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					Immigration Outline
Fall 2001
Professor Trujillo

     I.       Citizenship
     A.   Citizenship

    Citizenship connotes membership in a state, which entitle members to the basic
     rights and opportunities afforded by the states.
    Difficulties in defining membership.
         o Chronological Model
             EWINIVLPRCz
         o Concentric Models
                  #1. UFNNIVLPRCz
                          OK regarding politics & legal rights, but doesn‘t take
                             loyalty & allegiance into account
                  #2. NonworkersWorkers
                          Gives rights to workers, but gives less rights to nonworkers
                             (what about law students, retirees)
                  #3. Cultural
                          The empty core problem
    Citizenship as an instrument of social closure.
         o Cz has unqualified right to enter & remain in the state and rights (such as
             suffrage, hold office, jury duty & military service)
         o Preservation of security and fiscal interests

     B.   Dual Nationality

    When it Can Arise:
        o Birth in the U.S. to immigrant parents
        o Birth outside the U.S. to a child with U.S. citizen and a foreign parent
        o Naturalization with a renunciation requirement, but renunciation not
            recognized by country of origin
        o Naturalization, loss and resumption of citizenship
    INA § 337. Oath of renunciation and allegiance
        o [436-437]
        o ―One at a time‖ norm
    ―Dual Citizenship is a problem.‖
        o Conflicts of loyalty, which are inconsistent with the unitary allegiance
            normally required for citizenship
        o Potentially serious conflicts in times of war.
    ―Dual Citizenship should be embraced.‖
        o Economic Connections
        o Remote prospect of war



                                          1
          o People don‘t affiliate with the flag; they affiliate with family, their
            profession, etc. (Post 9/11, I’d argue against this)

     C.   Methods of Obtaining Citizenship

                                      Jus Soli
                     Birth           Jus Sanguinis
U.S. Citizen
                     Naturalization
                                             American Samoa
                     U.S. National          Swain Island
Not U.S. Citizen
                     Foreign National       LPR
                                             NIV
                                             UFN

    14th Amendment. ―All persons born or naturalized in the U.S. AND subject to
     the jurisdiction thereof are citizens of the U.S.‖
    4 ways to obtain citizenship:
         o Birth in the U.S. or its territories
         o Birth outside the U.S. to a U.S. parent
         o Naturalization
         o Naturalization of a parent while a child is under 18 years old
    Jus Soli
         o ―Right of Land‖
         o Exceptions. Tourists, Foreign diplomats, alien enemies in hostile
             occupation, Foreign Warships while in U.S. territorial waters
    Elk. (1894)
         o Court held Native Americans were not citizens because they weren‘t
             ‗subject to the jurisdiction of.‘
         o Narrow interpretation of ‗subject to the jurisdiction thereof.‘
    Wong Kim Ark. (1895)
         o Child born in the U.S. to Chinese parents was a citizen by virtue of the
             14th Amendment
         o Broadened the interpretation of ‗subject to the jurisdiction thereof‘
         o If Wong Kim Ark had come out the other way, citizenship would have
             been denied to thousands of persons of Western European desent
    Jus Sanguinis
         o ―Right of Blood‖
         o Transmission Process. The transmitter must have citizenship to pass it on.
                  ―Citizenship‖ includes transmitting ideas, experiences, culture...
         o Policy. Avoids indefinite perpetuation of U.S. citizenship just sanguinis
             within families that have lost touch with American roots.
         o INA § 301(c), (d), (e), (g), (h)
                  (c) Both parents = citizens; child = citizen IF 1 parent has had a
                     U.S. residence before the child‘s birth


                                            2
                  (d), (e) 1 parent = citizen; child = citizen IF Cz parent physically
                   present in U.S. for a continuous period of 1 year before the child‘s
                   birth
                (g) 1 parent = citizen; child = citizen IF Cz parent spent 5 years in
                   U.S., at least 2 years after age 14.
                (h) Persons born abroad before May 24, 1934. …
        o INA § 309. Children born out of wedlock.
                Jus Sanguinis extended to a child born outside the U.S. and out of
                   wedlock to a U.S. citizen MOTHER but a child born abroad out of
                   wedlock to a U.S. citizen FATHER attains citizenship at birth
                   ONLY if a number of additional conditions are met.
                Nguyen
    Nguyen. (2001)
        o Facts. Child born out of wedlock in Vietnam to a U.S. Cz father and a
           Vietnamese mother. When he was age 6, he came to the U.S., became an
           LPR and lived with father in TX. At age 22, convicted in TX state court,
           INS ordered him deported. His father appealed (standing).
        o Equal Protection Issue. Had the child‘s mother been an unmarried Cz,
           he would have been a Cz also. Since the child‘s father was an unmarried
           Cz, § 309(a) requirements needed to be met.
        o Applying Heightened Scrutiny, the Court found nothing irrational or
           improper in having gender-based differences in requirements.
        o Kennedy.
                The importance of assuring that a biological parent-child
                   relationship exists.
                ―America is not a descent based people.‖ – something other than
                   blood is needed to transmit citizenship
        o In addition, Nguyen had a different way to citizenship, but his criminal
           offenses screwed things up. Could have gone the §§ 312, 316 route.
        o Dissent. § 309(a)‘s intent was to prevent fraudulent conveyances of
           citizenship. In this case, it‘s being used to impose stricter standards on Cz
           fathers than on Cz mothers.

                               Married     § 301(g)       Residence (5 years, 2 after 14)
                      Father
                               Unmarried   § 301(g)       Residence (5 years, 2 after 14)
                                           -AND-
                                           § 309(a)       Paternity (Affirmative Steps)
U.S. Cz Transmittor

                               Married     § 301(g)       Residence (5 years, 2 after 14)
                      Mother
                               Unmarried   § 301(e)       Residence (1 year continuous)




                                           3
 D.    Naturalization

 Requirements
1) Residence & Physical Presence
       a. INA § 316(a)
                i. Continuous residence in U.S. for 5 years as LPR
               ii. During 5 years before filing, physical presence in U.S. for at least
                   ½ time
              iii. Residence in district where petition filed for 3 months.
       b. Purpose: to create reasonable period of ‗probation‘ to enable candidates to
           discard foreign attachment, learn principles of U.S. gov‘t system and
           identify with national community
       c. Notes:
                i. Legal Residence Necessary
               ii. Exception to physical residence requirement: U.S. gov‘t service,
                   U.S. institution research, U.S. corporation foreign trade/commerce,
                   public int‘l org of which U.S. is a member
              iii. BUT, before seeking exception, applicant needs to continuously
                   reside in U.S. for 1 year or more
2) Age
       a. INA § 334(b)(1)           generally need to be 18 years old
       b. INA § 322                 child status – derivative citizen
                                    Parents can obtain certificate of citizenship for
                                    children who somehow didn‘t otherwise obtain US
                                    nationality
3) Literacy & Educational Requirements
       a. INA § 312(a)(1)
                i. Applicant must be able to read, write, speak and understand simple
                   English
               ii. Exceptions: physical inability, older than age 50 at time of filing
                   and LPR for 20 years or older than age 55 at time of filing and
                   LPR for 15 years
       b. INA § 312(a)(2)
                i. Knowledge and understanding of fundamentals of history and
                   principles and form of gov‘t. Generally applied leniently (2 or 3
                   opportunities to pass)
    Local Legal Culture: This could be very relaxed and it could be very
       stringent
    Lecture 10/2/01 – Language Requirements Debate
4) Good Moral Character
       a. INA § 316(a)
                i. During 5 years before filing, applicant must show they have been
                   and still are a person of good moral character.
       b. Learned Hand this test is incapable of exact definition




                                         4
      c. INA § 101(f). If you‘re on this list, no good moral character
              i. Habitual drunkard, poor, AIDS, gambling, fraud, convicted and
                 jailed for 180 days or more, aggravated felony
5) Attachment to Constitutional Principles
      a. INA § 316(a)
              i. Applicant must show ‗attached to the principles of the Constitution
                 and well disposed to the good order & happiness of the U.S.‘
      b. Community, representative democracy, Bill of Rights, willingness to
         accept the basic social premises that change only be affected in an orderly
         manner, hope for future progress and prosperity
6) Oath of Allegiance to United States
      a. INA § 337 – pledge:
              i. Support and bear true faith and allegiance to Constitution
             ii. Renounce all allegiance to any foreign state/sovereign
            iii. Support and defend Constitution and U.S. laws against all foreign
                 and domestic enemies
            iv. Bear arms on behalf or the U.S. when required by law
                     1) OR perform non-combative armed forces service
                     2) OR perform civilian work of national importance when
                         required by law

 Relaxed Naturalization Requirements for Particular Applicants:
   INA § 319
        o Spouses of U.S. citizens can apply after married for 3 years
   INA §§ 322, 337(a)
        o Children of U.S. citizens
   INA §§ 328, 329
        o Current or former members of the armed forces

 INA § 313. Prohibition upon the naturalization of persons opposed to
  government or law, or who favor totalitarian forms of government.
     o No naturalization if
     o INA § 313(a)(4). Communist or totalitarian party members and those who
        advocate overthrowing the U.S. gov‘t by force or violence or
        unconstitutional means.
     o INA § 313 (d). Applicant MAY qualify for naturalization of they can
        show that the membership or affiliation occurred & terminated before
        applicant was age 16 OR membership or affiliation was by operation of
        law or for purposes of obtaining employment, food or other essentials.
     o Grzymala-Siedlecki v. US. Enrollment in the Polish Naval Academy,
        which automatically conferred Communist Party membership, didn‘t
        disqualify Π from naturalization where college education was necessary
        for earning a livelihood.
     o Rowoldt v. Perfetto. ―Meaningful Association‖ is an awareness of the
        party‘s political aspect.




                                       5
       o Exceptions to Prohibition on Naturalization.
       a. INA § 313 (c)
             i. Applicant MAY escape the preclusion statute if 10 years has
                passed between membership in a subversive org or the act of
                advocating overthrow of the gov‘t and the filing of the
                naturalization petition
       b. INA § 314
             i. If applicant desert U.S. armed forces or leaves the country to
                dodge draft AND convicted of that offence, permanently precluded
                from naturalization
       c. INA § 315(a)
             i. Alien seeking/obtaining armed forces exemption on the grounds
                that he/she is an alien is permanently ineligible for citizenship
                UNLESS have served in military of country with treaty with the
                U.S.

 Naturalization Procedures
   Jurisdiction. 1990 Act conferred both the decision on naturalization and the
     oath of allegiance upon the AG (INS)
   INA § 310: Basic administrative procedure & judicial review provisions
     (federal district court gets de novo review of denials of naturalization)
   INA § 335: Examination of application for naturalization.
         o Form N-400
         o INS officer makes a formal determination to grant or deny
                  Must state reason why if denied
   INA § 336: Hearing before an immigration officer if application is denied @
     examination stage
   As an immigration attorney, you want to get your client AWAY FROM THE
     INS and INTO THE COURT SYSTEM
   Price v. U.S. INS (1994)
   Facts. Price (UK citizen) refused to list all organizations with which he has
     ever been affiliated in his petition for naturalization. Claimed AG didn‘t have
     statutory authority to require such a list & that such authority would be
     unconstitutional
   INA § 335(a), (b). Attorney General has authority to require an applicant for
     naturalization to aver all facts which in the opinion of the AG may be material
     to the applicant‘s naturalization & to designate INS employees to take
     testimony concerning any matter touching or in any way affecting the
     admissibility of any petitioner for naturalization. AG HAS VERY BROAD
     AUTHORITY.
   Dominant Themes:
         o Level of deference to administrative (and Congressional) authority
             in interpreting immigration rights
         o Standard of Review of AG‘s authority‖facially legitimate and
             bona fide‖ –Kleindienst




                                       6
           Reasonable to assume that knowing the organizations with which a petitioner
            is associated will be relevant to 1 or more of the requirements for citizenship.
           ―Because a petitioner might be mistaken about whether an organization is of
            the type prohibited by § 313(a) & because Q. 18 could reasonably reveal
            information relevant to other requirements for naturalization, the AG‘s
            decision that Q.18 is relevant to determining qualification for naturalization is
            facially legit and bona fide.‖
           Dissent. In this specific case, the alien resident was here for 30 years and
            conducted himself like an American for a very long time. ―Beyond excluding
            persons committed to subversion or terror or under the orders of a foreign
            gov‘t, there‘s no conceivable way the gov‘t can measure a person‘s
            character.‖ Unconstitutional b/c infringes on right of free association.

      # of Naturalization Petitions Increased Substantially. Factors:
        # of immigrants legalized under 1986 Act became eligible for citizenship
        1992 – INS introduced new LPR ~ valid in 10 year increments
        Anti-immigrant rhetoric of mid-1990s led some immigrants to seek security of
           U.S. citizenship
        1996 Welfare Act sparked a demand for naturalizations immigrants sought to
           preserve their access to the social safety net

      II.      The Federal Immigration Power
A.      History & Themes

      5 Themes:
          o How are the present perceptions of current immigrants similar/different
             from history?
                  i.e. assimilation, English language
          o Business & Economy
                  i.e. how do businesses cycles affect immigration moods?
                    Politics/Labor Movements/Anti-Immigrant Sentiment?
          o Political Alignments
                  Business groups & Ethnic groups vs. 100%ers, labor orgs
          o National Origins Formula
                  1924-65: gears # of people let into U.S. based who‘s here now,
                    using 1911 demographic statistics.
          o Conceptual Change written in by 1996 Act.
                  Anti-Terrorism & Effective Death Penalty Act
                  Welfare Act
                  Illegal Immigrant Reform and Immigrant Responsibility Act.




                                              7
B.      Sources of Immigration Power

      Delegated Powers
          o The Commerce Power
          o Congress has the power ‗to regulate Commerce with foreign Nations, and
               among the several States.’
          o The Supreme Court has held that migration is commerce.
          o The Naturalization Power
          o Congress has the power ‗to establish a uniform Rule of Naturalization.‘
          o Power to naturalize does NOT necessarily imply the power to regulate the
               admission of aliens who may eventually be eligible for naturalization.
               There‘s a distinction between regulation of the physical entry of aliens
               into the territory of the U.S. and regulation of the entry into the political
               community of the U.S. through the extension of full political rights to
               naturalize citizens.
          o The War Power
          o Congress has the power ‗to declare war.‘
          o Federal gov‘t has the authority to stop the entry of enemy aliens and to
               expel enemy aliens from residing in the U.S.
          o The Migration and Importation Clause
          o The Migration or Importation of such Persons as any of the States now
               existing shall think proper to admit, shall not be prohibited by the
               Congress prior to the Year 1808.
          o Slavery. Even though this clause seems to authorize congressional power
               to prohibit immigration after 1808 and probably to regulate it as well, it‘s
               interpreted as prohibiting congressional attempts to stop the slave trade
               before 1808.
          o Migration v. Importation—Legislative Intent. ‗Migration’ was intended to
               refer to the movement of slaves among the States, while ‗Importation’
               referred to the initial entrance of the slave into the U.S. OR the regulation
               of immigration by blacks—‗when the free black man came here, he
               migrated; when the slave came, he was imported.
          o The Foreign Affairs Power
          o Immigration decisions are clearly part of the conduct of American foreign
               policy.
               Chy Lung v. Freeman, 92 U.S. 275 (1875). The federal gov‘t‘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. The passage of laws, which concern the admission of
          citizens and subjects of foreign nations to out shores, belongs to Congress,
          and not to the States.




                                              8
      Inherent Power
          o Inherent powers seem to owe their existence to pre-Constitutional sources
              (revolutionary war)
          o U.S. v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). The source of
              the federal gov‘t‘s foreign affairs powers derives not from the
              Constitution, but from the fact of independence itself. As a result of the
              separation from Great Britain by the colonies acting as a unit, the powers
              of external sovereignty passed from the Crown not to the colonies
              severally, but to the colonies in their collective and corporate capacity as
              the United States of America.
      This notion that Constructional and Structural Arguments
          o The Rule of Necessity. Perhaps to lose control of one‘s border is to
              ‗defeat the venture at hand‘ by losing our ability to achieve the objects for
              which the Constitution was established, ‗to ensure domestic tranquility,
              provide for the common defense, promote the general welfare.‘
          o A Structural Justification. Self Preservation—to be a sovereign nation, a
              people must have control over their territory. A nation of open borders
              runs the risk of not being able to govern itself because its sovereignty is in
              the hands of the other nations of the world. Self Definition—by deciding
              whom we permit to enter the country, we say much about who we are as a
              nation.

C.      The Plenary Power Doctrine

      Chae Chan Ping (Chinese Exclusion Case)
          o Fountainhead case giving federal gov’t authority to regulate immigration.
          o Facts. A Chinese laborer, who entered the U.S. in 1875, visited China in
             1887. Before leaving, he got a certificate pursuant to the 1882 & 1884
             Acts. When he returned after the 1888 Act, he was denied re-admission
             even though he possessed a certificate. He sued, alleging the 1888 Act
             violated the Constitution and conflicted with the Burlingame and 1880
             Treaties.
          o ―Chinese laborers are not U.S. citizens; they’re aliens and the U.S. gov’t
             can exclude aliens from its territory is not open to controversy.‖
          o Reasons. Preserve independence; give security against foreign aggression
             and encroachment
          o If the U.S. gov‘t, through its legislative dep‘t, considers the presence of
             foreigners of a different race in this country, who will not assimilate with
             us, to be dangerous to its peace and security, their exclusion is not to be
             stayed because at the time there are no actual hostilities with the nation of
             which the foreigners are subjects.‖
          o Whatever license Chinese laborers may have obtained, previous to the
             1888 Act, to return to the U.S. after their departure, is held at the will of
             the gov‘t, revocable at any time, at its pleasure.




                                              9
    Plenary Power Doctrine:
          o Source of Sovereign‘s Power
                  To regulate immigrationwar/self-defense
                  Enumerated Powers. Commerce, Naturalization & War Clauses
                  Inherent Powers. ―Pre-Constitution‖ self-defense, self-definition
          o Power vests to the Federal Government (Not State), via the Constitution
          o Power = Political; no judicial review
                  Power of self-defense is political and is beyond judicial reach.
                     There are some immigration laws that rise to the level of self-
                     defense (BUT most do not)
    Yick Wo v. Hopkins. (1886). Three years before Chae Chan Ping, the Supreme
     Court held that the equal protection clause protected Chinese nationals against
     discriminatory enforcement of a San Francisco ordinance regulating laundries.
          o Suggests that aliens and citizens receive similar (but not identical)
             constitutional treatment in nonimmigration matters.
    14 Amendment is NOT confined to the protection of citizens. ―Nor shall any
        th

     state deprive ANY PERSON of life, liberty, or property without due process of
     law; nor deny to ANY PERSON within its jurisdiction the equal protection of the
     laws.‖
    How is the Plenary Power Limited?

                              Foreign Nationals              U.S. Citizens
Immigration Law               4-Court on shaky ground        3-Low judicial power
                              Chae Chan Ping                 Kleindeist
                              Wing Wong                      Fiallo
Other Law                     2-Court very comfortable       1-Strong Judicial Review
                              here                           Mainstream
                              Yick Wo
As an immigration lawyer, argue that you are in box 1 and far away from box 4 OR that
your case is similar to Wong Wing

    Fong Yue Ting. (1893)
        o Facts. A Chinese laborer couldn‘t get white people who could vouch for
            him. Having failed to establish legal residence by at least one credible
            white witness, as required by statute, the judge ordered him deported.
    Majority. Nations can expel or deport foreigners—this right is absolute and
     unqualified.
        o ‖The right of a nation to expel or deport foreigners, who have not been
            naturalized or taken any steps towards becoming citizens of the country, is
            as absolute and unqualified as the right to prohibit and prevent their
            entrance into the country. Congress has broad authority to create rules of
            evidence.‖
    Dissent. Cruel & Unusual Punishment. Due process rights of the deported.




                                          10
     Fong Yue Ting (con)
      Plenary Power. Since Chae Chan Ping, the court calmed down a bit and
        reviewed more carefully. They began to see and think about the many
        complexities of the Plenary Power Doctrine and realized that it’s about more than
        war.

      INA § 237. Under current law, aliens may be deported (1) for conduct occurring
       prior to their entry, (2) if they were excludable at time of entry, and (3) for
       conduct occurring after a lawful entry.

Wong Wing v. United States (1896).
   Struck down the part of the 1892 Act that provided that any Chinese citizen
     judged to be in the U.S. illegally ‗shall be imprisoned at hard labor for a period of
     not exceeding one year and thereafter removed from the U.S.‘ Court says you
     must have a jury trial before a Chinese citizen can be punished.
   Plenary Power. There are limits to what Congress can do to foreign
     nationals AND the court says it is their job to draw the limits.
         o ―We think it would be plainly competent for Congress to declare the act of
            an alien in remaining unlawfully within the U.S. to be an offense,
            punishable by fine or imprisonment, if such offense were to be established
            by a judicial trial. But when Congress sees fit to further promote such a
            policy by subjecting the persons of such aliens to infamous punishment at
            hard labor, or by confiscating their property, we think such legislation, to
            be valid, must provide for a judicial trial to establish guilt of the accused.‖

D.      Institutional Players – Federal Agencies & Courts

      INA §§ 103, 104. Enabling statutes for administrative structure.
      Key Players:
          o INS. Main f(x) ~ adjudicate application s for various benefits under the
              INA
          o EOIR. IJs. Take care of removals (exception – expedited removal)
          o BIA. Handles appeals from IJ decisions on removal proceedings
          o DOS. Issues visas and passports. Political in function.
          o DOL. Labor certification for applicable employment-based categories
          o BALCA. ―The Supreme Court of Labor Issues‖
          o The Court System. INA § 242 limits the role of the courts.
                  No judicial review in crime-related deportation grounds, certain
                    waivers, and relief from removal and discretionary adjustment to
                    LPR status.




                                            11
      III.     Admission
A.      The Decision to Migrate

      Trujillo says neither of these models is exhaustive, nor should be used in
       policymaking—they‘re under explanatory. Helpful to get a general sense.
      Boras. Economic Model.
           o Supporter of the push/pull theory.
                    ―Immigrants consider the relative economic strengths of the
                       sending/receiving countries & what the countries can do to alter
                       the immigrant‘s decision, in order to get the ―right‖ choice.
                    Bernie says the economic incentive to move from a low income
                       countryhigh income country must be substantial enough to
                       compensate an individual for moving/being separated from family
                       & community
           o Criticism.
                    Making heroic assumptions. The migrant is not an isolated
                       rational actor, seeking to maximize his/her self-interest. The
                       migrant takes family, community, and history into consideration
                       too. In addition, the migrant does not have full & perfect
                       information. Often, s/he is NOT fully aware of the economic
                       situations in both countries.
      Portes & Borocz. Sociological Model.
           o Supporter of ―cultures continuity‖ to explain migration.
                    Migrants come because of economic conditions in both the sending
                       and receiving countries, but also come because there are
                       established ethnic communities in the U.S., which serve as a
                       financial, professional, social and cultural support network.
      Portes & Rumbaut
           o The basic reason migrants come to the U.S. is the gap between life
               aspirations and expectation and the means to fulfill them in the sending
               countries.
           o 1965 – end of national origins formula. Beginning of multiculturism
           o The problem of brain drain. Does the U.S. owe a duty to the countries
               from which high-quality migrants come from to deter them from leaving
               their countries and not helping their economies & contributing to the U.S.
               economy?
           o Seepage of market mentality from U.S. to other countries.




                                            12
B.      Admission Categories and Backlogs

How to Get a Green Card:
  1. Petitioner must be in the United States (spouse, employer)
          a. Beneficiary – foreign national who plans to immigrate. No right against
               the U.S. gov‘t. If petitioner stops the process, no recourse.
  2. If Petitioner = Family Member, file visa petition with INS in U.S. (Form I-130)
      If Petitioner = Employer, file visa petition w/ DOL to obtain labor certification
      (Form I-140)
      If nonimmigrant already in U.S. = can adjust status to LPR, if qualified, without
      having to return to home country, under § 245
      If qualified undocumented, may be possible to adjust status under § 245(i)
  3. If approved, INS endorses it & its forwarded to DOS National Visa Center/INS
      office (if adjusting status)
  4. DOS notifies consulate where alien is expecting to apply for the visa
  5. A visa will be available if either the visa allocation priority date is current OR if
      the alien is an immediate relative (no quota, no wait)
          o If alien‘s visa allocation priority date is current, the alien is sent ‗Packet 3‘
               [492]
  6. Alien has visa interview (typically 2-4 months after completing packet 3)
  7. If consul finds alien admissible, immigrant visa is issued, valid for 6 mo. (INA §
      221(c)
  8. If immigration officer @ port of entry finds no disqualifications, gives alien
      ―LPR‖ stamp in passport & forwards papers to INS for Alien Registration Reciept
      Card (I-551 ~ green card)

                                              Diversity

        Asylum                                Family-based
                             Immigrant
        Admission                             Employment-based
Entry   # limits; § 212(a)   Nonimmigrant
        Parole                                Refugee
        (Term-limited allowance)
        Undocumented Migration                EWIs

                                              NIV over-stayer

Family-based                 see below
Employment-based             see below




                                             13
Diversity Immigrants
    Admits immigrants from countries not currently well represented in the immigrant
       population.
           o Trujillo says like National Origins Formula—let‘s have more Europeans
              and Africans and less Mexicans and Asians
    INA § 203(c)
    Low Threshold Requirements:
           o At least a high school education or its equivalent OR
           o 2 years of training or experience w/in 5 years before applying.
    Lottery—winners can bring their immediate families.
           o ALWAYS BUY A TICKET TO THE DIVERSITY LOTTERY
    Diversity visa lottery and per country limits places extra burdens on certain
       individuals—Mexico and the Philippines

Per Country Limits
    INA § 202
    Total # of immigrant visas available to natives of any single foreign state may not
      exceed 7% of the total # of such visas available that year.
    Visa Chart. Allows you to guess how long a wait your client will have.
         o Client‘s priority date?
         o Client‘s country of origin?
         o Client‘s preference classification?

C.       The Impact of Admission

      Immigrants play a dominant roll in population growth
      Multiple ancestry is increasing
      Immigration produces net gains for domestic residents
      If immigrants remain different from native born, they can affect the rate of
       economic growth
      Biggest losers of immigration are recent immigrates and African-Americans
      The wage gap (less gap for Asians and Europeans; more gap for Mexicans)
      Policy favoring admitting the young & educated and excluding the old

D.       Family-based immigration & Marriage Fraud

Family Preferences, INA § 203(a)
   1st Preference—Unmarried sons/daughters of US Czs
          o Ceiling – 23,400
   2 Preference—Spouses, unmarried sons/daughters of LPRs
       nd

          o (a) Spouses and children under 21
          o (b) Children over 21
          o Ceiling – 114,200




                                            14
Family Preferences (con.)
   3rd Preference—Married sons/daughters of US Cz
          o Ceiling – 23,400
   4 Preference—Brothers/sisters of US Cz
       th

          o Ceiling – 65,000

Family Preference-Miscellaneous
    ―Children‖ include stepchildren, legitimated (if relationship established before
       child reached age 18), adopted (if adoption occurred before child was age 16), and
       illegitimate (w/ certain qualifications) children.
    ―Immediate Relatives‖ are not subject to numerical ceiling.
           o Children, spouses, and parents of a citizen, except that, in the case of the
                parent, the citizen shall be at least age 21.
    Family members of aliens who enter under a preference category DO NOT have
       to wait until the alien successfully petitions for them under a different preference
       category. ―Follow to join‖ under INA § 203(d)
           o Followers to join can come whenever, so long as they meet the statutory
                requirements. (i.e. they must exist at the time of filing)
    Policy: Family reunification; avoid separating nuclear families.
           o Economic policy – family acts like an insurance plan.
    NIVs to fill gap when waiting in line:
           o K-visa – for fiancées or newly-wed spouses of Cz and their minor children
           o V-visa – only applicable for 2A category AND must have been in line
                before 12/15/00

                               Immediate Relative of Citizen         INA § 201(B); K visa
Family-based Admission         4 Family-Preference Categories        INA § 203(d); V visa
                               Following to Join                     INA § 203(d)


Fiallo v. Bell.
    Facts. Unwed natural father & his illegitimate offspring sought a special
        immigration preference by virtue of a special relationship to a citizen or LPR
        child or parent.
    INA § 101(b)(1)(D). ―Child‖ – unmarried person, under 21 years of age, who is
        a legitimate or legitimated child, a stepchild, an adopted child, or an illegitimate
        child seeking preference by virtue of his relationship with his natural mother.
    INA § 101(b)(2). ―Parent‖ – qualifies as a parent on the basis of the person‘s
        relationship with a child.
    Natural father of an illegitimate child who is either a Cz or LPR is NOT
        entitled to preferential treatment as a parent.
    Plenary Power. Very Robust. Court held consistent with the Plenary Power
        Doctrine. Whenever immigrants or immigration law is involved, the Plenary
        Power Doctrine serves as a carte blanche.




                                             15
Fiallo v. Bell (con.)
    Footnote 5. Our cases reflect acceptance of a limited judicial responsibility
        under the Constitution even with respect to the power of Congress to regulate the
        admission and exclusion of aliens, and there is no occasion to consider in this
        case whether there may be action of the Congress with respect to aliens that are
        so essentially political in character as to be nonjusticiable.
            o Suggests there is a limit to the Plenary Power Doctrine, even if it‘s not
                applied in this case. No mention of where the line is.

Marriage Fraud
   Is this marriage ‗it?‘
         o Examine the form
                 Legit marriage where celebrated?      (foreign family law)
                 Legit marriage where received?        (public policy, fam. law, recog. in state?)
         o Examine the intent of the parties at the point of marriage
         o Check up
                 Strong. Marriage in fact.
                 Weak. Marriage in law. Has marriage been legally terminated?

Bark v. INS
    Facts. IJ shot Bark down and said marriage was a sham b/c separated and
       admitted to quarreling and separating. (Reversed)
    Conduct of the parties after marriage is relevant only to the extent that it
       bears upon their subjective state of mind at the time they were married.
    The appropriate question is ―Did the petitioner and his wife INTEND to
       establish a life together at the time of their marriage?‖

Sham Marriages & the Ethical Responsibilities of an Attorney
    Attorneys can be suspended or disbarred if willfully misinform or deceive DOJ
     about any material & relevant fact.
    MR 1.6: Confidentiality, regarding all information related to the representation,
     whatever the source.
    MR 1.2(d): Attorney can‘t assist a client in conduct the lawyer knows or
     reasonably should know is criminal or fraudulent.

Dabaghian v. Civiletti
    Facts. Iranian Cz married US Cz in 9/79. In 10/79, he applied for adjustment of
     status under INA § 245. Granted. Same day, separated from wife. 2 weeks later,
     divorced wife. 8 months later, married Iranian Cz. AG moved under INA § 246
     to rescind the adjustment of status on the ground that Dabaghian hadn‘t been
     eligible for it when it was granted.
    Court ruled in favor of Dabaghian. If marriage isn‘t a sham or fraudulent
     from its inception, it‘s valid for the purposes of determining eligibility for
     adjustment of status under INA § 245.




                                                 16
Dabaghian v. Civiletti (con.)
    ―Factually Dead Test‖ would trench on constitutional values and privacy rights.
    Was Dabaghian the spouse of a US Cz at the time of adjustment of status? YES.
     INA § 201(b) – no exception for marriages that the INS thinks are ‗factually
     dead‘ at the time of adjustment.

Divorce
    If divorced as of date the immigration benefit granted, petition may NOT be
      granted
    If legally separated, immigration benefits may not be granted.
    Sham Divorces. Formal dissolution of marriage bonds for the sole purpose of
      claiming benefits that are only available to unmarried persons, like family-based
      2nd preference visas.
    Matter of Aldecoactalora. Sham divorces aren‘t recognized. Goes against
      legislative intent.

Immigration Marriage Fraud Amendments of 1986.
   INA § 216. All persons who obtain LPR status based on a marriage that‘s less
     than 2 years old at the time receive such status on a conditional basis.
     (Conditional period=2 years)
   INA § 216(e). Within last 90 days of 2-year period, both spouses must petition
     INS to have conditional status removed, although under certain circumstances the
     alien may secure a waiver to the requirement of a joint filing.
   INS can either remove the conditional status INA §§ 216(c), (d)(1)full LPR
     status OR not remove the conditional statusdeportable under INA §
     237(a)(1)(D)

K Visas & Marriage Fraud
    Strengthen the restriction on future immigration of persons who have ever been
      involved in marriage fraud.
    Criminal sanctions for involvement in marriage fraud
    Harder for aliens in deportation proceedings to cure their problems with 11th hour
      marriages.

The Problem of Spousal Abuse
    Petitioning spouse has significant power that can be used to perpetuate abuse.
    INA §216(c)(4)(C): waiver for battered spouses
    INA § 204(a)(1)(A)(iii): permit a battered spouse who‘s eligible for family-based
      immigration based on marriage to file a petition on her own behalf for LPR status
    Marriage must have been bona fide.
    INA § 237(a)(2)(E): deportation ground for persons convicted of a crime of
      domestic abuse or found in violation of protective orders.




                                           17
E.     Employment-based immigration

Employment Preferences, INA § 203(b)
    1st Preference—Priority Workers
           o Extraordinary ability                                   see 8 CFR § 204.5(h)
           o Outstanding professors & researchers                    see 8 CFR § 204.5(i)
           o Executives (see INA § 101(a)(44))                       see 8 CFR § 204.5(j)
           o NO labor certification required
           o Ceiling – 40,000
    2 Preference—Professionals holding advanced degrees or persons of
        nd

       exceptional ability; see 8 CFR § 204.5(k)
           o Petition must be filed by employer OR waived by the AG ‗in the national
              interest.‘ (Note: ‘in the national interest’ is an essay writing contest)
           o LABOR CERTIFICATION REQUIRED; INA § 204(b)
           o Ceiling – 40,000
    3 Preference—B.A. degree & skilled and unskilled workers who would fill
        rd

       positions workers; see 8 CFR § 204.5(l)
           o LABOR CERTIFICATION REQUIRED; INA § 204(b)
           o Ceiling – 30,000
           o ―Other Workers‖ – 10,000
    4 Preference—Special immigrants; see 8 CFR § 204.5(m)
        th

           o Includes religious workers, non-governmental organizations
           o Defined in INA § 101(a)(27)(C) thru (J)
           o NO labor certification required
           o Ceiling – 10,000
    5 Preference—Investors
        th

           o INA § 203(b)(5).
           o Requires creation of no fewer than 10 jobs for U.S. workers AND $1
              million investment.
           o NO labor certification required
           o No preexisting network necessary
           o Ceiling – 10,000
           o (+) We provide preferences for those who come to fill jobs for which
              American workers are unavailable; why not provide a preference for aliens
              who would create jobs for American workers?
           o (-) The rich should not be able to buy their way into the country
Basics
    Visa petition must be field by employer already in the U.S.
    Policy. Augment the economy.




                                           18
Labor Certification
    INA § 212(a)(5)(A): Labor Certification
    Basic Procedure
         o INA § 204(b). The labor cert. requirement is a prerequisite that must be
              satisfied by every entering immigrant in the employment-based 2nd and 3rd
              preferences.
         o Labor Certification must be secured from the DOL
                   Schedule A. Lists occupations judged chronically short of
                      qualified U.S. workers. If you‘re on this list, you‘re in.
                   Schedule B. Lists occupations that have sufficient U.S. workers
                      and for which a labor certification won‘t be issued.
                   If the alien‘s occupation doesn‘t appear on either schedule, then
                      the employer must initiate the individual certification process and
                      demonstrate the manifold requirements.
                           Good faith recruitment efforts aimed at qualified U.S.
                               workers
                           Interviewed interested U.S. workers and rejected any such
                               applicants for lawful, job-related reasons
                           Offered the ―prevailing wage‖ and is capable of paying that
                               wage
                           Job requirements are not unduly restrictive
         o Certification establishes:
                   A shortage of available and qualified workers exists in the alien‘s
                      field at the place of intended employment
                   The hiring of the offered terms wouldn‘t adversely affect the
                      wages or working conditions of other workers.
         o Does NOT affect family-sponsored preferences, even if they intend to
              compete with American workers in fields already well supplied.
    The Process:
         o Application is filed by the employer @ local Job Service office
         o ―No‖ ―Notice of Findings.‖ Can appeal to ―Final Determination.
              Administrative Review (BALCA) and judicial review available
         o ―Yes‖ approval communicated to the consular officer in the alien‘s
              country for ultimate processing of the immigrant visa.

In the Matter of Information Industries, Inc. (BALCA)
     Facts. The employer required a B.S. in Engineering and a M.S. in Computer
       Science. The Certifying Officer found the requirement of 2 degrees was unduly
       restrictive.
     Either you must allege the 3 safe harbor requirements in § 656.21 OR that you
       have a business necessity exception to the requirements.
     Safe Harbor Requirements. Normally required for a job in the U.S., defined in
       the DOT, not requiring a language other than English.




                                           19
Information Industries (con.)
    ―Business Necessity‖ Test. The employer must demonstrate that the job
      requirements bear a reasonable relationship to the occupation in the context
      of the employer‘s business and are essential to perform in a reasonable manner,
      the job duties as described by the employer.

Possible reforms of the immigrant admission system
    Protect business interest or protecting labor interest or family reunification?
    Fill high-tech jobs w/ immigrants or solve by improving U.S. labor market thru
       education?
    Trend towards giving visas to people who will improve the economy & away
       from family reunification.
    INA § 204(j). Allows an immigrant to take H1B visa from Employer 1 in State 1
       to Employer 2 in State 2. Doesn‘t affect LPR status.
           o Policy. U.S. needs more high skill workers—we want them in the U.S.
              and we want them to stay in the U.S.
    Jordan Commission
           o Wants family-based admissions that give priority to nuclear family
              members-spouses and minor children of U.S. citizens; parents of U.S.
              citizens; and spouses and minor children of LPRs-and include a backlog
              clearance program to permit the most expeditions entry of the spouses and
              minor children of LPRs
           o Skill-based admissions policies that enhance opportunities for the entry of
              highly skilled immigrants, particularly those with advanced degrees, and
              eliminate the category for admission of unskilled workers.
    Briggs
           o Wants flexible immigration policy to admit primarily persons who can fill
              job vacancies for which qualified citizens and resident aliens are
              unavailable.
           o The guiding principle should be what immigrants can do for this country,
              not what this country can do for immigrants.
           o Legal entry should be restricted to skilled and educated immigrants
              because the U.S. already has an abundance of unskilled and poorly
              prepared would-be workers.

F.      Nonimmigrants

      INA § 214(b) – presumed to be an immigrant UNLESS prove otherwise.
       CULTURE OF SUSPICION.
      INA § 101(a)(15). NIV Preference Categories
          o B – Temporary Visitors for Business and Pleasure
                  B-1 – Business
                  B-2 – Pleasure
                  Valid for 1 year; renewable in 6 mo. increments.
                  CANNOT WORK!



                                           20
        Procedure. The alien initiates the process overseas; no petition on
         his or her behalf need be filed with the INS; no labor certification
         required.
       Catch-all provision. Used to admit nonimmigrant aliens for
         business-related purposes where other nonimmigrant
         classifications are not applicable.
o E – Treaty Traders and Investors
       E-1 – Treaty Traders & their spouses and children
              Must be international trade between U.S. and the treaty
                 country
       E-2 – Treaty Investors & their spouses and children
       There must be an international agreement
       Valid for 1 year; renewable indefinitely, so long as the alien
         continues to undertake the activities for which the visa was
         granted.
       Procedure. The alien initiates the process (no preliminary petition
         by a sponsoring entity needed).
       E visa holders need not retain a foreign residence that they do
         not intend to abandon.
o F – Academic Students
       F-1 – Academic Student
       F-2 – Spouses and children of academic students
       Valid for duration of status as a student or for the time necessary to
         complete the course of study
o H – Temporary Workers
       H-1B – Aliens coming temporarily to fill a job that‘s itself
         permanent
              Must have a bachelor‘s or higher degree
              Must be coming to provide services in a specialty
                 occupation, as defined in INA § 214(i).
              No labor certification needed
              INA § 212(n) – must have attestation
              Valid for 3 years; renewable up to 6 years total
              MAY LEGITIMATELY ENTER US UNDER H-1B VISA & AT
                 THE SAME TIME, LAWFULLY SEEK TO BECOME AN LPR
              Quota – 195,000 (for 2002)
              These visas are PORTABLE—can take from employer 1 to
                 employer 2
              Policy for Advantages. Technology Sector wants to keep
                 them here and happy.
       H-2A – Seasonal Agricultural Workers
              Need labor certification
              Mostly in East Coast & NW Pacific (i.e., where
                 undocumenteds are not)




                                21
          H-2B – Temporary Nonagricultural Worker
                 Aliens coming temporarily to fill a temporary job
                 Available ONLY IF no one in the U.S. can be found to
                    perform this service or labor – INA § 214(c)
                 Valid for 1 year; extendable up to 3 years
                 Quota – (?)
        H-4 – Alien Spouses & Minor Children following to join
                 CANNOT work, unless specified otherwise
o   K –Fiancé(e) or children of U.S. citizens
        Must be coming to the U.S. solely to conclude a valid marriage w/
           a U.S. Cz
        U.S. Cz must file a petition
        Valid for 90 days
        Can work
        INA § 214(d). Requirement that the alien fiancé(e) and the U.S.
           Cz have previously met in person within 2 years before the date of
           filing the petition and have a bona fide intention to marry…
                 The AG may waive the personal meeting requirement.
        CANNOT adjust status to any other NIV classification
o   L – Intra-Company Transferees
        L-1 – Intra-Company Transferees
                 Must ―render services in a capacity that‘s managerial,
                    executive, or involves specialized knowledge.‖
                 INA § 101(a)(44) – ‗managerial‘ and ‗executive‘
                 INA § 214(c)(2)(B) – ‗specialized knowledge‘
                        o must be about the firm
        L-2 – Spouses & Children
        Used by foreign companies with mergers and acquisitions
        These visas are FIRM SPECIFIC
        Valid for 3 years; expandable to 7 years
        No ―labor‖
o   O & P – Aliens with Extraordinary Abilities & Entertainers
        Athletes & Entertainers, their supporting cast, spouses, and kids
        MAY LEGITIMATELY ENTER US UNDER H-1B VISA & AT THE
           SAME TIME, LAWFULLY SEEK TO BECOME AN LPR
o   V – Aliens Waiting in Line
        Alien who has been waiting in line for at least 3 years for
           immigrant visa
o   NAFTA – if client can‘t get NIV, may still be able to get in here
        Allows 4 categories of Canadian and Mexican citizens to enter the
           US as nonimmigrants if they are ‗businesspersons‘
                 B-1       business visitors
                 E-1       traders and investors
                 E-2       intra-company transferees
                 L-1       professionals
                 TN        professionals; parallels H-1B visas


                                22
      Dual Intent Doctrine. An alien is not a bona fide nonimmigrant if intent from
       the beginning is to remain in the US permanently.
      How to Get a Nonimmigrant Visa:
           o Most important issue – Whether the alien truly has a home in the
              foreign country to which s/he intends to return.
           o Applicible Statutes & Forms:
                   INA §§ 214, 221(a)-(b), (f)-(h), 222(c)-(g), 248
                   I-766 – Employment Authorization Document – EAD
                           What NIV gets from INS to permit him to work
           o Procedure—2 paths possible:
           o Nonimmigrant applies for visa at a consulate overseasthe visa serves to
              authorize travel to the US in order to apply for admission at the port of
              entryafter entry, the category and expiration date shown in the
              admission documents (I-94) issued at the border or later modified or
              extended at an INS office, determine the rights and limitations attached to
              the nonimmigrant entry, regardless of what might have been shown on the
              visa
                   INA § 217 – If from 1 of 26 countries with low visa abuse rate, can
                      enter under this program, but waive all rights to extend stay,
                      change NIV status under INA § 248 or to adjust to LPR status
                      under 245A once in U.S., right to review of a finding of
                      inadmissibility or deportability.
           o An alien who has been lawfully admitted as a nonimmigrant and who is
              maintaining that status, changes to a different nonimmigrant status under
              INA § 248
      Reform Proposals for Temporary Admissions Programs - Policy
           o (+). Tourism and travel generating $ and jobs, foreign students and
              workers enriching the cultural, social and scientific life of the U.S., allows
              for information gathering, tracking and information sharing (post 9/11)
           o (-). Aliens who fail to depart at the end of their legal stay, when aliens
              present unfair competition to U.S. workers.

      IV.       Inadmissibility
A.      The Basics:

      3 Themes of Inadmissibility:
          o What substantive harms is the U.S. trying to prevent against?
          o What procedure should be used?
          o What is the role of the courts?




                                             23
INA § 212(a) – Excludable Aliens
    Applies to any alien who has not been properly admitted into the U.S.
          o Aliens who have been admitted have more procedural rights than those
              persons who have not been officially accepted.
          o Note: grounds for removal only apply after an alien has been inspected and
              admitted.
    Ineligible to receive visas and ineligible to be admitted to the U.S.
    Key Question – Has the alien been admitted or is s/he seeking admission?

LPRs:
    Re-entry Doctrine – INA § 101(a)(13)(C). Defines when an LPR won‘t be
       regarded as ‗seeking admission into the U.S.‘ and lists exceptions
    Fleuti – ‗an innocent, casual and brief excursion by an LPR outside the U.S.‘s
       borders may not have been intended as a departure disruptive of his LPR status
       and therefore may not subject him to the consequences of an ‗entry‘ into the
       country on his return.‘
           o Codified in INA § 101(a)(13)(C)
    Collado – (BIA) DR Cz; LPR for 25 years; received a suspended sentence for
       statutory rape as a kid. Held to be seeking admission (inadmissible).
           o Generally, an LPR won‘t be regarded as seeking admission.
           o Policy. It‘d be inconsistent w/ provisions‘ nature to create a second
               category of LPRs who may be regarded as seeking admission, depending
               on a set of criteria that would be developed on a case-by-case basis.
    Richardson – (S.D.N.Y.) Rejected BIA‘s reading of § 101(a)(13)(C) conditions—
       ‗Application of those conditions is up to the IJ in removal proceedings, at which
       time, the alien & the INS can argue factors relevant to Fleuti
Procedure:
Agent          DOL              INS Examiner    DOS Consulate INS Inspector   DOJ
Action         Labor Cert.      Visa Petition   Visa Issuance, Border Entry,  Border Patrol -
                 INA § 203(b)                  Inadmissibility   Removal       Expedited
                                               Determination                   Removal,
                                                                               IJ / BIA


B.      Crimes

      INA § 212(a)(2) – Criminal and Related Grounds
          o Inadmissibility Elements
                  Conviction of certain crimes:
                         Crime involving moral turpitude
                         Controlled substances
                  Multiple Criminal Convictions
                         Aggregate sentences were 5 years or more
                  Controlled Substance Traffickers
                  Also – prostitution, trafficking in persons…



                                             24
           o Inadmissibility Exceptions
                 1 Crime:
                         If committed when the alien was under age 18 and the
                            crime was committed more than 5 years before the visa
                            application date, OR
                         The maximum penalty possible didn‘t exceed 1 year of
                            imprisonment and the alien wasn‘t sentenced to more than
                            6 months.
           o Waiver
                 INA § 212(h)
                 AG has discretion to waive inadmissibility for certain categories.
                 No waiver for aggravated felony, murder, and torture. No Judicial
                    Review
                 If spouse, parent, son or daughter of Cz or LPR, ―extreme hardship
                    to the Cz or LPR‖ provision may apply

C.      Immigration Control

      New immigration control grounds in 1996 Act
          o Creates incentives to leave the U.S. voluntarily, rather that staying
             unlawfully
          o Problems. Vast majority of aliens don‘t have future benefits & don‘t have
             knowledge of this
      INA § 212(a)(6)(A)(i) – pre-1996
          o Inadmissible undocumenteds (Aliens who haven’t been admitted or paroled)
                  If overstayer INA § 222(g) applies
          o Penalty. Lifetime exclusion
      INA § 212(a)(9) – 1996
          o Inadmissibility undocumenteds and overstayers
          o (A) – Certain Aliens Previously Removed – banned for
          o (B) – Aliens Unlawfully Present
          o Penalty. Bans
                  If previously removed – 5, 10 or 20 year ban
                  If could be removed – 3, 10 year ban
          o Policy. Gives EWIs & overstayers an incentive to leave voluntarily,
             rather than staying unlawfully. I.e., Gets rid of undocumented aliens
             without driving them into an underground economy. Bad for them; Bad
             for U.S. workers
          o Problems.
                  Detection. It doesn‘t affect undocumented aliens unless they screw
                     up.
                  Bans undocumented aliens by criminalizing their presence
                          Greenwood – S.Ct. said cannot criminalize presence




                                          25
D.      Fraud

      INA § 212(a)(6)(C).
           o Any alien who by fraud or willfully misrepresenting a material fact, seeks
              to procure (or has sought to procure or has procured) a visa, other
              documentation, or admission into the U.S. or other benefit is inadmissible.
      Policy. Prevent aliens from attempting to fraudulently enter the U.S. and when
       discovered, proceed w/ application as if nothing has happened.
      Penalty. Expedited Removal. Only for fraud, document misrepresentation
           o Exception. Asylum seekers
           o No relief; no way to get around the 5 year ban.
      30/60 Rule
           o X<30: presumed misrepresentation if enter on B-2 & w/in 30 days start
              looking to change status (schooling/unauthorized employment)
           o 30<X<60: no presumption of misrepresentation. CO must have
              reasonable belief for misrepresentation to be ineligible.
           o 60<X: no presumed misrepresentation.
           o As immigration lawyer, advise client to wait at least 60 days before
              adjusting status.

E.      National Security

    INA § 212(a)(3)
           o Inadmissible if want to enter the U.S. to violate any U.S. law or engage in
               any activity which is in opposition to or the control or overthrow of the
               gov‘t by force, violence, or other unlawful means.
           o (B) Terrorist Activities
           o (C) Foreign Policy
                    Exceptions
           o (D) Immigrant Membership in Totalitarian Party (N/A to NIVs)
                    Exceptions
    Problems w/ inadmissibility for reasons of national security
           o Procedural – most national security information is confidential. The law
               must preserve surveillance missions & do justice w/ regard to citizens.
    Policy. The prevention of:
           o Violent activity (terrorist activity)
           o Prevent admissions that would provoke overseas violence
           o Prevent admissions that would support ideological offensive affronts
           o Prevent the signal that the U.S. approves of a person, idea, …
           o Prevent the spread of objectionable material to the U.S.
Kleindienst v. Mandel
    Aliens have no constitutional right to be admitted into the U.S.
    U.S. citizens have no right to insist that aliens be admitted to the country so that
       ideas may be exchanged.
    Congress‘ plenary power to control immigration supersedes a citizen‘s right to
       receive information under the 1st Amendment.


                                            26
Kleindienst v. Mandel (con.)
    Standard of Review. ―facially legitimate and bona fide.‖
    Marshall‘s Dissent. Content-based restriction of speech. What‘s the difference
       between stopping Mandel at the border b/c we disagree with what he says and
       stopping a citizen at the border and finding October Manifesto in his bag?!?
    Trujillo Note. To challenge a statute geared towards nonimmigrants, you must
       get a citizen‘s rights involved to get around the standing problem. This is the
       problem today w/ attempts to challenge INA § 235(a).

F.      Public Charge

      INA § 212(a)(4)
          o Inadmissible if likely at any time to become a public charge
          o Factors to consider: alien‘s age, health, family status, assets, resources,
              financial status, and affidavit of support
      Affidavits of support are legally enforceable, as of 1996. INA § 213A
          o Policy. Gives the gov‘t insurance that the applicant won‘t go on welfare.
          o Sponsors must support own hh, PLUS all sponsored immigrants at a
              minimum of 125% of federal poverty line for the entire period of
              enforceability
      Forms: I-864 & I-864A

G.      Public Health

      INA § 212(a)(1)
          o Applies to both immigrants and nonimmigrants
          o Communicable Diseases, including AIDS
          o Waivers for Public Health:
                  INA § 212(g)(1)(A). Applicable to ―aliens‖ More onerous—HHS
                    must be consulted.
                  INA § 212(d)(3). Catch-all for NIVs (except National Security)

H.      Adjustment of Status

      INA § 245
      Way to get around traveling overseas to adjust from NIV Immigrant in the
       classic fashion from a consular officer
      AG has discretion to deny adjustment of status (Jain)
      Requirements – INA §245(a)-(c)
           o Must be inspected & admitted OR paroled
           o Application (I-485)
           o Must be eligible to receive immigrant visa
           o Must be admissible to U.S. for LPR status
           o Immigrant visa must be immediately available to him when his application
               is approved.
      Ineligible for Adjustment of Status


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           o Terrorist, alien crewman, ‗transit w/out visa‘…
           o If worked w/out authorization b/f filing or otherwise violated terms of
              NIV
                   Exception – immediate relatives & special immigrants who have
                      engaged in unauthorized employment or otherwise violate terms of
                      NIV continue to be eligible to adjust status under § 245(a)
           o If in unlawful immigration status when filing
           o Failed to maintain continuous lawful status since entry into U.S.
           o Parolees & others allowed to be present in U.S. w/out NIV (employment-
              based immigrants ONLY)
      If denied Adjustment of Status…
           o May renew adjustment application b/f IJ during removal proceedings
           o NOT DQ‘d from LPR status so long as qualified for an immigrant visa &
              aren‘t inadmissible. Just have to use the usual immigrant visa process.
      INA § 245(i)
           o Lets undocumented aliens adjust, so long as they qualify; regardless of
              what § 212(a)(6)(A)(i) says.
                   Note: INA § 212(a)(9)(b) establishes 3 & 10 year bans.
           o Eligible for V visa while waiting in line
           o Issue. Fairness. Some people have been waiting in line a long time.
              This just lets you butt in line.
      INA § 246 – Adjustment of status can be rescinded if (within 5 years) the AG
       discovers the person wasn‘t eligible for such adjustment of status.

I.      Parole

      Allows an alien to travel away from the border & detention facilities, yet still
       remain subject to exclusion proceedings.
      1996 Act – parole for ‗emergency reasons or reasons deemed strictly in the public
       interest‘ w/ case-by-case basis for urgent humanitarian reasons or significant
       public benefit.
      Examples – permits medical treatment, allows for appearance in
       litigation/criminal proceedings, prevents inhumane separation of families
       (humanitarian reasons), and permits release pending adjudication of an
       inadmissibility case.

      V.         Removal
                              EWIs
                 Deportable
                              Admitees
Pre-1996

                 Excludable   Applicants for entry

                              EWIs


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Post-1996     Removal         Applicants
                              Admitees

      Pre-1996, situs mattered, after 1996, situs is irrelevant

    Removal – expulsion of an alien who has already been admitted to the U.S.
    Grounds for removal apply only after an alien has been inspected and admitted.
            o EWIs →inadmissible
    INA § 237(a)
            o Aliens who were inadmissible at time of entry or adjustment of status or
              have violated status
            o Aliens who have committed criminal offenses
            o Aliens who have failed to register or falsified documents
            o Aliens who were subject to security and related grounds
            o Aliens who have become a public charge
            o Aliens who have unlawfully voted.
    INS may remove an alien for conduct, which was not a ground for removal at the
       time the alien committed the act.
            o Removal for acts that weren‘t grounds for removal when committed
              doesn‘t violate the constitutional prohibition against ex post facto laws.
    In theory, removal is not a criminal punishment, but a civil proceeding to rid
       the U.S. of statutorily defined undesirables
            o Plenary Power – Congress can expel and remove aliens.
            o Harisiades. That Congress allows aliens to enter the U.S. is a matter of
              permission and tolerance. The government‘s power to terminate
              hospitality ha been asserted by this court since the question first arose.
            o Removal penalizes the alien, as it forces her/him to leave home, job,
              friends, and family. ―Removal may result in loss of both property and life;
              or all that makes life worth living.‖ -Ng Fung Ho (1922) In addition, a
              removed alien is barred for 5 years from entering the U.S. unless s/he
              obtains special permission to reenter. INA § 212.
Harisiades
    Facts. Greek national, been in U.S. since age 13. Joined Communist/Worker‘s
       Party. Party discontinued membership. He was ordered deported b/c had been a
       member of an organization which advocates overthrow of the gov‘t by force or
       violence.
    5th Amendment Claim. ―LPR = Cz, when it comes to remaining in the country.‖
            o Plenary Power Doctrine. Gov‘t‘s power to terminate hospitality. Weapon
              of defense & reprisal confirmed by international law as a power inherent
              in every sovereign state. Will defer to Congress.
    1 Amendment Claim. ―Joining an organization that advocates overthrowing
         st

       the gov‘t by force & violence is freedom of speech, press & assembly.‖
            o No. Freedom to advocate/promote Communism means by ballot box. It
              does not include the practice/incitement of violence.




                                             29
Harisiades (con.)
    Ex Post Facto Claim. 1920 law.
          o These aliens haven‘t been caught unaware by a change in the law.
    The U.S can deport LPRs for being members of the Communist Party at any time.
    Trujillo Note. [701] ―Bias‖ –everyone who comes here wants be a citizen
          o Trujillo says this is wrong. Not every who comes here is interested in
              the political advantages of being a citizen. Many come here to reap
              educational and economic benefits.

Murphy (in Bridges v. Wixon)
   Basic problem with rights held by non-citizens:
   Gov‘t precluded from enjoining/imprisoning an alien for exercising freedom of
     speech. However, the gov‘t is free to deport him for exercising that very same
     freedom. An alien would be fully clothed in constitutional rights when defending
     himself in a court of law, but would be stripped of those rights when deportation
     officials encircle him.
          o Alien CANNOT be enjoined from speaking, HOWEVER, CAN be
             deported for speaking.

American-Arab Anti-Discrimination Committee v. Reno (1999)
   Facts. INS wants to remove 8—2 LPRs & 6 NIVs who are members of the
      AADC/Popular Front for the Liberation of Palestine. Removal grounds
      established.
   Earlier Decision. (C. Dist. CA) Removal grounds held unconstitutional.
          o Harisiades used to apply 1st Amendment standard (citizens = noncitizens)
          o Shows the proposition describing noncitizen rights is convoluted
                   ―1st Amendment Covers All‖
                           Bridges
                           Harisiades
                           Earlier AADC decision
                   ―No 1st Amendment Rights‖
                           Harisiades
                           S. Ct. AADC decision
   ―Selective Enforcement‖
          o Scalia. A foreign national does not have a right to argue the INS‘s
              selective enforcement is triggered by the foreign national‘s exercise of the
              1st Amendment Right to Free Speech. ―All visa overstayers violate
              immigration law by their presence. We can only get at some of them. The
              reason we select them for removal is irrelevant b/c they are in ongoing
              violation of the law.‖




                                           30
   Counter-Arguments to Selective Enforcement.
       o Didn‘t say aliens have NO constitutional rights. Just said it wasn‘t
          unconstitutional to selectively enforce removal grounds.
       o S. Ct. did NOT grant cert. on selective enforcement. Scalia and the
          majority answered the ―selective enforcement‖ question even though the
          question was not briefed and argued! (Ginsburg & Souter dissents)

VI. USA Patriot Act
   Adds new grounds of inadmissibility for representatives of foreign terrorist
    organizations or any group that publicly endorses acts of terrorist activity, and
    spouses and children of aliens who are inadmissible on any of the terrorism-
    related grounds
   New unreviewable authority of Sec. of State to designate any group, foreign or
    domestic, as a terrorist organization
   Fundraising, solicitation for membership, or material support of groups that are
    designated terrorist organizations are removable offenses
        o Without regard to whether such activities were in furtherance of actual
            terrorist activity.
        o Together with broad definition of ‘terrorism,’ non-citizens who provide
            assistance (like paying membership dues) to groups like the WTO
            protesters, the Vieques protesters, PETA, could run the risk of detention
            and removal.
   AG can certify an alien as a terrorist if have reasonable grounds to believe and
    requires mandatory detention of a certified alien
        o Detention must be reviewed every 6 months and is allowed only upon a
            showing that ―the release of the alien will endanger the national security of
            the U.S. or the safety of the community or any person‖
   INS can detain a suspected terrorist alien for 7 days before bringing immigration
    or criminal charges.
        o Charges need not have anything to do with terrorism
        o Detention authority is based on vague and unspecified predictions of
            threats to the national security
        o Detention could be indefinite, if non-citizen is stateless, their country of
            origin refuses to accept them, or they are granted relief from deportation
            because they would be tortured if they were returned to their country of
            origin
   Provides habeas review of detention




                                          31
Issues:
     ―Voluntary Questioning‖ ~ Racial Profiling
         o If submit to the voluntary questioning, the discovery of an immigration
            violation could lead to detention without bond.
         o Perhaps ―no bond‖ proviso should be used only when the immigration
            violation calls to question the intent of the individual and is something
            other than a clear technical error, which could be either the fault of the
            individual, his school, or his employer.
     Expansive definition of terrorism:
         o Covers virtually any violent activity
         o Could ensnare many non-citizens who have done nothing wrong based on
            the basis of their political beliefs and associations.

VII. Bush‘s ―Military Order‖
Characteristics
   Provides for potentially indefinite detention of any non-citizen accused of
      terrorism, and permits trial of such defendants in a military commission with a
      provision purporting to preclude all judicial review.

Issues
     Exceeds the President‘s constitutional authority:
           o Issued without Congressional authorization and without a declaration of
               war (Congress has power via the War Clause)
           o The Military Order permits indefinite detention of non-citizens suspected
               of terrorism with no provision for recourse to the courts, a power that the
               Administration sought, but was denied, by Congress in the USA Patriot
               Act. The act requires that non-citizens suspected of terrorism be charged
               with a crime or grounds for removal form the country within 7 days of
               being detained. It expressly permits judicial review of the detention by
               habeas corpus. The President‘s action is directly contrary to Congress‘s
               own considered view of the subject.
     Overly broad scope
           o Applies far beyond a narrow class of Al Qaeda.
           o Applies retroactively
           o No time limit
     Regular courts have so far proven successful in prosecuting terrorism cases
           o Special statutes and rules exist to protect national security and to address
               other challenges of terrorism cases, like preserving the safety of jurors and
               witnesses.
           o Successful prosecution of terrorists in the past (original WTC bombing,
               NYC tunnel plot, U.S. embassies bombing in Africa)
     Military tribunals, if authorized by Congress, may only be used constitutionally
       against clear identified ―unlawful enemy belligerents‖ (much narrower than ―all
       persons accused of terrorism crimes‖)


                                            32
 Military tribunals, if authorized by Congress, must comply with basic
  international and constitutional due process standards.
      o Zadvydas – the Due Process Clause applies to all persons within the U.S.,
          including aliens, whether their presence here is lawful, unlawful,
          temporary, or permanent.
      o This has complicated efforts to extradite suspected terrorists from Spain
          and other European countries




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