired a new nationality and enjoys the protection of the country of his or her new nationality.
(3) Removal when asylum is terminated
  1. Establishing Asylum Eligibility (8 C.F.R. § 208.13)
8 C.F.R. § 208.13 – Establishing asylum eligibility
(a) Burden of proof. The burden of proof is on the applicant for asylum to establish that he or she is a refugee as defined in section 101(a)(42) of theAct. The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration. The fact that the applicant previously established a credible fear of persecution for purposes of section 235(b)(1)(B) of theActdoes not relieve thealienof the additional burden of establishing eligibility for asylum.
(b) Eligibility. The applicant may qualify as a refugee either because he or she has suffered past persecution or because he or she has a well-founded fear of future persecution.'''''
(1) Past persecution. An applicant shall be found to be a refugee on the basis of past persecution if the applicant can establish that he or she has suffered persecution in the past in the applicant's country of nationality or, if stateless, in his or her country of last habitual residence, on account of race, religion, nationality, membership in a particular social group, or political opinion, and is unable or unwilling to return to, or avail himself or herself of the protection of, that country owing to such persecution. An applicant who has been found to have established such past persecution shall also be presumed to have a well-founded fear of persecution on the basis of the original claim. That presumption may be rebutted if an asylum officer orimmigration judgemakes one of the findings described inparagraph (b)(1)(i)of this section. If the applicant's fear of future persecution is unrelated to the past persecution, the applicant bears the burden of establishing that the fear is well-founded.'''''
(iii) Grant in absence of well-founded fear of persecution. An applicant described inparagraph (b)(1)(i)of this section who is not barred from a grant of asylum underparagraph (c)of this section, may be granted asylum, in the exercise of the decision-maker's discretion, if:'''''
(A) The applicant has demonstrated compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution; or'''''
(B) The applicant has established that there is a reasonable possibility that he or she may suffer other serious harm upon removal to that country.
(2) Well-founded fear of persecution.''''''''''
(i) An applicant has a well-founded fear of persecution if:'''''
(A) The applicant has a fear of persecution in his or her country of nationality or, if stateless, in his or her country of last habitual residence, on account of race, religion, nationality, membership in a particular social group, or political opinion;
(B) There is a reasonable possibility of suffering such persecution if he or she were to return to that country; and
(C) He or she is unable or unwilling to return to, or avail himself or herself of the protection of, that country because of such fear.
(ii) An applicant does not have a well-founded fear of persecution if the applicant could avoid persecution by relocating to another part of the applicant's country of nationality or, if stateless, another part of the applicant's country of last habitual residence, if under all the circumstances it would be reasonable to expect the applicant to do so.
  1. Persecution[12]:
    1. Type of Harm:
      1. Must be more severe than discrimination or harassment.
      2. Includes:
        1. Physical violence,
        2. Imprisonment, and
  • Severe economic distress
  1. Past Persecution Suffered; or
  2. Well-Founded Fear of Future Persecution:
    1. For a fear to be “well-founded,” it must be subjectively genuine, and
    2. Objectively reasonable.
    3. Mogharrabi established 4-part test to determine whether future fear of persecution is well-founded (absent objective reasonableness) [13]:
      1. Whether the asylum seeker possesses a characteristic that the persecutor whishes to overcome (or, in the alternative, whether the persecutor believes such characteristic exists);
      2. Whether the persecutor is aware or could become aware that the asylum seeker possesses that characteristic;
  • Whether the persecutor has the capability to persecute the asylum seeker; and
  1. Whether the persecutor is inclined to persecute the asylum seeker.
  • Protected Grounds:
    1. Political Opinion[14]
    2. Race, Nationality, or Religion
    3. Membership in a Particular Social Group[15] [16]:
      1. Held to include gender, sexual orientation, victims of genital mutilation, gang affiliation, and others.
      2. When determining if a person is a member of a particular social group, courts focus on:
        1. Particularity,
        2. Social visibility, and
  • Social distinction.
  1. 3-Part Rule (M-E-V-G-): To have membership in a particular social group, the group must:
    1. Be composed of members who share a common immutable characteristic;
    2. Be defined with particularity; and
  • Be socially distinct within society.
  1. U.N. Convention Against Torture Grounds
  2. Nexus Required Between the Persecution and the Protected Grounds for Asylum Approval.
  3. Application for Asylum and for Withholding of Removal (Form I-589).
  4. Allowed to work, bring immediate family members, apply for public assistance, and after one year can adjust to LPR status.

IMMIGRANT ADMISSIONS, CATEGORIES, AND PROCEDURES[edit]

    1. 'Immigrant Admission Categories'
      1. 4 Main Categories of Immigrants:
Family-Sponsored Immigrants · Immediate relatives of U.S. citizens· No statutory ceiling (about 500,000 in recent years)· Preference Categories (226,000/year):o 1: unmarried sons and daughters of U.S. citizenso 2A: spouses and children of LPRso 2B: unmarried sons and daughters of LPRso 3: married sons and daughters of U.S. citizenso 4: brothers and sisters of U.S. citizens if citizen is 21 or older.
Employment-Based Immigrants Preference categories (140,000/year):· 1A: extraordinary ability· 1B: outstanding professors and researchers· 1C: multinational executives and managers· 2: advanced degrees or exceptional ability· 3: bachelor’s degrees or shortage occupations (of these, ‘unskilled workers’ are capped at 5,000/year)· 4: special immigrants· 5: investors
Diversity Immigrants Capped at 50,000/year
Humanitarian Admissions · Overseas refugees (no statutory ceiling; between 56,000 and 75,000 refugee arrivals in 2009-2014)· Asylum seekers (no statutory ceiling; between 21,000 and 29,000 asylum grants in 2009-2014)
  1. 2 Broad Categories:
    1. Those subject to numerical quotas
    2. Those not subject to numerical restrictions
  • Family-Sponsored Immigrants:
    1. Immediate Relatives:
      1. Immediate relatives include:
        1. Children,
        2. Spouses,
  • Parents,
  1. Step-parents and step-children,
  2. Adopted parents and children
  3. Under INA § 101(b)(1), to be considered a “child”:
    1. The child must be under 21 and unmarried; or
    2. In cases where a marriage created a step-parent/child relationship, the marriage must have occurred before the child turned 18.
  4. Preference Categories:
    1. First Preference: Unmarried sons and daughters of U.S. citizens.
    2. Second Preference:
      1. Spouses and unmarried sons and daughters of lawful permanent residents.
      2. Offspring 21 years or older (2B) may not claim more than 23% of this preference. The other 77% is reserved for spouses and minor children (2A).
    3. Third Preference: Married sons and daughters of U.S. citizens and their children.
    4. Fourth Preference:
      1. Brothers and sisters of U.S. citizens.
      2. Each child must have been the child of the same parent, and the petitioning citizen sibling must be at least 21 years old.
    5. Derivative Beneficiaries:
      1. Those that fit one of the preference categories but fall outside of the requirements.
      2. They may still be admitted, but their preference number is charged against the ceiling of the category’s admission total.
    6. Special Juvenile Status:
      1. Presence in U.S.
      2. Declaration by court or placement.
      3. Reunification not viable due to abuse, neglect, or abandonment.
      4. Not in juvenile’s best interest to send back.
      5. DHS’s consent to grant request to not remove juvenile.
    7. Employment-Based Immigrants (EB-Visas):
      1. There are 5 EB categories, with a total of 140,000 admissions annually (see INA § 203(b)).
      2. Preference Categories:
        1. First Preference:
          1. EB-1A: Extraordinary ability in the sciences, arts, education, business, or athletics (requires sustained national or international acclaim).
          2. EB-1B: Outstanding professors and researchers.
  • EB-1C: Certain multinational executives and managers (as defined under INA § 101(a)(44)).
  1. Totals 40,000 admissions annually.
  2. Second Preference:
    1. Professionals with advanced degrees or their equivalent or who, because of their exceptional abilities in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural, or educational interests, or welfare of the U.S.
    2. 40,000 admissions annually.
  • Their services must be sought by an employer (unless this requirement is waived in the national interest).
  1. Third Preference:
    1. Professionals having only a bachelor’s degree, and skilled and unskilled workers who would fill positions for which there is a shortage of American workers.
    2. 40,000 admissions annually.
  • As a compromise to put pressure on employers to attract unemployed American workers, Congress capped the number of “unskilled” worker immigrants at 5,000 annually.
  1. Fourth Preference:
    1. “Special immigrants” as defined by INA § 101(a)(27)(C)-(M).
    2. 10,000 admissions annually.
  • Includes religious workers, former long-time employees of the U.S. government or international organizations, and other miscellaneous categories.
  1. Also includes immigrants in Special Immigrant Juvenile Status (SIJS)
    1. Scope of SIJS was to include victims of human and sex trafficking.
    2. Allows for undocumented children migrants to obtain LPR status despite unlawful entry.
  2. Fifth Preference:
    1. Investors.
    2. Roughly 10,000 admissions annually.
  • The investment must create a minimum of 10 jobs in the U.S. economy, and the minimum investment is $1 million (or less if a rural or high unemployment area or invested through a USCIS economic growth plan).
  1. Diversity Immigrants:
    1. Qualification requires either:
      1. High school education or equivalent, or
      2. At least 2 years working in an occupation that requires at least 2 years of training/experience to learn.
    2. Admissions based on annual lottery/countries the U.S. wishes to attract or limit immigrants from. The idea is to get a diverse pool of immigrants.
    3. Lottery winner may bring spouse and children with them.
  2. Humanitarian Immigration (See Above).
  3. 'Admission Procedures'
    1. Petitioning:
      1. 1st, 2nd, and 3d preference EB categories cannot self-petition as a general rule; an employer must petition for them. INA § 204(a)(1)(F).
      2. Exceptions: Aliens with exceptional abilities (EB-1A) and second preference with a national interest waiver may self-petition.
      3. Most 4th and 5th preference EB categories may self-petition (INA § 204(a)(1)(E), (G), and (H)).
      4. Family-sponsored immigrants must have a sponsor petition for them (similar to EB categories with employer sponsor).
      5. Violence Against Women Act (“VAWA”) exception: Women and child victims of domestic abuse may petition on their own behalf without a family sponsor.
      6. 3 Types of Petition:
        1. Family (Form I-130)
        2. Employment (Form I-140)
        3. Self (Form I-360)
      7. The visa petition establishes the relationship of petitioner to the immigrant.
      8. The visa petition involves 2 steps:
        1. Petitioner completes and files the petition with USCIS.
          1. Visa petition filed by family member or employer on behalf of non-citizen beneficiary.
          2. Petitioner files by mail with USCIS to be checked for completeness, which is then forwarded to the State Department’s National Visa Center (NVC) where it is given a priority date.
  • NVC notifies non-citizen beneficiary of priority date (or petition is held until one is available). Priority date is assigned by preference category.
  1. Once petition is approved, the immigrant completes the visa process at the U.S. consulate abroad.
    1. When priority date is received, NVC forwards file to overseas consulate where process is completed by beneficiary in person.
    2. Beneficiary receives instruction packet:
      1. Fill out form DS-260 (U.S. Visa Application)
      2. In-person interview (no right to have counsel present)
      3. Medical examination
      4. Fees must be paid
      5. Criminal background check/police certificate
      6. Affidavits in support of application
      7. ID/birth certificate
  • If no consulate is available or beneficiary cannot return to their homeland due to hardship, war, or infirmity, a consulate may be used in another country.
  1. If denied at consulate, non-citizen beneficiary may appeal to supervisor or manager. No appeals to courts (doctrine of non-reviewability).
  2. At the port of entry:
    1. CBP officer inspects documents and questions visa holder.
    2. If CBP officer finds no disqualifications, officer keeps documents and makes notation of admission as an LPR in the passport, and will forward necessary papers for issuance of the Permanent Residence Card (Form I-551 AKA “Green Card”).
    3. Green cards issued are valid for 10 years.
  3. Labor Certification:
    1. Immigrants in the 2nd preference category require labor certification unless it is waived under the national interest exception.
    2. 3rd preference always require labor certification
    3. Labor certification requires:
      1. No adverse effect on wages or availability of employment for working citizen population in the U.S. (presumption of no adverse impact if there are no able, willing, or qualified workers),
      2. A firm job offer, and
      3. Wages must be at or above industry standard (prevailing wage – cannot be below).
  • 'Numerical Limits:'
    1. Once a category has reached its numerical cap for the year, priority dates are given to applicants for the next year.
    2. Visas are issued in chronological order of application submission.
    3. The Visa Office at DOS publishes monthly charts showing how far down the waiting list someone is for their priority date.
    4. Conversion and Aging Out:
      1. Conversion – when someone changes status (e.g., marital status) after submitting visa application, they may keep the priority date in the same column but must consider themselves converted to another preference category.
      2. Aging out – as the priority date approaches, what date do we consider the age of the child?
        1. Options:
          1. Date at filing the visa petition
          2. Date petition approved
          3. Date beneficiary applies for visa or adjustment of status
          4. Date visa issues
          5. Actual date of admission or adjustment of status is granted.
        2. For immediate relatives, only consider date of filing of the visa petition.
      3. 'Marriage-Based Immigration'
        1. Marriage must be valid in the country where it took place.
        2. Marriage must qualify under INA § :
          1. No proxy marriage unless there is proof of consummation.
          2. No polygamous marriages.
          3. Conditional permanent residence:
            1. If marriage took place less than 2 years before the visa was issued.
            2. To remove:
              1. Valid under the laws where it took place;
              2. Has not been judicially annulled or terminated other than through death of the spouse; and
              3. Was not entered into for immigration benefits.
  • Joint petition filed before 2-year anniversary of visa. Only after 2-year anniversary if for good cause or extenuating circumstances.
  1. Waiver of joint petition if one condition cannot be established:
    1. Extreme hardship would result if removed;
    2. Marriage was in good faith but has been terminated and the non-citizen was not at fault in failing to meet the requirements for removal of the condition.
    3. Marriage was entered in good faith by the non-citizen and during the marriage the non-citizen was subject to cruelty or abuse, and the non-citizen was not at fault for failure to meet the requirements for removal of the condition.
  2. Can be terminated also:
    1. If determined marriage was entered into for the purpose of procuring immigration status or annulled judicially.
    2. Spouses may self-petition to remove.
    3. Victims of domestic violence
    4. Widows and widowers
  3. 'The Chevron Doctrine'
    1. Chevron, Inc. v. NRDC, 467 U.S. 837 (1984):
      1. Power and deference given to administrative agency statutory interpretations because administrative agencies are more likely to know what the needs of the agency is on a day-to-day basis.
      2. Agency better understands the operational implications. Agency courts understand better than courts of general jurisdiction.
    2. United States v. Mead Corp., 533 U.S. 218 (2001):
      1. Decision limits the Chevron doctrine, requiring delegated authority by the legislative branch to make the rules, and the agency rules must be promulgated in the exercise of that authority.
      2. Suggests interpretations would ordinarily meet this test if agencies abide by APA rulemaking procedures such as the notice-and-comment requirement. Less formal rulemaking = less deference.
    3. National Cable & Telecomm. Assn. v. Brand X Internet Services., 545 U.S. 967 (2005): An agency need not follow a court’s interpretation of a statute unless the court found that it was unambiguous and had only one possible interpretation.
    4. Fiallo v. Bell, 430 U.S. 787 (1977):
      1. The determination of who receives preferential immigration status is a political question for congress that should receive little, if any, judicial scrutiny.
      2. Since the immigrant visa petition process is not a fundamental right, it does not warrant strict scrutiny.
    5. 'Adjustment of Status'
      1. Historical Background:
        1. Prior to enactment of INA § 245, the U.S. allowed aliens from some countries to temporarily leave the U.S., petition for immigrant visas, and return (aka “flagpole” immigration).
        2. The U.S. had an agreement with Canada that allowed deportation for flagpole immigration purposes with the understanding that they would be allowed to return shortly thereafter.
        3. The agreements did not pertain to immigrants from Mexico and the Caribbean islands, leading some to believe the policy was racially motivated, which lead to the enactment of INA § 245 – allowing for adjustment of status for non-immigrants.
      2. Overview of INA § 245 (Adjustment of Status of Non-Immigrants to that of a Person Admitted for Permanent Residence):
        1. Process in general:
          1. Sponsor must also file petition with USCIS (same as with immigrant visas).
          2. After visa petition is approved, the beneficiary seeking adjustment fills out form I-485 (Application to Register Permanent Residence or Adjust Status) and files with USCIS.
  • Adjustment of status replaces the need for travelling to a U.S. consulate abroad to obtain an immigrant visa.
  1. USCIS has discretion to grant/deny adjustment of status.
  2. USCIS treats non-citizen beneficiary as though they were at the border awaiting admission, except:
    1. Interview requirement is often waived, and
    2. Work authorization is often approved while application is pending.
  3. Leaving the U.S. is treated as abandonment of the process.
  • Adjustment can be used as a method for relief pending removal proceedings.
  1. Adjustment under INA §§ 245(a) and (c):
    1. INA § 245(a) sets forth requirements for adjustment of status, which requires:
      1. Lawful admittance (inspected by CPB);
      2. Eligibility to receive permanent residence status and immigrant visa; and
      3. Immigrant visa is immediately available upon filing of the application (priority date is current).
    2. INA § 245(c) sets forth disqualifications:
      1. Generally, adjustment status unavailable to:
        1. Entrants Without Inspection (“EWIs”) [17];
        2. People admitted under visa waiver programs;
        3. People admitted who worked without authorization or failed to maintain a continuous lawful presence (unless they are immediate relatives of a U.S. citizen);
        4. Parolees; and
        5. People who have worked without authorization in violation of the terms of their non-immigrant visa.
      2. Also disqualifies:
        1. People who engage in or accept unauthorized employment;
        2. People with unlawful immigration status;
        3. Any alien admitted transit without a visa;
        4. Any alien who is deportable;
        5. Any alien who was admitted as a non-immigrant visitor;
      3. Adjustment of Status of Certain Aliens Physically Present in the U.S. (INA § 245(i)):
        1. Allows anyone whose visa application that have been pending since before January 1, 2001 to pay a $1,000 fee to overcome the inspection requirement.
        2. Congress allowed statute to lapse, but applications pending since that date have been grandfathered to allow for old policy.
      4. Admission vs. Parole: When an alien is paroled into the U.S. they are released on the supervision of DHS. Parole is not admission because they have not yet obtained their visa. A person is paroled while their visa application is still pending.

GROUNDS FOR INADMISSIBILITY[edit]

    1. 'Grounds for Inadmissibility (INA § 212(a))'
8 U.S.C. § 1182: Inadmissible aliens
(a) 'Classes of aliens ineligible for visas or admissionExcept as otherwise provided in this chapter, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:'
(1) Health-related grounds
(2) Criminal and related grounds
(A) Conviction of certain crimes
(i) 'In generalExcept as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-'
(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or'
(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined insection 802 of title 21),
is inadmissible.
(ii) 'ExceptionClause (i)(I) shall not apply to an alien who committed only one crime if-'
(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or'
(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).
(B) 'Multiple criminal convictionsAny alien convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement were 5 years or more is inadmissible.'
(C) 'Controlled substance traffickersAny alien who the consular officer or the Attorney General knows or has reason to believe-'
(i) is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined insection 802 of title 21), or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical, or endeavored to do so; or'
(ii) is the spouse, son, or daughter of an alien inadmissible under clause (i), has, within the previous 5 years, obtained any financial or other benefit from the illicit activity of that alien, and knew or reasonably should have known that the financial or other benefit was the product of such illicit activity,
is inadmissible.
(D) Prostitution and commercialized vice
(3) Security and related grounds
(B) Terrorist activities
(D) Immigrant membership in totalitarian party
(E) Participants in Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing
(9) Aliens previously removed
(A) Certain aliens previously removed
(B) Aliens unlawfully present
(C) Aliens unlawfully present after previous immigration violations
(iii) 'WaiverThe Secretary of Homeland Security may waive the application of clause (i) in the case of an alien who is a VAWA self-petitioner if there is a connection between-'
(I) the alien's battering or subjection to extreme cruelty; and'
(II) the alien's removal, departure from the United States, reentry or reentries into the United States; or attempted reentry into the United States.
(h) 'Waiver of subsection (a)(2)(A)(i)(I), (II), (B), (D), and (E)The Attorney General may, in his discretion, waive the application of subparagraphs (A)(i)(I), (B), (D), and (E) of subsection (a)(2) and subparagraph (A)(i)(II) of such subsection insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana if-'
(1)(A) in the case of any immigrant it is established to the satisfaction of the Attorney General that-'
(i) the alien is inadmissible only under subparagraph (D)(i) or (D)(ii) of such subsection or the activities for which the alien is inadmissible occurred more than 15 years before the date of the alien's application for a visa, admission, or adjustment of status,
(ii) the admission to the United States of such alien would not be contrary to the national welfare, safety, or security of the United States, and
(iii) the alien has been rehabilitated; or
(B) in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien; or
(C) the alien is a VAWA self-petitioner; and
(2) the Attorney General, in his discretion, and pursuant to such terms, conditions and procedures as he may by regulations prescribe, has consented to the alien's applying or reapplying for a visa, for admission to the United States, or adjustment of status.
No waiver shall be provided under this subsection in the case of an alien who has been convicted of (or who has admitted committing acts that constitute) murder or criminal acts involving torture, or an attempt or conspiracy to commit murder or a criminal act involving torture. No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States. No court shall have jurisdiction to review a decision of the Attorney General to grant or deny a waiver under this subsection.
(i) Admission of immigrant inadmissible for fraud or willful misrepresentation of material fact
(1) The Attorney General may, in the discretion of the Attorney General, waive the application of clause (i) of subsection (a)(6)(C) in the case of an immigrant who is the spouse, son, or daughter of a United States citizen or of an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien or, in the case of a VAWA self-petitioner, the alien demonstrates extreme hardship to the alien or the alien's United States citizen, lawful permanent resident, or qualified alien parent or child.'
(2) No court shall have jurisdiction to review a decision or action of the Attorney General regarding a waiver under paragraph (1).
(k) 'Attorney General’s discretion to admit otherwise inadmissible aliens who possess immigrant visasAny alien, inadmissible from the United States under paragraph (5)(A) or (7)(A)(i) of subsection (a), who is in possession of an immigrant visa may, if otherwise admissible, be admitted in the discretion of the Attorney General if the Attorney General is satisfied that inadmissibility was not known to, and could not have been ascertained by the exercise of reasonable diligence by, the immigrant before the time of departure of the vessel or aircraft from the last port outside the United States and outside foreign contiguous territory or, in the case of an immigrant coming from foreign contiguous territory, before the time of the immigrant's application for admission.'

'

  1. In General:
    1. Removal disqualifies a noncitizen for admission for a period of years (depending on the grounds).
    2. Inadmissibility grounds can become deportability grounds later.
    3. INA § 212(a) lists grounds for inadmissibility:
      1. Crimes:
        1. Includes crimes of moral turpitude and aggravated felonies.
        2. See INA § 101(a)(43) for definition.
      2. Immigration Control:
        1. Includes:
          1. Inadmissible at time of entry or adjustment of status;
          2. Presence in the U.S. is a violation of law;
          3. Failure to keep up with registration requirements or change of address;
          4. Fraud and misrepresentation;
        2. Reflects Congress’s attempt to attach more serious consequences to a wider range of immigration-related violations.
  • Requires a finding of fraud and willful misrepresentation of material facts[18].
    1. Includes unlawful claims of U.S. citizenship.
    2. Can trigger expedited removal proceedings.
    3. See U.S. Foreign Affairs Manual (FAM) application of INA § 212(a)(6)(C)(i).
    4. Interpretation of the term “misrepresentation”:
      1. An affirmative assertion or manifestation not in accordance with the facts material to determining admissibility, waiver, or removal.
      2. Differentiates between “misrepresentation” and failure to volunteer information.
      3. Misrepresentation must have been made before a U.S. official.
      4. If the misrepresentation was made by the alien’s attorney, alien is still liable for the misrepresentation.
      5. Misrepresentation is the alien’s responsibility. Cannot use excuse that misrepresentation was made upon the advice of another.
    5. Interpretation of the term “willfully”:
      1. Means knowingly and intentionally.
      2. Distinguished from accidentally, inadvertently, or in honest belief.
    6. Bars Based on Other Immigration Factors:
      1. EWIs
      2. Prior removals
  • Unlawful presence bars
  1. Self-Enforcement and Immigration Control
  2. Public Charge/Public Health
  3. National Security, Foreign Policy, and the Constitution
    1. Defining Terrorism[19]
      1. Terrorist Activity: use of firearms or explosives to maim, kill, or destroy property for purposes other than personal or monetary gain.
      2. Terrorist organizations: Organizations designated by the Secretary of State.
    2. Material Support to Terrorism:
      1. Terrorist Activity: Whether the person is sympathetic to the organization’s cause.
      2. Mens Rea: Consider whether the alien intended to support the violent activities or support political or charitable activities.
      3. “Material” Support:
        1. Consider the level of support required for it to be material. Was it de minimis?
        2. “Tip-of-the-iceberg” theory: Any amount of support to a terrorist organization is material.
      4. Duress: Consider whether the person was forced to give support in their home country (e.g., kidnapped child-soldiers, people forced to provide food/supplies and labor).
  • Discretionary Exemptions:
    1. Group-Based Exemptions: Certain groups designated legislatively as non-terrorist organizations (in the wake of S-K-).
    2. Conduct-Based Exemptions.
  1. 3 Tiers of Terrorist Groups:
Tier I: Tier II:'''' Tier III:''''
· These organizations are also referred to as Foreign Terrorist Organizations (FTOs). FTOs are foreign organizations that are designated by the Secretary of State in accordance with INA § 219'· There are three basic criteria for an organization to be considered an FTO:'o It must be a foreign organization.'o The organization must engage in terrorist activity, as defined in INA § 212(a)(3)(B), or terrorism, as defined in or retain the capability and intent to engage in terrorist activity or terrorism.'o he organization’s terrorist activity or terrorism must threaten the security of U.S. nationals or the national security (national defense, foreign relations, or the economic interests) of the United States.' · The Secretary of State, in consultation with or upon the request of the Attorney General, may designate terrorist organizations for immigration purposes, after a finding that the organization engages in terrorist activity as defined in INA § 212(a)(3)(B)(iv).· This authority is known as the “Terrorist Exclusion List (TEL)” authority. A TEL designation will generally exclude aliens associated with entities on the TEL from entering the United States. · These organizations are defined by law as “a group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in,” terrorist activity.· Tier IIIorganizations are also called “undesignated terrorist organizations” because they qualify as terrorist organizations based on their activities alone without undergoing a formal designation process like Tier I and Tier II organizations.· Instead, the determination of whether a group can be considered a Tier III organization is made on a case-by-case basis, in connection with the review of an application for an immigration benefit.· Tier III organizations arise and change over time.
  1. 'The Unlawful Presence Bar and Waivers'
    1. The Unlawful Presence Bar:
      1. Non-citizens who qualify for LPR status but are ineligible to adjust generally must leave the country to obtain an immigrant visa through consular processing.
      2. If their ineligibility to adjust was due to unlawful presence in the U.S., their attempted reentry triggers a 3, 5, or 10-year bar to admission.
      3. INA § 212(a)(9)(B)(v) authorizes waivers for extreme hardship of U.S. citizen or LPR spouse or parent of the barred alien.
      4. NOTE: hardship to citizen or LPR child of alien is not grounds for waiver.
      5. In 2013, USCIS instituted a new policy:
        1. Allows aliens who would potentially face an unlawful presence bar to apply for a waiver without leaving the country to go through consular processing and triggering the reentry bar.
        2. The official must uncover no other inadmissibility grounds.
      6. Who May Qualify for Hardship Waivers?:
' Crimes'''' Unlawful Presence'''' Unlawful Presence w/ Previous Immigration Violations (9C)'''' National Security / Terrorism'''' Willful Misrepresentation''''
Spouse'''' Yes Yes No Yes Yes
Parent'''' Yes Yes No Yes Yes
Child'''' Yes No No Yes No

GROUNDS FOR REMOVABILITY AND CRIMINAL CONVICTIONS[edit]

    1. 'The Concept of Deportation'
      1. Removal and Punishment:
        1. Courts do not consider deportation a form of punishment for crimes.
        2. The 8th amendment prohibition against cruel and unusual punishment does not apply to deportation for both criminal and non-criminal acts (see Fong Yue Ting).
        3. Residence certificate requirement in Fong Yue Ting has since been overturned, but concept of deportation as applied to the 8th amendment still holds today.
      2. Retroactivity:
        1. The Ex Post Facto Clause[20]:
          1. The ex post facto clause generally does not apply to deportation statutes.
          2. A non-citizen may be deported for conduct that did not render them deportable at the time the act occurred.
          3. The Supreme Court has repeatedly rejected ex post facto challenges. See Mahler v. Eby (upholding retroactive application of a 1920 statute to a 1918 conviction under the Selective Draft and Espionage Acts of 1917); see also Marcello v Bonds (upholding retroactive application of a 1952 deportation statute to a 1938 marijuana-related conviction).
        2. The Due Process Clause:
          1. The Supreme Court scrutinizes liabilities based on past acts under rational basis review. See Eastern Enterprises v. Apfel.
          2. Legislation might be unconstitutional if it imposes severe retroactive liability on a limited class of parties that could not have anticipated the liability, and the extent of the liability is substantially disproportionate to the parties’ experience.
        3. Statutory Interpretation Doctrines:
          1. Clear statement requirement.
          2. Rule of lenity applies.
          3. Avoidance of constitutional doubt.
        4. Deportability Grounds and the Passage of Time:
          1. Time Before the Initiation of Removal Proceedings: Should there be a statute of limitations?
          2. Time Between Admission and a Deportable Act.
        5. 'Grounds for Deportation (INA '§' 237(a))'
8 U.S.C. § 1227'Deportable aliens''''
(a) 'Classes of deportable aliens)Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens:'
(1) Inadmissible at time of entry or of adjustment of status or violates status
(2) Criminal offenses
(A) General crimes
(i) 'Crimes of moral turpitudeAny alien who-'
(I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status undersection 1255(j) of this title) after the date of admission, and'
(II) is convicted of a crime for which a sentence of one year or longer may be imposed,
is deportable.
(ii) 'Multiple criminal convictionsAny alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable.'
(iii) 'Aggravated felonyAny alien who is convicted of an aggravated felony at any time after admission is deportable.'
(B) Controlled substances
(i) 'ConvictionAny alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined insection 802 of title 21), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.'
(ii) 'Drug abusers and addictsAny alien who is, or at any time after admission has been, a drug abuser or addict is deportable.'
(E) Crimes of domestic violence, stalking, or violation of protection order, crimes against children
(i) 'Domestic violence, stalking, and child abuseAny alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable. For purposes of this clause, the term "crime of domestic violence" means any crime of violence (as defined insection 16 of title 18) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from that individual's acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.'
(ii) 'Violators of protection ordersAny alien who at any time after admission is enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable. For purposes of this clause, the term "protection order" means any injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or child custody orders or provisions) whether obtained by filing an independent action or as a pendente lite order in another proceeding.'
(3) Failure to register or falsification of documents
(A) 'Change of addressAn alien who has failed to comply with the provisions ofsection 1305 of this titleis deportable, unless the alien establishes to the satisfaction of the Attorney General that such failure was reasonably excusable or was not willful.'
(B) 'Failure to register or falsification of documentsAny alien who at any time has been convicted-'
(i) (i) undersection 1306(c) of this titleor under section 36(c) of the Alien Registration Act, 1940,'
(ii) (ii) of a violation of, or an attempt or a conspiracy to violate, any provision of the Foreign Agents Registration Act of 1938 (22 U.S.C. 611 et seq.), or
(iii) of a violation of, or an attempt or a conspiracy to violate,section 1546 of title 18(relating to fraud and misuse of visas, permits, and other entry documents),

'

  1. Crimes and Convictions:
    1. Immigration and Criminal Law[21]: Before considering a guilty plea, non-citizen criminal defendants should be advised of the potential for deportation consequences under the 6th amendment right to effective assistance of counsel.
    2. The Basics of Crime-Related Deportability:
      1. Crimes Involving “Moral Turpitude”:
      2. Aggravated Felonies
  • Drug Offenses
  1. Crimes of Domestic Violence
  2. Definition of “Conviction” (INA '§' 101(a)(48)):
8 U.S.C. § 1101: Definitions
(a) As used in this chapter-'
(48)(A) The term "conviction" means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where-
(i) a judge or jury has found the alien guilty or the alien 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 alien's liberty to be imposed.
(B) Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.
  1. Expungements
  2. Sentence Reductions
  • Pardons
  1. Other Post-Conviction Relief
  2. Crimes of Moral Turpitude (CMT)[22]:
    1. Vague term, generally defined as “an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men or to society in general, contrary to the accepted and customary rule of right and duty between man and man.
    2. Compare to and consider the standard of conduct used in other areas of law, including canons of ethics, license revocations, and impeachment of witnesses.
    3. General agreement CMT includes 3 broad categories:
      1. Serious crimes against persons (murder, voluntary manslaughter, rape, aggravated assault, and kidnapping);
      2. Serious property crimes (arson, burglary, and embezzlement); and
  • Crimes with an element of fraud.
  1. Can also include crimes with generic terms that imply CMT within their elements, such as theft, fraud, or assault.
  2. Aggravated Felonies:
    1. Definition of “Aggravated Felony” (INA '§' 101(a)(43)):
8 U.S.C. § 1101: Definitions
(a) As used in this chapter-'
(43) The term "aggravated felony" means-
(A) murder, rape, or sexual abuse of a minor;
(B) illicit trafficking in a controlled substance (as defined insection 802 of title 21), including a drug trafficking crime (as defined insection 924(c) of title 18);
(C) illicit trafficking in firearms or destructive devices (as defined insection 921 of title 18) or in explosive materials (as defined in section 841(c) of that title);
(D) an offense described insection 1956 of title 18(relating to laundering of monetary instruments) or section 1957 of that title (relating to engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds exceeded $10,000;
(F) a crime of violence (as defined insection 16 of title 18, but not including a purely political offense) for which the term of imprisonment at least one year;
(G) a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment atleast one year;
(H) an offense described insection 875, 876, 877, or 1202 of title 18(relating to the demand for or receipt of ransom);
(I) an offense described insection 2251, 2251A, or 2252 of title 18(relating to child pornography);
(J) an offense described insection 1962 of title 18(relating to racketeer influenced corrupt organizations), or an offense described in section 1084 (if it is a second or subsequent offense) or 1955 of that title (relating to gambling offenses), for which a sentence of one year imprisonment or more may be imposed;
(K) an offense that-
(i) relates to the owning, controlling, managing, or supervising of a prostitution business;
(ii) is described insection 2421, 2422, or 2423 of title 18(relating to transportation for the purpose of prostitution) if committed for commercial advantage; or
(iii) is described in any ofsections 1581–1585 or 1588–1591 of title 18(relating to peonage, slavery, involuntary servitude, and trafficking in persons);
(M) an offense that-
(i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or
(ii) is described insection 7201 of title 26(relating to tax evasion) in which the revenue loss to the Government exceeds $10,000;
  1. Crimes of Violence (18 U.S.C. § 16)[23] [24]:
18 U.S.C. § 16: Crime of violence defined
The term “crime of violence” means—'
(a) anoffensethat has as an element the use, attempted use, or threatened use of physical force against thepersonor prop­erty of another, or
(b) any otheroffensethat is afelonyand that, by its nature, involves a substantial risk that physical force against thepersonor property of another may be used in the course of committing theoffense.
  1. Requires a mens rea of intent to harm.
  2. Crimes without specific intent do not count as a crime of violence (e.g., DUIs).
  • Crime of violence requires:
    1. Use of force against a person or property, or
    2. The crime by its nature involves a substantial risk that physical force may be used in the course of the offense.
  1. Negligence is not enough.
  2. Excludes most driving offenses where there is a general intent element, since intent element is satisfied through a demonstration of the offense merely occurring. Since in general intent crimes it is more of a culpability issue (proving knowing/should have known) vs. actual mens rea (intent to commit).
  3. Analyzing Aggravated Felonies: Categorical vs. Modified Categorical Approach[25] [26] [27]:
Categorical Approach Modified Categorical Approach''''
· Conviction must establish factors that would make the offense punishable as an aggravated felony under federal law.· Elements of the offense alien was convicted of are compared to elements of the federal rule under which government is seeking removal as “aggravated felony.”· Ignore facts in record. · Approach is used when conviction under a statute is categorically broader than the generic offense.· The court may consider extra-statutory documents to assess whether defendant has been convicted of a particular statutory definition that corresponds to the generic offense.· When determining whether to use this approach:o Look to the statutory elements,o Are they divisible? Ask:§ is there more than one way to commit the crime under the elements? Or§ is it impossible to tell, without looking into the record, the manner in which the crime was committed?o If the statute is divisible, then the court may use MCA, but only to assess whether elements of generic crime were met.
  1. State Felonies That Are Federal Misdemeanors[28]
  2. State Misdemeanors as Aggravated Felonies[29]
    1. Some state misdemeanors can be deportable offenses.
    2. Misdemeanors are generally crimes punishable by 1 year or less in jail (365 days or less).
  • Example: See Minn. Stat. § 609.3451 Criminal Sexual Conduct in the Fifth Degree, which can be charged as a gross misdemeanor under subd. 2.
  1. This generally just applies to gross misdemeanors in MN (91-365 days of jail and/or fine of not more than $3,000).
  2. 'Removal Proceedings (INA § 240):'
8 U.S.C. 1229a: Removal Proceedings
(a) Proceeding
(1) 'In generalAn immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien.'
(2) 'ChargesAn alien placed in proceedings under this section may be charged with any applicable ground of inadmissibility undersection 1182(a) of this titleor any applicable ground of deportability undersection 1227(a) of this title.'
(3) 'Exclusive proceduresUnless otherwise specified in this chapter, a proceeding under this section shall be the sole and exclusive procedure for determining whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States. Nothing in this section shall affect proceedings conducted pursuant tosection 1228 of this title.'
(b) Conduct of proceeding
(1) 'Authority of immigration judgeThe immigration judge shall administer oaths, receive evidence, and interrogate, examine, and cross-examine the alien and any witnesses. The immigration judge may issue subpoenas for the attendance of witnesses and presentation of evidence. The immigration judge shall have authority (under regulations prescribed by the Attorney General) to sanction by civil money penalty any action (or inaction) in contempt of the judge's proper exercise of authority under this chapter.'
(4) Alien’s rights in proceedingIn proceedings under this section, under regulations of the Attorney General-
(A) the alien shall have the privilege of being represented, at no expense to the Government, by counsel of the alien's choosing who is authorized to practice in such proceedings,'
(B) the alien shall have a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien's own behalf, and to cross-examine witnesses presented by the Government but these rights shall not entitle the alien to examine such national security information as the Government may proffer in opposition to the alien's admission to the United States or to an application by the alien for discretionary relief under this chapter, and'
(C) a complete record shall be kept of all testimony and evidence produced at the proceeding.
(7) 'Limitation on discretionary relief for failure to appearAny alien against whom a final order of removal is entered in absentia under this subsection and who, at the time of the notice described in paragraph (1) or (2) ofsection 1229(a) of this title, was provided oral notice, either in the alien's native language or in another language the alien understands, of the time and place of the proceedings and of the consequences under this paragraph of failing, other than because of exceptional circumstances (as defined in subsection (e)(1)) to attend a proceeding under this section, shall not be eligible for relief undersection 1229b, 1229c, 1255, 1258, or 1259 of this titlefor a period of 10 years after the date of the entry of the final order of removal.'
(c) Decision and burden of proof
(1) Decision
(A) 'In generalAt the conclusion of the proceeding the immigration judge shall decide whether an alien is removable from the United States. The determination of the immigration judge shall be based only on the evidence produced at the hearing.'
(2) 'Burden on alienIn 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 to be admitted and is not inadmissible undersection 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.
(4) Applications for relief from removal
(A) 'In generalAn alien applying for relief or protection from removal has the burden of proof to establish that the alien-'
(i) satisfies the applicable eligibility requirements; and'
(ii) with respect to any form of relief that is granted in the exercise of discretion, that the alien merits a favorable exercise of discretion.
(B) The applicant must comply with the applicable requirements to submit information or documentation in support of the applicant's application for relief or protection as provided by law or by regulation or in the instructions for the application form. In evaluating the testimony of the applicant or other witness in support of the application, the immigration judge will determine whether or not the testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant has satisfied the applicant's burden of proof. In determining whether the applicant has met such burden, the immigration judge shall weigh the credible testimony along with other evidence of record. Where the immigration judge determines that the applicant should provide evidence which corroborates otherwise credible testimony, such evidence must be provided unless the applicant demonstrates that the applicant does not have the evidence and cannot reasonably obtain the evidence.'
(C) 'Credibility determinationConsidering the totality of the circumstances, and all relevant factors, the immigration judge may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant's or witness's account, the consistency between the applicant's or witness's written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim, or any other relevant factor. There is no presumption of credibility, however, if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal.'
(6) Motions to reconsider
(A) 'In generalThe alien may file one motion to reconsider a decision that the alien is removable from the United States.'
(B) DeadlineThe motion must be filed within 30 days of the date of entry of a final administrative order of removal.
(C) 'ContentsThe motion shall specify the errors of law or fact in the previous order and shall be supported by pertinent authority.'

'

  1. Immigration Court:
    1. The role of Immigration Judges[30]:
      1. IJs conduct removal proceedings, administer oaths, receive evidence, examine/cross-examine the alien and any witnesses, issues subpoenas, sanctions, and issues rulings (INA § 240(b)(1)).
      2. Judges have a duty to make sure defendants understand their rights and to make a complete factual record. See Jacinto.
    2. Right to Counsel[31]
      1. An alien generally has a right to counsel at a deportation hearing (or court appointed counsel in cases of indigence). See INA § 240(b)(4)(A).
      2. The right is statutory only, not constitutional, although it is grounded in 6th amendment principles. See Aguilara-Enriquez.
  • 6th amendment rights only prevail when absence of counsel would be fundamentally unfair. Id.
  1. The 6th amendment right to counsel usually only applies to criminal cases, but there are exceptions in civil cases (e.g., child support cases, civil contempt, or other matter where physical liberty is at stake).
  2. The courts recognize the exception for civil cases but disagree over whether removal is a loss of physical liberty such that the subject of litigation should be appointed counsel in cases of indigence[32].
  3. Use the Matthews balancing test to determine whether alien has right to counsel.
  • Matthews Balancing Test[33]:
    1. Nature of the alien’s interest;
    2. Risk of erroneous deprivation; and
    3. Fiscal/administrative burden on the government.
  1. Evidentiary Rules:
    1. Burden of Proof, Silence, and Adverse Inferences (INA § 240(c):
      1. Burden of Proof:
        1. Government has burden of proof to establish person is a non-citizen.
        2. If person is an alien, the alien must prove by clear and convincing evidence they are lawfully present in the U.S.
        3. If the alien proves lawful presence, then the government must prove by clear and convincing evidence that the alien is deportable.
        4. If the alien concedes on the issue of removability, then alien must establish grounds for relief from removal.
      2. Silence and Adverse Inferences:
        1. 5th amendment right against self-incrimination applies where the grounds for removal is also a criminal charge (e.g., unlawful entry is also a criminal offense).
        2. When the government introduces no evidence at all, silence is insufficient to meet government’s burden to show deportability.
      3. Standard of Proof = Clear and Convincing Evidence
    2. Court/Removal Process:
      1. Defendant/Respondent Receives Notice to Appear (“NTA”) (Form I-862):
        1. NTA acts as summons and pleadings for immigration court.
        2. The NTA is issued by DHS to initiate removal proceedings.
  • The NTA must state:
    1. Grounds for removal,
    2. Include a court date, and
    3. Signed by a DHS official.
  1. This is the most common method for initiating removal proceedings.
  2. Respondent must appear at court date or risk a deportation order in absentia (INA § 240(b)(5)). Remedy = motion to reopen; motion to reconsider.
    1. Respondent can be detained, or
    2. Released/bonded out.
  • Rescission and equitable tolling of the deadline for:
    1. Lack of notice;
    2. In custody;
    3. “Exceptional circumstances” (INA § 240(e)(1)) – requires filing of motion to reopen within 180 days.
  1. Removal Proceedings Outside of Immigration Court
    1. Administrative Removal (INA § 238(b)):
      1. Also known as “expedited removal” process.
      2. Applies to certain persons convicted of aggravated felonies.
      3. Applies to 2 categories of alien:
        1. Non LPRs, and
        2. Conditional permanent residents under INA § 216.
      4. INA § 238 presumes them deportable; not eligible for discretionary relief.
    2. Reinstatement of Removal Orders (INA § 241(a)(5)): Applies to anyone who has been subject to voluntary removal or deportation and reenters the U.S. illegally.

RELIEF FROM REMOVAL AND WAIVERS[edit]

    1. 'Relief from Removal'
      1. 2 Statutory Authorities/Grounds for Removal (Review):
        1. INA § 212: Removability because alien entered U.S. illegally.
        2. INA § 237: Removability after alien was lawfully admitted.
      2. Methods of Staying Removal:
        1. Asylum
        2. Cancellation of removal (INA § 240A)
        3. Voluntary departure (INA § 240B)
        4. Adjustment of status (INA § 240A)
        5. Waivers (forms I-601, I-602)
        6. Petition to remove conditions on residence (forms I-751)
        7. Private bills
        8. Limited relief: Deferred action (DACA & DAPA) and Prosecutorial Discretion
  • Statutory Eligibility for Relief:
    1. Cancellation of Removal for LPRs (INA '§ 240A):
      1. Requires physical presence in the U.S. for 7 years.
      2. Requires LPR for 5 years.
      3. No convictions for aggravated felonies.
    2. Cancellation of Removal for Non-LPRs:
      1. Continuous physical presence for 10 years.
      2. Good Moral Character requirement.
      3. Exceptional and extremely unusual hardship requirement must be met (on parent, spouse, or child [not the applicant]).
      4. Numerical limits on cancellation: 4,000 per fiscal year. EOIR may reserve decision until the next FY if the cap is approaching.
    3. Victims of Domestic Abuse:
      1. Victims of domestic violence eligible for cancellation of removal under special rules (VAWA).
      2. Victim must demonstrate battered, abused, or subjected to extreme cruelty by a citizen, or an LPR spouse or parent (also available to spouse whose marriage is not legitimate because of bigamy).
      3. Continuous physical presence for 3 years immediately preceding the application.
      4. Good Moral Character requirement.
      5. No convictions for aggravated felonies or marriage fraud.
      6. Only required to show “extreme hardship” as opposed to “exceptional and extremely unusual hardship” to non-citizen’s child or parent.
      7. Parent of an abused child may make a claim based on abuse of the other U.S. citizen/LPR parent.
    4. Meriting Discretion:
      1. Cancellation of Removal for LPRs: Discretionary Considerations:
        1. Particular degree of hardship need not be established, but hardship in general taken into consideration.
        2. Balance adverse factors of undesirability of alien vs. social and humanitarian considerations.
        3. There is no inflexible standard. The AG has broad discretion within the statute to grant a cancellation of removal.
        4. Other considerations: family ties, duration of residence, service in armed forces, ownership in businesses, service to the community, proof of genuine rehabilitation, good character, etc.
      2. Cancellation of Removal for Non-LPRs: Exceptional and Extremely Unusual Hardship[34]:
        1. Distinguishing eligibility requirements and discretion:
          1. The A.G. has discretion here as well.
          2. Immigration Court must also make a finding of exceptional and extremely unusual hardship.
        2. Exceptional and extremely unusual hardship:
          1. Evidence of harm to spouse, parent, or child –
          2. Hardship is substantially beyond that which ordinarily would be expected to result from deportation.
        3. 'Waivers and Prosecutorial Discretion'
          1. Discretionary Waivers for Aggravated Felonies (INA § 212(h)):
8 U.S.C. § 1182: Inadmissible aliens
(h) 'Waiver of subsection (a)(2)(A)(i)(I), (II), (B), (D), and (E)The Attorney General may, in his discretion, waive the application of subparagraphs (A)(i)(I), (B), (D), and (E) of subsection (a)(2) and subparagraph (A)(i)(II) of such subsection insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana if-'
(1)(A) in the case of any immigrant it is established to the satisfaction of the Attorney General that-'
(i) the alien is inadmissible only under subparagraph (D)(i) or (D)(ii) of such subsection or the activities for which the alien is inadmissible occurred more than 15 years before the date of the alien's application for a visa, admission, or adjustment of status,
(ii) the admission to the United States of such alien would not be contrary to the national welfare, safety, or security of the United States, and
(iii) the alien has been rehabilitated; or
(B) in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien; or
(C) the alien is a VAWA self-petitioner; and
(2) the Attorney General, in his discretion, and pursuant to such terms, conditions and procedures as he may by regulations prescribe, has consented to the alien's applying or reapplying for a visa, for admission to the United States, or adjustment of status.
No waiver shall be provided under this subsection in the case of an alien who has been convicted of (or who has admitted committing acts that constitute) murder or criminal acts involving torture, or an attempt or conspiracy to commit murder or a criminal act involving torture. No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States. No court shall have jurisdiction to review a decision of the Attorney General to grant or deny a waiver under this subsection.
8 C.F.R. § 212.7 – Waiver of certain grounds of inadmissibility
(d) Criminal grounds of inadmissibility involving violent or dangerous crimes. TheAttorneyGeneral, in general, will not favorably exercise discretion under section 212(h)(2) of theAct(8 U.S.C. 1182(h)(2)) to consent to anapplicationor reapplication for a visa, or admission to theUnited States, or adjustment of status, with respect to immigrant aliens who are inadmissible under section 212(a)(2) of theActin cases involving violent or dangerous crimes, except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of theapplicationfor adjustment of status or an immigrant visa or admission as an immigrant would result in exceptional and extremely unusual hardship. Moreover, depending on the gravity of the alien's underlying criminal offense, a showing of extraordinary circumstances might still be insufficient to warrant a favorable exercise of discretion under section 212(h)(2) of theAct.
  1. INA '§' 212(h) allows for discretionary waivers in some instances where they have committed an aggravated felony.
  2. 8 CFR 212.7(d) prohibits the use of a '§' 212(h) discretionary waiver under almost any circumstances.
  3. IJs are resolving in favor of the regulation over the statute.
  4. Prosecutorial Discretion[35]:
    1. Defining Prosecutorial Discretion:
      1. Selective Prosecution: Selective enforcement of immigration laws based on race, religion, or exercise of 1st amendment rights are not unconstitutional[36].
      2. Deferring Enforcement:
        1. Consider resource limitations.
        2. Consider extent of immigration violation.
      3. Classifying Prosecutorial Discretion:
        1. Case-by-case or
        2. Crystalized in bureaucratic rules:
          1. DACA/DAPA
        3. The Regularization of Prosecutorial Discretion:
          1. The Morton Memos (2011):
            1. Discouraged/relaxed enforcement of immigration law during Obama administration.
            2. Provided administrative amnesty to hundreds of thousands of illegal aliens.
          2. The Johnson Priorities Memo (2014):
            1. Immigration enforcement policies set by priority:
              1. Priority 1: Threats to national security, border security, and public safety.
                1. Terrorism, espionage, dangers to national security.
                2. Aliens apprehended at the border while attempting to enter unlawfully.
                3. Gang or organized crime members.
                4. Aggravated felonies
                5. Felonies involving immigration status as an element of the offense.
              2. Priority 2: Misdemeanants and new immigration violators.
                1. 3 or more misdemeanor (non-traffic related) convictions for which immigration status is an element of the offense.
                2. “Significant misdemeanors” for which the penalty was 90 days in jail or more, including sexual abuse/exploitation, domestic violence, use of a firearm, burglary, etc.
                3. Aliens apprehended after unlawfully entering the U.S.
                4. Significant abuses of the visa or visa waiver program.
              3. Priority 3: Other immigration violators.
            2. NOTE: Memo is no longer in effect.

ENFORCEMENT AND DETENTION[edit]

'Enforcement Methods and Procedures''''

  1. ICE Enforcement Methods:
    1. Jail/ICE detainers
    2. Workplace sweeps and employer sanctions
      1. ICE raids in Stillmore, GA, San Rafael, CA, New Bedford, MA, and Postville, IA.
      2. Silent raids – investigation into employer practices.
      3. Congressional sanctions imposed – fines.
    3. I-9 (work ID) audits
    4. Fraud detection/prevention
    5. Criminal alien removals (racial profiling issue)
  2. Arrest, Detention, and Release (INA § 236(c)): Alien shall be detained by the AG or secretary of DHS if:
    1. Alien is inadmissible, and
    2. Alien has committed crimes of moral turpitude, aggravated felonies, drug crimes, high crimes against the state, or has threatened the president.
  • Removal Proceedings:
  1. The Border Security, Economic Opportunity, and Immigration Modernization Act of 2013:
    1. TITLE I: Border Security
    2. TITLE II: Immigrant Visas
      1. Dream Act/DACA
    3. TITLE III: Interior Enforcement
  2. Enforcement at Ports of Entry:
    1. The automated entry-exit system.
    2. The U.S. Visitor and Immigrant Status Indicator Technology (VISIT) program.
    3. The National Security Entry-Exit Registration System (NSEERS) and Special Registration:
      1. Non-immigrant aliens selected based on 4 criteria:
        1. Nationals of designated countries
        2. Individual notification through tracking database
  • Pre-existing criteria defined by the A.G.
  1. Officer discretion.
  2. Registered individuals were do be questioned, fingerprinted, and provided with a form to complete.
  3. Criminal Alien Removal Initiative
  • National Security:
    1. SEVIS and Other Student-Related Programs:
      1. Government tracking of foreign students.
      2. Pretext of national security, even though students make up a small percent of non-immigrant admissions.
    2. The Penttbom Investigation:
      1. Codename given by the FBI to the 9/11 probe.
      2. Stands for ‘Pentagon/Twin Towers Bombing Investigation.’
      3. Racial profiling impacted Muslim immigrants during this investigation.
      4. Exemplifies the government’s willingness to compromise human rights and constitutional protections under the pretext of national security.
  • The Scope of Enforcement Powers:
    1. Basic Constitutional Principles:
      1. Everyone in the U.S., regardless of immigration status has right against unreasonable searches and seizures under the 4th amendment, with a general warrant requirement, due process rights under the 5th amendment, and equal protection under the law under the 14th amendment.
      2. Courts differ on their interpretation and application of rights as applied to aliens.
    2. Interrogations:
      1. Immigration officials and police have the power to interrogate, without a warrant, any alien it suspects of having no right to remain in the U.S. (INA § 287(a)).
      2. This circumscribes 4th and 5th amendment protections.
      3. Courts apply balancing test: Balance the strength of the enforcement officer’s reason for interrogation vs. the personal liberty of the alien.
      4. The officer is required to have articulable facts to justify suspicion (reasonable suspicion standard)[37].
        1. Officer may question individual only.
        2. Individual must be free to terminate encounter.
      5. Officer may arrest alien upon finding of probable cause the person is undocumented.
    3. Stops and Arrests
      1. Immigration Check Points:
        1. Roving border patrols generally not allowed if sole purpose is to stop people who appear to be of Mexican descent.
        2. Exception: Border patrol officers may initiate a stop if there is reasonable articulable suspicion with facts and rational inferences that there are specific aliens who are illegal in a vehicle. Id.
      2. Racial Profiling:
        1. Agent cannot detain and interview a suspect based on race/appearance.
        2. Agents must:
          1. Have a reasonable belief that the alien is in the U.S. illegally, or
          2. At lease believe that the person is an alien (limited rights of non-citizens).
        3. 'Detention Requirements and Procedures'
          1. Purpose of Detention:
            1. If alien is in the U.S. and admissibility is in doubt, court can hold while status is pending, send back to home country, or parole into the U.S.
            2. If alien makes it into the U.S. and appears deportable, court can hold while deportation is being decided.
            3. After final removal order issues, should alien be allowed to remain free until they are deported?
          2. Statutory Framework:
            1. Arriving Aliens:
              1. Arriving aliens not in expedited removal “shall be detained.” INA § 235(b)(2).
              2. Immigration authorities usually release on parole under INA § 212(d)(5).
              3. Under 8 C.F.R. § 212.5, the following circumstances are prescribed for parolees:
                1. Serious medical conditions,
                2. Pregnant women,
  • Certain juveniles,
  1. Witnesses in U.S. government proceedings, and
  2. Aliens whose continued detention is not in the public interest.
  3. ICE field officers make determinations regarding bond and conditions of release. Immigration judges lack jurisdiction over arriving aliens.
  4. Non-Citizens Within the U.S.:
    1. May be released on own recognizance (ROR) or on bond (minimum $1,500). INA § 236(a).
    2. ICE field officer makes initial determination regarding release/bond/conditions, but alien may ask immigration judge to review decision.
    3. Considerations include:
      1. Flight risk,
      2. Possible danger to the community,
  • Employment history,
  1. Length of residence in the U.S.,
  2. Family ties,
  3. Record of appearance/non-appearance/reappearance issues, and
  • Previous criminal/non-criminal immigration violations.
  1. De novo bond redeterminations typically reduce the amount by an average of two-thirds.
  2. Mandatory Detention (INA '§' 236(c)):
    1. Aliens removable on terrorism grounds:
      1. Requires certification from A.G. or Deputy A.G., and
      2. Must be reviewed every 6 months; and
    2. Aliens removable on the following criminal grounds:
      1. Multiple crimes of moral turpitude,
      2. Aggravated felonies,
  • Controlled substance offenses,
  1. Firearms offenses,
  2. Other miscellaneous crimes.
  3. Exception for witness protection/cooperation.
  • ICE’s Detention System:
    1. Capacities:
      1. Overcrowding, poor record keeping, and family separation are issues.
      2. Overflow sent to county jails or state/federal prisons in some cases.
    2. ICE Detainers not Enforceable at State/County Level (see Miranda-Olivares)[38]:
      1. 10th amendment/separation of powers doctrine issue: Federal executive agency does not have the power to order a country judicial agency to hold a person.
      2. Detainers are a request that court continue to hold defendant until ICE can pick them up.