Immigration Law Fall 2001 (Trujillo) by ygs12945

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									Immigration Law: Fall 2001 (Trujillo):
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
        1.     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.
        2.     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 &
          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
b   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.
                     1.       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 INA-
     codifies 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 non-
                     action 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.
     i       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.
     ii      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.
     iii     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.
     iv      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 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!
v   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
    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.
7   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
             review in accordance w/ Administrative Procedures Act, in Fed
             dist ct.
v    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.
5.   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)).
            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
2   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)     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.‖
      (2)     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
              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 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.
II    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.
     A       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 one-
    time 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
    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.
a       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:
b       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.
c       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 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.
B   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.
I   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.
1.       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.
     —       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
                                     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 non-
                       imm 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
                     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.
ii   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.
iii   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.
iv    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.
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.
      8     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 Imm-
                            related 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.
      9     Gene McNary: INS Commissioner under Bush said he wants INS to be an independent
            agency rather than abolished.
      10    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.
III   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?
           (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.
           2.     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-
                            immigrant on an H-1B, but then adjust from non-immigrant visa to
                            immigrant.
                    ·       There are 2 broad admission categories of aliens: Immigrants & non-
                            imm
                            ·        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.
                    1.      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:
          vi   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
                                                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 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.
3   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
    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 long-time 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).
4   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.
            (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.
5   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.
6   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
    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:
7   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.
                                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.
       D        Family Based Immigration: Marriage Fraud: A
       1        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 &
illegitimacy.
                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 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 self-
                 defense.
(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:
        3.       Bark v INS (9th 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:
             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.
6    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:
7   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:
    1.       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 imm-
                based 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 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.
(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.
    iii    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
                             violated human rts. They were like property of employers. Long
                             term exploitation of Mexican labor.
             iii     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
             iv      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.
             v       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.
(ff)    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 656.20-656.21 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
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 656.26-27).
                                       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 (I-140).
                                        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:
                                        1       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 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.
i   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:
          2      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
                                             at end of 2-yr period.
2   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.
3   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.
4   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.
5   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
              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.
      F       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
           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 non-
                   immigrant 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.
          2nd 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.
           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.
2.   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):
            i        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 H-
                     2A 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 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
8   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.
9    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.‖
10   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.
     iii    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
11   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.
           12      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.
           13      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.
           14      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
                   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.
IV   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
                      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.
ii    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.
iii   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.
iv    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 non-inadmissible 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:
2   Immigration Control: 3 & 10 yr ban. From 1996 Act. 212 (a) (6) & (a) (9): meaning
    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
                 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:
4   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
5   National Security: 212 (a) (3)
    1.     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
exceptions.
                                   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.
                                   ii       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
                                            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.
    -      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.
6   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
              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.
IV   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, 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.
     3     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
         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.
4   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).
    ii      Form I-485 is form that you fill out: When INS officer examines I-
            485, 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.
    iii     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,
    iv      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.
    v       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
    vi      No JR of AG’s discretion under 245: Instead appeal reviewed by IJ
    v       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.
iv   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.)
             -        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,
                            which would price out a lot of the population.
6   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.
           7       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.
           8       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
                   deliberate about removing Habeas Corpus.
V   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
                             considered civil, rather than crim procedure.
            iii      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.
b   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
            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.
3   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
              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”:
Review:
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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