Table Of Contents
I. INTRODUCTION AND HISTORY OF IMMIGRATION ................................................... 3
II. SOURCE OF FEDERAL IMMIGRATION POWER ......................................................... 5
III. FEDERAL AGENCIES AND COURTS .......................................................................... 7
IV. ADMISSIONS; CATEGORIES AND PROCEDURES ..................................................... 11
A. IMMIGRANTS .......................................................................................................................................... 11
1. FAMILY SPONSORED IMMIGRANTS/ FAMILY SPONSORED PREFERENCES .......................................... 11
A. Immigration based on marriage ........................................................................................................................... 12
B. Sham marriages ................................................................................................................................................... 13
C. Siblings................................................................................................................................................................ 15
2. EMPLOYMENT BASED IMMIGRATION ................................................................................................ 16
A. Labor certification process .................................................................................................................................. 17
B. NON-IMMIGRANTS ................................................................................................................................ 19
V. INADMISSIBILITY OF ALIENS ................................................................................ 24
GROUNDS FOR INADMISSIBILITY .............................................................................................................. 24
A) HEALTH RELATED GROUNDS ............................................................................................................ 24
B) CRIMINAL CONVICTIONS .................................................................................................................... 24
C) FRAUD AND WILLFUL MISREPRESENTATION................................................................................ 24
D) NATIONAL SECURITY ............................................................................................................................ 25
E) TERRORISTS ............................................................................................................................................ 25
F) FOREIGN POLICY .................................................................................................................................. 25
G) PUBLIC CHARGE ................................................................................................................................... 26
A. JUDICIAL REVIEW OF VISA DENIALS ............................................................................................... 32
B. 1996 AMENDMENTS............................................................................................................................... 32
C. MODERN ADMISSION PROCEDURES ................................................................................................ 32
D. ADJUSTMENT OF STATUS.................................................................................................................... 35
E. PAROLE ................................................................................................................................................... 37
VI. CONSTITUTIONAL PROTECTION AFTER ADMITTANCE .......................................... 38
A. PUBLIC BENEFITS ................................................................................................................................. 38
VII.UNAUTHORIZED IMMIGRANTS IN THE US ............................................................ 42
A. WHY DO UNDOCUMENTED IMMIGRANTS ENTER THE US? ....................................................... 42
B. IMPACT OF UNAUTHORIZED IMMIGRATION IN THE US ............................................................. 42
C. CONTROLLING UNDOCUMENTED IMMIGRATION........................................................................ 42
VIII.DEPORTATION ................................................................................................... 44
A. THE DEPORTATION POWER ............................................................................................................... 44
B. GROUNDS OF DEPORTABILITY.......................................................................................................... 46
1. IMMIGRATION CONTROL GROUNDS FOR DEPORTATION .................................................................... 46
a. Inadmissible at time of entry and adjustment of status........................................................................................ 46
b. Presence in the us in violation of law .................................................................................................................. 46
c. Failure to maintain nonimmigrant status (also applies overstays) ....................................................................... 46
d. Document fraud .................................................................................................................................................. 46
2. CRIME RELATED GROUNDS FOR DEPORTATION ................................................................................ 46
A. Crimes involving moral turpitude ....................................................................................................................... 46
B. Drug offenses ...................................................................................................................................................... 47
C. Aggravated Felonies ........................................................................................................................................... 47
3. TERRORIST ACTIVITIES §237(A)(4)(B) ............................................................................................. 48
4. CRIME OF DV, STALKING, VIOLATION OF PROTECTION ORDER, CHILD ABUSE, CHILD NEGLECT,
OR CHILD ABANDONMENT ................................................................................................................. 48
C. RELIEF FROM REMOVAL ..................................................................................................................... 49
1. VOLUNTARY DEPARTURE .................................................................................................................. 49
2. PROSECUTORIAL DISCRETION ........................................................................................................... 50
a. Deferred action status .......................................................................................................................................... 50
b. Stays of removal .................................................................................................................................................. 50
3. REGULARIZATION OF STATUS ........................................................................................................... 51
A. Cancellation of removal ....................................................................................................................................... 51
B. Waiver of certain exclusion grounds in deportation proceedings for long term permanent resident aliens ......... 52
IX. REMOVAL PROCEDURES ...................................................................................... 57
A. DUE PROCESS ........................................................................................................................................ 57
B. REMOVAL PROCEEDINGS UNDER INA § 240 .................................................................................. 59
C. EXPEDITED REMOVAL ......................................................................................................................... 62
1. EXPEDITED REMOVAL, GENERALLY .................................................................................................. 62
2. REINSTATEMENT OF REMOVAL ORDERS ........................................................................................... 63
3. REMOVAL OF TERRORISTS ................................................................................................................. 63
4. REMOVAL OF ALIENS WITH CRIMINAL CONVICTIONS ....................................................................... 63
5. SECRET EVIDENCE ............................................................................................................................. 64
X. DETENTION ......................................................................................................... 67
XI. JUDICIAL REVIEW OF ORDERS OF REMOVAL-- § 242 ........................................... 71
XII.NATURALIZATION ............................................................................................... 77
IJ = Immigration judge
AG = Attorney General
KA = Known As
D. Ct. = Dist. Court
CoA = Court of Appeals
AF = Aggravated Felony
I. INTRODUCTION AND HISTORY OF IMMIGRATION
1) To discover what constitutional rights are available to immigrants in the us?
2) To recognize that immigration policy of us is a result of complex social, historical, political, and economic
forces at play
Terms and terminology
Alien: INA §103 says that an alien is any person who is not a citizen or national of the
Immigrant: documented foreigners can also include those who have already come and have
resided in the us for a number of years
Illegal aliens: undocumented migrants
Refugee: persons who seek asylum because they are fleeing their country.
Lawful permanent resident: (LPR), the most coveted immigrant status, equivalent to what was a green card
National: INA §101(21) & §101(22) say that a national is a person (citizen or noncitizen)
giving permanent allegiance to a state. There is a reciprocal duty of a state to
give protection to a national.
Remember: To study and understand immigration law, you must look at
statutes first, cases second, and policy third. Moreover, much
of immigration policy is decided administratively.
1) Congress has exclusive power concerning admission of aliens, their naturalization, and
their conduct. Graham v. Richardson
2) Plain language of statute. In matters of statutory interpretation, a court must interpret the statute in
light of the purposes congress sought to achieve in enacting it. Absent a clearly expressed legislative
intent to the contrary, the statutory language is regarded as conclusive.
3) Look at legislation history and intent of Congress. Judicial inquiry into immigration legislation
is limited. Court has repeatedly emphasized that Congress has the sole and absolute power
concerning the admission of aliens and that there is limited judicial responsibility to review Congress’
line-drawing. See Fiallo v. Bell. Furthermore, the Supreme Court in Kleindest v. Mandel held that a
court must uphold the legislation if there is a “facially legitimate and bona fide reason” for the statute’s
enactment and that it should not look behind the INS’ discretion in immigration decisions for that
4) “Clear statement rule” of statutory construction for Deportation Statutes Has Congress
stated with clarity what grounds shall render the alien deportable?
5) “Expression of one thing is the exclusion of another” Doctrine. Young v. Reno.
6) State enactment versus federal enactment? The level of judicial scrutiny of federal
classifications involving alienage is far more deferential than that applied to the state. Matthews v. Diaz.
The federal govt. possesses the exclusive power to regulate immigration. That power derives from the
Constitution’s grant to the federal govt. of the power to establish a uniform rule of Naturalization and Congress’
plenary power to conduct foreign affairs. Article 1, Section 8.
In addition the USSC has held that the federal govt.’s power to control immigration is inherent in the nation‟s
sovereignty. See Chan Chae Ping and Fong Yue Ting.
Judicial inquiry into immigration legislation is limited. Court has repeatedly emphasized that Congress has
the sole and absolute power concerning the admission of aliens and that there is limited judicial responsibility to
review Congress’ line-drawing. See Fiallo v. Bell.
Additionally, in the exercise of its broad power over immigration and naturalization, Congress „regularly
makes rules that would be unacceptable if applied to citizens.‟ There is a narrow standard of review for
immigration and naturalization decisions. Matthews v. Diaz
The admission of aliens, their naturalization, and the regulation of their conduct are within the exclusive power of
the federal government. That is, state laws are preempted by Congressional authority to regulate the
activities of resident aliens. Graham v. Richardson.
However, the Court has never held that every state enactment which in any way dealing with aliens is a regulation
of immigration and thus per se preempted by the plenary power. DeCanas. See DeCanas 3 Tests used to
determine whether a state statute is preempted (pg. 28 of outline)
The level of judicial scrutiny of federal classifications involving alienage is far more deferential than that applied to
the state. Matthews v. Diaz.
Although Congress’ plenary power give its authority over immigration and naturalization made clear in Chan Chae
Ping, the federal power over aliens is not so plenary that any agent of the National Govt. may arbitrarily subject all
resident aliens to different substantive rules from those applied to citizens. Mow Sun Wong.
The USSC has consistently recognized that our immigration laws have long made a distinction between those
aliens how have come to our shores seeking admission…and those who are within the US after an entry,
irrespective of its legality. Fong Yue Ting established that there is Congressional power to deport foreigners. It
also stands for the proposition that due process applies in deportation proceedings. However, excludable
aliens have NO DUE PROCESS rights in the admissions process. In the latter instance, the Court has
recognized additional rights and privileges not extended to those in the former category who are merely on the
threshold of initial entry. Mezei.
In Mezei, the USSC noted that “aliens who have once passed through our gates, even illegally, may be
expelled only after proceedings conforming to traditional standards of fairness encompassed in due
process of law.”
An excludable alien, however, has no procedural due process rights regarding his admission or
exclusion and thus stands on a different footing. Thus, the USSC stated in Knauff that “whatever the
procedure authorized by Congress is, it is Due Process as far as an alien denied entry is concerned.”
However, In Landon v. Plasencia, the USSC made clear that a resident alien who briefly leaves the US
is entitled to DP when she returns. However, in a footnote to the case, the Court made clear that
exactly what DP procedures are due was not decided. Whether the excursion was brief is
determined on a factual case by case basis and whether the alien intended to abandon the United
States and his LPR status.
Fiallo, Mandel, and similar cases largely immunize the political branches’ substantive immigration decisions (i.e. what categories
of aliens are allowed to enter and remain in the US) from judicial scrutiny. The Supreme Court has repeatedly made clear that
a court must uphold the legislation if there is a “facially legitimate and bona fide reason” for the statute’s enactment and that it
should not look behind the INS’ discretion in immigration decisions for that reason. See Kleindest v. Mandel.
Knauff-Mezei doctrine largely immunizes the political branches’ procedural decisions in exclusion cases.
Yamataya, Plasencia, and other cases suggest greater judicial scrutiny for procedural due process claims.
Wong Wing and other cases place constitutional constraints on government imposed punishment.
Wong Wing afforded 5th and 6th Amendment protections to aliens, but only with respect to criminal sanctions, not
immigration proceedings. It held that, while legislation incarcerating for the violation of immigration laws can be
imposed, such legislation must provide for a judicial trial to establish the guilt of the accused. 4
II. SOURCE OF FEDERAL IMMIGRATION POWER
The US, since its founding has engaged in a national discussion over how many and what kind of immigrants should
be permitted to enter and take up residence. What these debates have almost always taken for granted is the power
of congress to regulate immigration and stipulate under what conditions immigrants may enter. Nowhere in the
constitution is it written that congress has authority over immigration policy. The USSC did not address the source
of congress’ power over immigration until Chinese immigration was at the heart of the debate and the Chinese
exclusion act became the first federal immigration statute to be subjected to judicial scrutiny.
CHAE CHAN PING V. UNITED STATES (CHINESE EXCLUSION CASE)
Issue: whether congress could exclude immigrants, including resident aliens, from returning to the us
vis a vis the Chinese exclusion act.
doctrinal holding was that the us can regulate the entrance of immigrants bc
1) Plenary power of congress severely limits aliens‟ constitutional rights when it comes
to entering or remaining in this country
2) We can regulate whenever a national purpose, or public good, is at issue with
3) The power to regulate immigration is inherent in the concept of a sovereign nation.
4) Last expression, or amendment, of sovereign, must control. Treaties are looked at
in the context of all legislation. Treaty does not prevail.
Assumption: immigrants pose dangers that must be regulated.
Held that immigrants within the us borders are protected by the constitution in
Dealt with Chinese laundromat owners and the constitutional protections applied to them. Note that
the Chinese in Yick Wo were already here within the us borders. In Chinese exclusion, the plaintiff
was seeking admission.
However, note that courts can find creative ways to come up with arguments that avoid around the
plenary power of congress
FONG YUE TING
Held that there is congressional power to deport foreigners
Fong also stands for two propositions:
1. That deportation is not punishment and
2. That due process procedures apply in deportation proceedings
Right to exclude and deport are two sides of the same coin and rest on same source of
congressional power --inherent sovereignty of independent nations. That is, every nation has
a right to refuse to admit a foreigner into the country, when he cannot enter without putting
the nation in danger. Thus, also it has a right to send them elsewhere.
Deportation is not punishment and there is no DP violation bc aliens are not immediately
deported but are given a hearing.
Resident aliens are not entitled to the protection of the constitution. They have not taken steps to
become us citizens.
OTHER SOURCES OF IMMIGRATION POWER
1. Commerce power
USSC has concluded that migration is commerce in only one case; Edwards v. California. In
Edwards, a ca statute that made it a crime to bring an indigent person into the state was struck
down as an unconstitutional interference with congress’ power to regulate interstate
The court concluded that “it is settled beyond question that the transportation is commercial in
2. Naturalization power
Constitution grants congress the power to establish a uniform rule of naturalization to prevent
confusion and controversy that could arise for separate state laws bestowing citizenship. The
question is, does the power to naturalize imply the power to regulate the admission of aliens
who may eventually be eligible for naturalization?
In the early years of the republic, congress viewed the naturalization power as a way to
regulate immigration. In most states, aliens could not own or inherit land, vote or hold office
– disabilities that were removed upon naturalization.
3. War power
Grants congress the power to declare war and gives the federal government the authority to
stop the entry of enemy aliens and to expel enemy aliens residing in the us. The
constitutionality of this provision has been consistently upheld.
But this may not mean that this power authorizes the mass of statutes that presently regulates
immigration. The migration and importation clause appears to authorize congressional
power to prohibit immigration after 1808 and probably to regulate it as well. But this most
likely refers to an institution that the framers could not bring themselves to recognize by
name: slavery. Thus, this clause has generally been interpreted as prohibiting congressional
attempts to stop the slave trade before 1808.
4. Inherent power
a. Plenary power (foreign affairs power)
Used as justification by j. Field in Chinese exclusion case, despite that the foreign
affairs power receives no mention in the constitution. Thus, the power really lies in
the plenary power of congress.
Under the plenary power of the federal government’s power to conduct foreign
affairs, whether or not it justifies federal regulation of immigration has led the courts
to invalidate state statutes that attempt to regulate immigration.
Allows congress to be outside the reach of judicial intervention on immigration
Argument is that every sovereign nation has the power to control their borders
CURRENT ANTI-DISCRIMINATION POLICIES AGAINST IMMIGRANTS
Under current ins law, there should not be preference or priority in the issuance of immigrant visas
based on nationality or race.
However, section b of the same statute does not limit the sec. Of state in such procedures.
III. FEDERAL AGENCIES AND COURTS
Generally an immigrant needs a visa to come to the us. However, there is a visa exception program in which some
immigrants are excluded simply bc of the country from which they are coming.
Process of obtaining a visa:
1) A petition has to go to ins to verify the family or employment relationship that is the basis for the
Visa Issuance immigrant to come to the us. Person who fills out the form is a benefactor, whether family
is (relative petition is form to be filled out) or Employer (petition for alien worker form).
2) The national visa center checks it for accuracy and notified the consular abroad where there is an
of Bureau of
Consular interview of the prospective immigrant. However, the interview does not take place until the
Affairs priority date is reached (priority date is when the processing of the preference category has
been reached which marks the immigrant‟s place on the waiting list). Preference category is
whether the applicant is trying to come to the us as a student or as a traveler.
3) The applicant comes in & fills out an application, swears to it, and is briefly interviewed. If there
is a ground of Inadmissibility, the visa is denied, e.g. Consular believes the alien will not return
home bc immigrant is a woman who owns no property in sending country. Most times, when a
visa is denied, it may be reviewed by another consular officer at the post. If it is of severed
importance, it can be referred to the dept of state office for an advisory opinion. Assuming that
there are no grounds of Inadmissibility, the visa is granted.
For those applying for an apr (green card), a photo, fingerprint, and signature is required.
Most immigrants who have a visa can take multiple trips to visit the US However, the visa does not
guarantee admission. Immigration officials at the border are not bound to the counsular‟s granting
of the visa.
Arrival/departure record (pg. 712 of supplement) is a form that must be completed by all immigrants and
permits the ins to keep track of whether immigrants have left and how long they have stayed.
A. FEDERAL AGENCIES
1. DEPARTMENT OF JUSTICE
Attorney general has principal authority for administering §103 of the INA as well as enforcement
of its provisions. She also has authority under this statute to delegate responsibilities to officers of
the service (the ins) and also to other officers or employees of the DOJ.
Publishes immigration regulations in title 8 of the code of federal regulations, usually
after a notice and comment rulemaking procedures in accordance with the apa§553.
Attorneys handling immigration matters do not go to the Washington office but to
the district offices. There are also overseas district offices which report to the office
of international affairs.
Each district is divided into units, some concerned principally with enforcement,
others with adjudication and related service functions.
Another enforcement arm of the ins is the border patrol which is part of the ins but is
not under the supervision of the district directors. They have their own distinctive
geographic and bureaucratic organization pattern.
Because of the large number of inquiries that standard district offices receive
daily, the ins created four regional adjudication centers for centralized high
volume processing of certain designated types of applications.
b. Immigration Judges
Most of their work deals with adjudication and removal decisions (once known
In the past, immigration judges were simply experienced or senior immigration
officials who held hearings and enforced immigration laws. As a result, there were
many court challenges alleging that the use of adjudicators so closely involved in
enforcement functions violated due process rights to a fair hearing.
Today, due process concerns have secured changes to a fair degree. The AG is
authorized to assign another immigration officer to present the evidence on behalf of
the government and to carry out cross-examination and the INS now requires all
immigration judges to have law degrees.
Also, immigration judges are now separated from the INS and are now in a new unit,
known as the executive office for immigration review (EOIR). Thus, no
immigration judge is answerable to anyone in the INS, and this different line of
accountability provides a better structural assurance of adjudicative neutrality.
Under 8 c.f.r. § 3.1(b), aliens found removable by an immigration judge have a right
to appeal to the board of immigration appeals, a multi-member review body
appointed by the AG.
The BIA has never been recognized by statute and has never been a part of the INS.
It is entirely a creature of the AG's regulations and is accountable directly to the AG
through a separate chain of command.
BIA decides most cases in 3 member panels and has 15 members.
Most of their jurisdiction consists of appeals from immigration judge decisions in
removal proceedings. But the board also hears appeals, for example, from decisions
relating to bonds and detention of certain removable aliens, and from decisions
imposing administrative fines and penalties on aircrafts and vessels. 8 c.f.r. §
Board also reviews determinations on visa petitions for intending immigrants, but
only if the basis for the petition is a family relationship.
Not all adjudications reviewed by the BIA come from immigration judges. Several
provisions of the regulations authorize the BIA to review decisions made by INS
officers on matter that have never been before an immigration judge. 8.c.f.r. § 3.1.
(b)(5) & (6) & (7) & (11).
Cases before the BIA are subject to further review within the
DOJ, although such review is rarely invoked. They may be
referred to the AG for final authoritative decision, either before
or after an initial ruling by the board only if (1) the AG so
directs (2) the chairman or a majority of the BIA decides that the
case should be referred, or (3) when the commissioner requests
Majority of decisions by district offices and rsc are appealable too. In such cases, the
INS reviews the appeal, not an immigration judge or the BIA.
A few such decisions are not subject to administrative appeal, but the alien may
renew the application once removal proceedings have begun, and the immigration
judge then considers the application de novo, followed by possible appeal to the
Internal appeals go to the AAU (the administrative appeals unit) which is staffed by
appellate examiners, not attys.
Hard to differentiate when something will go through the BIA and the AAU.
Generally, appeals of removal orders issued by an immigration judge go through the
BIA. Beyond this, in order to appeal an adverse determination, consult the
regulations to determine the forum.
d. Other units
RCA created a system of Employer sanctions to penalize those who knowingly
hire undocumented aliens or fail to perform certain documentary verification
IRCA before any hiring. INA § 274(a). In an attempt to assure that thus system did not
increase discrimination against minorities, IRCA also added new provisions barring
discrimination based on national origin or citizenship status. INA § 274(b).
Under the statute, allegations of Employer violations of either of these provisions are
heard by an ALJ. Thus, the DOJ added a new unit to the EOIR – the office of chief
administrative hearing officer (OCAHO) who supervises the group of ALJ to carry
out this function.
2. DEPARTMENT OF THE STATE
Visa issuance falls under the general responsibility of the bureau of consular affairs, headed
by the assistance secretary of state.
The national visa center, located in new Hampshire, checks for visa requests for accuracy and
completeness, creates immigrant visa files and computer records, and mails necessary notices
and requests for information to applicants or their attorneys, even when the actual visa will be
issued at a consular post abroad.
In addition to visa services, the bureau contains two other major divisions, passport services
and overseas citizens services.
3. OTHER FEDERAL AGENCIES
a. Department of labor
Comes into the picture when a visa for employment-based preference in the US is
DOL, through its employment and training administration, must certify that
American workers in the applicant’s field are unavailable in the locality of the
applicant’s destination and that the applicant’s employment will not adversely affect
wages and working conditions of American workers.
If certification is denied, the Employer may appeal to the board of alien labor
certification appeals, a panel consisting of 7 ALJ's.
b. Public health services
Because several grounds of Inadmissibility relate to medical conditions, the phD
doctors and other authorized medical officials play a role under the INA, both a ports
of entry and overseas. PhD doctors conduct medical examinations of arriving
aliens, and some of their determinations are unreviewable by INS or any other body.
c. United states information agency
USIA has responsibility for the us govt.’s overseas information, educational
exchange, and cultural programs. Most of its work is done abroad, through
information and public affairs officers in the us diplomatic missions, the voice of
America radio service, and a variety of other videotape and film distribution
networks. For example, the Fulbright program is an educational program that brings
several thousand foreign nationals here each year.
Issues concerning the restructuring of the ins is
1) Whether the ins should be under a different department than the DOJ or
2) Whether the ins should be a cabinet level office itself
Argument to make ins a different cabinet
1) Elevates the importance of immigration issues
2) By doing so, you could separate out the service and enforcement of immigration
Argument against making ins a different cabinet
1) Separating out services and enforcement would make funding and resources unevenly
appropriated to the enforcement group.
2) Not clear what difference making the INS a different cabinet would make.
Before 1961, no immigration statute expressly permitted judicial review of exclusion and deportation
orders, or of other government decisions in immigration cases. The courts took jurisdiction because
exclusion and deportation require the government to take the alien into physical custody at some point.
This allowed for judicial review in federal district courts via a writ of habeas corpus.
Next milestone was the adoption of the APA. With the subsequent enactment of the INA in 1952,
declaratory and injunctive relief became available under the APA to test deportation and exclusion
orders without a physical custody requirement.
In 1961, congress restructured judicial review. Former INA § 106 established the basic scheme that
prevailed until 1996. In 1996, INA § 242 replaced § 106. An alien may appeal removal order to the
federal court of appeals and sets out the procedural requirements with regard to deadlines for filing,
venue, and service. Most significantly, however, the new §242 limits the role of the courts in several
Review 1) §242 eliminates judicial review in broad categories of cases. For example, any final removal
§ 242 order against an alien deportable under most of the crime-related deportation grounds shall not be
subject to review by any court. Also specifically barred is judicial review of major categories of
discretionary decisions: concerning certain waivers, relief from removal, and discretionary
adjustment to permanent resident status.
2) Where judicial review is still available, §242 establishes deferential review standards.
3) The 1996 act generally strengthens the statutory preference for consolidating judicial review by
deferring it until government action is reduced to a final removal order against an individual alien.
IV. ADMISSIONS; CATEGORIES AND PROCEDURES
American immigration system allows for the admission of two broad categories of aliens: immigrants and nonimmigrants.
Immigrants – seek to take up permanent residence
Within the immigrant classification, there are four categories, each regulated with intricate rules:
1) Family sponsored immigrants
2) Employment based immigrants
3) Diversity immigrants
Nonimmigrants – enter for a specific purpose during a temporary stay.
1. FAMILY SPONSORED IMMIGRANTS/ FAMILY SPONSORED
Aliens who obtain permanent residence in the us based on a family relationship qualify either as
(a) immediate relatives of us citizens or
Principal “immediate relative” is defined to include spouses and children, and if the petitioning
Alien citizen is over 21, parents as well.
No quotas apply to immediate relatives. All who meet the qualitative requirements by
showing the requisite family relationship qualify, making it the most favored of all
No per country ceilings either.
(B) Under one of the 4 preferences categories assigned to family reunification.
Under §203(e), immigrants are considered for immigration according to their priority date, the
date that one’s petition was filed and determines their position on the waiting list.
PREF. # FAMILY SPONSORED WHO THIS APPLIES TO
PREFERENCE [INA § 203 (A)]
First 23,400 admissions for unmarried S&D For unmarried children of us citizens. They can also come in as
of us citizens immediate relatives without quota limits.
Second Minimum of 114,200 admissions Spouses and unmarried children of LPR’s
annually, of the spouse and unmarried
S&D’s of lawful permanent resident Use this preference for spouses acquired after one has become an
Immediate relative of LPR Note: LPR’s qualify for naturalization, in most cases, after 5 years of
residence in the us.
Third 23,400 admissions for married S&D Married children of us citizens who do not fall under preference 1 or 2.
of us citizens, those who cannot
qualify, bc of marital status (and The child must be under 21 and unmarried. Includes stepchildren and
perhaps age), for the immediate legitimated children, if the qualifying relationship was established
relative category, or for the first before the child reached 18, and it includes adopted children if the
preference adoption occurred before age 16.
For those who are not immediate To avoid the separation of nuclear families, §203(d) provides that the
relatives, e.g. Stepchildren, adopted spouse or child of a S&D of a us citizen (the principal alien) may be
children admitted in this same preference category and in the same order of
consideration (at the same spot on the waiting list) as the principal
alien. Thus, the husband and child of a woman who falls under this
category do not have to wait still further until she successfully petitions
for them under the second preference.
Does not apply to after acquired spouses.
Fourth 65,000 admissions each year for Brothers and sisters of us citizens
brothers and sisters of us citizens. Siblings of adopted children do not qualify
CONSTITUTIONAL STANDARDS FOR EVALUATING THE ADMISSION
The preference categories and other provisions of the INA governing immigrant admissions inevitably draw a host
of fine distinctions among categories of aliens who might wish to immigrate to the us. Much room is left to dispute
the fairness and desirability of such distinctions. For example, is it fair to hold china to the same country ceiling as
Belize? Why should marriage disqualify the offspring of permanent resident aliens?
USSC considered these matters in the following case that presented a challenge to the definition of “child” in INA §
101(b)(1)(d) as it read before the amendment in 1986. At the time of the decision, the statute recognized only the
relationship between the illegitimate children and their natural mothers, excluding such relationships with the natural
Judicial inquiry into immigration legislation is limited. Court has repeatedly emphasized
that congress has the sole and absolute power concerning the admission of aliens and that
there is limited judicial responsibility to review congress‟ line-drawing. See Fiallo v. Bell.
Fiallo v. Bell (USSC)
INA statute as written defined parent upon their relationship with the child and defined child in relation
to the mother only. Result was that father of illegitimate child who is either a us citizen or LPR was
not entitled to special treatment as a parent.
Court held that the statute was not unconstitutional by virtue of the exclusion of the relationship
between an illegitimate child and his/her father
Judicial inquiry into immigration legislation is limited, need we remind you…court has
repeatedly emphasized that congress has the sole and absolute power concerning the admission
of aliens and that there is limited judicial responsibility to review congress’ line-drawing.
Appellants argument that the statute places a stronger restriction on fathers and illegitimate sons
than it does on legitimate sons and parents or on illegitimate sons and mothers is one we cannot
address because the decision to do so was one outside of courts to control.
There is an inherent difficulty of determining the paternity of illegitimate children and congress
may have well given such difficulty weight when they adopted the challenged classification.
There is a potential problem of fraud and proof.
A. IMMIGRATION BASED ON MARRIAGE
Immigration policy and administrative agencies have defined marriage for the purposes of immigration
benefits and precluding fraud.
Marriages that may be valid in the country of origin may not be recognized for immigration purposes if
they are deemed to conflict with public policy, which is generally understood to mean that the
marriage must be lawful in the intended place of destination in the us.
Same sex marriages recognized by a foreign country or state are not recognized by the INS.
In 1996, congress enacted the defense of marriage act which includes a section that provides that
“in determining the meaning of any act of congress or any ruling, regulation, or interpretation of
administrative agencies, the word marriage means only a legal union between one man and
one woman as husband and wife and the word spouse refers to a person of the opposite sex
who is a husband or wife.”
Note that many of the following cases come from the 9th circuit that has been called the second most
powerful court in the nation, often looked at as a renegade court, and often makes decisions that the
USSC loves to reverse. A commission was chartered by congress in 1988 with a proposal that the 9 th
circuit be divided up so that it would not be so much a renegade court. It never occurred. Thus, when
you look at 9th circuit decisions, always ask whether the decisions are mainstream or is likely to
be reversed by the USSC.
Same sex marriages recognized by a foreign country or state are not recognized by
the INS. Adams v. Howerton (9th circuit)
Adams v. Howerton (9th circuit)
Adams is about a person that was in the us on a nonimmigrant visa who married a us citizen
and then wanted to adjust their status as an LPR. Such a situation is a concern of the INS bc
of the risk of fraud and sham marriages. Adams, a male citizen, and Sullivan, a male alien,
appeal from the d. Ct’s entry of summary judgement for the acting director of the ins, who
denied the immediate relative status preference classification in the application.
Argument that the statute does not exclude gays:
Statute makes not reference to gays and congress had time to make changes to the statute.
Statutory construction: ordinary meaning of spouse is not sexual orientation specific
Purpose of family laws is to allow for the reunification of families
Issue is not the regulation of immigration but the regulation of marriage and this is a state
issue. Co has a state law allowing marriage and ins is interfering.
Chevron doctrine: statute is not clear and INS’s interpretation is unreasonable
Court held that the marriage was not recognized by the ins as endowing an immediate relative
9th circuit conducted a two step process
1) Whether the marriage is valid under state law
2) Whether the state approved marriage qualifies under the act.
Co law did not condone or prohibit same sex marriages but the court said that even
assuming that it did, the marriage did not qualify under the act bc
1) Congress did not intend the mere validity of state law to be controlling since the act
itself limits who may fall under “spouse” by excluding proxy marriages
2) Nothing in the act’s legislative history suggests that the reference to spouse included
a person of the same sex as the citizen in question and marriage, in its ordinary
common meaning means marriage between opposite sexes.
A. SHAM MARRIAGES
Because INA § 201(b) says that immediate relatives are not subject to limitations, sham marriages are an
attractive option to immigrating to the us.
As a result, the INA does not recognize proxy or sham marriages, marriages “where
the contracting parties thereto are not physically present in the presence of each
other, unless the marriage shall have been consummated.” § 101 (a)(35).
Ins has sought to deny visa petitions for alleged spouses in two distinct situations:
(1) When the underlying marriage is a sham or fraudulent such that the parties did not
intend to establish a life together at the time they were married
Evidence of separation, standing alone, cannot support a finding that a marriage
was not bona fide when entered. (bark v. Ins)
Bark v. Ins (CoA, 9th circuit, 1975)
Appellant and his wife were sweethearts in Korea. She immigrated to the us and became a
resident alien and he came to visit as a business visitor and then as a student. They renewed
their acquaintance and got married in Hawaii. She filed a petition on his behalf to qualify him
for status as the spouse of a resident alien pursuant to § 203(a)(2) and 204 of the act.
Petitioner thereafter filed his own application for adjustment of status under § 245 of the act.
He was denied adjustment of status from student visitor to permanent resident on the
immigration judge’s conclusion that the marriage was a sham based on a separation. The BIA
affirmed, finding that the wife and husband lived in separate quarters.
Court reversed and remanded.
Marriage is a sham if the bride and groom did not intend to establish a life together at
the time they were married.
Conduct of the parties after they are married is relevant only to the extent that it bears
upon their subjective state of mind at the time they were married. Their separation alone
cannot support a finding that the marriage was a sham.
Court concluded that the immigration judge and the BIA did not focus on the key issue:
whether they intended to establish a life together at the time of their marriage.
(2) When the underlying marriage is nonviable, or factually dead at the time when the
immigration benefit is sought.
Courts have rejected such an argument by the ins on the grounds that the ins has no
expertise in the field of predicting the stability and growth potential of marriages.
According to the 9th circuit in Dabaghian, if a marriage is not a sham or fraudulent
from its inception, it is valid for purposes of determining the eligibility of
adjustment for status until the marriage is legally dissolved. Thus, the 9 th circuit
ruled in 1979 that the INS cannot rescind LPR status.
Dabaghian v. Civiletti (CoA, 9th circuit, 1979)
Dabaghian sought LPR status after marrying a us citizen. It was granted on the date where there
was no evidence to show that he was separated from his wife, but 16 days later, he filed for
divorce, which was granted 7 months later. He remarried an Iranian citizen. Ins sought to revoke
his status on the ground that the marriage was factually dead at the time the adjustment was
Court rejected the ins’ legal position.
Court said that eligibility turns on whether he was the spouse of an American citizen at the
time of adjustment of status.
“spouse” in the act includes all parties to all marriages that are legally valid and not a
sham. There is no exception for marriages that the ins thinks are factually dead in the
7 years after the Dabaghian case, congress passed the IMFA that allows the ins to rescind a
status change that had occurred while a LPR on a conditional status.
Moreover, courts will still scrutinize evidence of current separation in order to determine
whether the initial marriage was sham or fraudulent. The BIA has also stressed that
petition may not be granted on the basis of marriages legally terminated as of the date that
the immigration benefit is to be conferred.
In order to deter and detect fraud marriages more effectively, congress adopted the immigration marriage fraud
amendments of 1986
Under the MFA, INA § 216, all persons who obtain lawful permanent resident status based on
a marriage that is less than 2 years old at the time receive such status “on a conditional basis.”
INA The conditional period lasts 2 years, unless INA acts before that time to terminate the alien’s
§216 resident status. However, the conditional status counts fully toward the necessary residence
period for naturalization. Ins §216(e)
Within the last 90 days of the 2 year period, both spouses must take the initiative to petition
the ins to have the conditional status removed, although under certain circumstances the alien
may secure a waiver to the requirement of a joint filing. (if waiver sought, alien bears burden
Ins has clear statutory authority to call both spouses in to the district office for an interview at
this point, although in interview is usually waived, thus reserving the examiner’s time for
You need a joint
petition to have the
those cases where the papers raise a question meriting further inquiry. § 216.4, 216.5
conditional status Ins removes the conditional basis at the end of the 2 years if it find that the marriage
removed by the INS was valid and has not ended. Removal signifies that the alien has graduated to full
if the spouse is not permanent resident status. Ins §216 (c), (d)(1). Note that the actual time frame we are
a victim of domestic
talking about is ~6 years. It takes 2 years to actually be considered for conditional basis
status. Then you wait another 2 years before you can petition to have the conditional status
removed. Then, it takes another 2 years for the removal status to be processed. During all of
this period, the person who is an LPR on a conditional status has “no status” status.
INS, however, can If ins finds that the underlying marriage was improper or has been judicially annulled or
terminate the terminated, (you can be terminated for failure to file a timely removal petition), the ins can
conditional status terminate the permanent resident status and the person is deportable under INA §237
If the person seeks reconsideration in the deportation proceedings, the ins has the burden of
proof and must meet a preponderance of the evidence standard on most such issues.
IMFA also includes a new waiver
1) For battered spouses who had already been granted conditional status and
2) For a battered spouse who is eligible for family-based immigration based on marriage to
file a petition on her own behalf for LPR status. (extreme mental cruelty as a reason for
the waiver must be certified by an expert to prevent from fraud.)
Siblings of adopted children do not qualify as brothers or sisters under the fourth
preferential status of family sponsored preference. Young v. Reno
Young v. Reno court skillfully used statutory construction under the doctrine that
the “expression of one thing is the exclusion of another” and demonstrated once
again that there is limited judicial responsibility to review congress‟ line-drawing.
Young v. Reno
Karen young was adopted as a child by a paternal aunt in Hong Kong and was permitted to immigrate
to the us bc of this parent-child relationship. In 1984, she sought preferential status on her four
biological siblings, pursuant to §203(a)(4) of the INA. Ins approved the petitions and forwarded them
to the state dept. Consulate in Hong Kong and when visas finally became available for 4 th preference
individuals with 1984 priority dates, her siblings applied for immigration visas. The consulate returned
the petitions to the ins for visa relocation proceedings, explaining that the petitions should not have
been approved bc the adoption severed the relationship Karen had with her biological siblings.
Court held that the ins interpretation was reasonable under the chevron doctrine.
INA prevents a natural parent from receiving immigration privileges through an adopted child.
INS’s interpretation of the INA was that because natural parent no longer has the status of parent
under the act, the legal relationship between adopted child and natural sibling also ceases. They
no longer have a common parent for immigration purposes.
Court first concluded that congress had not spoken on the precise question at issue -
whether the natural relationship between natural siblings would survive adoption.
Neither the plain language of the statute nor the failure by congress to exclude preferences
for natural siblings after adoption indicates that congress clearly intended that the natural
sibling relationship should survive adoption for immigration purposes.
Legislative history further indicates that when congress adopted these provisions, it was not
concerned with whether the legal relationship between natural siblings would survive
adoption. Before the enactment of § 101(b)(1)(e), the definition of child did not include
adopted children. Thus, the focus was on the unification of adoptive, not natural, families.
No indication that congress’ intention extended to natural siblings of adopted children.
Court then concluded that the INS’s interpretation was a permissible construction of the statute.
2. EMPLOYMENT BASED IMMIGRATION INA § 203(B)
Employment based immigration system is structured with the domestic labor market very much in mind.
To protect the American worker, an Employer seeking the services of immigrants who enter under the
employment-based categories must first:
DOL certifies this
Obtain a labor certification by demonstrating:
INA § 1) That there are no domestic workers available to perform such work and
212(A)(5) 2) That the entry of the alien will not adversely affect the wages and working conditions of
similarly employed US Workers.
PREFERENCE ORDER INA § 203(B)
First preference immigrants 40,000 numbers for priority workers, a category that is further subdivided to include:
(1)aliens with extraordinary ability
extraordinary ability (2)outstanding professors or researchers
(3)certain multinational executives and managers [defined in INA §101 (a) (44)].
*Employer must initiate the petitioning process, unless the alien is of
extraordinary ability. “extraordinary ability” means that the alien has sustained
national or international acclaim and her achievements have been recognized through
*Employer need not show that there are no domestic workers available to perform
services that they will undertake in the us bc such immigrants supposedly have talents
beyond compare or that their contributions to the us are so manifest that their entry is
desirable whether or not they compete with domestic talent.
Second preference Provides roughly 40,000 admissions for professionals holding advanced degrees “or
immigrants their equivalent” or who “because of their exceptional ability in the sciences, arts, or
business, will substantially benefit prospectively the national economy, cultural or
Exceptional workers educational interests, or welfare of the us”. An Employer must seek their services,
unless this requirement is waived by the AG in the national interest.
*Employer must initiate the petitioning process by obtaining a labor certification
under INA § 212 (a)(5)
Third preference immigrants Professionals having only baccalaureate degrees, and for skilled and unskilled workers
who would fill positions for which there is a shortage of American workers. Roughly
Skilled workers 40,000 admissions are available for this preference each year. In the debates on the
1990 act, it was resolved that no more than 10,000 unskilled workers may be admitted
*Employer must initiate the petitioning process by obtaining a labor certification
under INA § 212 (a)(5).
Fourth preference With about 10,000 annual admissions, this preference is for special immigrants as
immigrants defined in INA §101 (a)(27)(c) through (j). These categories include religious workers,
former long time employees of the us govt. Or of international organizations, and a host
Religious workers of other miscellaneous provisions, used to exempt from numerous ceilings, but demand
Former long time is expected to remain below 10,000 for the foreseeable future.
employees of us govt.
*alien can petition herself.
Fifth preference immigrants Provides 10,000 numbers for investors whose investments will create a minimum of 10
jobs in the US economy. The baseline minimum investment is $1,000,000, but the
Investor visa requires amount is lowered if the investment is in a rural area or a high unemployment
area, and it is increased if the business is established in an area with low
unemployment. Concerned about possible fraud in this category, congress provided
that fifth preference immigrants will initially receive only conditional permanent
residence status, under procedures that are designed to result in a careful review of the
investment after two years. Must be a new commercial enterprise
*alien can petition herself..
A. LABOR CERTIFICATION PROCESS: (purpose is to protect the American
1) EMPLOYER FIRST LOOKS TO SEE IF ALIEN FALLS INTO ANY OF THE
Includes only licensed nurses and physical therapists, and certain aliens of exceptional ability
in the sciences of the arts.
A qualified alien seeking to come to the us in these occupations can avoid processing at the
department of labor altogether. He or she may file the relevant papers directly with the
consular officer overseas, or with the ins if the applicant is already in this country and seeks
adjustment from nonimmigrant to immigrant.
Lists occupations in which the DOL considers there are sufficient us workers throughout the
country and for which a labor certification will not be issued
Includes bartenders, parking lot attendants, cashiers, keypunch officers, truck drivers, and
2) IF THE ALIEN’S OCCUPATION DOES NOT APPEAR ON EITHER SCHEDULE,
THEN THE EMPLOYER MUST INITIATE THE INDIVIDUAL CERTIFICATION
PROCESS BY FILING FORM ETA 750 AND DEMONSTRATING THAT THE
MANIFOLD REQUIREMENTS FOR INDIVIDUAL LABOR CERTIFICATION HAVE
BEEN FULFILLED. 20 c.f.r. §§ 656.20-656.21.
E must show that he has engaged in good-faith recruitment efforts aimed at qualified us
workers, including elaborately detailed advertising requirements
§ 656.21(b)(2) requires that the Employer shall document that the job opportunity has
been and is being described without unduly restrictive job requirements:
(i) The job opportunity’s requirements, unless adequately documented as arising from
(A) Shall be those normally required for the job in the us
(B) Shall be those normally required for the job in the dictionary of occupational
titles (dot) including those for subclasses of jobs
(C) Shall not include requirements for a language other than English.
To not be unduly restrictive, E must pass the BUSINESS NECESSITY 2 PRONG TEST as
held in Information Industries
1) There is a reasonable relationship between the job requirements and the
occupation, and the job relationship is relatively easy to satisfy
2) E has shown that the job requirements are essential to perform, in a reasonable
manner, the job duties.
E must show that it has interviewed interested us workers and has rejected any such
applicants for lawful, job-related reasons
E must show that it has offered prevailing wage as defined in 20 c.f.r. § 656.40 and is
capable of paying that wage
Information industries was a nationwide computer consulting business headquartered in co. Ii has
applied for labor certification and listed the duties in highly technical terms. The certifying officer (co)
denied the labor certification on the ground that the application had not met the requirement that the
job description not be unduly restrictive. E filed a rebuttal on the ground that the requirement of 2
degrees was not unduly restrictive but were normal for such a job in the us. E appealed to the board of
alien labor certification appeals (balca)
Held that to establish business necessity under § 656.21 (b)(2)(i), an e must demonstrate
the job requirements bear a reasonable relationship to the occupation in the context of the
E’s business and are essential to perform, in a reasonable manner, the job duties as
described by the e. (business necessity 2 prong test)
E cannot obtain labor certification by showing that the job requirements merely tend to contribute
to or enhance the efficiency and quality of the business.
Job requirements advertised conform to the dot of a systems engineer, but it is not clear that the
requirements are normal for this job of systems engineer or that that is the correct title.
Neither party attempted to analyze the job requirements in terms of the job duties. The e has
not explained which job duties require its systems engineers to have a bs in engineering and
the co has not explained why this degree, or a ma in computer science, are not bona fide
requirements for this position regardless of which title best suits it.
Non-immigrants are aliens who seek entry to the us for specific purposes to be accomplished during a
Nonimmigrant categories include:
(a) Tourists (granted 6 month entry period) b-2 visa
(b) Students f-1 visa
(c) Student spouses f-2 visas
(d) Business related categories b-1 visa
(e) Diplomats and employees of foreign governments or affiliated with international
There are no fixed numerical limits on nonimmigrant admissions, except in the h-1b and h-2b
Most important requirement for admissibility is that the alien has a residence in a foreign
country which he has no intent of abandoning. INA § 101(a)(15)(b),(f),(j). In deciding
whether to issue nonimmigrant visas, consular offices are wary of a country’s reputation
for a high incidence of visa abuse.
An alien is not a bona fide nonimmigrant if his or her intent from the beginning is to
remain in the us permanently by any means possible, legal or otherwise. However,
under the dual intent doctrine, a desire to remain in this country permanently, in
accordance with law, should the opportunity present itself, is not inconsistent with
lawful nonimmigrant status. Matter of Hosseinpour.
BUSINESS AND ENTREPRENEURIAL NONIMMIGRANTS
Admission under tourist and student nonimmigrant visa are fairly straightforward and usually do not demand
the attention of an atty. Business categories, however, are more complex and typically necessitate legal counsel
for their successful navigation.
Why you need nonimmigrant categories for business bc e may need workers only temporarily and
going through labor certification would be timely, expensive, and backlog other visa categories. Also, e may
need workers immediately, but it takes time to process labor certification.
TYPES OF BUSINESS AND ENTREPRENEURIAL NONIMMIGRANT VISAS:
1) H-2a Visa – Temp. Agr. Worker
Temporary worker program for agricultural needs of us
To bring in h-2a agricultural workers, an e must first file a labor certification application with
the DOL, to show that he has satisfied the requirements of INA §218(a)(1) that:
(A) There are not sufficient workers who are able, willing, or qualified, and who will be
Temp. Agr. available at the time and place needed, to perform the agricultural labor or services
Workers involved in the petition, and
(B) The employment of such alien in such labor or services will not adversely affect the
wages and working conditions of workers in the us similarly employed.
If the labor certification is granted, next the e must have a petition approved by the ins before
the individual workers can obtain visas for entry.
Workers must be provided with free housing that complies with federal and local standards,
meals or convenient cooking facilities, return transportation, and workers compensation or the
They have been on the decline in recent years.
2) H-2b Visa – Temp Non-Agric. Worker
Temporary worker program for all other nonagricultural fields.
Available only if unemployed persons capable of performing such service or labor cannot be
found in this country.
Alien must be entering temporarily to fill a temporary job (a year or less)
Fixed Numerical Ins requires that petitioning Employers have certification from the DOL that qualified person
Limits in place for in the us are not available and that the alien’s employment will not adversely affect wages and
these two working conditions of similarly employed us workers.
H-2b nonimmigrants are admitted for up to a year at first with one year extensions possible up
to the a maximum of 3 years.
Limited to a maximum of 66,000/yr.
3) H-1b Visa – Specialty Occupation Category
H-1b classification covers aliens coming temporarily to the us to provide services in a
“specialty occupation.” See INA § 214(i) for definition of specialty occupation.
Definition of specialty occupation is that it requires the equivalent of a bachelor’s degree
or higher degree in the specialty
Alien applying for h-1b visa must demonstrate that she is qualified to work in a specialty
occupation. Usually shows by possession of requisite college degree but can also be
shown by licensure or by experience in the specialty equivalent to the completion of such
a degree and “recognition of expertise in the specialty through progressively reasonable
positions relating to the specialty.” 8 c.f.r. 214.2 (h)(4)(iii)(c)(4).
E must file a labor condition application (lca) also known as an attestation with the dol.
(DOL approval is not required)
E must attest that it has notified the appropriate bargaining representative of its
employees of the petition or posted notice of its filing in conspicuous location at the place
E must attest that the job is being offered at the prevailing or actual wage paid similar
individuals and that it will provide working conditions for the alien that will not
adversely affect the working conditions of similarly employed workers.
Note that these new rules do not require that the e undertake recruitment efforts in the us
Attestation requirement continues to draw strong criticism. E’s argue that they cannot
predict what the govt. Will ultimately determine is the prevailing wage and that they
govt. Makes those determinations neither expeditiously nor accurately. E who makes an
incorrect determination may suffer serious consequences. Also unclear whether the h1b
visa program adequately protects the us worker on the argument that E’s often fail to
either document and/or pay the prevailing wage to these h1b nonimmigrants, thereby
risking the erosion of the prevailing wage over time.
H1b nonimmigrants can be admitted for up to 3 years initially, extendible to a maximum
authorized stay not exceeding six years.
H1b nonimmigrants are limited to 65,000/year. Last year, they overissued h1b visas and
approved +115,000. This year, not even 6 months into this year, it has already been
announced that the cap has almost been reached.
ISSUE OF OVERSTAYS COMES UP IN GRANTING H1B VISAS
Purposes and major features of IRCA:
Overstays 1) Legalization of aliens who has performed agricultural labor in the us
2) Legalize long term undocumented aliens
3) Create Employer sanctions
If e hires someone who is not legally authorized to work, sanctions can be
imposed on the e. After IRCA, the i-9 has to be filed for all employees which
demonstrates that the worker is a us citizen. Purpose of enacting the
requirement is to ensure that the job market does not function as a pull factor in
4) Protection of us citizens and permanent resident aliens from employment
discrimination occasioned by Employer sanctions
Undocumenteds tend to concentrate in firms that are in sharp competition.
About 41% of all nonimmigrants are overstays. 1% of all nonimmigrants are h1b’s.
AFL-CIO has proposed creating an amnesty program and legalizing overstays:
Argument for legalizing overstays:
1) E’s exploit overstays bc they are not legalized.
Argument for not legalizing overstays
1) By creating an amnesty program, you create incentives for overstaying. Not only
will people attempt to get here, but those who come here are those who know they
don’t have to return and will never return to their motherland.
2) Only reason AFL-CIO wants to create an amnesty program is bc their labor unions
are facing a decline and by legalizing them, they increase their membership.
4) O & P Nonimmigrants Visas
Visas for eligible performing artists and athletes.
Artists O category requires extraordinary ability which has been demonstrated by sustained
and international or national acclaim.
Athletes An alien may come to the us as either an o or p nonimmigrant and at the same time, lawfully
seek to become a LPR.
5) L Nonimmigrant Visas L-1 VISAS
For aliens seeking to transfer from a firm overseas to its operations in the us. Thus they are
Intra- AKA intracompany transfers
company Extensively used today by foreign based corporations to transfer executive level
employees to this country to oversee operations of a firm‟s American branch or
subsidiary. However, nothing in the language of the INA limits the category to large firms or
excludes partnerships from using l visas.
INA requires that the alien render his services in a capacity that is managerial,
executive, or involves special knowledge. Definitions of managerial and executive capacity
are found in INA § 101(a)(44).
Specialized knowledge is defined as “special knowledge of the company product and its
application in international markets or an advanced level of knowledge of processes and
procedures of the company.” INA § 214(c)(2)(b).
An alien seeking l classification must have been employed with the sponsoring firm for
at least one year within the 3 years preceding the date of his application for entry.
L nonimmigrants may be granted an authorized stay for up to 1-3 years, extendible to a
maximum of 7 years for managers and executives (and up to 5 years for those with
Not required to have a foreign residence that he has not intention of abandoning
L nonimmigrants may legitimately come to the us as an l-1 nonimmigrant and at the same
time, lawfully seek to become a LPR
6) E Nonimmigrant Visas E-2 VISAS
For either treaty traders (e-1) or for treaty investors (e-2)
Principal alien must have an international agreement bt between the us the alien’s country of
origin under whose terms an e nonimmigrant seeks to carry on activities in this country
That is, principal alien must be a national of a country with whom the us has a treaty of
commerce and navigation, providing for trade or investor activity
Treaty trader must carry on trade of a substantial nature that is international in
scope and principally between the us and the treaty country
Treaty investor must have invested or be in the process of investing a substantial
amount of capital in an enterprise which he or she will develop and direct and which
will not be a marginal enterprise entered into solely to earn a living. Definition of
substantial is found in INA § 101(a)(45).
Employee of treaty investor must have special qualifications necessary for the firm’s
efficient operation. See INS operations instructions 213.2(e).
Admitted for 1 year initially with 2 year extensions
May remain in the US as long as he or she continues to undertake the activities for which
entry was initially granted. (ADV that h and l classifications do not offer)
E visa holders do not need to retain a foreign residence that they do not intent to
Treaty investor must have invested or be in the process of investing a
substantial amount of capital in an enterprise which he or she will develop
and direct and which will not be a marginal enterprise entered into solely to
earn a living. Substantiality of investment is not regulated by ins or the dos.
Matter of Walsh and Pollard. ***definition of substantial is found in INA § 101(a)(45).***
Matter of Walsh and Pollard
British company contracted with gm to assist as automotive design engineers. They
opened up a subsidiary company in the us called IAD, corp. And invested the meager
amount of $15,000, rented office space, and hired 2 American citizens as employees.
Chief immigration judge found that the company qualified as a treaty investor and that
the applicant employees were highly skilled individuals necessary for the IAD, LTD’s
investment into creating IAD Corp and thus granted an e-2 visa. Ins contended that the
British company had not made a “substantial” investment in the us and that the applicants
were not entitled to e-2 visas as employees of the treaty investor bc they were not coming
to develop and direct the investment of the treaty investor.
1) That, bc the substantiality of investment is not regulated by ins or the dos,
the investment by the British company was sufficient to establish a
profitable and viable business in the us.
Proportionality test has been met by treaty investor
2) Bc employees have special qualifications and are essential to the treaty
investor, they are entitled to be granted e-2 visas
Nothing in the service regulations relates to issue of whether employees
fit into the category of employees of a treaty investor company
qualified to come to the us with an e-2 visa.
Both applicants are unique
7) B Nonimmigrant Visas B1 VISAS
Includes the following:
ii) Aliens coming to the us to attend an executive seminar
iii) Aliens seeking an investment which would qualify for e-2 status
iv) Aliens coming to open or be employed at a new branch or subsidiary which will
qualify them for l-1 status
v) Foreign sports teams
Excludes aliens “coming for the purpose of performing skilled or unskilled labor” INA
“business” refers to “conventions, conferences, consultations, and other legitimate activities
of a commercial or professional nature. It does not include local employment of labor for
Sometimes, this conceptual distinction between h2 and b1s are hard to apply in the real world.
Language and legislative intent of the act show that congress intended only to
extend nonimmigrant classification to temporary workers who seek to
furnish noncompetitive services to labor. International Union Of Bricklayers
And Allied Craftsman V. Meese
International Union Of Bricklayers And Allied Craftsman V. Meese
Homestake sought a new technology for gold ore processing, and contracted out to a west
Germany company. Contract was made continent upon Didier’s west German employees
completing the work on site in ca, some of the work involving bricklaying. Didier
submitted hb-1 temporary visitor for business visa petitions and plaintiffs filed suit,
alleging that the practice of issuing b-1 visas under the INA operations instructions
violates § 101(a)(15)(b) of the act bc it issues visas to perform skilled or unskilled labor
expressly prohibited and bc alien have been permitted to bypass labor certification
required under § 101 (a)(15)(h)(ii) of the act.
Court held that the oi 214.2(b)(5) was unlawful and in violation of § 101(a)(15)(b) and §
101 (a)(15)(h)(ii) of the INA.
Language and legislative intent of the act show that congress intended only to extend
nonimmigrant classification to temporary workers who seek to furnish
noncompetitive services to labor.
Case is distinguishable from Hira in that Hira permits the issuance of b-1 visas
to aliens coming to the us to engage in intercourse of a commercial
character or coming to work as a necessary incident to international
trade or commerce. (know this case!)
V. INADMISSIBILITY OF ALIENS
If an alien And… There is an Under INA §
Is unlawfully present for a single Voluntarily departs Of 3 years §212(a)(9)(b)(i)(i)
period of more than 180 days but
less than 1 year
is unlawfully present for a single Voluntarily departs Of 10 years §212(a)(9)(b)(i)(ii)
period of 1 year or more
Is unlawfully present for an Has been ordered Permanently but §212(a)(9)(c)(i)(i) & (ii)
aggregate period of more than 1 removed and then waivable
year enters or attempts to
Waiver for overstays available in § 212(a)(9)(B)(v) if refusal of admission would create extreme
hardship to the alien‟s citizen/LPR spouse or parent.
GROUNDS FOR INADMISSIBILITY
A) Health related grounds § 212(a)(1)
B) Criminal convictions § 212(a)(2)
C) Fraud and willful misrepresentation § 212(a)(6)(c)
Prevent aliens from attempting to secure entry into the us by fraudulent means and then, when the
falsity is discovered, proceeding with the application as if nothing has happened
Nature of penalty
Lifetime bar, unless waiver is obtainable
Criteria for finding ineligibility
(1) There has been misrepresentation made by the applicant or by an agent of the applicant before a us
official and in the alien’s own visa application
Misrepresentations made in connection with someone else‟s visa application is not
Timely retraction will serve to purge a misrepresentation and remove it from further
consideration as a grounds for INA § 212(a)(6)(c) ineligibility
That an alien pursues a visa application via a travel agency or an attorney does not insulate the
alien iff it was established that the alien was aware of the action taken in furtherance of a
30/60 day rule:
If an alien gets employed within 30 days after the issuance of a visa, then the
misrepresentation is presumed.
If the alien gets employed after 30 days but within 60 days, then no misrepresentation
If an alien get employed after 60 days of the issuance of a visa, the such conduct
(2) Misrepresentation was willfully made
Willfully = knowingly and intentionally as distinguished from accidentally, Inadvertently,
or in an honest belief that the facts are otherwise
To find willfulness, the alien must have been fully aware of the nature of the information
sought and knowingly, intentionally, and deliberately made an untrue statement
It is not a defense for an alien to say that the misrepresentation was made bc someone else
advised the action unless it is found that the alien lacked the capacity to make judgement.
(3) The fact misrepresented is material or
(4) The alien uses fraud to procure a visa or other documentation or
(5) To receive a benefit from the INA.
D) National security § 212(a)(3)
§ 212(a)(27): provides for the exclusion of persons seeking to enter to engage in activities which must
be prejudicial to the public interest or endanger the welfare, security, or safety of
§ 212(a)(28)(d):provides for the exclusion of aliens who advocate or teach the economic,
international, or governmental doctrines of world COMMUNISM
§ 212(a)(28)(g):provides for the exclusion of aliens who write, publish, circulate, distribute, or
knowingly possess to circulate any written or printed materials advocating or
(1) The overthrow of the us govt. By force or of all other forms of law
(2) The duty, necessity, or propriety of the unlawful killing of any us officials
(3) Unlawful damage, destruction, or injury to property
(4) Economic, international, and governmental doctrines or world communism.
Court will not look behind the exercise of the INS‟s discretion in immigration
decisions. However, agency actions must be facially legitimate and bona fide. Thus,
burden is on the govt. For coming up with substantive reasons for denying a visa.
Kleindest v. Mandel
Kleindest v. Mandel
Issue was whether the exclusion of an alien from speaking in the us violated his audience’s 1 st
Held that it did not violate their 1st amendment rights
Plenary power allows congress to exclude aliens for the possession of certain
Court will not look behind the exercise of the INS’s discretion in immigration decisions.
However, agency actions must be facially legitimate and bona fide.
Thus, burden is on the govt. For coming up with substantive reasons for denying a visa
E) Terrorists § 212(a)(3)(b)(i), (ii), (iii)
F) Foreign policy
§ 212(a)(3)(c): provides for the exclusion and Inadmissibility of aliens for foreign
policy exclusion grounds.
Alien can be excluded if the sec of state has reasonable grounds to believe an alien‟s entry or
proposal activity within the us would have “potentially” serious adverse foreign policy
Where exclusions do not apply
i) An alien who is an official of a foreign govt. Or a purported govt., Or who is a candidate for
election to a foreign govt. Office would not be excludable under this provision solely bc of
past, current, or expected beliefs or statements or associations which would be lawful in the
ii) Cannot exclude individuals on the basis of their past, current, or expected beliefs which would
be lawful in the us unless the sec of state personally determines that the alien’s admission to
the us would compromise a compelling foreign policy interest and so certified to the relevant
This exclusion is used only in unusual circumstances, e.g. Alien suspected of
terrorism attack if admitted into us or when entry into the us would violate
a treaty or international agreement to which the us is a party.
G) Public Charge §212(a)(4)
Administering officers can refuse to grant admission to any alien who, in the AG's opinion, is likely to
become a public charge
Consular officers are also given an affidavit of financial support as proof that a visa
applicant will not become a public charge. Matter of Kohama made clear that these
affidavits can come from family members.
Matter of Kohama
Kohamas were Japanese citizens who were retired parents and who were supported by their
daughter. They sought to adjust their status from visitors to LPR’s. Their daughter filed an
affidavit which the ins held was insufficient and not binding to ensure that their parents would not
become public charges.
Held that affidavits of support from a residency applicant’s relatives may be sufficient evidence
that the applicant will not become a public charge.
Although not binding, that alone is insufficient to prove that an applicant will be a drain on
Here affidavits show that the daughter and her husband had been supporting her parents when
they lived in Japan
If all facts make it reasonably clear that the promised support will in fact be given, the
applicant‟s burden of proof has been met.
Also, look at the Welfare Act of 1996 that requires affidavits of support from the
sponsor agreeing to support the alien for 3 years (and is legally enforceable for 5
years after arrival). The concern behond this legislation was that immigrants would
become public charges.
§212 INADMISSIBILITY OF ALIENS
(A) CLASSES OF ALIENS INELIGIBLE FOR VISAS OR ADMISSION
Except as otherwise provided in this chapter, aliens who are Inadmissible under the following
paragraphs are ineligible to receive visas and ineligible to be admitted to the united states:
(1) HEALTH-RELATED GROUNDS
(A) In general
(i) Who is determined (in accordance with regulations prescribed by the
secretary of health and human services) to have a communicable disease
of public health significance, which shall include infection with the
etiologic agent for acquired immune deficiency syndrome,
(ii) Except as provided in subparagraph (c), who seeks admission as an
immigrant, or who seeks adjustment of status to the status of an alien
lawfully admitted for permanent residence, and who has failed to present
documentation of having received vaccination against vaccine-
preventable diseases, which shall include at least the following diseases:
mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis,
influenza type b and hepatitis b, and any other vaccinations against
vaccine-preventable diseases recommended by the advisory committee
for immunization practices,
(iii) Who is determined (in accordance with regulations prescribed by the
secretary of health and human services in consultation with the attorney
(I) To have a physical or mental disorder and behavior associated
with the disorder that may pose, or has posed, a threat to the
property, safety, or welfare of the alien or others, or
(II) To have had a physical or mental disorder and a history of
behavior associated with the disorder, which behavior has posed
a threat to the property, safety, or welfare of the alien or others
and which behavior is likely to recur or to lead to other harmful
(iv) who is determined (in accordance with regulations prescribed by the
secretary of health and human services) to be a drug abuser or addict,
-- is Inadmissible.
(b) waiver authorized
For provision authorizing waiver of certain clauses of subparagraph (a), see
subsection (g) of this section.
(c) exception from immunization requirement for adopted children 10 years of
age or younger
Clause (ii) of subparagraph (a) shall not apply to a child who--
(i) Is 10 years of age or younger,
(ii) Is described in section 1101(b)(1)(f) of this title, and
(iii) Is seeking an immigrant visa as an immediate relative under section
1151(b) of this title,
If, prior to the admission of the child, an adoptive parent or prospective adoptive
parent of the child, who has sponsored the child for admission as an immediate
relative, has executed an affidavit stating that the parent is aware of the
provisions of subparagraph (a)(ii) and will ensure that, within 30 days of the
child's admission, or at the earliest time that is medically appropriate, the child
will receive the vaccinations identified in such subparagraph.
(2) CRIMINAL AND RELATED GROUNDS
(a) conviction of certain crimes
(i) in general
Except as provided in clause (ii), any alien convicted of, or who admits
having committed, or who admits committing acts which constitute the
essential elements of—
(I) A crime involving moral turpitude (other than a purely political
offense) or an attempt or conspiracy to commit such a crime, or
(II) A violation of (or a conspiracy or attempt to violate) any law or
regulation of a state, the united states, or a foreign country relating
to a controlled substance (as defined in section 802 of title 21),
Clause (i)(i) shall not apply to an alien who committed only one crime if--
(I) The crime was committed when the alien was under 18 years of
age, and the crime was committed (and the alien released from
any confinement to a prison or correctional institution imposed for
the crime) more than 5 years before the date of application for a
visa or other documentation and the date of application for
admission to the united states, or
(II) The maximum penalty possible for the crime of which the alien
was convicted (or which the alien admits having committed or of
which the acts that the alien admits having committed constituted
the essential elements) did not exceed imprisonment for one year
and, if the alien was convicted of such crime, the alien was not
sentenced to a term of imprisonment in excess of 6 months
(regardless of the extent to which the sentence was ultimately
(b) multiple criminal convictions
Any alien convicted of 2 or more offenses (other than purely political offenses),
regardless of whether the conviction was in a single trial or whether the offenses
arose from a single scheme of misconduct and regardless of whether the
offenses involved moral turpitude, for which the aggregate sentences to
confinement were 5 years or more is Inadmissible.
(c) controlled substance traffickers
Any alien who the consular or immigration officer knows or has reason to believe
is or has been an illicit trafficker in any such controlled substance or is or has
been a knowing assisted, abettor, conspirator, or colluder with others in the illicit
trafficking in any such controlled substance, is Inadmissible.
(d) prostitution and commercialized vice
Any alien who—
(i) Is coming to the united states solely, principally, or incidentally to engage
in prostitution, or has engaged in prostitution within 10 years of the date
of application for a visa, admission, or adjustment of status,
(ii) Directly or indirectly procures or attempts to procure, or (within 10 years
of the date of application for a visa, admission, or adjustment of status)
procured or attempted to procure or to import, prostitutes or persons for
the purpose of prostitution, or receives or (within such 10-year period)
received, in whole or in part, the proceeds of prostitution, or
(iii) Is coming to the united states to engage in any other unlawful
commercialized vice, whether or not related to prostitution,
(e) Certain aliens involved in serious criminal activity who have asserted
immunity from prosecution
(i) Who has committed in the united states at any time a serious criminal
offense (as defined in section 1101(h) of this title),
(ii) For whom immunity from criminal jurisdiction was exercised with respect
to that offense,
(iii) Who as a consequence of the offense and exercise of immunity has
departed from the united states, and
(iv) Who has not subsequently submitted fully to the jurisdiction of the court in
the united states having jurisdiction with respect to that offense,
(F) Waiver authorized
For provision authorizing waiver of certain subparagraphs of this paragraph, see
subsection (h) of this section.
(g) foreign government officials who have engaged in particularly severe
violations of religious freedom
Any alien who, while serving as a foreign government official, was responsible for
or directly carried out, at any time during the preceding 24- month period,
particularly severe violations of religious freedom, as defined in section 6402 of
title 22, and the spouse and children, if any, are Inadmissible.
(3) SECURITY AND RELATED GROUNDS
(A) In general
Any alien who a consular officer or the attorney general knows, or has
reasonable ground to believe, seeks to enter the united states to engage solely,
principally, or incidentally in—
(i) Any activity
(I) To violate any law of the united states relating to espionage or
(II) To violate or evade any law prohibiting the export from the united
states of goods, technology, or sensitive information,
(ii) Any other unlawful activity, or
(iii) Any activity a purpose of which is the opposition to, or the control or
overthrow of, the government of the united states by force, violence, or
other unlawful means,
(B) TERRORIST ACTIVITIES
(i) In general
Any alien who—
(I) Has engaged in a terrorist activity,
(II) A consular officer or the attorney general knows, or has
reasonable ground to believe, is engaged in or is likely to engage
after entry in any terrorist activity (as defined in clause (iii)),
(III) Has, under circumstances indicating an intention to cause death
or serious bodily harm, incited terrorist activity,
(IV) Is a representative (as defined in clause (iv)) of a foreign terrorist
organization, as designated by the secretary under section 1189
of this title, or
(V) Is a member of a foreign terrorist organization, as designated by
the secretary under section 1189 of this title, which the alien
knows or should have known is a terrorist organization
An alien who is an officer, official, representative, or spokesman of the Palestine liberation organization is
considered, for purposes of this chapter, to be engaged in a terrorist activity.
(ii) "terrorist activity" defined
As used in this chapter, the term "terrorist activity" means any activity
which is unlawful under the laws of the place where it is committed (or
which, if committed in the united states, would be unlawful under the laws
of the united states or any state) and which involves any of the following:
(I) The highjacking or sabotage of any conveyance (including an
aircraft, vessel, or vehicle).
(II) The seizing or detaining, and threatening to kill, injure, or continue
to detain, another individual in order to compel a third person
(including a governmental organization) to do or abstain from
doing any act as an explicit or implicit condition for the release of
the individual seized or detained.
(III) A violent attack upon an internationally protected person (as
defined in section 1116(b)(4) of title 18) or upon the liberty of such
(IV) An assassination.
(V) The use of any--
(a) Biological agent, chemical agent, or nuclear weapon or
(b) Explosive or firearm (other than for mere personal
monetary gain),with intent to endanger, directly or
indirectly, the safety of one or more individuals or to cause
substantial damage to property.
(B) FOREIGN POLICY
(i) in general
An alien whose entry or proposed activities in the united states the
secretary of state has reasonable ground to believe would have
potentially serious adverse foreign policy consequences for the united
states is Inadmissible.
(ii) exception for officials
An alien who is an official of a foreign government or a purported
government, or who is a candidate for election to a foreign government
office during the period immediately preceding the election for that office,
shall not be excludable or subject to restrictions or conditions on entry
into the united states under clause (i) solely because of the alien's past,
current, or expected beliefs, statements, or associations, if such beliefs,
statements, or associations would be lawful within the united states.
(iii) Exception for other alien
An alien, not described in clause (ii), shall not be excludable or subject to
restrictions or conditions on entry into the united states under clause (i)
because of the alien's past, current, or expected beliefs, statements, or
associations, if such beliefs, statements, or associations would be lawful
within the united states, unless the secretary of state personally
determines that the alien's admission would compromise a compelling
united states foreign policy interest.
(4) PUBLIC CHARGE
(a) in general
Any alien who, in the opinion of the consular officer at the time of application for a
visa, or in the opinion of the attorney general at the time of application for
admission or adjustment of status, is likely at any time to become a public charge
(b) factors to be taken into account
(i) in determining whether an alien is Inadmissible under this paragraph, the
consular officer or the attorney general shall at a minimum consider the
(III) Family status;
(IV) Assets, resources, and financial status; and
(V) Education and skills.
(ii) in addition to the factors under clause (i), the consular officer or the
attorney general may also consider any affidavit of support under section
1183a of this title for purposes of exclusion under this paragraph.
A. JUDICIAL REVIEW OF VISA DENIALS
According to the USSC, the APA allows courts to review agency action, unless congress has made clear
otherwise that judicial review is Inapplicable.
Consular decisions made overseas are still generally held to be beyond the reach of
the courts, largely bc of the way courts have construed Mandel. Thus, the NY
district court held in Pena v. Kissenger that a consul‟s decision to deny an immigrant
visa based on his or her relation to a US Citizen or LPR is not judicially reviewable.
Pena v. Kissenger
Pena was an American resident who married a national of the Dominican republic, who then
sought a visa to enter the us. The us consul in the Dominican republic concluded that the
marriage was a sham and denied the visa. Pena sought an action in district court seeking an
injunction compelling the consular to issue the visa.
Issue was whether a consul’s decision to deny a visa was judicially reviewable
Held that a consul’s decision to deny an immigrant visa based on his or her relation to a
US Citizen or LPR is not judicially reviewable.
Numerous precedents make clear that a consul’s decision is not judicially reviewable
This decision was not arbitrary or capricious
Mandel dictates that judicial review of immigration officials decisions are not reviewable
B. 1996 AMENDMENTS
The 1996 amendment to the INA, also known as the “welfare act” placed the concern that immigrants
would become public charges into legislation.
It requires affidavits of support and makes them enforceable for 5 years after the arrival bc of a
belief that aliens in America should be self-sufficient and that they place a net cost on taxpayers.
Affidavit can come from a sponsor, who is often a US Relative, who is often petitioning for their
entry under an immigrant classification for family reunification. Under current law, sponsors
agree to support only for 3 years and it is legally enforceable.
Affidavit requirement also applies to employment based immigration where the Employer is a
relative or an entity in which the relative has a 5 percent ownership interest.
Act also placed direct restrictions on public benefit access and indirect bars through deeming
I.e., Food stamps, ssi, and nonemergency Medicaid for 5 years.
After the 5 year bar expires, most immigrants will remain ineligible for public assistance due to
C. MODERN ADMISSION PROCEDURES
1. Nonimmigrant admissions
i.) Nonimmigrant goes to consular office in his or her country and fills out an application
(personal appearance requirement may be waived for some categories and a great range
of categories allow for mail application
ii.) Alien bears burden of proving qualification for the visa, the most important issue is that
the alien has a home in the foreign country to which he or she intends to return to.
iii.) Consular has the discretion to require any form of documentary support deemed
iv.) If visa is approved, the consular stamps a nonimmigrant visa into the applicant’s
passport. The stamp shows the visa number, date and place of issue, expiration date, and
visa classification. It is good for any number of entries until the expiration date.
v.) Without a visa, an alien will not be able to board a plane or other vessel for the us. Even
with a visa though, the alien is not guaranteed admission. The immigration officials at
the border are not bound by the consul’s decision on admissibility and may deny
admission despite the possession of a visa.
vi.) Aliens coming to the us must fill out a form i-94 card before the plane lands and carry it
with them through inspection.
vii.) Officer takes top portion of the form and alien takes bottom portion which is stapled to
the passport. It must be surrended upon departure from the US
2. Immigrant admissions
Beneficiary = alien who seeks to immigrate
Petitioner = family member or Employer who files the visa petition
Petitioner can withdraw petition at anytime without the beneficiary’s
Death of the petitioner automatically revokes the visa
If beneficiary has not yet traveled to the us or been accorded adjustment
status, the revocation will block the beneficiary’s immigration.
Spouse of a US Citizen can self-petition for 2 years as an immediate relative
after the death of the citizen spouse, if they have been married for 2 years.
Battered spouses or children may also self-petition under certain conditions.
i.) Petitioner files a visa petition by mail to the ins regional service ctr.
Petition allows the ins to verify the family or employment relationship that underlies
the alien’s claim to preference or immediate relative status.
Family petitions are files on form i-130.
Employment based petitions are filed on form i-140, and e must have a labor
certification from the labor dept. Before presenting the i-140 to ins.
ii.) Upon approval, the ins examiner endorses the visa petition, which is forwarded to the
state’s dept. National visa center where the nvc creates a case file and handles the
preliminary paperwork needed before scheduling an interview with the US Consul in the
iii.) If the petition indicates that the alien is in the us and wishes to obtain residence through
adjustment of status, rather than through the visa process, the petition will be sent to the
appropriate office. Approval of the visa process does not mean that ins has found the
alien generally admissible. The issue must be decided by consul or by the ins examiner
considering an adjustment application.
iv.) When the visa petition is received by the nvc, an officer checks to see if it is complete
and technically correct, creates an electronic files, and notifies the consulate where the
alien is expected to apply to the visa. Aliens who do not adjust statutes in the us are
ordinarily expected to return to their home countries to pick up their visas at the US
v.) If the priority date is current or if the beneficiary is a no quota immediate relative, then no
waiting lists apply and a visa will be available.
Beneficiary then must complete packet 3 which includes:
1) Police certificate or certificates
2) Certified copy of prison record
3) Record of birth
4) Military record
5) Certified copies of all other records or documents which the consular officer
6) Affidavit of support that alien will not become a public charge
Once the biographical information is completed, the alien then notifies the consulate
when she has all of the documentation
Once the officer makes sure that all of the information has been correctly supplied on
the application form, and has interviewed the applicant, the officer then decides
whether or not to deny the visa
1) Denial is subject to a limited form of review by another officer at the
post and, under some circumstances, referral to the dept. Of state’s visa
office for an advisory opinion.
2) If the applicable Inadmissibility ground is subject to waiver, however,
the consul usually assists the alien in completing a waiver application,
to be forwarded to the ins for adjudication, along with the consul’s
report of any pertinent information.
If the consul finds the alien Inadmissible, the officer issues an immigrant visa, valid
for 6 months.
Visa is not stamped into the alien’s passport but consists of separate
documents with attachments that must be presented to the admitting
immigration officer at the port of entry
If that officer finds no disqualification’s upon his inspection, he will keep the
immigrant visa, make a notation of admission as a lawful permanent resident in the
alien’s passport, and forward the necessary papers to an ins facility for the ultimate
issuance of the alien registration receipt card (AKA green card). Issuance may take
several additional months.
vi.) If a visa is not immediately available, the officer notifies the alien and it is held until a
visa is available.
ADJUSTMENT OF STATUS – (DISCRETIONARY DECISION NOT SUBJ TO JR)
To ease up resources and assist nonimmigrants who wished to have an adjustment of status but did
not want to travel to their home country to do so, the ins adopted the 1952 INA § 245.
§ 245 §245 authorizes the adjustment of status from nonimmigrant to immigrant for aliens who meet
certain requirements. This whole process can now be carried out by the ins and the alien need
never leave the US Today, adjustment is an increasingly common immigration practice.
Note: adjustment does not eliminate the need for a visa petition in those immigrant
categories to which the petition requirement applies (family preference and employment
INA § 245 (c) Unless they are immediate relatives of US Citizens, aliens are ineligible for
(8) adjustment under §245(a) if they worked without authorization before filing
or if they are in unlawful immigration status on the date of filing the
application for adjustment of status or who have failed for their own fault to
maintain a continuously lawful status entry into the US. Pei-Chi Tien v. INS
However, under INA § 245(k), §§245(c)(2),(7), & (8) DO NOT bar
adjustment of status by certain aliens in the employment based preferences if
they have NOT been out of lawful status or engaged in unauthorized work
for more than an aggregate of 180 days.
§245(a): AG can change status from admitted/paroled to LPR
§245(i)(1): adjustment of status is also available for illegal aliens if the alien
pays $1000 as of the date of receipt of application to the AG.
Entering the US with the intent of remaining permanently is grounds for
denying an adjustment from business visitor to permanent resident. Jain v.
Jain v. INS
Jain was an Indian citizen. On two occasions, he entered the us on business
visitor’s visas, attempting to make US Contacts for his export business in India.
He came a third time, ostensibly for the same reason. In fact, he had sold his
Indian business and intended to reside permanently in the US Jain then
petitioned for an adjustment in status to permanent resident. The ins, finding
that he had improperly obtained the business visa in light of his intention to stay,
denied the adjustment, and began deportation proceedings.
Held that entering the us with the intent of remaining permanently is grounds
for denying an adjustment from business visitor to permanent resident
Ins retains discretion in deciding upon an application of adjustment, and
lack of good faith in entering the us is a factor which the ins may consider
TWO GROUPS OF ALIENS INELIGIBLE FOR ADJUSTMENT UNDER §245(A)
1) Aliens who seek to qualify under one of the employment based immigration categories
and are in an unlawful nonimmigrant status §245(c)(7)
But! In 1997, congress provided that the ineligibility grounds in §§245(c)(2), (7), &
(8) do not bar adjustment of status by certain aliens in the employment based
preferences if they have not been out of lawful status or engaged in unauthorized
work for more than an aggregate of 180 days. INA §245(k)
2) Any alien who has worked without authorization or who has otherwise violated the terms
of the nonimmigrant visa §245(c)(8)
An alien denied adjustment of status is NOT disqualified automatically from LPR status
She can use the usual immigrant visa process to become an LPR but she must qualify for an
immigrant visa and cannot be Inadmissible
But! Overstays cannot use the usual visa process.
RECISSION OF ADJUSTMENT OF STATUS
If AG believes that person was not in fact eligible for such adjustment of status, the
adjustment can be rescinded anytime within 5 years of the adjustment
They are heard by immigration judges and are appealable to the BIA.
Govt. bears the burden of establishing by clear and convincing evidence that the
adjustment was improperly granted.
PAROLE - § 212(D)(5)
“authorizes the attorney general to parole aliens under such conditions as she may prescribe for
emergent reasons or reasons deemed strictly in the public interest”
Flexible tool used either before or after an administrative finding of Inadmissibility, to permit
medical treatment, to allow appearance in litigation or a criminal prosecution, to prevent
inhumane separation of families or for other humanitarian reasons, or to permit release
pending adjudication of an Inadmissibility case.
Allows an alien to travel away from the border and the detention facilities and yet still remain
subject to exclusion proceedings so that technically, an alien has made no entry.
May be granted only by AG and a select list of delegates (ins district directors)
Re-admission of LPR‟s
Entry means any entry, not just the first one. US Ex. Rel. Volpe v. Smith (1933)
Exception was carved out in Rosenberg v. Fleuti in 1963 and since amended in §
An innocent, casual, and brief excursion by a resident alien outside of this country‟s
borders may not have been intended as a departure disruptive of his resident alien
status and therefore may not subject him to the consequences of an „entry‟ into the
country on his return. However, this does not apply to LPR‟s who have committed
an offense identified in 212(a)(2) and who has not since such time been granted relief
under 212(h) or 240(a)(a).
If a permanent resident alien plans to leave this country temporarily, he may do so
and then return as a “special immigrant” under INA §101(a)(27)(a) and § 211(b).
But for purposes of return, it is important for the alien to take along documentation
clearly demonstrating that he or she is a returning resident. If the alien will be gone
from the country no longer than 12 months, the green card may be used as the
needed re-entry permit. INA § 223.
Under INA §101(13)(c)(ii), an alien lawfully admitted for permanent residence in
the us shall be regarded as seeking an admission into the us for purposes of the
immigration laws if the alien has been absent from the us for a continuous period in
excess of 180 days, making all of the Inadmissibility grounds of §212(a) apply fresh.
VI. CONSTITUTIONAL PROTECTION AFTER ADMITTANCE
Section will discuss the constitutional protection of aliens after admission to the united states.
A. PUBLIC BENEFITS
Congress has broadly declared as federal policy that lawfully admitted resident
aliens who become public charges for cause arising AFTER THEIR ENTRY are
not subject to deportation, and that as long as they are here they are entitled to
the full and equal benefit of all state laws for the security of persons and
States can treat citizens differently if the state is protecting a public interest in its
common property or resources, but only with regard to privileges, not rights.
See Takahashi, graham v. Richardson
Crane v. Ny held that a Ny state law prohibiting the employment of aliens on
public works projects was valid because the state‟s special public interest was to
devote public funds to employ its own funds.
Takahashi held that aliens within the us jurisdiction shall have equal benefit of
laws and proceedings for the security of persons and property as is enjoyed by
State laws limiting permanent resident aliens‟ access to welfare benefits violates
the EPC. Graham v. Richardson.
State welfare benefits are a right and aliens are entitled to equal rights of state
citizens. Graham v. Richardson.
The admission of aliens, their naturalization, and the regulation of their conduct
are within the exclusive power of the federal government. That is, state laws are
preempted by congressional authority to regulate the activities of resident aliens.
Graham v. Richardson.
THREE TESTS TO BE USED IN DETERMINING WHETHER A STATE STATUTE RELATED
TO IMMIGRATION IS PREEMPTED BY FEDERAL LAW (from DE CANAS)
If a statute fails any one of the 3 tests, it is preempted by federal law.
1) Court must first determine whether a state statute is a regulation of immigration
Since the plenary power to regulate immigration is unquestionably exclusively a federal power, any state
statute which regulates immigration is constitutionally proscribed.
2) Even if the state law is not an impermissible regulation of immigration, it may still be
preempted if there is a showing that it was the clear and manifest purpose of Congress to
effect a complete ouster of state power - including state power to promulgate laws not in
conflict with federal laws” with respect to the subject matter which the statute attempts to
IOW, a statute is preempted where Congress intended to “occupy the field” where the statute attempts to
3) A state law is preempted if it stands as an obstacle to the accomplishment and execution
Graham and objectives of Congress.
of the full purposesv. Richardson
IOW, a statute is preempted if it conflicts with federal law making compliance with both state and
federal law impossible.
Richardson was a LPR from Mexico who had lived in AZ for 3 years. Within that time,
she had become permanently disabled and applied for the AZ assistance program for
permanently disabled residents. The requirements for eligibility included citizenship and
residency in AZ for at least 15 years, she filed suit but was denied relief solely bc of the
residency provision. Similarly, Leger and Jervis were denied state benefits bc of lack of
citizenship. The states sought to justify their restrictions on the eligibility of aliens for
public assistance on the basis of a state’s “special public interest” in favoring its own
residents over aliens in the distribution of limited resources.
Issue was whether the 14th amendment prevents a state from conditioning welfare
benefits either (a) upon a beneficiary’s possession of us citizenship or (b) if the
beneficiary is an alien, upon his having resided in this country for a specified number of
years. State enactment
Held that a state statute that denies welfare benefits to resident aliens and one that
denies them to aliens who have not resided in that specific state for a number of
specified years violates the EPC.
Welfare benefits are a right, not a privilege, and states may only limit privileges to
Special public interest doctrine applies only to privileges, not rights.
State laws that deny public benefits bc of alienage conflict with an area
constitutionally entrusted to the federal government
Congress has no constitutional duty to provide all aliens with the welfare
benefits provided to citizens and may discriminate in favor of citizens and
against aliens in providing welfare benefits. Matthews v. Diaz.
Matthews v. Diaz stands for the proposition that the level of judicial scrutiny
of federal classifications involving alienage is far more deferential than that
applied to the state.
Matthews v. Diaz
Appellees are resident aliens who were lawfully admitted to the us less than 5 years ago
all three are over 65 years old and were denied enrollment in Medicare part b. That part
of Medicaid grants eligibility to aliens only if they have been admitted as permanent
residents and also have resided in the us for at least 5 years. Federal enactment
Issue: whether congress may condition an alien’s eligibility for participation in a federal
medical insurance program on continuous residence in the US For a 5 year period and
admission for permanent residence.
Real issue was whether congress could discriminate within the class of aliens –
allowing benefits to some aliens but not others.
Held that congress has no constitutional duty to provide all aliens with the welfare
benefits provided to citizens and may discriminate in favor of citizens and against aliens
in providing welfare benefits.
Although Congress‟ plenary power give its authority over immigration and
naturalization made clear in Chan Chae Ping, the federal power over aliens
is not so plenary that any agent of the national govt. May arbitrarily subject
all resident aliens to different substantive rules from those applied to citizens.
Government must identify a reasonable interest in discriminating against
aliens. Mow Sun Wong.
Mow Sun Wong
Case in which the federal civil service commission regulation required federal civil
service employees to be citizens.
Court found that the rule hurt already disadvantaged aliens and that the govt. Did not
identify any interest which can reasonably be assumed to have influenced the
civil service commission in the administration of their responsibilities.
President Ford then went on to issue an executive order that imposed the same
citizenship requirement, which lower courts later upheld.
Mow Sun Wong stands for the proposition that either the president or
congress can regulate the activities of aliens as long as a reasonable interest is
proffered. Taken even further, even another government agency‟s
regulation would probably not be scrutinized.
The 1996 welfare reform act impaired many noncitizen recipients by limiting
welfare recipients to 5 years of benefits and requires them to work within 2
years of receiving aid. It abolished the AFDC but replaced it with the new
temp assistance for needy families program through block grants to the
states. It also shifted authority and substantial costs from the federal govt. to
the states. Aliens cut off from federal programs are likely to seek aid from
states and localities.
The constitutionality of the provisions cutting off permanent residents
already in the U.S. was at issue in the following case.
Abreu v. Callahan
Case about lawful resident aliens who suddenly found themselves ineligible to
receive SSI benefits after the passing of the 1996 welfare reform act. They (and the
co’s ,the state of N.Y.) claimed that the act violates the DPC of the 5th amendment
and sought a preliminary injunction barring its enforcement against persons who
were legal resident aliens on the date the welfare reform act became law. Welfare
reform act statute continued the eligibility of permanent resident aliens who had
worked 40 calendar quarters qualifying under the SS Act as well as that of veterans
and certain military personnel and their families, for SSI benefits and food stamps on
the same basis as us citizens but not to those who did not meet these requisite work
Issue was whether the distinction between two groups of lawful permanent
resident aliens, those who do and do not have the requisite work histories, is
constitutional (similar to in Matthews)
Government argued that objection of the provisions of the welfare reform act served
a legitimate government interest:
a) Citizens are more motivated towards citizenship by eligibility for welfare
benefits. Section 402 is giving aliens an incentive to become naturalized
b) Encouraging non-citizens to be self-sufficient and to rely on families,
sponsors and private agencies
c) Controlling the escalating cost of the SSI program
d) Diminishing the incentive for immigration created by the possible
availability of benefits.
Court said that based on the government’s purported objectives that section 402
Encouragement serves, the issue is then whether section 402 is rationally related to that end.
of naturalization Held:
is a legitimate 1) Encouragement of naturalization is a legitimate governmental interest bc it
governmental promotes the ties between a nation and an individual represented by
interest citizenship. Citizenship is the only status that permits an individual to vote
and participate fully in the polity.
2) Encouraging self-sufficiency is a legitimate objective long recognized in our
society and those in the armed forces have demonstrated commitment to self-
sufficiency and to caring for themselves and others.
3) Congress was entitled to conclude that those aliens adversely affected by section
402 have less substantial connections with and affinity for this country than
those who remain eligible for benefits.
4) Bc of congress‟ power over immigration, discouraging
immigration to the us plainly is a legitimate government
purpose. termination of benefits to those who came here lawfully and then
suffered reverses in their lives of the dimensions necessary to qualify for ssi and
food stamps, only to find that the rules governing eligibility had changed, itself
**After Abreu was decided, the balanced budget act modified the welfare
reform act such that those lawful permanent residents who were receiving
SSI benefits on the date that the welfare reform act became law, retain
VII. UNAUTHORIZED IMMIGRANTS IN THE US
A. WHY DO UNDOCUMENTED IMMIGRANTS ENTER THE US?
1) To join family members
2) To flee persecution in their homeland
3) To go to school
4) Economic factors
5) Public and private factors in encouraging or at least tolerating unlawful immigration
(backdoor labor source)
B. IMPACT OF UNAUTHORIZED IMMIGRATION IN THE US
1. Impact on social services
2. Employment opportunities and wages of US Citizens and legal immigrants
3. Impact on state and local finances
4. Money that undocumented workers send home to their families is a significant form of
unofficial foreign aid.
C. CONTROLLING UNDOCUMENTED IMMIGRATION
1. Border enforcement
Tighter border enforcement deters illegal immigration, reduces human rights
violations, increased the seizure of illegal contraband
Also includes building higher fences and erecting lights
2. Employer sanction and anti-discrimination provisions
Justification for e sanctions
1) Imposition of penalties on Employers who hire undocumented aliens will
deter their hiring
2) Bc securing employment is the primary reason for illegal entry and
residence, this will reduce incentives for illegal entry
3. Public benefits
Public schools cannot refuse to educate the non-US Born children of
illegal aliens. Plyler v. Doe
Plyler v. Doe
Laws passed by the TX state legislature and enforced by Plyler that withheld from
local school districts any state funds for the education of children who were not
legally admitted into the us were challenged as violative of the EPC. Doe sued
Plyler, alleging that the laws were inconsistent with the dictates of the EPC of the
14th amendment bc they caused the children of undocumented aliens to be treated as
a suspect class and that such classifications did not bear a fair relationship to any
legitimate public purpose.
Held that public schools cannot refuse to educate the non-US Born children of illegal
Legislation directing the onus of a parent’s misconduct against his children
does not comport with fundamental conceptions of justice.
Law here is directed against children and imposes its discriminatory burden on
the basis of a legal characteristic – undocumented status – over which children
can have little control.
No evidence here that illegal immigrants impose any significant burden on the
In 1994, ca adopted prop 187 which restricted undocumented aliens‟
access to public services, including education and nonemergency
health care. It also creates substantial criminal penalties for the
manufacture and distribution of false citizenship and permanent
League of united Latin America v. Wilson
Case challenging prop 187.
Issue was whether prop 187 provisions were preempted by federal law.
Determined by USSC’s decision in de Canas and 4 tests.
Court concluded that some, not all, provisions of the ca statute were preempted but
that others were not, using the de Canas tests.
Provisions regulating immigration were preempted
Provisions which allow state agents to make independent determinations of
immigration status were preempted bc congress has exclusively reserved that
power to the ins and immigration judges pursuant to INA § 236 (8 USC §
’s argued that state agents are required to and for make determinations of
immigration status already in administering benefits under certain federal-
State statutes cannot
regulate immigration bc state cooperative programs such as save. Save required state agents to
that power is exclusively verify immigration status by accessing federal immigration statue
reserved to congress information through save.
Court held that a requirement that state agents merely verify immigration
status by referring to ins information is different from a requirement that
state agents actually make determinations as to who is and who is not
deportable under federal law.
Provisions that create its own scheme setting forth who is and who is not
deportable are preempted
The USSC has established essentially no limits on congress’ authority to define classes of deportable
aliens. This parallels the doctrine developed by the court in exclusion cases.
DEPORTABILITY applies only to those aliens who have been admitted and for whom grounds of
deportability apply. INA § 237(a). Definition is found in §101(a)(13).
EXCLUSION applies to noncitizens present in this country without having been inspected and admitted.
Under IIRIRA, no longer do we talk about deportation or exclusion. Rather both of these
concepts are collapsed into Inadmissibility or admissibility. Thus, all questions about a person’s
right to remain, whatever the circumstances of her detection or apprehension, are adjudicated in a
unified removal proceeding under §240, no matter whether the basic charge is exclusion or
deportability. IOW, same proceeding for both (KA removal proceeding). However, if
someone is removable right away, they are subject to expedited removal.
A. THE DEPORTATION POWER
Congress will apply the same 1 st amendment standard to aliens‟ claims as
they do to citizens. Harisades v. Shaughnessy
Harisades v. Shaughnessy
Issue was whether the us could constitutionally deport a legally resident alien
because of membership in the communist party which terminated before the
enactment of the alien registration act of 19401 deportation proceedings were issued
for three individuals who then brought suit asking to forbid their expulsion. Each of
the three were offered nationalization but denied it and kept their own nation’s
Held that the act was not invalid under the DPC, 1st amendment (deportation for the
expression of political views), or ex post facto constitutional arguments
That aliens remain vulnerable to expulsion long after long term
residence is a weapon of defense inherent in every sovereign state
Not our job to make judgments about legislation. Judicially we must tolerate
what personally we may regard as a legislative mistake.
DPC does not protect individuals from conscription and the calamity of being
separated from family and friends when the purpose is to stem the tide of
We think that in the present state of the world, it would be rash and irresponsible
to reinterpret our fundamental law to deny or qualify the govt.’s power of
If communist aggression creates such hardships for loyal citizens, it is hard to
find justification for holding that the constitution requires that its hardships must
be spared against the communist alien.
1st amendment does not prevent the deportation of aliens.
Court used the ______ standard of review
Constitutional protections that lawful aliens have: Based on the distinction that aliens
1) criminal ex post facto laws have not pledged allegiance to the
2) Habeas corpus US and thus are removable
3) 5th and 6th amendment in bill of rights
4) Due process Government has power to terminate
its hospitality (Fong Yue Ting)
5) Equal protection of the laws (Yick Wo)
Alien Registration Act of 1940 provided for deportation of any alien who had been a member of a subversive group at any
time irrespective of their entry into the US. It was intended to apply to aliens who were associated with subversive
organizations for no matter how short a time or how far in the past.
6) 1st amendment
1st amendment FREEDOM OF ASSOCIATION protects permanent
residents and citizens equally in the deportation context when there have
been status violations. American Arab anti-discrimination committee v. Reno
American Arab anti-discrimination committee v. Reno (9th Cir)
Issue was whether aliens may be deported bc of their associational activities with
disfavored groups, or whether aliens who reside within the jurisdiction of the us are
entitled to the full panoply of 1st amendment rights of expression and association.
Government argued that aliens are not entitled to the same 1st amendment protections
that citizens enjoy and that congress’ plenary power over immigration justifies a
lower 1st amendment standard for aliens in the deportation context and on
Kleindienst v. Mandel as dispositive of the issue of whether aliens may be deported
bc of their associational activities with particularly disfavored groups.
Held that 1st amendment protects permanent residents and citizens equally.
Must remain true to the principle underlying the 1st amendment, that any
limitation to the 1st amendment are themselves damaging to the values
underlying 1st amendment protections
These aliens are already here within our jurisdiction and are entitled to our
protection in exchange to obedience to our laws.
Kleindienst dealt with exclusion rather than with deportation so Inapplicable
1st amendment does not distinguish between aliens and citizens but to all peoples
who may peaceably assemble.
To not give them 1st amendment rights sends a frightening message to any alien
considering controversial political activity and chills free speech and
associational activities in any setting.
A permanent resident is entitled to the same 1 st amendment protections as
US citizens, including limitations imposed by the overbreath and vagueness
doctrines. Rafeedie v. INS. (noteworthy bc it concerned exclusion of a returning
permanent resident, not deportation)
An alien may be deported for conduct that did not render the alien
deportable at the time the act was committed. In constitutional law terms,
the prohibition against ex post facto laws does not apply to deportation
statutes. Galvan v. Press.
Selective prosecution is a term normally used in criminal context so selective
prosecution argument is a little off base. Deportation is civil. (ginsburg)
AAC does not mean that an alien is protected from deportation by the 1st amendment
where there are status violations. AAAC is specifically applicable to freedom of
association and may not protect the alien when the alien is more adamantly utilizing
INA § its freedom of speech. Thus, INA §237(a)(4)(b) allows the ins to deport an alien
237(a)(4) for terrorist activities engaged in after arrival or during arrival in an individual
(B) capacity or as a member of an organization.
Question of whether an alien who has no status violations can be deported for
membership is thus still unanswered.
Congress intended the removal of jurisdiction to apply to cases that were pending at
the time and given that there was no ability of the court to review it, the AG may give
priority to the removal of aliens that had engaged in terrorist organizations. (stevens)
Humanitarian law project vs. Reno (9th Cir.) Recently dealt with providing
material support to a foreign terrorist organization and suggested that there is no 1st
amendment protection when the statute is impermissibly vague.
B. GROUNDS OF DEPORTABILITY
Court has generally read deportation statutes quite narrowly bc stakes for the individual
are considerable and the court will not assume that congress meant to trench on his
freedom beyond that which is required by the narrowest of several possible meanings of
the words used.
Standard used is the “clear statement” rule of statutory construction.
“Has congress stated with clarity what conduct shall render the alien
1. IMMIGRATION CONTROL GROUNDS FOR DEPORTATION
a. Inadmissible at time of entry and adjustment of status -- §237
e.g., fraud and §237 (a)(1)(a) subjects an alien to deportation if she was Inadmissible at
willful misrep. in time of entry or adjustment of status. (AKA delayed exclusion)
alien’s own visa
No sol on this delayed exclusion
Fact that alien passed through inspection at the border does not prevent
b. Presence in the us in violation of law - §237(a)(1)(b)
Applies where presence in us is without inspection (illegal aliens)
Also applies to nonimmigrant overstays (deportable under §237(a)(1)(b)
c. Failure to maintain nonimmigrant status (also applies overstays)
INA §237(a)(1)(c)(i) provides for the deportation of nonimmigrants who
fail to maintain their status or violate the conditions of their admission.
Also covers nonimmigrants who work without authorization, students who
leave school, and temporary workers who abandon their employment.
d. Document fraud - §274(c)
e.g., LPR who Imposes civil and criminal penalties on persons and entities that engage
sells fake green knowingly in various types of fraud in connection with immigration-related
2. CRIME RELATED GROUNDS FOR DEPORTATION
Deals with convictions, not simply for committing a crime. Currently, deporting for
criminal convictions is widely used and common.
a. Crimes involving moral turpitude - §237(a)(2)(a)(i)
§237(a)(2)(a)(i) states that an aliens is deportable for a crime of moral
§ 237(a)(2)(A)(II): turpitude within 5 years after entry (10 years for LPR‟s) and convicted
to prison for more than a year.
A crime of moral
turpitude includes one
where the alien was The question whether a crime is one of moral turpitude is whether “a
convicted of a crime for crime is one with an intent to defraud as an element, thereby making it a
which a sentence of 1 crime involving moral turpitude, id determined by the statutory
year or longer may be definition or by the nature of the crime, not be specific conduct that
imposed. resulted in the conviction” Goldeshtein
Ask: “is evil intent, or an intent to defraud, a necessary element of the crime
of which the alien was convicted, as the Goldeshtein court asked.
**Goldeshtein v. INS**
A case of 1st impression, it demonstrates what a crime of moral turpitude is.
G was convicted of conspiracy to violate federal currency laws and two
counts of willfully structuring financial transactions with domestic financial
institutions to avoid currency reports.
Issue was whether the crime was one of moral turpitude and thus he should
Held that because evil intent, such as intent to defraud, is not necessarily an
element of the crime of which g was convicted, and his offense is not of the
gravest character, the crime does not involve moral turpitude.
Court rejected the argument by the ins that evil intent exists if a
conviction requires proof that a defendant did a forbidden act
“willfully.” Statute was not explicit about intent to defraud.
Nor is the intent implicit in the nature, despite that a crime can involve
moral turpitude is such intent is implicit in the nature of the crime.
b. Drug offenses - § 237(a)(2)(b)
Under INA § 39
(d)(1), the AG
INA mandates the following:
(i) The deportation of all persons convicted of any drug offenses,
proceedings as including under-the-influence convictions.
expeditiously as (ii) It was amended in 1990 by congress to include any alien who is a
possible drug abuser or addict, even those who have not been convicted
Subsection (ii) reaches alien drug abusers who have not been convicted of
controlled substance offenses while subsection (i) reaches all aliens convicted of
controlled substance violations, including the use of drugs.
A lawful resident alien convicted of use or being under the influence is
deportable as one convicted of violating “any law…relating to a
controlled substance” Flores-Arrellano.
Flores-Arrellano v. Ins
Flores entered the us as a permanent resident in 1990. All of his parents
and children were LPR’s. After the ins issued an order to show cause
charging Flores with deportability on the basis of his conviction for being
under the influence of drugs, Flores argued that “use” convictions were
excluded from deportability.
Held that a lawful resident alien convicted of use or being under the
influence is deportable as one convicted of violating “any law…relating to
a controlled substance”
Plain language of the statute §241(a)(2)(b)(1) of the INA reaches
under-the-influence convictions. Provision is not ambiguous nor does
its plain language lead to absurd results or internal statutory
No Judicial c. Aggravated Felonies - 237(a)(2)(a)(iii)/INA § 101(a)(43)/ § 237
237(a)(2)(a)(iii) or INA § 101(a)(43) allows the deportation of any alien
who is convicted of an aggravated felony at any time after admission.
Under INA § 238
(b)(2)(A), and (B),
This statute is harsh bc it allows an alien who has been in the us for 20 years to be
deportable for an aggravated felony.
Consequences of aggravated felony convictions are harsh:
residents are subject to
a) Not eligible for most forms of relief from deportation
expedited removal if
b) No asylum
they have been
convicted or an AF.
c) No judicial review of deportation orders
d) Barred from life from re-entering without the AG's consent
e) Subject to removal procedures under INA §238(b)
In re Batista Hernandez
B-h was a citizen of the Dominican Republic who entered the us without
inspection in 1985. 3 years later, the ins granted the respondent temporary
resident status and he thereafter adjusted his status to LPR. In 1993, he was
convicted of the offense of accessory, an aggravated felony, and a
controlled substance violation. The immigration judge found him
deportable on both grounds and certified his decision to the immigration
and naturalization board.
Held that the conviction did not relate to a controlled substance
violation for purposes of establishing deportability under §
241(a)(2)(b)(i) of the act but that it did come within the statutory
definition of an aggravated felony.
3. TERRORIST ACTIVITIES §237(A)(4)(B)
Under INA § 504(a)(1), the AG can begin removal
proceedings as expeditiously as possible if the alien is a
terrorist or has engaged in terrorist activities.
4. CRIME OF DV, STALKING, VIOLATION OF PROTECTION
ORDER, CHILD ABUSE, CHILD NEGLECT, OR CHILD
C. RELIEF FROM REMOVAL
This section will examine the various provisions in the INA that provide relief from removal.
In the majority of removal hearings, the eligibility for such relief is the only issue:
The alien will concede deportability at the outset of the hearing, and then request
some form of relief from removal.
1. VOLUNTARY DEPARTURE INA § 240(B)
Many aliens view voluntary departure as a ticket for further attempts at unlawful
Vast majority of aliens granted voluntary departure are arrested for entering
Seek this without inspection and have no colorable claim to lawful residence.
relief second Many of them would rather accept the government’s offer of a ride over the border
than stay and fight expulsion. Their chances of effecting another entry are greater
than successfully challenging deportability at a hearing.
How to qualify for it:
Use for illegal 1) Finding that the applicant meets the statutory prerequisites for the relief
alien who has 2) A judgment by the AG that a favorable exercise of discretion is warranted.
not been here Denials of voluntary departure are largely immune from judicial review.
INA § 240(b)(b)(1)(b) restricts voluntary departure to those who have
been of “good moral character” for at least 5 years before applying.
Note that this is not a statute of limitations but merely a threshold requirement.
In evaluating requests for voluntary departure, immigration judges
must weigh both favorable and unfavorable factors and ensure that
petitioner‟s claims have been heard, considered, and decided.
Favorable factors include:
1) family ties within the US
2) residence of long duration in this country, particularly if residence
began at a young age
3) hardship to petitioner’s family if relief is not granted
4) service in the US armed forces
5) a history of employment
6) the existence of business or property ties
7) evidence of value and service to the community
8) proof of rehabilitation if a criminal record exists
9) other evidence relating to good character
Campos-Granillo v. INS
C-g was a citizen of Mexico with 3 children and married, resided in the us almost
continuously since 1993. He conceded deportability and filed application for suspension
of deportation and alternatively, requested voluntary departure. He received a hearing
before an immigration judge and testified that he had entered the US in 1993 without
inspection and had since then made several brief departures to Mexico. Aside from that,
he had lived in the us almost continuously and has never been convicted of a felony. The
IJ found him to be of good moral character but ineligible for suspension bc he had not
lived in the us continuously for 7 years. Campos-Granillo stated in the testimony phase
of the hearing that if he was deported he would have to return, and the IJ interpreted this
to mean return illegally. She based her decision on this one statement alone and ordered
him to be deported to Mexico.
Held that in evaluating requests for voluntary departure, immigration judges must weigh
both favorable and unfavorable factors and ensure that petitioner’s claims have been
heard, considered, and decided.
Mere conclusory statements are insufficient to base a decision to deport
Here the IJ based her decision solely on the unfavorable factors to the
petitioner. She did not consider the favorable factors when determining the
voluntary departure issue.
2. PROSECUTORIAL DISCRETION INA §
INA service directors have discretion not to prosecute.
Seek this Decisions not to prosecute may be based on a number of factors:
relief as a 1) Lack of enforcement resources
last resort 2) Compelling humanitarian concerns
3) Immigrant issuance of documentation that would regularize the alien’s status.
The two formal acts of prosecutorial discretion that provide relief from
a. Deferred action status
Ins can place an alien in a nonpriority enforcement status to defer action against the
alien, according to the new publication, standard operating procedures for
ins enforcement officers.
FACTORS TO BE CONSIDERED AS PART OF A DEFERRED ACTION DETERMINATION:
(1) the likelihood of ultimately removing the alien, including:
-likelihood that the alien will depart without formal proceedings
-age or physical condition affecting ability to travel
-likelihood that another country will accept the alien
-likelihood that the alien will be able to quantify for some form of relief which would prevent
or indefinitely delay removal
(2) the presence of sympathetic factors which, bc of a desire on the part of administrative or
judicial authorities to reach a favorable decision, could result in a distortion of the law
with unfavorable implications for future cases
(3) whether or not the individual is a member of a class of deportable aliens whose removal
has given a high enforcement priority (e.g., dangerous criminals, alien smugglers, drug
traffickers, terrorists, war criminals, habitual immigration violators)
(4) whether the alien‟s continued presence in the US is desired by local, state, and federal law
enforcement authorities for purposes of ongoing criminal or civil investigation or
b. Stays of removal
District director has discretion to stay the removal of an alien under an order of
removal “for such time and under such conditions as he may deem appropriate.” 8
c.f.r. § 241.6.
This authority is generally used to give the alien a reasonable amount of time to
make arrangements prior to removal or to forestall removal pending the outcome
of a motion to reopen removal proceedings.
No deportation order may be executed while the time for filing an appeal to the
BIA is running, or while an appeal to the BIA is pending. 8 c.f.r. § 3.6(a)
Stays pending court of appeals review are also now discretionary. INA §
3. REGULARIZATION OF STATUS
INA provides a number of avenues of relief that authorize the AG to confer LPR status
upon a removable alien. These forms of relief effectively wipe out the underlying basis
Seek this for removal.
Most likely form of relief that aliens will seek from being deported.
Two ways to regularize status:
a) Cancellation of removal
b) Waiver of certain exclusion grounds in deportation proceedings for long-term
permanent resident aliens.
A. CANCELLATION OF REMOVAL INA § 240(A)
Seek this Cancellation of removal has two provisions:
relief for an
LPR who is 1) For LPRs INA § 240(A)(a)
deportable AG may cancel removal in the case of an alien who is Inadmissible or
but has deportable from the us if the alien:
been here (1) Has been an alien lawfully admitted for permanent residence for not less
for at least 7 than 5 years
years with (2) Has resided in the us continuously for 7 years after having been admitted in
no AF any status, and
charge (3) Has not been convicted of an aggravated felony.
2) For nonLPR‟s INA § 240 (A)(b)
Seek this relief a. Continuous physical presence for 7 years
for a Period of continuous residence or physical presence necessary for relief
nonimmigrant under 240(a) ends with the service of notice or with the commission of a
who has criminal offense that renders the alien Inadmissible or deportable.
overstayed. An alien who was convicted of a crime involving moral turpitude is
ineligible for cancellation of removal no matter how long they have lived in
the us continuously.
NOT AVAILABLE INA § 240(a)(d)
IF YOU Hard rule to pass bc applies to aliens who were issued a notice to appear
COMMITTED A before, on, or after the date of April 1, 1997. (thus, if you came in 1989 and
CRIMINAL were issued an notice to appear in 1995, you still do not have the requisite 7
OFFRNSE OR A years of continuous presence)
b. Exceptional and unusual hardship § 240 (a)(b)(1)(d)
INA § 240(a)(b)(d) – hardship for citizen or LPR‟s! (aliens not
Economic hardship not included.
Hardship to oneself does not qualify. It must be hardship to spouse or
child or close family relatives. Precludes harm to extended family members
such as grandparent or nephew.
c. Discretionary element
AG may cancel removal of eligible aliens.
d. Residence following admission
INA § 240a(a) requires
e. Cancellation for victims of spouse abuse
§ 240a(b)(2) carries forward a special form of relief for battered spouses
and children, which includes more relaxed time and hardship standards than
is applied in other §240a cases.
Note that the section provides relief only if the batterer is a US Citizen or
permanent resident alien.
f. Numerical limits on cancellation
INA § 240a(e) provides that no more than 4000 aliens can be granted
cancellation of removal in any fiscal year.
B. WAIVER OF CERTAIN EXCLUSION GROUNDS IN
INA § 212(h) DEPORTATION PROCEEDINGS FOR LONG TERM
Not available if:
PERMANENT RESIDENT ALIENS
1) convicted of
Provides a waiver from specified grounds of Inadmissibility but it also provides a waiver
2) aggravated for some of the criminal Inadmissibility grounds for long-term permanent resident
felony aliens who left the country and seek readmission.
3) has not Waivers of Inadmissibility grounds apply in the immigration process:
resided 1) When an alien applies for a visa
continuously 2) When an alien applies for admission
in the US for 3) When an alien applies for adjustment of status
at least 7
years. An alien can use the waiver to wipe away the charged deportation
ground. See matter of Sanchez and Yeung.
Yeung v. Ins
Po entered the us as an immigrant in 1988 and was sentenced to 5 years in
prison in 1993. The ins charged him with deportability (as an alien
convicted of a crime involving moral turpitude). Po conceded deportability
but sought to apply for a 212(h) waiver of excludability, based upon his
marriage to a LPR and his us citizen child. BIA found that only times such
a waiver was applicable was when the deportee could file for an adjustment
of status or when the deportee had departed and returned to this country
subsequent to his conviction for committing a deportable offense and that
212(h) was one for admissibility, not deportability. Po did not have
either of these going for him.
Po argued that this distinction upon which the rejection of his claim is based
violates his equal protection rights under the constitution.
Court found that Sanchez and Po are similarly situated and deserving
of similar treatment under the law:
Court mentioned Yick Wo and that constitutional guarantee of equal
protection applies to aliens as well as citizens.
To claim that Po belongs to a different class of persons simply bc of his
failure to depart and reenter is to recognize a distinction that can only
We acknowledge that congress has broad authority to enact legislation
controlling the flow of immigration, but once congress and the
executive have acted, we are obliged to safeguard the rights of citizens
and aliens alike to equal protection under the law.
The AG, when deciding to grant a discretionary waiver of deportation under
212(h) may take into account acts of fraud committed by the alien in
connection with his entry into the US. INS v. Yang.
INS v. Yang
Yang and his wife were born and married in china, but in order to gain entry in the
us, the executed a scheme that included divorcing his wife in china, a false birth
certificate stating that his wife was born in the us, and another divorce in the us while
he was applying for naturalization. Issue was whether the AG, when deciding to
grant a discretionary waiver of deportation under 212(h) may take into account acts
of fraud committed by the alien in connection with his entry into the us.
Held that the AG, when deciding to grant a discretionary waiver of deportation under
212(h) may take into account acts of fraud committed by the alien in connection with
his entry into the us.
Meaning of 212(h) is clear: it imposes no limitations on the factors the AG may
consider in granting the waiver.
WAIVERS OF THE INADMISSIBILITY OF ALIENS
§212 (D) TEMPORARY ADMISSION OF NONIMMIGRANTS
(1) the attorney general shall determine whether a ground for Inadmissibility exists
with respect to a nonimmigrant described in section 1101(a)(15)(s) of this title.
The attorney general, in the attorney general's discretion, may waive the
application of subsection (a) of this section (other than paragraph (3)(e)) in the
case of a nonimmigrant described in section 1101(a)(15)(s) of this title, if the
attorney general considers it to be in the national interest to do so. Nothing in
this section shall be regarded as prohibiting the immigration and naturalization
service from instituting removal proceedings against an alien admitted as a
nonimmigrant under section 1101(a)(15)(s) of this title for conduct committed
after the alien's admission into the united states, or for conduct or a condition that
was not disclosed to the attorney general prior to the alien's admission as a
nonimmigrant under section 1101(a)(15)(s) of this title.
(2) repealed. Pub.l. 101-649, title vi, s 601(d)(2)(a), Nov. 29, 1990, 104 stat. 5076
(3) Except as provided in this subsection, an alien
(A) Who is applying for a nonimmigrant visa and is known or believed by the
consular officer to be ineligible for such visa under subsection (a) of this
section (other than paragraphs (3)(a)(i)(i), (3)(a)(ii), (3)(a)(iii), (3)(c), and
(3)(e) of such subsection), may, after approval by the attorney general of
a recommendation by the secretary of state or by the consular officer that
the alien be admitted temporarily despite his Inadmissibility, be granted
such a visa and may be admitted into the united states temporarily as a
nonimmigrant in the discretion of the attorney general, or
(B) Who is Inadmissible under subsection (a) of this section (other than
paragraphs (3)(a)(i)(i), (3)(a)(ii), (3)(a)(iii), (3)(c), and (3)(e) of such
subsection), but who is in possession of appropriate documents or is
granted a waiver thereof and is seeking admission, may be admitted into
the united states temporarily as a nonimmigrant in the discretion of the
attorney general. The attorney general shall prescribe conditions,
including exaction of such bonds as may be necessary, to control and
regulate the admission and return of Inadmissible aliens applying for
temporary admission under this paragraph.
(4) Either or both of the requirements of paragraph (7)(b)(i) of subsection (a) of this
section may be waived by the attorney general and the secretary of state acting
jointly (a) on the basis of unforeseen emergency in individual cases, or (b) on the
basis of reciprocity with respect to nationals of foreign contiguous territory or of
adjacent islands and residents thereof having a common nationality with such
nationals, or (c) in the case of aliens proceeding in immediate and continuous
transit through the united states under contracts authorized in section 1223(c) of
(5) (a) the attorney general may, except as provided in subparagraph (b) or in
section 1184(f) of this title, in his discretion parole into the united states
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 to the united states, but such parole of such alien shall not
be regarded as an admission of the alien and when the purposes of such parole
shall, in the opinion of the attorney general, have been served the alien shall
forthwith return or be returned to the custody from which he was paroled and
thereafter his case shall continue to be dealt with in the same manner as that of
any other applicant for admission to the united states.
(b) the attorney general may not parole into the united states an alien who is
a refugee unless the attorney general determines that compelling reasons
in the public interest with respect to that particular alien require that the
alien be paroled into the united states rather than be admitted as a
refugee under section 1157 of this title.
(6) repealed. Pub.l. 101-649, title vi, s 601(d)(2)(a), Nov. 29, 1990, 104 stat. 507
(7) The provisions of subsection (a) of this section (other than paragraph (7)) shall be
applicable to any alien who shall leave Guam, Puerto Rico, or the virgin islands of
the united states, and who seeks to enter the continental united states or any other
place under the jurisdiction of the united states. The attorney general shall by
regulations provide a method and procedure for the temporary admission to the
united states of the aliens described in this proviso. Any alien described in this
paragraph, who is denied admission to the united states, shall be immediately
removed in the manner provided by section 1231(c) of this title.
(8) Upon a basis of reciprocity accredited officials of foreign governments, their
immediate families, attendants, servants, and personal employees may be admitted
in immediate and continuous transit through the united states without regard to the
provisions of this section except paragraphs (3)(a), (3)(b), (3)(c), and (7)(b) of
subsection (a) of this section.
(9), (10) repealed. Pub.l. 101-649, title vi, s 601(d)(2)(a), Nov. 29, 1990, 104 stat. 5076
(11) the attorney general may, in his discretion for humanitarian purposes, to assure
family unity, or when it is otherwise in the public interest, waive application of
clause (i) of subsection (a)(6)(e) of this section in the case of any alien lawfully
admitted for permanent residence who temporarily proceeded abroad voluntarily
and not under an order of removal, and who is otherwise admissible to the united
states as a returning resident under section 1181(b) of this title and in the case of
an alien seeking admission or adjustment of status as an immediate relative or
immigrant under section 1153(a) of this title (other than paragraph (4) thereof), if
the alien has encouraged, induced, assisted, abetted, or aided only an individual
who at the time of such action was the alien's spouse, parent, son, or daughter
(and no other individual) to enter the united states in violation of law.
(12) the attorney general may, in the discretion of the attorney general for
humanitarian purposes or to assure family unity, waive application of clause (i) of
subsection (a)(6)(f) of this section--
(A) In the case of an alien lawfully admitted for permanent residence who
temporarily proceeded abroad voluntarily and not under an order of
deportation or removal and who is otherwise admissible to the united
states as a returning resident under section 1181(b) of this title, and
(B) In the case of an alien seeking admission or adjustment of status under
section 1151(b)(2)(a) of this title or under section 1153(a) of this title, if no
previous civil money penalty was imposed against the alien under section
1324c of this title and the offense was committed solely to assist, aid, or
support the alien's spouse or child (and not another individual). No court
shall have jurisdiction to review a decision of the attorney general to grant
or deny a waiver under this paragraph.
§212 (H) WAIVER OF SUBSECTION (A)(2)(A)(I)(I), (II), (B), (D), AND (E)
The attorney general may, in his discretion, waive the application of subparagraphs
(a)(i)(i), (b), (d), and (e) of subsection (a)(2) of this section and subparagraph (a)(i)(ii) of
such subsection insofar as it relates to a single offense of simple possession of 30
grams or less of marijuana if--
(1) (a) in the case of any immigrant it is established to the satisfaction of the attorney
(i) The alien is Inadmissible only under subparagraph (d)(i) or (d)(ii)
of such subsection or the activities for which the alien is
Inadmissible occurred more than 15 years before the date of the
alien's application for a visa, admission, or adjustment of status,
(ii) The admission to the united states of such alien would not be
contrary to the national welfare, safety, or security of the united
(iii) The alien has been rehabilitated; or
(b) in the case of an immigrant who is the spouse, parent, son, or daughter of a
citizen of the united states or an alien lawfully admitted for permanent residence
if it is established to the satisfaction of the attorney general that the alien's denial
of admission would result in extreme hardship to the united states citizen or
lawfully resident spouse, parent, son, or daughter of such alien; and
(2) the attorney general, in his discretion, and pursuant to such terms, conditions
and procedures as he may by regulations prescribe, has consented to the alien's
applying or reapplying for a visa, for admission to the united states, or adjustment
No waiver shall be provided under this subsection in the case of an alien who has
been convicted of (or who has admitted committing acts that constitute) murder or
criminal acts involving torture, or an attempt or conspiracy to commit murder or a
criminal act involving torture.
No waiver shall be granted under this subsection in the case of an alien who has
previously been admitted to the united states as an alien lawfully admitted for
permanent residence if either since the date of such admission the alien has been
convicted of an aggravated felony or the alien has not lawfully resided
continuously in the united states for a period of not less than 7 years immediately
preceding the date of initiation of proceedings to remove the alien from the united states.
No court shall have jurisdiction to review a decision of the attorney general to grant or
deny a waiver under this subsection.
§212 (I) ADMISSION OF IMMIGRANT INADMISSIBLE FOR FRAUD OR WILLFUL
MISREPRESENTATION OF MATERIAL FACT
(1) The attorney general may, in the discretion of the attorney general, waive the
application of clause (i) of subsection (a)(6)(c) of this section in the case of an
immigrant who is the spouse, son, or daughter of a united states citizen or of an
alien lawfully admitted for permanent residence if it is established to the
satisfaction of the attorney general that the refusal of admission to the united
states of such immigrant alien would result in extreme hardship to the citizen or
lawfully resident spouse or parent of such an alien.
(2) No court shall have jurisdiction to review a decision or action of the attorney
general regarding a waiver under paragraph (1).
§212 (K) ATTORNEY GENERAL'S DISCRETION TO ADMIT OTHERWISE INADMISSIBLE
ALIENS WHO POSSESS IMMIGRANT VISAS
Any alien, Inadmissible from the united states under paragraph (5)(a) or (7)(a)(i) of
subsection (a) of this section, who is in possession of an immigrant visa may, if
otherwise admissible, be admitted in the discretion of the attorney general if the attorney
general is satisfied that Inadmissibility was not known to, and could not have been
ascertained by the exercise of reasonable diligence by, the immigrant before the time of
departure of the vessel or aircraft from the last port outside the united states and outside
foreign contiguous territory or, in the case of an immigrant coming from foreign
contiguous territory, before the time of the immigrant's application for admission.
IX. REMOVAL PROCEDURES
A. DUE PROCESS
In evaluating whether the procedures in any case meet requirements of the constitution, courts
1) The interest at stake for the individual,
2) The risk of an erroneous deprivation of the interest through the procedures
3) As well as the probable value of additional or different safeguards,
4) And the interest in the govt. In using current procedures rather that additional or different ones. See
Matthews v. Eldridge.
Fong Yue Ting stands for the proposition that due process applies in deportation
Yamataya stands for the proposition that deportation procedures must conform to the
dictates of the DPC of the constitution.
DUE PROCESS DOES NOT REQUIRE A HEARING, and an informal investigation
will suffice. Expulsion after summary investigation does not violate due process.
Yamataya was a Japanese national who entered the us in 1903. Several days later, the immigration
inspector, after investigation, concluded that she was deportable bc she had originally been excludable
as a person likely to become a public charge. Her expulsion was ordered. She petitioned for a habeas
corpus, contending that she had a DP right to a hearing since she did not understand English, did not
understand that the investigation involved her deportability, and was not assisted by counsel. The
federal court dismissed, and the USSC granted review.
Held that expulsion after summary investigation does not violate due process.
It is without question that congress may exclude an alien on any basis it desires.
Due process, while generally implying some sort of judicial procedure, does not necessarily do so.
It does not require a hearing, and an informal investigation will suffice.
If an alien believes that the investigation was insufficient, his recourse is with the agency
administering the deportation.
However, due process does not apply to exclusion!! The Knauff-Mezei doctrine
established that although citizen and noncitizens have a right to due process, an
extraterritorial alien has no right to due process. See Knauff-Mezei doctrine.
“Whatever the procedure authorized by congress is, it is due process as far as an alien
denied entry is concerned.” Knauff.
Knauff case is about a German war bride who was denied a hearing. Of what was she being deprived?
Interest of being . AG, after reviewing her record, found that her admission would be prejudicial to US
Interests, and the ins refused her entry.
Held that an alien wife of a US Citizen may be barred from entering the us due to a dept. Of justice
ruling, without a hearing, that her admission would be prejudicial to US Interests.
In 1941, congress enacted a law permitting the executive to exclude any alien whom he found to
be prejudicial to US Interests.
As a basic rule, no alien has a right of entry into the us; congress may create any condition to
entry it desires.
Case represents almost total deference to the will of congress.
Furthermore, an alien stranded at the border bc he had been barred from the us for
security reasons and bc no other country will accept him, has no right to enter. Mezei.
Mezei lived in the us from 1923-1948, having obtained his residency papers. In 1948, he attempted to
visit his mother in Rumania but was denied entry at the border. He remained in Hungary for 19
Note that months and then was ordered to leave. He took a ship to Ellis island, where he attempted to re-enter
here the the us. The AG found him a security risk (communist associations) and the ins thus denied him entry.
alien did No other country would accept him either. After a lengthy detention on Ellis island, he petitioned for a
not habeas corpus, contending that his detention violated due process. He had substantial ties to us (spouse
by Demonstrates that due process does not apply to exclusion.
returning Held that an alien stranded at the border bc he had been barred for the us for security reasons and bc
quickly no other country will accept him has no right to enter
Power of congress to prohibit the entry of aliens is absolute.
Congress has provided that the executive may bar the entry of an alien deemed a security risk and
that is the end of the matter.
Note that here the alien did not assimilate his status by returning quickly.
INA §235(c) permits the AG to remove an arriving alien on most of the national security
Inadmissibility grounds w/o a further hearing if she acts on the basis of “confidential information” of
which “would be prejudicial to the public interest, safety, or security.”
Thus, the traditional understanding of Mezei is that an alien‟s entitlement to
constitutional DP is to be determined by whether he stands at the border trying to get in
[admission] (even if he has been here before) or instead has already made an entry and
must be removed [deportation]. Mezei and Plasencia removed the danger of exclusion
many LPR‟s faced when briefly leaving the country but it did not remove all barriers
from excluding aliens who are statutorily Inadmissible for crimes.
Once an alien gains admission into the us and begins to develop the ties that go with
permanent residence, however, his constitutional status changes accordingly.
According to Fleuti, an innocent, casual, and brief excursion by a resident alien outside
of this country‟s borders may not have been intended as a departure disruptive of his
resident alien status and therefore may not subject him to the consequences of an
„entry‟ into the country on his return. Rosenberg v. Fleuti/ since amended in §
In Landon v. Plasencia, the USSC made clear that a resident alien who briefly leaves
the us is entitled to DP when she returns. However, in a footnote to the case, the court
made clear that exactly what DP procedures are due was not decided. Whether the
excursion was brief is determined on a factual case by case basis and whether the alien
intended to abandon the united states and his LPR status.
Landon v. Plasencia (1982)
Plasencia was a resident alien found to be transporting illegal aliens at the border after a brief absence
from the us and was denied re-entry. She was gone for only 3 days. She had substantial ties to the us
Note (spouse and children). Government agreed she was entitled to DP.
that here Held that a resident alien who briefly leaves the us is entitled to DP when she returns.
the alien It has long been a rule that an alien entering the us has no due process rights, but a
did permanent resident, upon initial entry, begins to develop the kinds of ties to our society that
return creates constitutional guarantees.
quickly An alien that leaves for a lengthy period of time may lose these guarantees, but a brief
absence does not void them.
When an LPR‟s substantial interest in remaining in this country is at stake,
the DPC forbids the government to stack the decks against the alien.
Court distinguishes Mezei and held it inapplicable to this case since she was gone for only 3 days and
thus did assimilate her status soon after leaving the country.
Court does not decide what procedures are due though.
B. REMOVAL PROCEEDINGS UNDER INA § 240
In 1996, 50,000 aliens were formally removed. The vast majority do not go through a formal removal
1. NOTICE TO APPEAR(NTA)
Begins with the service of a nta before an IJ for a hearing at a designated time and place.
May be issued to any of the following:
1) Arriving aliens
2) Aliens present in the us who have not been admitted or paroled
3) Aliens admitted to the us but deportable.
Nta may be served by mail or in person. To give alien a chance to secure counsel, the hearing cannot
be schedule earlier than 10 days after service of the nta, unless the alien requests an earlier hearing in
When an immigration officer serves the notice, he is required by regulation to explain the notice and
advise the alien that anything the alien says may be used against her.
Although many of the nta’s are served without arrest, the power of arrest remains.
INA § 236 governs arrest with a warrant.
INA § 287(a) allows immigration officers to arrest without a warrant if the officer
believes the alien is in the us in violation of the immigration laws and is likely to
escape before the warrant can be obtained.
1996 act amended INA §103 and 287 to authorize cooperative agreements with state and local
enforcement agencies for the purpose of assisting in the enforcement of immigration laws.
2. IN ABSENTIA REMOVAL ORDERS
INA § 240(b)(5) sets out sanctions for when the alien does not appear at the removal proceeding. An
alien who does not appear may be ordered removed in absentia.
Under INA § 240(e)(1), to rescind an in absentia removal order, the alien must move to reopen
1) Lack of notice
2) He was in state or federal custody
3) Exceptional circumstances, such as “serious illness of the alien or serious illness or death of the
spouse, parent, or child of the alien or other circumstances that are not less compelling and
beyond the control of the alien.”
An alien ordered removed in absentia is ineligible for ten years for discretionary relief, including:
1) Voluntary departure
2) Cancellation of removal
3) Adjustment of status
4) Change of nonimmigrant classification and registry
5) INA § 120(b)(7)
6) May be Inadmissible for 10 years under INA § 212(a)(9)(a).
3. AN INDEPENDENT DECISIONMAKER
For most of this century, federal officials who conducted exclusion and deportation hearings were ins
employees. Today, the ins has a specialized staff of trial attys. That the IJ must request the assignment of a
4. RIGHT TO COUNSEL
Note: that deportation is a civil proceeding and so any right to counsel would have to exist by virtue
of the 5th amendment. If it were a criminal proceeding, the 6th amendment‟s right to counsel would
INA § 240(b)(4)(a) provides that aliens in removal proceedings shall have the privilege of being
represented, at no expense to the government, by counsel of the alien’s choosing who is authorized to
practice in such proceedings.
Aliens who cannot afford an atty. Must be informed of the free legal service programs available in the
Law students and law graduates not yet admitted to practice may represent aliens before the ins or eoir
under certain circumstances and with permission of the official before whom they wish to appear.
However, they must be directly supervised by a faculty member, atty., Or accredited representative in a
legal aid program or clinic conducted by a law school or non-profit organization.
Congress has restricted the representation of aliens with funds appropriated for the legal services
corporation. The lsc may not fund any person or entity that provides legal assistance, even using non-
lsc funds, to aliens who are not permanent residents, immediate relatives of us citizens who have
applied for adjustment of status, aliens granted refugee status or asylum, and aliens granted
withholding of removal under INA § 241(b)(3).
The only exception is that lsc funds can be used for otherwise ineligible aliens who are the victims of
However, an alien in a deportation proceeding is not entitled to appointed counsel.
The 5th amendment guarantees of DP in the deportation context only guarantees
that a deportation proceeding be fundamentally fair. Aguilera-Enriquez v. INS
Aguilera-Enriquez v. INS
A-e was a MX national residing in the U.S. who was intercepted at the border after a visit to MX.
He was found in possession of cocaine and pleaded guilty. Subsequently, the ins instituted
deportation proceedings. He requested and was denied counsel and was ordered deported.
Held that an alien in a deportation proceeding is not entitled to appointed counsel.
5th amendment guarantees of DP in the deportation context only guarantees that a
deportation proceeding be fundamentally fair.
Presence of counsel is not always necessary for such a proceeding to be fundamentally fair,
so the right to counsel does not necessarily attach.
Here, a-e was in possession of cocaine so counsel would have made no difference or changed
Dissent: argued that fundamental fairness is insufficient to ensure DP. Only appointment of
counsel will ensure DP of law.
Formal rules of evidence do not apply to removal hearings.
INA § 240(c) addresses the burdens of proof.
Under INA § 240(c)(2), an applicant for admission has the burden to show that she is clearly and
beyond a doubt entitled to be admitted and is not Inadmissible under § 212.
Under INA § 240(c)(3)(a), an alien not applying for admission must first establish by CCE that
he “is lawfully present in the us pursuant to prior admission.” If he does so, then burden shifts to the
ins to establish by CCE that, in the case of an alien who has been admitted in the us, the alien is
Ins has burden of proving that the individual is in fact an alien.
6. FOURTH AND FIFTH AMENDMENT ISSUES
Aliens have a 5th amendment right to refuse to answer questions in a removal
hearing that could be used against them in a criminal proceeding.
Accordingly, if an alien asserts a 5th amendment privilege in a removal hearing but is ordered to
respond without having been granted immunity from criminal prosecution, any statement she makes
may not be used to establish her deportability. Tashnizi.
An immigration judge is also allowed to draw an adverse inference form silence.
United states ex rel Bilokumsky v. Tod.
Courts have not read the constitution to require Miranda warnings in the removal
context. Current regulations provide that after arrest without a warrant and a
determination by an immigration officer to initiate removal proceedings, aliens
must be informed of the nature of the charges and told that anything they say may
be used against them. See 8 c.f.r. § 287.3(c).
Justification is that valuable reliable evidence would be lost if an alien were given warnings or if a
lawyer were present during the initial interrogation
Aliens are protected by the 4 th amendment. Almeida-Sanchez v. United states.
However, there is far greater power of law enforcement officials to search persons
and property at the border than inside the country. Thus, a routine search at an
official border inspection post may occur without probable cause or reasonable
Court also distinguishes between stops made by roving patrols and those made at
fixed checkpoints near, but not at, the border. Roving patrols may conduct brief
stops and questioning only if an officer has a reasonable suspicion that a particular
vehicle contains aliens unlawfully in the US See Brignoni-price. At a fixed
checkpoint, however, brief stops are permissible even without reasonable suspicion.
7. MOTIONS TO REOPEN OR RECONSIDER
Motions to reopen and motions to reconsider are a common feature of immigration practice.
**MOTION TO REOPEN [alien is allowed to file only one acc. To §240(c)(5) & (6)]**
If granted, a motion to reopen allows the moving party to submit new evidence (such as marriage to a
Know US Citizen) on issues of deportability or relief from removal. Based on new material available that
this bc could change the outcome.
of how Normally filed before an immigration officer, IJ, or the BIA, as appropriate within 30 days of a final
import. removal order (akin to a motion to a new trial)
it is to
Must be supported by affidavits or other evidentiary material that there is new material to consider
Sometimes filed when the passage of time has changed the relevant facts, or to rectify a previously
unrepresented alien’s failure to make arguments or present evidence on his behalf.
Does not result in an automatic stay of the execution; that is a discretionary decision
Criticized as a dilatory tactic to forestall removal.
MOTION TO RECONSIDER [alien is allowed to file only one acc. To §240(c)(5) & (6)]
Asks the decisionmaker to review claimed errors in her earlier appraisal of the law or the facts.
If granted, the decisionmaker may affirm, modify, or reverse the original decision made in the case.
Must be filed within 90 days of a final removal order.
Does not result in an automatic stay of the execution; that is a discretionary decision
C. EXPEDITED REMOVAL
Prior to expedited removals, there were hearings before IJ when an alien was attempting to gain entry into our
country. Furthermore, under prior law, deportation hearings were also held if a person had already made an
entry. Now, however, expedited removals are possible.
§ 235(C)(1) STATES THAT EXPEDITED REMOVAL DOES NOT APPLY TO AN
LPR!!! EVEN THOUGH YOU ARE SAYING HE IS INADMISSIBLE, EXPEDITED
REMOVAL IS NOT FOR RETURNING ALIENS! IT IS ONLY FOR ALIENS
1. EXPEDITED REMOVAL, GENERALLY
Procedure for aliens who arrive at the border or port of entry with no
documents that applies at all times and therefore are Inadmissible under
INA § 212(a)(6) & § 212(a)(7)
May also apply to aliens inside the US, not at the border, if the AG decides to expeditiously
remove in “her sole and unreviewable discretion.” See INA § 235(b)(1)(a)(iii).
§235(b)(1) applies to any ARRIVING ALIEN who seeks admission but is
inadmissible under §212(a)(6)(c) or (7), because he has no documents, or
fraudulent or invalid documents.
There is no DP for the arriving alien here being excluded. See Knauff. An alien
subject to § 235(b) is to be removed “without further hearing or review unless
the alien indicates either an intention to apply for asylum under § 208 or a fear
If asylum he is detained and referred to an asylum officer, who conducts an interview to
determine if the alien has a “credible fear of persecution.” § 235(b)(1)(b)(v)
If credible fear of persecution he is detained for further consideration of the application of
asylum with possible release from parole.
If no credible fear of persecution the alien may request review by an immigration judge in a
Review must take place within 7 days after asylum officer’s decision and the alien is detained
Otherwise, IJ review is available by statute only to persons who claim to be LPR’s or those
admitted as refugees, or to have been granted asylum.
Expedited removal makes an alien inadmissible for 5 years. INA § 212(a)(9)(i).
However, an alien may be allowed to withdraw the application for admission,
which a great many do. INA § 235(a)(4).
Judicial review of expedited removal orders under INA § 235(b)(1) is severely
A court may review such orders only in habeas corpus proceedings and the statutory text would limit review to
1) Whether the petitioner is not an alien ordered removed under § 235(b)(1) and
2) Whether he can prove by a preponderance of the evidence that he is a permanent resident, was admitted
a s refugee, or granted asylum.
If the court makes one of these findings, it can only order a removal hearing under § 240.
It may not decide whether the alien is actually Inadmissible or entitled to relief from removal.
Such suits may be brought within 60 days of the implementation of the challenged regulation or
policy, and the courts are mandated to expedite their disposition of the case as much as possible.
2. REINSTATEMENT OF REMOVAL ORDERS
INA §241(a)(5) provides for the reinstatement of removal orders against aliens
who illegally enter the US after having been removed or after having departed
voluntarily under a removal order.
Notice that the original order is not subject to being reopened or reviewed, and the alien is
ineligible for any discretionary relief under the INA.
3. REMOVAL OF TERRORISTS
*held only if the AG submits an application and nothing seems to require the AG to do so.
ALIEN TERRORISTS MAY BE EXPEDITIOUSLY REMOVED UNDER THE
INA §§ 501-507 provides for a special court and procedures for removal of alien
An “alien terrorist” is any alien deportable under § 237(a)(4)(b), which includes
any alien “whom has engaged, is engaged, or at any time after entry engages in
any terrorists activity” as defined in § 212(a)(3)(b)(iii).
Under INA § 503(a), (c), special procedures apply iff the AG certified, and a
single judge of the removal court determines:
a) That the alien is an alien terrorist
b) That the alien is physically present in the us
c) That removal of the alien under normal procedures would pose a risk to the national
security if the united states
A public hearing follows “ as expeditiously as practicable.” See INA § 504.
Alien must be given notice, including a general account of the basis for the
charges. The alien has the right to be present and to be represented by counsel,
including appointed counsel for any alien financially unable to obtain counsel.
4. REMOVAL OF ALIENS WITH CRIMINAL CONVICTIONS
Aliens can be removed for criminal convictions.
ALIENS WITH CRIMINAL CONVICTIONS MAY BE EXPEDITIOUSLY
REMOVED UNDER THE AG‟S DISCRETION
INA § 239(d) instructs the AG to begin removal proceedings as expeditiously as
possible after the date of conviction that makes the alien deportable. (includes all
criminal convictions except a single crime of moral turpitude)
INA § 238(b) allows the AG to order an alien deported without a hearing before
an immigration judge. DOES NOT APPLY TO LPR‟S WITH AF CHARGES.
Applies ONLY to aggravated felons who are NOT LPR‟s or are conditional
permanent residents under INA § 216.
No requirement that the removal order be supported by CCE.
INA § 238(c) allows courts to order removal when sentencing an alien for a
crime that makes hi deportable.
5. SECRET EVIDENCE
INA §501 (pg. 433) will not be covered. It suggests that chief justice of us is to publicly designate 5
district court judges to constitute this removal court for alien terrorists. However, this alien terrorist court
has not been utilized and it was
INA § 240 which is how removal proceedings are to be organized.
Secret evidence repeal act of 1999 ensured that no alien is deprived of a benefit
under the INA as a result of evidence kept secret from the alien.
§2 of the sera of 1999 states the findings of congress, which include that no person located in the
US Shall have her liberty restricted as a result of secret evidence, that deportation may separate an
alien from his family and subject the alien to torture in his home country, and that withholding
information and evidence violates the alien’s due process rights and undermines the adversarial
§7 amends the expedited removal provisions of 235(c)(1) of the INA to bar their application to
LPRs, advance parolees, and parolees under § 212(d)(5) and asylum seekers form the expedited
removal proceedings in INA § 235(c)(1).
§ 240 (b)(4)(b) at the bottom of pg 222 states that aliens have a right
1) To review all evidence being used against her,
2) To present evidence in her own defense,
3) To cross examine all evidence, and
4) To have access to any records relating to her admission to the US [§240(c)(2)]
But that does not include the right to examine national security information
which is confidential or secret.
INA § 240(c)(2) says that the alien shall have access to visa or entry documents
that are not confidential.
If you want to argue that the repeal of the secret evidence act is critical in order
to protect an alien from having her liberty curtailed, argue that DP clause of
constitution does not distinguish between citizens and aliens. Due process clause
is given to all persons.
Kiareldeen was a 31 y/o Palestinian who had a student visa in 1990. Attended Rutgers and lived in
the us for more than 10 years. He believed that his problems with the ins was due to his first wife
whom he divorced in a nasty divorce proceeding. She claimed that he threatened to bomb her car. He
overstayed his student visa. He was in detention in part due to secret evidence and the evidence that
was presented to justify his detention concluded that he was associated with an unidentified terrorist
bomb organization, expressed a desire to murder AG Reno, and had a meeting the night before the
bombing of the world trade center with other Palestinians. Bc he overstayed, he was removable
So the question is why was the secret evidence then even utilized if he was already removable?
Because one can apply for a bond for a status violation such as overstaying a visa. In order to
prevent his release on bond, the ins uses the secret evidence to ensure that he remains in custody.
The case ultimately came before the court by k applying for habeas corpus. Ultimately a NJ court
granted his HC petition on the grounds that the secret evidence deprived him of his liberty.
Interestingly, 5 days before he was released, an IJ granted his adjustment of status. One of the atty.
Defending him argued the secret evidence repeal act and that such provisions in the act were necessary
to protect certain immigrant communities from abuses. Arab and Muslim communities are the most
highly targeted communities where secret evidence is used against them.
Q: alien a is Arnet, an alien who arrived with a facially valid visa but in fact misrepresented. Therefore, he is
Inadmissible bc of this misrepresentation. Alien b is Larry and is an LPR who has been out of the country
for 1 month. He seeks admission into the us again, but is Inadmissible bc he committed tax evasion a 5
years ago. Alien c is Ursula and is undocumented. 1 year ago she walked across the border from Canada
to Detroit. When she tried to break up with her boyfriend, he reported her to the ins.
Assume that the issue is argued before a court and all aliens are at the border trying to be readmitted. What
are the arguments for and against readmission?
A: Alien 1:
Against expedited removal for Arnet For expedited removal of Arnet
212(8)(6)(c): misrepresented facts which
compel denying readmission
Lower standard of DP required here
according to Knauff case. Whatever process
congress has made, it is DP
Arriving aliens are not a protected class
Against expedited removal for Larry For expedited removal for Larry
§ 235(b)(1) is not applicable to Larry based on statutory He is Inadmissible under § 101(a)(13)(c)(5)
construction. It only applies to those without valid of the INA. It specifies that an alien lawfully
documents and does not include those who committed admitted is not considered seeking admission
crimes of moral turpitude. Hearing is required here. but they are considered seeking admission if
Furthermore, Expedited Removal does not apply to an LPR has committed an offense §
returning LPR’s seeking readmission, despite that they 212(a)(2) and returns shall be considered
may be inadmissible. It only applies to aliens seeking seeking admission despite his LPR status.
admission without papers or with fraudulent papers.
If you do it violates his DP rights. To uphold § 235(b)(1) In Volpe, USSC held that entry means any
is to deny some form of DP. Court held in Yamatayo that entry. Also in Knauff and Mezei, we see the
deportation procedures must conform to the dictates of the court has expressly held that it is specifically
DPC of the constitution also look at Plasencia. He is a within congress’ discretion to exclude any
LPR who briefly left and is entitled to DP. Fleuti doctrine aliens from admission and courts cannot
dictates this case. substitute their judgment for legislative
Against expedited removal for Ursula For expedited removal for Ursula
§ 235(b)(1)(a)(3) is arbitrary in limiting an alien who has Under plain language of statute, §
left the us for 2 years. 235(b)(1)(a)(i), the ins can expeditiously
remove an alien without hearing unless the
exceptions apply. Under (i)(i)(i), AG can
apply clause 1 and 2 to any or all aliens
described in subclause 2 and such
designations are under the sole discretion of
the AG. Thus, clear language of statute says
that anyone who is not under parole or who
has not been admitted into the us is
Residents living here have greater due process rights than We do not have an open border removal
those aliens coming here for the 1st time. Alien who is system. We have certain rules and
actually within the border of the us continuously for a regulations concerning aliens into this
period is afforded greater protection than those aliens country. They are not entitled to full DP
seeking admission. (EP violation and EP does not
distinguish between aliens and citizens)
Under Knauff Mezei doctrine, abuses of aliens Knauff court said that whatever the
procedures it, it is DP. Thus, these aliens are
Inadmissible. Mezei takes this even further
and holds that we can hold aliens for an
indeterminate time if they are deportable.
Matthew v. Eldridge test requires court to consider interest Judicial review of expedited removal orders
at stake for individual, interest of government, and gain to under INA § 235(b)(1) is severely limited.
accurate decisionmaking if additional procedures are A court may review such orders only in habeas
added. Under this framework, it is clear that Ursula is in corpus proceedings and the statutory text would
a different position than a resident alien; Ursula has limit review to certain issues:
greater liberties at risk Whether the petitioner is not an
alien ordered removed under §
Whether he can prove by a
preponderance of the evidence that
he is a permanent resident, was
admitted a s refugee, or granted
Court can only look at this case under habeas
corpus review. Ursula can only contest this
case if she was seeking asylum or refugee
status. If she wants to appeal, she has to go
to the BIA and contest it under procedural
grounds, not on constitutional grounds.
PURPOSES OF DETENTION
1) Important to make sure that alien appears for removal hearings
2) Important to ensure that the alien will actually leave the us if ordered removed
3) Some aliens are removed bc they pose a risk to society
4) Acts to enforce the immigration system
A. STATUTORY OVERVIEW
Arriving aliens not in expedited removal “shall be detained” according to INA
To be released on bond, the alien must demonstrate to the satisfaction of the officer
that such release would not pose a danger to property or persons, and that the alien
is likely to appear for any future proceedings. See 8.c.f.r. § 236.1(c)(2)
Factors to be considered include the alien’s employment history, length of residence in the community,
existence of family ties, record of appearance or nonappearance in court proceedings, and previous
criminal or immigration law convictions.
However, they may be released on PAROLE in certain cases: 8 c.f.r. §212.5
(1) Serious medical conditions
(2) Pregnant women
(3) Certain judgment
(4) Aliens who will be witness in government proceedings in the us
(5) Aliens “whose continued detention is not in the public interest.”
INA § 236(c) provides that the following aliens, including LPRs, must be detained
and may not be released (MANDATORY DETENTION):
a) Aliens covered by the terrorist grounds
b) Aliens removable on criminal grounds
c) Multiple crimes of moral turpitude
INS “MANDATORY DETENTION USE POLICY” classifies detention of aliens
1) Detained without exception: expedited removal
a) Certain categories of criminal aliens and terrorists
b) Aliens with final removal orders
c) Aliens with aggravated felony convictions in exclusion proceedings (under prior law)
2) High priority: aliens whose detentions is essential for border enforcement
a) Aliens with administratively final exclusion or deportation orders
b) criminal aliens not subject to mandatory detention
c) Aliens removable on security and related grounds
d) Aliens engaged in alien smuggling
3) Medium priority
a) Inadmissible arriving aliens not in expedited removal proceedings
b) Aliens smuggled into the us
c) Aliens who have committed fraud before the ins
d) Aliens apprehended at a worksite who have committed fraud in obtaining employment
4) Lower priority
a) All others fall into this category
B. CONSTITUTIONAL LIMITS
Look at constitutional limits in three settings
(i) Mandatory detention pending removal proceedings
(ii) Claims that detention is discriminatory/ equal protection claims
(iii) Indefinite detention when a removal order has been issued but the alien cannot be removed
(i) Mandatory detention pending removal proceedings
INA § 236(c) provides that the following aliens, including LPRs, must be
detained and may not be released (mandatory detention):
Aliens covered by the terrorist grounds
Aliens removable on criminal grounds
Multiple crimes of moral turpitude
[when INA had § 242(a)(2) in the books (its no longer there), there was substantial litigation bc
the provision required mandatory detention of aggravated felons after they had served their prison
sentence. The following cases are examples of such litigation and can be seen as previews of the
likely arguments one can raise in litigation over mandatory detention.]
By enacting INA § 236, congress attempted to create a class of crimes that
would not only subject the individual to deportation, but would also prevent
the individual from being released on bail pending a final determination of
deportability. See Leader v. Blackman.
Although there is NO ABSOLUTE RIGHT TO BAIL, there is a liberty
interest that is implicated when one is detained, which creates THE RIGHT
TO A BAIL HEARING IN MANDATORY DETENTION. See Leader
Leader v. Blackman
Leader was a 30 y/o citizen of Bermuda who had been a LPR of the us since 1976.
In 1989, he was arrested for selling cocaine. He was sentenced to 1 year in prison
and when released, taken into custody by the ins for deportation bc he had been
convicted of an aggravated felony as well as a crime relating to a controlled
Leader argued 1) that his substantive and procedural DP rights had been violated.
He contended that mandatory civil post-conviction detention of LPR’s is
unconstitutional for individuals who have served their prison sentence and are
eligible for discretionary relief from deportation and 2) that indefinite detention
without showing that petitioner is likely to flee or poses a threat to the community is
unconscionable and a further violation of his rights.
Held that the provision violated the substantive and procedural due process
requirements of the 5th amendment. Thus, although there is no absolute right to bail,
there is a liberty interest that is implicated when one is detained, which creates the
right to a bail hearing.
Court looked at legislative intent behind the statute and concluded that the
intent of congress was to constitutionally prevent the release on bail of those
deemed to present a risk to society and to prevent the flight from this jurisdiction
pending a final resolution of deportability.
However, the statute which provides that the AG shall take into custody any
alien convicted of an aggravated felony upon completion of the alien’s sentence
for such conviction and not release such felon from custody makes a general
rule applicable to all aliens convicted of one of three crimes and deprives aliens
of liberty and as such it has chosen excessive means and therefore violates the
DP rights of the alien.
Mere fact that there is a presumption of deportability based on alien’s conviction
of an aggravated felony does not obviate the need for a bail hearing.
The government‟s interest in ensuring the presence of convicted aggravated
felons at deportation hearings is paramount to an alien individual‟s right to
bail. Davis v. Weiss
Davis v. Weiss
Alien was arrested and convicted for possession with intent to sell narcotics in
Petitioner/alien filed an application for a writ of habeas corpus and for a temporary
restraining order seeking to enjoin the ins from continuing to detain him in custody,
denying him the right to a hearing for the determination of a reasonable bond under §
242(a)(2) of the INA. He claims that the statute is constitutionally infirm, bc it
denies bail to all aliens held in detention pending a final determination of
Alien argued 1) that the statute is unconstitutional bc it does not comport with the
procedural and substantive DP and 2) that he has a right to bail.
Held that the government’s interest in ensuring the presence of convicted aggravated
felons at deportation hearings is paramount to an alien individual’s right to bail.
Plain language of statute and legislative history illustrates that the
congressional intent behind enacting the legislation is bona fide and does
not offend the constitution
Purpose is to prevent aliens from absconding
Another purpose is to aid in the fight against drug trafficking
Court utilized Matthews test to determine whether the procedures afforded
aliens who meet aggravated felon status and who are being detained pending a
final determination of deportability meet with the requirements of the
Private interest at stake is the alien’s right to bail. However, mandatory
detention provisions in the INA demonstrate that congress has determined
that such a hearing for bail is unnecessary.
Less than a vitally protected interest at stake here
Government’s interest is weighty however. Designed to supplement
congress’ assault on drugs and to ensure the alien’s presence at deportation
No EP violation here bc not all aliens are subject to mandatory detention.
The act provides for special deportation proceedings only for aliens
convicted of specifically identified convictions.
An alien being detained without opportunity for bail under the act has sufficient
safeguards to determine whether he properly falls under it.
Ins determination of custody may be reviewed by an IJ upon application by
the respondent for release from custody
At such a hearing, the alien is entitled to contest whether his conviction
meets the aggravated felony requirements of INA § 101(a)(43).
Statute further requires expedited deportation proceedings.
Denying bail while indefinitely detaining a deportable alien violates
substantive and procedural due process, as well as the 8 th amendment.
Caballero v. Caplinger
Right at issue in juvenile detention pending deportation is the right to be
placed in the custody of a willing and able private custodian rather than that
of a government-operated or government-selected child care institution. See
Reno v. Flores
(ii) Claims that detention is discriminatory
Ins‟ denial of an alien‟s parole from detention pending exclusion does not
implicate equal protection rights. Jean v. Nelson
There is no judicial review of the refusal of executive officials to parole them
on the basis of the e p guarantee. The only juridical review afforded an
excluded alien is an inquiry to whether immigration officials, when making
their challenged actions, were acting within the scope of their delegated
powers (abuse of discretion). Bertrand v. Sava
Jean v. Nelson
Jean, a Haitian national held in indefinite detention pending exclusion, contended
that his being denied parole constituted a denial of equal protection.
Held that it was not a denial of equal protection
USSC precedents make it clear that while aliens seeking entry to the us are
afforded constitutional rights in some contexts, they are not when it comes to
entering the us.
Congress has complete control over the admissions of aliens, which it can
delegate to the executive.
Only juridical review afforded an excluded alien is an inquiry to whether
immigration officials, when making their challenged actions, were acting within
the scope of their delegated powers.
Note: USSC granted cert. In Jean v. Nelson to decide whether unadmitted aliens may
claim the safeguards of the 5 th amendment, in particular the equal protection
component. It held that the CoA should not have reached & decided the parole
question on constitutional grounds but should have simply remanded to the
district court whether the ins officials discriminated in violation of the statute,
regulations, and governing ins policy.
(iii) Indefinite detention when removal order has been issued but the alien
cannot be removed.
The AG has statutory authority to detain indefinitely an undeportable,
prison. They excludable alien. Barrera-Echavarria.
annual Barrera-Echavarria v. Rison (9th circuit, 1995)
reviews. Barerra-Echavarria is an alien who arrived in the us in 1980 and was ordered
excluded and deported in 1985 bc of a theft charge. His deportation was not possible
bc neither his country of origin, Cuba, not any other 3rd world country, would accept
him. He had been detained by the INS in a variety of prisons since 1985.
Barerra instituted the present habeas corpus action, arguing that the AG lacked statutory
and constitutional authority to detain him indefinitely when it was clear that his
deportation could not be effected within the foreseeable future and that his continued
detention violated rules of international law which had binding domestic force.
Furthermore, he argued that bc he is not serving a sentence for any crime and is not
awaiting trial on any criminal charges, the government cannot continue to detain him.
Held that the AG has statutory authority to detain indefinitely an undeportable,
Overall structure of the provisions relating to excludable aliens assumes that the AG has
authority to detain aliens who are subject to exclusion proceedings or who have been
ordered excluded unless she decides in her discretion to grant parole.
Reading a time limit on detention would risk frustrating the government’s ability to
control immigration policy and relations with foreign nations. Would lead to our losing
control over our borders.
There is no constitutional right to parole under Mezei and therefore he has not right to be
free from detention pending his deportation.
XI. JUDICIAL REVIEW OF ORDERS OF REMOVAL-- § 242
Q: at what stage in the administrative proceedings should JR take place? What form of action is appropriate?
What judicial forum should hear the case? Should it for example be the federal district court or federal
CoA or the supreme court? What standard ought to be utilized for judicial review? Should JR be
precluded for certain types of matters?
A: look at § 242 and try to answer these questions.
How to get to judicial review: administrative appeals process
(i) First court to look at a case is the administrative agency, the INA. Specifically, the immigration judge.
(ii) 1st appeal is to BIA
One thing to remember is that from the BIA, a case could be reviewed by the AG in three situations
(a) When the AG herself directs that she wants to review it
(b) When the ins sends the case to the AG
(c) When the chairperson or the majority sends something to the AG
(iii) JR is principally in the federal courts of appeals. It means therefore that the factual record is developed at
the administrative agency (the IJ and the BIA). You want to look at INA § 242(b)(2)
1) There is always a presumption that agency action is subject to judicial review.
APA §10 provides that:
“any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such
action within the meaning of any relevant statute, shall be entitled to judicial review thereof.”
2) However, the fundamental principle of administrative law that a party must exhaust administrative
remedies before seeking JR!!!
3) Usual APA rules for JR often do not apply to immigration cases!!! APA does nothing with respect to other
limitations to JR and does not confer authority to grant relief if any other legal statute prevents the relief.
INA § 242(b) sets out rules for venue and service.
INA § 242(a)(2) makes removal orders reviewable principally in federal courts of appeals.
INA § 242(b) sets a filing deadline of 30 days after the final removal order.
INA § 242(b)(3)(B) states that there is NO AUTOMATIC STAY OF REMOVAL PENDING
JUDICIAL REVIEW. They are now discretionary. An alien may still seek judicial review after
leaving the US.
JUDICIAL REVIEW IS ONLY ALLOWED IN CERTAIN CASES
INA § 242(e)(1) & (2):
(1) §2241 Habeas Corpus Claims (Not claims about deportation, but claims that
challenge an unconstitutional restriction on the alien‟s liberty. Denial of JR must
amount to a fundamental miscarriage of justice. See Mbiya.)
A court may review such orders only in habeas corpus proceedings and the statutory text would
limit review to certain issues:
1. whether the petitioner is not an alien ordered removed under § 235(b)(1)
2. whether he can prove by a preponderance of the evidence that he is a permanent resident,
was admitted as a refugee, or granted asylum.
(2) Judicial review of determinations under § 235(b) and its implementation is
available in an action instituted in the US District Court for the District of
Columbia, BUT shall be limited to determinations of
(i) whether such section, or any regulation issued to implement such sections, is
(ii) whether such regulation, or a written policy directive, written policy guideline,
or written procedure issued by or under the authority of the AG to implement
such section, is not consistent with applicable provisions of this title or is
otherwise in violation of law.
INA §242(A)(2) MATTERS NOT SUBJECT TO JUDICIAL REVIEW
(a) Expedited Removal under 235(b)(1)
(b) denial of discretionary relief [includes adjustment of status, cancellation of removal,
by way of exception, judicial review remains available for decisions concerning asylum
under § 208(a).
Under INA § 242(b)(4)(B), administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude the contrary.
Under INA § 242(b)(4)(C), a decision that an alien is not eligible for admission to the
US is conclusive unless manifestly contrary to law.
Under INA §242(b)(4)(D), the AG’s discretionary judgment whether to grant asylum
shall be conclusive unless manifestly contrary to the law and an abuse of discretion.
(c) any finding or order of deportation against criminal aliens
originally came in, not in the INA, but under the Anti-Terrorism and Effective Death
Penalty Act (AEDPA), which was prompted after the OK federal building bombing. In
1996, it was folded into the INA.
One of the basis for removal we looked at was for aggravated felonies. Look at this
An alien came to the US at 3. Became US citizen at 12 y/o. Father of 11 year old child. 11
years after becoming a citizen, he pled guilty to a charge of without authority knowingly entering
a Ford Explorer belonging to another with the intent to commit a theft BUT he did NOT steal it.
This was his first offense. He got a sentence of 3 years although he was not convicted of an
aggravated felony. Because of the charge of burglary, a felony, the INS seeks his removal.
Q: Alien wants tot appeal the decision of the IJ and the BIA to the 7th Circuit based on the
arguments he presented to the IJ and the BIA. What arguments would you make that
CoA has jurisdiction notwithstanding that INA § 242(a)(2)(c) says that there is no
judicial review of someone who is removable bc of crime-related deportation grounds.
A: Recognize that INA § 101 (a) (43) (G) says that an aggravated felony is a theft
offense or burglary offense for which the terms of imprisonment at least one year.
However, the plaintiff can argue that the proper definition of burglary should be
based on the federal definition rather than the one in the INA. Adams v. Howerton
is analogous. In Adams the court held that the INA’s interpretation of a definition is
a federal question
Also argue the POLICY behind the statute. There are 50 different states and they
vary in how they define certain offenses. Looking at the statute, Congress most likely
wanted federal uniformity and in order to get that, we have to have JR be a federal
This hypo is based on an actual case decided in March 2000. The court gave no
attention to whether or not they have jurisdiction. Instead, they basically said “we
always have the right to determine whether we have jurisdiction.” The threshold
question of whether the alien did commit the aggravated felony.
Note the Counter Argument: the reason Congress enacted that was to speed
up the removal of disfavored aliens, e.g. those that had been convicted of
criminal convictions. So if the court takes such a face flying in the face of
speedy removal orders, the counter argument is that historically, the
administrative agency’s decision is final.. Also look at Plasencia which held
some sort of DP procedures are due. You must ask whether the lack of circuit
court review has been eliminated to deprive one of DP
HC has been utilized in deciding whether one can be released from detention.
(1) Habeas corpus is available under §2241. § 2241 provides in relevant part that writs of habeas
corpus may be granted by the USSC, any justice thereof, the district courts, and any circuit court
within their respective jurisdictions. The question is “is HC relief under this statute available?”
(2) If not, the next question is “is it nonetheless available bc of the suspension clause of the
(1) Be aware that in the courts in the cases below dealing with HC were all deciding HC under
ADEPA and dealing with the transitional rules under IIRIRA.
(2) In Richardson 2, decided recently, the ins held that plaintiff/LPR was removable bc he went to
Haiti for a brief 2 days. The issue was whether the HC petition to get released and the denial of
parole were eliminated by INA §242. The USSC denied cert. In the 11 th circuit decision, which
held that IIRIRA takes away habeas. If one takes this as an indication of the USSC’s position,
one can argue that habeas is not available. But remember that many people argue that the denial
of cert. Is not an indication of where the court stands on an issue. What you need to consider then
is, if it is true that one can conclude that §242 eliminates HC as its provided for in the statute,
what about the constitutional questions of whether one still has habeas bc of what is available in
the constitution? The Richardson 2 case talked about the §2241 and concluded that congress
intended IIRAIRA to remove habeas from judicial review. It said no more than that.
Some courts have found that §242(g) of the INA precludes habeas jurisdiction under §2241
to contest removal orders or collateral matters such as stays of removal, leaving only the
constitutional writ, unaided by statute. These decisions seem to say that the scope of this
habeas jurisdiction is narrow, under a standard similar to the “fundamental miscarriage of
justice or grave constitutional error” standard that we see in Mbiya.
1st circuit held that section 440(a)‟s deprivation of jurisdiction for any finding or order of
deportation against criminal aliens applies to petitions that were pending on the date of the
AEDPA's enactment. Thus, the prohibition of judicial review does not offend the
constitution. Kolster v. INS
Kolster v. Ins (1st circuit)
On April 24, 1996, the AEDPA was signed into law, prohibiting judicial review of deportation orders
issued against aliens who have committed certain types of crimes. Kolster pled guilty to such a crime
and filed a petition with the 1st circuit on Feb. 28, 1996, 2 months before the AEDPA was signed into
law. He argued that the BIA decision that he was ineligible for discretionary relief from deportation
was erroneous bc § 440(a) does not apply to cases pending on the date of the aedpa’s enactment.
Ins moved to dismiss the action, arguing that section 440(a) operated immediately to divest this court
of jurisdiction to hear this petition for review. Also argued that §440(a) is “clearly a constitutional
exercise of congress’ well-established power to provide or withhold jurisdiction from statutorily
created courts, as well as its plenary power over matters of immigration and naturalization.”
Held that section 440(a) does apply to petitions that were pending on the date of the aedpa’s
Since some avenue for judicial review remains available to address core constitutional and
jurisdictional concerns, we find that section 440(a)’s repeal of our jurisdiction to review final
deportation orders does not raise a constitutional issue.
As the nature and scope of habeas corpus review is not properly before the court at that time, they
denied reaching those questions.
Northern district of GA held that with respect to aliens subject to orders of deportation for
having committed crimes enumerated by congress, the constitution requires only that the
writ of HC extend to those situations in which the petitioner‟s deportation would result in a
“fundamental miscarriage of justice.” See Mbiya.
Judicial review in habeas is limited to constitutional claims. See Mbiya.
Mbiya v. Ins (n. Dist. Of GA)
Mbiya was charged with conspiracy to distribute cocaine after he was granted conditional permanent
resident status. He appeared before an IJ on the show cause order and admitted the allegations
contained therein. The IJ found that Mbiya was ineligible for relief from deportation based on his
status as a convicted drug offender. Mbiya filed a petition for habeas corpus and sought review
pursuant to §2241 of title 28 and INA § 106(a)(10) in may 1996. However, one month after, the
AEDPA was signed into law.
The ins argued that bc he was ordered deported by reason of his conviction of an aggravated
felony and of a controlled substance violation, AEDPA removes this court’s jurisdiction to
review the instant petition for habeas corpus.
Mbiya argued that the newly enacted statute was unconstitutional on its face bc it violated the
mandate that congress shall not suspend the writ of HC, and as applied bc it constituted an ex
post facto law as to him.
Held that with respect to aliens subject to orders of deportation for having committed crimes
enumerated by congress, the constitution requires only that the writ of HC extend to those situations in
which the petitioner’s deportation would result in a fundamental miscarriage of justice
This accommodation preserves the balance between the suspension clause and congress’
plenary power to control immigration
Thus, an alien claiming mistaken identity or the like retains an avenue for habeas relief from
Provisions of AEDPA make clear that congress desired to expedite the deportation of criminal
aliens and to restrict all judicial review of final orders of deportation to the greatest extent
Petitioner is entitled to no relief for two reasons:
(1) Mbiya is not in custody such that he is entitled to habeas review under § 2241. His
petition must therefore be dismissed.
(2) Mbiya is challenging the deportation order itself rather than an unconstitutional
restriction on his liberty. Thus, his petition fails to assert facts alleging confinement
constituting a fundamental miscarriage of justice.
Similarly, a N.Y. district court held that while the ADEPA amendments manifest congress‟
desire to streamline the deportation process, the ADEPA and the IIRIRA leave
undisturbed the independent authority of federal district courts to entertain HC petitions
under §2241 of title 28. Mojica v. Reno
Mojica v. Reno
Mojica and Saul Navas filed petitions for writs of HC to challenge deportation orders against them.
The section of the ADEPA that barred permanent residents who had been convicted of certain crimes
from seeking a waiver of deportation under former INA § 212(c) became law while their applications
were pending. They argued that barring them from seeking judicial review erroneously gave
retroactive effect to ADEPA § 440(d) and violated equal protection bc it barred deportable aliens but
did not bar excludable aliens.
Government argued that judicial review was barred bc they had been convicted of certain crimes
and the only judicial review available for them was for substantial constitutional claims, which
theirs is not.
Petitioners argued that they were challenging an interpretation of law (the refusal of the IJ and the
BIA was based on a misconstruction of the effective date of the ADEPA section 440(d) and so the
court need not decide whether there is jurisdiction to review discretionary determinations of findings
Held that while the AEDPA amendments manifest congress’ desire to streamline the deportation
process, the AEDPA and the IIRIRA leave undisturbed the independent authority of federal district
courts to entertain HC petitions under §2241 of title 28.
Congress did not repeal § 2241 by implication. Neither the IIRIRA nor the AEDPA address
or amend the habeas jurisdiction of the district courts under section 2241 of title 28.
In similar cases before the court, the court held that since the AEDPA makes no mention of our
authority to hear habeas petitions filed as original matters in this court, we decline to find a repeal
of § 2241 of title 28.
No indication that congress intended to take the dramatic and arguably unconstitutional step of
repealing the habeas statute with roots traceable to our nation’s beginning.
§ 2241 provides in relevant part that writs of habeas corpus may be granted by the USSC, any
justice thereof, the district courts, and any circuit court within their respective jurisdictions.
In immigration contexts, physical restraint is not required for habeas jurisdiction. Where the
petitioner is subject to a final order of deportation, the custody requirement is satisfied.
CONSOLIDATING ISSUES FOR JUDICIAL REVIEW
INA § 242(b)(6) provides for the consolidation of any review of a motion to reopen or
reconsider with review of the deportation order.
INA § 242(b)(9) consolidates for judicial review all questions, including constitutional
questions broadly defined, “arising from any action taken or proceeding brought to remove
an alien from the us.”
Racial composition of the us citizenry reflects in part the accident of world migration patterns. More than this, it
reflects the conscious design of us immigration and naturalization laws. From this country’s inception, the laws
regulating who was or could become a citizen were tainted by racial prejudice. Until 1952, acquisition of
citizenship was conditioned on race.
Related to naturalization is dual citizenship. If people cannot keep dual citizenship with us and their homeland,
then given the choice, they will not naturalize here. Voting and employment tend to the primary reasons for
UnderINA §310, § 335, § 336, naturalization is almost entirely an administrative
procedure under the authority of the AG. Courts are generally involved in administering the oaths and
judicial review is available when the administrators deny a naturalization petition.
Three ways to obtain citizenship
(1) Birth in us
(2) By blood (if both parents are citizens of us and are in France while child is born, child is a us citizen)
(3) By naturalization
We will look only at naturalization, which can be revoked.
REQUIREMENTS OF NATURALIZATION
(1) RESIDENCE AND PHYSICAL PRESENCE
INA § 316(a) requires that no person shall become a US citizen unless
(1) she has resided continuously in the US for 5 years as a lawfully admitted permanent resident
(2) during the 5 years immediately prior to the filing the petition for naturalization he has been
physically present in the US for at least half of the time and
(3) she has resided within the district in which she filed the petition for at least 3 months [petitioner
must also reside continuously within the US from the date of the petition up to the time of
admission to citizenship]
Purpose of residency requirement is to create reasonable period of probation that will enable
candidates to discard their foreign attachments, learn the principles off the us system of government,
and to develop an identification with the national community.
A valid statutory residence cannot be founded on an illegal entry to the country. Congress has
defined “residence” under § 101 (a)(33) to mean “the place of general abode…a person’s principle
actual dwelling place in fact, without regard to intent.”
An applicant for citizenship need not show that he or she stayed at the claimed residence each day of
the 5-year statutory period. Temporary absences from the place of abode, even outside of the us, do
not alone break the continuity of the applicant’s residence. However, under INA § 316(b),
absences for more than 6 months but less than one year presumptively break the continuity.
An absence of more than one year will as a matter of law break the continuity of residence.
Persons who expect to be away from the us for a year or more in service of
The us government, [if employed by us govt., Exempted from physical presence requirement
of § 316(a)]
A recognized us institution of research,
A us corporation engaged in foreign trade and commerce,
A public international organization of which the us is a member by treaty or statute,
Or a religious organization,
May apply for permission to be absent without breaking their residence for purposes of
However, before seeking such exception, an applicant must continuously reside in the us, following
lawful admission, for one year or more. INA §§ 316(b), 317 .
INA § 334(b)(1) holds that to apply for naturalization, an applicant must generally have attained the
age of 18 years.
CHILDREN YOUNGER THAN 18 generally acquire citizenship at the time their parents are
naturalized by operation of law (KA Derivative Citizenship); they are not subject to the 5-year
FOREIGN BORN CHILDREN adopted before the age of 16 can obtain a citizenship if at least 1
parent is a US citizen who has been physically present in the US for at least 5 years, if the parent
has legal custody of the child, and if the child has been physically present in the US pursuant to
(3) LITERACY AND EDUCATIONAL REQUIREMENTS
§ 312(a)(1) requires that an alien must be able to speak and understand simple English, as well as
read and write it.
Note that aliens over the age of 50 at the time of filing their petition and who had been
lawfully admitted for permanent residence for periods totaling twenty years are
§ 312(a)(2) requires that an alien must have a knowledge and understanding of the fundamentals
of history and of the principles and form of government of the US.
Due consideration is given to the alien’s background, education, age, and length of
residence in the US.
(4) GOOD MORAL CHARACTER
INA § 316(a) requires an applicant for naturalization to show that, during the 5-year statutory
period before filing and up until the final hearing of the naturalization period, he or she “has been
and still is a person of good moral character…”
The burden of establishing good moral character falls upon the petitioner, as an
applicant must prove his or her eligibility for citizenship in every respect.
There is, however, a difficulty in deciding whether one is of good moral character.
Let’s assume a Muslim person participated in a political demonstration while a LPR and in the
course of it he swung a baseball bat. As a result, he got a prison sentence of 2 years. Even if the ins
says that it was not a crime of violence but a political demonstration, when the person comes to get
naturalized, the AG's decision that it was not a crime of violence is not conclusive.
Note that the aggravated felony definition folds in here too and may be grounds to revoke
naturalization. That is, persons who have been convicted of an AF run the risk of being told that
they do not have good moral character.
The other thing to look at though is when the good moral character has to being effect. INA § 316
requires good moral character only during the 5 year statutory period before filing and up until the
final hearing of the naturalization period. Therefore, if the Muslim was in prison 20 years ago, his
argument that he does possess good moral character is that it is outside of the time period of §
(5) ATTACHMENT TO CONSTITUTIONAL PRINCIPLES
INA §316(a) requires an alien to show that she or he is “attached to the principles of the
Constitution of the US, and well disposed to the good order and happiness of the US.”
However, under INA § 313(a)(4), individuals with “meaningful” membership or association to
the Communist Party or other groups that advocate the overthrow of the US government by
force or violence or other unconstitutional means MAY NOT obtain naturalization.
Under Matthews v. Diaz, Congress regularly makes rules that would be unacceptable
if applied to citizens and Congress has broad power over immigration and
naturalization. Thus, the AG may ask for a list of all organization, association, fund,
foundation, party, club, society, or similar group in the US or in any other country or
place, and your foreign military service bc such information could reasonably reveal
information relevant to other requirements for naturalization. See Price v. INS.
An individual is NOT DISQUALIFIED if he or she can show that membership is or was
not voluntary. INA § 312(d)
An individual is NOT DISQUALIFIED if he or she can show that membership or
affiliation occurred and terminated prior to the alien’s attaining 16 yrs of age or such
membership or affiliation was by operation of law or for purposes of obtaining food,
employment or other essentials. See Gryzmala-Siedlecki v. US.
An applicant may escape the preclusion statute if more than 10 years have
passed, between his or her membership in the subversive organization or the act of
advocating overthrow of the government, and the filing of the petition for naturalization.
INA § 313(c).
INA § 315(a) and 315(c) provide than an alien who seeks or obtains exemption from service in the
armed forces on the ground that he or she is an alien becomes permanently ineligible for
citizenship, unless the alien had served in the military of a country having a treaty with the US.
Purpose of this requirement is the admission of citizenship of only those persons who are in general
accord with the basic principles of the community.
Courts have defined “attachment to the constitution” as a belief in representative democracy, a
commitment to the ideal embodied in the bill of rights, and a willingness to accept the basic social
premise that change only be effected in an orderly manner.
“favorable disposition to good order & happiness” has been characterized as a belief in the
political processes of the us, a general satisfaction with life in the us, and a hope for future progress
(6) OATH OF ALLEGIANCE TO THE US
Related to the requirement that an applicant be attached to the constitution of the us, he or she must
also take an oath of renunciation and allegiance in a public ceremony before the AG or a court with
jurisdiction under § 310(b).
INA § 337 of the INA requires that the applicant pledge:
(1) to support and bear true faith and allegiance to the Constitution of the US
(2) to renounce all allegiance to any foreign state or sovereign
(3) to support and defend the Constitution and laws of the US against all domestic and foreign
(4) to bear arms on behalf of the US when requires by law or to perform noncombatant service in the
armed forces, or to perform civilian work of national importance when required by law.
The AG may ask for a list of all organization, association, fund, foundation, party, club,
society, or similar group in the us or in any other country or place, and your foreign
military service bc such information could reasonably reveal information relevant to other
requirements for naturalization. See price v. Ins.
Naturalization decisions deserve as much judicial deference as do decisions about initial
admission. Price v. Ins
Price v. Ins (9th circuit)
Price was a native of England and citizen of the UK. He was granted lawful resident status in the us in
1960. Price did not answer the question that required him to list all affiliated organizations and was
denied naturalization. He was appealing the denial of his petition for naturalization which was based
on his list of organizations with which he has even been affiliated but did answer in the negative that
he was or had ever been a member of or associated with the communist party. Price argued that the
AG did not have statutory authority to require him to supply such a list and that such authority would
Held that the AG may ask for a list of all organization, association, fund, foundation, party, club,
society, or similar group in the us or in any other country or place, and your foreign military service bc
such information could reasonably reveal information relevant to other requirements for naturalization.
Membership in types of organizations not described in 313(a) may be relevant to other
requirements of naturalization.
Government is entitled to know of any facts that may bear on an applicant’s statutory eligibility
for citizenship, so it may pursue leads and make further investigation if doubts are raised.
Naturalization decisions deserve as much judicial deference as do decisions about initial
The next case considers whether a member of the communist party can be “attached to” the principles of
the us constitution. Note that at the time of the decision, membership in the communist party
was not an express bar to naturalization. Congress made it so in 1950. INA §313.
Although one‟s citizenship can be revoked or cancelled on legal grounds under clear,
unequivocal, and convincing proof that an alien was not attached to the principles of the
constitution at the time of naturalization, such a right should not be taken away without
the clearest sort of justification and proof. Especially is this so when the attack is made
long after the time when the certificate of citizenship was granted and the citizen
meanwhile met his obligations and has committed no act of lawlessness. Schneiderman v. US
Schneiderman v. US (USSC 1943)
Issue was whether a member of the communist party can be “attached to” the principles of the us
constitution. INA sought to turn back the clock and deprive petitioner of citizenship and the benefits
that derive from the status. Petitioner believed that membership in the party was compatible with the
obligations of American citizenship and stated that he would bear arms against Russia if necessary.
However, he also advocated the overthrow of the us government
Held that although one’s citizenship can be revoked or cancelled on legal grounds under appropriate
proof, such a right should not be taken away without the clearest sort of justification and proof.
Especially is this so when the attack is made long after the time when the certificate of citizenship was
granted and the citizen meanwhile met his obligations and has committed no act of lawlessness.
Government’s evidence does not meet the standard of clear and convincing proof that petitioner
was not in fact attached to the principles of the constitution and well disposed to the good order
and happiness of the us when he was naturalized in 1927.
Article v of the constitution advocates freedom of thought.
Whatever attitude we may individually hold towards persons and organizations that believe in or
advocate extensive changes in our existing order, it should be our desire and concern at all times to
uphold the right of free discussion and free thinking to which we as a people claim primary
Office hours are one week from this Friday, April 28, from 2-5. If you want
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