AN OVERVIEW OF IMMIGRATION LAW AND THE U.S. IMMIGRANT SELECTION SYSTEM by Tilman Hasche1 I. INSTITUTIONAL STRUCTURE FOR THE ADMINISTRATION AND ENFORCEMENT OF THE IMMIGRATION LAWS. The Immigration and Nationality Act ("INA" or “Act”)2 is a federal law which establishes a system for selecting certain classes of aliens3, or noncitizens, as persons eligible to enter into and remain in the United States. Conversely, the Act also provides mechanisms and standards for keeping out or expelling aliens whose admission into or continued presence in the United States Congress has deemed undesirable. Finally, the Act defines who is a U.S. citizen, how an alien can become a U.S. citizen, and how a citizen can lose that status. Overall, the Act provides the basic legal framework for implementing national immigration and citizenship policy through various executive agencies. From 1940 until February 28, 2003, the main government agency responsible for administering and enforcing U.S. immigration law was the now dissolved U.S. Immigration and Naturalization Service (“INS”). The INS was a law enforcement agency within the U.S. Department of Justice (“DOJ”). Its mission included adjudication of immigration benefits; patrolling the border; deciding who would and would not be admitted to the United States; and overseeing the investigation, apprehension, and expulsion of aliens whose presence in the U.S. was in violation of law. To that end, the INS also promulgated regulations,4 established internal rules5, and issued informal guidance memoranda for the implementation of the Act.
1
Tilman Hasche is a partner with the firm of Parker, Bush & Lane, P.C., whose practice focuses on immigration law.
2
Act of June 27, 1952 (McCarran-Walter Act), As Amended, Pub. L. No. 82-414, Ch. 477, 66 Stat.163, codified at Title 8, United States Code (“USC”). .
3
An alien is any person who is not a citizen or national of the United States. INA § 101(a)(3), 8 USC § 1101(a)(3). A national of the U.S. is a U.S. citizen or a person who, though not a citizen, owes permanent allegiance to the U.S. INA § 101(a)(22), 8 USC § 1101(a)(22).
4
See Title 8, Code of Federal Regulations.
5
See, e.g., INS Inspector‟s Field Manual (comprehensive “how to manual” for all aspects of the INS program for inspecting aliens seeking to enter the U.S. at various ports entry); INS Examinations Handbook (internal guide for INS officers interpreting regulations on how to adjudicate various types of immigration applications, rules of evidence, how to conduct interviews, INS record systems, etc.); INS Interpretations (collection of memoranda interpreting various statutes and regulations); and INS Operations Instructions (OI‟s) (handbook of internal instructions for how to carry out various examination, adjudication, inspection, detention, and other functions). These sources are reproduced in Chas. Gordon, Stanley Mailman & Steven Yale-Loehr, eds., 14 & 15 Immigration Law & Procedure (Matthew Bender 2004).
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A. U.S. DEPARTMENT OF HOMELAND SECURITY. Effective March 1, 2003, the authority and functions of the INS were transferred to the U.S. Department of Homeland Security (“DHS”).6 DHS subsumed numerous agencies dealing with a wide variety of homeland security issues. Among these there are three principal agencies charged with carrying out various immigration functions: CIS, CBP, and ICE. U.S. Citizenship and Immigration Services (“USCIS” or simply “CIS”), which was originally known as the “Bureau of Citizenship and Immigration Services”, is the DHS agency charged with adjudicating immigration benefits. The term “immigration benefits” includes such requests for relief as petitions for alien relatives, petitions for alien workers, applications for change or extension of nonimmigrant status, applications for adjustment of status, and applications for naturalization. A second DHS agency, the Bureau of Customs and Border Protection (“CBP”), is responsible for patrolling the U.S. border, as well as inspecting and examining aliens coming into the country at the land, sea, and air ports of entry. The Border Patrol as well as the inspectors at U.S. airports, seaports, and land ports of entry all form part of CBP. A third DHS agency, the Bureau of Immigration and Customs Enforcement (“ICE”) is charged with investigating violations of immigration laws as well as effecting enforcement of said laws within the U.S. and abroad. Notably, when DHS formed CBP and ICE, each of these agencies incorporated personnel, procedures, and missions beyond those of the former INS. In particular, both agencies assimilated major components of the former Customs Service, an agency previously within the U.S. Department of the Treasury, as well as other agencies. Often, these agencies had an institutional culture and administrative infrastructure that was very different from that of INS. To an appreciable extent, these differences continue to live on in the existing agencies, complicating their efforts to implement a uniform immigration mission. ICE is a prime example of this fact. ICE is made up of two distinct operational departments or branches, the Office of Investigations (“Investigations”) and the Office of Detention and Removal (“D&R”). The former is responsible for investigating both civil and criminal violations of the law involving immigration, customs, drug smuggling, human trafficking, and other areas. Generally speaking, Investigations is dominated by former Customs Service officers and procedures. It has a pronounced criminal law orientation, and many of its officers lack significant immigration experience. D&R, on the other hand, evidences a predominant immigration law orientation and is dominated by former INS officers. D&R has responsibility for identifying aliens who are in the United States in violation of the immigration laws, for arresting and detaining such aliens pursuant to civil immigration law and regulations promulgated in furtherance thereof, and
6
See section 471 of Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (Nov. 25, 2002), as amended by the Homeland Security Act Amendments of 2003, Div. L, Consolidated Appropriations Resolution, Pub. L. No. 108-7, 117 Stat. 11 (Feb. 20, 2003).
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instituting the necessary steps and proceedings to expel deportable aliens from the country. One of ICE‟s key functions is to initiate and prosecute removal proceedings against inadmissible or deportable aliens. ICE, just as CBP and CIS, has its own Office of General Counsel, which is staffed by a corps of trial attorneys. These represent ICE in administrative removal proceedings before the Immigration Court and the BIA. They also assist the Office of the U.S. Attorney whenever that Office has to appear in judicial proceedings involving an immigration matter. B. EXECUTIVE OFFICE FOR IMMIGRATION REVIEW (EOIR”). In the days when “Legacy INS”7 was the agency principally charged with enforcing and administering the immigration laws, the EOIR was the other agency within the U.S. Department of Justice with an important role in the immigration process. EOIR continues to be the umbrella agency within DOJ for the nationwide network of Immigration Courts, the Board of Immigration Appeals (“BIA”); and the Office of the Chief Adminstrative Hearings Officer (“OCAHO”). The various Immigration Courts are a system of administrative trial courts for hearing removal, deportation, exclusion, special asylum, and similar proceedings involving aliens. Each Immigration Court has at least one Immigration Judge (“IJ”), whose role, authority, duties, and qualifications are specifically defined by statute and regulation.8 The network of Immigration Courts is headed by the Office of the Chief Immigration Judge. The Board of Immigration Appeals or “BIA” is the administrative appellate tribunal within EOIR to which the alien or ICE can appeal an IJ‟s decision in a removal or other proceedings held for the purpose of determining whether an alien should be expelled or excluded from this country. The BIA also has jurisdiction to hear an alien‟s appeal from certain other decisions, e.g., to seek review of a USCIS District Director‟s denial of an I-130 Alien Relative Petition based on marriage to a U.S. citizen. The OCAHO is a tribunal within EOIR which is tasked with hearing and deciding certain proceedings related to unlawful employment of aliens (employer sanctions), employment-related document fraud, and unfair immigration-related employment practices. C. DEPARTMENT OF STATE (“DOS”). Within DOS, the Bureau of Consular Affairs is charged with adjudicating immigration benefits, principally by making decisions on applications for immigrant and nonimmigrant visas at U.S. consulates overseas. DOS promulgates its own immigration regulations to carry out the Act. While the DHS immigration regulations are found at Title 8 of the Code of Federal Regulations, the DOS immigration regulations are at Title 22, particularly parts 22 (fee schedule for
7
“Legacy INS” is the term commonly used in DHS parlance when referring to the former INS, the predecessor agency for DHS‟ immigration agencies, CIS, ICE, and CBP. 8 See, generally, INA §§ 101(b)(4) & 103(g)(1), 8 USC §§1101(b)(4) & 1103(g)(1); 8 CFR §§ 1001.1(l), (10) & (14); 1240.1(a), (.34), (.42); 1208.2; 1235.3; 1236.1(d)(1).
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consular services), 40 (regulations pertaining to nonimmigrants and immigrants, 41 (documentation of nonimmigrants), and 42 (documentation of immigrants). II. “IMMIGRANTS”, “NONIMMIGRANTS”, AND DOCUMENTATION OF IMMIGRANT STATUS. As noted at the outset, the Immigration and Nationality Act (“INA”) establishes an immigrant selection system. It defines the term “alien” as “any person not a national or citizen of the United States.”9 In turn, the universe of “aliens” comprises two categories: immigrants and nonimmigrants.10 The former class, defined by the term “immigrant”, consists of every alien EXCEPT an alien who falls within one of the classes of “nonimmigrant” enumerated at INA § 101(a)(15)(A) through (V). A. NONIMMIGRANTS. As the statutory numbering scheme suggests, there are many different classes of nonimmigrants11. These include, among others, ambassadors, crewmen, visitors for pleasure, visitors for business, academic students, vocational students, certain professionals, intracompany transferees (persons transferred from a company abroad to an affiliated company in the U.S.), exchange visitors, and religious workers. Most nonimmigrant categories presuppose that the alien will remain in the U.S. for a temporary period of time, that he intends to return to his home country, and that he does not intend to work in this country. Some nonimmigrant visa categories do permit limited extensions of the period of stay; some can be extended indefinitely. Most nonimmigrant visas do not allow the alien to work in the United States. Even those that do allow employment often contain limitations on the place, type of job, and employer involved; other nonimmigrant visa categories do not impose such limitations. Typically, an alien seeking to come to the United States will apply for a nonimmigrant visa at a U.S. consulate overseas by filing a form DS-156 Application for Nonimmigrant Visa. Depending on the type of nonimmigrant visa sought, approval of the alien‟s nonimmigrant visa application at the Consulate may require, as a condition precedent, that the alien‟s prospective U.S. employer or some other U.S. party file and obtain approval from CIS in the United States of a nonimmigrant petition on the alien‟s behalf. If the Consulate grants the visa, it will place a visa laminate in his foreign passport. On arrival at a U.S. port of entry, the alien will then present his foreign passport with the visa to the CBP officer at the port of entry. At that point the alien is considered to be making an “application for admission” to the U.S. in the visa category stamped into his passport. The CBP officer has to determine whether to admit the alien in that particular nonimmigrant visa category and for how long a period to admit him. Suppose, for example, that the alien is seeking admission on a visitor visa. Such a visa does not normally allow the alien to work in the U.S. Thus, the CBP officer may require the alien to show that he has sufficient funds to sustain himself while visiting the U.S. A visitor visa also requires that the alien have a particular purpose for his sojourn in the U.S.
9
INA § 1101(a)(3) INA § 101(a)(15), 8 USC § 1101(a)(15). 11 See INA §101(a)(15), 8 USC § 1101(a)(15); 8 CFR Pt. 214; 22 CFR Pt. 41
10
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consistent with that of a temporary visitor. Thus, an alien may be admitted if his purpose is to tour the Grand Canyon, to visit his Aunt Emma, or to obtain medical treatment, but he may not be admitted as a visitor if his intention is to go to school or to marry his U.S. citizen girlfriend. For that purpose, the alien would need a student visa or fiancé visa, respectively. A CBP officer who determines that a nonimmigrant applying for admission is in fact inadmissible has discretion to allow such alien to withdraw his application for admission. In that scenario, the alien is allowed to return to the foreign port of embarkation without being ordered removed or being placed in removal proceedings. If the CBP inspector determines that the alien applying for admission is inadmissible because he has made a misrepresentation or because he does not have the proper documents to be admitted, the inspector has authority to order the alien removed from the United States without further hearing or review, except in a situation where the alien declares an intent to apply for asylum or states a fear of persecution. Once entered and executed, such an “expedited removal order” has the same legal effect as a removal order entered in removal proceedings before an Immigration Judge.12 Oftentimes, an alien admitted to the U.S. in some nonimmigrant category will violate the terms or conditions of his nonimmigrant status. He may overstay his period of admission. He may work when he is not authorized to do so. If he is a student, he may stop going to school. If he has been admitted in an employment-based nonimmigrant category, he may quit his job or go to work for another employer, for whom he has not been authorized to work under the terms of his nonimmigrant admission category. The result? The visa violation renders the alien subject to removal proceedings. Failure to abide by the terms of one‟s admission is a ground of deportability, i.e., a legal basis upon which ICE can obtain an Order of Removal against the alien in removal proceedings.13 B. Immigrants.
Generally speaking, the INA presumes that all aliens are immigrants, except those who are affirmatively shown to be bona fide nonimmigrants.14 Thus, the category "immigrant" includes aliens who already have lawful permanent residence ("green card") status, aliens in the process of applying for such status, undocumented ("illegal") aliens, and indeed all aliens in the United States who are not in bona fide nonimmigrant status. An alien with so-called “green card status” is one who has been “lawfully admitted for permanent residence”. Under the INA
12 13
See, generally, INA § 235, 8 USC § 1225. See INA § 237(a)(1)(C)(i), 8 USC § 1227a(a)(1)(C)(i). 14 See INA § 214(b), 8 USC § 1184(b), which provides in relevant part: “Every alien…[other than an H-1B1, L, or V nonimmigrant as defined by INA §§ 101(a)(15)(L), (V), or (H)(1)(b)(1)] shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 101(a) (15).”
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“The term „lawfully admitted for permanent residence” means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.” Only lawfully admitted permanent residents, also known as “LPR‟s”, may be issued a “permanent resident card” or “green card”.15 It is important to note that the “green card” is only a document evidencing a particular immigration status. The card is not the status, itself. Aliens who have been granted LPR status continue to do so even if their “green card” expires, the green card is lost, or the green card, due to an administrative mix-up, is never issued. Notably, many immigrants who have been accorded some temporary or permanent immigration status other than LPR “green card” status may apply for, and be issued, employment authorization.16 Just like the “green card” does for LPR‟s, the Employment Authorization Document, or “EAD”, issued to such documented, but nonLPR aliens will usually display the “alien registration number” or simply “A number” assigned to the alien. Besides the alien‟s name, it will also show the 8 CFR § 274a.12 category under which the alien‟s employment authorization has been issued, the date of issuance, and the date the card‟s validity expires. Oftentimes, an alien‟s EAD, even if expired, may be the ONLY documentation that the alien has to evidence his immigration status. Thus, he is wise to carry it on his person at all times for that purpose. An EAD is NOT, repeat: is NOT, however, evidence of alien registration and fingerprinting, and it is NOT a travel document. III. APPLYING FOR PERMANENT STATUS IN THE UNITED STATES. The Act establishes a two check system as the main mechanism for deciding which immigrants are accorded lawful permanent residence.17 These two checks
15
Pursuant to INA § 262, 8 USC § 1302, all aliens who are 14 years of age or older, who have not previously been registered and fingerprinted as aliens, and who remain in the United States for 30 days or longer, are required to apply for registration and be fingerprinted before expiration of such 30 days. There are various forms that may be used to register. See 8 CFR § 264.1(a). There is a separate set of forms that may be used to prove that one has registered, see 8 CFR § 264.1. 1(b). Some of the enumerated forms serve both purposes. When a nonimmigrant is admitted to the U.S. at a port of entry, he is typically issued a form I-94, with his name, date of birth, country of origin, date & place of admission, and period of admission. That is proof of registration for such nonimmigrant. When an alien is granted LPR status, he is issued a form I-551, “permanent resident card”, otherwise known as “green card”. Technically, the green card is evidence that alien has registered and been fingerprinted as required by law. As a practical matter, the “green card” has become the primary means of documenting the aliens status as an alien “lawfully admitted for permanent residence.” 16 See 8 CFR § 274a.12, in particular subsection (c), for an enumeration of classes of aliens permitted to apply for, and be granted, an employment authorization document. The list includes, among others, dependent spouses and children of diplomats; certain nonimmigrant students; the dependent spouses and children of exchange visitors; certain applicants for asylum; certain applicants for adjustment of status; parolees; aliens granted deferred action; aliens with a final order of removal who are under an order of supervision; aliens with Temporary Protected Status. 17 In addition to the selection system based on immigrant visa issuance at a consulate overseas or adjustment of status in the U.S., the Act also sets forth procedures for obtaining permanent status based on
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correspond to two distinct types of limitation on the incoming flow of immigrants. The first limitation is based on the concept of ELIGIBILITY TO FILE AN APPLICATION TO IMMIGRATE. It corresponds to the limits in the Act on the number of immigrants that can be admitted in different categories each year. The second limitation is based on the concept of the individual alien‟s ADMISSIBILITY, i.e., certain individual characteristics or attributes that the prospective immigrant must have, or must NOT have, in order to be “lawfully admitted for permanent residence.”18 A. ELIGIBILITY. Proving eligibility involves both a substantive and a procedural component. To be eligible to apply for an immigrant visa, a prospective immigrant first has to prove that she fits within a particular statutory category of eligibility AND that a visa number is available at the time she files her application to immigrate. Substantively, the two most common criteria for establishing eligibility are based on certain family relationships and prospective employment relationships. In family cases, substantive eligibility is established by obtaining approval from CIS of a Petition filed on the immigrant‟s behalf by a family member who is a U.S. citizen ("USC") or LPR, where that USC or LPR Petitioner has a certain, statutorily defined relationship to the immigrant Beneficiary. (Ex.: Husband-wife, parent-child, brother-sister)19. In a typical employment-based case, a U.S. employer goes through a multi-step process to prove first to the U.S. Department of Labor (“DOL”) and later to USCIS that the employer should be allowed to hire a particular foreign worker and, as a necessary part of that process, that the foreign worker should be allowed to apply for LPR status. Notably, some employment-based cases do not require DOL involvement. .For example, if the prospective employee has extraordinary qualifications in his field, or his being employed in a particular position in the United States would be in the “national interest”, the U.S. employer may simply file a petition with USCIS thoroughly documenting that fact. Substantive eligibility to immigrate may also be shown by the alien's obtaining USCIS approval of a special immigrant petition. Here, the alien establishes that s/he fits into one of several statutorily defined categories of individuals (certain juveniles, certain former members of the Armed Services, certain religious workers, etc.)20, and by virtue of that fact is rendered eligible to file for LPR status. Another basis for eligibility is winning the visa lottery. Each year the Department of State sponsors a lottery on the internet in which up to 55, 000 immigrant visas are distributed to applicants from eligible countries.21 Still yet another basis for eligibility is proof of an alien's conditional
a grant of refugee or asylee status; procedures for obtaining LPR status in removal proceedings based on the alien‟s length of physical presence in the U.S. and hardship to qualifying U.S. citizen and LPR relatives resulting from the alien‟s removal from the country; and other avenues for obtaining permanent status. 18 INA § 101(a)(20), 8 USC § 1101(a)(20). 19 . See, generally, INA § 203(a), 8 USC § 1153(a).
20
.INA § 101(a)(27, 8 USC § 1101(a)(27)
.INA § 203(c), 8 USC § 1153(c).
21
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admission as a refugee or his having obtained approval of asylee status while physically present in the U.S.22 together with proof that the refugee / asylee has thereafter resided in the U.S. for at least one year. Procedural eligibility is based on proof that an immigrant visa number is available to the alien beneficiary based on his “priority date”, i.e., the date on which the Petition on his behalf was received at USCIS or at the Department of Labor. To further explain: The Act assigns an unlimited number of visas to certain classes of alien beneficiaries, such as the parents, spouse, or minor unmarried children of a U.S. citizen (also known as "immediate relatives")23. Persons in this category have the right to apply for immigrant status immediately after, or at the same time as, a petition filed on their behalf is approved. With respect to other categories of alien beneficiaries, the INA sets numerical per country limits on the number of persons that may be admitted in any one year in each category24. For example: The law sets an annual maximum of non-immediate relative family-sponsored immigrants at 480,000; of employment-based immigrants at 140,000; of diversity visa lottery immigrants at 55,00025. Moreover, these aggregate numbers are further broken down within each category of eligibility. Thus, of the 480,000 slots assigned to the family-based category, 23,400 are allocated to unmarried adult sons and daughters of U.S. citizens; 23,400 are allocated to married adult sons and daughters of U.S. citizens; 65,000 are allocated to siblings of U.S. citizens; and a 114,200 plus an additional amount are allocated to spouses and single, minor children of permanent residents26. To determine the allocation of these numbers, when a family-preference based Petition or an employment-preference based petition is filed for a particular alien, the date the Petition is received by USCIS or the U.S. Department of Labor establishes the alien's priority date in the category of eligibility under which the alien intends to apply for LPR status. The U.S. Department of State issues a monthly advisory indicating, for each category of numerically limited visas, the priority date of the petitions being processed that particular month. By comparing the changes in priority dates for the current and earlier months, one can estimate how long it will take for a particular petition to become "current", ie., ready for processing. An alien beneficiary cannot, repeat
22
.INA § 208, 8 USC § 1158. .INA § 201(b), 8 USC § 1151(b). .INA § 201(a) & (c)-(e), 8 USC § 1151(a) & (c)-(e). See INA § 201(a), 8 USC § 1151(a).
23
24
25
26
. See INA § 203(a), 8 USC § 1153(a). Note that the above is an example for illustration purposes only. The actual formulas for determining allocable preference category numbers is much more complicated, as INA §§ 201-203 make evident. 8 – OVERVIEW OF IMMIGRATION LAW & THE IMMIGRANT SELECTION SYSTEM
CANNOT, proceed with his application to immigrate UNTIL HIS PRIORITY DATE IS CURRENT. The Act envisions that alien beneficiaries within a numerically limited class, or preference category, may have to wait months or years before their petitions become current and they can actually apply for LPR status. In the meantime, unless they have some other legal basis to be in this country, these intending immigrants are NOT legally allowed to reside here, although many in fact do reside here. Moreover, a few narrow exceptions aside, these intending immigrants cannot, repeat CANNOT, get work authorization. B. ADMISSIBILITY. Once eligibility is established, the Alien Beneficiary of a petition has to establish that he is admissible as an immigrant. To that end, he has to apply for permanent resident status and show that he is not subject to any grounds of inadmissibility. That can be done in one of two ways. Either the alien can file an Application for Immigrant Visa, form DS 230 Pts. I&II, and supporting documents, with the U.S. Consulate overseas that has jurisdiction over his foreign residence. When the Application has been approved and the visa has issued, the alien must travel with it to the United States. On his admission to the U.S., he will be accorded LPR status. Alternatively, if the alien is in the United States, subject to certain limitations he can file an Application to Adjust Status, form I-485, to the USCIS. If and when that Application is approved, the USCIS will adjust his status to that of an LPR. Notably, certain aliens are precluded from filing for adjustment.27 For example, aliens who last entered the U.S. without admission, certain aliens who worked without authorization or otherwise violated their visa status prior to applying for adjustment, alien crewmembers who jumped ship, and others are not permitted to file for adjustment of status.28 (They are, however, eligible to apply for an immigrant visa at the appropriate overseas consulate.) Whether the alien applies for adjustment of status in the United States or applies for an immigrant visa at a U.S. Consulate overseas, as part of that application he has to demonstrate that he does not come within one or more grounds of INADMISSIBILITY. The main categories of inadmissibility are: persons with certain health problems (e.g., drug addiction, alcoholism, AIDS, syphilis, tuberculosis, leprosy, etc.); persons who have committed certain crimes; persons who are threats to national security, Nazis, Communists, terrorists, or spies; persons who are likely to become public charges, i.e., who, upon admission, are likely to require public assistance (e.g., welfare, Oregon Health Plan, etc.);
27 28
See INA § 245(a) & (c), 8 USC § 1255(a) & (c); 8 CFR § 245.1. There is an exception to this ineligibility to adjust under INA § 245(i), 8 USC § 1255(i), but it is not available to most aliens.
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so;
persons seeking to work in the U.S. who do not have authorization to do
persons who have committed certain violations of the immigration laws; persons who lack Government issued documentation showing that they have been permitted to enter the U.S.; persons who illegally avoid their U.S. military service obligation; persons who have previously been removed from the U.S.; polygamists, certain child guardians, and international child abductors29. For many, but not all, of these grounds of inadmissibility, the alien may be able to obtain a discretionary waiver, so that he can after all gain admission to the United States.30 Typically, the alien subject to such a ground of inadmissibility will have to file, with his Application for Immigrant Visa or his Application for Adjustment of Status, an Application for Waiver of Grounds of Inadmissibility, Form I-601. Where the alien is subject to inadmissibility on account of a prior deportation or exclusion31, he will have to file an Application for Permission to Reapply for Admission Into the United States After Deportation or Removal, Form I-212. In some cases both an I-601 and an I-212 will be required.32 C. REFUGEES OR ASYLEES. Under international law (the law governing the conduct of states), every country has a legal duty to accept bonafide refugees and asylees fleeing certain types of persecution33. Various international conventions also require that states not return certain persons who do not qualify as refugees to their country of nationality or last residence because they will be subject to persecution, torture, or other inhumane treatment there34. In conformance with this country's international obligations as well as the express will of Congress, as part of the immigrant selection system domestic law makes it possible for bonafide refugees and asylees to enter and remain in United States and for certain others to remain here at the sufferance of the government.
29
.See INA § 212(a)(1)-(10), 8 USC § 1182(a)(1)-(10).
30
See, e.g., INA § 212(c) [waiver of inadmissibility for certain long-term permanent residents]; (d) [documentary, nonimmigrant, and other waivers]; (e) [exchange alien waivers]; (g) [waiver of medical inadmissibility grounds]; (h) [waiver for criminal grounds of inadmissibility]; and (i) [waiver for misrepresentation ground of inadmissibility]. 31 See INA § 212(a)(9)(A) 32 See, generally, 8 CFR § 212, particulary 212.2 and 212.7.
33
.See U.N. Convention relating to the Status of Refugees, opened for signature July 28,1951, 19 U.S.T. 6259, 189 U.N.T.S. 137; U.N. Protocol relating to the Status for Refugees, opened for signature Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267.
34
.See Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, Adopted and opened for signature December 0, 1984, G.A. res. 39/46, annex., 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, for the United States, April 15, 1988. 10 – OVERVIEW OF IMMIGRATION LAW & THE IMMIGRANT SELECTION SYSTEM
Generally speaking, a refugee is someone outside of the United States who is seeking refuge in the United States because he is unwilling or unable to avail himself of the protection of his home state or state of last residence, or is unwilling to return to such state, for the reason that he has been persecuted in the past, or has a well-founded fear of being persecuted in the future, on account of his race, religion, nationality, membership in a particular social group, or political opinion35. An asylee is someone who is already in the United States and is seeking refuge in this country because he claims that he meets the definition of a refugee.36. Numerically, a grant of refugee status is based on the overseas alien applying for refuge being assigned an immigrant admission number from a refugee quota that is annually set by the President.37 When the refugee arrives in the U.S., he is conditionally admitted based on that assigned number. Globally, with some narrow exceptions, CBP cannot admit more refugees in any one year than as provided by the quota established for that year minus 10,000 slots. After the refugee has been in the U.S. for one year, he is required to apply for adjustment of status as a refugee under INA § 209, 8 USC § 1159 (not INA § 245, 8 USC § 1255). There is no limit on the number of asylum applications that can be granted in any one year. However, asylees, who, like refugees, are required to apply for adjustment one year after their asylum application has been granted, only have available for adjustment the 10,000 slots set aside in the refugee quota. Since more than 10,000 asylum cases are approved each year, there is currently a backlog of asylee adjustments. Like other immigrants applying for LPR status, refugees and asylees applying for adjustment are subject to the grounds of inadmissibility set out at INA § 212(a), 8 USC § 1182. However, they also have a more generous waiver provision under INA § 209(c). That provision exempts asylees and refugees from certain inadmissibility grounds altogether and provides that most other grounds may be waived “for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.” D. PAROLEES. Sometimes, emergencies arise which make it impossible for an alien to go through the time-consuming process of establishing his or her eligibility to enter the U.S. as an immigrant or nonimmigrant under one of the established categories. Alternatively, the alien simply may not qualify for either a nonimmigrant or immigrant visa. The Act vests CIS with discretion to permit certain aliens to enter the U.S. for emerging humanitarian reasons or reasons rooted in the national interest. The parameters for determining whether an individual or group of indivduals fits into this category are set out in special regulations. These include special procedures for issuing documentation for aliens to come into the country on parole.38
35
.See INA § 101(a)(42), 8 USC § 1101(a)(42). .INA § 208, 8 USC § 1158; 8 CFR 208.13.
See INA § 207, 8 USC §1157.
36
37
38
.See INA § 212(d)(5), 8 USC § 1182(d)(5); 8 CFR § 212.5.
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E. PERMANENT STATUS OBTAINED IN PROCEEDINGS BEFORE EOIR. Some immigration benefits can only be obtained from USCIS. For example, only USCIS can decide, in the first instance, a family-based petition or an employment petition. While an Immigration Court has no jurisdiction to adjudicate either petition, on appeal from a CIS denial, the BIA has exclusive jurisdiction to review the family petition denial; while CIS‟s own Administrative Appeals Office has exclusive jurisdiction over the denial of an employment petition. Some immigration benefits may be applied for before CIS or the Immigration Court. Thus, an alien whose adjustment of status application has been denied can renew that application in removal proceedings before the Immigration Judge. Even if the alien never filed an adjustment application to CIS, he can file one in the first instance to the Immigration Court. Similarly, an asylum application that CIS is not prepared to grant will be referred to the Immigration Court. And there, too, the alien may file his asylum application for the first time in Immigration Court. Some immigration benefits can only be obtained before the Immigration Judge. For example, an undocumented alien who is in removal proceedings, who has been physically present in the United States for more than 10 years, who has been a person of good moral character during those years, who has a USC or LPR spouse, parent(s), or child(ren), and who is able to show that these relatives will suffer “exceptional and extremely unusual hardship” if the alien is removed from the U.S., may be granted LPR status by the IJ in the exercise of the IJ‟s discretion.
IV.
ENFORCEMENT OF THE IMMIGRATION LAWS
DHS‟ role in enforcing the immigration laws is complex. On the one hand, through CIS it adjudicates petitions and applications for immigration benefits created by the INA. On the other hand, through ICE and CBP it also serves as the immigration police, investigator, and prosecutor. As part of its enforcement function, the DHS has its own uniformed police force, the Border Patrol, and a corps of armed detention and deportation officers . It also has its own corps of trial attorneys that represent ICE in administrative removal proceedings. Under the INA there are both criminal and civil penalties for enforcement of the immigration laws. Thus, for example, it is a crime for an alien to illegally enter the country39, or to reenter after deportation or removal40. It is also illegal for a U.S. citizen to assist an alien in to illegally enter the country41; for an alien or a U.S. citizen to enter into
39
.INA § 275, 8 USC § 1325. .INA § 276, 8 USC § 1326. .INA § 274, 8 USC § 1324.
40
41
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a marriage for the principal purpose of the alien's obtaining a green card 42; and for a U.S. employer to habitually hire undocumented aliens, knowing they are undocumented aliens43. However, aside from illegal reentry, immigration crimes are rarely prosecuted, presumably because the criminal justice system is overwhelmed with other crimes involving drugs and/or violence. The most common civil authority for enforcement of the immigration laws is the removal power. Just as there are stringent criteria for the selection and admission of immigrants, there are standards for removing those aliens whose continued presence in this country, for one reason or another, is deemed inimical to the health and welfare of the United States. Section 237 of the INA sets out various classes of deportable aliens, which include the alien‟s inadmissibility at the time of entry or adjustment of status, his presence in violation of law (i.e., presence that has not been authorized under the immigration laws), violation of status, alien smuggling, procuring immigrant status through sham marriage, and misrepresentation at the time of admission. Section 237, 8 USC §1227, also sets out various grounds based on criminal behavior 44, immigration law violations, national security concerns, and other matters. Notably, the criminal grounds are similar to, but not identical with, the criminal grounds of inadmissibility set out in INA section 212(a)(2), 8 USC §1182(a)(2), and have their own waiver section that is distinct from the waivers available under INA section 21245. Whereas the U.S. Attorney‟s office prosecutes immigration crimes, the ICE‟s Office of General Counsel is responsible for representing DHS in administrative removal proceedings. Each Field Operations Office of ICE has its own Office of the Chief Counsell, which answers to the ICE‟s Office of General Counsel and represents ICE that District. With some exceptions46, persons who come within the grounds of inadmissibility, or who come within the categories of deportable aliens, are placed in removal proceedings by the ICE‟s filing a charging instrument known as a Notice to Appear with the Immigration Court. Removal proceedings are administrative proceedings before an immigration judge who works for an agency within the U.S. Department of Justice known as the Executive Office for Immigration Review ["EOIR"]. EOIR is separate and distinct from the INS. Decisions of the Immigration Judge can be appealed by either the alien or the INS to the Board of Immigration Appeals, another entity within EOIR, which is located in Falls Church, Virginia. V.
42
ANALYZING AN IMMIGRATION LAW PROBLEM
.INA § 275(c), 8 USC § 1325(c). .INA § 274A(f), 8 USC § 1324a(f). .See INA § 237, 8 USC § 1227. .Compare, e.g., INA § 212(h), 8 USC § 1182(h), with INA § 240A, 8 USC §1229b. .See, e.g., INA § 235, 8 USC § 1225 (expedited removal).
43
44
45
46
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Immigration law issues can arise in a variety of contexts. The most obvious example is criminal law. When an alien is accused of a crime, the consequences of his being found guilty, or pleading guilty, on his right to remain in this country may very often be much more important to him than whether he has to spend a few days, weeks, or months in jail, or whether he has to pay a fine or do community service. When faced with a plea bargain, a harsher penalty from the criminal law standpoint may have a less prejudicial effect on his immigration status because the charge under which he is convicted if formulated in such a way that it does not render him inadmissible or deportable. In a family law context, the U.S. citizen spouse may want to dissolve the marriage but not want the alien spouse to be deported, if for no other reason than that she wants him to pay child support, which he will not be able or willing to do if he is deported. In a business context, an employer may want to promote a particular worker because he is particularly useful and loyal to the company. In each of these cases, the place to start the analysis is to figure out where the alien is in the immigration process. Is he undocumented? Does he have an employment authorization card? Is it current? And even if it is, what does the existence of such card signify about his immigration status? Does he have permanent resident status, or is he simply awaiting a decision by the INS whether to grant him that status? If he is accused of a crime, would it be better for him to resolve the matter before he is granted permanent residence or afterwards? If he is a permanent resident, how soon will he be able to apply for citizenship? And are there any impediments to his applying for citizenship? The lawyer that does not usually deal with these issues cannot be expected, in every case, to complete this analysis by himself. He or she may have to ask for advice from a local immigration practitioner to quickly go through these questions, to see if any of these issues may affect the outcome he or she is trying to achieve in the representation.
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