Immigration Law

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I.     Introduction
A. Prev, 2/3 immig from Europe; now mostly Latin America, Asia, Africa
B. Post-9/11 is new era in immigration – natl security era
C. Const law takes peculiar twists in immig context
D. Formal immig law can only be understood in context of broader societal principles
E. Terminology:
       1. “Alien” – any person not a citizen or national of the U.S.
               a. Aka non-citizen
       2. Don’t say “undocumented immigrant” – immigrants always have legal permission
       3. LPR = PRA (permanent resident alien)
               a. Underlying goals:
                        1. Unite family members
                        2. Provide needed employees
                        3. Provide humanitarian relief for those fleeing persecution – refugees (not discussed)
                        4. Diversity visas (not discussed)
F. When counting immigration stats, AOS counts as a new immigrant admission
       1. Peak in 1990 under IRCA Amnesty
       2. For nonimmig entry stats, ppl who have multiple entries each year inflate the number of entries
               a. 15% decrease since 2001
G. INA consids records of refusal to issue visas to be confidential – what’s the provision?
H. Normally persons are not deported for overstaying or for visa fraud
       1. But post-9/11 enforcement policies changed
I. When arguing:
       1. Statuts first – using stat interp, e.g. plain language
       2. Cases
       3. Policy – should be last resort
J. Arguing the rts of the alien vs the rts of the USC
K. Civil vs crim stats w/ immig consequences:
       1. Crossing border illegally is crim – can arrest for it
       2. Overstay and persons ordered deported and absconded – civil law viol only

A.     History
A. 1700s
       1. No limitation on immigration
       2. At least 70% of Brit origin, 15% blk, 15% Amer Indians
       3. USC reqs: 2 yr residency, renunciation of former allegiances incl nobility titles
       4. 1798 Alien Enemies Act – gave Prez power to deport any alien he consid dangerous to natn’s welfare
               a. Now INA § 212(f) – primarily used to make political statements
B. 1800s
       1. Under republicans, all who want to come are welcome but no special inducements/privileges
       2. 1840s – Catholics start immigrating in large numbers
               a. Anti-immigration coalition – Protestant evagels, nativists, Know-Nothings Party
                       i. But still much potent support for open immigration
       3. Post-Civ War – preference for labor of wht immigrants vs freed slaves
               a. Roots of anti-immigrant sentiment in black population
       4. Source of immigration changes to East and South Eur
       5. 1875 – exclusion of prostitutes, convicts, other undesirables
       6. 1882 – Exclusion of lunatics, idiots, convicts, public charges
               a. Also Chinese Exclusion Act – result of anti-Chinese sentiment post-railroad construction
                       i. “We’re under no oblig to see all races and nations enjoy equal chance of getting here”
C. 1900-1952
       1. Gentlemen’s agreem of 1907 – Jpn excluded
       2. Dillingham commission – supported restrics on entry and racial darwinism
       3. Literacy req – must be literate in your own language (not neces Eng)
               a. Literacy reqs vetoed by three Prez

        4. 1921 – Natl Origins Act – estabs natl origins quota
                a. Quotas based on percentage of persons of that natl origin already in the US
                        i. Reinforced population balance and majority hold of N and W Europeans
        5. 1952 – McCarran-Walter bill  INA
                a. Passed over Truman’s veto - Trum said natl origins violates princip of all men created equal
                        i. Presidents repeatedly veto measures passed by legis
D. 1965-present
        1. 1965 – Amdmts to INA, abolition of natl origins system
                a. LBJ: those wishing to immig should be admitted on skills, close relatnship to those present
                b. Opening immigration was not agenda of civ rts mvmt
                c. But closed open door to other western hemisphere countries
        2. 1986 – Immig Reform and Ctrl Act
                a. Attempt to legalize long-tem undoc’d aliens
                b. Also created employer sanctions for employing undoc’d aliens
                c. Also Immigration Marriage Fraud Act
        3. Immigration Act expands emp-based visas, inc some fam-based categs, created div visas
        4. 1996 – IIRIRA and AEDPA
                a. Most dramatic changes in immig law procedures in 30 years
                b. IIRIRA:
                        i. Income test for anyone sponsoring an immigrant
                        ii. 3 and 10 yr bars on reentry depending on length of illegal stay
                        iii. Relief from removal is tightened/curtailed – avenues of relief constricted
                        iv. Expedited removal created
                c. AEDPA:
                        i. Removal for agg fels
                        ii. Greatly reduced jud review (was this IIRIRA?)
        5. Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA)
                a. Severely restricted access of LPRs to most means-tested ben pgms
                b. Aff’d exclusion of undoc’d from means-tested ben pgms
E. Ellis Island
        1. Med examiners only examined steerage class – first and second class waved thru quickly
                a. Poor ppl would give babies to rich ppl to carry through
        2. Btw 12 and 14 million immigs came thru Ellis Island
                 a. Denied entry numbered only 250,000 – policy was generally open entry
        3. Babies born on Ellis Island considered USC
                 a. After 14th amd, birth in the US is citizenship
        4. Much concern w/ ppl likely to be public charge and diseases
                 a. Women particularly perceived as needing male escorts so they’re not public charges
        5. If alien says they have job waiting for them, perceived to be stealing Amer job
        4. Ellis Island closed Nov. 1954
F. Chinese Immigration
        1. 1868 – Burlingame Treaty – limited numbers of Chin immigs, suspended immig of Chin laborers
                 a. Chin labor said to threaten interests or good order of the US
        2. 1882 – First Chin Exclusn Act – stat that suspended immig of Chin laborers for 10 years
                 a. Existing Chin residents reqd to have certificate to re-enter by 1884
        3. 1888 – Exclusion act prohibs entry of all Chinese
        4. Chinese exclusion repealed quickly when Chin became allies in WWII
                 a. Jpn used Exclusion Act as propaganda against US
G. Angel Island:
        1. More than 1 million people processed btw 1910-1940
        2. Chin immigs detwined for few days/wks to months and years
                 a. Became known as “Guardian of Western Gate”
H. 1989 – Tiananmen Protest
        1. Enhanced consid for Chin to get asylum in US
        2. Legis defers departure for Chins ordered deported
        3. 1 yr after Tiananmen, doubling of asylum seekers from Chin – following year, 400% increase
I. Post-9/11
        1. Broadened natl secy grounds for inadmissibility and deportability
        2. Expanded dtn of non-citizs who are suspected of terrorism or from countries suspected of terrorism
        3. Increased reliance on natlty of alien in deciding immig enforcement priorities (Special Registration)
        4. Strengthen restrictions on nonimmigs before and after entry
                 a. Creation of interview proc abroad
        5. Breakup of INS into several DHS units
        6. Limited pub access to removal hearings
        7. Little access of aliens to evid against them in removal procs
        8. In refugee/asylum area: limited number and delaying processing of refugee apps for resettlemt

B.     Foundations of the Immigration Power
A. Due Process Prots Unavailable to Immig Procs
       1. Rt to trial by jury
       2. Exclusionary rule
       3. Ex post facto
       4. Double jeopardy
       5. Cruel and unusual punishment
       6. Bill of attainder
       7. Rt to atty
B. Subst vs proc due proc
       1. Proc DP – notice of the charges and opportunity to be heard
       2. Subst DP – substance of the law deprives alien of due proc
Chinese Exclusion Case – Chae Chan Ping – USSC 1889
A. Facts:
        1. Alien prev lived in US, got certificate to estab residence for re-entry, traveled to China
        2. While in China, law changes to completely exclude Chinese entry even with certificate
        3. Seeks reentry as immigrant
B. Estabs plenary power of Cong to legislate immigration restrictions
        1. Cong’s decision is conclusive upon the jud
                a. Cong’s power during wartime even more critical
                b. Broader than plenary power today
        2. Power to exclude foreigners is incident to sovereignty
                a. Rt to exercising this power can’t be granted away or restrained
D. If foreign govt is dissatisfied, can complain to head of the exec branch

Yick Wo v Hopkins – USSC
A. 14th amd equal prot is universal in application to all persons in territorial jurisdiction
       1. W/o regard to differences in race, color, or nationality

Fong Yue Ting – USSC
A. Rt of natn to deport foreigners not naturalized or haven’t taken steps to becoming citizs is same as exclusion
        1. Plenary power to deport just like plenary power to exclude
B. Ekiu: Cong could let exec officer make final decision on alien’s rt to remain satisfies due proc
C. Deportation is not punishment – thus no proc due proc viol
D. Criteria for aliens to remain in US is polit question
E. Subst due proc is not barrier to reasons for removal
        1. But proc DP still available for immigs to argue
F. Brewer Dissent:
        1. Deportation is different from exclusion – aliens present have more rts – this is due proc viol
                a. Const has no extraterrit power – i.e. location of govt action different
        2. Crits immig pwr as “inherent to sovereignty”
G. Field Dissent:
        1. Full Const protection for aliens who enter US jurisdiction
H. Fuller Dissent:
        1. Deportatn diff from exclusion cuz deportatn is deprivatn of that which has been lawfully aquired
                a. I.e. stakes are different

Wong Wing
A. Invalidated fed statute giving Chinese immigs imprisonment and hard labor as due proc viol
       1. 5th and 6th amds apply to aliens
B. Deportation and detention incident is not punishmt but imprisonment is
       1. Imprisonment reqs due proc – judicial trial

US v Wong Kim Ark
A. Birth in US is citizenship

       1.      States and Immigration
A. Power to ctrl immig belongs to govt of US as part of sovn powers per CEC
B. Fund rt to interstate travel prevents states from refusing entry to aliens
       1. PIC of 14th amd grants rt to move from state to state to USCs only
       2. Fund rts apply to aliens and USCs
C. Immigration enforcemt:
       1. Before 9/11, tradition precludes local police from tracking undoc’d incl overstays
       2. Ashcroft wanted local law enf to get involved in immig enf – but many local law enfs refuse
                a. Intl Assoc Chiefs of Polices oppose CLEAR Act deputizing local cops as immig agents
                         i. Penalizes states for refusal by w/holding fed assistance funds if states refuse to help
       3. Fla situation – MOU resulted that feds will reimburse Fla for costs of enforcing immig laws
                a. Arg btw states and feds is largely consid polit ques

C.      Federal Agencies and Courts
A. Former INA reported to AG
B. INS had ovr 30 dist offices – and Dist Dirs headed them
        1. Immig inspectors had about 200 ports of entry
C. Before creation of DHS, tension btw service and enf
        1. INS most hated agency of fed govt – even more than IRS
D. DHS reorg was largest reorg since DOD – 22 agencies combined under DHS
        1. Separation of ICE and CIS
E. Admin Appeals Office – AAO [Appeals unit of INS(??)]
        1. Decide appeals to advance parole, conditional LPR status
        2. Only impo for Chev deference to its decisions
        1. Office of Chief Administrative Hearing Officer – created by IRCA to deal w/ anti-discrim provs
        2. Incl IJs
                 a. Ashcroft made clear that IJs not indep adjudicators – are part of immig law enf
        3. Incl BIA
                 a. Created by AG’s regs – not statutory organization
                 b. Article I judges
                 c. Orig 5 members, then 9, then 23
                          i. Ashcroft cut many of liberal members
                 d. Sits in panels of 3 to hear large number of cases
                          i. Ashcroft streamlined review – single-member adj, affirm w/o opinion (AWO) ok
                 e. “Indexed decisions” not published, not prec – must go to library in Falls Church, VA
                          i. Those declared prec are published as interim opinions and online
G. AG can review BIA decisions either before or after decision by BIA
        1. Rarely invoked
        2. Can AG take case out of IJ’s hands or even before then?
H. BIA appeals go to cir ct
        1. Can AG certify case to self after case is at cir ct level?
        2. 2nd and 9th cirs particular increase in immig appeals – burden transferred from exec to jud branch
        3. USSC said if cir reverses BIA legal interp, must remand for BIA to make final decision
I. Jud review and Chev deference
        1. IIRIRA completely restruc’d jud review – elim’d review in some categs
              a. Stat also prescribes very deferential jud review
       2. Chev deference:
              a. What did Cong intend – is the plain lang of the stat clear on the issue
              b. If ambig, is agency interp permissible
              c. If purely a legal ques of stat interp, ct does not have to defer to agency

II.    Admissions – Qualifying Categories and Grounds of Inadmissibility
A. The analysis:
       1. For aliens not yet admitted:
                a. Does alien fit into a categ for admission – immig or non-immig
                b. Is alien inadmissible
                c. Is exception to inadmissibility available
                d. Is waiver to inadmissibility available
                e. Humanitarian parole
       2. If alien is already in US:
                a. Is the alien admissible
                         i. Can the alien be removed expeditiously
                b. Can the alien adjust status
                         i. Can a conditional LPR remove the condition
                         ii. Is naturalization available for an LPR (not discussed)
       3. If alien is LPR:
                a. Is he removable or is he seeking admission?
                b. If seeking admission, is he inadmissible?
                c. Is there an exception to inadmissibility?
                d. Is there a waiver to inadmissibility?
B. Gen need a visa to come to US
       1. But Visa Waiver Program (VWP) for nonimmigrants
                a. VWP waives all rts to extend stay or AOS to another non-immig or LPR
       2. Immig visas must always go thru consular interview proc
C. After prelim steps in either immig or nonimmig process, goes to consulate:
       1. Interview w/ consular office
                a. Delays for students post-9/11 – grps lobbying State Dept to waive interview for some academs
                         i. Drop in number of foreign students
                b. 9/11 expanded who had to have interview
                c. In nonimmig cases: interview seeks to find out if person likely to overstay
       2. Consulate doesn’t have to disclose why they reject your visa
       3. Interview does not occur until priority date (PD) is current
                a. PD set by filing of first relevant docd w/ approp admin agency
                If PD is not current, app sits at the consulate or w/ USCIS??
                What are other delays after PD becomes current??
                b. Eligibility determinations continue but visa itself will not be issued until PD current
       4. “Aging out” text p. 289
D. New DHS involvement in visa issuance
       1. Prior to MOU, State Dept had full auth over issuance of visas
       2. DHS can now estab and review visa policy and ensure DHS reqs fully reflected in visa proc
       3. Visa issuance and adjud still under State, but in certain consulates DHS present to advise
       4. Theoretical final decision is w/ DHS on:
               a. Where you apply for visa
               b. Whether you waive personal appearance
               c. Processing of ppl from state sponsors of terrorism
                        i. Categ was created pre-9/11
       5. DHS can veto a visa, but can’t force issuance of a visa
E. Visa does not guarantee entry – immigration inspectors can reject entry on discretion
       1. Can still go to another port of entry and re-attempt entry
       2. I-94 is actual entry document and contains terms of admission
F. Discrimination in Visa Issuance
       1. INA §202(a)(1)(A) – no person shall rcv pref or priority or be discrim’d in issuance of immig visa
               a. Race, sex, nationality, place of birth, or place of residence
               b. One case of enf – ct said consular officials can’t follow official policies blindly
               c. Very few decisions dealing w/ discrim in visa issuance
               d. “Consular venue policy” – reqs SE Asians in HK to apply visa in ctry of origin
                        i. DC cir held didn’t viol EP
       2. But §202(a)(1)(B) – This para shall not limit auth of Secy of State to determ
               a. Procedures or locations for processing of immig visas

A.     Immigrants
A. Proc for immig visa:
       1. Sponsor aka petitioner files petition for beneficiary alien – e.g. I-130 for alien relative p. 922
               a. I-130: USC or LPR may file form to estab relationship to alien relative
               b. Post-IIRIRA reqs affid of supprt – to cert that alien has adeq means financ support p. 986
                        i. And not likely to become pub charge
                        ii. Sponsor obligatn to support alien and alien’s spouse/children continues until:
                                I. Alien becomes USC
                                II. Earns 40 qualifying quarters of work
                                III. Departs the US permanently
                                IV. Dies
                                V. Divorce doesn’t terminate sponsor obligation
                        iii. Sponsor’s income must equal or exceed 125% of fed povty line for household size
               c. Sponsor can w/draw petition w/o benificiary’s consent
       2. Natl Visa Center (NVC) checks for petition completion
       3. NVC notifies consulate abroad
               a. Consulate takes as given basic qualifying categ
               b. Main job is to apply inadmissibility grounds of § 212(a)
       4. NVC waits till PD current then issues instrucs for supporting docs reqd
       5. When docs rcv’d, visa interview sched’d
       6. If not inadmissibile, issue visa good for 6 mo.
       7. Immigration officer at port of entry makes final determination of admissibility
               a. If alien admitted, immig officer forwards papers for issuance of green card
B. Green cards aka alien registration card, resident alien card
       1. Reqs photo, fingerprints, signature
               a. Except for immed relative category – can issue LPR card before arrival in country

        1.      Family Reunification
A. Makes up 75% of immig
B. Immediate relatives of USCs
        1. Children – INA § 101(b)(1)
                a. Unmarried people under 21 y/o
                b. Born in wedlock, stepchild if “step” status created before 18 y/o
                c. Illegit child legitimated by father by age of 18 y/o
                d. Born out of wedlock and ben is sought by virtue of relation to natural mother
                         i. If ben sought by relation to natural father, must have bona fide parent-child relation
                                  Nguyen v INS – Const to disting btw bio moms and dads for nat purps
                e. Adopted while under 16 y/o if child in legal custody of adopting parents for at least 2 yrs
                         i. No natural parent of any such adopted child shall ben by virtue of adoption
        2. Spouses – INA § 101(a)(35)
        3. Parents
                a. USC applying for parents as bens must be over 21
                b. Relationship as parent must have been created w/ a child under 21 at the time
        4. No numer limit on immed rel admittants – PD irrelevant
C. Preference categories – INA § 203(a)
        1. 1st pref – unmarried sons and daughters of USCs – i.e. not children
        2. 2nd pref – spouses and unmarried sons and daughters of LPRs
        3. 3rd pref – married sons and daughters of USCs
        4. 4th pref – brothers and sisters of USCs
D. Numerical limitations on pref categories
        1. Limits calculated by State Dept.
        2. Fam sponsored total limit: 226,000 per year
        3. Also per-country ceilings – apply to all countries
                a. Particularly harsh effect on Philippines and Mexico
E. “Accompanying or following to join” – INA § 203(d)
        1. Spouse or child entitled to immig status and visa if accomp or following to join the spouse or parent
                a. Can follow to join anytime after immig of principal alien – no time limit
                b. Qualifying relationship must have existed at time when principal admitted
        2. Counts against principal ben’s visa category
        3. N/a to immed relatives of USCs
F. Fiallo v Bell
        1. Args for focus on USC’s rts, discrim on sex and illegitimacy, no threat to natl secy dismissed
                a. Cf. later cases where ct focuses on USC’s rts
        2. Ct reaff’d “power over aliens is of polit character and thus subj only to narrow jud review”
        3. Def to Cong decision to award pref to child based on relation to mother but not father
        4. Dissent:
                a. Stat not fine tuned – over and underinclusive
                b. USC biological father’s rts singled out – EP viol

               a.      Marriage
A. Gen rule is validity of marrige judged by the law of the place where it is celebrated
       1. Whether foreign ctry or state/terit of US
B. Defense of Marriage Act (DOMA)
       1. Marriage means a union btw husband and wife
       2. Crit’d as unConst – up to states to recog marriages and fed govt bound by FF&C
C. Adams v Howerton – 9th cir.
       1. Same sex marriage not permitted as basis for spouse immigration
       2. Two-step process for eval of marriage validity for INA purposes:
               a. Is marriage valid under state/local law
               b. Does that marriage qualify under the INA
                       i. Immigration is still a federal issue
       3. Does Lawrence v Tex (p. 306-308) compel overruling of Adams v Howerton?
D. Dabaghian v Civiletti – 9th cir.
       1. If marriage not sham/fraud from its inception, is valid for purps of determining AOS under §245
       2. INS can’t employ “factually dead” test to examine viability of the marriage
E. Bark v INS – 9th cir.
       1. Sham marriage if bride/groom didn’t intend to estab life together at time they were married
               a. Conduct subseq to marriage relevant only to extent bears upon subj state of mind when wed
       2. Can’t reg subseq conduct, incl min amt of time must spend together, etc. – would raise Const issues
       3. Evid of separation alone insufic to find sham marriage
               a. But can consid circs of sep – time and extent, and other facts
F. Immigration Marriage and Fraud Amendments of 1986 (IMFA) – INA § 216
       1. Applies to aliens seeking LPR status on basis of marriage entered less than 24 months before
               a. Where alien is applying based on spouse or son/daughter relation arising from the marriage
       2. LPR status will be granted conditionally
       3. Condition can be removed after two years if INS finds underlying marriage valid and not ended
               a. Spouses must jointly apply for removal of condition within last 90 days prior to 2 yr anniv.
               b. Spouses must also be interviewed
       4. Qualifying marriage – one not entered into for purp of procuring immig ben
       5. Hardship waivers – discretionary waiver of condition available if:
               a. Domes violence involved
               b. Extreme hardship would result if alien removed
               c. Qualifying marriage was in GF, but was terminated thru no fault of the alien
       6. IJ can review denial of removal of condition – burden on DHS by prepond evid
G. Crim penalties for arrangers of sham marriages and those who enter into sham marriages for immig purps

               b.      Siblings
A. Young v Reno – 9th cir.
      1. Natural sibs cannot ben from adopted person’s immig status
      2. Per Matter of Kong: to receive immigration bens, sibs must show:
               a. Once qualified as children of a common parent
               b. Parent is still a legal parent of each of them – adoption terminates the parent relation
      3. Stat silence interp’d as not requiring ordinary meaning to control

      2.       Employment-Based Visas (EBVs)
A. Goals/policies:
       1. What kinds of workers should be favored?
       2. What is the optimal number allowed in?
       3. Who should be exempt from labor cert? Should labor cert be eliminated altogether?
       4. Why have such a categ?
               Labor shortage, skills of the alien, provide cheap labor
               Labor immigs won’t need assistance for sure – have jobs
       5. Talks about “US workers” – incls alien immigrant workers
       6. INA presumes qualified US workers available – hence labor cert reqd
B. Preference categories:
       1. 1st pref – Priority workers – INA § 203(b)(1)
               a. Extraord ability in sciences. arts, educ, business, athletics
                       i. Demonstrated by sustained natl/intl acclaim
                       ii. Achievmts recog’d in the field thru extensive documentation
                       iii. Seeks to enter to continue work in area of extraord ability
                               I. Gen will exclude e.g. retired sports players trying immigrate to coach
                       iv. Entry will substantially benefit the US
               b. Outstanding professors and researchers
                       i. Recog’d internationally as outstanding in a specif acad area
                       ii. Has at least 3 years of exp in teach or resarch in acad area
                       iii. Seeks to enter the US:
                               I. For pmt position w/in univ. or institution of higher education to teach or rsrch
               c. Multinational executives and managers
                       i. Alien is emp’d by firm/corp for at least 1 yr w/in last 3 yrs
                       ii. Seeks to enter US to continue svcs to emplr or affiliate
                       iii. Svcs alien will perform are managerial or executive
       2. 2nd pref – Advanced degree (masters, PhD)
               a. Exceptional abil in sciences, arts, or business
                       i. Possession of degree by itself insufic evid of exceptional abil
               b. Labor cert reqd but AG may waive for natl interest reasons
       3. 3rd pref – Skilled and unskilled (B.A. and B.S.)
               a. Skilled workers – who can perf labor reqing > 2 yrs training
                       i. Not temporary or seasonal
                       ii. Where qualified workers unavailable in the US
               b. Professionals – aliens holding B.A. or B.S.
               c. Unskilled workers who can perform non-temporary non-seasonal work
                       i. Where qualified workers unavailable in the US
               d. Labor cert req’d from Secy Labor per INA §212(a)(5)(A)
       4. 4th pref – Special – INA § 203(b)(4)
               a. Religious workers – fairly tiny category
       5. 5th pref – entrepreneur / investor – INA § 203(b)(5)
               a. For ppl who invest $ 1 million or more and create at least 10 jobs – aka job creation category
               b. Thought would attract many Hkers when Chn took over but didn’t
C. Who must petition:
       1. Aliens w/ extraord abil, 2nd pref w/ natl interest waivers, 4th and 5th pref can self-petition
       2. Outstanding profs/researchers, 2nd and 3rd prefs must have employer petition first
D. De facto no per-ctry limitation on EBVs as long as total EBVs remain below ceiling
E. Muni v INS – Ill. fed dist ct
      1. INS regs valid in interp of extraord abil
              a. “One of that small percentage who have risen to the very top of the field of endeavor”
      2. Extraord abil should consider:
              a. Awards earned in alien’s field of expertise
              b. Above average salary
              c. Published material about alien in trade publications or major media for field of expertise
              d. Affids of colleagues in field of expertise

                a.       Labor Certification – INA § 212(a)(5)
0. Is Secy Labor determination communicated to Secy State and AG
        1. Gen stat prov applies to skilled and unskilled workers
        2. Teachers, exceptional abil in sciences/arts incorp’d by special provision – INA §212(a)(5)(A)(ii)
A. Schedule A – 20 CFR 656.10 – supp p. 805
        1. Lists occupations where already determined not enough US workers
        2. Phys therapists, nurses
B. Schedule B
        1. Lists occupations that already have enough US workers – don’t bother asking
                a. Waiver possible, but rare
        2. Parking lot attendants, bartenders, cashiers, clerk typists, elevator operators, helpers in any indus,
                kitchen workers, laborers, receptionists, sales clerks, phone operators, typists, ushers…
C. Cf. labor condition or labor attestation proc in nonimmig emp based categs
D. Players:
        1. Certifying officer of Labor Dept Emp and Training Admin (CO)
        2. State Workforce Agency (SWA, prev. SESA)
        3. Board of Alien Labor Certification Appeals (BALCA) – 7 ALJs to appeal labor cert denial
                a. BALCA can aff’m, rev, remand CO determination
E. Current proc:
        1. Emplr files app w/ state workforce agency w/ supporting doc – credentials, wage offered, etc.
        2. Emplr advertises job in coord w/ state workforce agency (SWA, prev SESA)
        3. Emplr interviews any US workers who appear qualified – reports results to SWA
        4. CO can issue notice of findings (NOF)
                a. Can question manner of advertising, basis for elim US workers, bens of the job, job reqs
                b. Questionnaire sent to rejected US workers to make sure they got GF interview
        5. Emplr typically provides more info to the CO – e.g. why US workers rejected
        6. Then CO issues order
        7. Order can be appealed to BALCA if is denial of labor cert
        8. Emplr can seek review in fed ct
F. New proc – Program Electronic Review Mgmt (PERM) – based primarily on Reduc in Recruitment (RIR):
        1. Recruitment can go on before app filed
                a. I.e. SWA has no involvement in recruiting/referring US workers
                b. Depends on GF of emplr
                c. No NOF step
        2. Emplr still has to maintain supporting records for random audits or if flags go up in Labor Dept
G. Legal std – INA § 212(a)(5) – labor cert must say:
        1. Insufic workers able, willing, qual’d and available at time of app for visa and relevant place
         2. Emp of such alien won’t adversely affect wages and working conds of US workers sim empl’d
H. No unduly restrictive job requirements – 20 CFR 656.21(b)(2):
         1. Unless adeq documented as arising from business necessity, job reqs must be:
                  a. Those normally reqd for the job in the US
                  b. Those defined for the job in the Dictionary of Occupational Titles (DOT)
                           i. Incl for subclasses of jobs
                           ii. New sys abandons DOT for O*NET
                  c. Can’t include reqs for a language other than English
         2. If job reqs meet 3 criteria above, don’t have to show business necessity
                  a. If any of above reqs not met, job desc presump invalid
         2. Cf. “adversely affect” in INA
         3. In Matter of Information Industries – BALCA – defines business necessity:
                  a. Business necessity:
                           i. Job reqs must bear reas relation to occup in context of emplr’s business
                           ii. Are essential to perf job duties in a reas manner as desc’d by emplr
                  b. Cf. Title VII BFOQ business necessity test:
                           i. “Absence would undermine the essence of the business”
         4. Holy Trinity Polish Mission – BALCA case on language
                  a. Polish lang req for polish cmty dance instructor rejected – dance instruction is the job
                  b. If ult goal is cultural integration, can have other ppl in church do that
I. Std to reject US workers
         1. Emplr must have job-related reasons for rejecting the US worker
         2. Emplr can’t make plain subj determ – job desc bery impo
         3. Matter of Triple R Dairy – BALCA: “bare, undocumented assertion insufic”
                  a. Burden on emplr to show one type of job exp does not qualify for another type of job
                           i. Exotic animals vs farm animals case
         4. US worker gen can’t be rejected even if alien is more qualified or if US worker is overqualified
                  a. Policy to prot US workers trumps
                  b. Arguably can reject US worker if alien is more qual’d in teaching, sciences, arts
         5. 9th cir. has said emplr’s failure to pay travel expenses can show lack of GF to recruit US workers

                b.      Prevailing Wage (PW)
A. INA § 212(a)(5)(A)(i)(II) - No adverse effect on wages/working conds sim employed
       1. No explicit ref to prevailing wage in stat – tho stat refs PW for H1B workers w/r/t labor condition
B. 20 CFR § 656.21(e) for PW in procedure
C. Rationale for PW: not offering PW will adversely affect US workers
       1. Setting wage cap at lower than US workers will accept adversely affects their opportunities
                a. Also drives down the mkt wages
D. PW formula – 20 CFR § 656.40:
       1. If job governed by certain stats, stat min determs PW
       2. If job covered by union K, union K estabs PW
       3. If not union job, current reg refers to avg wage of sim empl’d in area of intended empmt
                a. Regs going into effect next month talk about mean wage
E. In Matter of Tuskeegee Univ – BALCA
       1. Don’t just consid job title
       2. Consid nature of the business/institution – non-profit, corp, proprietorship, etc.
       3. Recogs diff financ abils of for-profits and non-
F. Matter of Hathaway Children’s Services – BALCA
       1. Overrules Tuskeegee – don’t conid nature of business/institution
               a. Only consid job title
       2. Job being perf’d is same whether at for-profit or non-
G. Current regs:
       1. Adopt Tuskeegee approach for researchers, whether at colleges, univs, or govt-funded
       2. Otherwise Hathaway approach is used

      3.      Diversity Immigrants and Refugees
A. DV – for ppl “from ctries adversely affected by 1965 amendmts”

       4.       Adjustment of Status (AOS) – INA § 245
A. Purp is to save alien from having to leave country and apply thru consulate
       a. Doesn’t elim need for visa petit in those immig categs where reqd
B. Some crit as inducing concealmt of intent to immigrate – encourages fraud by nonimmig visa applicants
C. General reqs:
       1. Discretion of AG – factors:
                a. Family ties in the US
                b. Hardship in travelling abroad
                c. Length of resid in the US
                d. Preconceived intent to remain
                e. Repeated viols of immig law
       2. Alien must be eligible to receive an immigrant visa and mustn’t be inadmissible
D. May have interview analogous to consular interview, but often waived
E. Need “advance parole” permission to travel while AOS app pending
F. Applicant for AOS is assimilated to status of initial entrant
G. Discret of AG to grant
H. No admin appeal of AOS denial permitted - §242(a)(1)(B)
H. Special reqs:
       1. §245(a) reqs – p. 518
                i. Must have been inspected/admitted or paroled – EWI not eligible
       2. §245(i) reqs – p. 519
                i. Eligible for immigrant visa
                ii. Not inadmissible
                iii. Pay $1,000 admin filing fee
                iv. Phys present as of certain date

B.     Non-Immigrants
A. Proc for nonimmig visa:
       1. Dept of State forms for nonimmig visa app – DS-156 p. 980
               a. Inadmissibility grounds expressly asked
                      i. Crim conviction
                      ii. Previous deportation order incl fraud/willful misrep to obtain entry
                      iii. Terrorist activities
                      iv. Violation of visa terms, unlawful presence
                       v. Withholding custody of USC child despite US court’s order
                       vi. Public health / public charge
      2. Personal appearance reqs can be waived for many categs
              a. E.g. B visas often issued by mail
      3. Alien bears burden of proving eligibility
              a. Biggest issue often whether has resid in foreign ctry and intent to return
      4. Consular official has discretion to req any kind of doc support deemed neces
      5. At port of entry:
              a. Aliens deemed inadmis can w/draw apps for admission
              b. Primary and secondary inspection
                       i. Secondary inspec – more detailed interview after problem detected by prim inspector
      6. I-94 is the authorizing document – not the visa
B. INA presumes intent to immigrate unless one of nonimmig categs met – INA § 214(b)
C. Most nonimmig visas req having residence in foreign ctry which alien has no intention of abandoning
      1. B, F, H2A, H3, M, P
      2. E, H1B, K, L, part of O, R, S, T don’t need foreign resid and no intent to abandon
      3. Dual intent doctrine – recog’d by BIA and courts
              a. Desire to remain in ctry should the op to do so is not inconsistent w/ lawful nonimmig status
D. Non-immig visas – INA § 101(a)(15):
      1. B visa – visit temporarily for business or pleasure
              a. Waiver available from certain countries – good for 3 mo.
                       i. Waiver gen only applies to tourist visas – INA § 217(a)
              b. Not permitted to work skilled or unskilled labor
              c. B1 – for primary; B2 for dependents
              d. Temp business excludes performing skilled/unskilled labor
              e. B visa used as catch-all for business nonimmigs when no other provision applies
              f. Advantage over other business cactegs
                       i. Alien can initiate overseas – no petition from employer/US–side needed
                       ii. No labor certification reqd
                       iii. No numer limitation
      2. E visa – treaty-based traders and investors
      3. F visa – full-time student visa
              a. Reqs educ institution to report to AG when study is done on penalty of visa revocation
              b. Incls spouse and children accompanying or following to join
              c. Reqs resid in foreign ctry and no intent of abandoning
      4. H visa – temp workers or trainees
              a. (H)(i)(b) – specialty occupations (“BA visa”):
                       i. Reqs specialty occup – INA § 214(i):
                               I. Theoret and practical app of body of highly specialized knowl
                               II. Bachelor’s degree or higher in specif specialty
                                       Often BA/BS relied on to determ specialty occup
                               III. Also reqs - §214(i)(2):
                                       Full state license if reqd to practice incl completion of neces degree
                                       Or exp equiv to the degree and recog of expertise thru record of promotns
                       ii. Reqs performing services, temporary
                       iii. Reqs labor condition attestation (LCA) from emplr to Secy Labor certing:
                                  I. Notified approp bargaining rep of petition/posted conspic notice
                                  II. Job offered at PW or actual wage paid to sim indivs (whichever greater)
                                  III. Working conds will not adv affect those of sim empl’d workers
                                  IV. Doesn’t have to recruit US workers
                         iv. Can be admitted for up to 3 yrs initially, extendible to stat max of 6 yrs
                         v. Can come temporarily to fill job that is itself pmt – same as B visa
                         vi. Portability – alien can move to another co and retain H1B visa
                                  I. 2nd co must also qualify for H1B
                                  II. Created to prot worker from oppression by emplr
                b. (H)(ii)(a) – agricultural workers
                c. (H)(ii)(b) – temporary nonagric workers
                         i. By regs, reqs labor cert sim to immigrant EBVs
                d. (H)(iii) – trainees
                         i. Incl spouses and children accompanying or following to join
        5. K visa – fiancee visa – must be fiance of USC and enter only to marry w/in 90 days
        6. L visa – intra-company transferees
                a. Used as alt to H1B – crit’d as inapprop alternative to H1B
                b. Reqs alien render svcs in managerial, exec capacity, or involving specialized knowl
                c. Corresps to third subcateg of 1st pref immigrant EBV
                         i. Must be empl’d at least 1 yr w/in last 3 yrs prior to app
                d. No numer limit but reqs petition to DHS first
                e. Incl spouse and children accmp or following to join
                f. Abused by “body shops” that obtain L visas then sub-K alien to another co
        7. M visa – vocational student visa
        8. O and P visas – athletes and entertainers
                a. O corresps to extraord abil 1st pref immig visa – reqs extraord ability
                b. P reqs intl recognized but not neces extraord
        9. R visa – religious workers
        10. S visa – snitch visa – person who has “critical, reliable info re: crim enterprises”
        11. T visa – trafficking visa – for vics of severe forms of trafficking
        12. TN visa – created by NAFTA
                a. Parallels H1B but Cdn citizs don’t need LCA or prelim petition w/ DHS
                b. Cdns no cap, Mex capped
E. Incoming numbers:
        1. B visas first, then student visas
                a. Many alien EBVs are AOS from H visas
                b. Estim 10% of students never take courses they get visas for
        2. Generally, nonimmig visas unlimited
                a. Except H1B, H2B (worry about H2B??)
F. Falling out of status – if alien does sth prohibited by the visa authorization
        1. Estim 40% of undoc’d are overstays

        1.      B vs H1B
A. Intl Union of Bricklayers v Meese – N.D. Ca.
        1. INS instruc invalid per stat cuz allows B visas for skilled/unskilled labor
                a. Also invalid cuz Secy State regs say “business” doesn’t incl purely local emp or labor for hire
       2. Karnuth – USSC:
              a. Regs stating “labor for hire” as not “business” upheld
       3. Implicitly overruled/disting’d Hira – BIA – that allowed B visa for skilled labor
              a. “Business” is any “intercourse of a commercial character”
              b. Incl skilled/unskilled labor as “neces incident to intl trade/commerce”
              c. Emplee of foreign clothing co could come in and perf skilled tailor labor

        2.      Parole Entries – INA § 212(d)(5)(A)
A. Allows ppl access into US w/o documentation – but is not an entry
B. W/in discretn of AG
C. Temporary
D. On case-by-case basis for urgent humanitarian reasons or signif pub benefit
E. Crit’d as de facto refugee admission pgm

C.    Inadmissibility
A. Most of inadmissibility grounds are also removal grounds
B. Remember Const prots do not apply any inadmissibility grounds – would be extraterit applic of Const
      1. Cf. Guantanamo Bay

       1.      Grounds for Inadmissibility – § 212(a):
A. Health - § 212(a)(1)
B. Crimes - §212(a)(2):
       1. CIMT, drug crimes, incl attempts or conspiracies to commit CIMT
               a. Exceptions:
                       i. Crime committed under age of 18 and more than 5 yrs prior to app
                       ii. Or max penalty for crime not > 1 yr and sentence imposed not > 6 mo.
               b. 212(h) waiver available on discretion of AG
                       i. For drug crimes, only if < 30 gms of marijuana
                       ii. If immigrant is spouse, parent, son/daughter of USC/LPR:
                                I. Extreme hardship to USC/LPR relative
                       iii. No waiver for former LPRs convicted of aggfels while LPR
                       iv. No waiver for aliens not lawfully present for 7 yrs prior to removal procs
                       v. No jud review of waiver denial/grant
       2. Prostitution/commercialized vice
               a. 212(h) waiver may if crime is > 15 years prior, not contrary to natl welfare, and rehab’d
       3. Foreign govt officials who engage in partic severe viols of rel freedom
C. Immigration Control - §212(a)(6), (a)(7), (a)(9) – see below
D. National security - §212(a)(3):
       1. Membership in totalitarian party – i.e. communism - §212(a)(3)(D):
               a. Exceptions for past or involuntary membership
               b. Applies to immigrants only
       2. Terrorism - §212(a)(3)(B) – see below
       3. Foreign policy - §212(a)(3)(C):
               a. Secy State has reas ground to believe would have potentially serious adv forin policy
                       i. Very flexible
               b. Exception available for officials and other aliens
                       i. If issue is inadmissibility on basis of beliefs that would be lawful in US
               c. PLO, Sinn Fein, Castro – granted conditional, geog/activity limited visas
E. Lack of labor cert – §212(a)(5)
F. Misc - §212(a)(10)
G. Aliens unlawfully present - §212(a)(9)(B):
       1. < 180 days < 1 yr and voluntarily departed or left – 3 yr bar
       2. < 1 yr – 10 yr bar
       3. 3/10 yr bar supercedes immediate relative priority – e.g. if alien marries USC abroad
       4. Waiver: AG has sole discretion to waive if:
               a. Alien is spouse, son/daughter of a USC/LPR
               b. Refusal of admission would cause extreme hardship to USC/LPR
               c. No ct has juris to review
H. Aliens previously removed - §212(a)(9)(A):
       1. Arriving aliens removed by ER or regular removal barred for 5 years
               a. Incl EWI – assimilated to status of arriving alien
               b. 20 yr bar for > 2 re-entry attempts
       2. Other aliens barred for 10 years
               a. 20 yr bar for > 2 re-entry attempts
       3. Aggfels are barred for life
I. Immigration control - §212(a)(6), (a)(7), (a)(9)
J. Suspension of entry/imposition of restrics by Prez - §212(f):
       1. Whenever Prez finds entry of aliens/class of aliens would be detrim to US interests
       2. Duration discretionary
       3. Can suspend entry or impose any restrics he deems approp
       4. Analogous to exclusion available to Secy State but broader

       2.      Presumption of LPRs Not Seeking Entry
A. Fleuti – USSC pre-1996:
       1. Innocent, casual, brief excursion by LPR may not be intended as a departure disruptive of status
       2. Will not subj such LPR to conseqs of entry upon return
B. Collado – BIA:
       1. Fleuti superceded by new INA § 101(a)(13)(C):
               a. LPRs not regarded as seeking admission unless:
                      i. LPR status abandoned/relinquished
                      ii. Absent from US for continuous period over 180 days
                      iii. Did sth illegal after leaving the US
                      iv. Left the US while removal/extradition procs pending
                      v. Has committd crime in § 212(a)(2) unless § 212(h) waiver granted
               b. Govt bears burden to show one of above exceptions

       3.     Immigration Control Grounds
A. Misrepresentation - §212(a)(6)(C):
       1. Fraud or willful misrep of a material fact
       2. Seeks, sought, has sought to procure visa, documentation or admission into US
              a. Or other benefit under the INA – e.g. incl AOS
      3. State Dept on misrep – Foreign Affairs Manual:
              a. Silence is not misrep
              b. Misrep must be before US official – i.e. consular officer or DHS officer
              c. Is no dfns to say someone else advised the action unless alien incapable of exercising judgmt
B. Waiver for misrep - §212(i):
      1. On discretion of AG
      2. For immigrants who are spouse, son/daughter of USC or LPR
      3. Extreme hardship to USC/LPR spouse or parent
C. Kungys – USSC – “material misrep” in context of naturalization app:
      1. Materialness is tested in relation to eligibility for ben sought
              a. If misrep something relevant to one of reqs for ben, is material
              b. But what if misrep ends up cutting against chances of receiving ben?
      2. Material if has “natural tendency to influence official decision of decisionmaking body addressed”
      3. Silence may be misrep – cf. Foreign Affairs Manual

       4.       Extreme Hardship to a Qualifying Relative
A. Matter of Cervantes-Gonzalez – BIA
       1. Usu financial hardship insufic
       2. 9th cir says hardship must be unusual or beyond normally expected for deportation
                a. Even for “extreme hardship”
       3. Fact that wife married alien when she was LPR and he was in removal procs goes to expectations
                a. Counts against necessary hardship
B. Practice tip: Tho stat doesn’t say to, always look at alien too
       1. E.g. is alien remorseful of conduct

       5.       Inadmissibility for Terrorism - §212(a)(3)(B)
A. Engaged in terrorist activity or:
       1. Consular officer or AG has reas ground to believe has engaged in or is likely to engage in
       2. Has incited terrist activity
       3. Is a rep of a terrist org or other org endorsing terrism
                a. Added by PATRIOT Act
       4. Is a member of a foreign terrorist org
                a. PLO explicitly named in INA pre-9/11
       5. Has used alien’s prominence w/in any ctry to endorse/espouse terrist activity or persuade others
       6. Is spouse or child of alien inadmissble for terrism if that terrism occurrd w/in last 5 yrs
                a. Exception: spouse or child who didn’t subj/obj know about the terrism or has renounced
B. Terrorist activity defn - §212(a)(3)(B)(iii):
       1. Unlawful in place where committed or unlawful in the US if committed in US
       2. And involves:
                a. Highjacking, sabotage of a conveyance
                b. Seizing, detaining, threat to kill/injure an indiv to compel a 3d pty to do/abstain sth
                c. Violent attack upon an int’l protected person or assassination
                d. Use of any bio, chem, nuke, explosive, firearm, weapon
                e. Threat, attempt, or consp to do any of previous
C. “Engaging” in terrorist activity – §212(a)(3)(B)(iv):
       1. Commit, incite, prepare, gather info, solicit funds or indivs
      2. Do sth that actor subj/obj knows affors material support
               a. Safe house, transport, communications, funds, false docs/ID, weapons, training
               a. Secy State and AG can jointly waive on discretion
D. Don’t confuse inadmissibility for terrorism w/ criminal prosecution for terrorism
E. Most rendition vics are citizs of ctries where US has visa waiver pgms but their ethnic bkrnd is Arab/Muslim

                a.      Post-9/11 Immigration Measures
A. Interim rule extends alien dtn time
        1. Immigration bens to alien vics of 9/11 – spouses, children
        2. Reps of foreign terrorist orgs inadmissible
        3. Dtn of aliens believed to have terrorist ties
        4. Pre-charge dtn of aliens up to 7 days
C. Prez-mandated:
        1. Review of student visa policies
        2. Sharing of immigration info w/ Cdn and Mex
        3. Milit order authorizing dtn and trial by milit commissn of those believd w/ terrist ties, or harborers
                a. Padilla – USSC punts for incorrect filing
                b. Hamdi – Accidental USC, ordered to renounce USC and return to Saudi
                c. Rasul – aliens can bring HC actions though they’re in Gitmo
D. DOJ policies:
        1. Not to reveal total # of ppl detained post-9/11
        2. Volun interviews of alien men from ctries suspected of harboring terrorists
                a. State Dept slows process of granting visas to men, 16-45, from certain Arab/Muslim nations
                b. Raised issue of state deputization in immig matters
E. S non-immig visa expanded - §101(a)(S)(ii):
        1. Secy State and AG must jointly determ
        2. Alien in pos of crit reliable info re: terrorist org and will supply that info
F. INS begins sending FBI names of 300,000 aliens still in the U.S. despite prior removal orders
        1. Mand dtn provs created to prevent aliens ordered removed from absconding
                a. Many of aliens still present were ordered deported pre-1996
G. Aviation and Transportation Secy Act – Airport screeners must be USCs
        1. See alienage law

       6.      Inadmissibility of Homosexuals
A. Until 1990 Immig Act, homos excluded from immig
       1. Then elim of provision that excluded someone from immigrating if they were afflicted w/
               psychopathic personality, sexual deviation, or mental defect
B. Homosexuality can still come in in immig matters:
       1. Can’t have been convicted of CIMT – If can arg that homos engaged in CIMT, would be inadmissble
       2. Also have to have good moral character for naturalization
               a. So it’s possible that lack of good moral character could be found
       3. But typically not found for consenting adult couples

III.   Admission Procedures
A.       Constitutional Requirement of Due Process

Case         Status of      In            Out              Process          Holding
Knauff       First entry    No            N/a              Cong delegs      p. 456 – Whatever the proc auth’d by
USSC         of Ger         previous.                      to Prez, Prez    Cong is, it is DP as far as an alien
1950         citizen;       Alien                          proclamatn       denied entry is concerned. Entry into
             married        appeals                        auths AG to      US is a matter of privilege. No vested
             USC            denial of                      make sole        rt of entry that could be subj of a prohib
             abroad.        first entry                    determ. No       against retroactive operation of regs
                            visa.                          hrg.             affecting her status. Confid info, and
                                                                            no hearing is not DP viol.
                                                                            Stat auth req’d for cts to conduct jud
                                                                            review of polit branches.
Kwong        LPR w/         Admitted      1950                              Cannot detain LPR w/o notice of
Hai          pending nat    1945,         departed as                       charges against him and w/o opp to be
Chew         application.   married       merchant                          heard is not auth’d by regs.
USSC                        USC,          seaman,                           Reg relates to excludablty – doesn’t
1953                        granted       reentered abt                     implicate DP rts of present LPRs.
                            susp of       4 mo later.                       Alien not held to be seeking admission.
                            deportn.                                        Not a Const holding.
Mezei        LPR; Lived                   Over 1 yr,       AG sole          Alien assimilated to status of entrant for
USSC         in US for                    visited mom      determ. of       Const purps.
1953         over 20                      in Eur           prej to pub      p. 463 – Can be denied entry for any
             years                                         intrst. No       reason by Cong.
Plasencia LPR;                            Out of ctry      9:30 one         p. 473 bottom – P can invoke DPC on
USSC      resided for                     for 2 days       night she        returning to ctry tho contours of proc
1982      5 yrs in US                                      arrived, next    reqd not decided. Only says DP applies
                                                           AM hrg; she,     to LPRs.
                                                           her husb, 3
                                                           other aliens

A. These DP cases talking about proc DP
       1. Remember can arg HC review even if HC denied is sufic proc
B. Synthesis: Returning LPRs who have been gone a short time are entitled to some proc DP
       1. Initial entrants or LPRs assimilated to status of initial entrants are not entitled to DP

B.     Review of Consular Decisions
A. Decisions made overseas gen held beyond reach of cts
       1. Some cts find juris to determ constness of stat under which consulate acts
       2. Much crit of consular nonreviewability doctrine – shouldn’t have survived the APA
B. Secy State can’t supervise/ctrl indiv visa determinations - §104(a)
       1. Indiv visa determs under consular officials
C. Any review of consular decision internal to consular office

C.     Parole
A. Can allow humanitarian parole in
B. Does not affect legal status of the alien
       a. When parole ended, alien returned to custody from where they came
C. Current std: case-by-case basis for urgent humanitarian reasons or signif public benefit
D. No jud review of parole - §242(a)(2)(B)(ii) (catchall discretionary prov)

IV.     Deportability and Relief from Removal
Pre-IIRIRA, judge can review deportation and waive
Crit of IIRIRA:
        Overarching, no flexibility, mandatory dtn, lifers
Fong Haw Tan – USSC
        1. Construe immig stats narrowly – rule of lenity for deportation

A.     Constitutionality
A. Bugajewitz – USSC – ex post facto Const prohibition n/a to grounds for deportation
       IIRIRA added removability for aggfels even if crime occurred pre-IIRIRA
B. Harisiades – USSC
       1. Dealt w/ removal of aliens who were members of the commies altho at time they were removed, was
               arg’d that they were no longer members – expelled
       1. “Underlying policies of what classes of aliens shall be allowed to enter and what classes shall be
               allowed to stay are ro Cong exclusiv to determ even tho such determ may be deemed to offend
               Amer trads and may jeopardize peace”
       2. Seems to insulate removal grounds from any kind of EP challenge
               a. Possibly only cuz EP std at that time very low
       3. Frankfurter: “Whether immig laws have been crude or cruel, reflect antisem, etc., responsibility
               belongs to Cong”
       4. Also “such matters are so exclus entrusted to the polit branches of govt as to be largely immune from
               jud inquiry or interf”

Reno v American Arab Anti-Discrim Committee – USSC:
       1. Two impo aspects – 1st amd and jud review (see jud review below)
       2. SC said can’t review before final order of removal
       3. Comments about selective prosecution of deportation:
              a. Scalia – alien in viol of immig laws can’t use selec prosecc as dfns to deportn
                      i. Exec doesn’t have disclose why it chooses to deport/antagonize certain natls
              b. Ginsburg – selec prosec doc doesn’t allow decisn to prosec based on imprmissble grnds
                      i. E.g. race, religion, other arbit classification
                      ii. Deportn laws shouldn’t be any diff
              c. Stevens – AG may give priority to removal of aliens who are members of partic org
              d. Souter – dissent from punting
      4. DHS will arg that status viols make them deportable anyway
      5. Ques still remains whether could deport all Muslim males
Fong Yue Ting – USSC:
      1. “Rt of a nation to expel/deport foreigners who hadn’t been naturalized or took any steps… rests upon
              same grounds [as deciding not to admit] and is as absolute and unqual’d as rt to prohib and
              prevent their entrance”
      2. “Power to exclude aliens and power to expel them rests upon one foundation – are derived from one
              source, supported by same reasons, and are parts of one/same power”
      3. Dissenters: Chinese today, everyone else tomorrow – hate Chinese but worried abt other natls

B.     Expedited Removal (ER) - §235(b)(1)(A)
A. Applies to arriving aliens inadmisble for misrep or insufic doc reqs
B. Auths removal w/o hrg unless alien indics either intent to apply for asylum or fear of persec
C. Expanding provision:
       1. Secy DHS in discretn may apply ER to any alien who hasn’t been admitted/paroled
               a. And can’t show continuous phys presence for prior two years
       2. Raises issue of DP reqs for aliens present for short amt time
               a. I.e. can alien be Const assimilated to status of arriving alien
               b. Martinez-Aguerro – fed dist
                        i. 4th amd search/seizure prots n/a to immig-related demand for visa
               c. No one has said not neces to provide hrg
       3. DHS has implemented ER to all aliens w/in 100 miles of border and present < 14 days
               a. Excepted Cdn and Mex natls
D. Exception - §212(b)(1)(F): no ER for aliens from Cuba (“not full diplom relations”) arriving by air

C.     Regular Removal - §240
Many of grounds for removal same as inadmissibility grounds
Special Terrorist Removal Court - §501 et seq
       No cases ever brought before it
       Provides for use of classified info, classified evid can be used
       Special atty looks at the info and never has to disclose
       Created for Tim McVeigh

D.    Grounds for Removal - §237(a)
A. Immig control - §237(a)(1):
      1. Alien who at time of entry or AOS was inadmissible
      2. Presence in US in viol of law
      3. Failed to maintain approp non-immig status
      4. Failure of marriage condition or marriage fraud
      5. Smuggling
              a. Narrow exceptn for immed rels of USCs – p.257
              b. Waiver available at AG discretion – p.258
      6. Misrep
               a. Waiver available – p. 259
                        i. Willful or innocent
                        ii. Must be spouse, parent, son/daughter of USC/LPR
                        iii. Must have immig visa and otherwise admissible except for fraud/misrep
                        iv. Waiver functions as waiver of inadmisblty (nunc pro tunc)
       7. Doc fraud
B. Crime - §237(a)(2):
       1. Convicted of CIMT w/in 5 yrs of entry and sentenced > 1 yr
               a. Goldeshtein – 9th cir –how to approach a case of whether a crime is CIMT
                        i. Is there “evil intent” in defn or nature of the crime
                        ii. Structuring transactions doesn’t contain intent to defraud (i.e. evil intent)
                                 I. So is not CIMT
               b. CIMT working defn: Is there another indiv who has been hurt other than the body politic
                        i. Contrary to duties that you owe to another person
                                 I. Structuring transactions, escaping from prison are not hurting anyone
                        ii. BIA has said that driving on suspended license is CIMT
                                 I. Escape from prison, not CIMT
                                 II. Possessing stolen prop is CIMT
               c. Multiple CIMT convictions arising from more than one crim scheme
       2. Aggfel at any time
       3. Waiver for Prez/Govr pardons
       4. Drug crimes except single offense of < 30 gms marijuana
               a. Incl drug abusers/addicts
               b. Flores-Arellano – 9th cir
                        i. Drug abusers deportable w/o a drug conviction
                        ii. Drug users deportable simply for “under the influence” conviction
               c. Law is very unforgiving for drug offenses
       5. Gun crimes
C. Document fraud – §237(a)(3):
       1. Willful viol of change of address reqs, failure to register, falsification of docs, doc fraud
       2. Falsely claiming citizenship
D. Security – also in inadmissibility
       Many are same as in inadmissibility provs
E. Public charge
F. Unlawfully voting - §237(a)(6):
       1. Exception available if reas believed was USC, parents were USC, etc.
       2. McDonald v Gonzalez – 9th cir
               a. Alien had to have intent to viol the law – inadvertent mistake is not grounds for removal


        1.      Aggfels - §101(a)(43)(F)
A. If convicted of aggfel:
        1. Ineligible for:
                a. COR - §240A
                b. VD - §240B
              c. Asylum
              d. Jud review of deportation based on aggfel
                      i. But jud review exists to determ whether crime was aggfel in first place
              e. Release from dtn
       2. Permanently inadmissibile
B. Defn:
       1. Murder, rape, sex abuse of a minor
       2. Drug, guns, explosives trafficking
       3. Money laundering
       4. Crime of violence where term of imprisonment is > 1 yr
              a. DUI issue
              b. Arg against Chev def – stat defn is clear or agency interp is not reas
                      i. Cts often find BIA is not agency w/ auth over implementation of this concept
                      ii. Crim stat declares what crime of viol is
              c. Probation of > 1 yr still aggfel

      5. Trafficking persons or prostitution-managing
      6. Fraud or deceit involving > $10,000
      7. Incl attempts or consps of all above
C. Guerrero-Perez – 7th cir – misdem can be an aggfel for removal purps

[From nonreview of consular decisions]
Later will see Mandel case – interesting cuz was a grp of persons w/in the US suing on denial of visa of
someone at consulate
       Same ques as Knauff

E.     Relief from Removal
A. In maj of removal procs, alien’s app for relief from removal is central
       1. Many aliens concede removability
B. Analysis:
       1. Statutory eligibility of the alien
       2. Then discretn – whether to grant relief
C. Forms of relief:
       1. Regulairization waivers (see above grounds for inadmis for fraud) and registry
               a. LPR status is most desired relief
       2. Vol dep also relief to removal, prosecut discretion by ICE, deferred action, stays
D. On discretion in waivers:
       1. BIA: “there is no inflexible std for determing who should be ganted discret relief”
               a. Each case should be judged on own merits
       2. Lack of jud review - §242(a)(2)(B)(i) and (ii)
               a. Incl 212(h) waiver, COR, AOS – 242(a)(2)(B)(i)
               b. Any other decision of DHS Secy leaving discretn in DHS Secy – 242(a)(2)(B)(ii)
                        i. Except for denials of asylum
       3. AoD may still be available
               a. Irrational departure from a policy
               b. Ct may say they’re not departing from policy, they’re just interping narowly
              c. Also deciding on impermissible basis – e.g. religion
                      i. But nothing yet saying that in immig, things can’t be decided on impermissible basis
                      ii. Closest was AADC but there were status viols there
       4. Govt can use secret evid and doesn’t have to tell alien basis for discretionary denial of relief

        1.      Cancellation of Removal (COR) - §240A
A. COR for removable LPRs - §240A(a):
        1. Must be LPR for > 5 yrs
        2. Must have resided in US for > 7 yrs
        3. Must not have aggfel
        4. No hardship req
B. COR for non-LPRs - §240A(b):
        1. Results in AOS to LPR
        2. Works for inadmissible or deportable aliens
        3. Reqs:
                a. Continuous phys presence in US for 10 yrs
                b. Is of good moral character
                c. Is not convicted of:
                         i. Any of inadmissibility crimes – §212(a)(2)
                         ii. CIMT, mult crim convics, aggfel – any of removablty crimes – §237(a)(2)
                         iii. Doc fraud
                d. Removal would result in EEUH to alien’s USC/LPR spouse, parent, or child
                         i. Cf. SOD allowed extreme hardship to applicant
C. In re Gonzalez-Recinas – BIA
        1. Alien granted COR
        2. On EEUH:
                a. Lower std of living or adverse ctry conds in place to which alien has to go are not in
                         themselves reason sfor COR
                b. Focusing not on alien but on qualifying rel
                c. Income being materially reduced – insufic for EEUH
        3. Refers to Matter of Monreal and Matter of Andazola – seminal cases interping EEUH
                a. Aliens in Monreal and Andazola denied COR

       2.       Relief Short of LPR Status
A. Voluntary departure - §240B
       1. Available in lieu of removal procs - §240B(a)
                a. Must not be aggfel
                b. Aka docket ctrl tool for immig cts
       2. Available at conclusion of removal procs - §240B(b)
                a. Must have been phys present in ctry > 1 yr prior to NTA
                b. Must be of good moral charac > 5 yrs prior
                c. Not aggfel
                d. Alien estabs by clear/convincing evid that has means to depart US and intends to
       3. Must leave w/in 120 days
       4. Still reqs discretion
B. Deferred action status
       1. Discretionary declining to pursue removal based on humanitarian consids
       2. Deferred action status allows work permits
       3. Deferred action status time is not “auth’d stay” for purps of 3 and 10 yr bars
C. Stay of removal
       1. No removal may be executed during time for filing appeal to BIA or while appeal pending
       2. Stays pending cir ct review discretionary
               a. Can get jud review of deportation while appeal pending

V.     Removal Procedures

A.     Constitutionality
A. Yamataya v Fisher – Japanese immigrant case
       1. Deportn procs at least for lawfully admitted aliens must have DP
                a. Notice, opp to be heard
                b. But held Jpn alien who didn’t spk Eng, didn’t know what procs about not denied DP
       2. Ct didn’t deal w/ issues of EWIs, short-term resids as reqing DP
       3. Doesn’t say what procs are reqd in deportation proceedings
B. Mathews v Eldridge – USSC
       1. Modern law on what proc is reqd for DP
       2. Bal test:
                a. Interest at stake for the indiv
                b. Interest of the govt in using the existing procs
                c. Gain to accurate decisionmaking that can be expected from added proc prots
C. INA makes provisions for most things that are consid DP
       1. E.g. opp to be heard, opp to examin the evid, opp to cross-x witnesses
D. There’s never been decision that says all aliens must have full hrg translated
E. El Rescate legal services case – approved decision of only translating questions to aliens
F. Alien has rt to bring own counsel, but not entitled to have govt provide one

B.    Detention
When detention can occur:
      1. Upon entry - §235(b)(2)
             a. Exception for ER
      2. Pending removal hrg – §236(a), §236(c)
             a. Gen dtn is discretionary – 236(a)
                     i. May be released on bond of > $1,500 or conditional parole
                     ii. No jud review of discretn - §242(a)(2)(B)
             b. Mand dtn for crim aliens– §236(c)
                     i. If inadmissible for crimes – 212(a)(2)
                     ii. If deportable for mult crim convics, aggfel, drug, gun crimes
                     iii. If deportable for CIMT involving sentence > 1 yr
             c. Demore v Kim – USSC
                     i. Deportable crim aliens can be detained for brief pd pending removal procs
                     ii. Distings Zadvydas
                       iii. Individized determ of dangerousness not reqd for DP
                       iv. Dissent:
                                I. Assim LPRs to status of USCs – entitled to indiv determ of dangerousness
       3. Post-order mand dtn - §241(a)(2), §241(a)(6)
               a. “Under no circs” shall DHS Secy release crim alien during pd of removal - §241(a)(2)
               b. Zadvydas v Davis – USSC
                       i. Stat interp to avoid Const issue
                       ii. Dealt w/ alien who was admitted and subseq ordered removed
               c. Discretionary dtn beyond removal period - §241(a)(6):
                       i. Three categories:
                                I. Inadmissible aliens
                                II. Crim aliens removable
                                III. Those deemed by AG as risk to cmty/unlikely to comply w/ removal order
       4. Apart from immig context – e.g. Gitmo, security detainees

       1.       Constitutionality of Detention
A. Generally, US Const doesn’t apply if alien detained outside the ctry
B. Korematsu – USSC
       1. Dtn of USCs legal in wartime
C. Hamdi – USSC
       1. War is not blank check for the Prez
                a. OConnor: history and common sense teach that unchecked system is system of oppression
D. Wong Wing – USSC
       1. Dtn or temp confinement of aliens would be valid
E. Rasul – USSC
       1. HC juris lies over Guantanamo – some Const prots apply extraterit
                a. At least where US has ctrl
F. Demore v Kim – USSC
       1. Deportable crim aliens can be detained for brief pd pending removal procs
       2. Distings Zadvydas
       3. Individized determ of dangerousness not reqd for DP
       4. Dissent:
                a. Assim LPRs to status of USCs – entitled to indiv determ of dangerousness
G. Zadvydas v Davis – USSC
       1. Stat interp to avoid Const issue – read in reas time limit on post-order detention period – 241(a)(6)
                a. Dtn w/in first 6 months after removal order presump reasonable
                b. After 6 mo, detainee has to be conditionally released if no signif likelihood of removal in the
                        foreseeable future
       2. Dealt w/ alien who was admitted and subseq ordered removed

       2.     Marielitos
A. Most paroled into US
B. Zadvydas may not apply – involved alien admitted and then ordered removed
       1. Clark v Martinez, Benitez v Rosas – USSC
              a. Applied Zadvydas to inadmissible aliens – read in reas time limit on post-order dtn
                      i. Per rule of lenity, and Const avoidance doctrine
               b. Not Const decision

C.     Judicial Review

        1.      History
A. Prior to INA in 1952, and 1952 Act, then 1961 act, 1996 IIRIRA
B. Btw 1855-1952 – essentially USSC took view that there was no review by cts of immig matters except HC
        1. HC reqs you to phys be here – if alien not admitted, no rt to HC (Mezei??)
C. 1888 – US v Jung Ah Lang – govt contended that exec offic had final auth
        1. Ct said no, HC still existed in cts
        2. Estimate that by 1888 at least 4,091 Chins had petitioned for HC hrg; 85% of them had been admitted
D. Cts said Chin migr could stay; law said they couldn’t
E. 1891 law – had prov that admin decisions – cts ruled HC still available
F. 1952 INA had finality provision too
        1. Cts say HC review exists and APA subst evid review
G. 1961 – immig act creating single, sep stat form of jud review of admin orders both for deportn and exclusion
        1. But review of final deportn decisions w/in app cts
H. 1996 IIRIRA – ct stripping amds

        2.       Provisions
A. No review of removal order where based on crimes esp aggfels - §242(a)(2)(C)
        1. Incl CIMT if inadmissible
        2. Not incl CIMT if removability unless mult crim convics
        3. Review of aggfels still happens cuz cts can say can review whetehr crime is “aggfel”
                 a. Cts review whether crime is aggfel de novo
B. No review of discret decisions except for asylum grant and incl COR - §242(a)(2)(B)
        1. Incl dtn or release, bond or parole, COR
        2. I.e. After BIA, no further review
        3. Cir cts can still review initial basis of removability – but not granting of discretionary waivers etc.
C. Consolidation clause (“zipper clause”) - §242(b)(9)
        1. Jud review of all law, fact, incl Const and stat provisns only after final order of removal
                 a. AADC dismissed for lack of juris – no final order of removal
D. Jud review of ER allowed - §242(e)
E. INS v St. Cyr – USSC
        1. USSC addressed Const of eliminating and curtailing jud review
        2. Aliens only legit claim is liberty interst – i.e. dtn
        3. Ct said as long as alien still has rt to HC, they have rt to chal dtn and thus ct stripping amds are Const

VI.       Constitutional Protection in Alienage Law
Distinc and overlap btw immigration and alienage law
          1. Immig: admission of aliens
          2. Alienage: all other matters relating to legal status of aliens
                  a. Once an alien gets in, what Const prots do they have?
. If it’s not immigration, alien can rely on Const
          1. 4th, 5th, 6th amds use “persons”
        2. 14th amd EPC and DPC use “persons,” other provs use “citizens”
Muehler v Mena – 9th cir
        1. Questioning immig abt immig status in context of crim search is viol 4th amd search/seizure
                a. Everyone implicit conceded 4th amd stds obj reasness apply tho was alien
Issue of when Const rts w/r/t alienage attach may depend on whether alien legally admitted or residence duratn

        1.       Constitutional standards
A. Rational basis review
        1. Is there rational relationship between classif used and legit state goal?
        2. Permits post-hoc reasons
B. Intermediate scrutiny
        1. Is there substantial relationship btw classif used and impo govt objective?
        2. Plyler arguably IS
C. Strict scrutiny
        1. Is classif narrowly tailored to compelling govt interest?
        2. For fund rts and suspect classifications
        3. Also for discrete and insular minorities – per Graham
        4. Concern for fiscal integrity is not compelling
D. Analysis:
        1. What std to apply – RB, IS, SS
        2. Can fed legis auth states to use alienage classif
        3. Does stat pass neces review
E. Graham v Richardson – USSC
        1. Aliens are suspect class when legis involved is state-level
        2. Concern for fiscal integrity not compelling
        3. Aliens pay taxes – should get same access to welfare bens
        4. Fed Govt has power to determ who can be admitted, who can remain, and terms/conds of nat
        5. Cong doesn’t have power to auth viol of EPC
                 a. Permitting state legis to disting on citizenship implied to be EP viol
        6. Didn’t address whetehr illegal aliens are w/in suspect class – i.e. Plyler
F. Mathews v Diaz – USSC
        1. RB review for alienage classif of fed govt
        2. “Reasons that preclude JR of polit quest also dictate narrow std of review of decisions by Cong or
                 Prez in area of immig or nat”
        3. Didn’t address whether std lower than RB reqd for immig
        4. Graham involved line btw USCs and aliens; here line is btw legal and illegal aliens
F. Plyler v Doe – USSC – EP viol
        1. State going to charge illegal alien children to go to public elementary school
        2. Ct used between RB and IS to invalidate disting on alienage
                 a. Discussion of hardship to kids when they didn’t choose to come illegally
                 b. Discussion of creation of permanent subclass
        3. No RB if goal is to stem illegal migration
        4. No RB if goal is to provide high-quality education
        5. No RB if goal is to educ those who will stay in state
        3. Dissent:
                 a. Illegal aliens not suspect class, educ not fund rt – should be RB review
                b. Fiscal concerns are sufic legit basis to sustain RB review
G. City of Chicago v Shalala – 7th cir
        1. RB review for fed welfare bens legis of 1996 that distings on alienage
H. Hampton v Mow Sun Wong – USSC
        1. Not every fed agency can adopt rule disadvantaging aliens
        2. Doesn’t talk in terms of RB/IS/SS
        3. “There may be overriding natl interests that justify fed legis that would be impermissble for state”
        4. “We don’t agree that fed power over aliens is so plen that any agent of the natl govt may arbit subj all
                resid aliens to diff subst rules to those applied to USCs”
I. Yick Wo v Hopkins – USSC
        1. Rts of aliens not less cuz they’re aliens and subjects of emperor of China
        2. Impo cuz decided same time as CEC – but very opp in attitude to CEC

VII. Immigration and National Security
Aliens removable/inadmissible on secy etc grounds - §235(c):
        1. Without further inquiry or hrg once inspector believes alien eligible for removal on security grounds
        2. AG shall conduct review of orders of removal and may remove w/o inquiry or hrg before IJ
               a. Open issue of DP – esp for returning LPRs
So secret evid can come in:
        1. Whether to admit
        2. Whether to allow discret relief
               a. Jay v Boyd – USSC
                       i. Denial of discret relief where secret evid is basis for denial is no viol
        3. Whether gonna detain them
        4. Whether gonna deport them
               a. Terrorism removal ct can use secret evid by stat
SoR for deciding whether removal procs must be open:
        1. Detroit Free Press – 6th cir
               a. 1st amd limits non-subst immig laws
               b. Aliens enjoy unrestrained 1st amd rts in deportation procs
               c. Richmond experience and logic test:
                       i. Open hrgs long considd to advance fairness to parties
                       ii. Pub acces cks abuses, prevents mistakes, therapeutic effect as outlet for hostility
               d. “Democracy dies behind closed doors”
               e. SS applies
                       i. Govt has compelling interest
                       ii. But Creppy Directive not narrowly tailored
        2. North Jersey Media – 3d cir
               a. Richmond experience and logic test w/ opposite results
                       i. No histor experience of open deportation hrgs
                       ii. Creppy directive tailored enough

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