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Immigration Law in US

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					Immigration Law in U.S

What’s immigration? Immigration is a long term relationship b/t 2 countries. Immigration is a war powers concern (plenary power). When the national interest is at jeopardy, we‘re going to let Cong & adm agents do whatever they want & we‘re going to keep ct‘s fair minded balancing tests for calmer days. Immigrant: one who lives a country to settle permanently in another to live. 1. Citizenship

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Citizenship not always ultimate goal of coming to US. 1. Two models of representing membership: 1. Chronological time line (or horizontal): Immigrants begin process usually by receiving visa overseas, entering US, establishing residence and ultimately obtaining citizenship. (visa entry/entry w/o inspection[EWI]–> NIV[nonimmigrant visa holder who comes for period of time & leaves—>LPR [legal perm resident]—> citizen. Rights & opportunities might be seen as accumulating over time as one moves along the process. 2. Concentric circles model: Citizens form innermost membership rings w/categories of non citizens filling in outer rings. Under this representation, membership rts are assigned by category. 1. Trujillo says this model is inaccurate b/c not every NIV wants to be LPR & not every LPR want to be a cz. Coming to US isn‘t to share in our polity, but it‘s to come & share in our education & economy. 2. Manifest Destiny is a theme that reoccurs: Manifest destiny that US told itself during it‘s empire days. During the 1848 war on Mex, we swiped 1/3 of their land, in our war w/Spain we got P.R., Cuba, Philippines. People were describing US foreign policy in that time in terms of Manifest Destiny that US is City on a Hill, a divinely chosen country w/a divine mission to make the word safe for democracy & we export a politics. We‘d look at countries & get them up to speed so that they could grow into & join our democratic polity (politics & economics, democracy & capitalism). There would be a period of probation. The whole structure of expansion of US followed this model. It would be a territory for a while, we‘d check you out & then you‘d apply to be a state. Manifest destiny puts polity, nation, land & territory on probationary period, that foreign policy logic can be seen in imm law. Most people embrace the probationary aspect of imm law, but Trujillo says this isn‘t accurate b/c that‘s not what many people are coming here for. A good chunk of them aren‘t coming here for membership. They‘re coming here b/c that‘s were UW is & want to get a degree, or that‘s where their fam is, or want to get a job. 3. Most people talk abt imm law saying that US is a polity & people are attracted to the polity & it’s all abt political membership. What they forget abt is that there‘s also fam, education, & employment etc. & while I might be totally alienated as a matter of politics, I might be getting up in the morning b/c of the UW, Microsoft, or b/c of my family. So, the more accurate concentric circles are those abt community & family, not just polity. Political membership & membership in polity is only one party of the story. Defns: 1. Citizen (Cz): full members of state, entitled to basic rts & opportunities afforded by state. 2. Aliens or foreigners: Those who have acquired residence in state by process of imm. 3. Imm: laws regulating entry & stay of non-citizens. Most immigrants follow

prescribed procedure in obtaining admission to state territory. 4. UFN: Undocumented foreign nationals. People who cross borders or remain in state terr in violation of domestic law. 3 Immigration Policies: i Immigration transforms the demographic profile of US Pop, esp in large cities: leads to fears abt overcrowding, unemployment, scarcity of resources & fears of cultural fragmentation. ii Immigration law is the principal means by which the country not only determines who will gain access to ltd resources & opportunities in US, but also what will be the national & cultural identity of US iii Arguments in favor of open-door policy of imm: A Fears that national & cultural identity will be destroyed by immigration are exaggerated. The US functions best as a diverse pop & is expansive enough to absorb many new immigrants. B Contrary to fears abt job security, immigration is a necc for future US economic growth. Even unskilled workers aid US economic growth by filling jobs that many US czs & LPRs don‘t want. Immigration policy is a tool to help US compete internationally. C US is country of immigrants: How could country of immigrants claim any right to exclude future migrants? Moral quesion. iv Arguments against open-door policy of imm: A Increase in imm will compromise US std of living: The ―American Dream‖ will be weakened if country becomes overcrowded. There are finite resources & jobs & US Czs & LPRs shouldn‘t have to compete w/immigrants & aliens for them. B Line drawing: We need restrictive policy b/c US can‘t let whole world come here. Need to let only people who will be most advantageous to US‘s future to come in. C Brain Drain: US should commit its resources to helping countries in need to potential immigrants will be encouraged to remain in their developing countries. This perspective contends that immigration is a drain on other countries‘ human resources. All countries would benefit if these potential immigrants remain in their country of origin. D Political forces: Arg that open borders will lead to more domestic problems such as crime, drugs, urban violence, unemployment & homelessness. 3. Primary Fed Stat is the Imm & Nationality Act (INA), which is codified in Title 8 of USC: 4. Primary Fed agency charged w/enforcing INA is INS, located w/in Dept of Justice: 5. This course examines the basic categories for entry & residence as immigrants & procedures for admission & removal. Themes of due process, fair treatment of immigrants & the social economic & political implications of immigration. In doing so, we‘ll be concerned w/ fundamental issues of membership–what it means, how it‘s attained (& lost) & what rts & opportunities accompany it. 6. The concept of citizenship: 1. Brubaker Article: pp 2-9: The Concept of Citizenship i. Every modern state defines its cz, identifying certain people as its members & designating all others as non-cz or aliens. ii Every state attaches certain rts & obligations to status of citizenship: iii Only cz have unqualified rt to enter (and remain in) the territory of a state: iv Naturalization, which governs access to status of citizens is itself closed & restricted to the qualified: v Access to citizenship: Every state limits access to its citizenship. It limits the circle of persons to whom it ascribes citizenship at birth &

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specifies terms & conditions on which it will permit others to acquire its citizenship. 1. Ascription: Every state ascribes its citizenship to certain persons at birth. Vast majority of persons acquire citizenship in this way. aa. Rules of ascription vary among states: but most use birthplace or parental citizenship or both as indicators of membership. bb. The strongest presumption of membership is persons born on the terr of parents who are citizens of the state: cc. The problematic situation is one where persons are born abroad to citizen parents and for persons born in territory to non-czs: B Naturalization: Persons to whom citizenship of a state isn‘t ascribed at birth may be able to acquire it later in life through naturalization. 1. At one extreme, naturalization is purely discretionary & very uncommon, like in Switzerland and Germ. At other end all people who meet certain requirements are naturalized and they are expected to (e.g. Canada & U.S & Sweden). 3. Displaced Persons: Note #2 on Arendt: In her book, she talks abt situation of stateless/displaced person. States how rights which are inalienable are unenforceable w/stateless persons. They no longer belong to any community. Nothing they say matters, so they suffer ―the loss of relevance of speech & human relationship.‖ vi Categories of People: 1. CZ: citizens; fullest rights/everyone defined by them 2. LPR: Legal Perm Residence 3. NIV: Nonimmigrant visa 4. UFN: Undocumented foreign national 5. EWI: Entrance w/o Inspection Dual Nationality & Renunciation Requirement of the Naturalization Oath: i Alenikoff article: 6. Dual citizenship generally viewed as unfavorable. Person should only have one nationality: traditional view. 7. Dual nationality brings up concerns abt diplomatic protection, military service, & voting rts. Plus issue of divided loyalty. 8. Issues arise most seriously during wartime, but also during peace on political level. ―Fear is that dual cz if countries A & B will participate in polit system of country A w/interests of country B in mind. ii Situations where Dual nationality may arise in US: 1. Birth in US to immigrant parents: 2. Birth outside US to child w/US citizen & foreign parent. 3. Naturalization w/renunciation requirement but renunciation not recognized by country of origin. 4. Naturalization, loss & resumption of citizenship iii Naturalization Oath: since 1975, Fed law has required that applicants for naturalization take an oath, which includes renunciation of prior allegiances. See INA _337 (a); 8 C.F.R. sec. 337.1 (a). But there are proposals to amend oath. Oath found in pp403-404 of stat book (8 U.S.C. 1448) iv Spiro Article: There has been a softening in state attitudes toward dual nationality. Dual nationality poses little threat to the polity. If you don‘t allow these people to naturalize, they can‘t become full participants of the political process, providing a net detriment to the country.

Diminishing costs of Dual Nationality in Global Context: aa. Risks of dual nationality have diminished due to nature of international system: bb. War was one of major reasons for allegiance to state: But now prospects of war b/t major nations is very remote. cc. Fewer naturalizations of no dual nat: Fewer aliens will naturalize than would under a regime in which dual nationality were accepted or embraced, as many aliens will be unwilling for either sentimental or economic reasons to cut their ties to their homelands. dd. Renunciation oath adds little, from society’s perspective to the value of would be cz: 5. Shuck’s article: Amend oath: 1. Don’t end it, mend it: 2. Oath now is too overbroad. Need to define core & he places 2 duties in core: 1. Naturalizing cz should be obliged to prefer interest of US over other polity: 2. New cz must not hold high public office in another polity: 2. Acquisition of nationality by birth: (birthright citizenship): See sec. 301 of INAcodifies jus soli & jus sanguinis & s. 309. Jus Soli is an unusual policy determination to allow anyone who‘s born in US to be cz of US. a. Jus soli: Citizenship by the place of one‘s birth. Codified in 14th amd aa, Born on the land: bb. Subject to jurisdiction: ii Birth of Children of foreign sovereigns & diplomatic officials in US terr doesn‘t result in birthright cz. iii s 301 (a) (b): ―The following shall be nationals & Czs of US at birth: (a) a person born in US & subject to the jurisdiction thereof, & (b) person born in US to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe, provided that the granting of such czship shall not impair in any manner the rt of such person to tribal or other prop.‖ iv Elk v. Wilkins (1884): Case represents strict reading of 14th amd. Held: Native Americans not citizens, even if sever ties to tribe b/c ties seen as sovereign, so therefore not subject to political jurisdiction of U.S. 4. Wong Kim Ark: (1898)Case significant to empire building. Facts: Ark born in San Fran of Chinese nationals. Chinese until 1941 not eligible for naturalization. Ark brought case after being excluded from entry in 1895, after brief visit to China. Held: Ct said Wong Kim Ark did meet jus soli requirements (in 1898 only free white persons could be citizens). aa. How does ct distinguish Wong Kim Ark from Elk? Trujillo suggrsts that ct may be distinguishing person‘s connection to jurisdiction (Indian people still born under tribal jurisdiction, so ct must be acknowledging their sovereignty). bb. Whether it was proper for a cz to be ―non-white‖ was a serious question under Manifest Destiny, empire building in 1898. cc. Ct basically made decisions by res judicata over 100 yrs of nonaction regarding other citizens of European descent. 2. Jus sanguinis:.The other significant way of getting czship through birth is jus sanguinis which is Latin for rt of the blood (to get it from parents who are citizens.) Jus sanguinis is a principle designed to confer czship upon children of US czs who happen to be born abroad. See 301 (c) (e) (g) (h); 308 (2), (4), & 309 of INA. Certain kinds of govt & military service abroad count as physical presence. (301 (g) See chart pp7. See problem pp27.

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301 (c) (pp 401) states that if both parents are czs & at least one of cz parents has a residence in US at some time prior to birth, then child is cz: Very low, easy to meet threshold. 301 (c) is where you have both parents who are czs. The other track, which is a little more demanding is where you have one parent who is a parent & another parent who isn’t a cz (either a foreign national or LPR): Then the cz parent had to have been physically present in US for at least 5 yrs prior to birth of kid, including 2 yrs occurring after that parent turns 14. Note, this is a requirement for the Parent. We are conditioning the parent‘s capacity to transfer czship by blood to his or her offspring. (1) The ? is what are we getting it with these sorts of rules? Why can‘t we just say that if there‘s a US cz involved, it‘s sort of like a generic trait of US czship & when kid is born he‘s got that gene, it runs w/the blood? Why does US require not just mere fact of cz, but also residence (if both parents are czs) or heightened requirement that the parent has to have spent some meaningful time, including time during mature yrs in US? There is a concern that they would have a paper/legal rt to czship w/o having equitable title to being a member of US community. For example folks born & raised in China who never sang the star spangled banner ate a hot dog or played baseball. Ideologically, US wants more than that. (2) Under 301 (g), parent can only transmit cz to his or her child if she/he’s got “it”. What it “it”? ―It‖ isn‘t the bare title of czship. Whatever ―it‖ is, the law presumes that you get ―it‖ by being physically present in US for 5 yrs, including 2 yrs after you turn 14. It does seem to include a sort of cultural component, that you can only give what you have in transmitting ―USness from person to person. ―a sufficient opportunity to have fostered a tie to the US‖ that they can then transmit. When we’re talking abt jus sanguinis czhip, we’re talking abt a transmission process where the transmitor (parent) has either got to have “it” or not in order to transmit “it” (czship) to the child): and there are legal rules that develop that try to define long it takes to get ―it‖. Whatever ―it‖ is , you get it by spending 5 yrs in the physical US, including 2 of them after you‘re 14. This parent in China has to be equipped to at least be able to tell stories to her kid abt the US. Stories that communicate Americana. What this means is that what it takes to be a US cz, contrary to Germany, Israel or Ireland or other ―ethnic‖ defined communities is that we don‘t have an ethnic story in this country, so to replace it we grab on to other things, which we then require to be in place in order for czship to be transferred abroad. The very fact that we have these rules states that US defines its membership community by ideas, & experiences & culture & not by blood lines. Problems pp 27 & 28: (1) Your clients are a married couple. They’re Prespreterian missionaries in Ukraine. They are both kids of missionaries. The H was born in Poland & W on Philippines, but both acquired US czship @ birth. They are expecting baby next month & it’ll be born in Ukraine. Will child have US czship? 1. These are 2 czs, although may have never set foot in US: They fall under 301 (c), the easy road. 301 (c) says ―a person born outside of US of parents both of whom are czs of US & 1 of whom has residence in US any time prior to birth‖ will be a cz. Need to ask client if both are czs, then ask if one of them has residence in US. (1) What does residence mean? See glossary defn in

101 (a) (33). (pp 33). S. 101 (a) is a glossary, an alphabetized list of key terms. ―The term ―residence‖ means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, w/o regard to intent.‖ This is very weak. It can be a hotel room (for pub policy reasons). Very low std when you have 2 czs. This begs public policy problem of how did they get ―it‖ & code lets them transmit ―it‖ easily since both are czs. (aa) Local Legal Culture: You have uniform fed stat & big pub policy push that cases be treated alike & substantial administrative agents scattered all over US localities & things are done differently in Madison than in Milwaukee (both in BK & Imm). Lawyers know this & that‘s why you get local counsel. & what you‘re paying for when you bring then aboard is local legal culture. There are regional variations in way justices administer no matter how uniform stat is. (2) Client born in US, but his parents moved to Switzerland when he was 2, & thus spent most of his time in Europe. He’s been living with French woman in Paris for past 3 yrs & she recently discovered she’s pregnant. Child due in 5 months. This prompted couple to talk abt marriage. They haven’t decided yet. He wants to make sure that child has US czship a.. He asks whether he has to move to US w/fiancée to accomplish this. He isn’t sure he can arrange this in time b/c has no passport or US visa. He can do it. There is reciprocity b/t US & France. B/t certain counties & US, there are speedy ways of getting in & out. And for certain countries there aren‘t (Mexico). But where we have relationships w/countries where we have an interest in getting in quickly, we give them a reciprocal rt. 1. The easiest case to achieve client goal of getting czship for kid is to for her to move to US & have kid on the dirt (Jus Soli): You want to put all options on the table. This is true, not only in real life, but on the exam. If this were an exam question, Trujillo wants all options, even if it‘s option they prob won‘t want b/c that‘s not for you to decide. You‘re not there to make decisions for client, but rather to give full info for client. They may surprise you & take option that you may not have thought was all that desireable. Your job is to render full info abt possibilities. One possibility id Jus Soli. 2. Suppose they don’t want to move, now you’re in 301 (g) & later 309 (children born out of wedlock). 1. 301 (g), children born abroad to US cz & non cz parent, there parent cz had to have spent 5 yrs in US, 2 yrs of which had to have been after cz parent was 14 yrs old. Here you need to see how long he‘s been in US. Facts say that parents moved to Switzerland when he was 2 (2yrs) & spent most of life in Europe (ask him what does that mean. You try to get it to 5, esp

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after age of 14). Also parents may have served in Armed Forces, employed by US or in an NGO, & that counts. Being on base is just as good as being in US. And if you‘re just a little bit short, you counsel guy to make up the difference from now on (only he needs to move, not she). 2. Suppose client can get 5 yrs & 2 yrs after 14, that’s not the end of the problem b/c they are unmarried: If they marry, then it‘s fine. If not married at time of birth, then requirements of 309 are piled on to requirements of 301 (g). Basis of 309 regards treatment of kids born out of wedlock. If kid is out of wedlock at time of birth, then conferral of czship vis 301 (g) are qualified by 309. Under 309, male parents & female parents are treated very differently. iii Chart on pp 7 of outline: a For moms, if they are married & they are they one who is ―it‖ & transmitting czship to kid has requirement of 5 yrs & 2 over 14. But if they are not married, they have a weaker requirement of 1 yr continuous residence (309 (c)) (if mother had been previously physically present in US for continuous period of 1 yr). This amounts to preferential treatment for out of wedlock kids . Done to prevent stateless kid, where countries confer statehood based on father who may disappear. If mom is US cz & kid gets US czship, there is no need to show attachment. 2. For Dads: Unmarried men need to show ―affirmative step‖ to communicate or transmit ―it‖ under 309 (a) in addition to 301 (g) requirements of 5 yrs & 2 yrs over 14. Affirmative steps include legitimating child b/f child is 18, acknowledging paternity under oath or adjudicating paternity by ct. If married, the US cz trasmitter dad must satisfy 301 (g) requirements. 3. Is the differential treatment b/t Dads & Mom unconstitutional. It seems like sex discrimination & illegal. The Supreme ct in Nguyen v INS (2001) says Wrong! Nguyen v. INS: (2001) Facts: Nguyen was born in Vietnam, but lived in TX w/dad, Joseph Boulais since he was 6. Mom & Dad were not married. Dad was US cz & mom was cz of Vietnam. The reason why this ct made it to Sup Ct is that it‘s absurd to think that he didn‘t get ―it.‖ When he was 22, Nguyen pleaded guilty in TX state ct to sexual assault on a child & was sentenced to 8 yrs in prison on each count. 3 yrs later INS initiated deportation proceedings against Nguyen as an alien who had been convicted of 2 crimes involving moral turpitude. Nguyen argued that he was a cz of US. But INS judge found him deportable. Father obtained order of parentage from State court based on DNA testing (Nguyen was 28). Issue: Does s 309 violate EP by providing diff rules for attainment of czship for children born abroad & out of wedlock depending on whether the one parent w/American czship is the

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mother or the father. Holding: No. ―For gender-based classification to w/stand equal protection scrutiny, it must be established that the challenged classification serves important govtal objectives & that the discriminatory objectives employed are substantially related to the achievement of those objectives. We conclude that s309 satisfied this std. While conditions necc for cz mother to transmit czship under 309 (c) exist at birth, father has 18 yrs to satisfy requirements of s 309 & at that time child can assert czship. i, Govt interests served: a Proof issues: govt wants assurance that parent/child relationship really exists. It‘s obvious for mom but not for dad. The 3 options ―steps‖ are designed to ensure an acceptable documentation of paternity. Don‘t want fraudulent conveyance of czship. 2. An opportunity to transfer “it”: The 309 requirements on father is the determination to ensure that the child & cz parent have some demonstrated opportunity or potential to develop not just a relationship that is recognized as a formal matter, by the law, bu one that consists of real everyday ties that provide a connection b/t child & cz parent & in turn to US. From birth, mom can do this, but not necessarily unwed cz dad of child born overseas. He may not even know that he‘s the father & mom may not know who dad is when they are unwed. ―Scientific proof of biological paternity does nothing by itself to ensure contact b/t father & child during child‘s minority.‖ 3. Not difficult to do: can pick least onerous of 3 options. 4. Child can seek czship on own right: 309 (a) isn‘t sole means by which child of cz father can seek czship. 5. No need to assess wide deference afforded to Cong in exercise of Imm & Naturalization power b/c not EP violation: ii Dissent: it is entirely possible for father & child to develop a relationship w/o obtaining proof during child‘s minority. Naturalization: See history p 10-11. Process by which person becomes US cz, who didn‘t achieve that czship by birth, either by soli or sanguinis–> by taking test & being checked out in rigorous way by INS. Const expressly allocated to Cong power to establish Naturalization rules. 1. Gordon & Mailman treatise is the basic resource in Imm law. It‘s the 1st thing an imm lawyer looks at for practical questions in imm. (pp 44) 1. Lays out racial restrictions & the way access to naturalization was restricted by basis of race: In 1790, 1st naturalization stat was passed & it said that had to be ―white‖ & that was in place for almost 100 yrs, until Civil War, when it allowed people of African decent to also naturalize. But until 1940, had to be either White or African to get in & you had weird body of law that developed that tried to construe as matter of law, what being white meant. In 1940, it was expanded to anyone in Western Hemisphere. In 1943, China, & 1946, Philippines & India. In 1956, race was dropped in the Immigration & Naturalization Act of 1952. The Act eliminated racial qualifications & prohibited denial of naturalization on basis of sex or race. Prohibited naturalization of certain members of subversive groups, declaration of intention & certificate of arrival were eliminated & grounds for expatriation & denaturalization were enlarged. Ian F. Hanley Lopez, Racial Restrictions in the Law of Czship (1996): 2. From US’s inception, laws regulating who was or who could be a cz were tainted by racial prejudice 3. 1790-1870, only whites could naturalize 4. After 1870, Blacks & Whites could naturalize, but not others.

5. Racial prejudice against Asians continued. One senator commented that Native Americans were savages & wondered if ―opening doors to Asians would spell an end to republican govt. 6. WWII forced reconsideration of racism as America’s Asian allies were banned from czship: This exposed the hypocrisy. 7. 1940: Doors opened to races indigenous to Western Hemisphere. 8. 1943: Chinese allowed to Naturalize: 9. 1952: Race removed as criteria. All barriers to race & sex removed. 10. Note that although people were excluded from naturalization on basis of race, their children born in US were not, pursuant to 14th amd. 11. Immigration Act of 1990: Prior to 1990, Naturalization used to be a court officiated act & it was moved from cts to administrative structure of INS, but w/a very strong right of judicial review. (look at 310 (c)) ―judicial review: a person whose application for naturalization is denied after hearing b/f imm officer under 336 (a) may seek review of such denial b/f US district ct. Such review shall be de novo & ct shall make its own finding of fact & conclusion of law & shall conduct a hearing de novo on the applicaiton.—> this is dream language!!!! One of the basic themes for practice of imm law is judicial review. At what pt can I get my client away from INS & into ct? INS is agent of DOJ, which is executive agent & anti-immigrant & not interested into meaningful inquiry into rts of client. A key move is to try to get into ct & whole structure of inquiry changes & actually have a disinterested decision maker (in contrast to INS officer who has an interest that‘s opposite of your interest) 1 Naturalization was fxn historically assigned to the courts, however in response to abuses or other systemic difficulties, Congress established an administrative screening and support mechanism. 2 Today, Naturalization is almost entirely an administrative procedure under authority of AG: 3 Cts still administer the oath & judicial review when petition is denied. Procedurally it was moved from cts to INS w/this judicial review language, which is a very rare rt to judicial review, which is noticeably & deliberately absent from the rest of Imm law practice. It‘s harder & harder to bring client into ct, which makes it harder & harder for you to do your job. aa. Reasons for changes included: 1. An increasing volume if aliens, increased burdens on dockets: 2. Lengthy delays due to increased applications. Basically, a logistical nightmare for the cts. 3. Administrative streamlining reasons: House Committee stated (pp55) (Trujillo was sarcastic) that ―by vesting authority for naturalization w/the AG, the applicant will be relieved of onerous paperwork, burdens, confusing divisions of responsibility b/t cts & DOJ, & unduly lengthy processing times.–> but it‘s worse now than in 1990. iv The Nat Process: (pp55) 1. Examiner INS officer (2nd ipini examines applicant & makes formal determination to grant or deny (sec 335) 2. If approved, oath of allegiance can be administered by AG or ct. 3. If denied, agent must state reasons 4. Appeal to IMM officer: Applicant may request new hearing b/f imm officer (sec. 336 (a)) who has discretion to schedule full de novo review. 5. Judicial Review: If still denied, then applicant can seek judicial

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review in accordance w/ Administrative Procedures Act, in Fed dist ct. Requirements for naturalization (Trujiijo): The reqs for naturalization are much more exacting than LPR, which are much more exacting than NIV (concentric circle: The closer you get to the core, the more exacting the tests will be to see that you‘re good candidates for cz) 6. Residency & continuity req (316 (a)). Need to be resident 5 yrs continuous, some time prior to application & in the 5 yrs prior to application, need to have total residence of at least 2 ½ yrs. And need to have lived for at least 3 months w/in state where application is being made. And after application & b/f naturalization is granted, need to be continuously in US. Folks who are naturalizing live in 5 yr zone of ltd movement. It‘s part of price they‘re paying to be a cz.‘ 7. Age: 334 (b) (1): Need to be 18 yrs old. Folks who are younger than this will get naturalization at same time that parents get it. It‘s called derived czship. 8. Literacy req of 312 (a) (1): must be able to understand, read or write simple English. It can be variable based upon local legal culture 1. Local Legal Culture: could have examiner who really wants to establish Eng literacy & makes big deal abt it, or could get guy who asks same ?s each time & then atty just trains someone in how to answer the same ?s in English. 4 Need to take civics test 5 Req of good moral character: s 316 (a) (3), including negative safe harbor (101 (f)). Negative safe harbor says that if you‘re not on this list then you have rebuttible presumption of good moral character (stuff on list such as habitual drunkard) 6 Need to have attachment to const & have to be well disposed to good order & happiness of US: There is at least potential for more far reaching inquiry than applicant for LPR. Requirements for naturalization: (Nutshell) 1. Residence & physical presence: sec. 316 (a) No person shall become a US citizen by being Naturalized unless: 1. Has lawfully resided continuously in US for 5 yrs: aa. Need not stay in US each day of 5 yr period. Temp absences permitted. However absences > than 6 months & <1 yr may break continuity s. 316 (b). Exception is that applicant can overcome presumption by satisfying AG they didn‘t abandon residence. 2. During 5 yrs immediate to filing must be physically present in US ½ of the time. 2. Age: Must be 18 (s. 334 (b) (1)). Younger kids gain citizenship @time parents naturalize. 3. Literacy: Must be able to speak & understand, read & write simple English (s 312 (a) (1)) & have knowledge & understanding of fundamentals of US history & form of govt. This is generally applied in a lenient manner. 1. Exceptions to Lang requirement: Persons over 50 at time of petition who were LPRs for 20 yrs. 2. Policy for Eng. Proficiency: You need it to be effective. language creates cohesion. 4. Good Moral Character & crim behavior: 1. The burden is on pet to establish. 2. What excludes good moral conduct (s101f-habitual drunkard, see also s 212 (a)).

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3. For 5 yrs preceding date of application s316 (a) & see inadmissibility under s212 (a) (2). 5 Attachment to constitutional principals: s316 (a) 1. Belief in representative democracy: 2. Commitment to Bill of Rts 3. Individuals belonging to Comm or Totalitarian groups may not obtain naturalization. s313 (a)(4). Exceptions: if membership not voluntary, alien will not be disqualified. Also, if membership occurred prior to age 16, will not be disqualified. If membership was necc to obtain employment, food, or other essentials will not be disqualified. (212 (a) (d) ii) 6 Oath of Allegiance: 1. Oath of renunciation 2. Pledge requirements (s337 (a)) 3. Can change oath if religious beliefs prevents alien from picking up arms-this relieves conscientious objectors. vi Table on pp 57 on #s of naturalizations from 1992-96: There‘s a big jump in naturalizations. Why the jump? There are lots of people in US who are LPRs who haven‘t gone through process of becoming naturalized cz. Why would someone want to become cz? In 1994 Pete Wilson in CA suggested prop 187 & anti-imm politics Problems pp 58: 1. Problem 1. Your client A, was lawfully admitted to US 40 months ago as spouse of LPR B. B naturalized one yr later (B is cz). A wants to become a cz as soon as possible. When is the earliest that she can apply? What are the procedural steps she needs to follow? May she file any papers now? 1. When is the earliest that A can apply? s 319 (a) says that since B is spouse of cz, she can naturalize faster than if she was just an LPR (3 yr track, not 5 yr track). The code systematically privileges spouses of czs. (fam reunification principle is one of things that drives INA–> trying to keep core fams together). If you‘re married to cz, your waiting time will be shorter (must for the period preceding filing application have resided continuously, after being lawfully admitted for PR w/in US for 3 yrs & during the 3 yrs immediately preceding the date of filijng the application has been living in marital union w/cz spouse. 1. Policy is that you as a cz have a rt to have your spouse be accelerated 2. Locate date of application & count backwards: 3. You are eligible if you are both an LPR & married to cz for 3 yrs. 4. B can naturalize after 3 yrs of living in marital union w/cz: She‘s been living in marital union for 2 yrs & 4 mo. She needs 8 more months (also look to see when spouse became a cz. Must be b/f the 3 yrs) b What paper can she file now? Declaration of intent s 334 (f) ii Your client, lawfully admitted into US in 1991 (LPR) & committed burglary in November 1992 & was convicted of the offense in 1993. He applied for naturalization in 1/98. Is he eligible for naturalization? This may not be a naturalization ? so much as a removal ?. This guy may have bigger problems. Non czs who commit ―aggravated felonies‖ (an imm term, not crim term) can be removed (deported) even if LPRs. This guy is removable. But putting that aside, this gets into good moral character for 5 yrs in 316 (a) (3). –> ―has been & still is a person good moral character, attached to principles of const & well disposed to good order & happiness of US.

1. Negative safe harbor of 101 (f) (3) (pp43): For purposes of this Act, No person shall be regarded as person of good moral character if during period for which good moral character is required to be established was or is (1) a habitual drunkard (2) a member of one or more of the classes of persons whether inadmissible or not described in par (2) (D), (6) (E) & (9) (A) of sec 212 (a) (inadmissability stat; category of people who are inadmissible, such as national sec risks, public charges, folks w/health concern, people who can‘t get people to sponsor them, folks who for pub pol reasons, although would be eligible, we don‘t want these categories of people in this country). If you‘re on the 212 (a) list, regardless of whether you‘re held to be inadmissible or not. (3) One whose income is derived from illegal gambling or convicted of 2 or more gambling offenses during such period (4) One who has given false testimony for purpose of obtaining any benefits under the Act. (5) One who during such period has been confined, as result of conviction to a penal institution for an aggregate period of 180 days or more (6) One who at any time (during the 5 yrs, you could argue) has been convicted of an aggravated felony defined in 101 (a) (43): the defn for aggravated felony (pp 36) means & there is a list & in (g) there is a theft offense where term of imprisonment is at least 2 yr. Ask client how long was imprisonment. There is a diff b/t sentence & term of imprisonment If you‘re not on this list, you‘re safe, but ―the fact that any person isn‘t w/in any of the forgoing classes shall not preclude a finding that for other reasons, such person is or was not of good moral character. If you‘ve done these things during the 5 yr period prior to application, then you come w/in contours of 101 (f) (here the ACT not conviction was done 6 yrs ago), except for the rebuttible presumption language. –316 (e): (415) says that AG (INS) has discretion to go out of the 5 yrs for naturalization purposes (and will). iii Political acts & affect on naturalization eligibility: Your client was communist in Bulgaria. She was active & eager when young. Became disaffected w/party in her 20's & left Bulgaria & age of 40, spent yr in refugee camp in Austria & admitted when 41 &has been in US for 6 yrs & she’d like to apply for naturalization (she has been LPR). See 313 (a) (2) (pp 410) ―notwithstanding the provisions of 405 (b), no person shall hereafter be naturalized as a cz of the US (1) (2) Who is a member or affiliated with (A) the communist party of the US or any other totalitarian party in US or communist or totalitarian party of any foreign state.‖ How long the stat allows AG to look back is in 313 (c): 10 yrs prior to application. Look back period of 10 yrs & the inquiry is, during these 10 yrs, was she a member of the party. The ? is, when did she actually leave the party. You need to be able to allege that when she was 37 or 36 she had already left the party (she‘s 47). Facts don‘t say. It says she left Bulgaria when she was 40. If she left

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Bulgaria & Comm party at same time, then out of luck, but it says she was quietly disaffected in her 20yrs, so you need to do a planned interview to see when she actually left the party. 1. There is provision when membership is involuntary: 313 (d) says ―any person who is w/in any of the classes described in (a), if such person establishes that such membership was involuntary, or occurred prior to attainment of being 16, or was by operation of law (if to hold certain job, you‘re automatically enrolled in comm party), or for purposes of obtaining employment (food, rations, or other essentials).‖ Let‘s assume she did leave comm party at same time she left Bulgaria, so then try to get client w/in 313 (d). Ask client why she was in comm party, try to allege that for a time, her heart wasn‘t in it. She only did it b/c e.g. she was an atty & had she left party, she would‘ve lost all of her clients, status , food or someone would be at risk in her fam. Cong says that we‘ll naturalize those communists whose heart wasn‘t in it. Story you‘re trying to tell examiner that reason why she‘s naturalizing is that she loves US & everything US stands for. 3. Read stmt of Cruz Reynoso (pp59): Argument for language requirement is that we need something that unifies the country & language unifies the country & English is that language. But he says that actual history of US is diff than that. The popular imagination of founding of US always has something to do w/Pilgrims & Boston, but full story of founding of US has a lot more to do w/New Mexico & CA, a whole other ½ of the founding of US, which doesn‘t have anything to do with Anglo culture. Special Provisions for Children: Kids usually get naturalization derivatively when their parents are naturalized. Kids adopted overseas by US czs are not derivatively naturalized, as their parents are already US czs. In 2000, Cong enacted legislation that granted automatic naturalization to such kids residing in US w/cz parents. Under the Act a foreign born kid under age of 18 who has one cz parent & is residing in US as LPR, automatically becomes a cz. INS estimates that perhaps as many as 75K kids living in US will benefit from the stat, as well as abt 20K adopted kids of US czs who are admitted as LPRs annually. 3 Price v. US INS (9th Cir. 1994): Plenary Power. Facts: Price Cz of UK. LPR in US for 24 yrs prior to applying for nat. When u apply for nat, need to fill out for called N-400. Price‘s pet for naturalization was denied b/c refused to answer question 18 &19 on nat app, which requested that he list all present & past affiliation w/every org, association, club, society, etc & whether he‘d been member of Comm party. Price claimed this was violation of 1st amd rt of association. Did question 18 violate Price‘s 1st amd rt to association? Held: No. Denial is affirmed. Policy: Govt has compelling interest in asking these questions which trump 1st amd rts of LPR petitioner to associate. 1. Main thing to draw from this case is level of deference that is characteristic of the Cts re: administrative authority & ultimately congressional authority in interpreting & applying the imm acts: There is a concession here that LPRs do have 1st amd rts. There‘s also suggestion that longer folks have been here, the greater their claim on the govt is. For std of review for reviewing AG‘s decision, INS relied on Kleindienst v. Mandel (plenary power case). Case dealt w/exclusion of Belgian scholar who was commie who was invited to speak by bunch of US citizens. 1st amd issue of US czs. They claimed that our 1st amt rts to hear scholar have been violated. Ct held that INS had power to do that. Std of Review: INS‘s decision must be

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based on ―facially legitimate & bonafide reasons.‖ All INS has to do when implicates Bill of Rts of cz is that is has to justify w/facially legitimate & bonafide reasons. If it can allege facially legitimate or bonafide reasons, then it‘s done enough & has satisfied std. Extraordinary low. All they have to do is huff, & ct will go away. 1. The INA gives AG authority to prescribe scope & nature of examination of petitioners under s332 (a): 2. AG has very broad authority to require applicant to aver to “all facts which in the opinion of the AG may be material.” 3. An alien seeking initial admission to US requests priv & has no constitutional rts regarding his application: However, resident aliens do enjoy limited 1st amd rts. 4. Ct adopts rationale of Kleindienst v. Mandel, which stood for principle that there should be as much judicial deference to Cong as poss. 5. Denial appropriate b/c no alien has slightest rt to naturalize unless all regulations are complied with. ii Dissent: aa It‘s an intimidating question that chills the effect of free association. bb Treats aliens as 2nd class people cc Deference to Cong only appropriate when alien is outside of US dd They could have rephrased the question asking ―if member of group dedicated to overthrowing US.‖ 4 Administrative Denaturalization: In Gorbach v. Reno (9th Cir. 2000), the 9th Cir held that AG lacked statutory authority to administratively revoke naturalization. Ct. rejected govt‘s arg that power to denaturalize inherent in power to naturalize. Ct stated that ―Czship in US is among our most valuable rts . . . an executive dept cannot simply decide w/o express statutory authorization to create an internal executive procedure to deprive people of these rts w/o even going to ct.‖ In 1/01, a permanent injunction was entered prohibiting the govt from invoking administrative denaturalization procedures. INTRODUCTION TO FEDERAL IMMIGRATION POWER: Const expressly allocated to Cong power to establish Naturalization rules. The const doesn‘t however explicitly provide that power to deny admission, or remove aliens rests w/Fed as opposed to State govts. Hence in the early imm cases, Sup Ct faced prob of identifying source of Fed govt‘s exclusive & plenary power over imm. Later cases found plenary power to be an inherent sovereign power. Plenary Power of Cong (derived from inherent sovereign power) To date, there have been no successful challenges to federal legislation that refuses admission to classes of aliens or removes resident aliens. Federal immigration power thus appears limitless. In Fiallo v Bell, the Ct said ―over no conceivable subject is the legislative power of Cong more complete‖ There is extreme judicial deference to Cong in imm matters. The Sup Ct has upheld the constitutionality of Fed stats that exclude aliens on basis of race (Chinese Exclusion) & political belief (Mandel) & excluded aliens have no constitutional rt to a hearing. Even where 1st amd & EP rights of US czs are jeopardized, in Mandel, the Sup Ct refused to look behind the Executive‘s discretion on the basis of a ―facially legitimate & bonafide reason.‖ Also, Cong has restricted availability of judicial review over imm decisions. Some scholars argue that plenary power Cong enjoys is susceptible to abuse, often at expense of fundamental human rts. The plenary & unqualified power of the Fed govt to regulate immigration& naturalization belong to Cong: Judiciary is reluctant to act b/c of possible foreign policy consequences. The fxn of the executive is to enforce law passed by Cong & must stay w/in grant of authority stated in stat. Agencies have relatively free reign in creating procedures to implement, administer & enforce imm laws. Cong may also make executive decisions final, thereby precluding review by the Cts. But Cong may not give executive power to impose punishment for crimes (that‘s for the cts). But Deportation isn‘t considered criminal punishment, even when triggered by illegal acts.

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HISTORY & THEMES · History: · For 1st 100 yrs, it was unclear whether Fed govt was even intended by Const to have power to regulate imm. Also US officially favored unrestricted Immigration for same period of time after nation‘s birth. · Discontent w/open immigration policy increased w/rate of immigration & w/change in the composition of immigrants. · Cong finally decided in 1880's that immigration was appropriate for Fed control: And throughout history of US, the Sup Ct has upheld all manner of Fed stats regulating immigration. · Immigration was seen as threat to US economy & Cong began expanding list of “undesirable classes” hoping both to upgrade the type of immigrant & limit overall entry. Paupers, diseased, polygamists added to list & immigrants were required to take medical examinations to determine whether they were diseased. · More than just the huge #s concerned Cong, it was that the type of person that was immigrating was changing: In 1880's 72% of immigrants came from N&W Europe & in 1900-10 71% came from S &E Europe. These ―new‖ immigrants were Jews, Slavs & Latinos who were considered ―inferior‖ by the predominately Anglo-Saxon population. Much like the Chinese who preceded them, the new immigrants were slow to assimilate & lived together in urban ethnic neighborhoods. The Anglos feared that their predominance was threatened & pressured Cong for more restrictive measures. · National Origins Formula: 1924 Act. The affect of the quota was to restrict immigration from disfavored regions. Formula based on ethnic background of US pop in certain yr. · 1917 Act: Imposed literacy requirements to keep out those from S. & E Europe, who tended to be illiterate. & excluded ―anarchists‖ · During WWII, in 1939, Cong defeated a bill that would have accommodated 20K children fleeing Nazi Germany, despite the availability of willing sponsoring families b/c the # of kids would have exceeded quota allocated to German nationals. After WWII US became aware of Nazi atrocities & fate of refugees it refuses, & there was a period of liberalization of strict quota laws. Under War Brides Act of 45 & Fianancees Act of 1946, abt 123K alien spouses, children & financees of WWII soldiers were admitted into US & Displaced Persons Act of 48 admitted 400K war refugees from Austria, Germany & Italy to US · 1950 Internal Security Act amended the 1918 Anarchist Act: barred anyone likely to engage in subversive activity. · 1952 Act: The 1952 Act consolidated previous imm laws into one coordinated stat. Kept the national origins formula. · 1965 Act got rid of National Origins Formula: · 1986 immigration Reform & Control Act. sought to deter illegal imm by discouraging unauthorized employment in US & provided for onetime amnesty for aliens who were illegal immigrants & gave them a chance to become LPRs. Provided Immigration Marriage Fraud Amendments (IMFA) to deter immigration-related marriage fraud. The 1986 amendments imposed a 2 yr conditional residency on alien spouses &children b/f they could obtain LPR on the basis of the qualifying marriage. to US cz or LPR. To obtain LPR status, the couple must have filed a petition w/in last 90 days of the conditional status period. The INS could then interview the couple to see if (a) the qualifying marriage was entered into for the purpose of procuring an alien‘s entry as an immigrant, (b) the marriage had not been judicially annulled or terminated, other than through the death of a spouse, or (c) a fee or other consideration other

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than atty‘s fees was not given for filing of the alien‘s petition. If these conditions were not met, then condition status could be removed. 1990 amds amended these provisions to permit waiver in cases of battered spouses or children as well as other harships. · 1990 Act: · 1996 Act: created expedited removal & except for asylum cases, judicial review stripped for any decision reached by AG that requires exercise of discretion, & enlarged defn of aggravated felony. Removal proceedings replaced formerly separated exclusion & deportation proceedings. Also stiffened reqs for Affidavit of support–> sponsor‘s income must be at least 125% of Fed poverty std. Skirp Report: History of legislation in US (pp 151). 4 Significant themes. 3. How is our present perception of immigrants to similar to historical? issue of assimilation. PP 153 ―they were welcomed by some & attacked by others who questioned if they could assimilate.‖ Can these guys become ―real Americans.‖? 4. Business and their interests in imm: How do business cycles affect national views re: imm? In hard economic times, anti-imm & in good economic times, pro or indifferent. Interesting relationship b/t imm politics in US & Labor politics. Labor movement has been anti-immigrant on argument that immigrants drive down wages, as wage earners immigrants are being exploited by business interests as access to another labor source which is unregulated. Labor Unions had strange alliance w/anti-immigrant forces, so u had labor & Pat Buchanan agreeing on this one issue to the displeasure of both parties. Now Labor movement has made shift in policy in 1999. They still hold that business abuses immigrant labor, but instead of trying to keep immigrants from coming, they embrace immigrant labor as part of labor movement. 5. National Origins Formula From 1924-1965, written into the imm stats was national origins formula. We‘d gear # of people that we‘d allow into US based upon trying to maintain a ratio among nationalities. Look at demographic stats of what it was like in 1911(or some other yr), & let people in at that rate. 6. Conceptual change that was written into laws by 1996 Act, which was most fundamental redesign of imm law since 1965: Hypothetical stat: Suppose terrorist activities of Islamic fundamentalist leads Cong to pass ―Imm Counterterrorism Act of 2001. Excludes Islamics based on their religion & limits speech & association by deporting muslims who organize demonstration. Would there be any questions abt constitutionality of these stats? 1. If this were cz case where cz in peaceful manner demonstrated for peace against war against Taliban & was arrested, there would be instant law suit & good shot of winning that law suit. 2. As clear a case it is for unconstitutionality when it’s cz, it’s equally clear for constitutionality when it’s not. That‘s how strong Cong‘s power & how weak ct‘s judicial review power is. Prior to1996 situs mattered. Where is this person when this person’s status begins to be inspected by the govt? Prior to 1996, it mattered quite a lot whether person was in US & had developed ties to US, or whether foreign national was literally on the border, knocking on the door saying I‘m from Bulgaria & I‘d like to come to US, please let me in. The way that was described was the 2 terms, deportable & excludable. 1. Deportable: People in US & then came to attention of authority to have their status reviewed were deportable. This would include EWI (entry w/o inspection) and admittees (e.g. someone who came in on non-imm visa that expired & out of status & hence undocumented, or someone who came in & still in status as non-imm or LPR & committed crime). These folks were subject to procedure called deportation procedure & they had reasonably well-defined procedural rts. The name of the game, prior to 1996, was to try to get your client

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in deportation procedure rather than exclusion procedure b/c in deportation, there was at least lawyer‘s work to be done (there were procedural guarantees, some potential for judicial rev, there were occasions where INS would drop the ball etc). 2. Excludable: In exclusion hearings, an applicant standing on border, knocking on door, his claim against govt is extraordinarily weak. Plen power is at strongest. 6. In 1996, these two proceedings were replaced w/new type of hearing. Removal hearing included everyone: Removal hearing had practical effect of rendering situs legally irrelevant. Now people who are available for removal hearing would include EWI, applicants & admittees. Reoriented whole structure of IMM law by treating everyone who‘s not citizen same. Less rts. 7. Ascroft Legislation: Mobilization Against Terrorism Act. Authorizes AG to certify non-Cz (even LPR) as terrorist based on info AG receives from FBI, CIA. On the basis of that unilateral certification, to detain that person & to begin expedited removal proceeding under 238 (b). Expressly repeals habeas corpus for that certified pop. Recent case stated that Suspensions clause of const says that Habeas Corpus shall remain in effect & shall not be suspended unless Cong determines that issue of pub safety, rebellion or war. The 1996 Act tried to insulate a lot of administrative determinations from jud review. There is in existence already 501, 507 a device called alien terrorist removal ct, created by 96 act. It‘s a secret evid. ct (if you‘re LPR & accused of being a terrorist, CIA gathers evid. There‘s need for intelligence that needs to be kept secret but also need for judicial process. There are 2 attys, one gets to see evid but not client & other gets to see client but no evid. attempt to keep secret nature of info & rts of accused.) Ct made up of 3 Fed Dist. Judges whose id is secret & whole thing in secret. So far there‘s no attempt to put the certification procedure in this ct. CONSTITUTIONAL JUDICIARY REVIEW: PLENARY POWER DOCTRINE: for 1st 100 yrs, Cong didn‘t really exercise it‘s power over imm, but then in 1870's passed restrictions, such as exclusions for convicts, prostitutes, lunatics, idiots, & those likely to become public charges. The 1882 Act suspended all imm of Chinese laborors for 10 yrs & forbade any ct to admit Chinese to czship. The Act also imposed a ―head tax‖ on every arriving immigrant as revenue raiser & to dissuade poor immigrants from coming. US didn‘t want poor of other nations to be added to govt relied rolls. Chinese exclusion: Chinese Exclusion Act of 1882 was nation‘s 1st racist restrictive imm law. The Act suspended all imm of Chinese laborers for 10yrs & forbade any ct to admit Chinese to Czship. 1. Chinese Immigration: social background. CA gold rush. All of sudden, real big country & real reason to get from one side to another. Needed transportation. Need labor to build those RR. Had policy at first that was very warm & welcoming of Chinese. 1. Chinese exclusion laws (enacted in 1882, 84, 88 & 92) were product of economic & political concerns laced w/racism & nativism. Form of ―quality control.‖Became 1st Fed. imm stats to be subjected to judicial scrutiny. 2. Large scale Chin imm to US began during CA gold rush in 1898. Chinese laborers were also sought to help construct the Central Pacific Railroad built b/t 1865-69. With end of gold rush & arrival of European immigrants in CA, due to completion of RR, demand for & toleration of Chin laborers declined. 3. Anti Chinese sentiments: Panic of 1873, drought & depression of 1877 fostered anti-alien fervor. Chinese accused of being criminals, prostitutes, opium addicts, while at same time were assailed for willingness to work hard for low wages. The Chinese had been victims of discriminatory legislation in CA since 1850's. Subjected to entry, license & occupation taxes. 2. Federal Regulation of Chinese Imm: At first, Fed Govt welcomed Chin immigration b/c US wanted to improve trade w/China & b/c provided cheap labor to complete RR.

1. The significance of Chae Chan Ping v. US (1889): The significance of this case is that it‘s fountainhead for authority of Fed Govt to regulate Imm. Prior to this case, regulation of Imm was done primarily through states through gen police powers laws, such as mental health (lunacy stats), wealth, physical health. After this case, Fed Govt was authorized through const to reg Imm. 2. Treaties: Gold Rush 1848. 1. Burlingame Treaty: July 28, 1868. Recognized inherent & inalienable rt of man to change his home & allegience. & also the mutual advantage of free migration & emigration of Am & Chin citizens for purpose of curiosity, of trade or as permanent residents. Guaranteed Chinese immigrants same benefits as US cza & vice versa. Panic of 1873 & dep of 1877. 2. Treaty of 1880: (Mid-1870's racist tide began to have impact in national politics b/c Ct had struck down a CA stat as unlawful discrimination against Chinese. Cong authorize a diplomatic trip to China to renegotiate Burlingame Treaty). Authorized US to ―regulate, limit or suspend‖ immigration of Chinese laborers whenever their entry or residence in the US ―affects or threatens to affect the interests of that country, or to endanger to good order of the US.‖ The suspension of power only applied to Chinese laborers, not to suspend imm completely. Treaty preserved rts of Chinese laborers already w/in US to go and come as they pleased. ii Congressional Acts: Treaty is international event. This is domestic. 1. Act of May 6, 1882: w/in a yr of the ratification of the Treaty of 1880, Cong enacted the 1st of the Chinese exclusion laws. The Act suspended the immigration of Chinese laborers for 10 yrs. However, the Act didn‘t alter the rts of laborers already in US. Established procedure for issuance of ―certificates of identity‖ which would entitle Chinese laborers to reenter US. 2. 1884: B/c certificate system wasn‘t mandatory, it was claimed that Chinese arriving for 1st time cast themselves off as returning to a prior lawful residence. Cong sought to prevent evasion of the 1882 Act by enacting legislation that rendered Certificate as only evid permissible to establish alien‘s rt of entry. 3. 1888: After seeking to ratify Burlingame Treaty to exclude laborers for another 20 yrs & rumors that China wasn‘t likely to ratify the treaty, Cong passed a stat that prohibited return of all Chinese laborers who had left US, even if they had obtained certificate b/f their departure under 1882, & 1884 Acts. Also stated that no more Certificates would be issued. Stat conflicted w/provisions of Burlingame Treaty & Treaty of 1880, which guaranteed the rt of Chinese laborers ―to go and come of their own free will‖ (this conflict triggered Chae Chan Ping) 8. The Sources of Federal Immigration Power: The US constitution includes no language that expressly grants Cong the authority to control imm. But where do Fed powers come from. There is list of enumerated powers in Const. You‘ve got commerce clause, war powers clause, migration clause, naturalization clause, enumerated powers, all of which make occasional appearances in Immigration jurisprudence. Then you have other source of authority which is more nebulous & undefined, the inherent powers of the Fed Govt. The inherent power was explained further in Curtiss-Wright. (pp191). These inherent powers comes from fact of ind itself from Great Brit. There is this entity, the Fed Govt, & it‘s under siege, either b/c of countries attacking it or hordes of people from w/in & it‘s got to do whatever it takes to defend itself. The ultimate source of authority is this unstable & nebulous reference to inherent power of sovereign nation.. But what are the limits? The following are possible potential sources of Cong authority to regulate IMM. Could be a combination of these (penumbra) are indicative of original intent to give Fed govt power over all immigration. – It is agreed that Fed govt‘s source of Imm power is ―inherent‖ as a sovereign

nation. Commerce Power: 1. Power to regulate Commerce w/foreign nations & among the several states. ii Edwards v. CA (pp 186) 1. Migration is commerce: 2. Justice Byrnes: ―it is settled beyond question that the transportation of persons is ‗commerce,‘ It is immaterial whether or not the transportation is commercial in nature.‖ 2. Naturalization Power: naturalization clause. Enumerated power 1. Power to establish uniform/rule of naturalization: 2. Expressly delegated to Cong to prevent the controversy & confusion that could arise from sep state laws bestowing citizenship. 3. War Power: Enumerated Power 1. Power to declare war. 2. Power 1st granted to Prez by Alien & Sedition Acts & remains on books today: Constitutionality has consistently been upheld. 4. Migration & Importation Power: Enumerated Power 1. Regulate migration & importation of persons after 1808 2. Most likely that protection of slave trade was primary motivation for this clause. 5. Foreign Affairs Power: Enumerated Power 1. No explicit mention in const 2. Associates power to regulate imm w/power to conduct foreign affairs. f The power to make all laws necc & proper: 6. Inherent Power: Nebulous. Power comes from revolutionary war, not constitution. Limit is unknown. There is a ref to a limit in Chae Chan Ping itself on pp 183. ―restricted . . .only by the Const itself, and considerations of pub policy & justice which control, more or less, the conduct of all civilized nations.‖ You won‘t find an opinion that will say ―no limits or law‖. This clause makes opinion law-like. As an imm atty, your arg will be can I connect the limit I‘m asking for to a limit that has been found. — In US v. Curtiss Wright Export Corp (1936), the Ct clearly distinguished b/t powers delegated to Fed govt in const & inherent sovereign powers: Delegated powers were carved from the general mass of legislative powers previously held by states. Inherent sovereign powers were transferred from GB to US when US declared independence. These powers were vested in nat govt b/f const was written & exist w/o any regard to constitutional grant. It has been suggested that the unlimited scope of Fed authority over imm results from this undefined & undefinable source. — The power to regulate imm is essential to nation’s self preservation: To be a sovereign nation, must have control over own territory or else won‘t be able to govern itself & will be subject to sovereignty of other nations. The power to reg imm is therefore inherent in the const‘s creation of sovereign nation. — The power to regulate imm is essential in process of national defn: Determining who will enter the country say a lot abt the nation. Although the process of national defn may be characterized as racist, discriminatory against outsiders or otherwise unjust, it‘s an essential characteristic of a sovereign nation. Theories of self preservation & self defn mandate broad fed powers over imm. — The Sup Ct has upheld every exercise of this power & has consistently termed it “plenary & unqualified” The practically unlimited scope of Fed power over aliens may possibly be traced back to the undefined nature of its source. 1.

Chae Chan Ping: Chinese exclusion case Held: 1. ―The power of exclusion of foreigners is an incident of sovereignty belonging to govt of US as part of sovereign powers delegated by const.‖ 7. Constructional & structural arguments: 1. Judge Learned Hand: The Rule of Necessity: ―for centuries, it has been an accepted canon in interpretation of docs to interpolate in the text such provisions, though not expressed as essential to prevent the defeat of the venture at hand, and this applies w/special force to interpretation of const, which since they are designed to cover great multitude of necessarily unforseen occasions, must be cast in gen language. 2. Structural Justification: one doesn‘t focus on isolated clauses in the doc, instead interpreter takes step back & examines shape of const as whole, the institutions that create it & the relationships b/t those institutions. 8. Chae Chan Ping v. US (1889) THE CHINESE EXCLUSION CASE: Chae Chan Ping was Chinese laborer. Entered US in 1887. Left for China visit. Before leaving got certificate. Returned after passage of 1888 Act & was denied re-admission. Chae Chan Ping alleged that 1888 Act violated Const & conflicted w/Burlingame & 1880 treaties. The 1888 Act prohibited return of all Chinese laborors who had left US, even if obtained certificate b/f their departure. Also said no more certificates would be issued.Const args made: violation of EP and violation of both substantive & procedural due process rts. 1. Ping’s treaty argument: There are 2 laws in force rt now. There‘s the law of treaty which says that people who‘re certified can come back & then there‘s 1888 law which says can‘t come back. He argues that this Act violates the treaty. Holding: Ct held that later stat trumps earlier treaty. ―The last expression of the sovereign‖ will rule. Treaty & Act are basically same thing. Later Treaty can overrule earlier Act. Later Act will overrule earlier treaty. 2. Constitutional arguments of EP & due process of 5th & 14th amd: 3. Does Cong have the power to pass such an Act: Yes. The power comes from key language in case ―to preserve it‘s independence & give security against foreign aggression and encroachment, it is the highest duty of every nation, & to attain these ends nearly all other considerations are to be subordinated. It matters not in what form such aggression & encroachment come, whether from foreign nation acting in its national character, or from vast hoards of its people crowding in upon us.‖ It‘s essentially a form of national self-defense. In same way, state has rt to stike back or strike first in self-defense context, in same way we can strike at that nation or people through barriers to migration b/c of the vast hoards. War analogy. 4. There are 3 things Ct finds: Imm law is self def, Fed & plenary. i Source of Sovereign’s power to regulate imm: power of exclusion of foreigners is an incident of sovereignty belonging to govt of US. Self-defense. The source of the power to regulate imm. Basic const law tells us that Fed Govt is body of limited jurisdiction. B/f the Fed govt there were the States & they created the Fed Govt & they were very careful abt giving it rts & limited its strength to enumerated powers in Const. If they do something outside enumerated powers it‘s unconst (if something‘s not on list). So where does power to reg imm come from in enumerated powers? 1. Cong’s power to regulate naturalization: Naturalization is on the list. But that deals w/citizenship, not imm, which is broader. This is one of enumerated pow. 2. Commerce power: not just economic. Migration treated as interstate commerce. Interstate commerce is on the list 3. Migration Clause: migration & deportation clause. part

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of enumerated powers. ii Power rests in Fed Govt, not states: it‘s federal. Why would state govt care abt imm? It tends to affect things like education policy, tx policy & welfare policy which are administered primarily by products of state govt. 1. Plenary Power & Judicial Review: the opinion writes that only remedy lies in the political dept of govt, which alone is competent to act, essentially putting power to self-defend as political power, which is beyond the reach of the judicial pow. 2. Immigration cases nibble at the edges of the plenary power doctrine to get the Ct to say, well, this is really abt due process, or EP of municipal stat governing a San Fran Laundromat: It isn‘t really an imm case, it‘s a Laundromat. That‘s part of the strategy of atty to get a hearing. 3. There are laws are abt imm that rise to level of national defense & there are laws abt imm that don‘t rise to that level & vast majority don‘t (such as H-1B visas). So if one finds oneself persuaded by the national self-def justification of the imm power & it‘s plenary nature, fine, but limit it to those occasions where we‘re really talking abt national defense, which would take out 85% or more of imm law. Can‘t say H-1B visas are national defense issues. iii This power, which vests in Cong is political power, not judicial & it’s un reviewable by ct: It‘s plenary. Plenary goes to judicial review. When Cong has plenary power, Cts don‘t have power to review & void what Cong does. The Chinese Exclusion case was the 1st one to hold that Fed power to exclude aliens is an incident of national sovereignty: Every national govt has inherent authority to protect the national public interest. Imm is a matter of vital national concern. And it‘s the role of Fed govt to oversee maters of national concern, while it‘s the province of the states to govern local matters. Therefore, the Ct found that inherent sovereign power to regulate immigration clearly resides in Fed govt. 1. Yick Wo v. Hopkins (1886): Chinese laundries were closed. Laundries operated by non-Chinese weren‘t closed. Case brought based on EP clause. Stat found to be unconst b/c made distinction b/t state actions that didn‘t have to do w/imm that were on their face racially biased v govt actions that have to do w/imm. If govt action that has to do w/imm falls into plen power, if not then not always. Here, the Ct strikes down municipal stat that has to do on it‘s face w/health & safety & police power that laundries in San Fran have to achieve certain level of health & safety. They closed down all Chinese laundries & left open all non-Chinese laundries. 1. Ct feels more comfortable when it’s just an EP case than political imm policies: The more you can convince the judge that situation is one that doesn‘t affect foreign nationals, or whether other law is what is really triggered, you‘re in better shape. The constitutional litigation strategy for immigrant counsel is to make your case a non-imm case; to make it a 1st amd case, a due process case, EP case, or cast your client as minority & not as immigrant. 2. 2 x 2 schematic of how do we limit plenary power, how do we argue out of plenary power? On the vertical axis ask the ? of what is the substantive body of law that the ct is questioning. Either Imm law or some other body of law. On the horizontal axis you can ask, who is affected? Foreign nationals or US citizens? This helps for getting general read for when ct perceives itself to be strong & when the ct perceives itself to be weak & doesn‘t have power to overrule Cong. 1. Chae Chan Ping is ct at it’s weakest. The folks being affected by the law are foreign nationals & the law itself if imm law & the ct feels that it‘s jud review power is at it‘s weakest. Although in

Wong Wing, it was a case where foreign nationals that were affected & body of law was Imm, but immigrants won. It‘s in the box where you‘d expect low judicial review, but judges strike the stat, so plenary power isn‘t plenary, & puzzle for atty is to find where the limitations are. 1. In Yick Wo, the people being affected were foreign nationals, but body of law in ct was just stat abt pub. safety: & whether police power ran afoul of EP clause. High comfort. Ct is comfortable messing w/such legislation. 2. In Kleindeist v. Madel, high water mark case of Plenary Power & low mark for Judicial Review: There US Czs were affected but body of law was law re: admission. Result there was Cong wins. 3. In mainstream cases, when US Czs are being affected by nonimm law: Ct‘s Jud review power is high. 10. Fong Yue Ting v. US (1893): Chinese laborer applied to collector of internal revenue for cert of residence. Was denied certificate b/c couldn‘t provide white witness to provide residence necc to entitle him to certificate. Subsequently, was found w/o certificate & was arrested by Marshall & taken b/f US Judge. It was established that was w/o certificate due to unavoidable cause. Judge ordered that he be deported. a. Issue: May the govt require as a condition of alien‘s residency testimony of one not of his race to prove whether he‘s met the residency requirements? 1. Holding: Cong may require as condition of alien‘s residency testimony of one not of his race as to whether he has met residency requirements. It‘s w/in power of Fed govt to prescribe rules re: competency of evid that shall be presented in its cts. Cong recognized difficulty in establishing residency of a Chinese alien through testimony of one of his own kind & consequently provided that a Caucasian witness‘s corroboration would be necc. Stat is w/in constitutional authority of Cong to enact, & is consistent w/principles of Int‘l law. 2. Reasoning: 1. Power to exclude & expel rest upon one foundation & are same power: Whatever power confers the power of exclusion, also confers power of expulsion. You cannot only keep people out, you can throw people out. The right of every nation to include the ability to expel or deport foreigners who have not been naturalized or taken steps toward becoming citizens. This is the same rt a nation has to prohibit the entrance of foreigners into this country. 2. Order of deportation isn’t punishment: The proceeding isn‘t a trial & sentence for a crime There are arguments on both sides for this. 1. One argument is that it’s not an act of punishment, but act of self-defense. Order of deportation isn‘t a punishment. It‘s a method of enforcing return of his own country an alien who didn‘t comply w/terms set by Cong. Such alien hasn‘t been deprived of life liberty or prop w/o due process b/c this isn‘t a crim proceeding. 2. But argument back is repelling hostile attack on your country constitutes punishment of attacker & those folks have constitutional rts under the8th amd. Also, if you‘re here peacefully in US & then uprooted & separated from families & prop, what‘s diff b/t that & putting them in jail? 3. The question of whether & upon what conditions aliens shall be permitted to remain in U.S. is one to be determined by the political depts of govt: The judicial dept cannot properly express an opinion upon the wisdom, the policy or justice of measures enacted by

Cong b/c the policy or measures enacted by Cong were confided to Cong by the const. Plenary power. It‘s w/in the power of Cong to prescribe rules re the kind & competency of evidence that shall be presented to its cts. Cong recognized the difficulty in establishing residency of a Chinese alien through the testimony of one of his own kind & therefore provided that a white witness‘s corroboration be necc. 4. Congress has the power to make rules of evidence. 5. Dissents: 1. Justice Brewer: Persons against whom the penalties are being imposed are persons lawfully residing in US & as such are w/in protection of const & law deprives them of liberty w/o due process. He questions‘s Cong‘s vast immigration authority/power 1. Indefinite & dangerous to assert that power to expel is inherent in sovereignty. 2. Stat is directed @ lawful permanent residents of US who is w/in protection of const. Essentially deprives him of liberty & imposes punishment w/o due process 3. Deportation is punishment b/c it’s deprivation of liberty & prop. They were living peacefully & then uprooted & separated from their families. That‘s punishment. What‘s the diff b/t that & putting person in jail? 2. Justice Field: 1. The object of the Act is legit (to identify to eject clandestinely present Chinese), but while object is lawful, procedure is not. It‘s arbitrary & despotic & a 4th amd violation. Govt is one of ltd & delegated powers–this powe isn‘t inherent in sovereignty. 6. Here, unlike Ping, the Ct has calmed down a bit & has begun investigating & debating, similar to Jap internment cases: In Jap internment cases, you have judges hyperventilating & then several yrs later those opinions are embarrassing. After yrs of hostility & anti-immigrant fervor, there‘s a calming down process, where plenary power, which was allegedly abt war & politics is more complicated than that.. 11. Wong Wing v. US (1896): Most promising of Chinese exclusion cases. Issue was whether Cong can promote its policy of excluding Chinese by putting them into prison at hard labor w/o trial by jury. 1. Ct struck down section of 1892 Act dealing w/the imprisonment @ hard labor for one yr. The Act had a provision that said that where you had a Chinese cz who was found to be in the US illegally, he could be imprisoned at hard labor for 1 yr b/f being deported. In addition to being deported, we‘ll punish you for 1 yr for crime of being here unlawfully & we‘ll do it w/o jury trial. This is where ct finally saw a line to stop Cong. 2. Cong can detain & w/o trial since detention in anticipation of removal isn’t punishment, but if Cong is going to punish & imprison, there needs to be a trial: Ct agrees that a temporary detention or confinement can be the necessary means to exclude & deport aliens. BUT such an offense should be established by a judicial trial. It‘s valid to subject aliens to punishment such as hard labor, but must provide for judicial trial to determine the guilt of the accused. The ct agrees that Cong has rt to pass whatever legislation it wants re: aliens, but disagree that Cong be allowed to determine the fact of guilt & punish the alien–separation of powers issue. If Cong is going to punish, it does punish acc to stds of const–a trial. a. This is a case that defies the 2 X 2 diagram: it involves a foreign national & an imm law issue & the immigrant wins. The is where the power of judicial review is weakest & power of Congress is strongest. Wong Wing is the strongest authority that

there are limits to what Cong can do to foreign nationals in imm law context. 1. Wong Wing added 3 principles to Fong: 1. Cong can detain (hold) w/o a trial b/c detainment isn’t punishment: 2. Cong could imprison an undocumented migrant, but there must be due process: 3. If Cong is going to punish, there must be a trial & must admit to 8th amd analysis. 2 ways of looking @ constitutional rts. These themes go back & forth. When 1st theme is prominent, then immigrants are fucked (bad shape). If 2nd theme is prominent, then good for immigrants. 1. Constitutional rts are package of rts that individuals have if qualify for membership: If I can establish my pedigree, then I get this gift from govt. 2. Constitutional rts are inherent limitation on sovereign: There are certain things that govt can‘t do & it doesn‘t matter who is on the receiving end. There‘s no membership criteria or pedigree status that guy getting hurt by govt has to prove. All he has to do is prove is that this is type of thing that‘s beyond your power & you can‘t do it. Const law limits inherent authority of govt & it doesn‘t matter who‘s getting hurt. The limitation on inherent power of Fed govt is defined by Constitution. 3. INSTITUTIONAL PLAYERS: FEDERAL AGENCIES & Cts: General authority for administrative agency (plenary powers today): 1. Prez is on top & all of his depts: AG (DOJ), DOL, DOS, Health & Human Services & United States Information Agency. Substantial immigration authority wielded by 5 diff executive depts. This leads to depts overlooking things that are their jobs or not doing things that aren‘t their jobs. 1. Section 103 & 104 (pp46-50): These are the enabling stats that create the administrative structure The Sup Ct said in 1879 that Cong has authority to regulate imm. Cong w/it‘s power to regulate imm passed stats & set up administrative agencies, which exercise power of executive branch. You have the power of Cong administered by executive branch. 2. Administrative Procedure Act (APA):APA is the constitution of administrative agencies. It‘s the basic stat that regulates administrative agencies. If you‘re construing an administrative agency‘s action, the 1st place you‘d look is in stat that enabled the agency, the next place is in APA. Section 553 of the APA governs the way admin agencies makes the rules. People in Imm will spend less than 10% of time looking at INA. The rest will be looking at the regs generated by INA & DOL. Most immigration law is generated by admin agencies & not by Cong. Admin agencies do most of law making & law enforcing (raises sep of powers problems). 3. Section 553 sets up a notice & comment period for rules: Let‘s say INA has rule abt requiring white witness, so it‘ll set a notice & comment period 4. Admin agencies are vulnerable to lobbying, or “capture”: Most private firm lawyers in DC are about the business of capturing admin agencies for benefit of clients. 5. Despite the fact that administrative agencies have tremendous amt of authority but have low visibility or accountability (b/c not elected): 6. The Fed agencies: 1. Department of Justice: 1. INA s 103 gives authority to AG to administer & enforce provision of INA. 2. Administration requires counseling affected individual regarding their rts, liabilities & future actions. Enforcement calls for tough mindedness & suspicion: These fxns can coexist, but there‘s inevitable tension b/t the tasks. 1. INS: Function is to adjudicate applications for various benefit available under imm laws (e.g. adjustment of status). Decisions are lower level imm examiners. 1. Jeckyl & Hyde fxn of INS: charged simultaneously

w/job of welcoming new members who are coming in & throwing people out of country. W/in same agency, contrary purposes. One of those 2 cultures will prevail (welcome or suspicion) & suspicion has prevailed. So, even if you‘re legit, they‘ll still be suspicious. People from border & @ INS office view job as keeping out undesirables. INS officers are administrators, not lawyers. Border Patrol also part of INS 2. You have lawyers appealing to people who have no official relationship to lawyering & legal education, so conversations are strange. Standards, cases & logic, don‘t often work b/c over their head, which increases importance of local legal culture. 3. Border Patrol prevents illegal entries into US & detains & expels undocumented aliens already present: The Patrol officers report to the central office & aren‘t under the supervision of the district directors. 4. The adjudication division of each INS district office reviews petitions for AOS, visa extension, immigrant visas for overseas relatives & various other benefits under INA: Imm officers have broad discretion in deciding whether an application is complete, accurate, credible & in compliance w/stat & reg requirements. There are also regional centers w/less personal attention. ii EOIR: Executive office for Immigration Review. It reviews determinations of INS. Did agent overstep his authority when asked certain questions. It‘ll go to IJ, & then Board of Imm appeals (quasi sup ct w/in INS). Both immigration cts & Bd of Imm appeals are independent from INS. Together they constitute the EQUIR. 1. Immigration judges: INA s 104 (b) (4); s 240 (a) (1): a proceeding to remove an alien must be conducted by an imm judge. By regulation, the imm judge must request assignment of INS counsel in any removal preceding unless the alien concedes removability. IJ also presides over proceedings to rescind AOS. Regulations separated immigration judges from INS to EOIR for quasi separation of powers issues. Imm judges preside primarily over removal hearings. But also may participate in other adjudications such as proceedings to rescind AOS under INS s 246. Decisions made by Imm judges are final unless appealed to BIA. They are usually experience imm officers. b Appeals: 8 C.F.R. s 3.1 (b): aliens found removable by imm judges have rt of appeal to Bd of Imm Appeals (BIA). BIA has never been part of INS. BIA not created by INA, but just pursuant to regs promulgated by AG. Always has been directly accountable to AG through chain of command. BIA jurisdiction- majority of decisions is appeals from Imm judge decisions in removal proceedings. Several provisions of the regs authorize BIA review of decisions made by INS officers on matters that have never been before an imm judge. May be referred to AG for final decision (b/f or after initial ruling of the board) in 3 circumstances: 1. AG so directs 2 Chairman or majority decide case should be referred. 3 When the Commissioner requests referral. iv Office of Chief Administrative Hearing Officer: (OCAHO): Comes from 1996 IRCA act (Immigration Reform & Control

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Act) which was about targeting undocumented migrants coming here to work. Was to decrease incentive to come here & penalize employers from hiring undocumented migrants. Employers penalized for hiring undocumented workers & for discriminating against workers who look like they might be undocumented. Department of State: (DOS): For most aliens, the immigration process begins abroad in the consulate. To obtain the visa necessary to travel to US, an alien must file an application at US consulate in his/her country of last residence (immediate relative of US cz & EB NIV will have pet filed by sponsor at INS instead. If INS grants pet, it notifies consulate). DOS can issue a visa, & DOJ can revoke it. CO‘s decision on whether to grant visa is subject to very ltd review. Each visa refusal is reviewed by 2nd consular officer who may disagree w/1st & issue a visa, but can‘t make 1st officer grant the visa. Consular decisions denying visas to aliens not yet present in US are generally held not judicially reviewable. The State Department has developed informal review mechanisms crafted w/delicate attention to s. 104 (a) (1). However, cts usually deny judicial review of such decisions, especially judicial review at the behest of an alien, even though denial of a visa may totally prevent him from traveling to US. DOS makes its decisions, which are then cross checked or denied by DOJ (DOJ officer could disagree w/DOS or see that false info was given an issue an expedited removal). DOS will make decisions abt visas /entry based on diplomatic reasons & what‘s our policy in this particular part of the world (who are we trying to butter up, or distance ourselves). The DOJ are lawyers & all abt rules & enforcement. It‘s a useful separation that DOS could issue a visa & DOJ can revoke it, allowing DOS to say something such as, we tried, but you know how those lawyers are. It allows separation b/t policy making & rules. Dept of Labor (DOL): This dept makes economic decisions as to labor effects of imm. INA requires DOJ to cooperate w/DOL in process that leads to granting of visas to persons who are subject to labor certification requirement. DOL must certify that American workers & applicant‘s employees will not adversely affect wages & working conditions of American Workers. Most of DOL is economic. It generates & manages economic data. How many electricians are there in Kenosha? If already enough in Kenosha, then won‘t get certification. If you want to work in Racine, that‘s diff story, we can issue that certification. DOL is manager of interior economic data a If Labor Cert is required: the DOL through its Employment & Training Administration (ETA) must certify that American workers in the applicant‘s field are unavailable in the locality of applicant‘s destination & that applicant‘s employment will not adversely affect wages & working conditions of American workers. b Most aliens immigrating to US based upon an offer of permanent employment by US employer must first obtain a labor cert from DOL that employment can’t be performed by a qualified willing US worker & it won’t adversely affect US wages or working conditions: Policy to protect US labor force. Required of 2nd & 3rd employment preference & H-1B nonimmigrant visas. b BALCA: (Board of Alien Certification Appeals). Handles appeals for denial of labor certification by DOL. If certification is denied by regional CO, the employer may appeal to the Bd of Alien Labor Certification (BALCA), a panel composed of 7 ALJs which have authority to affirm, reverse or remand. Dept of Health & Human Services: King Tommy Thompson‘s department. a The Public Health Service (PHS): Conduct medical examinations of arriving aliens & some of their determinations are unreviewable by INS or any other body save a special med panel established pursuant to the stat. It‘s headed by the Surgeon General & is an agency of DHHS.

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5. The US Information Agency: Educational exchange arrangements, like the Fulbright program that sends Americans to other countries & brings several thousand foreign nationals here each yr. There is a nonimmigrant status (J-1) for exchange visitors (including au pairs). 6. Courts: 1996 Act completely restructured JR. i Consolidated exclusion & deportation hearings: into single ―removal‖hearing. See s 242. An alien may appeal a removal order to Fed Ct of Appeals. See 242 (b). ii s. 242 Limits the Role of the Ct in many ways: i Limits JR in broad categories of cases: For example any final removal order against an alien deportable under most of the crime-related deportation grounds (except a single crime of moral turpitude) ―shall not be subject to review by any ct.‖ Also barred is JR of major categories of discretionary decisions: concerning certain waivers, relief from removal, & discretionary adjustment to PR status. In addition a catch all provision bars JR of any other decisions or actions, except for asylum grants–that are specified to be in the discretion of AG. See 242 (a) (2) (B). ii Where JR is still available, s 242 establishes deferential review stds. For example, AG‘s discretionary judgment in asylum cases ―unless manifestly contrary to the law & abuse of discretion‖ iii JR deferred until govt action is reduced to a final removal order against an individual alien: see 242 (b) (9) (f) (g). iii These restrictions on JR have come under const challenge: Restrictions violate SOP, Due Process. Jordan commission: (263) Recommends changing structure of agency so not to have dual purposes & responsibilities. DOJ would be just enforcement & let them be suspicious. DOS would be in charge of immersion to naturalization & would serve as ―welcome to US‖ agency. DOL would deal w/labor. Problem that in some cases, one agency has multiple or conflicting responsibilities or some time multiple agencies have same fxns. Some agencies have so many responsibilities that can‘t manage them all effectively. A system like this is set up for failure & further loss of confidence in the imm system. Jordan Commission was rejected by Clinton administration. i Diffusion of responsibilities b/t some agencies: Responsibility for many imm fxns are spread across numerous agencies w/in single depts or b/t depts. Commission concludes that a clear division of responsibility among existing Fed agencies w/appropriate consolidation of fxns will improve management of the Fed Imm system. Commission recommended restructuring of the system‘s 4 principal operations. i DOJ: Create a Bureau of Imm Enforcement: Place all responsibility for enforcing US imm laws to deter future illegal entry & remove illegal aliens here. ii DOS: Create Czship, IMM & Refugee Admissions Agency: all czship, & Imm benefits adjudications should be consolidated in DOS. Rt now 3 agencies ((INS, DOS, DOL) play roles in adjudicating applications. iii DOL: Create Agency of Imm-Related Employment Stds: The commission recommends that all responsibility for enforcement of Immrelated stds for employers be consolidated in DOL. iv Agency for Imm Review: Commission recommends that administrative review of all imm-related decisions be consolidated & considered by this agency. Gene McNary: INS Commissioner under Bush said he wants INS to be an independent agency rather than abolished.

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Grover Rees, INS General Counsel: Attempting to find & fix problems in INS won‘t succeed unless it addresses the larger ? of what‘s INS all about? For too many INS officials the answer is easy. ―we‘re the anti-immigration & nat service. & we‘re trying to keep people out. Need to treat people w/courtesy &dignity, even those who must be excluded or deported. What‘s needed is an institutional culture that rewards & encourages these altitudes. Admission: 1. Theories of Migration: /Individual‘s decision to Migrate: Evid from econ & sociology 1. Friends or Strangers: The Impact of Immigrants on US Economy (Borjas): (economic model) 1. Basic pt is that immigrants that come to US do so to maximize well being: Push/pull theory. Migration is product of economic poverty & backwardness in sending countries. 2. The attractiveness of America relative to offers of other countries in “immigration mkt” determines size & composition of immigrant flow entering US: 3. There are 3 sets of players in imm mkt: (1) The people contemplating whether to leave their home countries (2) The Govt of the potential host countries (3) The Govts of the immigrant‘s home country. iv The possible immigrant’s major consideration when determining whether to migrate to another country is whether will allow him to be best off considering the financial & legal constraints regulating the int‘l migration process. What motivates migrants themselves & what countries can do in relation to that. 5. Potential host countries, in order to stay competitive in the “immigration mkt” try to give the most lucrative offer they can (ie tx implications & employment opportunities). Host nations can also impose restrictions (ie Australia‘s point system as a filter). 6. In the end, immigrants relocate to where they’ll be best off & have best economic opportunities: For example, someone from Sweden‘s ―welfare class‖ wouldn‘t move to US b/c Sweden does better job in taking care of its welfare class. However, Mex‘s welfare class wouldn‘t hesitate in moving to US & becoming part of its welfare class. 2 Contemporary Immigration: Theoretical Perspectives on it’s Determinants and Modes of Incorporation: (Portes & Borocz) This article basically counters the ―push/pull‖ theories of international migration, which see labor as an outcome of economic poverty & backwardness in the sending areas. 1. As the authors state: ―contrary to the assertion that int‘l labor migration is basically an outcome of economic decisions governed by law of supply & demand, we‘ll argue that the phenomenon is social in nature.‖ 2. Opposing the view that Mexican labor migration to the US is largely due to wage differentials & economic factors, the authors note a recent study of 4 Mexican communities which found ―that a major predictor of the probability of labor migration was prior migrant experience by the indiv & his fam.‖ ―Contacts across family chains become at least as important as calculations of economic gains in sustaining the cyclical movement.‖ Authors believe that migration is more social than economic. 3 Gap b/t life aspirations: 1. Expectations that life aspirations can be fulfilled in US. 2. Gap created by what US exports (ie entertainment, consumerism). 4 Brain Drain: Effect immigration may have on sending countries: 1. What’s happening to the sending countries? (1) Are we doing them a disfavor b/c they’re losing the best & the brightest? 10

2.

(2) We don’t care, or does US have obligation to sending countries? 1. If have obligation, how does it translate into foreign policy and/or legislation? If we’re concerned abt impact the sending countries are experiencing as a result of talented czs leaving to move to US, then: (a) As a matter of policy, we’d want US leaders to sit down & discuss w/countries that provide US w/most talented & brightest immigrants, in order to establish good relationships for future exchanges. Also, ask the leaders of those countries for imput for what they would like US to do to address problem of brain drain (2) As matter of foreign policy, US wants sending countries to flourish & have stable economies & govts: But by US taking away, these countries will lack ―the brain‖ & leadership to develop. (3) Limit the #s of talented immigrants that can come into US: (4) Require labor certification process for aliens under 1st preference category (―exceptional ability‖) to make it harder to get into the country, arguably to limit the impact of ―brain drain.‖ (5) Limit # of yrs that “highly talented immigrants” can stay in US & make it harder for such immigrants to obtain LPR status by requiring the immigrants to demonstrate that their presence here is really significant–this perhaps will act as a deterrence factor for some immigrants when considering leaving their native countries. Policies leading to brain drain: 1. See CFR 656.10 Schedule A, Group II. (1) The language of this section provides for that aliens of exceptional abilities in the sciences or arts, including college & university teachers of exceptional ability who have been practicing their science or art. (2) Group I of Schedule A also favors aliens w/degrees such as PT & Rns ii Under INA s 203 (b) (1), the INA doesn’t require immigrants to undergo any sort of labor certification through DOL. They instead get preference in obtaining visas b/c the policy is to make it easier for highly educated immigrants to migrate to US. The assumption is that these aliens will be an asset, not a burden to US. (1) W/in the group of immigrants who have high level of education, the INS provides preferences for immigrants who possess ―extraordinary abilities.‖ See 203 (b) (1) (A). ―the alien has xtraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation.‖ (2) See also INA 203 (b) (2) for aliens who are members of the profession holding advanced degrees–here the same policy applies– US wants to attract the best & the brightest by making it easier for such immigrants to be admitted to the country. iii US wants to attract the “best & brightest” from around the

world in order to get ahead in certain mkts where these individuals will most likely make a significant contribution: iv Concern for nat security: In order to have most powerful nation w/most resources to fight conflicts, we need the ―best & brightest‖ 5. Domestically, we want educated, bright immigrants to come into US b/c underlying assumption is that intelligent educated people don‘t create problems (crimes, public nuisance). 6. The assumption against unskilled & uneducated immigrants is that they tend to be more problematic: They consume resources & create domestic problems (crime) & in return, they don‘t make significant contributions to US society &/or economy. B The institutional response to decision to migrate: Admission Categories & Backlogs: 1 Intro: Table 4.3 on pp 285: Basic Annual Immigration Ceilings: Universe of Admissions Family Sponsored (immediate relatives & fam preferences) 480K Employment based preferences

140K Diversity (low admission countries) 50K Total

·

·

·

675K Who are the players in the process? · Petitioner: a party in US, a spouse who is petitioning in a spouse, an employer/corp or p‘ship, sole proprietorship, or prospective employer · Beneficiary: The foreign national. The party who has a claim against the govt is the petitioner, not the ben: So, ben, the foreign national essentially has no rts, no claims, no interest or expectation as against the govt. If petitioner dies, then whole process stops. If foreign national‘s anchor, dies, tough cookies. Immigration law isn‘t abt doing favors for immigrants, it‘s abt realizing the expectation of US czs & LPRs who already have membership or are in membership circle. Where is the application filed? If it‘s a fam member trying to petition in for example a mother, you‘d file that application w/ INS in US. If you‘re an employer trying to petition a worker, the 1st place you‘d file would be DOL, the labor certification that avers that there aren‘t enough US czs or US personnel to do your job & after DOL processes labor cert, then it‘s on to the INS. INS (DOJ) will then contact the consulate, the DOS. INS will work w/consulate office. DOS will do an inadmissibility check where they go through the tests (e.g. are they terrorists). And when satisfying themselves that not inadmissible, then will issue a visa. · Foreign nationals already in US can apply for Adjustment of Status (I-485, s 485): Typical fact pattern is when someone comes in as a non-

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1.

immigrant on an H-1B, but then adjust from non-immigrant visa to immigrant. There are 2 broad admission categories of aliens: Immigrants & nonimm · Immigrants: Come to take up permanent residence. The have green cards (LPR). They are legal permanent residence. · Nonimigrants: Enter for specific purpose to accomplish during temporary stay. They have non-immigrant visas. · An alien in either group must show initially that he qualifies for admission by meeting certain categorical requirements & must also demonstrate that none of the multiple grounds for inadmissibility in s 212 (a) renders him ineligbile for entry. Characteristics of Immigrants: (1) Almost 10% of pop born outside US: Immigration accounts for 37% of the nation‘s pop. (2) 7 Countries account 41% of all immigrants; twenty countries for 68% (3) The Portes & Rumbaut Article: (pp 275-283): (1) When u compare the new immigrants w/the old inflow @ turn of century, you find similarities: including the predominately urban destinations, their concentration in a few port cities & their willingness to accept the lowest paying jobs (2) The old immigration was overwhelmingly European & White, but present inflow is, to a large extent nonwhite & comes from 3rd world countries. (3) The new immigrants are seen as being uniformly poor & uneducated. The reality is very different: Not all newcomers are highly skilled, but neither are they all poor. Come from vast array of diff cultural backgrounds. The Origins of Immigration: (2) The general answer for why immigrants come now is 1965 change in US law: The more pressing ? is why more don‘t come. Some of reasons are: moving isn‘t easy, requires lots of preparation, $ & giving up fam & friends @ home. Need to learn new language & culture. (3) What factors motivate people to come? Most common answer is poverty, squalor & unemployment. These stmts are still made despite mounting body of evidence that points in exact opposite direction. The proportion of professionals & managers among occupationally active immigrants consistently exceeds the avg among US workers. (4) Undocumented Migrants studies show that the very poor & unemployed seldom migrate, either legally or illegally: & unauthorized immigrants tend to have above avg levels of education & occupational skills in comparison w/their homeland populations & are ambitious & willing to work. They come b/c of the gap b/t life aspirations & expectations in their countries. (5) US & other industrialized countries play dual role in this process: 1st, they are a source of much of the modern culture of consumption & of the new expectations worldwide. 2nd, global diffusion has taught an increasing # of people abt opportunities in the developed works that are not in their own countries. Types of immigrants: 1. Labor Migrants: Manual labor immigration corresponds closely to popular stereotypes abt immigration. The movement of foreign workers in search of menial & low inc jobs has represented the bulk of immigration, both legal & undocumented in recent yrs.

2. Professional immigrants: A major preference category of US visa allocation system is reserved for ―members of professionals of exceptional ability & their spouses & children‖ Well educated category. Come to US to improve careers. 3. Entrepreneurial Immigrants: An exception. Imm to US today is urban phenomenon & concentrated in largest cities: Census Bureau Article (pp 283-98): (1) Since 1921, the law has imposed annual numerical limitations on most immigrant categories. There are 4 grand categories of immigrants, each governed by its own intricate rules & ceilings. The are (2) family sponsored immigrants, (2) employment-based immigrants, (3) diversity immigrants, and (4) refugees. (2) Petitioner & Beneficiary: Most US immigration today begins w/visa petition filed by person already in US, usually fam member of prospective employer, whose relation to alien will become basis of alien‘s proof that he fits w/in a qualifying category. The fam member or employer is petitioner & alien who wishes to immigrate is beneficiary. (3) For fam categories, the fam member typically files visa petition w/ INS accompanied by proof (birth or marriage certificate) of the necc relationship. (4) For occupational categories, the process typically begins w/DOL in order to obtain “labor certification”: After certification is issued, the employer files petition w/INS, which verifies other qualifications, such as prospective immigrant‘s identity & employer‘s ability to pay stated salary or wage. (5) Once INS is satisfied w/relationship, it approves visa petition & sends it to consulate in country where person has designated as place where alien will actually apply for the immigrant visa: The consul‘s main fxn is to apply the inadmissibility grounds of s 212 (a) (pp93). The statutory provisions for petition procedures are in s 204-06 IMMIGRANT VISAS: An alien desiring to be admitted into US is presumed to be an immigrant (and subject to numerical limitations) & therefore must qualify for one of the classes of imm visas, or demonstrate that is a nonimmigrant. Immigrant visas are divided into 2 categories: (1) visas subject to numeric limitations & (2) visas which are not. Visas not subject to numerical limitations are granted to immediate relatives (spouses & children) of US czs, resident aliens returning from temporary visits abroad & former US czs. Visas subject to numerical limitations are granted to persons who qualify for fam sponsored, employment related or diversity lottery visas. In order to qualify for an immigrant visa, a person must ordinarily demonstrate that has intent to live indefinitely in US & qualifies for one of fam-sponsored, employment related or DV. 2. Family-sponsored immigration: Family green cards 1. Aliens who obtain permanent residence in US based on a fam relationship qualify either under one of 4 preference categories assigned to family reunification, s 203 (a) (pp 54 INA), or as immediate relatives of US czs ss 201 (b) (2) (A) (pp47). Immediate relatives is defined to include spouses & children, and if petitioning cz is over 21, parents as well. (1) Defn of child: ss 101 (b) (1). Child must be under 21 & unmarried. Defn includes stepchildren & legitimated kids, if qualifying relationship was established b/f child reached age 18, & it includes adopted kids, if adoption occurred b/f 16. Statutes as to parent (defined in 101 (b) (2) on pp 38), depends on relationship to child. Parent is not ineligible if son or daughter is now over 21, or married, provided that relationship was established while offspring still satisfied statutory defn of ―child.‖ – IRCA of 1986 overturned Fiallo & now provides that illegitimate child may qualify for visa through natural vi

mom or dad ―if dad has a bonafide parent child relationship w/kid.‖ See 101 (b) (1) (D). – A parent who has any of the relationships described under defn of child meets the stat defn of ―parent‖, provided that sponsoring cz is at least 21 yrs old. See 201 (b) – If child is a cz by reason of adoption by US cz, natural parents are barred from claiming any rts to visa b/c of child‘s czship. (2) Defn of Spouse: To receive visa as spouse of US cz, alien must have ―valid & subsisting marriage‖ w/that cz. The validity of the marriage is gen determined by laws of country where marriage took place. Under 101 (a) (35) A spousal relationship can‘t be created by proxy marriage, unless consummated & marriages adverse to public health & morals, such as incestuous & polygamous, or gay marriages can‘t create the necc relationship 2. No quotas apply to immediate relatives: The 1st major way of getting into US through family is to be an immediate relative of US cz. See 201 (b) (2) (A). An immediate relative is a spouse, a parent (if petitioner US Cz is over 21), or a child (s 101 (b) (1)) who is under 21 & unmarried (child includes step children, legitimated children & illegitimate kids & adopted kids, but only if adopted b/f age of 16). The stat wanted to avoid situation where 2 undocumented migrants sneak into US have a kid & then kid petitions in parents as immediate relative. All who meet the qualitative requirements qualify. There are no quotas & no ceiling or upper limits on how many immediate relatives of citizens will be admitted. Practically, this means that there‘s no category for immediate relatives of czs (no waiting period on chart, but there really is a waiting period of abt 1 yr for green card). To address public policy of uniting families/immediate relative of US cz, we now have K visa, a non immigrant visa, short term. The K visa is a stop-gap which says, that we understand that you want to be together w/spouse but greencard won‘t be forthcoming till abt yr, so we‘ll give spouse nonimmigrant K visa, so can be together for period of time while waiting for greencard. 1. There is a category wide ceiling of 480K for family greencard, but one of the subcategories w/in that category has no ceiling (the K): The ceilings apply to green cards, not non-immigrant visas, such as K & V. They let people in on non-immigrant visas. What you have w/K & V visas is a situation where, partly b/c of the limits in # of green cards & administrative costs of INS, you have people who were eligible for green cards but have long wait b/f can collect on it & in the meantime want to be together w/spouse. K & V visas say while you‘re waiting for greencard, here is a non-immigrant visa that allows you to be here. The K & V are band-aides for that category of existing people, already defined, who have filed & are waiting in line. 2. How can you have subcategory w/no limit & category w/limit? How do these ceilings & caps work together? (pp 292-293) book talks of a floor w/a pierceable ceiling. Trujillo describes it as a cup & there‘s an upper limit of 480K for total # of visas per yr that govt will issue for families. If you add up the 4 preferences, total will be 226K. This means that there‘s a spread b/t the 2 of 254K visas. These 254K visas are available for immediate relatives of czs. But what happens in given yr, if more than 254K immediate relatives? That hasn‘t happened yet, but legislation could be changed, or can borrow against another yr. But there‘s always less, the xtra visas go to feed the backlogs of folks who are waiting in line. They spill down. 3. In contrast to immediate relatives, the fam-sponsored preference categories of s203 (a) are subject to annual numerical ceilings. When there

are more applicants than admission spaces, backlogs develop. Allocations are made w/in each fam preference in chronological order, based on the time when the visa petition initiating the process was filed w/imm authorities. 4. The 2nd major way of getting in under family is through preference category (Visas subject to numerical limitations). Visas are charged to a country based on alien‘s country of birth, even if alien has become a cz of another country. See 202 (b) 5. The fam-based preferences are: (any unused EB visas from previous fiscal yr are available in this category. 1. First preference: Unmarried sons & daughters of US czs. Interacts w/immediate relatives since these are the folks who have aged out (over 21). If you have kid who you‘d like to bring in US & under 21, then that person will come in as immediate relative of cz (& don‘t need to worry abt waiting period). If person is over 21, that child no longer qualifies to be immediate relative of cz, but do qualify, if unmarried, to be unmarried son or daughter. 23,400 is the cap (plus any unused visas from the other Fam pref categories. If you look at handout C‘s chart, if you look at fam preferences, the U means that INS is caught up & no waiting period 2. Second preference: Spouses & unmarried sons & daughters of LPRs. The petitioner is an LPR. There are 2 parts to 2nd preference. Cong also subdivided this preference into subparagraphs (A) & (B) to assure that higher % of admissions go to spouses & minor kids (category 2-A) –those for whom lengthy separation is especially harsh–as opposed to offspring who had already reached age of 21.Those older offspring may not claim more than 23% of the admission available under 2nd pref (1) 2A Spouses & Children under 21 of LPRs (87,934): Look at 2A on chart. Mex is caught up, but China & India list Feb 1, 1995. This means that if you want to bring in your spouse & you‘re an LPR, there‘s 6 yrs worth of people ahead of you. Maybe you could bring her in on an NIV. But there is also a V visa, which is available for people who were already in line as of Dec 15, 2000. V visa is for those folks who have already filed a petition prior to Dec 15, 2000, you are now eligible for a V visa (similar to K); a visa while waiting for green card allows you to be together. (2) 2B Children over 21 of LPR (26,266): The V visa doesn‘t apply for 2B. If you‘re waiting for you‘re kids who are over 21, you need to wait. 3. Third preference: Married sons & daughters of US czs who cannot qualify b/c of marital status for the immediate relative category or for the 1st preference. (23,400) 4. Fourth Preference: Bros & sis of US czs. Statutory defn of child is consulted to decide whether sibling relationship is satisfied. (65K) (1) If not all 1st preference spots are used, then ones that aren’t used spill down & become available to 2nd pref & so on. 5. Policy: Ask yourself what‘s missing from the list in terms of your defn of family. Is there more of a need of under 21 kids to be united w/ fam than over 21 kids. Do bros & sis matter less than sons or daughters. Some folks don‘t matter at all, like grandparents. Lots of policy conclusions here. 6. Following to Join: 203 (d) (pp64), which also applies to employment based immigration & diversity visa provides that the spouse & child may be admitted in same preference category as &@same spot on waiting list when there‘s a backlog as the principle alien. Their admission is charged against the ceiling for the principal‘s preference category. s 203 (d) applies to

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accompanying fam members & also those ―following to join‖. Note ―after acquired‖ spouses & children of LPRs must use 2nd preference. This section also doesn‘t apply to those admitted as immediate relatives of US czs. 7. In terms of family entry & admissions, there are basically 3 paths in: (1) Being an immediate relative of the cz: s 201 (b). S. 201 (b) also involves the K visa, which is new visa since Dec 2000 (2) Qualifying under 4 fam preference categories: 203 (a) 3 Following to join: Immediate relatives of people who qualify under 1 of the 4 family preferences & then follow to join. e.g. your spouse gets a green card, so you can follow to join your spouse & also get a green card. (doesn‘t apply to citizens who are born in US b/c there‘s no-one to follow). (1) This is an attempt to unite nuclear fam of admitee (fam/emp/Div): e.g. woman enters US through 3rd fam preference (is a married daughter of cz), what abt her H & kids? They don‘t meet statutory test for 3rd fam preference. What happens? They follow w/her & their green cards are charged against the same category. (2) After acquired relations: Imagine that woman comes in on 3rd preference & then gets married & tries to bring in spouse & kids. That fam is after acquired & isn‘t eligible to follow. The qualifying relationship has to exist @ the pt where principal was admitted. (3) Other issues of timing: followers to join can do this at any time, so long as stay w/in statutory defns. A child under defn has to be under 21 & unmarried. If they qualify to follow to join, but then either become over 21 & get married, then can‘t follow to join. Advise client to not marry or hurry up. This applies not at date you file application or date green card granted, but date you submitted all the docs to allege family relationships. h More policy issues: (1) What’s the purpose or pt of family reunification? It‘s a big point for human rts advocates. But that‘s not what‘s motivating INS. Economic theory is that it‘s sortta like insurance (cost spreading). If immigrant loses job, he goes home, W has income, fam in colorodo has income. W‘s fam in Baltimore has resources. Could live in Baltimore until gets back on feet or Col. The loss is spread among fam members. It‘s in US‘s best interest to bring in people w/insurance, who can be sustained in times of loss. Also people w/families are less risky. There are starts that unmarried men are more likely to be criminals than married men. (2) Grandparents not on list & bros & sis are low: This can be xplained w/insurance story. Grandparents are more likely to cost than they are to support. The immigrant is more likely to have to spend time, $ & energy to support grandparent, so US not interested in uniting immigrant w/someone who‘ll cost them $. (3) If you don’t like list, you won’t be able to change it by arguing “have a heart, let me have my brother”: You‘ll justify change in list by saying, don‘t you see that these folks need grandparents too, or brothers & sisters. If you leave them out, you‘ll be chopping off a huge chunk of wage owners, so why not let them in too? Argue it‘s in US self interest to let have brother. Employment based immigration: The 1990 Act dramatically increased #s of visas available based on employment as divided among 5 more detailed employment based preferences (s 203 b). US allows EB immigration, not to give

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immigrants a break, but rather to increase the economic base of US economy (but some argue that better way is to train domestic workers or change educational system. There is argument that not enough high skilled workers generated by US). 1. First preference: provides roughly 40,000 #s for ―priority workers,‖ a category that‘s further subdivided to include (1) aliens w/extraordinary ability‖ (pp 120 nutshell) & (2) outstanding professors & researchers, & (3) certain multinational executives & managers (defined in 101 (a) (44) on pp 35). 2. Second preference: provides roughly 40,000 admissions for professionals holding advanced degrees ―or their equivalent‖, or who because of their exceptional ability will substantially benefit the national economy, cultural, or educational interests or welfare of US. Their services must be sought be an employer, unless this requirement is waived by AG ―in the national interest‖ 3. Third Preference: (Skilled workers in short supply) for professionals having only a BA/BS, for skilled & unskilled workers who fill positions when there‘s a shortage of US workers. Roughly 40,000 admissions are available for this preference each yr. No more than 10,000 unskilled workers may be admitted each yr. 4. Fourth Preference: (Certain Special Immigrants) with about 10K annual admissions is for certain ―special immigrants‖ as defined in s 101 (a) (27) (C) through (J). These categories include religious workers, former longtime employees of US govt, or int‘l orgs. 5. 5th Preference: Employment Creation Visas: Buy yourself a visa category. Provides 10,000 #s for investors whose investments will create a minimum of 10 jobs in US. The baseline investment is $1mil, but required amt is lowered of investment is in rural area or high unemployment area & it‘s increased in business is established in area w/low unemployment. Concerned abt fraud, Cong provided that 5th preference immigrants will initially receive only conditional permanent residence status under procedures that are designed to result in careful review of investment after 2 yrs. (s 216 A). Has been object of fraud. Criticized b/c it allows wealthy foreign nationals to buy their way in. Supporters point to it‘s affect on US economy & investment & creation of new jobs. 1. Under 1990 Act, labor cert is required only for 2nd & 3rd employment-based preferences: see s 204 (b) (pp69), 212 (a) (5) (A) (pp 103). Also aliens in 1st preference, except those w/extraordinary ability can‘t ordinarily initiate the petitioning process themselves; as w/2nd & 3rd preference aliens, an employer interested in using their services must usually petition (s 204 (a) (1) (D). Aliens w/xtraordinary ability, which requires ―sustained national or international acclaim‖ and 4th & 5th preference aliens can petition for themselves. (204 (a) pp 65). Diversity Visas: In addition to FB & EB visas, there‘s DV (lottery). pp 290. see 203 (c) (which provides how INS determines preference immigration for DV lottery purposes. Identifies high admission & low admission regions & states. China, India, Mex & Phil are considered high sending countries & can‘t participate in DV. No sponsor required. Foreign national can immigrate w/o an immediate relative sponsoring them & w/o a job for which there is a labor shortage. 1. Every yr, there are 50K greencards that are available & distributed by lottery, a PR disaster: If war is the opposite of law, a close 2nd would be a lottery. This shows instability of immigration law. Applicants, to apply for lottery need (1) High school education (low education req), OR (2) Two yrs of experience in an occupation that requires 2 yrs of experience (don‘t need any education at all, just work experience at any type of job for period of time) w/in 5 yrs prior to application.

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(3) Need to be from particular countries: See table on pp 292. Cong was concerned in 1986 that immigrant stream wan‘t diversified. (there are too many Hispanics & Asians). These groups are pretty much excluded by statute. Very similar to National Origins Formula. National Origins Formula said that the way immigrant pop looked like 20 yrs ago is just abt rt, so we want to match that as matter of law. We don‘t want the mkt to work & let people in b/c they want to. We want to keep people out & let in more Europeans & Africans & fewer Asians & Hispanics. DV is a essentially a side door readmission of National Origins formula, despite in 1965, we got rid of ethnic engineering, it‘s still pretty much present in DV & this chart. It‘s an attempt to admit more Europeans in US (4) Should always advise client to buy lottery ticket if they qualify. Per Country Limits (ethnicity control): Look @ s 202 of INA (pp 55). S. 202 (a) Per Country Level (1) Nondiscrimination (1) Except as specifically provided in par (2), no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa b/c of person‘s race, sex, nationality, place of birth or place of residence. (2) Per Country levels for family sponsored & employment based immigrants (Discrimination). The total # of immigrant visas made available to any single # of immigrant visas made available to natives of any single foreign state or dependent area in any fiscal yr may not exceed 7% in the case of foreign state & 2% in case of dependent area, of the total # of visas made available in fiscal yr. a S. 202 means that it’s 7% of total # of visas made available per year are available to any given country: That‘s 7% to Bermuda, Bangladesh, Algeria, Israel, & China, Mexico, India. It‘s 7% to low traffic & high traffic countries. It‘s up to 7% per country. 2. We got rid of National Origins Formula in 1965, but got rid of that, but now in side door we have per country limits & DV lottery (fewer Mex & more Europeans & Africans. Engineering the ethnicity of immigrants). 3. DV divides word in to 6 regions & affords to certain regions X # of greencards: But it‘s unfair lottery b/c certain regions have much more visas available than other regions. Immigrant Visa Preference #s Chart: For time being all of #s are current in Employment preferences world, but not in Family world. In chart, vertical axis is preference category & horizontal axis is country of origin. To know chart you need to know 3 things: (1) What is your client’s priority date? (priority date is date that he has filed first piece of paper w/responsible agency. If it‘s fam petition, it‘s date that pet filed w/INS. If employment petition, it‘s date when 1st piece of paper filed w/DOL. It‘s date you enter the system (when you get in line). (2) What is the country of origin? Where is he national of? (3) Preference Classification (vertical axis): Then you use the chart to guess for the client what their wait is going to be. It‘s like a ―now serving‖ sign in deli. You pick a #. It says ―now serving #12". If you are #37, depending on how many people are working & standing in line, you can‘t really know how long it‘ll be. You can only hang in there & see how wait is like. The chart doesn‘t tell you how long the wait is. If your client is from Mex & coming in on a 2B (children over 21 of LPRs), you can‘t say ―you have a 10 yr wait.‖ But can say, ―you‘ve got 10 yrs worth of people in front you. I can‘t

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tell you it‘ll be 10 yrs. Having watched these #s it‘s pretty slow. You could tell your client that you‘ve got 10 yrs of people in front of you, but to get through those 10 yrs worth of people, it‘ll be more than 10 yrs. The chart reflects demand. If not on chart, it means demand it right (it‘s lower than 7%). This chart doesn‘t reflect the slowness of INS. There is no chart for that. This is a chart that reflects how many folks are standing in line. i. One of the reasons why the lines are as long as they are for Mexicans & Phillippines is that they have qualifying spouse, mom, bro in country already, which qualifies them to get in line: Problems pp 298: (1) Client has been LPR since 1986. Last month in Nairobi, he married a Kenyan national who has a 6 yr old child by previous marriage (marriage ended by div) & wants to petition W & C to US ASAP. What do you advise. Can that family follow to join? No b/c of after acquired problem. (1) Can wait until naturalizes & then can bring them in under 301 (b) (2) for immediate relatives & no waiting period, (2) K visa, (3) Could stay LPR & file 2nd fam preference. You can do all of these & more to maximize your chances. (2) Your client is a LPR who entered this country in that status in 1988. He wants to bring his brother here from Greece. LPRs don‘t have sibling rts. The 4th preference is Bros & sis of czs. Citizens can bring in their siblings, but have long wait, but LPRs can‘t. To bring in a sibling, you need to change your own status first. Option A: Since LPR has resided more than 5 yrs, then he can be naturalized & then petition brother under 4th preference family based cat (it‘s prob faster this way) 1. Note: Petitioner must be 21 yrs old to even qualify to petition under 203 (a)(4) 2. The waiting period acc to handout C would be July 22 1988 (3) Your client. cz of Phillippines, entered as LPR 2 yrs ago under 3rd fam preference, for married sons & daughters of US cz. At the time, he brought w/him his W & 3 of his 4 kids, leaving behind his eldest, an 18 yr old daughter. Daughter had already entered college & believed @ the time that she didn’t want to emigrate. Now she’s changed her mind & would like to immigrate to US & take up studies in this country ASAP. Oldest daughter can still follow to join father, but only if she qualifies as child under defn of child (21 & nonmarried at time you actually follow to join). Delays of INS will change her legal rts. Try it. But plan B would be Fam preference 2B (unmarried daughter of LPR over 21) (I think she can‘t get married when get green card). Plan C is that Dad can adjust status to cz (naturalize). But couldn‘t enter as immediate relative b/c too old, but Dad, being a cz could bring her in under 1st fam preference, assuming she is unmarried. Option A: Under 203 (d) following to join, clause might be available, that‘s if she‘s not married & not over 21 Option B: Under 203 (a) (2) (B) ―unmarried daughters of LPR‖ family based category–the wait is from Aug 1 1992. Note: b/c Phil is country that has huge backlog, it might not be beneficial to have LPR naturalized b/c wait for US cz under 1st pref is longer than LPR 2nd pref for Phil Option C: student visa. (4) Client is 20 yr old Swiss national who wants to immigrate to US. He has heard that family ties are the key to immigration & he reports that has uncle in Chicago who’s US cz & would be willing to do any necessary paperwork. He also reports that he’s worked as a researcher for a sociology professor @ his university, where he’s completing his basic degree w/a major in sociology. Uncle isn‘t proper anchor. Nobody has rt to bring in

nephew. But Uncle has rt to bring in brother (Dad) in 4th fam preference. Then Swiss kid couldn‘t follow to join Dad b/c too old. But Dad could later bring him in as 2B preference, so long that not married. It‘ll be 20 yrs at least. Could try lottery or employment route to green card. Look at education & degree to see if qualifies as employment based b/c has no fam pref available to him. (5) Client is high school dropout, but principal shareholder & CEO of Brazilian software firm. Wants to set up business in US & take up permanent residence here: With investment visa education status doesn‘t matter. For 1st pref, education doesn‘t matter. All need to do is manage company for & come to manage in US. He either comes in under 1st or 5th easily. Option A: Under employment based s 203 (b) (1) (C) ―multinational executives & managers‖ & s 203 (b) (5) Would you support Jordan Commission‘s recommended changes to FB imm? (Pp 350) No b/c proposal would eliminate LPR‘s right to petition visas for sibling. The commission recommends that LPRs are less important in their rt to have fam based reunifaction. 3. Impact of Admission: 1. Demographics Analysis: Smith & Edmonson. ―The New Americans: Economic, Demographic & Fiscal Effects of Immigration.‖ Very good demographic study. 1. Impact of Immig on US population: 1. If net imm continues indefinately @ its current levels, US pop will increase from 260 mil to 387 mil 2. Immigration will also affect age distribution of the resident population w/current implications for public policy (schooling etc). 3. Increase in multiple ancestry will bring other issues (rates of intermarriage, racial/ethnic affiliations etc). ii Economic Impact of Immigration: 1. Going to be net economic gains for domestic residents: (1) Immigrants increase supply of labor & help produce new goods & services (2) Those who buy goods & services produced by inexpensive immigrant labor benefit as do higher skilled workers & owners of capital. 2. Older immigrants lose from flow of new immigrants b/c will be displaced: 3. Wages of less-skilled domestic workers who compete w/immigrants will fall: 4. To extent that immigrants specialize in activities that otherwise wouldn’t have existed domestically, there’s little substitution of new immigrant workers for domestic workers & domestic consumers gain for lower prices of those services: 5. Wage gap will close over time for new European/Asian immigrants, but not for all Mexican immigrants: iii 7 points: 1. Increase in pop: study predicts that 80% of increase will be immigration. 2. Multiple ancestry: changes things. Some happy & some horrified by this cultural change. 3. Conclusion that “immigration produces net economic gains for domestic residents”: Net gain for people already here. pp 300 4. Immigrants can affect rates of economic growth only to extent that differ from native born: If we bring in one more person to class, we increase value by number larger than 1/10 b/c of way he connects to each person. It‘s not just that adding 1 more increases value by one more. It‘s more sophisticated b/c raise to another level interaction etc.

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5. Immigration is unlikely to have large effect on US economy: Gains from imm are modest & also for those who lose from But biggest losers (people most displaced) are the closest substitutes: Immigrants who just came in stand to lose the most. The second group that stands to lose the most are blacks. 6. Wage gap will close over time for new European/Asian immigrants, but not at all for Mexican immigrants: Over time differential closes, Europeans & Asians, modestly for others & not at all for Mex. 7. Authors argue in favor of policy of admitting educated migrants & disallowing old migrants: educated & young over old & uneducated Borjas conclusion: slight economic impact, but main imm problem is taking jobs from domestic low skilled workers & giving to immigrants. Family Based Immigration: Marriage Fraud: A Fiallo v Bell (1977) p. 308: . Fiallo stands for proposition that even if it‘s fundamental constitutional rts of a cz, still no judicial review. Fundamental rts of a cz are up for grabs. Sup Ct said that even constitutional fundamental rts of czs can be looked over in immigration setting. In the 2x2 schematic, where you have a cz claiming imm rts. Even where you‘ve got cz involved, the imm statute still recognizes plenary power. Even when there is fundamental rt to cz (such as privacy rt), that rt bows to plenary power. Parties Appellants are a group of fathers of illegitimate kids. Appellants theories: Purpose of stat was to reunite families. No prior immigration case involved double barreled discrimination based on sex & Prior immigration cases involved foreign policy matters. Facts: Appellants were unwed natural fathers who sought, either as an alien father or an alien child a special immigration preference by virtue of relationship to cz of resident alien child or parent. One of the applicants is a naturalized cz who petitioned to have his illegitimate son brought to US from West Indies. Applicable statute: s. 101 (b) (1) (pp 37) Child defined as unmarried person under 21, who is legit or legitimated, a stepchild, an adopted child, or illegitimate child seeking preference by virtue of his relationship w/his natural mother [or natural father, if father has or had bonafide parent/child relationship–> this is post Fiallo language, but not b/c of Fiallo. INS agent is 1st level of deciding whether there‘s bonafide parent child relationship] s 101 (b) (2) (pp 37): A person qualifies as a ―parent‖ for purposes of the Act solely on basis of person‘s relationship w/child. Stat basically says that natural father of illegitimate child isn’t entitled to preferential treatment as a “ parent.” Issue: Whether s. 101 (b) (1) (D) & 101 (b) (2) of INA is unconstitutional discrimination against fathers of illegitimate children? Holding: No. Sections 101 (b) (1) (D) & 101 (b) (2) of INA of 1952 are not unconstitutional by virtue of the exclusion of the relationship b/t a legitimate child & his natural father from the preferences accorded by the Act to the child or parent of a US cz or LPR. Fiallo held that it‘s constitutional for child to be legitimized just by mother. Reasoning: Basically arguing for judicial deference. 1. ―Over no conceivable subject is the legislative power of Cong more complete than it is over admission of aliens.‖ And :Cong regularly makes rules that would be unacceptable if applied to cz. 2. Cong makes this determination . . . .serious problems w/proof of paternity. 3. Ct has ltd judicial responsibility to review Cong‘s line drawing. 4. This distinction is just one of many drawn by Cong . . . to provide some but not all families w/relief from various imm restrictions that would otherwise hinder fam

illegitimacy.

reunification. Dissent: 1. The Ct violates the 5th amd in allowing discrimination among czs. However irrational & invidious, must be tolerated in context of imm laws. 2. Despite one of the applicants acknowledging his son shortly after birth, his name on birth certificate & his maintenance of support, he was denied b/c his son was not a ―child‖ under the stat. The appellant is simply not a ―parent‖ 3. Unlike most cases, this case involves the rts of czs, not aliens 4. Cong did choose to extend such privileges to US cza, but then denied them to a small class of czs. This is against the 5th amd. 5. The INS is no stranger involving proof of paternity. They can do it. Appellant was classic example of someone who could readily prove both paternity & closeness. Points from case: (1) Here body of law is imm law & even though it’s US czs are affected (Cz saying he has rt as US Cz to be united w/kid), Sup Ct finds itself weak in the face of Congressional power. (2) And plenary power doct applies, even where fundamental constitutional rts of czs are at stake. (3) Also on pp 311 it says: appellant characterize our prior imm cases as involving foreign policy matters & congressional choices to exclude or expel groups of aliens were perceived to pose a grave threat to nat security or general welfare of US . . . we find no indication in our prior cases that the scope of judicial review is a fxn of the policy choice at issue. To the contrary, since decisions in these matters may implicate our relations w/foreign powers & since a wide variety of classifications must be defined in light of changing political and economic circumstances, such decisions are of a character more appropriate to executive or legislative than judiciary, and . . .narrow std of review of decisions made by Cong or Prez in area of Imm or naturalization‖: i Early on, we had said that if there is a constitutional justification for plenary power doctrine, it’s located in idea of national self defense. Trujillo suggested that if we‘re going to be consistent w/that, then we should have a plenary power doctrine that says Cong can do what it wants when we‘re at war or legitimately nat self defense, but for 98% of other times in Imm policy, when it‘s just about jobs etc, Cong should have weaker Cong & stronger Ct. Here, the ct pulls a rabbit out of a hat & says we find no indication in our prior cases to say that judicial review is fxn is a fxn of policy choice. Trujillo thinks this is outlandish & rationalizing, b/c if Ping was about anything, it was about the fxn of the nature of policy choices. This case unhinges the plenary power doctrine from its origin & now we have a plenary doctrine power that says that if it‘s immigration & it‘s citizens, Cong can do what it wants & it‘s not on basis of selfdefense. (4) Footnote 5 on pp 308: ―Our cases reflect acceptance of a ltd judicial responsibility under the const, even w/respect to power of Cong to regulate the admission & exclusion of aliens & there is no occasion to consider in this case whether there may be actions of Cong w/respect to aliens that are so essentially political in character to be nonjusticiable.‖ So there is ltd judicial responsibility in const to void acts of Cong regarding substantive immigration law. This is good language to quote when arguing for judicial review. 1. What marriages are recognized by the INA? What‘s a marriage for purpose of imm benefits? SHAM MARRIAGES: Marriages motivate by a desire to confer an imm benefit don‘t provide the requisite relationship, regardless of their validity in country where marriage took place. 1. More than 1/3 of immigrants who enter US each yr do so on basis of their marriage to US cz of permanent resident alien: 2. The question is whether marriage is valid for purposes of conferring imm benefits. When is marriage really it, as opposed to sham marriage? Behind the legal considerations is policy consideration of fam reunification. Fam reunification says that we‘ll unify fams that are really fams, so need to identify whether or not there‘s a fam to

unify. So, we have to identify whether this was a sham marriage or marriage that was entered into for purposes of achieving imm benefits & nothing more. 3. Ways of determining whether marriage is “legit”: 1. First you examine the form: which can be a question of foreign fam law. What does it take to be married in Poland? Foreign fam law. You also examine the form where marriage is being received (US) & see if it violates public policy (e.g. gay marriage or marriage to 1st cousins, or marriage to multiple partners). 2. Second general approach to testing a marriage is to examine intent of parties at the point of marriage. What did they intend when they were married? Did they intend nothing more than formal ceremony & they go separate ways? Or did they live together. This treads very close to inquiries about privacy concerns. 3. The last approach is a checkup of the marriage after a period of time: the period of time is 2 yrs. These are 5 yr benefits & then 2 yrs later, they take a look at your marriage & see if you‘re still married. This is most commonly used. 2. Bark & Doboghian lay out the facts that are trying to be remedied by Marriage Fraud Amendments:th 3. Bark v INS (9 Cir 1975) Pre Fiallo case (Fiallo gets rid of national defense explanation & tramples over even fundamental rts of cz) 1. Facts: Petitioner was denied adjustment of status from student visa to LPR pursuant to s 245 (wanted to get green card based on marriage to LPR). Based on evidence produced to INS of separation subsequent to application for AOS, INS denied adjustment there was no marriage; judged to be sham. Petitioner & wife had hooked up in Korea, she then became LPR of US. He followed & renewed the relationship & claimed they married for love, despite quarreling & eventually separating. The BIA in his decision stated that ―Investigation revealed that petitioner & wife lived in separate quarters. Issue: Did BIA err in holding petitioner‘s marriage was a sham? Held: Hell yes. b. Reasoning: (1) Should look at intent at time of marriage: (2) At time of marriage, they may inquire into marriage: (3) Aliens cannot be required to have more conventional or more successful marriages than citizens: (4) Evid of separation, standing alone, cannot support fining that marriage was a sham. (5) It would be unconstitutional to regulate the private lives of the couple: Interesting implications for plenary power doctrine. Ct said ―any attempt to regulate their life styles, such as prescribing amt of time they must spend together, or designating manner in which each partner elects to spend his or her time, in the guise of specifying the requirements of a bonafide marriage would raise serious constitutional questions.‖ (Roe, Griswald). This is questionable proposition, especially considering Fiallo & Kleinmetz (Kleinmetz set std of Cong action is that all they need to show is facially legitimate reason–very low std, even if it violates const). Fiallo & Kleinmetz stand for proposition that even if it‘s fundamental constitutional rts of a cz, still no judicial review. So under Fiallo & Kleinmetz, Trujillo‘s a cz & W is national of Panama, they could say to specify things abt private lives. Trujillo will say, I‘m a cz, born in CO, you can‘t do this to me. And they‘ll cite Fiallo & Kleinmetz for proposition that fundamental rts of a cz are up for grabs. (6) Separation is relevant, but not dispositive: 5. Calvin Trillin, Making Adjustments (The New Yorker 1984): a. Questions often asked when agent has reason to suspect marriage is sham:

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Where does she put her shoes at night? What do her parents do for a living? What‘s her favorite food? Where did you meet her? Here is an example of underwear, & he didn‘t want to talk about it, justly so. Put in weird position. b. Most adjustment of status based on marriage is decided on basis of papers, so most folks don’t need to worry abt this, but if there needs to be interview, there’s discretion of agent: c. Lawyers not allowed to coach clients during interview, but his presence can provide not just sense of security, but also sort of implied character witness. 1. Agents tend to be suspicious by nature (many former border patrol agents). 2. INS will never detect anything unless one of parties admits that marriage was contracted for immigration purposes (usually for revenge). 3. As result of ease, it’s difficult to dissuade clients from taking this route to green card. 4. ABA rules prohibit atty from assisting client in conduct he know is fraudulent. Public policy necessity that necessitated angst by INS is that there’s lots of marriage fraud: There‘s lot of getting married for purposes of conferring immigration benefits. 1. Sham Marriages & Ethical Responsibilities of an Attorney: 1. Pre 1986 letter from associate of form anonymous to Interpreter Releases: Associate writes that we handle about 1-130's per yr & we don‘t induce our clients to commit fraud & we never ―know‖ that sham marriage is involved, but are quite certain that 90-95% of cases are sham marriages.‖ Ethics. Immigration law is ethically challenged part of law. 2. R 1.6: Atty may not reveal info, unless client consents. Must keep info secret. 3. Rule 1.2 (d): can‘t participate in fraud when atty ―knows‖ that client has engaged in fraud. ―actual knowledge.‖ If have actual knowledge of fraud, then cannot assist that client. Pull out of case. 4. Diff b/t actual knowledge & “reasonably should know” creates incentive among atty to not know: So long as you have no actual knowledge abt fraud, then technically, under rules, no violation. Atty will signal client to stop talking or will walk client down path where no actual knowledge is transmitted. 1. Example: Business lawyers will tell clients. If your answer to question is X, it‘ll cost you $50mil. If your answer is Y. It won‘t cost you a cent. So, what‘s your answer to the question. Huge signal. And the way you justify it is that my job as a lawyer is to lay out what the law is. I‘m not a fact finder, but a law teller. I tell client what the law is, & then client tells me the facts. When you tell them, could change their answer. 5. Some states adopted stronger rules & apply a “reasonably should know std: Dabaghian v. Civiletti (9th Cir 1979): If marriage isn‘t a sham or fraudulent in it‘s inception, it‘s valid for AOS purposes until legally dissolved. Subsequent separation of the spouses alone, shouldn‘t be sole basis for denying spousal petition. Facts: Dabaghian, a native & cz of Iran obtained a student visa & subsequently applied for AOS after getting hitched w/a US cz in Oct 1971. The AOS was granted in 1/72. He may have been separated when AOS granted. Fifteen days later, he filed for div, which was granted & he married an Iranian cz the following yr. AG moved under s 246 (pp 288) to rescind AOS. The claim was that this marriage was ―dead in fact‖ when AOS was granted & benefits were conferred. When we granted the benefits, the marriage was dead in fact b/c days later filed for divorce. There was no family to unite on date when we granted benefits in interests of fam reunification.. What INS was trying to do was create another way for testing the marriage:

The test: The ? is, is it a marriage. (1) First ask, is it a marriage in law? First you look at the form (may be foreign family law, was it legitimate where it was celebrated? & will it be legitimate where it‘ll be received?). Then, you look @ intent of parties @ time of marriage. (2) INS tried to create new test: Is marriage in fact? Even if at time of marriage there‘s nothing wrong w/form of marriage or intent, so INS wanted to test marriage & deny imm benefits to marriages that aren‘t marriages in fact. INS tried & failed, but got some of it back in 1986 amendments. ii The BIA dismissed appeal & action for review dismissed in District Ct. The issue was whether recission of AOS was warranted. Held: No. There is no ―dead in fact‖ std in INA & ct said, it wouldn‘t create one. The only way to reject marriage for immigration purposes is to establish that it’s sham @ pt of marriage (intent), or not legal in validity (form). Creating 3rd test would lead to administrative overreaching & would have too much power to look into private lives (constitutional rts). ii There is a disconnect here b/t 9th Cir’s opinion that there may be constitutional implications & INS is overreaching & rest of Fed law: Reasoning: (1) The INS never claimed or proved that 1st marriage was sham or fraud when entered. (2) If a marriage isn’t a sham or fraudulent from its inception, it’s valid for purposes of determining eligibility for AOS under s. 245, until it’s legally dissolved. 8 Let’s try to put the best face on the INS’s attempt to administratively overreach here. They are attempting to stem the problem of marriage fraud by saying we have the rt to check if marriage is one of fact: It would be good policy if INS had the power at some discrete other pt after granting benefits it they could check them out later on to see if there really was a marriage. That would be good b/c INS is trying to serve goal of fam reunification & one way of establishing fam reunification is to look @ marriage on a longitudal manner. Cong bought this policy argument & allowed INS power to keep longitidal checkup for period of 2 yrs to see if still together. 1. Bad implication of conditional permanent residence: Forces people to stay together for 2 yrs. You have a cz H & non cz W & W is abused. She‘s trapped. Normally solution is get out of marriage, but if you leave marriage, you get out of America. 9. Immigration Marriage & Fraud Amendments of 1986: Attempted to deter immbased fraud. The fraud amendments impose a 2 yr conditional residency req on alien spouses & ―sons & daughters‖ b/f they obtain PR status on basis of ―qualifying marriage‖ to US or LPR if marriage is less than 2 yrs old. 1. S. 216 Conditional Permanent Resident (CPR) status for certain alien spouses & sons & daughters: (1) Generally: gives INS power to do longitutal checkup. If qualifying marriage (marriage that qualifies immigrant spouse for benefits) is younger than 2 yrs old, then benefits will be granted at first check, but on conditional basis. The papers on LPR will be stamped ―status expires.‖ Then 90 days prior to expiration (2nd anniversary), the couple, w/o any notice or anything has to remember to affirmatively file to have conditional basis removed (lots of couples forget). The deadline is expiration date & you fall out of status. At second check, it‘s usually done through papers, but occasionally through interview, INS inquires whether you‘re still married (that this is fam to reunify) (similar to marriage in fact concept. It‘s not called marriage in fact, but INS can do longitutal checkup b/f real LPR is granted). (2) If at 2nd point, INS wants to deny removing conditional status from card, IT bears burden of proof (burden of proof on INS) with preponderance

1.

of evid std: INS needs to show one of the things in 216 (b): Under 216 (b)Termination of status if finding that qualifying marriage improper, INS needs to show: i. That the qualifying marriage was entered into for the purpose of procuring an alien’s admission as an immigrant (intent) or ii That the qualifying marriage has been judicially annulled or terminated, other than through death of a spouse, or iii Marriage occurred in consideration of a fee: If AG makes unfavorable determination, the alien spouse & child are subject to removal, but AG may allow hardship waiver & grant LPR if alien demonstrated that an xtreme hardship would result if he were removed. Waiver also available if alien can show that marriage was terminated in good faith. Also if alien not at fault in failing to file petition w/in 90 days or dailing to appear at interview. AG may also grant waiver if good faith marriage resulted in battery, or extreme cruelty to alien spouse or couple‘s child, assuming alien wasn‘t at fault for failing to file required petition or appear for personal interview. (3) Contents of petition & interview: 216 (d) (1): S. 216 (d): Each petition shall contain the following facts & info: (1) Statement of proper marriage: That qualifying marriage I Was entered into in accordance w/laws of place where marriage took place: II Has not been judicially annulled or terminated, other than through death of a spouse: and III Was not entered into for purpose of incurring an alien’s admission as an immigrant. and IV No consideration was given: (2) Additional Info: 1. Residence of each party since date alien spouse received CPR S 216 (d) (1) (B) (2): The petition must be filed during the 90 day period b/f the 2nd anniversary of when alien obtained CPR. If filed afterwards, must show good cause & extenuating circumstances. S 216 (d) (1) (C) (3): The interview shall be conducted w/in 90 days after date of submitting petition. INS has statutory authority to call both spouses in to district office for an interview–this is usually waived, this reserving examiner‘s time for those cases where papers raise a ? meriting further inquiry. (4) S 216 (b) (2) (A) Termination of CPR Status for failure to file petition of have personal interview: If no petition is filed w/respect to alien or unless there is good cause shown, the alien spouse & petitioning spouse fail to appear at interview, the AG SHALL terminate the permanent resident status of alien as of 2nd anniversary of alien‘s lawful admission for permanent residence. In any removal proceeding w/respect to alien whose PR status is terminated under (A), burden of proof on alien. ii Problems pp 334-35: (1) Immigrant A marries US Cz B & is admitted as an immediate relative under INA s 201 (b). 18 months later, A separates from B & not reconciled after 6 months. What advice? Don‘t get divorced. Don‘t have a marriage ―judicially annulled or terminated.‖ Evidence of separation w/o more isn‘t dispositive. So advice should be go ahead & file, but has to be filed jointly. Separation may spur further INS inquiry. If they see diff addressees on papers, INS may able to make debate & prove to themselves something else. 1. What happens what citizen spouse doesn’t want to join in filing petition? See s 216 (c) (4). Immigrant spouse can file for a Hardship waiver.

1. The immigrant spouse needs to show that there will be extreme hardship to a citizen if she is removed. This is easy case if kids in US & kids will suffer hardship if she‘s gone. 2. Or, you can prove that marriage was valid (entered into in good faith) but can’t file jointly, but H has terminated marriage: If non immigrant spouse can prove that she was not at fault. 3. That qualifying marriage was entered into in good faith, but she or child was battered, so she terminated marriage: See also section 204 (allows for self petitioning in cases of extreme cruelty or battery. Look at (c) on pp 75, which says that if you want to petition yourself in, among other things, need to show good moral character, but if battered INS administrative agent has power to inquire into what kind of crime it was & make resolution that still has good moral character The Violence against women‘s act of 2000 (VAWA) expands the class of battered spouses & kids who can self-petition through elimination of the req that extreme hardship be shown. See INA 204 (a) (1) (A). It also provides discretion to examiners to find that pet possesses good moral character despite certain crim convictions if the crim act was ―connected to the alien having been battered or subjected to xtreme cruelty‖ See 203 (a) (1) (C). Certain other grounds of inadmissibility or de portability can be waived or overcome if petitioner shows that the violation had a ―connection‖ to the battery or cruelty. (2) Same facts, except that A & B are legally divorced after 20 months. What result? If there is a legal termination, then can‘t file petition & allege that there‘s a marriage that‘s still in tact, w/exception of death of spouse. Death does not eject foreign national. You come w/papers & show death cert. (3) Foreign national C marries Cz D & is admitted as an immediate relative LPR & have baby one yr later. Six months later, CZ leaves & refuses to help C w/any further immigration proceedings. Hardship waiver. Will need to allege that child will be hurt by not being allowed to be w/parent. There is an issue of ―defacto deportation of a cz‖–> you have infant child born in US & is cz. Mom becomes deportable & if you deport mom, also deporting kid, a US cz. INS responds that not really deporting kid, it‘s parent‘s choice to take kid w/you. INS is saying we‘re not acting on a cz b/c we don‘t power to do that. If want to leave kid on dock or in airport, you can do that. She can‘t follow to join the jus soli child b/c child is under 18 (to petition in , must be 18) & child born here, so no one to follow. Follow to join provision applies when people come in on 2 preferences & people come to join them. It doesn‘t apply if kid got here as cz. 1. What if kid born outside of US after the marriage, but b/f C’s admission? All this does is draw attention to 216 (c) (4) (C). ―In 2. determining extreme hardship, AG shall consider circumstances occurring only during the period that the alien was admitted for permanent residence on conditional basis‖ If kid born b/f that, then might be harder to allege that birth of child leads to hardship. But local legal culture would say that fact that separating from kid is enough, It‘s hardship to cz, so strong case if kid is cz. If kid is Cz & born outside lookback period of 2 yrs, so what? INS may have authority to say that no hardship waiver. But mere fact that will cause hardship to cz child may be enough.

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(4) E is foreign national who comes in as nonimmigrant & overstays. Is out of status & undocumented. INS locates her & begins removal proceedings. During removal proceedings, E marries US cz & asks cz to file petition on her behalf, so that can adjust status under s 245. What strains that application? see 245 (e). Restrictions on AOS based on marriages entered while in exclusion or deportation proceedings: Ripe for fraud. An alien who marries while in removal proceedings may not obtain immediate relative or preference status by reason of that marriage until the alien has resided outside US for 2 yrs following marriage date. see 204 (h). An exception to foreign residency req applies if alien established by ―clear & convincing evidence‖ that the marriage was undertaken in good faith & not for purpose of evading imm laws. Burden shifts to the party & level of burden increases, but content of pet is the same. Essentially, pub policy is that it happens that undocumented migrants engaged in long process of removal marry cz. If marry cz, still have policy of family reunification. (local legal culture: you can beat this) 1. 212 (a) (9) (B) is draconian measure for aliens unlawfully present: For aliens who are unlawfully present, depending on how long you‘re unlawfully present, you become barred from US. (5) Same facts. Cz’s petition is denied & E (imm spouse is deported). When may they live together again in US? after alien lives outside of US for a 2 yr period beginning from date of marriage. Then CPR is granted. And after 2 more years, may be LPR. (6) Foreign national G marries US cz H & is admitted as CPR. Conditional status is removed 2 yrs later, but 6 months after that, they are divorced. One yr later G marries I, an alien not admitted to US & files a 2nd pref petition on I’s behalf, what result? See s. 204 (2) (A) (pp77)(Chain migration prob). 1. First question to ask is what’s G’s status after div? No change. You don‘t have power to look back. All you have is @ pt of 2 yrs to investigate marriage. Once that longitutal checkup has been satisfied, the guy‘s in & don‘t have power to follow him around forever. G‘s status is still LPR & there‘s nothing that authorizes INS to revisit G‘s status after that 2 yr period. 2. Later, the LPR marries & tries to petition new person as LPR: s. 204 (2) (A) requires that G has to wait a to wait total of 5 yrs from date of non conditional admission, or G has to demonstrate by clear & convincing evid that prior marriage wasn‘t entered into for purpose of evading any provision of immigration laws. (7) Aliens J &K (both living in Venezuela) & were married in Venezuela a yr ago. One of them is granted LPR status & spouse follows to join. Marriage is younger than 2 yrs old. Does spouse need to do the CPR thing? Gen defn section is in 101 (a). But 216 (g) is defn section for CPR provision. Says alien spouse doesn‘t include such an alien who only obtains such status as a result of section 203 (d). No need for 2 yr CFR b/c no fear of fraud. They were married before. The reason for CFR is we‘re worried abt immigrant fraud when immigrant comes to US & married cz. This is marriage that doesn‘t have that problem since already married before. Overriding policy problem in s 216 of Domestic Violence& Fraud: a Lots of Fraud: b Creates incentive to stay in bad relationship. Two problems: (1) Selection problem: In healthy situation people get married based on lots on info. You know her fam, will spend time figuring things out, you know folks who know abt them. After initial attraction, there‘s a lot of investigative research that goes on in terms of coupling. That‘s difficult to take place when you pluck someone from foreign country & place them in situation where don‘t have access to such info &

networking. (2) Exit problem: If marriage ends up being BAD, abusive & dangerous, law creates an incentive structure where exit is difficult c Law creates situation where you increase chances of people getting into bad marriages & decrease chances of people getting out of it. 4. There’s a waiver grounds for battered spouse & self petition & moral character provision & relief from deportation for battered spouse. 5. INS should get involved in process of channeling spouses to resources. One of few times immigrant is in contact with the system is in INS office. Although INS is a horrible agency & can‘t do anything right, here INS may be one of only chances that immigrants have to connect w/other resources that govt or religious communities have to support community problems such as these. Summary of Marriage Fraud Amendments in s 216: 1. S. 216: All persons who obtain PR status based on marriage less than 2 yrs old receive CPR. Conditional period counts toward necessary residence for naturalization purposes: 2. W/in 90 says prior to expiration, the couples must file to have conditional status removed: 3. At this point, the 2 year mark, the INS has power to interview. Typically, INS will forgo the inteview 4. If INS denies the removal of status, they (AG) have the burden of proof (by a preponderance the evidence) 5. They may petition for a waiver or move the deadline up. E Employment-Based Immigration Employer applying for greencard for potential (actual) employee. A high percentage of current emp-based immigration consists of workers who began work w/employer in H-1B category, a status that can last up to 6 yrs, & who then adjust status w/o leaving the country. I-765, Application for Employment Authorization Employment based preferences FY1998–> 140K Procedure: Employer seeks cert from DOL Contact consulate in sending country DOS does inadmissibility check, pursuant to 212 (a), if check out, get visa. 1 Intro: 1. Vast majority of aliens approved for EB visas are skilled workers, members of a profession. b INA s 203 (b) (3) (A) (iii) (pp 58-9) provides 10K visas each yr for unskilled laborers. c Labor Certification: 2. Background & basic procedures: overriding concern is to protect US workers against competition from immigrant laborers. ii K labor law of 1885: First labor related immigration Act. Act made it unlawful to import aliens or assist in importation or migration of aliens into US under K made previous to importation or migration for performance of labor or service of any kind. It made such Ks void (w/certain exceptions) & provided certain penalties. Provisions stayed in books until restructuring of INA in 1952. If guy got off boat & said I‘m coming here to work, would get ejected. Can‘t come here already having job. Didn‘t want people from outside taking jobs that should have been filled up by people in US. No one should come into US w/job. This was the formal universe from 1885 to 1952, that there is no labor based immigration. aa In real world there was lots of Labor Based Imm: In WWII yrs there was regime where US agriculture had access to Mex labor pool (Bracero Program). Labor pool was kept in way that

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violated human rts. They were like property of employers. Long term exploitation of Mexican labor. 1952 Act: Repealed 1885 law & adopted the 1st labor certification provisions. W/establishment of INA you had a regime established where labor based immigrants were presumed to be admissible. Law empowered Sec of Labor to block entry where Sec of Labor had reason for doing so. It was an affirmative burden on DOL & rarely exercised 1965 Act: Due to effective lobbying from AFL-CEO, Congress reversed the operation of the labor certification process. The new law presumes that foreign workers are not needed. Immigrant/employer had to demonstrate that their entrance would not adversely affect US mkt, by either taking job away from US cz or by affecting wage rate. Burden shifted to immigrant/employer & remains so. The current version of Labor Certification provision is in s 212 (a) (5) (A) (p. 112): S. 212 is the inadmissiblity stat. The Labor Cert provision is sandwiched b/t sub (4) which says you can‘t come into US if will be public charge (will go on welfare) & sub (6), which is illegal immigrants. Sub (5) says you shall not come into US unless you have satisfied DOL certification. (aa) s. 212 (a) (5) (a) says that any labor based immigrant is inadmisible unless DOL has certified to other 2 agencies (DOS & DOJ) that (1) There are not sufficient workers that are willing or equally qualified and available at the time & place to do the job. This requires DOL to do research in a particular mkt. If Trujillo wants to teach law in Madison, needs to get piece of paper from DOL saying that couldn‘t fill that job in that geographic mkt w/someone who‘s already there, & (2) Employment of immigrant will not affect wages & working conditions of those who are similarly employed: we don‘t want people taking jobs that could be filled by US czs (or people here already, such as LPR) & we don‘t want entrance from immigrants depressing the mkt. Citizens have priority on jobs. (bb) What this section is going to be is an erosion of that. The US’s commitment to giving US citizens priority on domestic jobs has eroded over time: (cc) Certain aliens subject to special rule: s. 212 (a) (5) (A) (ii): where alien is teacher or worker w/exceptional ability in sciences & arts, the DOL must certify that there are no US workers who are equally qualified. So, there are diff stds. If you‘re in sciences & arts or teacher, you get one std. If you‘re anything else, you get another std. (dd) Qualified std: says that DOL isn‘t making a direct comparison b/t particular petitioning immigrant & anyone else. Not case specific. If Trujillo wants to come in, not to teach, but to work @ a restaurant, then DOL applies qualified std & inquiry is, is there anybody else in Madison area who could do that job? It doesn‘t look at Trujillo‘s individual qualifications. (ee) Equally qualified std: is case specific. It pairs this particular immigrant to available pool & asks, is there anybody as good as Trujillo. It‘s a higher std. What we‘ll see throughout is that there‘s a segmentation in labor mkt b/t higher skilled & lower skilled & erosion of labor policy happens at level of high skilled labor, rather than unskilled labor. There is a schizophrenia in US labor policy that takes good care of bus & high skilled

immigrants. You want to fit your client into sciences & arts. The other significant stat besides for s 212 (a) is 204 (b) (p 77): It defines who needs a labor cert & who doesn‘t. Only applicants under EB 2nd & 3rd preference need DOL certification.. You don‘t need to go through labor certification process for 1st preference priority workers. Don‘t need to do it for religious workers, NGOs (non govtal org) & investors. (gg) Steamling procedure. The Regs: (a) Schedule A &B, & (b) Reduction in Recruitment (RIR), (c) Ltd processing review Schedule A & B: 1. Schedule A: 20 C.F.R. s 656.10 (pp 683).. DOL says that if your client has job that‘s on this list, then your in. DOL has made decision that we need so many of these all over US that we‘re not going to even investigate. Basically RN & P.T. & certain aliens ―of exceptional ability‖ in science & arts (but excluding performing arts). Is a blanket determination that anyone seeking that kind of work in US will not displace US workers or adversely affect wages & working conditions Aliens seeking employment in these occupations may file directly w/consular officer overseas or INS if applicant in US. 2. Schedule B: 20 C.F.R. 656.11 & 656.23 Says if job you‘re petitioning is on this list, don‘t even bother. Presumed inadmissible. Lists occupations in which DOL considers there are sufficient US workers throughout the country & for which labor cert will not be issued. (i.e. parking lot attendants, bartenders, cashiers etc). There are provisions for waivers, but are relatively rare. (s. 656.23). 3. If alien’s occupation doesn’t appear on either schedule A or B: then, employer must initiate individual certification process by filing Form ETA-750 w/DOL & demonstrating that requirements for individual labor certification process have been fulfilled (engaged in good faith recruitment efforts aimed at qualified US workers, rejected them for lawful reasons & offered the prevailing wage). (20 C.F.R. ss 656.20656.21 for General filing instructions). Employer needs to show 4 things: 1 That it engaged in good faith recruitment aimed at US workers 2 That it actually interviewed US workers. & if rejected, for lawful job related reasons. 3 That it offered the prevailing wage: & that it‘s capable of paying the prevailing wage. 4. That job requirements aren’t unduly restrictive: Need to allege under oath that to extent that didn‘t hire Cz, we did so for reasons that were bonafide. If 2 people show up, CZ & alien & both just fine for job & hired foreign national & say he‘s more qualified & better. That‘s what they have to allege & most employers do & hire foreign national (agnostic choosing). But that‘s not what really happens. Usually have you in mind & you‘re already working @ job as NIV, I hire you & petition for AOS & turn down others who would be just as good, but not for me, b/c I already have relationship w/you. They allege the stuff w/o sweating b/c it‘s not enforced. In reality, they usually have relationship w/that immigrant prior to publicizing job description. Job of Imm atty is like creative fiction writer who writes ad for paper that looks broad & legitimate, but can only be filled by one person. You interview immigrant & figure out what their particular job qualifications are & then write generic ad that can only be filled by guy you (ff)

just interviewed & you use Dictionary of Occupational titles to define & categorize jobs. Reduction in Recruitment (RIR): Way of automating, or speeding up process for those employers who regularly engage in ongoing hiring procedures. The imagination of act is very simplistic. It imagines that employer needs a worker. First it advertising in local papers & local job mkt for someone to fill position & nobody fills it. Then employer says I still need someone & no US cz has applied & no one from here has applies, so I need to bring someone in & publicizes it in local paper in foreign country &then people come. This is very simplistic & unrealistic b/c there are people already here who are out of status, who are nonimmigrants & want to adjust to immigrant status, who are typically already in the job, for whom employer is writing job description. 1. What RIR says is: if you‘re engaging in ongoing recruitment & if you can show ―adequate recruitment‖ from US sources during prior 5 months (always advertizing & recruiting), then you can dispense w/the particular search & bring person in. Most employers engage in ongoing recruitment. 2. Most jobs are advertized through trade publications: 3. To qualify for RIR, the employer must demonstrate that the application is for an occupation ―for which there is little or no availability,‖that it contains no restrictive reqs & that the job is offered at the prevailing wage & that the employer has conducted adequate recruitment over the 6 months b/f filing the application, using sources ―normal to the occupation & industry.‖ Employers who normally conduct on-going recruitment for multiple openings are best positioned to take advantage of RIR, but ongoing recruitment for a single opening may also qualify. 4. RIR frees employer from participating in the ordinarily mandatory 30 day recruitment under SESA (State Employment Security Agencies) supervision, which can only take place after the application is filed. If SESA forwards the application to the certifying officer as an RIR application, it‘ll receive priority adjudication, which can mean a final decision in a couple of weeks, an enormous advantage, given the significant backlogs in std processing. Ltd Processing Review: Another fast track opportunity available where SESA regards approval as a clear case. d Process for obtaining DOL Certification: 1. Application for labor certification filed by employer w/local Job Service Office. 2. Job Service Office then participates in the attempt to find qualified US workers. 3. The actual determination is made by the regional ―certifying officer‖ who is a federal official of the Employment and Training Administration of the DOL. 4. If the certifying officer determines the application doesn‘t meet the requirements, officer will issue a Notice of Findings–a preliminary determination that the certification should be denied. 5. The employer may then contest the preliminary determination & file additional info or take new steps to meet the objections. 6. If the contest or new steps are unsuccessful, the certifying officer will issue a Final Determination denying certification (20 CFR ss 656.24-656.25).

7. The employer is entitled to administrative review after appropriate request, before a panel of the Bd of Alien Labor Certification Appeals (BALCA) of the DOL (20 CFR 656.2627). 8. After employer has exhausted administrative remedies, judicial review of a labor certification denial is available in Fed Dist Ct under Administrative Procedure Act. e If Certifying officer approves petition for certification: 1. The employer is then responsible for filing the certification w/INS, accompanied by employer‘s visa petition (I140). 2. DOL cert is conclusive regarding labor mkt conditions, but INS is entitled to question alien‘s qualifications for certified job or employer‘s ability to pay stated wage or salary 3. If INS approves visa petition, this is communicated via National Visa Center in New Hampshire to consular office in alien‘s country, where visa is processed. f Calvin Trillin: Making Adjustments (The New Yorker May 28, 1984) 1. The process of getting labor cert amounts to a sort of sham employment offer. 2. If atty drafted job description is skillful, there‘s good chance that no qualified cz will show up. 3. Practitioners use Dictionary of Occupational titles to aid them in drafting job description. It contains 1 par description of every US occupation. 4. Atty tries to give client an occupational title in least crowded field available & then describes the job in a par that sounds like the one listed in DOT for that occupation, but essentially, it describes nobody but the client. 5. Author is implying that if you get a good atty to draft job description, anyone can get a labor cert. g The law regulates the employer’s writing of job description (see 20 C.F.R. 656.21(2) ) (pp 691). ―The employer shall document that the job opportunity has been & is being described w/o unduly restrictive job requirements.” Govt is on to the fact that employers are tailoring job descriptions for particular folks. We‘ll get @ that by prohibiting unduly restrictive job requirements. (1) The job requirements, unless adequately documented as arising from business necessity (shall have these 3 reqs) (1) Shall be those normally required for job in US (2) Shall be those defined in Dictionary of Occupational Titles (DOT) (3) Shall not include requirements for language other than English. This is saying that if you‘re atty representing employer, you‘ll want to be in safe harbor & allege to certifying officer that 2 degrees are always normally required, that it‘s in DOT & not asking for something other than English. If not in safe harbor, can still get job certified by DOL by alleging that there‘s a bus necessity for asking for language other than Eng, asking for 2 degrees etc. What’s bus necessity? who decides? DOL (party w/less info but disinterested) or employer? (self interested, but better info) h Defining the job:

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In the Matter of Information Industries, Inc. (Bd of Alien Labor Certification Appeals, BALCA, 1989). This is DOL‘s ct. 1. Facts: Employer, Information Industries, is nationwide computer consulting business headquartered in CO. Employer seeks to hire technical & professional computer specialist. Job at issue was entitled ―System Engineer‖. The only requirements listed for job was B.S. in engineering & M.S. in computer science. Certifying officer found employer‘s application didn‘t meet requirement of reg on the grounds that 2 degrees is unduly restrictive in violation of 20 CFR 656.21. 2. Phenomenon that reg is trying to regulate is situation where employer has targeted a particular employee & writes job description that can only be filled by that person: The way that you write that is that you write an unduly restrictive description. You take that guy‘s resume & run it through a macro program in computer that would spit out a job requirement that only this guy could fill. The way you regulate this ―collusion‖ is w/reg that say can‘t be unduly restructive. 3. Here 2 degrees was unduly restrictive: The ct is analyzing words ―unduly restrictive job requirements‖ There is safe harbor, but if not under safe harbor, can still get job certified by DOL by alleging there‘s bus necessity. But what is bus necessity? Who decides what bus necessity is? This case answers this question. 4. Diaz test for bus necessity: Bus necessity is something the absence of which would undermine the essence of the bus operation. High std. A bus necessity is one that w/o which, the bus would die. B/c std is so high, DOL is in strong position & can say that unless you can prove that w/o an applicant who has 2 degrees you‘d go bankrupt, then it‘s not bus necessity. You flunk safe harbor & flunk bus necessity. This ct rejects this test. 5. Silva test for bus necessity: Bus necessity is one that tends to contribute or to enhance the efficiency & quality of bus. Very weak. Employer knows best what‘s necc for bus. An interested but high info party is better located than disinterested, but low in connection party. This has been rejected as too lenient. 6. Ct as Solomon balances need for migrant labor w/need to protect US job mkt: ―we hold that to establish bus necessity an employer must demonstrate that job reqs bear a reasonable relationship to the occupation in the context of the employer‘s bus & are essential to perform, in a reasonable manner, the job duties as described by the employer. This std in assuring both that the job‘s reqs bear a reasonable relationship to the occupation & are essential to preform job duties gives appropriate emphasis to the Act‘s presumption that qualified US workers are available‖ (1) The employer has to demonstrate that there is a reasonable relationship b/t job reqs (what the paper ad says) & the occupation (the occupation of being a systems analyst defined

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in DOT: not the individual job os systems analyst in that company in Denver). Objective std. (2) The 2nd thing that employer has to demonstrate is that job reqs are essential for performing in reasonable manner the job duties: Subjective std. What is this guy actually going to have to do as a systems analyst in Denver for AT&T? Do you need 2 degrees for that? The law allows DOL to be final arbiter of core & non core & non core elements of job (although most of your bus won‘t even get into bus necc stuff b/c law heavily favors employers doing what they want). If you put ad for ―golf playing atty‖, DOL has power to say that‘s not essential for job. (3) Here case is remanded & Certifying Officer (CO who will make finding if we‘ll stick to 2 degree requirement– whether 2 degree req is w/in safe harbor. If not w/in safe harbor & not normally required, you need to allege bus necessity using test. In this case, they weren‘t able to get 2 degree requirement in CO, so tried in MI & got it there b/c of local legal culture. (4) Why would the stds of bus necessity, which are universal after Info Industries be diff in Denver than in MI. B/c they prob don‘t apply them. It‘s a lot of discretion. The Competitiveness Act has vastly expanded window of discretion for employers to be opportunists. There is now more local legal culture & less process. The Future of Labor Certification: 1. There is a policy faceoff: On one hand there‘s labor. Labor says we want to protect US jobs. Argument is that if Microsoft find that need to go to India & China to fill these jobs, isn‘t that indictment of US education system. Isn‘t there better long term ways of solving Microsoft‘s short term prob than just filling up jobs up w/people from India & China? Improve US education so that native born US czs fill jobs. Labor says don‘t cater to Microsoft‘s problem in short term. Microsoft‘s argument is that we grow the economy. Info & high tech skills employers make US economy special. We are important & we need workers & we‘ve looked & looked & we‘ve tapped out domestic labor mkt. We need people. 2. DOL audit in 1996 of DOL Cert process: for 24K immigrants, 99% of cert approved were given to aliens that were already in US when application was filed, 74% were working for US employer @ time of application (16% illegally. NIV overstay), 11% never worked for employer after AOS to LPR & 17% left employer w/in 6 mo after attaining LPR (after getting greencard pub policy goal of meeting bus needs fails b/c they bolt). Said DOL cert process is ―perfunctory at best & sham at worst.‖ Internally, DOL had lots of disaffection & Microsoft liked this audit b/c argued to get rid of DOL cert process. 3. 204 (j): pp 81 Brand new act (American Competitiveness Act of 2000). Title is “Job flexibility for long delayed applicants for AOS to Permanent Residence.

Someone who is here is an NIV working for a company & wants to adjust status to greencard, where those papers have been filed & remain unadjudicated for 180 days or more (ALWAYS. never will be processed in less time), that application for AOS shall remain valid w/respect to new job if indiv changes job or employers if new job is in same or similar occupational classification as job for which petition was filed. aa There are those who say that 204(j) is death knell of entire labor cert process: Suppose Alon comes in on H-1B visa from Israel & goes to Wash State to work for Microsoft. After working for while, Microsoft petitions under 203 (b) & 245 to AOS to get greencard. They file papers & 180 days pass. On 181st day, Alon quits, leaves Wash & goes to TX Instruments in TX. There are 2 things that new Act does for someone like Alon (1) H-1B portability stat: B/f this Act, of had H-1B, you were tied to particular employer. If fired from Microsoft, Alon would be Out of Status. Ticket to US was employer specific. New H-1B statute allows Alon to take H-1B visa to TX. (2) 204 (j) allows I-485 petition to filed by Microsoft to be adjudicated. But this screws up DOL cert b/c what it asks is, is there anyone as qualified as Alon in Wash State to do this job for Microsoft. But Alon isn‘t in Wash, so DOL is doing a completely irrelevant inquiry, since Alon is in TX. Whole DOL cert process is wasteful & irrelevant. Policy is that we want high skilled workers, even to pt that we render DOL cert a charade. It opens the door for people to get job in place it‘s easy to get certified & then move to where really want to go. Under 204 (j) once the 180 day processing time is exceeded, the alien can switch to another job or employer in the same or similar occupational classification: The employee‘s taking a new job in a diff region will render irrelevant any protection to US workers provided, by the labor cert, which was premised on a finding that there were no US workers available at the place mentioned on the original application. Also, since prevailing wages are determined by specific geographic mkt, will new employer now be able to pay the lower wage? Exercise pp 377: shows how stat works w/regs. Most of law is in regs: Eric Hall, a Pakistani national is a founder & corporate president of Hall enterprises. Company is engaged in bus of importing & exporting Pakistani furniture, giftware & military spare parts. He is under an E-2 visa (permits aliens to come to US to develop & direct operation of bus in which he has invested tremendous amt of capital) & wants to adjust under 203 as employment pref. Eric & his wife each own 50% of the bus. Four months after establishing company in Maryland, Eric sold 490/500 shares of the company stocks to a 3rd party retaining an option to repurchase. Two weeks later Hall enterprises applied for labor cert for Hall, who was already serving as corporate prez Options for Eric Hall: 1. 203 (B) (I) (priority workers), 1st preference. One of the reasons why this

is good reason to start 1st is b/c DOL cert required. You don‘t need DOL to certify this guy in if he comes in on a 1st preference. Hall may not have an employer to begin petitioning process for him, so 1st place he‘d look would be sub (a) ―Aliens w/extraordinay ability (pp61), which doesn‘t require a job offer, while, sub (b) would. What does it mean extraordinary ability? Regulations (provide more details) 8 CFR 204.5 (557) sub (h) is 1st pref A, sub (i), gives u 1st pref B. Sub (j) is 1st pref C. (1) Sub (h) gives language of what extraordinary ability is. It says when filing I-140, extraordinary ability means a level of expertise indicating that individual is one of small percentage who have risen to top of field of endeavor. Such evidence shall include evid of a one-time achievement that is a major int‘l recognized award, or at least 3 of following (out of list of 10) (be creative in argument). If it turns out that just a business man, then doesn‘t fall under extraordinary ability. 2 Sub (j) multinational executive: in sub (3), it talks abt managers & executives. j 3rd preference category: National Interest Waiver s 203 (b) (2) (B) (pp 62). Here, he has an advanced degree. He also may have problem of finding US employers, so could try NIW. The stat says that AG may when it deems fit to be in nat interest, waive the reqs of sub (a) that an alien services in science, arts . . be sought by employer of US. Can get around needing an employer to petition our guy in, if it‘s in the national interest. Try to demonstrate to INS that letting in alien in nat interest. Don‘t need petitioning employer. NIW is sort of like an essay contest. You try to allege that there‘s something special abt you tthat should let you in. There have been studies, abt range of people they will let in. They will let in an acrobat who can play 2 trumpets while on horseback, but wouldn‘t let in nuclear physicist who had worked on some particular project. There is a bizarre range, that goes back to local legal culture. Stds are very diffuse. The 4 INS centers could 4 (or more diff answers, depending on officer). NIW is not defined in regs 4. Investors as Immigrants (377) Buy Yourself a Visa provision: No regs for 5th employment pref. You need to have a new commercial enterprise (some time after Nov 1990). If you invest $1mil (or lower in target areas & create 10 jobs for cz or LPR (lower in target areas), then can get visa under 5th priority. Policy inappropriately comodifies visa & basically visa for sale provision. If so, is there problem w/that. If it is comodification of visa, is it too cheap? Degree that this fosters corruption is a problem. 1. 203 (b) (5) (5th employment pref, 10K/yr). ii Requires baseline investment of $1mil, but can be reduced to $500K for ―targeted employment areas‖ iii Need to employ at least 10 US czs or LPR, other than applicant’s fam members: iv s 275 (d): criminalizes ―imm related entrepreneurship fraud‖ v All 5th preference aliens & their families receive CPR for 2 yrs (s 216 A, which is closely modeled after 216, the CPR provision for alien spouses). vi s 216 A (d) (1) list criteria must be satisfied when alien petitions to have conditional status removed

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at end of 2-yr period. Asylum: As a matter of shame after WWII when US turned away Jewish kids b/c over quota & kids ended up dead in concentration camps. US, as a matter of policy decided not to let this occur again. (2) Form I-589: Application for asylum and withholding removal. Parole: (3) Being admitted provisionally (1) Example: person sick & needs to get to hospital in US. Medical immigrants (not legally admitted to US, but OK to get medical care, then must leave) (2) Is parole form of assylum? 1. Noble Action? (aa) worried that medical immigrants will become public charge (bb) obligation b/c we‘re a wealthy country. ii Need to regulate? (aa) To avoid bribes & deliberate abuses of parole power. Undocumented Migrants: (1) Entry w/o inspection (EWI) (1) No affirmative obligation of CZ to report EWI to INS: (2) But employers have affirmative obligation to not hire EWI 1. I-9: Employment Eligibility Verification (3) Incentive for EWIs to leave by penalizing them w/not being eligible for visa or admission: 1. 212 (a) (9) (A) (i): aliens previously removed who seek admission w/in 5 yrs of date of such removal or w/in 20 yrs in case of 2nd removal, or @ any time in case of alien convicted of aggravate felony is inadmissible 2. 212 (a) (9) (B) (i) (I) aliens unlawfully present in US for period of more than 180 days, but less than 1 yr, voluntarily departed prior to commencement of proceedings & again seeks readmission w/in 3 yrs of date of such alien‘s departure [incentive to voluntarily depart vs going through deportation proceedings–> get 3 yrs v 10 yrs] 3. 212 (a) (9) (B) (i) (II) an alien who has been unlawfully present in US for 1 yr or more who seeks readmission w/in 10 yrs of the date of such alien‘s departure is inadmissible. (4) No incentive for EWIs to register w/INS: (5) EWIs violate administrative law, not violation of criminal code, but ―coyotes‖–paid person to aid in crossing US/Mex border are subject to criminal penalties. NIV overstayers: 1. An NIV who stays after date authorized to be in US 2. Estimated that 40% of today’s undocumented population is attributed to expired visas 1. Student visas 2. Tourist visas Proposal to Reform the Legal Immigration System: A US Commission on Immigration Reform, Becoming an American: Immigration & Immigrant Policy (1997 Report to Cong) p 379 1. Commission urges reforms in legal immigration syst to enhance benefits accruing from entry of newcomers, while guarding against harms, particularly to most vulnerable US resident-unskilled & poor 1. A significant redefinition of priorities & reallocation of existing admission #s to fulfill more

effectively the objectives of our immigration policy. (1) The statutory & regulation priorities & procedures for admissions don’t support stated intentions: to reunify families, to provide employers opportunity to recruit foreigners to meet labor needs & respond to humanitarian crises around the world. 2. Commission recommends that current immigration levels should be sustained for next several yrs while US revamps its legal immigration system & shifts priorities for admission away from extended family & toward nuclear fam & away from unskilled & toward higher skilled workers. 3. After system is revamped, a modest reduction in immigration to about 550K/yr will result (comparable to those of 1980's) 4. Commission believes that admission #s should be authorized by Cong for a specified time (e.g. 3-5 yrs) to ensure regular, periodic changes if needed. Should consider economic & other domestic needs & capacities of US to absorb newcommers. 5. Recommends allocation of 550K family-based admission #s each year until the large backlog of spouses & minor children of of CZ & LPR are cleared. #s of visas going to lower priority categories (e.g. adult children, siblings, & diversity) should be transferred to the nuclear fam categories. The national interest in entry of nuclear fam members outweighs that of more extended fam members. 6. A particular concern is the ―aging out‖ of children who were minor at time of application, but who turned 21 while awaiting their green cards. Commission proposed that INA be amended so that person entitled to status at time of petition is approved shall be entitled to that status regardless of age. 7. Commission recommends that we eliminate category for admission of unskilled workers & have skill based admission policy, w/particular preference to those w/advanced degrees. Immigrants should be chosen on basis they contribute to US economy. 8. Only if there‘s a compelling national interest, such as nuclear fam reunification, or humanitarian admissions, should immigrants be admitted w/o regard to economic contributions they can make. 9. Immigration of unskilled immigrants comes @ a cost to unskilled US workers, particularly established immigrants for whom new immigrants are economic substitutes. 10. Commission’s framework for skills based admissions included 2 broad categories: (1) Individuals who are exempt from labor mkt tests b/c their entry will generate economic growth & significantly enhance US cultural strength w/o undermining employment prospects of US workers: xtraordinary ability, multinational executives & managers,

entrepreneurs & ministers & religious workers. (2) Individuals subject to mkt tests: professionals w/advanced degrees, professionals w/BS/BS & skilled workers w/specicialized work experience k Counter Policy Argument: Family reunification based immigration policy recognizes that families serve as buffers & mediators b/t indiv immigrant & host environment. Families are the facilitator of immigrant‘s social, economic & political integration & enhance immigrant‘s ability to make a successful transition. 2. Vernon M. Briggs: Mass Immigration & National Interest: 383 1. Keeping fam-reunification system means that human capital attributes not involved in entry decision for vast majority of people admitted: 2. Emphasis on fam reunification ensures that new immigrants settle in same geographic labor mkts as their relatives, making kinship, rather than labor mkt needs the major basis for settlement. 3. Labor mkt demands skills & educational achievement. Unskilled & poorly educated workers are increasing, partly due to immigration, with their unemployment rates being double the national rate. There is absolutely no shortage of unskilled workers. 4. Immigration reform should address issue of inflexibility in current system: Economic circumstances can & do change & the legislature setting the immigration levels doesn‘t allow for the # of immigrants to fluctuate from yr to yr. Cong should set an overall ceiling that embraces all forms of immigration & which couldn‘t be exceeded annually. No carry over of unused visas should be allowed. 5. The actual immigration #s should be set annually by agency of executive branch: allows flexibility. 6. Primary objective: Flexible policy to admit primary persons who can fill the job vacancies for which qualified czs & aliens are not available The # of immigrants admitted should be far fewer than # actually needed. 7. Entry should be restricted to skilled or educated immigrants b/c US already has abundance of unskilled or poorly prepared would-be workers. 2. General policy push on Imm visas: is to move resources away from families & toward employment. Our funds are ltd & can‘t give visas to everybody, so we‘d rather give the visa to person who‘s going to grow economy. Should allocate visa resources for high skilled vs low skilled folks b/c high skilled crowd grows economy better. Visa Application process for aliens outside US (see nutshell 131) After approval of labor cert & preference petition, the actual visa application process begins for alien who resides outside US. Process takes place at US consulate. If CO approves, a visa is issued valid for 4 months (can‘t be extended). If CO rejects, review goes to principal consular officer, b ut no formal review available after that. See 22

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CFR 42.81. Once immigrant arrives in US, an imm officer examines alien visa‘s eligibility. If inadmissible, officer may commence removal of the alien, in spite of the visa. See 221 (h). If admissible, visa is retained by INS as perm record of admission & alien is issued Form I-551 (Green Card)& becomes LPR. Green Cards are pink. Non-Immigrants: NIV 1 Definition: Alien applicant who seeks entry to US for specific purpose to be accomplished during a temporary stay. Come into US w/alleged intention of leaving. NIV categories are found in 101 (a) (15) (in the defn section for defn of immigrant). An immigrant is someone who comes to stay & get his green card (pp 15-28 read them) a A: Ambassador b B: Visitors for bus or pleasure c E: Treaty Investors d F: Student. F-1 for academic student. F-2 for Spouse & kids. Granted for duration of time as student, or time necc to complete course of study. e H: Employees of firms & seasonal agricultural & temporary workers & nurses. Fixed limits for H-1B & H-2B. Designed to help employers meet an immediate & temporary need for labor. f J: Exchange scholars. g L: Intercompany transferees. h M: vocational students i O: Sammy Sosa. Extraordinary athletes. J P: Performers, artists & entertainers k R: Religious workers l S: Snitch, folks cooperating w/govt in crim investigations. m T T, U, & V are people who could be deported/excluded/removed , but for pub policy problem w/that. T is victims of human trafficking scams. People who are brought into US for slave labor used to be deportable, but not anymore. Gives legal rt to stay here. n U: victims of domestic abuse p V Wating in line. For those who have filed legitimate application for fam based visa. The Legal Immigrant Family Equity Act (LIFE Act) created V visas to allow the admission of spouses & minor kids of LPRs who have been waiting more than 3 yrs for their own LPR status. 2 INA s 214. Admission of non-immigrants: i Presumption of immigrant status: s 214 (b) Every alien (except for H, L V) shalll be presumed to be an immigrant until he established to satisfaction of the CO @ DOS at time of application for visa that he‘s entitled to nonimmigrant status under 101 (a) (15). When consular looks at you, he presumes you‘re an immigrant until you prove to them that you‘re a nonimmigrant & reason why that showing is important is b/c nonimmigrant visa is easier to get. Culture of suspicion. If you say Hi I want to go to US for temp period, they think that you‘re trying to go there forever. ii Statute places no fixed numerical limits on nonimmigrants, except for H-1B & H-2B categories iii Control over non-immigrant admissions is maintained by applying qualitative requirements for each category & inadmissability grounds in s 212 (a) (excludable aliens). iv Most important req for non immigrant status is: alien has residence in foreign country which he/she has no intention of abandoning. v State Dept Consular officers determine whether person is bonafide non immigrant, particularly in countries w/high incidence of visa abuse vi Fear that alien may not be bonafide nonimmigrant b/c intends to seek

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LPR status by marriage, or remain beyond expiration date of authorized stay (constitutes 40% of undocumented population). vii Not bonafide non immigrant if intention from beginning is to remain in US permanently  In Matter of Hosseinpour: ― a desire to remain in this country permanently in accordance w/the law, should the opportunity to do so present itself is not necessarily inconsistent w/lawful nonimmigrant status (Dual intent doc). Gen Procedure:  1st Route: Apply for non-immigrant visa at visa consulate office overseas; visa serves to authorize travel to US in order to apply for admission at pt of entry, but doesn‘t guarantee admission if imm officer at border finds that alien is not entitled to enter.  The admission docs show the category of visa & expiration date. nd  2 Route: apply for change to diff non imm status under INA s 248 for non immigrant who‘s been lawfully admitted. Use of intent requirement: It appears for some NIVs & not for others & it‘s significant where it appears & where it doesn‘t. This is the intent doctrine. Immigrant needs to make a showing to consulate that has residence in foreign country that you have no intent of abandoning.  B visa: most commonly used NIV. S 101 (a) (15) (B): ―an alien having a residence in a foreign country which he has no intention of abandoning (intent doctrine/dual intent doctrine) & is visiting in US temporarily for business or pleasure.‖ If you‘re in line at consular office in Bulgaria & you say I want B visa, this language gives the CO at DOS the power to do a searching inquiry about your motivation, depending entirely on his or her discretion. They can ask for proof that you have residence, or they may not. It depends. Young men appear more threatening & suspicious so get more searching inquiry there, also racial bias.  Note where it doesn’t appear: Good immigrant/bad immigrant theme. Doesn‘t appear for H-1B, L, E. Intent language doesn‘t occur. Written into the stat is a provision that allows DOS to exercise more discretion, & exercise of discretion occurs in high risk or low desireable category, such as H-2. Where there‘s intent language, those are folks that are less desireble (F, H-2, B) than when language doesn‘t occur.  214 (h) Intention to Abandon Foreign Residence (pp171) The fact that an alien is the beneficiary of an application for preference filed under 204 (someone who‘s in US as NIV & simultaneously standing in line for greencard) or has otherwise sought permanent residence, that fact shall not constitute evidence of an intention to abandon foreign residence for purposes of obtaining visa as non immigrant described in sub (H), (L) & (V) of s 101 (a) (15). Not only does intent language not occur for H, L, & V, but you could also deliberately, manifestly intend to come to US to stay if H, L & V & that would be OK. Your client, depending on his goals may find these visas more attractive b/c you avoid DOS‘s inquiry & b/c of 214 (h). So where you can avoid the B, & go w/H, it‘s better for client. Tables on pp 388-89: Present the #s of visa issuances & visa admissions  What’s diff b/t issuances & admissions? There are multiple entries on a given visa  Almost 5 million B visas: The closest # is the F visa.  Being OOS & violating your visa: You become undocumented. Most of attention of undocumented is on EWI, but also NIV overstays. They entered legally & become undocumented migrants. It‘s abt 50/50 split b/t those. Now after Sept 11, focus shifted to NIV overstays.

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There are no quotas except for H-1B & H-2B: H-2B is business but not technical Facts: You‘ve got 2 corporate entities, Shoshi Productions, Inc (SPI), a Jap corp based in Tokyo which manufactures computer microchips. The 2nd one is its subsidiary, Shoshi Foreign Distributions (SFD) is responsible for selling & distributing the parents‘ products outside Japan (foreign distributor). There is an engineer (high education) (H), VP (not much education but has knowledge of industry/corp (L), W of VP who‘s a violinist & older child & younger child, Canadian Architects & Delegation to scout for office site, start-up sales staff. What NIVs apply? Can I get the better NIVs. Can I assume that they‘re interested in staying & converting to green card 1. Engineer: (H) He has formal education & licence or otherwise qualified. Need US entity to file petition & need to do LCA. Could also get him in on an E If on B, could get him in, but couldn‘t preform labor. 2. VP: (L) Doesn‘t have formal education, but does have firm specific knowledge 3. Violinist could get in on an O, extraordinary ability. There are also trailer visas, for spouse/dep of primary visa getter, such as H-4 or L-2 or E-2. Can study but not work. What happens if she does work? Local legal culture would say that it has not been the sort of thing that‘s violation of status that would lead to deportation proceeding, but may make them unavailable for AOS. 4. Kids: there‘s an F category or prospective student annotation for B visa or trailer visa. 5. Canadian Architect: Could try H-2B category (pp 21). It‘s the temporary worker doing temporary work visa. If the immigration transaction (the merger)created the work, then its legit to bring in immigrants to do it. If it‘s work that‘s always around the domestic mkt, you need to overcome the assumption in favor of hiring domestic workers. Also try TN. 6. Delegation to search for new office: Could look at H-1B, is this job a specialized occupation under 214 (i), which requires specialty knowledge? Some could argue yes, but others would argue no. The L is easier of a sell. Need to argue that client renders services in capacity of managerial executive, which involves specialized knowledge. Specialized knowledge is firm specific. People who know this firm will know what building will accentuate the culture of firm. Could try the E. The last thing to look at is B, but they could not engage in labor. 7. Start up sale staff: Is this a specialty occupation for H? Could argue L, does knowlege about retail sales of product constitute specialized knowledge? Could try H-2B, but H-2B has DOL cert process. Diff b/t DOL Cert & LCA: 1. H-1B has to file LCA: You file piece of paper w/DOL & get receipt. Potentially there‘s possibility of liability. It‘s a unilateral affidavit. If you violate terms of unilateral affidavit, labor has piece of paper they could potentially act on. 2. H-2B has to go DOL Cert route: File piece of paper w/DOL & wait for DOL to do something abt it. The L doesn‘t need to file a DOL cert, but there is no LCA required. That‘s for the H. v Group that wants to “drum up business & seek out US engineers”: It is possible to not qualify for one of these visas. Not eligible for L, H, maybe under B. Are they essential for the business? If it‘s labor then, no. H visa: (p21 of INA) form I-129 is form for H & L. 1. H-1C: New category for nurses. Allows temporary admission of no more than 500 nurses/yr for a max stay of 3 yrs & only when they are employed in a Health Professional Shortage Area. a H-2A: (season & agricultural worker):

Need DOL cert. This body of law connects up w/employment law regarding working conditions, compensation for overtime. Law in books v law in action. But not really followed. Just visit migrant camp. In book it says that lots of H-2As don‘t go to West & SW. Most of them along East coast & Wash state, this is b/c undocumented migrants work there. The pop that has H-2A & undocumented migrants are very much same population. ii INS & the DOL have published regs meant to streamline H2A processing, primarily by assigning to DOL responsibility formerly held by INS to adjudicate the employer’s petition for temporary agricultural workers. Formerly such a petition was filed separately w/INS after the employer received labor certification from DOL. Under the regs, the employer will therefore file a single packet of materials w/fee w/DOL Abt 25K to 35K H-2A visas are issued each yr. 2. H-2B: Known in industry as ―temp temps‖ They are temporary workers performing temporary services. It‘s someone who‘s temporarily here to do a temporary job. For example in Shoshi, a startup sales staff, or staff that‘s here for ltd time to find engineers & train them & then return to Japan. Admitted for up to a yr w/1 yr xtensions for max of 3 yrs. There‘s a 66K cap. Need DOL cert. Period of time for temp job must be 1 yr or less & the need must be a ―one time occurrence‖, or an :intermittent need.‖ 3. H-1B: (specialty occupation) This is distinguished from L, which is specialized knowledge. Emphasis on education. Needs a BA/BS or higher. This leaves out people who are functionally technical workers, but not degree. There is also an equivalency test. No labor cert required but employer needs to make an attestation, a LCA (s 212 (n) pp 139). LCA stands for Labor Condition application. LCA doesn‘t involve DOL. It is a unilateral stmt by employer that says I recruited US workers, posted a job listing, will pay prevailing wage. Can be admitted for 3 yrs initially, extendable to max of 6 hrs. 1. ―Specialty occupation” defined: need theoretical & practical application if a body of highly specialized knowledge (stuff you‘d need a degree/licence for) & attainment of bachelor‘s or higher. Also must show qualification to work in particular field by (1) licensure to practice in occupation, (2)completion of degree or experience in the specialty equivalent to completion of such degree. 2. There is no temporary requirement for job: Can be permanent job 3. Initial allotment is 3 yrs, but can get extension for up to 6 yrs: The new revisions to the H-1B Act (AC21) provides an extension beyond 6 yrs when request for labor cert & AOS (to obtain LPR in 1 of the EB categories has been pending for more than 365 days. 4. Right now, cap is 195K: It‘s 195K for FY 01, 02, & 03 & reverts to 65K in 04. The American Competitiveness in the 21st Century Act (AC21) exempts people who work for colleges, Universities or nonprofit research orgs from the cap. Also increased employer‘s fee from $500 to $1K. AC21 also allows for H-1B portability, which allows someone previously granted H-1B status to begin working for a new employer upon that employer‘s filing of a non-frivolous H-1B petition rather than having to wait for INS approval of the new petition. 5. Need US entity to initiate proceedings 6. No intent req & can have manifest & express intent to come to US to stay (intention is manifested by filing for LPR) The notion of NIC is that only here temporary. For H, L, &V, that‘s expressly acknowledged that that‘s not true (dual intent). No req of having foreign res w/no intent of abandoning. Can come to US as H & at same time

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lawfully seeks to become LPR 7. LCA states that job‘s being offered at prevailing wage or actual wage paid to similar individuals (whichever is greater) & will provide working conditions fot the alien that will not adversely affect working conditions or similarly employed workers. Rules don‘t require that employer undertake recruitment efforts in US O visa: These are aliens w/extraordinary ability, such as athletes. No numerical limit. For O-1 category (Sammy Sosa), no intent language. This is an implicit invitation. (O-3 for spouse) i Extraordinary ability is demonstrated by sustained national & international acclaim in the sciences, arts, business or athletics. ii The alien must seek entry in work in his/her area of expertise. & AG must detmermine that alien’s entry will result in substantial prospective benefit to US. L visa: Intra company transferees (w/in same company). Initially designed to allow US corporation w/foreign office to bring in people from foreign office to US. Now used by foreign corporations to transfer foreign nationals to oversee work at US branch. Shoshi pattern is obvious example. There‘s no intent language. Original allotment is 1-3 yrs, but extendable to up to 7 yrs. i Specialized Knowledge: s 214 (c) (2) (B) (pp 162). An alien is considered to be serving in capacity involving specialized knowledge w/respect to a company if alien has a special knowledge of company product & its application in international mkts & has an advanced level of knowledge of processes & procedures of company. B/c L is abt intracompany transferees, it‘s hallmark is your knowledge of the firm ii For H, the body of knowledge is portable. I know engineering! For L it’s not: For L it‘s I know Toyota. I know culture, product, procedure in int‘l mkt. If you took me out of Toyota, I‘d have less value, b/c I don‘t know Honda. iii This would be Soshi VP: If he began working 10 yrs ago in sales, has no degree, worked his way up, gets an L. iv Must render his services in a capacity that’s managerial, executive or involves specialized knowledge: Managerial & exec defined in 101 (a) (44). v Alien seeking L classification must have been employed by sponsoring firm at least 1 yr w/in the 3 yrs preceding date of application: vi Stat doesn’t exclude sole proprietorships & partnerships from using L visas to bring personnel into US: Large Corps can submit blanket L petitions if meet reqs regarding size & prior L-1 usage. See 214 (c) (2) (A). vii May be granted stay up to 1-3 yrs, extendable to max of 7 yrs from managers & exec & 5 yrs for those w/‖specialized knowledge.‖ E visa: Treaty Trader/Treaty investor: i Has advantages over others b/c it’s extendable indefinitely (as long as alien continues in same activities for which visa was granted). No intention language. No sponsoring entity needed. Admitted for 1 yr initially w/2 yr extension for as many times necc. ii But need qualifying treaty w/states. This is where DOS reciprocity comes in. The prototypical language that would be in treaty like this would be something like FCN treaty w/Jap (pp402) that would qualify someone for E visa. These non immigrants enter US pursuant to treaties of commerce existing b/t US & the alien‘s country. Aliens from countries lacking as treaty w/US are still eligible for E status if that country grants reciprocal benefits to US nationals.

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E-1 visas are for treaty traders & their spouses& kids & E-2 visas are for treaty investors & their spouses & kids: Also allows certain managers, executives or employees possessing essential skills who work for the org to be admitted as E w/their families. iv Need to be entering US to engage in substantial trade in goods & services: (NS.140 B visa: B-1 (visitors for Bus purposes) & B-2 (visitors for pleasure). More than ½ of the trade must be b/t US & treaty country. 1. Largest #, but least useful: Often issued when alien doesn‘t fit into any of the other nonimmigrant business categories. Covers wide range of bus activities such as: (provided that alien receives no salary from US source other than reimbursement for expenses incident to the temporary stay) missionaries, aliens coming to US to attend executive seminar, aliens seeking investment which , aliens coming to open a new branc, foreign sports teams. 2. B visa holders can’t work. Statute excludes them. Stat excludes them from coming for purpose of study, or performing skilled or unskilled labor (H,L) or as representative of film, press, media who is coming in temporarily can‘t work.‖ Business does not include local employment or labor for hire. If work for Fr law firm & they send you here to do a closing, you‘re on a B-1. You‘re doing business, but not labor. In bricklayer case, Germ firm had to build a plant in CA & sent their own engineers to build a physical structure & labor union sued saying these guys are on B-1 doing labor & Unions won. It‘s not labor if it‘s a necessary incident to international commerce (building a structure is not, but doing the closing is). 3. Both B-1 & B-2 (or B-1/B-2 dual purpose) visas are valid for 1 yr & are renewable in 5 mo increments: An advantage of the B is that the alien initiates the process overseas & no petition on his behalf needs to be filed w/INS in the US. No labor cert. NAFTA: Not immigration law, but trade law. NAFTA is a separate administrative structure. A party that‘s ineligible for entry, or have substantial obstacle for entry under immigration law, may have access to entry under NAFTA. NAFTA has made, in some sectors, border crossings more regularized (it made some Mexican border crossings more like all Canadian border crossings–bus sector of Mex who does bus in US has more access to border crossings). Fox wants NAFTA to be EU of Americas. Argument against is that a common mkt of the Americas means a bigger US i Provides for TN visa for professionals:. Similar to H-1B. Canadian czs don‘t need to file a labor attestation or preliminary cap w/INS. Also not subject to H-1B cap. Mexican TN nonimmigranants limited to 5,500 annually. Reform Proposal for Temporary Admissions Programs. “U.S. Commission on Immigration Reform (CIR), Becoming an American: Immigration & Immigrant Policy: Recommended that NIVs should be exempt from DOL process, NIVs should be consolidated in some degree w/fewer categories. Prior to Sept 11, there wasn‘t nearly so much disaffection w/NIV as w/EWI. Summary of Procedure for what happens by whom & when? When DOL cert or LCA is required, must file w/DOL. If DOL cert required, there‘s a labor certification process. which is specified under 203 (b), which is presented to DOL for consideration. If its adjudication is favorable, or no adjudication is required, then the next step is a visa petition, which can be presented by US employer, fam member, immigrant herself, where you file w/INS for visa petition (the INS examiner).. The next step is in DOS consulate‘s office in sending country. In Bulgaria, you stand in line & talk to someone who works for US govt in Bulgaria. Visa is issued or not & you are subject to inadmissibility criteria under 212 (a). If you pass that, you have your visa at hand & go to

IV

border & you‘re checked out again by someone who works for DOJ. And you‘re either admitted in or you‘re not. If you‘re not, you‘re subject to one of the varieties of removal. And you‘re either dealing w/someone from Border Patrol (lots of power) or Imm Judges, who do formal removal proceedings. Jordan Commission: pp 420. Change non-imm categories. Less categories, more audits & protection for US workers including checking recruiting efforts in US. Inadmissibility: All aliens who seek admission to US must 1st fit themselves into one of qualifying Non-imm or imm categories. But they must also avoid any determination of inadmissibility under 212 (a). Section 212 (a) lists classes of aliens who are ineligible to receive visas & ineligible to be admitted to US. In admissibility criteria applied both by CO considering issuance of visa, but INS inspector at border or port of entry has full authority to consider anew all admissibility grounds, even if alien bears a visa issued b y a consul. See 221 (h). Also, an alien already in US who seeks to become an LPR must be ―admissible‖ See 245 (a). After 1996, exclusion grounds are now called inadmissibility grounds. There are still separate grounds of inadmissibility & deportability in s 212 (a) & 237 (a), but distinction no longer turns on whether an alien has entered. Rather, the key ? is whether an alien has been admitted or seeking admission. See defn for admission in s. 101 (a). Admission occurs when the alien qualifies for imm or non-imm admission category & no inadmissibility ground applies (or she secures a waiver). 1 Intro: Crimes, immigration control, fraud, national security 1. The place to start is 212 (a): (pp 103): Read actively 212 (a). Looks like Crim stat of Gen stmt, exception to Gen stmt & waiver of whole thing. As an atty for imm w/inadmissibility probs u want to define client out of stat or get it waived. (1) 212 (a) (1): Health Related Grounds: Why can‘t my client get in? B/c she has AIDS. (2) 212 (a) lists the classes of inadmissibility: Health related grounds, criminal related grounds, Security & related grounds, Public Charge, if need labor cert & don‘t have one, illegal immigrants, document fraud, aliens previously removed (3 & 10 yr bars), practicing polygamy (any imm coming to US to practice polygamy), (3) After the 212 (a), the balance of s 212 is essentially the language regarding waiver: For example for 212 (h), it empowers AG to waive certain crim offenses. S. 212 is a discretionary waiver for AG. Discretionary waiver is a contrast to waiver as of rt. A waiver as of rt is a matter of defn–> if you can prove that your client is w/in 4 corners of what‘s laid out in stat, you have rt to waiver. If it‘s discretionary waiver (in 212), you say to AG, I under stand that client has committed crime & inadmissible under 212 (a) (1), but 212 (h) says that might get waiver, so here‘s my package of evidence Mr. INS examiner (non lawyer, non judicial officer imbibed in culture of suspicion). We‘re w/in 4 corners of discretionary waiver, now please give us waiver, it‘s up to you. Depending on where you are & local legal culture, chances will vary across country w/varying set facts (4) 212 (a) (9), very Draconian measure for people who are unlawfully present in US: For people who are unlawfully present in US for period of time of 180 days & less than yr, will be inadmissible for 3 yrs. For over a yr, will be inadmissible for 10 yrs. Creates incentive structure for undocumented to leave. But basic pub pol problem w/undocumented, is how do we get them to leave. It‘s too costly to investigate, prosecute & remove everybody, so want to create incentive structure so that people don‘t come into US illegally, or we want to reach people in US who are here w/o papers & create incentive for them to leave. If you‘re here on 179th day, you still have a chance to get out & avoid 3 yr bar. If you‘re here on 364th day, can get out & avoid 10 yr ban, so it‘s your incentive to leave. More effective for NIV than EWI. (5) 212 (d) (3): (pp 125) gives INS discretionary power to waive most inadmissibility grounds for NIV: Std is if client is NIV, concentric circle here works to advantage of NIV. For LPR, the naturalization std for things such as

good moral character are much more exacting than NIV. A good deal of 212 (a) inadmisibility criteria which would nail your client if LPR can be waived for NIV. Shows that US lacks commitment to NIV, b/c they are not permanent members of community. We let them in easily & allow stuff that would have stopped you w/LPR (b/c here for ltd time), but you get for what you pay for. (Except H &L, who we want to come & stay forever). Losing arguments though for discretionary waiver, is ―my client is a terrorist, but he‘s just an NIV‖ (6) Problems pp 429: 1. Your client, A, qualifies for the family-sponsored first preference (married son or daughter of cz), but was convicted of petty larceny 7 yrs ago & was sent to prison for 3 months. Is A inadmissible? 1. 212 (a) (2) (i) (I) & (II): In general, any alien convicted of or who admits having committed or admits committing acts which constitute essential elements of (1) a crime involving moral turpitude (other than purely political offense) or an attempt or conspiracy to commit such a crime, or (2) a violation of (or a conspiracy to attempt to violate) any regulation of a state or foreign country relating to a controlled substance, is inadmissible. Ther e is a 3 step danc e that‘s goin g on: Elements: 1st thing you want to try to do is argue that your client is outside the elements–no drug offense here & not crime of moral turpitude, so it doesn‘t apply. Exception: If don‘t prevail on elements argument, then next argue that w/in we‘re w/in the exception Waiver: If don‘t prevail on exception, seek waiver. First, is larceny a crime involving moral turpitude? moral turpitude is an attempt to discern if by this particular crime, there is something bad about this person. The logic is if they‘re a person of this type, then they are someone who‘ll do it again. As imm atty, you‘d want to downplay what he did. Stress the word ―petty‖, but probably won‘t prevail b/c it‘s a deliberate theft. It doesn‘t have to be a felony, just a ―crime‖ of moral turp. Some crimes that involve moral turp include: 1. Voluntary manslaughter 2. Involuntary manslaughter 3. Breaking & entering 4. Tax evasion 5. Possessing stolen prop 6. Aiding alien to enter unlawfully -

ii

iii

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7. Consensual heterosexual anal intercourse 8. Making false stmt on FAFSA stmt 9. Possession of altered imm doc. If lose on “it’s not moral turp” argument, our next stop is to get our client inside the exceptions of par (ii): for someone who committed only one crime (you want to make sure this is only crime in rap sheet), if (1) he was under 18 when committed it & it was more than 5 yrs ago (could argue that it was youthful fault. INS will argue that that act tells us something that your client is kind of guy who will do something bad so inadmissible on that basis. You want to say that act was long act ago done by a kid & things have changed), or (2) it was light crime w/light sentence. Max pen possible for crime was 1 yr or less & that sentence imposes was 6 months or less (combination of what legis & judge said), regardless of time served. What if there were 2 counts of Petty Larceny, not one? 212 (a) (2) (B) dealing w/multiple conviction makes inadmissible anyone convicted of 2 or more offenses, regardless if both arose out of single scheme of conduct & regardless of whether the offenses involved moral turpitude, for which aggregate sentences to confinement were 5 yrs or more is inadmissible. We need to know what judge said was 5 yrs or more. Also the exception in 212 (a) (2) (A) (iii) doesn‘t apply. What if it’s a more serious crime, of Grand Theft? You are definitely w/in elements of offense, so nailed there. If only 1 crime, could argue first exception (client‘s 1st offense that happened long ago but things have changed), but won‘t be able to argue light crime, light sentence. Waivers for Crimes inadmissibility category is in 212 (h) (pp 129): you must show that you fall w/in the waiver & then appeal to discretion of INS. It‘s not waiver of rt. As far as it relates to single offense of possession of 30 grams or less of pot, if it was long time ago (15 yrs b/f date of alien‘s application for visa, admission or AOS) or if offense was prostitution or commercialized vice under (D) (i) or (ii), or the alien has been rehabed , or the admission of the alien to US would not be contrary to national welfare, safety & security of US. Note that this is discretionary waiver. The other thing to note about it is taking a look at extreme hardship of a citizen. You have to allege that person you‘re trying to get in is Spouse, parent or daughter of US cz & that denial of admission would result in extreme hardship to cz (locus of rts is in cz, not client). No waiver will be provided for: (1) alien convicted of murder or crim acts involving torture or an attempt or conspiracy to commit murder or crim act involving torture. (2) No waiver shall be granted to LPR if convicted of aggravated felony (drunk driving is aggravated felony) (3) There shall be no waiver for someone who has committed aggravated felony.

No ct shall have jurisdiction to review a decision of AG to grant/deny waiver under this subsection 3. C, a native & cz of Dominican Rep has been a lawful permanent resident of US for 25 yrs. In 1974, he was convicted of sexual abuse of a minor (stat rape) receiving a suspended sentence, He had a spotless crim record thereafter, now married to US cz & has 3 cz kids. In April 1997, took 2 week trip to Dom Rep. Upon his return, is he inadmissible? Are any waivers available? Brings in the Fleuti doctrine. See 101 (a) (13) (C) (v). 1. LPRs have certain rts that NIVs don‘t have & have smaller package of rts than czs have. However, when LPR leaves US, where that leaving is interpreted to be a ―real interruption‖ of their being (citizens in training), it is possible that they can be restarted at ground zero & there can be a searching inquiry into whether can be readmitted. Fleuti (1963) created a judicial carve out of this notion that LPRs have to be restarted. Fleuti said that where the trip was ―innocent & brief‖ (e.g. they weren‘t leaving so they could join German army & fight against US in WWII), then US can‘t restart the LPR (the LPR has rt to come back & resume status as if never left. Fleuti Doctrine was codified in 101 (a) (13). 2. 101 (a) (13) (pp 18). If you leave US & come back, the legal ? is are you seeking admission, b/c if you‘re seeking admission, all of the admissibility & inadmissibility criteria apply. What this definitional stat tells us is that you‘re not seeking admission if you‘re for example out of US for less than 180 days. If you come back & say only gone for 2 weeks, you‘re not seeking admission & US had no authority to preform an inadmissibility review b/c not seeking admission. You can‘t render me inadmissible, b/c I‘m not even seeking admission (it‘s a Fleuti departure), BUT in sub (vi) it says if at any time in past, person has committed a crime, then you are seeking readmission. That burns C (new 1996 amendment). 1. How does new 1996 amendment carve out Fleuti? Under this set of facts, the 1st question is, does Fleuti apply? If it does, then it defines this guy as noninadmissible b/c he‘s not seeking admission. The cts are spit. There‘s a BIA opinion that holds that C is seeking admission, so inadmissibility categories can apply to him & Fed ct has said that IJ has the option to do a Fleuti showing that the departure was not intended to be destructive of LPR status (if guy was removable b/f he left, then he should have been removed & if only reason he‘s being removed is b/c he left the country, then need to show connection b/t him leaving & trying to return & his status of removability & you can‘t b/c all you used departure & return for was an administrative trap. The fact that this guy left country & tried to return is basically irrelevant for status as removable candidate. 2. Some of the opinions say that Fleuti survives & that Fleuti allows IJ to hear evidence about the nature of the trip, but one thinks that if there will be a Sup. Ct case on this, they will look to plain language of INA & say that’s not what sub (v) says: Immigration Control: 3 & 10 yr ban. From 1996 Act. 212 (a) (6) & (a) (9): meaning

2

authorizing INS to punish by removing people who are undocumented or who have entered w/o documents or who have overstayed their documents. And an attempt to shape undocumented incentives so that they leave on their own. These sections are somewhat incoherent when read together b/c 212 (a) (9) was added later. 1. 212 (a) (6) (Illegal Entrants & Immigration Violators) was THE stat for undocumented up to 1996: It basically authorizes INS to remove undocumenteds. Prior to 1996, the way of dealing w/undocumenteds was to remove them. You give INS some authority for which to remove them. 212 (a) (6) authorized govt to remove undocumenteds. 1. 212 (a) (6) (A) says that if you come to the attention of the authority & you have never been admitted or paroled, then you’re inadmissible, the grounds for deportation hearing: note this only applied to EWI b/c NIV overstayer is present in US, but was admitted. The similar section that applies to NIV overstayer is 222 (g) (pp 219) (voidness of NIV for stay beyond authorized period). If you have an expired NIV, either you have to go home & get it renewed or show extraordinary circumstances. 2. 212 (a) (9) (the big stick in 1996): here we have the 3 & 10 yr ban. The jury is still out on how fair it is & how effective it is. (1) 212 (a) (9) (A) (i) says that if you were ordered removed upon arrival you are inadmissible for 5 yrs & if you try again & again are ordered removed, for 20 yrs you’re inadmissible. Also, if alien convicted of aggravated felony, don‘t come back for 20 yrs. (2) 212 (a) (90 (A) (ii) says that if you’re ordered removed AFTER admission (under 240), or you voluntarily departed while order of removal was outstanding (there are legal advantages of leaving the country b/f you’re forcible put on plane or boat by INS)., you’re inadmissible for 10 yrs if 1st time or 20 yrs, if subsequent removal: (3) 212 (a) (9) (B) (Aliens unlawfully present): You are removable b/c of your status, but you haven’t come into attention of authorities: This is weird b/c it criminalizes presence, not action. You‘re here, & while we‘ve defined you being here as a removable offense, we‘re also attaching a penalty to you already being here. It says that if you‘ve been here unlawfully for more than 180 days, but less than a yr, you‘re inadmissible for period of 3 yrs. If you‘ve been unlawfully present for more than 1 yr, you‘re inadmissible for 10 yrs. 1. Problem, Trujillo knows lots of people who’ve been in country illegally, how does this stat change their life? It doesn‘t unless there‘s another incident that brings them into contact w/the authorities. 2. Congress was asking, how do we get these people to leave? But every time we pass stat abt undocumenteds, it drives them deeper & deeper into underground economy. Cong says we want them to leave. But that‘s a lie b/c if they leave, apples will cost $10/dozen. 3 Fraud: 1. Expedited Removal: Harsh provision 1. Fact pattern: Guy from CAN is in hurry to catch plane in US, but forgets border card, so he‘s sent back. So he goes to next port down the rd & tries to enter there. INS Border Patrol officer asks him, have you ever been denied access to border b/f? Guy thinks & mentioned time yrs ago. INS officer asks any other time? Canadian says ―No, eh‖. Border Patrol says Gotcha. You have just misrepresented yourself to me. I under my powers of 235 (b) (1) hereby remove you expiditedly & attach to that removal a 5 yr ban. 2. Basic problem w/expedited removal is what amounts to a

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separation of powers problem: You are giving to an executive officer, (cop) judicial power & not allowing that exercise of judicial power to be reviewed by anyone else. This was done deliberately b/c big pub policy concern was undocumenteds & illegal border crossings & we need to give more power to border patrol to crack down who are trying to get across the border. It vests them w/power & insulates them from review of exercise of that power. 3. The 1st provision is s. 235 (b) (1) (pp 226): Says that if INS determines that someone seeking admission is inadmissible under 212 (a) (6) (C) (fraud), or 212 (a) (7) (documents), then officer shall order alien removed from US w/o further hearing or unless alien indicated either an intention to apply for asylum, or fear of persecution. If that ONE party (border patrol agent) determines that there‘s misrepresentation or fraud, then they shall order that person inadmissible w/o review. 1. 212 (a) (6) (C) Misrepresentation: ―An alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation or admission in US, or other benefit under the act is inadmissible.‖ Was it willful is a litigateable element, but nobody is reviewing the border patrol‘s determination. 2. 212 (a) (9) (A) (i): ―any alien who has been ordered removed under s. 235 (b) (1) (expeditedly removed) who again seeks admission w/in 5 yrs of date of such removal . . . ―5yr ban. There is no relief from getting out of 5 yr ban. 3. The combination of the 2 provisions give border patrol agent (who is suspicious) the power to determine that someone wilfully misrepresented himself & sentence that person to 5 yr ban. Similar to provision where cop could stop you, determine you‘re drunk & sentence you to prison term. One person is judge, jury & executioner. (1) There used to be just one kind of removal, s 240, a removal proceeding w/procedures: Now, there is also 235 (b) as of 1996. What it said b/f was, if you were removed & you try to get back in, you‘ve got a 5 yr & 20 yr ban. 1996 added that if you‘re removed by a cop in expedited removal proceeding, it‘s just like being removed by proceeding. iv Plenary power: Foreign Affairs Manual (FAM): Bible or procedural manual for CO at foreign country‘s consulate (DOS). Here is an excerpt on how to determine what fraud is under 212 (a) (6) (C). Then it gets into the most common occasion for misrepresentation, misuse of B visa, a 6 month visa for business or pleasure. 1. B visa misrepresentation: Someone comes in on a B visa, & then starts looking for a job. The ? is, did you misrepresent yourself when you alleged that you have habitation in foreign country, which you have no intention of abandoning. The question is how is DOS supposed to investigate or handle people who go onto job mkt w/B visa? 2. 30/60 rule: To deal w/this prob, FAM says that if you start seeking employment or schooling (trying to change your status) w/in 30 days of entry, it creates a presumption of misrepresentation (burden shifted to alien to prove that didn‘t misrepresent). B/t 31-60 days, there‘s no presumption created but CO may inquire further. If after 60 days, then DOS, assumes that there‘s no misrepresentation. This usually comes up if alien files AOS for greencard b/f 30 days, then INS will utilize the DOS‘s std. Don‘t file an adjustment after 60 days National Security: 212 (a) (3)

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The 3 major themes for inadmissibility based on National Security: i. What substantive harm is US guarding against when it excludes people on the basis of national security? What are we trying to prevent? What good are we trying to achieve? List of 5 things of declining significance. (1) We’re worried abt violent activity & terrorist actions on US: stat gives lots of power to agencies to prevent violence. (2) To prevent admissions that would trigger violence against US persons & prop oversees: (3) To prevent actions in US (such as fund-raising) that would support activities abroad. (4) To prevent the signal that US approves of person, idea, etc: What‘s the symbol of admitted Bin Laden? (5) We’re interested in preventing spread of objectionable ideology: We don‘t want to admit people in US who will talk abt stuff we don‘t like. See Mandel. Can Immigration law be used to violate 1st amd norms? How plenary is plenary? Even the 1st amd bows to plenary power ii What procedures should be used? An awful lot of underlying info re: national security threats are classified (secrets). It comes from agent in the field& if anything they say or their identity is made public, their lives could be in danger & whole operation is in jeopardy, so law has got to walk a balancing line b/t on the one hand, preserving surveillance & doing justice. iii Is there any judicial Review? Mandel Any immigrant who is or has been a member of or affiliated w/the Communist or other totalitarian party is inadmissible: iv Problems pp 436-37: 2 Z was a member of the Communist Party in Czechoslovakia until the communist regime collapsed in late 1989. He now seeks to enter the US as an F-1 Student. Is he admissible? Yes, b/c stat oly refers to Immigrants. What if Z comes in seeking an LPR? There are 2 i Involuntary membership: was your guy a member of Communist party involuntarily, by operation of law or necc for prof work? If have someone from China could argue that in order to advance in job, needed to be member of comm party. Need to argue that despite client was formerly client, her heart wasn‘t in it. Not an ideological stmt, but pragmatic or strategic stmt. It‘s all abt business. In Hungary, attys can‘t practice law unless communist. Exception for past membership: If the sending country is no longer totalitarian, then the ? is did your client‘s membership terminate 2 yrs prior to the application? The US cuts a break to former communists of Eastern block countries who are no longer communists, but not to other communists. The idea is that someone who‘s a former member of living

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communist party is more of a communist than someone who‘s a former member of comm member that‘s no longer in power (If it‘s still in power, then 5 yrs b/f date of application). The AG may in the AG‘s discretion waive inadmissibility of immigrant who‘s a member of totalitarian party in the case of an immigrant who is the parent, spouse, son , daughter, brother or sister of an alien lawfully admitted for PR to assure fam unity or when it‘s otherwise in pub interest if the immigrant isn‘t a threat to US security. 3. Kleindienst v Mandel (1972): Facts: Mandel was well known Belgian author who was revolutionary Marxist, but not member of Comm party. Wanted to come to US for conference had come twice b/f. Although he was excludable in other occasions under 212 (a) (28), he was the unknowing beneficiary of waivers in both cases. In 3rd time, application was not granted b/c had violated terms of visas on previous occasions. US czs (collegues) who had invited him to speak said that their 1st amd rts were being violated. They had 1st amd right to receive info from Mandel. Ct said that plenary power is very plenary. Cong has plenary power of exclusion & if we found exception here, it might diminish plenary power. Held: ― We hold that when the executive exercises this power (power to exclude & not grant waiver) on basis of ‗facially legitimate & bonafide reason‖, the cts will neither look behind the exercise of that discretion or test it by balancing its justification against the 1st amd interests of those who seek personal communication w/the applicant. The std for review is a facially legitimate & bonafide reason when INS excludes or denies someone. All they have to give is a facially legitimate & bonafide reason, & cts find lack of power. The whole pt of judicial review & plenary power is when does the ct determine that it‘s powerful enough to review agency/legislative action. The answer, but for a couple of cases is that cts are powerless b/c of Foreign affairs, national defense etc. 1. If the AG gives a facially legitimate & bonafide reason, the ct won’t look behind the reason or look at 1st amd: Even 1st amd rts bow to plenary power doctrine. 2. This is content based speech regulation, but its imm law, so it‘s OK 3. Dissent: outrage! 1. Marshall: (Trujillo likes him). What‘s the diff b/t stopping Mandel at the border b/c we disagree w/content of what he says (content based discrimination. At core of 1st amd is govt can‘t regulate speech on basis of content) & stopping cz at border, searching his bags, finding copy of communist manifesto & saying can‘t bring it into US? There‘s no difference. You‘re stopping speech b/c we disagree with or dislike content of that speech. How is that diff b/c it‘s an imm case? 3. 212 (a) (3) (C) Foreign policy grounds for exclusion (it looks bad provision): Admitting this person will be bad for our foreign policy. (pp 109). This section is like a shadow of the 1st amd. Says that in general, when Sec of State has reasonable grounds to believe that entry or admission of this person would have potentially adverse foreign policy consequences, then that person is inadmissible. But 2 exceptions are shadow 1st amd exceptions.

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Exception for officials or candidates for election in foreign govt if such beliefs would be lawful in US. An alien not described in the exception for officials shall not be excludable b/c of alien’s past, current or expected beliefs or associations if such beliefs would be lawful in US unless the sec of state personally determines that alien’s admission would compromise a compelling US foreign policy interest: In order to override the shadow 1st amd , Colin Powell needs to sign a sheet of paper that says that despite the fact that this guy‘s speech would be lawful, in US, it‘s so bad, that we can‘t let him in. For example Meir Kahne. Public Charge: We‘re worried that you‘ll go on dole or get sick. Can be traced back to original imm laws, state pauper laws. Concern that people will come here & draw off public resources. IRCA disqualified newly legalized aliens from most public welfare assistance for 5 yrs. 1. INA 212 (a) (4): (111) 2. INA 213 (a) (A) (154): Requirements for sponsors affidavit of support (added in 96 under welfare act). 3. Forms: I-864 (Affidavit of Support), I-864A (K b/t sponsor & alien) 4. Over 2/3 of DOS’s saying now is based on this provision: In practice, this provision is used very similar to dual intent doctrine–> a bit of unfettered discretion for CO (if CO doesn‘t like you, or you look poor or will go on the dole). Allows agent on spot to weed out undesirable applicant who might be public chart. 5. Prior to 1960, Affidavits weren’t enforceable. It was a hortatory doc like the I-9: 6. Kohama (Associate Commissioner of Examinations, 1978. This opinion is like a Private Letter Ruling in IRS. Not an adjudication. It‘s a ltr saying if this ever were to come up, this is how we‘d rule). Facts: Jap parents of naturalized cz daughter & trying to adjust status to LPR. Daughter & H sign Affidavits of Support, which say that if these applicants require material needs, it‘s on me. It‘s like insurance, so that state won‘t pay, we will to put back on their feet. Who can fill out an Affidavit of Support? anyone. District officer discounted the Affidavits & denied the adjustments & said that these affidavits are not legally enforceable. The couple then demonstrated long term support & that they took care of them for a while. District officer still didn‘t care. Associate commissioner said that it‘s clear that kids will support, & as to the legal question of enforceability of Affidavit, while not legally enforceable, they are not w/o weight prior to 1960. 1. 1996 Act on paper made Affidavits of Support legally enforceable: But while legally enforceable, it‘s still very much out there how you‘d enforce it. 1996 Act also made it harder for person in US to sponsor. It said that in order for sponsor to fill out Affidavit of Support, the sponsor needs to be at 125% of poverty level. It means to be a sponsor, you need to have someone working full time @ $10.66/hr. This disqualifies a huge chunk of labor mkt from qualifying as sponsor. And it‘s not unintentional. The social reality of sponsorship is that it‘s about Mexicans. The goal of this stat is to stop chain migration of fam members for these people–> to price them out of petitioning more poor folks into US. vii 212 (a) (1) Health Related Grounds for Exclusion: i. 212 (a) (1) (A) (i) An alien who is determined to have a communicable disease of public health significance, which shall include infection with AIDS is inadmissible. ii 212 (a) (1) (A) (ii) Except as provided in (C), any alien who

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seeks admission as an immigrant or seeks AOS to LPR & who has failed to present documentation of having received vaccination against vaccine preventable diseases is inadmissible. iii 212 (a) (1) (A) (iii) Any alien who is determined to have a physical or mental disorder & behavior associated w/the disorder that may pose a threat to prop, safety or welfare of others, or a drug abuser or addict is inadmissible. iv Problem pp 472: A is a Brazilian national w/AIDS. He would like to enter US to attend a week long int’l conference on AIDS awareness. Is he inadmissible? Would A be inadmissible as an immigrant? If A is inadmissible, are any waivers available? a Is he admissible as an NIV? Not admissible b/c stat says ―an alien.‖ There is diff std for immigrant & nonimmigrant. 2. Waiver for NIV: Gen catchall waiver provision for NIV for inadmissibility is 212 (d) (3) (pp 125). This is less onerous than 212 (g). The public policy behind that is the concentric circle-> heightening requirements depending to how close to middle you get. 3. 212 (g) waiver for immigrant: says AG in his discretion can waive the application of 212 (a) (1) (A) (i) if spouse is unmarried son or daughter & had been issued an immigrant visa or if alien has a son or daughter who is a US cz or an alien lawfully admitted for permanent residence, or an alien who has been issued an immigrant visa. This is a particular provision that protects immigrants, & the last paragraph talks abt giving a bond, the party entering has to put $ aside to tap into in case there is a medical cost. Admission Procedures: Then & Now; AOS; Parole 1. Ann Novotny, Strangers at the Door: Ellis Island, Castle Garden & the Great Migration to America: Notice total chaos of situation. You have thousands of people getting of boats, sweeping across lines, going up stairs, standing in lines to answer interview ?s & officials looking @ people going by & pulling them out if limping or look sick. It‘s chaos compared to meticulous methods we have now of measuring & interviewing everybody who comes in. The ? to ask is, if this was the golden age & these were the people who made US great, if the lack of regulation & measurement got us the golden age, why are we so excited abt regulation? Isn‘t this chaos & its result an argument for open borders w/less regulation? 1. PR nightmare: The diff b/t inadmissibility procedures now & then. Now DOS in sending country says no & go back to your house down the street, while the inadmissibility procedures they had then was that they come here, they sell all of their prop, spend lots of $, show up & then get sent back. 2. This is an argument for open borders b/c chaos accomplished bringing in the people who made US great. The Golden Age of immigration injected skilled aliens into the economy; given this era, the mechanisms for excluding people was primitive then. Lately, w/in the last 50 yrs, there‘s been a clamp down on imm. This, the ? now is why make the mkt for migration less free if our history has been receptive to imm b/f? 2 Roger Daniels: Angel Island: Race story. People coming into Angel island were coming in from Asia. Angel Island‘s conditions were very bad. (1) Angel Island Immigration station was the site for primarily detaining Asian immigrants, mostly Chinese & Japs. (2) Despite protests abt the dangerous, unsanitary & vermin infested facility, nothing was done to improve it. Daniels notes that perhaps 100K persons,

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mostly Asians spent dome time on the island. (3) Forms of resistence against unfair detention: (1) Litigation (2) Paper sons phenomenon: some managed to pass themselves off as close relatives of Chinese merchants & were admitted under false names. (3) After fire of San Francisco in 1906 destroyed all of the records, a significant & of Chinese successfully represented themselves as native born US cz. (4) Immigration service developed # of interrogative techniques to deal w/Chinese immigrants; agents would grill both parents & children abt details of their biographies. Modern Admission procedures: After getting visa & traveling to US, imm & non-imm encounter imm inspector at port of entry. Most are admitted after a few ?s & a small % undergo more thorough processing. Where the govt contests admissibility of aliens arriving in US, or here but trying to acquire new status, it will initiate removal proceedings. Removal proceedings also used to remove aliens who‘ve been admitted to US but who fall w/in deportability grounds in s 237. If arriving alien has fraudulent docs, invalid or no docs, he‘s subject to expedited removal & will be removed ―w/o further hearing or review‖ All other aliens denied admission & not allowed or wishing to w/draw their applications for admission receive a full removal proceeding b/f Imm judge, subject to INA 140. A Nonimm admissions: s 214, 221 (a)-(b), (f) - (h), 222 (c) -(g) & 248. i Nonimmigrants must first get a nonimm visa from consular officer in foreign country: Application may be made in person at US consulate, but may also be done by mail. Alien bears burden of proving qualifications for visa & for B, student (F & M) & J exchange, the most imp issue will be whether alien really has home in foreign country to which he intends to return. ii A few nonimmigrant categories, such as H, L, K require advance clearance by INS by petition filed by alien’s expected employer or intended spouse: iii If visa application is approved, CO stamps a nonimmigrant visa into applican’t passport: A visa is goof for any # of entries b/f its expectation. W/o a visa can‘t board a plane & people who take u on subject to fines for bringing aliens w/o adequate documentation. Visa doesn‘t guarantee admission & INS officer at border can disregard CO & refuse to admit alien w/visa. 221h iv Aliens coming to US fill out I-94 card, which gives amt of time allowed for alien to stay in US & other specific conditions of entry: Card stapled to passport & is to be surrendered upon departure from US. The date on I-94 controls amt of time allowed to be in US on that entry, not visa expiration. v If non-imm receives permission to work, I-94 is stamped & INS issues an Employment Authorization Document Card. Form I-766 (not a green card). vi If file w/INS for extension of visa period or a change under s 248 from one non-imm status to another & granted, don’t need to amend visa: change recorded on I-94 card & I-797, notice of approval. B Immigrant visas & visa petitions: i Process begins by filing of visa petition to INS Regional Service Center: The pet is meant to verify the fam of

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employment relationship that underlies alien‘s claim to preference or immediate relative status. Fam petitions are filed on I-130 & EB petitions on I-140. Employer must have secured a labor cert from DOL b/f filing I-140 w/INS. ii Upon approval, INS forwards pet to DOS’s National Visa Center if alien is abroad or if AOS, pet is forwarded to appropriate INS office: Approval of visa pet doesn‘t mean that alien is admissible, that issue is decided by CO or INS officer considering AOS. iii Petitioner can w/draw application at any time w/o beneficiaries consent & certain events, such as petitioner’s death may result in automatic revocation: But spouse of US cz can self petition for 2 yrs as an immediate relative after death of cz spouse s 101 (b) (2) (A) (i) & battered spouses may self petition under certain conditions. iv When approved visa petition is received at National visa Center, officer sees if its complete & technically correct & notifies consulate: Aliens who don‘t adjust status pick up visas at US consulate in foreign country. A visa will be available if either the visa allocation priority is current or if the alien is an immediate relative to which no quotas (& no waiting list) apply. If visa not immediately available, alien told that petition was received & will be held until a a visa is available. When available, need to provide documentation that is not inadmissible & not likely to become a public charge. Any docs not in Eng need to have certified translation. Also need medical examination shortly b/f interview w/CO. During interview, alien swears to application. If CO finds grounds, may deny visa & subject only to ltd review by another officer at post & in some cases to DOS‘s visa office for advisory opinion. If inadmissibility ground subject to waiver, the consul assists alien in completing waiver application. v If Consul finds alien admissible, issues an imm visa valid for 6 months s 221 (c).: Visa not stamped on passport, but rather docs presented in envelope to imm officer at port of entry. If officer finds no disqualifications upon inspection, he‘ll keep the imm visa & make notation of LPR in alien‘s passport & forward papers to INS for issuance of Alien Registration Receipt Card, Form I-551, which may take a few more months until issued This green card is pink. vi Special Immigrants: If LPR plans to leave country for short time, can do so & then return as special imm under s 101 (a) (27) (A), 211 (b). But should take docs for return demonstrating that‘s an LPR. Green card will be used as re-entry permit if gone less than 12 months. Adjustment of Status: s. 245 is gen stat regarding AOS. (pp 299). Adjusters are typically NIVs who want to go from one category to another under s 248(e.g. B to F), or nonimmigrants who want to become greencard applicants (e.g. someone who got married & now wants to adjust to immediate relative of cz) under 245. The whole process can be carried out by INS & alien need never leave US. i Prior to 1935, you had to leave US & come back: now can AOS while still in US. About ½ of all immigrant admissions are 245 (people who are already here). AOS provides a replacement for traveling overseas to get an imm visa in classic fashion from CO. AOS doesn‘t eliminate need for visa petition. (I-130 & I-140).

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Form I-485 is form that you fill out: When INS officer examines I485, makes all the same determinations as the CO. Must see if applicant is qualified for the imm category & see if grounds for inadmissibility apply. For purposes of AOS, applicant, although physically in US is considered as though at border applying for initial admission. 245 says that can adjust if in US & can make certain specific showings: for example can‘t be EWI, terrorist, or can‘t be eligible to be admitted through some other procedure (eg visa waiver program, S visa for snitch, Alien can’t adjust under 245 (a) unless alien was inspected, admitted or paroled. Aliens who entered w/o inspection don’t qualify for AOS under 245 (a): Also not eligible if terrorist deportable under 237 (a) (4) (B), C visa or S. Unless immediate relatives of US cz, aliens ineligible for AOS under 245 (a) if worked w/o authorization b/f filing unless done w/o fault or for technical reasons (falls OOS while waiting for INS to act on extension request). Also 245 (c) (8) says that those who violated terms of non-imm visa can‘t adjust (unless immediate relative). Also people on Parole can‘t adjust No JR of AG’s discretion under 245: Instead appeal reviewed by IJ If can’t AOS under 245 (a), another option is to apply for imm visa from home country: Earlier clandestine entries don‘t necc bar issuance of imm visa if other qualifications are met if applicant left country voluntarily. But beware 212 (a) (9)‘s 3 & 10 yr bars.—> makes 245 i seem more important. 245 (i) Adjustment of Status of certain aliens physically present in US: Provision that allows aliens who have been present in US illegally to become LPR w/o leaving US, if they fit into one of the immigrant categories, primarily through fam ties to US czs or LPRs or through US employment & pay $1K fee. This category provides relief from removal & provides AOS to LPR. 245 (i) matters a great deal b/c it allows those who qualify to avoid bars to LPR that would be triggered if had to leave the country to pick up a visa. 1. History: There had been an argument that said there are EWIs here too. It‘s a very common thing that an EWI will be here & then will become eligible to adjust (will get married, or get a job) & will become regularized in their status that it makes sense for everyone that this person should be granted papers. The advice used to be to sneak out of country to CAN & come back alleging that this is your 1st time here, alleging that you‘ve been married to US cz & this is 1st time here. 245 (i) mirrors US‘s weird relationship w/undocumenteds, sometimes grasping their reality & humanity & othertimes resisting both the fac that they are here & they are people. In 8/94 Cong passed 245 (i), which basically said, let an undocumented adjust if they marry or do something that gets them adjustable. This worked well until 96 Act established 3 & 5 yr bans under 212 (a) (9). There was a statutory anomaly how these 2 provisions could co-exist. That stat anomaly kicked around until 245 (i) lapsed. (I highlighted the new lapse date). The Life Act in Dec 2000 (the act that gave special visas for K & V) also extended 245 (i). The life act extended the date from April 30, 2001 & as stated in 43-45 in supplement also waived the 3 & 10 yr bars. To answer the ? of how does 212 (a) (9) coexist w/245 (i), they answered that question by waiving the bar (pro-immigrant). (212 (a) (9)‘s policy was to create incentives to make undocumenteds leave & we talked abt how that might not be effective b/c they might not have access to that info etc.)

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pp 44 of supplement says that the main purpose of the ltd revival of 245i is not to generate revenue: but rather to permit a large cohort of currently undocumented migrants to escape the effects of 212 (a) (9). Cong is saying let‘s either get serious abt this self-enforcement story, or lets get 212 (a) (9) off the books. We can‘t have it both ways. When the Life Act passed, it said to a population of undocumenteds that if you have the cash & relationship, here‘s your way, what kind of messg does that send paired w/messg we were trying to send same pop. 4 yrs earlier, when we said get the hell out of the country on the 179th day or you‘ll be banned for 3 yrs? This act now talks a straight line. 245 (i) applies all EWIs or NIV overstays who are eligible to adjust. Right now, we have a promise that 245 (i) will be extended until April 2002, but that’s not law yet: Trujillo recommends to turn in your application b/c there will be an extension. To qualify, for the Life Amendments you have to have been physically present in US as of the date of the enactment 12/21/01: You have to have been in the country & your piece of paper was filed after 1/14/98 (significant date b/c it refers to the closing window of last time 245i lapsed). It covers persons who were in US on the date of enactment Dec 21, 2000 & whose sponsors filed a visa petition or labor cert application no later than April 30, 2001 (unless extension to April 30, 2002 applies). Allowing this group to adjust means they can potentially xcape the impact of th 3 & 10 yr bars imposed by 212 (a) (9) (B). Lengthy lines materialized at INS offices as deadline drew near & tens of thousands of applicants filed the initial papers needed to take advantage of this measure. Shortly thereafter Bush called for an xtension of time to file, some xtention to a full yr seems likely to pass Cong. You need to file the adjustment papers under 245 (i) & also demonstrate the means you have that rt: You file 245 (i) & file that you‘re an immediate relative of cz. 245 (i) is all abt a wink & a nod: US is saying we know you‘re here & we made a decision of b/t 2 suboptimal choices of pretending you‘re not here & saying that there are undocumenteds & they‘ve established a relationship, which in all fairness to them & economic benefit to US makes it sensical for us to regularize them. What if they qualify for fam pref, but their priority date isn’t current yet? Let‘s say there are 3 yrs worth of people in front of you & immigrant visa isn‘t available yet, what happens? If not immediately available, you can adjust & get a V visa & wait for date to get current. You can’t use 245 (i) to get an H. 245 (i) only helps people who qualify for LPR status: But if you qualify for LPR status & your # isn‘t up, you can get a V. Then you should come here illegally & adjust! What kind of signal are we sending here!? There is a fairness issue. There is also a fairness issue in the fee. It‘s $1K,

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which would price out a lot of the population. Recission of AOS: s 246 (a) . The power of the AG to take it back, underscoring the gen contingent nature of all immigrants, not just undocumented. Allows AG to rescind adjustment that was made under 245, for a period of 5 yrs & even after those 5 yrs, AG can still remove it. Recission of AOS would occur when AOS was granted & that person was not in fact eligible for AOS. Section 246 (b) talks abt denaturalization of someone based on LPR created as a result of AOS for which that person was not eligible & rescinded under 246 (a) under procedures of s 340 (Revocation of naturalization) in district ct. Revocation of naturalization can be done for concealment of material evidence or refusal to testify. i Denaturalization: 2 grounds 1 That the order & certificate of naturalization were illegally procured: By concealment of material fact or by willful misrepresentation. Revocation shall be effective as of original date of order & cert. & immigrant shall have deemed to have lost his czship (also derivatives lose czship). 2 Membership in certain orgs w/in 5 yrs following nat: If w/in 5 yrs of nat, he becomes a member of any org which @ time of nat would have precluded him from nat under s 313, it is prima facie evid that such person wasn‘t attached to Const of US at time of nat & in the absence of countervailing evid, it is sufficient to revoke czship & cert of naturalization, effective of the original date of the order & cert respecrtively. Parole: 212 (d) (5) Typical example of someone paroled into the country is when someone comes to border sick. You come to port of entry & drop. What are we going to do? There are people who come w/o papers to US & fly into Kennedy b/c they‘ve got diseases that can‘t be cured in home country but can be cured into US, they are paroled into US & given free emergency medical care in NY & then deported (people ripping off US vs what‘s the pt in being the richest nation & not helping people? (just) 2. Theory of justice: Universal Destination of Goods: Ownership is an added on quality of prop. If you happen to be in possession of prop, that‘s not ownership, it‘s wardship. What are obligations of US if it owns so much prop? 3. Prior to 1952, there was no statutory basis, so this was essentially an administrative Act. You had border patrol develop a position where they paroled people on ad hoc basis. In 1952, they made it part of INA. Prior to refugee act, an act that said that Prez can identify populations where b/c of certain events (such as Eritrea or Vietnam), there is an uprooting of large pop, instead of having all of them apply for Asylum, you have capacity of Prez to designate certain pop as refugee pop, Parole was used (e.g in Hungarian Revolution after USSR won a lot of people had to get out quickly, so whole pop of Hungarians ended up in US, but were first brought in under Parole.) 4. Stat says that AG may “in his discretion parole into US temporarily under such conditions as he may prescribe, only on a case by case basis for urgent humanitarian reasons, or significant public benefit, any alien applying for admission in US, but such Parole shall not be regarded as admission & when purposes of such parole shall in the opinion of AG have been served, the alien shall return into custody from which he was paroled. 212 (e) (5) (b) says that AG may not parole an alien who is a refugee unless AG determines compelling reasons that alien be paroled into US rather than be admitted as refugee under s 207. s. 242 Judicial Review of Orders of Removal: This is the general ct stripping provision. Throughout the INA, you have stuff saying that discretionary decisions by AG isn‘t reviewable. This stat strips courts or review of Agency action. Only reviewability of denial of habeas corpus. You have to be very

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deliberate about removing Habeas Corpus. Removal/Const rts of nonczs (Deportation): The power to remove (deport) is understood to be an extension of power to refuse admission & is viewed from Plenary power perspective. 1. Inadmissibility criteria say you can‘t come into US if . . . .you are a criminal who committed crime that evinces moral turpitude etc. Removal says that & if while you were here you commit a crime of moral turpitude or aggravated felony, then we can toss you out. 2. The way of bulletproofing yourself from removal is to become a cz: There is a normative appeal that people should become czs. 3. Conceptual shift of 1996: Prior to 1996, had distinction b/t deportation (removal of people who are here) & exclusion. Post 1996, it collapsed into Removal. What Removal does is that it collapses deportation into exclusion & there is less procedure & it‘s all about low rts, weak ties & easy ejection. 4. Constitutional Perspective: Non citizens rts under the const. 1. Chronology: Trujillo recommends reading this, esp part abt Palmer Raids 1. 1903 Act: (passed in the wake of McKinley assassination by Leon Czolgosz), for 1st time, established ―subversiveness‖ as ground for exclusion. He wasn‘t an alien, but it stirred up anti immigrant fervor 2. Imm Act of 1917: Deportation grounds were extended to include post entry subversive conduct. 3. Anarchist Act of 1918: members of anarchist organization are deportable. 4. Palmer Raids of 1919: Repressive campaign to deport aliens affiliated w/ allegedly subversive orgs. Important now b/c of current environment in US today is similar to Palmer Raid environment. 5. Kessler v. Strecker (1939): Sup Ct. drops a bomb on Cong. Ct held that alien who had been member of Comm party after entering US but left the Party prior to his arrest wasn‘t deportable under 1918 Act. Case interpreted the 1917 & 1918 Act to say that if the foreign national has left the party prior to being arrested, then they weren‘t subject to deportation. This led to a mass expulsion of aliens by communist party to make them bullet proof, but they were still communists. 6. Alien Registration Act of 1940: Cong overrules Kessler by amending 1918 Act to provide deportation of any alien who had been member of a political subversive group (anarchists & commies) ―at any time‖ after entering US. The constitutionality of 1940 amendments to 1918 Act was challenged in Harisiades. 2 Harisiades v. Shaughnessy (1952): Involved deportation of 3 LPRs for their prior membership in Communist Party. Issue: Whether US could constitutionally deport an LPR b/c of membership in communist party which was terminated b/f enactment of Alien Registration Act of 1940. 3 constitutional claims: 5th/Due process 1st, & ex post facto clause violation. Holding: Act was constitutional a LPR’s contentions: 1. 1st amd: joining commie party is 1st amd rt. Ct response: Alien‘s const rts protects advocacy of political method, but this rt doesn‘t extend to joining an org that advocates violent overthrow of the govt. (Dennis v US holding that speech isn‘t protected by 1st amd ―where there is clear & present danger of the substantive evil which the legislature had a rt to prevent). ii Ex post facto: Act conflicts w/ Art I sec 9, of const forbidding ex post facto enactments. There is a notice problem. They weren‘t aware of change in law. Ct response: Ex post facto refers to crim not civil legislation. Therefore, deportation doesn‘t qualify b/c it‘s

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considered civil, rather than crim procedure. 5th Amd: Deprivation of liberty & prop w/o Due Process. Admission of LPR confers a ―vested rt‖ on the LPR equal to that of a cz. (ie LPR should be afforded constitutional protection). Ct response: ―for over 30 yrs, each of these aliens has enjoyed such advantages as accrue from residence here w/o renouncing his foreign allegiance or formerly acknowledging adherence to the const he now invokes. (How dare you!!!). Each was admitted to the US upon passing formidable exclusionary hurdles in the hope that, after what may be called a probationary period, he would desire & be found desire able for czship. . . .The alien in several respects stands on equal footing with czs, but in others has never conceded legal parity w/the cz. Although the power to expel aliens after long residence is severe, it‘s a power inherent in every sovereign state.‖ -There is a bias in Imm law & scholarship in the idea that everyone who comes here comes to be a cz. This is the Manifest Destiny logic of imm law .Manifest destiny puts polity, nation, land & territory on probationary period, that foreign policy logic was the governing logic when these stats were written & these cases were adjudicated. iv Concur: Frankfurter: Ct recognizes that determination of imm policy is for Cong & not for judiciary. v Dissent: Douglas: There is a constitutional protection for LPRs & Cong doesn‘t have absolute power to deport them. Power of deportation is implied, whereas rt to life & liberty (5th amd) is express & should therefore trump implied power. Banishment is punishment. pp 709 & Justice Murphy’s opinion abt rt of non czs in US. What kind of sense does it make if govt can‘t prevent foreign national of exercising 1st amd rt, but could deport her for it. – “The Bill of rts is a futile authority for alien seeking admission for 1st time on these shores.”: A non-admitted party has no rts under the const. Mandel has no rts under the const To the extent that that story will be adjudicated, it‘ll have to be adjudicated 2ndarily by the US professors. – “But, once an alien lawfully enters & resides in this country, he becomes invested w/the rts guaranteed by the const to all people w/in our borders” Including 1st amd rts of speech, religion, association & 5th amd rts & due process rts of 14th amd. Once party becomes admitted, they do have access to set of rts. ―None of these provisions acknowledges any distinction b/t czs & resident aliens. They extend these privileges to all ―persons‖ & guard against any encroachment on those rts by Fed & State authority.‖ – Conundrum of deportation: ―since resident aliens have constitutional rts, it follows that Cong may not ignore them in exercise of its exercise of plenary power of deportation. The 1st amd & other portions of the bill of rts make no exception in favor of deportation laws or laws enacted pursuant to a ―plenary‖ power of Cong. . . . Any other conclusion would make our constitutional safeguards transitory & discriminatory. Thus, the govt would be precluded from enjoining or imprisoning an alien for exercising freedom of speech, but the govt at the same time would be free from a constitutional standpoint to deport him for iii

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exercising the same freedom. — They have 1st amd rts, but while in play in all other spheres for a resident alien disappear if the remedy that’s being sought is removal or deportation: If I‘m a resident alien & I‘m speaking freely in the country, I can‘t be imprisoned or enjoined from speaking, but I could be deported b/c of my speech. Or my cause could be selectively enforced (like those after Sept 11. They are folks that have overstayed their visas & have done X & Y, but there are lots of people who‘ve done X &Y, or overstayed their visas. Why are these folks being detained & the other folks aren‘t? B/c they‘re from Pakistan or Afghanistan & people from Sweden if same exact situation aren‘t being detained.). c Statutory developments after Harisiades: – Cold War expands grounds for deportation. Under prior stats, govt was required to demonstrate in deportation hearing that the org that alien belonged advocated violent overthrow of govt. This was overcome by the Subversive Activities Control Act, which identified the Communist Party by name, thereby making membership grounds for deportation. – Immigration Act of 1990: Cong repealed provisions mandating deportation of anarchists, communists & other totalitarian parties. But, such immigrants may be determined to be ―inadmissible at time of admission‖ see 212 (a) (3) (D) & 237 (a) (1). 4. Constitutionally Protected Liberties & Deportation Power: 1 Dennis v US: sustained the crim convictions of commie organizers under the Smith Act, a 1940 stat that prohibited wrongly advocating overthrow of the govt. Used clear & present danger std. 2 Brandenburg v. OH: overruled stat similar to Smith Act. Ct made it clear that aliens are protected by Bill of Rts. 3 Yamataya v. Fisher: 5th amd guarantee of due process applies in deportation hearings. 4 Wing Wong v. US: afforded 5th & 6th amd rts protection to aliens (only w/respect to criminal sanctions & not imm proceedings.) -Justice Murphy: once an alien has entered lawfully & lives in this country, then Bill of rts protects him. Therefore, Cong may not ignore them in its exercise of ―plenary‖ power of deportation. –Counter args to Murphy: (1) Sovereignty & self-preservation identified by the Ct in earlier decisions. Immigration decisions are process of national self definition, so nation is empowered to adopt deportation provisions that deny aliens membership on political grounds. Deportation isn‘t punishment, since deportation is only a withdrawal of a privilege to remain in US. 5 Cong’s power to discriminate: What abt EP challenges? The ct has stated that the policies of what classes of aliens shall be allowed to enter & what classes of aliens shall be allowed to stay are for Cong exclusively to determine, even though such determination may offend American tradition. Reno v. Arab American Anti Discrimination Committee (1999): Facts: INS identified 8 people that they wanted out of the country. These were members of the Popular Front for the Liberation of Palestine. INS identified grounds by which they can be deported. 6 were NIV overstayers. Two were LPRs & they were going to be deported for deportable violations (anti-terrorism provision).

Giving a press conference abt these 8 people said they were going to deport them. The lawyers of the 8 immediately sued to enjoin the deportation. This is pre 1996 judicial stripping provision. This case had it happened after 96 wouldn‘t get to ct. i In 1989, the District ct strikes the deportation grounds as unconst: significant b/c only time ct has struck deportation ground as unconst. The ct rejected the govt’s claim that Cong’s plenary power over imm justified a lower 1st amd std for aliens in the deportation context. Can’t be a lower 1st amd std for foreign nationals as opposed to citizens (pp711) ―Simply stated, the Govt‘s view is that aliens are free to say whatever they wish but the govt maintains the ability to deport them for the content of their speech . . . since aliens enjoy full 1st Amendment protection outside the deportation setting, we decline to adopt a lesser 1st amd test for use w/in that setting. ii The District Ct applied Harisiades in a way that’s hopeful for imm advocate view: Says that Maj applied same 1st amd std to foreign nationals that were being deported as they would‘ve applied to czs (remember all that stuff abt incitement to violence). There is 1st amd law applied to czs speech. They applied the Dennis test. That law was applied to litigants in Harisiades, so same 1st amd rights that apply to czs apply to non czs. – This line of analysis demonstrated that the proposition describing the content of noncz rts under the Bill of Rts are convoluted: You will find good authority from Sup Ct in Bridges v. Wixon (1945) all the way down to Central district of CA (AADC v. Reno)which will allow you to make a straight faced claim that 1st amd covers everybody, including your non cz client. Another pro-immigrant case is Zadvydas v. Davis (2001) says that 5th & 14th amd rt against indefinite detention applies to everyone, even nonczs & people who have already been adjudicated to have no rts to be in US. Even those who are furthest edge of concentric circle have 5th & 14th amd rts. There is also strong authority that they don‘t (Sup. Ct‘s AADC & Harisides. There is a body of law that goes both ways. – Under this analysis Harisiades helps aliens b/c of developments in 1st amd law since Dennis that have expanded protection for political speech. – Patriot Act interacts w/Censeer (2001). Says that if Cong wants to depress habeas corpus, you need to make a clear stmt abt it. 1996 didn‘t make such a clear stmt. Censeer upheld the tradition of habeas corpus rts under 96 act. Patriot Act makes such a clear stmt. Patriot Act is Censeer proof for Habeas Corpus. There‘s a clear stmt in Zadvydas opinion saying that aliens have const rts, but says that in case of terrorism, such rts are shrunk. Govt will then say Zadvydas is strong case for imm rts, but there is a terrorism clause. – The hardest thing abt military tribunals, Patriot Act is that it’s undeniable that w/in 4 corners of Plenary Powers, the compelling govt interest is pretty compelling: iii Supreme Ct: Shoots the horse underneath the rider. – Issue: Does a foreign national have a rt to argue that when the INS prosecutes me for my clearly prosecutable situation (I‘m in violation of my NIV no doubt abt that), but when I‘m selected from millions of others who are also in similar violation b/c of my speech, do I have a COA. Where govt selective enforcement

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is triggered by exercise of the 1st amd rt, is that action unconstitutional? Held: No. Scalia says no. Scalia: These guys are a bunch of outlaws in violation of the law, why should we care abt these guys? They don‘t even have a rt to be here? The don‘t belong here? Since when do they have rts? ―Since it’s a matter of foreign policy, the Executive shouldn’t have to disclose it real reasons for deeming nationals of a particular country a special threat & even if it did, the Ct wouldn’t be able to determine if it was true:‖ “In many cases deportation is sought b/c the time for permitted residence in this country has expired, or the activity for which residence was permitted has been completed.‖ ―Even when deportation is sought b/c of some act the alien has committed, in principle, the alien isn’t being punished for the act (crim charges may be available for that purpose), but is merely being held to the terms under which he was admitted. And in all cases, deportation is necc in order to bring an end to an ongoing violation of US law:” The arg here is that if someone‘s in violation of their NIV terms, what they‘re being held for & deported for is violation of the NIV terms as a separate grounds. – If someone’s in violation of their NIV status but also engaged in terrorist speech: Scalia‘s analysis is that there‘s 2 things going on (1) an imm law violation. You look at the visa which says you‘re allowed to be here but for the commission of certain acts, including acts like speech that US doesn‘t want &. (2) underlying substantive grounds, such as crimes, for states to act against you. Then Scalia says ―the contention that a violation must be allowed to continue b/c it has been improperly selected isn‘t powerfully appealing – Claim is that all NIV overstayers are in violation of the IMM law & allowed to be detained & deported b/c of violation of law. Presence in US is ongoing violation of US law. Administrative limitations on budget prevent us from prosecuting everyone in pop. So reason we selected those 4 guys is irrelevant & it turns out reason we selected those 4 guys is their speech. But doesn‘t matter b/c they are in ongoing violation of the law. – Scalia doesn’t say is that they have no 1st amd rt: He just says they can be deported for exercising it. You have a 1st amd rt to speak all you want, but we can deport you. What’s the diff b/t Scalia’s argument & the following? – IRS agent prosecutes tax evaders. Can’t get all of them, so I’ll send out directive to all agents that will only pursue Jews. Will direct out ltd IRS resources for prosecution of Jewish tax evaders. Anyone have a problem w/that? Seems identical. They are in ongoing

violation of the law. But pt is that selection criteria is unconst. In AADC it‘s 1st amd problem & here it‘s EP problem Deportation doesn‘t necc mean that they ever leave our grasp. It‘s the authority for holding him & interrogating them. US looks for grounds by which to hold these folks. But Patriot Act doesn‘t even need to make a showing. It‘s w/o habeas corpus & all need to do is allege based on secret evid. THE SITUATION NOW: PATRIOT ACT: Cong passed a law called US PATRIOT ACT which enhances the power of the FBI & CIA. It empowers AG, upon recommendation of head of CIA to denominate a party in US as a terrorist MILITARY TRIBUNAL: 2 weeks ago, Bush signed an executive order that said that when Prez denominates a party in relation to terrorism, that party, to the extent that it‘s a non-cz, as opposed to cz is liable to be prosecuted by a military tribunal. The 2 qualifications are are non-cz & Bush says so. If these 2 things are in place, you‘re subject to military tribunal. If cz, not covered by military tribunal. – George Bush signed an executive order saying that when I name a party that’s a non cz, that party can be tried by a military tribunal. Judge on military court work for the Party who‘s being the party to be tried. Not unbiased. It‘s like having Prez of corporation who‘s having a fight w/someone abt something appeal to one of his subordinates. They are administrative officials who‘re subordinate to parties that are prosecuting the case. Why do we have military tribunals to prosecute military crimes? So that military can solve its own problems. ―The army is your mamma now‖ logic. What we have is a military structure applied to people who are potentially out of military situation: The order is defensible if suppose we stumble upon a hornets nest of Al Queda people including Bin Laden. Do we want to lasso all those people up, bring them back to S.D.N.Y., have them stand in line, fill out a card, give a press conference, post bail & 6 yrs later actually prosecute them. In that military circumstances, makes no sense to give these guys full benefit of US law. This is a situation of war. In times of war & situations that are fairly defined as war-like situations, military tribunals makes sense. But what abt non war like situations? Trujillo‘s mother in law is a non-cz. She‘s been in US for long time & have cz kids. Her personality as member of US community looks very similar to cz. She‘s covered by this act. If for some reason Bush takes a disliking to Tita, he can nail her w/the executive order & that‘s a non-military situation. All non czs in all situations, military & non military. Not well drafted order. Overbroad power. Think of plenary power doctrine & what Cong & Prez (Mandel) can do in imm situations. What type of lawful discriminations can be made? Think of the 2x2 chart. Shouldn‘t apply to Tita. If the order were more carefully worded, it would be more defensible–if it were a national security interest, closely tailored remedy. Let‘s hypothesize a case where you have that executive order passed during time of war (no question abt vast hordes justification of plenary power): Immigration law is abt national self defense & self defn. The original justification of plen power was real or imagined time of war. That‘s why it seems like the Ashcroft/Bush stuff seems so powerful & is so popular. Some say if at any time plenary power makes sense, this is it. If Tita got selected, it would be a Yick Wo sort of thing, but is purpose of Order directed towards Tita? But if you look at the order that‘s what it says. If it were more carefully written it would be much less objectionable, but it‘s so broadly phrased, it‘s scary. It applies that any person that Bush says. It’s “profoundly UnAmerican”:

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Aliens seeking admission have no rts. There are administrative procedures, but not judicial review “facially legitimate & bonafide reason”: We won‘t look past that reason. Any reason. Anything goes. Plenary Power: No judicial review acts re: admission. Does ct have power to review? Mostly not w/exception of Wong Wing. It‘s a rule of judicial review whereby Judges determine that they lack authority to review decisions made by political depts re: admissions. Immediate relatives do count against 7% formula: Parents & children of cz can’t get K visa. V visa: followers to join & unmarried sons & daughters of LPR. What’s the pt of filing a declaration of intent for nat? No pt. Target employment area: pp 65 for defn:


				
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