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 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 &
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.
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
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 &
3. Primary Fed Stat is the Imm & Nationality Act (INA), which is codified in Title 8
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
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
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
bb. The strongest presumption of membership is persons
born on the terr of parents who are citizens of the
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
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
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
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
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
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
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
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
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
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
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)
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
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
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
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
1 Naturalization was fxn historically assigned to the courts,
however in response to abuses or other systemic difficulties,
Congress established an administrative screening and
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
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
5. Judicial Review: If still denied, then applicant can seek judicial
review in accordance w/ Administrative Procedures Act, in Fed
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
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
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
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
(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
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
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
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
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.
aa It‘s an intimidating question that chills the effect of free
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
· 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
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
1. Commerce Power:
1. Power to regulate Commerce w/foreign nations & among the several
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
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
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
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
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
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
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-
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
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
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.
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
2. Order of deportation isn’t punishment: The proceeding isn‘t a
trial & sentence for a crime There are arguments on both sides
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.
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
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
1. Wong Wing added 3 principles to Fong:
1. Cong can detain (hold) w/o a trial b/c detainment isn’t
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
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
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
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
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
i DOJ: Create a Bureau of Imm Enforcement: Place all responsibility
for enforcing US imm laws to deter future illegal entry & remove illegal
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
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
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.
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):
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 &
(2) We don’t care, or does US have obligation to sending
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
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 &
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 &
Table 4.3 on pp 285: Basic Annual Immigration Ceilings: Universe of Admissions
Family Sponsored (immediate relatives & fam preferences)
Employment based preferences 140K
Diversity (low admission countries) 50K
· 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
· There are 2 broad admission categories of aliens: Immigrants & non-
· 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
(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
(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
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)
(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
– 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
(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
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
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.
(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
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
(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
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
(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) 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
(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
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
(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
(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
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
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
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
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
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.
Purpose of stat was to reunite families.
No prior immigration case involved double barreled discrimination based on sex &
Prior immigration cases involved foreign policy matters.
Facts: Appellants were unwed natural fathers who sought, either as an alien father or an
alien child a special immigration preference by virtue of relationship to cz of resident
alien child or parent. One of the applicants is a naturalized cz who petitioned to have
his illegitimate son brought to US from West Indies.
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
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
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 &
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
(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-
(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
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
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.
(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
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
4. ABA rules prohibit atty from assisting client in conduct he know is
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
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
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
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
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:
(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
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
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
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
(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
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
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
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
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).
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
(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
(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
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
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
2. W/in 90 says prior to expiration, the couples must file to have conditional status
3. At this point, the 2 year mark, the INS has power to interview. Typically, INS will forgo
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
- Employer seeks cert from DOL
- Contact consulate in sending country
- DOS does inadmissibility check, pursuant to 212 (a), if check out, get visa.
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
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
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
Employer needs to show 4 things:
1 That it engaged in good faith recruitment aimed at US
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
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
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
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
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
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
(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
(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
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
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
(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
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
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
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
(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
1. 203 (b) (5) (5th employment pref, 10K/yr).
ii Requires baseline investment of $1mil, but can
be reduced to $500K for ―targeted employment
iii Need to employ at least 10 US czs or LPR,
other than applicant’s fam members:
iv s 275 (d): criminalizes ―imm related
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) 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
(2) Is parole form of assylum?
1. Noble Action?
(aa) worried that medical immigrants will become public
(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
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
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
(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
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
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
(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
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
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
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
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-
2. General policy push on Imm visas: is to move resources away
& 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
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
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).
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
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
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
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
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
2. There is no temporary requirement for job: Can be permanent
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
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
v Alien seeking L classification must have been employed by
sponsoring firm at least 1 yr w/in the 3 yrs preceding date of
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)
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 &
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
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
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.
e is a
- 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
- 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,
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
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
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
(3) There shall be no waiver for someone who has
committed aggravated felony.
No ct shall have jurisdiction to review a decision of AG
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
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
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.
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
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
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
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
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
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
(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
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
What if Z comes in seeking an LPR? There are 2
i Involuntary membership: was your guy
a member of Communist party
involuntarily, by operation of law or necc
for prof work? If have someone from
China could argue that in order to advance
in job, needed to be member of comm
party. Need to argue that despite client was
formerly client, her heart wasn‘t in it. Not
an ideological stmt, but pragmatic or
strategic stmt. It‘s all abt business. In
Hungary, attys can‘t practice law unless
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
- 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
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
a Is he admissible as an NIV? Not admissible b/c stat says
―an alien.‖ There is diff std for immigrant &
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
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
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
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:
(2) Paper sons phenomenon: some managed to pass themselves off
as close relatives of Chinese merchants & were admitted under
(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
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
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
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
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
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
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
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
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
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
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
– 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)
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
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
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
– 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
- “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
- ―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
– 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
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
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
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
– 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”:
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
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: