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									                                   Immigration Law

Jay Leiderman
Professor: Judge Keener
Fall 1998


A. Historical Overview
       Legal Principals of Immigration Law:
              The right to exclude
              Due Process
       3 major themes:
              foreigners taking American jobs v. need for cheap labor
              family reunification
              “Land of the free”

1952 Act (McCaren-Walter) the INA or the “Act”
Established quotas for certain countries
       discriminated against many asians
       no restrictions for Western Hemisphere

1965 Amendments to deal with racial prejudice
Abolished nation of origin distinctions
divided into Eastern and Western hemispheres w/ quotas for each
       - cut legal immigration from Mexico in half
set up a preference/priority system for certain family relations and workers
created seven numerical categories

1978 Act
Cut out hemisphere division, per country limit
All countries in the world treated the same
established world wide ceilings

1980 Refugee Act
adopted the UN commission definition of what a refugee is
refugees are still numerically limited
1st time refugees were distinguished from other immigrants

1986 Act
Immigration Reform and Control Act (IRCA) - -
      employer sanctions for unauthorized employment
      broad legalization/ amnesty (amnesty was for 7 yrs)
Immigration marriage Fraud Act (IMFA) - -

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                                   Immigration Law

       see Marriage section of family based visas
1988 Act
Anti Drug Abuse Act
       - - set up ag. Felon categories
       comes down hard on anyone with a criminal conviction

1990 Act
Broad revisions of 1952 act without discarding the whole act
      - set up EB and FB visas
      - changes for immigrants with criminal convictions
      - big changes for legal immigrants

1991 Act
Misc. and technical act ?

1996 Act
AEDPA (Anti Effective Death Penalty Act)
      - rewrites immigration law without consulting immigration courts
      - takes away the ability for long term residents to get a criminal waiver
      - rights to certain removal hearings taken away - - now admin. hearing with INS
      - bars USC children of illegal immigrants from public education
      - restrictions on LPR’s placing immigration bonds
      - problem with effective date of 10/1/96 because IIRIRA was passed before 10/1
and changed some of the provisions of AEDPA before they were even effective

IIRIRA (Illegal Immigrant Re - - - and Immigrant Responsibility Act)
      - passed in 1996 effective date 4/1/97
      - made criminal convictions fatal to residence status

11/19/1997 Act
NICARA = Nicaraguan and Central American Relief Act
      created relaxed grounds for suspension of deportation and cancellation of

B. Statutory Scheme
      Congress enacts laws / USDOJ enforces them
      Executive Branch Agency (Under USDOJ)
      Congress’ power is “plenary and unqualified” Fialo v. Bell
             Look to :
                      National security issues
                      Foreign policy
      Executive Branch enforces congress’ laws under INS even though there is no
inherent authority to do so

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                                   Immigration Law

      Immigration courts are considered Civil Proceedings
      States are preempted from the field of Immigration
      Two big and bad laws:
             AEDPA = Anti Effective Death Penalty Act
             IIRIRA = Illegal Immigration Reform act and Immigrant Responsibility Act

C. Relevant terms
      Classes of Persons
             1. USC’s (United States Citizens)
             2. non-citizens (aliens)
             Lawful Immigrants
                     LPR’s (Lawful Permanent Residents) - can work, live, etc. lawfully
                     CPR’s (Conditional PR’s) - ex: 2 yr requirement on marriages
                           Marriage Visas and Business Investors (EB 5)
             Nonimmigrants (temporary visa holders)
             Undocumented Persons (illegal aliens)
             Inadmissible Persons
             Persons in deportation / removal proceedings
             Excludable Persons
      Burdens of proof
             clear and convincing
             clear, convincing and unequivocal
             beyond a reasonable doubt
      Motion to reconsider / Motion to reopen / Appeal

D. The Administrative Structure
                          /           \
      Attorney General / USDOJ Department of State - Visas
        /            \                Department of Labor - Work Visas
      INS            EOIR             Health & Human Services - Health Threats, etc
                  /    |    \
                IJ’s BIA OCAHO
           Trial Ct.-Appeal-Sanctions

EOIR = Executive Office for Immigration Review
BIA = Board of Immigration Appeals
OCAHO = Office of Chief Administrative Hearing Officer (Employer Sanctions)
             Trial level work dealing with employer sanctions
             created by 1986 sanction act

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                                   Immigration Law


An Immigrant is a person seeking to reside permanently in the US
Immigrant Visa Holders - either LPR’s or Green Card Holders
Adjustment of Status is an application for a permanent visa
USC’s with foreign-born family are treated differently than LPR’s with the same
2 types of Immigrant Visas:
       1. Numerically Unlimited
             a. Immediate family
             b. “Special Immigrants”
                    Worked for US gov’t abroad
                    Employees of Panama Canal Co.
                    Returning LPR’s
                    Employees of US Consul General in Hong Kong
                    Employees of Int’l Organization (ex: UN?)
       2. Numerically Limited
             a. Family Based
             b. Employment Based
             c. Diversity and Transition (See Silva v. Bell)

A. The Preference and Quota System

1990 Act divided the qupta system into two types
      Family Based (FB)
      Employment Based (EB)
Ranks Countries and family hierarchies
Visa Number Availability is determined by congress year to year -

             Silva v. Bell
             f: Visas were miscounted for eight years and Cuba got more visas
             Ct: Countries that were not chronically backlogged got the benefit and the
people from those countries were permitted to stay in the US during the litigation
             NB: Diversity and Transition category of numerically limited visas

family members (other than husbands and wives and wives) who can legally emigrate
to the US:

Unlimited Numbers
            1. “Immediate family members”
                   NOT FB VISA HOLDERS

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                                   Immigration Law

                      §101(a) definitions
       Immediate relative = Spouse, Parent or Child of a USC; largest # of numerically
       petitioner = Legal Person with status (LPR/USC); must be 21 to petition for your
parents to enter
       beneficiary = nonimmigrant visa holder and undocumented persons
       child = under 21 and unmarried
       unmarried = single, divorced or widowed
       brother/sister = look for distinctions between step and adopted, but no real hard
and fast definition in the statute.

             2. “special Immigrants” - Unlimited, see above for ex.

Limited Numbers
All other immigrants are Limited - all other people are subject to the quota system
Before 1990 IR’s did not affect the quota, now they do
Congress fixes the overall number each year
Quota is the same for each country of origin
       - 25,000 per country / year
       - there are some countries that are counted as dependants and are further
limited ex: Hong Kong
       - some countries do not reach the 25K mark; those are not transferable

Visas are charged to the country of the applicant’s birth and not citizenship except:
       1.Derivatives: charged to the principal beneficiaries’ country
       2. Cross-chargeability: if you have a family with mixed chargeability you can use
       either country of birth.
This is important because some countries have backlogs and others do not
       3. On-Vacation Birth - Issue: Does the child who is born outside his parents
country of residence get to charge his visa to the country of birth? - - Answer: Must
have a nexus to the counrty.

B. Family reunification categories
In Order of Preference
FB1. Unmarried Sons and Daughters of USC’s (23,000/yr) Single children or derivatives
      over 21 yrs old
FB2. Spouses and Unmarried Sons and Daughters (114,000+/yr)
      A. Spouse and Minor Child/under 21 yrs (77%)
      B. Spouse and other Sons and Daughters (adults)/over 21 yrs (23%)
FB3. Married Sons and Daughters of USC’s (23,400+/yr)
FB4. Brothers and Sisters of USC’s (65,000+/yr)

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                                     Immigration Law

+ refers to the fact that each lower category can get the left-over visas from the above
categories (ex: FB2 can get unused FB1 and so on)

Classes of People Who Are Denied Immediate Family Visas
LPR’s parents, married children, siblings, grandparents
USC’s grandparents

       1. Constitutional Issues

This area is like rational basis review in Con Law but nowhere is Congress’ power more
“plenary and unqualified” than it is in the area of Immigration

       Fialo v. Bell US Sup Ct 1977
       F: Natural father/USC petitioning for child - - fathers were accorded different
status than mothers & were not allowed to petition for their illegitimate children.
       I: Does Congress have the right to distinguish between the rights of a mother
and a father where it comes to illegitimate foreign born children of USC’s?
       Ct: 1. Laws can stand if they are facially legitimate and have a good reason. 2.
there is limited judicial review in the field of immigration; Here, the court found that proof
problems were high in the area of “close family ties” and said that the determinations as
to what was sufficient should be left up to congress.
       N.B.: the law changed after this case and the illegitimate/legitimate distinction
was modified to born in/out of wedlock. Still a disparity depending upon whether
mom/dad sponsors. Father must still show a bona fide association with the child,
mother need not do so.

       2. Children
       “Child” = under 21 and unmarried
       “Son/Daughter” = over 21 or under 21 and married

       Derivative - spouse or child of beneficiary can sometimes come depending upon
the status of their relative
       There is no derivative if another category exists
       FB 2,3,4 can have derivatives
               ex: spouse of LPR who has kids from a previous marriage
       derivatives are charged to the country of the principal beneficiary
       Immediate relatives can have no derivatives - the idea is that the beneficiaries
can enter under FB1/FB2

                   a. Adopted Children
- Under 16 when adopted and 2 years physical custody and 2 years of legal custody
(need not be concurrent)
- Not counted against quota

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                                     Immigration Law

 must be recognized in the country it was effected and contain all of the rights and

        Matter of Paleli BIA 1979
        F: Beneficiary was legitimate but was given to uncle & then cousin
        Ct: 1. to qualify as a “daughter” you must first be a child. 2. Adoption must be
legally valid. 3. For adoption to be valid look to the law of the country where the
adoption took place; 4. In the absence of a showing that the “customary adoption” was
a lawful adoption the US court saw it as unlawful

       Matter of Garcia-Rodriguez BIA 1978
       F: petitioner USC had adopted a child in Mexico. Ct found that the adoption was
       Ct: 1. Petitioner must establish that the adoption was lawful under controlling
foreign law; 2. look at face of foreign statute; 3. Petition was denied because adoption
was unlawful under Mexican law - - petitioner had living children and only people
without living children are permitted to lawfully adopt

       16 is now the age that a child must be legally adopted by
       For immigration purposes the only parents that matter are the adoptive parents

                    b. Stepchildren
under 18 at the time the marriage took place
Not counted against quota
Can be born out of wedlock
Unmarried = single, divorced, widowed

         Matter of McMillan        BIA 1981
         F: Children’s Father adopted kids when they were 18. Father had no custody.
         Ct: By regulation or decision an agency cannot require additional things . . . so . .
. all that needed to happen here is that the father married the mother while the children
were still legally children. 1. Persons who become stepchildren through the marriage of
a natural parent prior to their eighteenth birthday are entitled to a visa preference as a
class; 2. the beneficiaries in this case, who were illegitimate children of the petitioner’s
husband did qualify for the benefit because kids were under 18 at the time of the
parents marriage.
         NB: once you meet the requirements of adopted child/stepchild you become a

       Matter of Morieira        BIA 1980
       1. In order to show a steprelationship under the INA there must be a showing
that the stepparent engaged in an active parental concern for the stepchild before their

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                                    Immigration Law

eighteenth birthday
        2. marriage shortly before eighteenth birthday was suspicious to INS
        3. Bona fide marriage is good evidence of a genuine familial bond
        4. Some evidence of genuine familial bond was required to establish a
steprelationship for immigration purposes, even though a “close family relationship”
need not be shown
        5. The fact that the petitioner knew of the beneficiary for a year, sent her money,
petitioner was willing to accept beneficiary as his own child was sufficient despite the
fact the marriage occurred only four months before the beneficiaries 18th b-day
        6. Burden of Proof on petitioner

              c. Orphans

- Under 16 at time of petition
- must be due to death, disappearance, sole surviving parent unable to care for child,

       3. Spouses
       - “defined by implication”
       - marriages that are not recognized:
                - unconsummated “proxy” marriages
                - polygamist marriages, bigamist marriages
                - no mail order marriages (or divorces)
                - same sex marriages
       - marriage must be legal in the place it was consummated & recognized by US
Immigration Law
                - must be bona fide at the time it was entered into
                - former marriages dissolved
                - voidable marriages not ok
                - void marriages not ok
                - marriages against public policy not ok
                - can’t be a sham marriage - a marriage where people did not intend to
build a life together
                - congress cannot require cohabitation or consummation
       - Automatic revocation of petition:
                - if spouse dies while petition is pending
                - battered spouses or children
                - divorce
       - Can’t be a sham divorce -
                - if you are the married son/daughter of a LPR and you get divorced for
the sole purpose of getting INS status

       Matter of McKee        BIA 1980

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                                    Immigration Law

        F: 25 yr old USC marries 25 yr old Australian; marriage was “separated” by the
time the petition came up. Petition denied
        I: can the INS deny a petition on these grounds?
        Ct: Distinguished between sham marriage and non-viable marriage. Non-viable
is ok. INS cannot challenge the viability of a marriage. Separation is ok, however a
legal termination will lead to a denial of the petition. Separation can be used to discern
whether or not it is a sham marriage. Cannot deny a petition just because the parties
are not residing together.

       Immigration Marriage Fraud Act (1986)
       Made a 2 year rule for permanent residence status. Beneficiary gets “conditional
residence status” (CPR) & is subject to the condition subsequent of remaining married
for 2 years
       INS can move to terminate conditional status if: sham, annulled, dissolved
(except for good cause ex: spouse was physically abused)
       Condition can be removed: within 90 days of two years of marriage both spouses
must file a joint petition to remove the condition
       waiver of timely filing for spouse outside US in the military
       basic point of this is that the INS wants one last chance to see if the marriage is
bona fide
       failure to file joint petition can lead to removal proceedings UNLESS: spouse
dies, good cause, marriage was bona fide but is no longer, removal would cause
extreme hardship/good cause, spousal/child battery
       1990 exception made if spouse dies but - - spouse must apply for LPR w/in 2 yrs
of death, cannot remarry, no derivative beneficiaries allowed
       burden is preponderance on the INS
       criminal penalty - 5 yrs jail, 250K fine - - potential charges: fraud, false
statements, visa fraud
       INS uses personal interviews to see if marriage is bona fide (see handout)
       If one spouse is in removal proceedings while still on CPR status and failed to
get condition removed, INS only needs to show marriage not bona fide by a

       Matter of Antetekhai         5th Cir. 1989
       F: Alien and citizen challenged 2 yr residency requirement for aliens who marry
USC’s while in removal proceedings
       Ct: 1. USC’s have no constitutional right to have alien spouse remain in US; 2.
statute does not violate due process or equal pro; 3. Alien’s review was limited to the
application of the statute; 4. The statute did not affect the legal status of the parties’
       NB: after this case the law was changed; standard of proof is now clear and
convincing - - marrying someone while they are in deportation proceedings is no longer
an outright bar to them remaining in the US

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                                    Immigration Law

       Matter of Patel      BIA 1988
       F: Sets forth a rebuttable presumption that marriages of less than five years that
appear fraudulent are in fact fraudulent
       Ct: Found that the evidence submitted did rebut the presumption in this case; the
court improperly weighed the evidence because it presumed the evidence was false.
       NB: Atty in this case filed three things:
              1. Appeal - decision was wrong on the law
              2. Motion to reopen - requires new and previously unavailable evidence or
that the law has changed
              3. Motion to reconsider - please look at this again

Process of Application
1. Visa petition -
       must show petitioner/sponsor is a lawful USC or LPR and has proper relationship
       INS has the power to adjudicate the petition
       jurisdiction is proper where the petitioner resides
       Burden of proof is on petitioner
       beneficiary can be anywhere including illegally in US
       cannot use visa petition to circumvent the quota
       most of the time INS can adjudicate the petition with paperwork alone (except for

2. Sent to consulate in country where beneficiary resides
       - must not be on inadmissible list
       - consulate examines beneficiary to see if they are desirable
       - “adjustment of status” is what is applied for
       - no judicial review for consular denial of visa (but applicant has one year to cure
defect without losing priority date); can ask for an advisory opinion for a denial based
upon a question of law; no review of fact based denial

An approved petition is automatically revoked by divorce or death (except stepchildren)
Pending petitions can be withdrawn

C. Employment Based Visas

        1. 5 different Employment Based Categories (140,000 visas/yr)
Priority -
        EB1- priority workers - persons of extraordinary ability (40,000 visas/yr)
        EB2- professionals and persons of “exceptional ability” (40,000/yr)
        EB3- skilled workers, professionals and other workers (40,000/yr)
        EB4- special immigrants and religious workers (10,000/yr)

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                                      Immigration Law

        EB5- employment creation/investors (10,000/yr)
Priority date for beneficiary is the date of filing by the petitioner

              a. Priority Workers
              NO LABOR CERT NEEDED
                      1. Workers with extraordinary ability
                              Intended for a small # who are the tops in their field
                              No employer sponsorship needed
- Extraordinary ability in the arts, sciences, education, business, athletics
Demonstrated by substantial national or international acclaim
Recognized in the field through extensive documentation
- Seeks to enter the US to continue work in their field of specialty
- Entry into US will substantially benefit US

                     2. Outstanding Professors and Researchers
                            Requires employer sponsorship
                            Must be at a high academic level
- recognized internationally as outstanding in a specific academic area
- has at least 3 years experience in that academic area
- seeks to enter US in tenure/tenure track position and teach comparable topic or
conduct research
                     3. Certain Multinational Executives and Managers
                            Requires Employer Sponsorship

                 b. Members of the Professions Holding Advanced Degrees or of
Exceptional Ability
         - Requires labor certification and employer sponsorship
         - for qualified immigrants who are members of the profession holding advanced
degrees or their equivalent or who because of their exceptional (but not extraordinary)
ability in the above noted areas will benefit the US and whose services are sought by
an employer in the US
         - employer requirement can be waived if it is in the national interest; waived by
AG along with labor cert
         - to constitute exceptional ability a degree is not enough evidence
         - advanced degree = bachelors and 5 yrs experience
         - foreign medical graduates are the exception - US does not like foreign doctors

             c. Skilled Workers, Professionals, and Other Workers
       - Requires Labor Certification
                    1. Professionals
                    - qualified immigrants who hold BA’s and are professionals

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                                   Immigration Law

                      - there are credential evaluation services to determine the
equivalent of the level of experience and training
                      - salary is one factor to consider but is not dispositive
        Professionals: architects, engineers
        Not Prof’s:     Translators, medical technologists
                      2. Skilled Workers
                      - qualified immigrants who are capable of performing skilled labor
(requiring at least two years training or experience), not of temporary or seasonal
nature, for which qualified workers are not available in the US.
                      3. Other Workers
                      - no more than 10,000
                      - all other workers
                      - other qualified immigrants who are capable of performing
unskilled labor not of a temporary or seasonal nature for which qualified workers are not
available in the US

            d. Certain Special Immigrants
      See discussion in Quota system above
      Not counted against the quota

               e. Investors/Employment Creation
       Qualified immigrants seeking to enter the US for the purpose of engaging in a
new commercial enterprise
       Alien is granted CPR status
       Condition is removed after two years if they actually engage in the business and
create the employment they said they would
       Same removal of condition procedures as marriage
                      1. Targeted Areas
                      - 3,000 visas set aside for these areas
                      - rural area/ less than 25,000 pop.
                      - 1.5 times the unemployment rate
                      - Alien must invest $ 500K
                      - benefit economy and create 10 jobs
                      2. Non-Targeted Areas
                      - Alien must invest $ 1M
                      - In areas with low unemployment Alien must invest $ 3M
                      - And benefit the US economy and employ not less than 10 USC’s/
LPR’s not counting the investor and their family

      2. The labor certification requirement
      1. need US workers that are not able, willing, or certified
      2. won’t affect the wages and working conditions of US workers

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                                    Immigration Law

- must fill out proper form to certify an alien
       - list specific qualifications
       - job requirements can’t be unduly restrictive (so as to make the applicant the
only one on earth who can do the job)
       - can’t pay too little
       - must ADVERTISE the position
                - for 3 days in a large circulation newspaper
                - must specify qualifications, conditions, compensation
                - responses come to the state employment office and then the employer
                must show why US workers don’t fit their needs
BALCA (Bureau of Alien Labor Certification Appeals) can or may:
       1. overturn and order certification
       2. confirm a denial
       3. Hold an evidentiary hearing
       4. Remand to ________
Next step is an appeal to district ct.

Schedule A
- Archaic system of dispersing visas based upon the need for certain professions - - still
exists because certain professions still need workers
- workers are pre-certified

Schedule B
- Opposite of Schedule A, some professions are barred from getting visas at all
because there is a surplus of US workers
- certification will not be granted
         waivers granted if:
                1. can show that workers are needed in a specific geographic area
                2. language requirement needed for particular job

1990 Act
FB visas no longer require labor cert as long as they will not become a “public charge”

LABOR CERT IS NOT WORK AUTHORIZATION must still have the visa from the INS

Production Tool Co v. Dept. Of Labor 7th Cir. 1982
F:denial of applications for labor cert
Ct: 1. Employer must unsuccessfully advertise job; 2. Neighborhood newspaper with
circulation of 92,000 in limited area of the city was not sufficient advertisement

Pancho Villa Rest. v. Dept of Labor         2d Cir. 1986
F: denial of application
Ct: falied to establish that the restaurant could not train a cook in Mexican cooking as

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                                    Immigration Law

opposed to just hiring a Mexican.

Industrial Graphics v. Donovan 7th Cir. 1983
F: denial of labor cert
Ct: 1. Secy of Labor had authority to use prevailing wage standard to determine if
alien’s employment would adversely affect wages and working conditions of American
workers; 2. employer did not post job internally at prevailing wage, did not post job with
employment service, did not document results of it’s labor search.
NB: this case explains the theory behind DOL regulations/policies

       3. Adjustment of Status

Adjustment is a privilege
Must have entered the US legally/with inspection
must have good standing/status
cannot have engaged in unauthorized employment
cannot fall under any ground of inadmissibility
statutory eligibility alone does not mandate the favorable exercise of discretion

From 1994 - 1997 there was a provision that allowed for payment of a “penalty fee” (5x
the amount + filing fees) to have EWI waived, unauth employment waived, applicant did
not need to be “in status”

              a. Unauthorized Employment

Matter of Lam        BIA 1978
The fact that a labor certification depends upon qualifying experience gained through
unauthorized employment in the United States would not in itself justify refusal to grant
adjustment of status in the exercise of discretion, where the employment has been
determined to be of potential benefit to the United States because of a shortage of
United States workers.

Matter of Raol         BIA 1978
(1) Motion to reopen deportation proceedings to apply for adjustment of status was
properly denied by the immigration judge on the ground that the respondent was
precluded from that relief under the "unauthorized employment" proviso.
(2) A labor certification issued on behalf of the Secretary of Labor does not operate to
authorize one's employment until visa is granted by the INS.
(3)An alien's employment is unauthorized when it has not been approved by the
Immigration and Naturalization Service.
(4) Reinstatement of voluntary departure found warranted by Board in order to facilitate
the respondent's return to this country as an immigrant where sixth- preference visa
petition has been approved and a visa is awaiting the respondent abroad.

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                                    Immigration Law

Matter of Hall
F: Visa overstay
Ct: By working at a church the applicant had engaged in “unauthorized employment”

               b. INS’s discretion in rejecting work-certified people
Madany v. Smith         DC Cir 1983
F: Alien appealed from a decision upholding the denial of her third preference visa
classification petition by the INS.
Ct: Affirmed. (1) labor certification determinations of Department of Labor, pursuant to
authority granted by Immigration and Naturalization Act, are not subject to review by
INS absent fraud or willful misrepresentation, but all matters relating to preference
classification eligibility not expressly delegated to Department remain within INS's
authority; (2) it was not abuse of discretion for INS to require that alien show some
likelihood of eventually passing nursing license exam; (3) INS could not rely on low
passing rate of foreign nurse candidates in general as basis for rejecting alien's petition
once preliminary showing was made; and (4) given absence of evidence tending to
support alien's assertion of present ability to pass exam, INS did not abuse its
discretion by denying her petition.

              c. AOS after illegal entry
Matter of Areguillin          BIA 1980
(1) An alien who physically presents herself for questioning and makes no knowing
false claim to citizenship is "inspected" even though she volunteers no information and
is asked no questions by the immigration authorities, and has satisfied the "inspection
and admission" requirement.
(2) "Admission" occurs when the inspecting officer communicates to the applicant that
he has determined that the applicant is not inadmissible. That communication has
taken place when the inspector permits the applicant to pass through the port of entry.
(3) The respondent bears the burden of proving that she in fact presented herself for
inspection as an element of establishing eligibility for adjustment of status.
(4) Where no finding was made below as to credibility and sufficiency of evidence
supporting respondent's claim that she was a passenger in a car permitted to proceed
into the United States after the driver alone had been questioned by the inspecting
officer, and hence inspected and admitted within the contemplation of the law, Board
remanded case to immigration judge.

              d. Authority of IJ
Matter of Cavazos          BIA 1980
(1) While an Immigration and Naturalization Service Operations Instruction binds
neither an immigration judge nor the Board, the Service policy manifest therein may
appropriately be considered by the immigration judge and the Board in exercising
(2) Notwithstanding evidence establishing preconceived intent, an application for

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                                    Immigration Law

adjustment of status should as a general rule be granted in the exercise of discretion in
the case of an immediate relative or other specified alien who could be granted
voluntary departure until invited to appear before a United States consul to apply for an
immigrant visa.
(3) Where a finding of preconceived intent was the only negative factor cited by the
immigration judge in denying the respondent's application for adjustment of status as
the beneficiary of an approved immediate relative visa petition and no additional
adverse matters are apparent in the record, and where significant equities are
presented by the respondent's United States citizen wife and child, a grant of
adjustment of status is warranted as a matter of discretion.

                e. Change Of Status (COS)
Matter of Kotte        BIA 1978
F: Immig came as student, worked, then applied for employment based admission
CT: (1) Where a visa petition, filed prior to the commencement of deportation
proceedings, to accord the respondent third-preference status, had not been approved
at the time of the deportation hearing, the Board of Immigration Appeals concluded that
the immigration judge was not required to continue deportation proceedings pending
adjudication of respondent's visa petition by the District Director. NB: on the other
hand, the IJ does not have to grant the continuance.
(2) In deciding that the respondent did not possess an approved visa petition
and that, therefore, he was statutorily ineligible for adjustment of status, the Board of
Immigration Appeals concluded that neither it nor the immigration judge had authority to
determine the respondent's qualifications for third-preference status and that jurisdiction
in this matter rested solely with the District Director and Regional Commissioner.
(3) Notwithstanding the amendment making adjustment of status contingent upon the
availability of a visa on the date of filing rather than on the date of approval of an
application, there is no absolute right to a continuance of the deportation hearing, at
which adjustment is sought, to a date after the District Director has adjudicated a
pending third-preference visa petition.

                f. Alien can remain in the country pending a motion to reopen
Matter of Garcia       BIA 1978
(1) Rule that reopening of proceedings will be denied absent a prima facie showing that
the statutory requirements for relief have been met must be reexamined as to
adjustment of status in view of the amendment permitting an adjustment application,
filed with a visa petition, to be retained if later approval of the petition would make a
visa available at time of filing.
(2) Service policy permits a prima facie qualified beneficiary of a visa petition to remain
in the United States pending final adjudication of the petition and an adjustment
(3) Unless clear ineligibility is apparent in the record, the Board shall generally grant
motions to reopen in cases involving an application for adjustment of status filed

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                                      Immigration Law

simultaneously with a visa petition, notwithstanding the fact that the petition has not yet
been adjudicated.
(4) An immigration judge may, in his discretion, grant a motion to reopen or a request
for a continuance of a deportation hearing pending final adjudication of a visa petition
filed simultaneously with an adjustment application where a prima facie approvable visa
petition and adjustment application have been submitted to him.
NB: Matter of Kotte clarified

          4. Employer Sanctions
- It is illegal to knowingly hire, fail to fire, refer or recruit for a fee someone who is
unauthorized for employment
- Prior to 1986 there were no penalties available
- Not all people are authorized to work
- When you apply to change status you may not work until the change in status is
- Hiring = the commencement of work for renumeration
- must be an “employee” and not an “independent contractor” or a “casual hire”
- “casual hires” refer only to domestic employees
- Employer must obtain both ID and work cert. I-9 form
- INS must have specific and articulable facts to begin an investigation
- Good faith is not a defense to a paperwork violation
          - it is an affirmative defense to the sanction

Mester Mfg. v. INS
F: co. was fined for not firing illegal w/in 2 wks.
Ct: upheld fine. 2 Wks is reasonable time. INS must show employer knowledge by a
preponderance. Fines do not violate due process.


- There is a presumption that the immigrant entering the US intends to stay - - heavy
burden on the nonimmigrant
- The burden is on the immigrant to show that they qualify for the class
       Factors to show non-immigrant intent
               job in home country
               home/property they do not intend to abandon
               bank account
               family ties
- 8-10 million nonimmigrants enter the US annually
- Must be inspected and admitted in a particular category
- Since 1990 there have been restrictions on nonimmigrant visas
- Must show your intent is to stay temporarily

                                         Page 17 of 54
                                   Immigration Law

- “Dual Intent” - for H visa holders (professional workers) & L visa holders
        - these people can intend to preform specific projects and then intend to stay as
- Undesirables can’t get a nonimmigrant visa either (except for certain workers)
- No judicial review
- INS has broad discretion
- US has treaties with countries about “how many & how long”
- Visa exemptions -
        - ex: Canadian citizens, Mexicans with border crossing cards
- Waiver Pilot Program -
        - low fraud countries, visitors for less than 90 days, have return ticket, no
        grounds of inadmissibility - - can just show passport
        - cannot adjust status
- I-94 Form - arrival/departure form that governs the length of the stay (not the visa)
- Extension of Nonimmigrant status (EOS) -
        - must file on time
        - must give reason / documentation?
        - valid passport
        - no appeal of denial
    - can stay for 6 months after I-94 expires if you have a valid passport
- Adjustment of Status (AOS) -
        - from nonimmigrant status to immigrant ststus
- Change of status (COS) -
        - changes type of status
        - ex: student wants to stay and work
- Maintenance of status must be good, timely, no unauthorized employment

3 Procedural classes:
      1. go straight to consulate
      2. go to consulate but need supporting documents
             H,K,L,O,P, maybe R
      3. Go to the INS and apply

Lun Kwai Tsui v. Attorney General
F: Wanted to go to Virginia, applied for admission to school after six weeks in the US
INS: 1. Denied Change of Status because they intended to be students the whole time
2. Denied change of status because they were not bona fide in the first place
Ct: affirmed/upheld

Business Visas
19 Categories (A-S)

                                      Page 18 of 54
                                    Immigration Law

Students = F,M,J,H-3
Business and Personnel = H,L,E,I,O,P,Q,R
       look for ways to get someone in in several different categories

B. Visitors
       Temp. Visitors = 80%
       B1 = Business Visitors
       - coming to engage in commercial transaction not involving gainful employment
       - conducting business, attending conferences, etc.
       - must be on behalf of foreign employer
       - can be admitted for training and provided with room, board, and expenses, but
salary must be paid by foreign employer
       B2 = Visitors for Pleasure
       - can’t work
       - must show a foreign residence with no intention of abandoning
       - must show they are visiting for pleasure
       - must have sufficient funds for self support while in the US
C. Transit
D. Crewman
E. Treaty Traders or Investors
       - does not require unabandoned foreign residence
       - initially granted for one year with 2 yr extensions (may remain indefinitely)
       - trader -
                 - solely to carry on substantial (numerical volume/frequency) trade b/tw
US and treaty country
                 - exchange goods or $, international banking, tourism
                 - company must be at least 51% owned by treaty nation - - if individual
they must have that nationality
       - investor -
                 - solely to develop and direct the operation of an investment in which the
investor has a substantial amount of capital
                 - legally enforceable commitment to invest
                 - stocks/real estate do not qualify
                 - no $ amount specified
                 - commercial enterprise
                 - cannot invest a small amount of capital solely to earn a living
F. Students
       F1 = Academic Students
       - must have school authorization
       - must be proficient in English or coming to study English

                                       Page 19 of 54
                                    Immigration Law

      - must be able to pay for education
      - must attend their approved school
      - must take full course of study
      - restrictions on work - - some types OK
      - substantial violation if transfer without approval or engage in unauthorized work
H. Temporary Workers
       H1-A = Nurses
       H1-B = Specialty Occupations/Professions
       - limited by 1990 act
       - 65,000/yr. - - derivatives (H4) not counted toward cap
       - issued in order of filing
       - do not need to maintain a foreign residence
       - Attestation requirement -
                Employer swears that the conditions are met instead of labor cert.
                Does not need to state that qualified workers are unavailable
       - defined as an occupation that requires the theoretical and practical application
of a body of highly specialized knowledge and the attainment of a bachelors degree or
higher is the requirement for the minimum entry
       - case law says actual degree may not be required as long as the alien can
demonstrate practical ability commensurate with the degree (case said 20 yrs exp)
       H2-B. Any Other Work of a Temporary Nature
       - temporary labor cert
       - perm labor cert not available
       - skilled or unskilled workers
       - limited to 66,000/yr
       H3. Trainees
       - temp worker coming in for training
       - training not available in the home country
       - medical training statutorily excluded
       - incidental employment OK, productive employment not OK
I. Other Nonimmigrant Visas
J. Exchange Visitors
       - mostly students
       - exchange programs sponsored by foreign governments
       - 2-year foreign residency requirement
K. Finance
L. Intra-company Transferees
       - must be entering temporarily in Mgr/exec position
       - specialized knowledge - - skills not readily available on the market, must be
unique to the field / management
       - initial petition for three years w/2 yr extensions.

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                                   Immigration Law

               - 7 yrs max for management
               - 5 yrs max for specialized knowledge
       - like EB1
       - blanket petitions for visas
               - 3 or more branches / subsidiaries
               - $25M combined sales
               - at least 1,000 workers
               - at least 10 “L” Petitions / year
M. Students
       M1 = Vocational Students
       - vocational trade/non-academic institutions
       - need authorized school/full course of instruction/adequate funds/nonimmigrant
       - need permission to transfer
       - derivatives possible
O. Extraordinary Ability in the Arts and Sciences
P. Athletes and Performing Artists
Q. International Cultural Exchange
R. Religious Organizations


        Deportation = for people who have already entered (legally or illegally)
        Exclusion = for people who have been denied entry at an airport or a land border
or the functional equivalent
        Entry = any coming of an alien, whether voluntary or otherwise, except that an
alien having LPR shall not be regarded as making an entry

      Removal = both deportation and exclusion
           INS burden to show by clear and convincing evidence that the alien is

A. Inadmissibility Grounds and Procedures
      What are the rights of an Alien with respect to detention and summary removal

      1. Power to expel

                                     Page 21 of 54
                                    Immigration Law

Applies to anyone but USC’s - including illegals, LPR’s and Visa Holders
IIRIRA changed “deportation” to “removal”

The Chinese Exclusion Case         US Sup Ct 1889
Congress’ power to exclude is plenary and they can exclude from any country for any
reason congress deems sufficient.
NB: this case also has a treaty issue

      2. Exclusion Procedure
The old removal procedure is like the current summary removal

Shaughnessy v. Mezei          US Sup Ct 1953
F: Alien held at Ellis Island for a long time
I: How long can an individual be detained before being deported?
Ct: 1. To admit an individual who is inadmissible on public safety grounds defeats the
purpose of the law; 2. Mezei & all others in exclusion proceedings are not entitled to
bail; 3. You can be excluded on confidential information if it could be prejudicial to the
safety of the US.
NB: Affirms congress’ plenary authority in the area of exclusion

Plenary Exclusion - right to council, record made, can present evidence, rt to appeal
Summary Exclusion - brief Q&A, written statements, no hearing

Rafeedie v. INS        Dist Ct. DC 1992
F: Gov’t thought he was meeting with the PLO
I: Does he get plenary or summary exclusion?
Ct: Must do a due process analysis:
        1. look at private interest
        2. look at what procedural safeguards would provide
        3. Look at government interest including $
(1) application of summary exclusion provisions to permanent resident alien who
allegedly attended meeting of terrorist group while on trip abroad violated due process;
(2) statute permitting INS to exclude alien if alien advocates or teaches one of several
prescribed political doctrines was overbroad in violation of First Amendment; and (3)
statute permitting exclusion of aliens on basis of activities INS believes would be
prejudicial to public interest or endanger welfare, safety or security of United States was
unconstitutionally vague.
NB: Freedom of speech was implicated

Landon v. Plasencia            US Sup Ct 1982
F:Alien filed petition for writ of habeas corpus, seeking release from Immigration and
Naturalization Service's exclusion order and contending that she was entitled to have
the question of her admissibility litigated in a deportation proceeding where she would

                                       Page 22 of 54
                                     Immigration Law

be entitled to procedural protections and substantive rights not available in exclusion
Ct:1. The INS had statutory authority to proceed in an exclusion hearing to determine
whether respondent was attempting to "enter" the United States and whether she was
excludable. The language and history of the Act both clearly reflect a congressional
intent that, whether or not the alien is a permanent resident, admissibility shall be
determined in an exclusion hearing. Nothing in the language or history suggests that
respondent's status as a permanent resident entitles her to a suspension of the
exclusion hearing or requires the INS to proceed only through a deportation hearing.
2. Contrary to the view of the Court of Appeals, it was not "circular" and "unfair" to
allow the INS to litigate the question of "entry" in exclusion proceedings simply because
that question also went to the merits of respondent's admissibility. The Court held that
an "innocent, casual, and brief excursion" by a resident alien outside this country's
borders would not subject him to the consequences of an "entry" on his return.
3. Although under the circumstances, respondent is entitled to due process in her
exclusion hearing, the case will be remanded to the Court of Appeals to consider
whether she was accorded due process, because the factors relevant to due process
analysis have not been adequately presented here to permit an assessment of the
sufficiency of the hearing.

      3. Exclusion Grounds

Application of Phelisna - Old law; before IIRIRA        ED NY 1983
F: came on boat from Haiti; placed in exclusion proceedings; argued she should be
deported because she had made an “entry”
Ct: 1. Simple presence is not an entry, must have inspection for a lawful entry; 2. an
intent to evade is an unlawful entry; 3. Deportation proceedings afford a lot more rights
to an immigrant than do exclusion proceedings; 4. In exclusion proceedings,
government bore burden of establishing that alien had no intent to evade inspection of
customs officials and thus made no "entry," subjecting her to exclusion rather than
deportation proceedings; 5. Issue of whether alien made "entry," and thus could be
subject only to deportation, not exclusion, proceedings, may be litigated in exclusion

      4. The Reentry Doctrine - Everyone is subject to the continuing requirements of
admissibility, any time an alien comes back in they are subject to inadmissibility
      principle - all aliens are subject to inspection at the border, and if deemed
undesirable, may be subject to exclusion

      5. Definition of Entry
      - “entry” - p.49txt/p.11supp

                      Important Contrast - - Admission v. Entry

                                       Page 23 of 54
                                     Immigration Law

       6. Admission
Must have first been admitted to get deported, otherwise exclusion
       - “admission” §101(a)(13)
              Lawful entry
              After inspection and INS authorization
              Burden on person seeking admission to show they are entitled
                      - must show clearly and beyond a doubt entitled to admission
                      - not inadmissible
       - you are seeking admission if:
              you have abandoned status
              you are absent for more than 180 days
              you entered illegally
       - you are not seeking admission if:
              You left after removal proceeding
              you have suffered a criminal conviction
Certain people are treated differently
       - stowaways
              - not entitled to be inspected and admitted in US
              - can only go through asylum process
       - parolee
              - not considered to be admitted
       - LPR
              - not deemed to be seeking admission and thus need not be inspected
and admitted UNLESS:
                      - abandoned/relinquished their LPR status
                              Rosenberg v. Fleuti: if there is a brief, casual and innocent
                              departure & it is not meaningfully disruptive of LPR status
                              then the alien won’t have to deal with reentry
                      - absent from US for 180 days continuous
                      - entered illegally
                      - engaged in illegal activities after their departure
                      - deported under removal or extradition proceedings
                      - committed an offense under §212(a) (unless criminal waiver)
                      - attempting entry without inspection

      7. Specific Grounds of Inadmissibility
Used to deny LPR status, initial entry, subsequent reentry

1. health grounds
       - diseases (physical & mental), Drug use, etc.
       - communicable diseases of public health significance
       - physical or mental disorder whose behavior has posed a threat to property,

                                       Page 24 of 54
                                     Immigration Law

safety, or welfare
        - drug abuser or addict
        - fail to present evidence of vaccinations for certain conditions (ex:hepatitis,
2. Criminal and Related Grounds - -
- largest of all grounds
        a. Crimes of moral turpitude w/ 6 mos jail or more or admit to the facts -
                 - “moral turpitude” - against the conscience of the community, judged by
the statute but not defined in the statute - - base, vile, morally wrong, depraved
                 - ex: murder, kidnaping, ag. Assault, rape, fraud, robbery, burglary, petit
theft, perjury, counterfeiting, tax evasion, extortion
                 - not moral turpitude: assault, gambling, narcotics, draft dodging,
immigration crimes, prison escape, passing bad checks, loan sharking.
        b. 2 crimes, not moral turpitude, 5 yrs or more jail
        c. drug trafficking
        d. prostitution or commercialized vice
        e. committed serious crime but immunity was granted (diplomats)

       Must be “convicted” - plea of guilty or some facts to support finding & punishment
       Juvenile offenses are exceptions to inadmissibility

        Matter of Ozkok       BIA 1988
                CT: (1) A conviction exists for immigration purposes where an alien has
had a formal judgment of guilt entered by a court or, if adjudication of guilt has been
withheld, where all of the following elements are present: (1) a judge or jury has found
the alien guilty or he has entered a plea of guilty or nolo contendere or has admitted
sufficient facts to warrant a finding of guilty, (2) the judge has ordered some form of
punishment, penalty, or restraint on the person's liberty to be imposed, and (3) a
judgment or adjudication of guilt may be entered if the person violates the terms of his
probation or fails to comply with the requirements of the court's order, without
availability of further proceedings regarding his guilt or innocence of the original charge.
        (2) A conviction for a crime involving moral turpitude may not support an order of
deportation if it has been expunged.
        (3) A conviction for a narcotics or marihuana violation is final regardless of the
possibility of expunction.
        (4) The respondent, whose adjudication of guilt was stayed and whose
proceedings were deferred after his plea of guilty to possession of cocaine and who
was ordered to complete 3 years of probation and 100 hours of volunteer community
service pursuant to a state statute which allowed the court to enter judgment and
proceed with disposition of the person upon violation of probation as if probation had
not been ordered, has a final conviction sufficient to support an order of deportation.
        NB: no longer good law on expungement?

                                        Page 25 of 54
                                     Immigration Law

Exceptions to Convictions
- purely political offenses
- petty offenses (offenses where sentence is less than one year and served less than
- juvenile offenses
- full and unconditional pardon (won’t extinguish drug crimes, prostitution, alien
- Expungement
        not narcotics convictions

3. Security Concerns
        - very far reaching and broad
        - espionage, sabotage, opposition, overthrow of the US gov’t by force etc.
        - terrorist activities and incitement thereof
4. Public Charge (see handout)
        - sponsor must provide affidavit that they can support the beneficiary
        - won’t admit someone that will be a “public charge” (will go on welfare, etc.)
        - sponsor must earn 125% of poverty guidelines (more for more beneficiaries)
5. Labor Certification
        - must have labor cert or be family based
6. Illegal entrants & immigration violators
        - stowaways, false docs, alien smugglers, previously removed, etc.
        - Specifically added in New Law
        1. Misrepresentation
                - made false claim under any purpose to get a benefit under the act
        2. Student Visa Violators
                - inadmissible for 5 years after the violation, cannot be in US at all in those
5 yrs
        3. Excluded or Removed
                - inadmissible for 5 yrs from the removal date
                - 2d offense inadmissible for 20 yrs from removal date
        4. Unlawfully Present
                - defined as present in the US without inspection or after lawful stay
                - inadmissible for 3 yrs if unlawfully present for 180-364 days
                - inadmissible for 10 yrs if unlawfully present for 365+ days
7. Documentation requirements
        - must have a valid immigrant or nonimmigrant visa
        - must meet other documentation requirements
8. If you are permanently ineligible for citizenship
        ex: failure to serve in the armed forces when there was a draft b/c alien exempt

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                                   Immigration Law

       - practicing polygamists; People who violated child custody orders (kidnapping);
foreign health care workers without proper certification; aliens who illegally vote

B. Deportation Grounds and Procedures

Burden in deport proceedings =
       - on INS to show clear, convincing and unequivocal evidence to show that an
alien who has been admitted is deportable
       - must be based on reasonable, substantial and probative evidence

Summary removal proceedings
       1. Fraud
       2. No Visa
- geared toward persons at the border
- can remove someone without any review
       Someone asserting Asylum
       - must be referred to asylum officer
       - asylum officer must determine there is credible fear
       - if asylum officer denies admission the alien can demand a hearing which must
take place 1-7 days

             5 GROUNDS FOR REMOVAL (Deportation/Inadmissibility)

1. Status Violations inadmissible at time of entry or of AOS or violates status
        a. Inadmissible Aliens
        - any alien who at the time of entry or AOS was w/in one of the inadmissible
        - no statute of limitations in this category
        b. Present in Violation of the Laws
        - any alien who entered without inspection
        - aliens here in violation of immigration laws
        c. Violated Nonimmigrant Status or Condition of Entry
        - failed to maintain Nonimmigrant status
        - failed to comply with terms, conditions, controls imposed for entry
        d. Termination of CPR Status
        - failed to comply with the terms for changing status - - unless any of the
hardship waivers are met
        e. Smuggling
        - alien who knowingly has encouraged, induced, assisted, or abetted any other
alien to enter or attempt to enter the US illegally
        f. Marriage Fraud

                                     Page 27 of 54
                                    Immigration Law

        - see IMFA - - p. 9
        g. Waivers of Certain Misrepresentations
        - see waivers section below
2. Criminal Offenses
- includes state/fed or foreign crimes committed and sentence served w/in last 15 yrs
        a. General Crimes
                i. Crimes Of Moral Turpitude
        - convicted w/in 5yrs of admission and sentenced to 1 yr or more
                ii. Multiple Criminal Convictions
        - convicted of 2 or more crimes of MT
                iii. Aggravated Felonies
        - includes all state/fed crimes where sentence was completed w/in last 15 yrs
        - murder/drug trafficking/firearms trafficking/money laundering (10K+)/explosives
and firearms/crimes of violence(use of force)/theft offenses(sentence 1yr+)/ransom
demands/child pornography/RICO violation where sentence is 1yr+/prostitution/slavery/
treason/sabotage/national defense/fraud/deceit/tax evasion(loss 10K+)/alien smuggling
(1yr+ sentence)/§1326/document fraud(1yr+ sentence)/failure to appear to serve term/
perjury/witness bribery(sent 1yr+)/attempt or conspiracy to do any of the above
        b. Controlled Substances
        - state/fed/foreign convictions of the substantive crime or attempt
        - EXCEPTION - a single offense of possession for personal use of 30g or less of
        - drug abusers or addicts - - at or any time after admission
        c. Certain Firearm Offenses
        - purchasing, selling, offering for sale, exchanging, using, owing, possessing,
carrying in violation of law
        d. Miscellaneous
        - espionage, etc.
3. Failure to Register and Falsification of Documents
        a. Change of Address
        - failed to comply w/ provisions unless alien shows that it was not willful and was
        b. Failure to Register
        c. Falsification of Documents
4. Security and Related Grounds
- allows secy of state to request removal for security grounds, but must have compelling
national security interest
        a. Generally
        - espionage or sabotage to violate or evade any law prohibiting the export of
goods, technology, or sensitive information
        - any other criminal activity which endangers public safety or national security
        - opposition to, or the control or overthrow of, the govt by force or unlawful

                                      Page 28 of 54
                                     Immigration Law

        b. Terrorist Activities
        c. Foreign Policy
        - alien’s presence or activities would have serious adverse foreign policy
        d. Assisted in Nazi persecution or Engaged in Genocide
5. Public Charge
- Alien who within 5yrs of admission has become a public charge from causes not
affirmatively shown to have arisen since admission

                        ARREST AND DETENTION BY THE INS

- people can be arrested at home, work, etc.
- INS cannot stop someone merely because of their race or inability to speak English
        - foreign appearance + workplace history + anonymous tip = OK
- INS’s power is greatest at the border
        - reasonable suspicion is enough (Brignoni-Pierce)
- “factory surveys” (where INS enters a factory to determine if there are any illegals) are
not “seizures” - - no need to tell the aliens they are free to go (Delgado)

Prior to an arrest
1. interrogation of suspected Alien OK
2. INS can arrest if entry violation in plain view; if they have reason to believe person is
in US illegally AND is likely to escape
3. Within 100 miles of the border the INS can board and search any vehicle

Temporary Forcible Detention
- can happen if circumstances warrant a reasonable suspicion that the person is
unlawfully in the US
- factors to consider:
        - proximity to border
        - traffic patterns
        - officer’s experience with previous encounters
        - driver’s behavior
        - vehicle appearance
- No Miranda required but a coerced statement will be suppressed
- Can arrest without a warrant if they think the person is likely to escape - - must have
more than just suspicion

Alien’s Rights After Arrest
1. Right to deny entry into home w/o valid search warrant
2. Right to refuse to speak or show documents w/o warrant

                                       Page 29 of 54
                                      Immigration Law

3. Right to remain silent
4. Right to consult with an attorney at no expense to the govt (must provide a list)
5. At workplace INS needs valid warrant or employer consent, can’t block exits
6. Right to refuse to sign documents without the advice of council

Exclusionary rule remedy does not apply to deportation proceedings


- supposed to be non-punitive in nature to guarantee appearance
- for now there is not a program to detain all criminal aliens BUT a transition program is
in place
        Requires the detention of all aliens except:
        1. LPR who does not pose a danger and is likely to appear for hearing
        2. non-LPR and non-returnable no danger/likely to appear
- other criminals are detained w/ bond - - minimum $1500
- can be released on conditional parole
- only LPR’s can get work auth while they are in removal proceedings

factors to consider when determining bond amount
- family ties to US
- community ties
- danger to community
- criminal record
- previous failures to appear
- employment record
- etc

- only get one redetermination
- judge can lower bond or release on OR
- can only request redetermination after you have posted bond, in writing, w/in 7 days
- written memo only states bond amt, not reasoning
- still entitled to a removal hearing if you cannot post bond

§239 Notice to Appear
- can be given in lieu of detention

Service of Process
must serve the alien or council
in person or by regular mail

                                        Page 30 of 54
                                     Immigration Law

written notice not required if alien fails to give INS an address
                                REMOVAL PROCEEDINGS

- new provision §240
- conducted by IJ’s
        IJ decides inadmissibility/removability
- alien bears the burden of showing that he is clearly and beyond a doubt entitled to
admission and is not inadmissible under §212(a)
must show you are lawfully present under a previous admission

Power of Immigration Judges
administer oaths
receive evidence
interrogate, examine, cross-examine the alien or witness
issue subpoenas
levy contempt sanctions

Rights of Aliens
Privilege of representation
reasonable opportunity to present evidence
right to examine evidence and cross examine
        limited by national security concerns

- complete record is kept
- failure to appear results in removal in absentia if the INS can show by clear and
convincing evidence that notice was delivered
- can get motion to reopen if deport entered in absentia w/in 180 days or if you are in
fed/state detention

Relief Possibilities
- cancellation of removal
- Registry

- IJ can only base decision on evidence presented at the hearing

                                       Page 31 of 54
                                      Immigration Law

C. Relief from Removal & Waivers

Affirmative Defenses
1. Motion to Suppress
       - need written motion and affadavits
       - ex: bad search
2. Estoppel
       - very rare
       - if you can show affirmative misconduct
3. Violation of Regulations
4. Criminal Convictions
       - is the conviction final?
       - is there a pardon/expungement?
       - does it fall under an exception?

Discretionary Relief
- must be applied at 1st available opportunity or it is deemed waived
- mere statutory eligibility does not mandate a grant of relief of the favorable exercise of
- a grant of relief postpones (temporarily or permanently) the removal order
- some forms can only be made in front of the IJ

Standard of Review for Denial of Discretionary Relief
Abuse of Discretion
      - denial made without a rational explanation
      - departed from policies in an unexplained manner
      - rested on an impermissible basis (ex: race)

Matter of Edwards
balance social and humane conditions in alien’s favor v. the adverse conditions which
demonstrate the undesirability
       - favorable factors include family ties, employment history, rehabilitation, property
       - adverse factors include bad character, undesirability


- waives a ground of inadmissibility
- certain people are not eligible for any relief - - narcotics traffickers/treeorists/national
security threats/Nazis/Aggravated Felons/Etc.
- waivers are discretionary

                                         Page 32 of 54
                                   Immigration Law

Types of Waivers
1. Permission to Reapply

- serves to waive the bar of admission for those who were illegally present or removed
prior (ex:those removed have a 5-year bar/twice removed have a twenty year bar)
         - illegally present applies to unauthorized workers, expired visas, etc.
- Atty general may waive the inadmissibility of the alien
         1. Be an Immigrant
         2. Be the spouse, son or daughter of USC/LPR
         3. Refusal to admit would cause extreme hardship to the qualifying relative (the
2. Medical Grounds Waiver
- if waiving a communicable disease the applicant must be the spouse, son/daughter/
parent of USC/LPR
- if disease may pose public health threat, there may be extra conditions ($ bond,
regular check ups)
- does not waive drug abuse/addiction
- Vaccination waiver - - can either get revaccinated or get certificate that it would be
inappropriate to get it (medical, religious reasons, etc.)
3. Waiver of Certain Crimes
- waives:
         - 1 crime of moral turpitude
         - prostitution
         - multiple crimes
         - single conviction for simple narcotics possession
- must be the spouse, son/daughter or parent of USC/LPR and denial will cause
extreme hardship to the USC/LPR
- if you do not have a qualifying relative you can get a waiver
         - the crime was 15 yrs ago
         - you can show you will not hurt the national welfare and safety
         - you are rehabilitated
- waiver not available for convicted murderers, torturers, draft evaders and drug
offenders (except simple poss of less than an ounce of pot)
- waiver not available to alien who has previously been admitted as LPR who after date
of admission has been convicted of an aggravated felony or who has not lawfully
resided continuously for at least seven years prior to initiation of removal proceedings
4. Fraud/Misrepresentation
- must be spouse, son/daughter, parent of USC/LPR and must show denial of
admission will cause extreme hardship to the USC/LPR
- the fraud can’t be used to counterbalance the hardship - - can’t be used again
5. Alien Smuggling
- waiver available for LPR and FB #1,2,3

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- the person you smuggled must have been at the time your spouse, parent,
- you must show humanitarian purpose, insuring family unity, or other public interest to
get the waiver
- alien smuggler can never show good moral character
6. Document Fraud
- new
- for people penalized for forging, making false documents, etc.
- applies only to
        1. LPR who temporarily proceeded abroad, not under removal order and
otherwise inadmissible OR
        2. alien seeking admission or AOS if no previous $ penalty and the offense was
committed solely to aid the alien’s spouse or child
7. Documents Waiver for returning Residents
- everyone must be inspected and admitted - - green card is only valid as a travel
document, if not out of US for 1 yr and exceptional circumstances beyond your control
8. If Ineligible, But Didn’t Know
- could not have ascertained so in exercise of reasonable diligence
- must be admissible evidence
9. LPR Waiver: “Cancellation of Removal for Certain LPR’s”
3 requirements
        1. Must have been lawfully admitted as LPR for not less than 5yrs
        2. Must have resided continuously in US under any legal ststus for 7 yrs
        3. Not convicted of an aggravated felony
- can waive any of the grounds of inadmissibility unless national security threat


1. Voluntary Departure
- discretionary
- can be before of after removal proceedings
- used to be the most popular relief method
- if not an aggravated felon, not terrorist, not newly arriving applicant for admission and
are willing to pay expenses to go home, you can get voluntary departure
- get up to 120 days to return home w/out removal proceedings starting (this prevents
the bar created by removal)

New Requirements
1. At alien’s expense
2. Alien must show by clear and convincing evidence that they intend to depart
3. Alien must have been physically present in the US for at least 1yr immediately
preceding the date the notice to appear was served

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4. Must show good moral character
5. Can’t be aggravated felon or security risk
6. Have not been previously granted voluntary departure by IJ

- period may not exceed 60 days and bond is required if removal has begun
- balance favorable w/ adverse factors (like traditional discretionary standards)
- even if you leave on your own after voluntary departure date the bar will still apply
- mandatory civil penalty for failure to depart ($1k-5K)
- if you do not depart on time you become ineligible for AOS or cancellation of removal
and other immigrant benefits for 10 years

2. Cancellation of Removal for Certain LPR’s

Statutory Requirements
1. Physical presence in US for a continuous time of not less than 10 yrs immediately
preceding the application
2. Must be a person of good moral character for the entire period
3. Have not been convicted of any offense under §212(a)(2) or (3)
4. Must establish that your removal would create exceptional or extremely unusual
hardship to your USC/LPR spouse, parent, child (not self)

Battered Spouse/Child
- special requirements for cancellation of removal
1. If alien has been battered in US by USC/LPR or parent of battered child, only need 3
yrs of physical presence, show good moral char, and show extreme hardship to self or
2. battered alien can’t be inadmissible under criminal, security, marriage fraud, falsifying
documents, aggravated felony, or security grounds

6 Classes of People who are ineligible for Cancellation of Removal
1. Crewmen
2. J-medical
3. J-subject to foreign residency requirement
4. Inadmissible or removable for security grounds
5. Persecutors of others
6. Aliens whose removal has previously been canceled or who has been granted relief
under §212(c) or has previously been granted relief under §244(a)

- limited to 4,000 adjustments a year

Changes from old (Suspension of Deportation) to new (Cancellation of Removal)
     Cancellation                            Suspension
     *10 yrs                                 *7 yrs

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*“exceptional or extremely unusual              *Extreme hardship to self
hardship to qualifying relative (USC/LPR)”
*Completely barred if criminal conviction       *No bar if conviction was more than 10
                                                yrs ago and can show good moral char

“Continuous Residence or Physical Presence” Requirement
- terminates at earliest of following 2 dates
1. when notice to appear is served
2. When alien commits an offense under §212(a)(2), §237(a)(2), §237(a)(4), under the
departure rules the following make it non-continuous, thus ineligible or cancellation if:
       a. absent for any 1 period in excess for 90 days
       b. any periods in the aggregate exceeding 180 days over 10 yrs

Classic Hardship Factors
1. Mere existence of children born in the US is not enough - - need to discuss difficulty
in adjusting, language, etc.
2. family unity
3. Medical condition
4. Mere decreased earning power is not enough - - must show total inability to find
employment where deported

D. Amelioration of Removal: Deportability or Inadmissibility

There are now severe substantive appeal limitations under IIRIRA

A. Background/Procedure/Structure
2 phases of deportation / removal
        1. is this person removable?
        2. is there a basis for relief?
Basis for Appeal
        1. factual - abuse of discretion or insufficient weight to evidence
        2. legal
Summary & terrorist removal procedures - no right for review
In all other cases both sides have a right to appeal in 30 days
Appeals can be summarily dismissed for several reasons -
        - if you leave the US while the appeal is pending you abandon the appeal

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       - if you leave after judgment you cannot file an appeal
BIA will reinstate a brief period of voluntary departure - - usually thirty days - - at the
end of the appeal - - unless frivolous

BIA can:
       - dismiss appeal
       - remand case
       - sustain appeal
BIA has de novo review
Oral argument is discretionary
BIA decisions can be certified to the Atty. Gen’l.

Associate Commissioner of Examinations -
      Administrative Appeals Unit (AAU) - - some appeals go directly to the INS
      ex: bond issues

Administrative appeals for labor certification go to BALCA (Board of Administrative
Labor Certification Appeals) - - 35 days to file an appeal

Office of Chief Administrative Hearing Officers (OCAHO) - oversees employer
sanctions, fines, etc.

Federal Review
      Federal Question

B. Motions to Reopen and Reconsider

Reopen - must show new evidence that is material and was unavailable at the time of
the initial hearing (factual based) - - have 30 days to file

Reconsider - (fact and legal based) must show evidence is
      unavailable at initial hearing
      unable to be discovered
have 90 days to file

Will not stay the enforcement of the underlying decision
one motion each

INS v. Abudu
F: asylum, motion to reopen

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Ct: 3 grounds to deny reopening: 1. if applicant does not make out facial grounds; 2. did
not show evidence was previously unavailable; 3. Applicant failed to apply initially
NB: heavy interest in bringing litigation to a close.

Matter of Rodriguez-Vera
Ins will not reopen a case if there is a reasonable likelihood that relief will be granted

Matter of Roussis
INS judges cannot remand once an OSC has been issued b/c it denies prosecutorial

C. Final determinations

No reviews for adjustment of status & other related petitions
No review for collateral attack or illegal reentry; bond or parole; voluntary departure
Collateral attacks only if all other admin remedies have been exhausted
Decisions a conclusive unless they are “manifestly contrary to law”

Kwok v. INS
F: Proceeding on petition to review denial of application for stay of deportation.
I: what is an administrative determination?
Ct: decision of District Director of Immigration and Naturalization Service, not entered in
course of deportation proceedings, denying application of citizen of China, who had
entered United States as crewman, for stay of deportation pending disposition of
application for adjustment of status pursuant to conditional entry provision of
Immigration and Nationality Act.
NB: Does not matter under IIRIRA anymore

D. 6 situations where the court will not defer to INS when construing a statute

1. the statute is clear on it’s face
2. intent of congress is clear
3. Compelling reasons why agency is wrong
4. Classic matters of statutory construction
5. Where the action is contrary to current regulations
6. Where the current interpretation conflicts with previous interpreters

Otherwise, where statute is being followed courts will defer to agency to “fill gaps” in the

Yesil v. Reno
F:AEDPA case; Deals with ag. Felons; Alien petitioned for habeas corpus relief from
BIA's final order of deportation.

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CT: (1) Immigration and Naturalization Service (INS) New Orleans district director was
subject to personal jurisdiction in Southern District of New York; (2) abuse of writ
doctrine did not apply; (3) provision of AEDPA denying judicial review of deportation
orders for aliens convicted of certain offenses did not eliminate general grant of habeas
jurisdiction; (4) BIA's finding that alien was ineligible for discretionary relief from
deportation implicated his due process rights and threatened fundamental miscarriage
of justice, supporting review under general habeas corpus statute; (5) period between
his application for adjustment of status and grant of that adjustment accrued toward his
seven years of lawful unrelinquished domicile required for discretionary waiver of
deportation; but (6) he did not continue to accrue time as lawful permanent resident
after BIA's final order of deportation.
NB: AEDPA did not intend to allow aliens to accrue time from final order of IJ to final
order of BIA as LPR’s

Issues involved - - human rights, foreign policy, economic interest
After WWII the world began looking at refugee issues

A. Withholding of Deportation and Asylum

       1. Historical Overview

1951 - UN convention relating to status of refugees
- universal and politically neutral
- concept of non-refulment (no return) developed
- non-refulment was mandatory
- 60 countries signed on - not US
- restricted everything to events before 1951 - ineffective for future asylees

1967 - UN protocol
- incorporated all of the 1951 convention
- removed the time condition from pre-1951 to all times
- US did ratify this in 1968

1965 - US law
- created a 7th entry preference for people fleeing a communist or mid east country and
fearful of persecution
- ½ visas available abroad; ½ visas available in the US - asylees can apply on US soil
- added the equivalent of the 1951 convention’s non-refulment - US calls it “withholding”
- withholding was discretionary as compared to mandatory in the UN protocol

1974 - US law

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- created asylum for other classes of people not eligible under the 1965 act
- also extended voluntary departure for persons coming from countries where there is

1980 - US act
- refugee act - adopted the UN non-ideological definition
- non-refulment became mandatory
- adopted one uniform definition for refugee & asylee - - same standard for US and

1996 - US Law - IIRIRA
- added restrictions on grants of asylum
        ex: must be w/in 1 year of entry (unless you can demonstrate changed
circumstances in the home country); denial on re-filings
- aggravated felons are now ineligible
- victims of coercive population control are now considered refugees
- only 1,000 people can be given asylum each year under the “coercive population
control” classification
- put in the possibility of removal to a 3d country

      2. Definitions & Case Law

               a. Definitions
Refugee = must be applying for that status from outside the US
Asylum = applying for that status in the US or at a land border
Withholding of removal / restriction of removal = non-refulment, not returning a person
to a place that they would be persecuted
Persecution = condition precedent to refugee/asylee status; 6 types/bases
       1. race
       2. religion
       3. Nationality
       4. Membership in a particular social group
       5. Political opinion
       6. Victims of “coercive population control”

              b. Turning ships back at sea
Sale v. Haitian Centers Council
F: coast guard was intercepting ships on the high seas and returning them to Haiti
summarily. Ship contained potential refugees. Action was brought by various
organizations and Haitian aliens challenging procedures under interdiction program with
respect to Haitians fleeing Haiti.
Ct: Turning ships back on the high seas violates neither US nor UN non-refulment laws;
the non-refulment laws apply only to deportation.

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(1) The INA's text and structure which provides that "[t]he Attorney General shall not
deport or return any alien ... to a country if the Attorney General determines that such
alien's life or freedom would be threatened in such country ..."--applies only in the
context of the domestic procedures by which the Attorney General determines whether
deportable and excludable aliens may remain in the United States. In the light of other
INA provisions that expressly confer upon the President and other officials certain
responsibilities under the immigration laws, the act’s reference to the Attorney General
cannot reasonably be construed to describe either the President or the Coast Guard.
Moreover, the reference suggests that the section applies only to the Attorney
General's normal responsibilities under the INA, particularly her conduct of deportation
and exclusion hearings in which requests for asylum or for withholding of deportation
under the INA are ordinarily advanced.
(2) Although not dispositive, the Convention's negotiating history--which indicates, inter
alia, that the right of non-refoulement applies only to aliens physically present in the
host country, that the term "refouler" was included in the INA to avoid concern about an
inappropriately broad reading of the word "return," and that the Convention's limited
reach resulted from a hard- fought bargain--solidly supports the foregoing conclusion.

              c. Standards of Proof for “Persecution”
                     i. Withholding of deportation
INS v. Stevic
F: withholding of deportation case, not asylum. Appeal was taken from an order of the
court denying a petition for writ of habeas corpus and a petition for review of a decision
of the Board of Immigration Appeals denying a motion to reopen deportation
Ct: must establish “clear probability” [more likely than not] that the applicant would be
(1) At least before 1968, it was clear that an alien was required to demonstrate a "clear
probability of persecution" or a "likelihood of persecution" to be eligible for withholding
of deportation. Relief was not, however, available to aliens at the border seeking refuge
in the United States due to persecution. They were required to establish a good reason
to fear persecution. The legislative history of the United States' accession to the United
Nations Protocol discloses that the President and Senate believed that the Protocol
was consistent with existing law. While the Protocol was the source of some
controversy with respect to the standard of proof for claims for withholding of
deportation, the accession to the Protocol did not appear to raise any questions
concerning the standard to be applied for requests for admission, the "good reason to
fear persecution" language being employed in such cases.
(2) To the extent a standard of proof can be inferred from the bare language, it appears
that a likelihood of persecution is required. The section provides for a withholding of
deportation only if the alien's life or freedom "would" be threatened, not if he "might" or
"could" be subject to persecution.

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                       ii. Refugees
INS v. Cardoza-Fonseca
F: refugee case
I: Is the “clear probability” standard for withholding of deportation the same as the
standard for refugee/asylee status?
Ct: to show “well founded fear of persecution” alien seeking asylum need not prove that
it is “more likely than not” that the applicant will be persecuted in their own country.
(1) The plain meaning of the statutory language indicates a congressional intent that
the proof standards should differ. The "would be threatened" standard has no
subjective component, but, in fact, requires objective evidence that it is more likely than
not that the alien will be subject to persecution upon deportation. In contrast, the
reference to "fear" makes the asylum eligibility determination turn to some extent on the
alien's subjective mental state, and the fact that the fear must be "well founded" does
not transform the standard into a "more likely than not" one.
(2) The INS's argument that substantial deference should be accorded BIA's position
that the "well-founded fear" and "clear probability" standards are equivalent is
unpersuasive, since the narrow legal question of identicality is a pure question of
statutory construction within the traditional purview of the courts, and is not a question
of case-by-case interpretation of the type traditionally left to administrative agencies.
NB: Judge Keener argued this case

                      iii. Asylees
INS v. Elias-Zacharrias
F: Guatemalan Immigrant was accosted and solicited to join the guerillas, refused, and
feared for his safety. Respondent, a native of Guatemala, was apprehended for
entering the United States without inspection. In his deportation proceedings, BIA
determined that he was ineligible for a discretionary grant of asylum.
Ct: An attempt to conscript someone into political action is not “political persecution” per
se - - the persecution must be because of the victims beliefs, not the persecutors.
1. A guerrilla organization's attempt to coerce a person into performing military service
does not necessarily constitute "persecution on account of ... political opinion" under
the INA. Even one who supports the political aims of a guerrilla movement might resist
military combat and thus become the object of such coercion. Moreover, persecution
on account of political opinion is not established by the fact that the coercing guerrillas
had "political" motives. 2. The persecution must be on account of the victim's political
opinion, not the persecutor's. Since respondent did not produce evidence so
compelling that no reasonable factfinder could fail to find the requisite fear of
persecution on account of political opinion, the Court of Appeals had no proper basis to
set aside the BIA's determination.

                     iv. Reasonable person standard
Matter of Mogharrabi
F: Iranian argued with Iranian Consulate about a passport. Applicant was anti-Homeni

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Ct: Applied Cardoza-Fonseca and asked: Would a reasonable person fear persecution
under these circumstances? Ct. said yes, even if the likelihood is significantly less than

                       v. “well founded fear” factors
Matter of Acosta
4 factors to consider as to what a “well founded fear is”
        1. is there a belief or characteristic that the persecutor seeks to overcome with
        2. is the persecutor aware that the applicant posses this characteristic or could
they become aware?
        3. Does the persecutor have the ability to punish or persecute?
        4. Does the persecutor have the inclination/desire to persecute/punish?
- fear can be based upon the treatment of similarly situated individuals
- must still be based upon one of the five (or six) factors

       3. Application Procedures

- persons abroad apply for refugee status at a US consulate
- persons at land borders or in the US can apply to the INS for asylum
- you can apply to an IJ at removal proceedings as a defense to removal

Asylum Procedures
- AG can impose a filing fee
- must be advised of right to council at no expense to the gov’t and be provided with a
list of lawyers who might take the case for free
- shall be interviewed within 45 days
- failure to appear at the initial interview results in a dismissal
- 180 days to adjudicate the petition unless there are special circmstances
- cannot work in the 180 days
- specially trained asylum officers must adjudicate the petition - - they may either accept
or refer the applicant to an IJ - - cannot deny a petition
- If granted asylum
         - AG cannot return the person
         - AG shall give work authorization
         - AG may authorize travel outside the US
- “frivolous claims” = having a knowing misrepresentation, grounds for deportation, can
never get another benefit

       4. 3 classes of people barred from refugee status

1. “firm resettlement” - another country has allowed the immigrant to come in and stay

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free from persecution
2. people who have persecuted others based upon one of the six types of persecution
3. Undesirables
        ex: national security risks, ex-nazis, narcotics traffickers

                 a. Refugees
- numerical limits set at 90,000/yr
- when granted refugee status
        - get it for one year
        - at the end of the year (still have status) can apply for LPR status if conditions
have not changed in the home country
- not discretionary

       5. Asylum

- temporary protected status
- no numerical limitations for asylum (except the coercive pop control category 1,000/yr
- discretionary, not mandatory like refugee
- 10,000 refugees and asylees per year can apply for adjustment of status
- you are ineligible to apply for asylum . . .
        1. if you can apply to a third country and you can get full asylum rights there
        2. if the applicant cannot prove by clear and convincing evidence that their
application was filed within a year of their arrival to the US
        3. If you have filed for asylum and been denied (unless there is a material
change in circumstance or extraordinary circumstances)
- no judicial review of the findings

7 Outright bars to asylum -
1. you have persecuted other people
2. you have been convicted of a particularly serious crime in the US
       (Ex: crimes against persons, involving weapons, etc.)
3. You committed a serious non-political crime outside the US
       serious = capital crimes or very grave punishable acts
       political = outweighs the criminal character of the act
4. Aggravated felons
5. Risks to national security
6. Inadmissible or removable because of terrorist activities
       - no judicial review for these people
7. Applicant is firmly resettled

Asylum status termination
- when you are granted asylum it is for one year and then you can apply for adjustment
of status

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- if you are granted asylum and then commit one of the seven bars to asylum you can
lose asylum status
- asylum is terminated if the circumstances of your grant have fundamentally changed

         6. Restriction on removal
- the AG cannot remove an alien to a country where their life may be in danger
- this is the new withholding of deportation
Distinctions between Restrictions on removal and Asylum
1. Mandatory
2. country specific, thus we can still send the applicant to a third country
3. temporary but indefinite - never leads to LPR status (w/o AOS app.) - lasts as long as
the condition lasts in the country
- same bars to restriction on removal as to asylum (see 7 bars above) except ag.
Felons- must be convicted of an aggravated felony and sentenced to an aggregate term
of 5 years
- must show a “credible fear” of persecution

B. Firm Resettlement

“firm resettlement” - another country has allowed the immigrant to come in and stay free
from persecution; are no longer eligible for asylum

C. Nexus to Enumerated Statutory Reasons for Prosecution
See Matter of Acosta (above)
      1. is there a belief or characteristic that the persecutor seeks to overcome with
      2. is the persecutor aware that the applicant posses this characteristic or could
they become aware?
      3. Does the persecutor have the ability to punish or persecute?
      4. Does the persecutor have the inclination/desire to persecute/punish?

        1. WHAT is persecution? What is the harm feared?
Is it really persecution?
Persecution = threat to life or freedom or infliction of harm/suffering to a particular group
- NOT persecution -
        widespread violence
        civil unrest
        general anarchy
        general economic disadvantage
        legitimate punishment
        civil war

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       land loss to land reform

       2. WHY is the victim being persecuted?

- must have a causal connection to an enumerated ground of persecution Zaccharrius
- the harm must be inflicted to punish for a belief or characteristic which is sought to be
- perception of the persecutor controls, not the acts of the person Zaccharius

Enumerated Groups Qualifying for Persecution
RACE - includes all subgroups; common usage of the word
NATIONALITY - includes all subgroups (ex: old Yugoslavia)
RELIGION - all religions (as long as bona fide belief)
POLITICAL OPINION - does not include conscription into military service Elias-Zachar.

Campos-Guardado v. INS 5th Cir. 1987
F: alien failed to demonstrate that she was persecuted b/c of “political opinion” or
“membership in a social group” BIAppeals denied requests for withholding of
deportation and asylum, and granted alien only 12 days in which to depart voluntarily.
Ct: She was granted temporary relief anyway b/c suspension of deportation is available
for people who are in danger. (1) Board's decision to deny deportation withholding
remedy to alien did not rest impermissibly on single fatal flaw, i.e., that alien failed to
establish that she personally held political beliefs which would subject her to further
persecution in country of deportation, but also on ground that record did not establish
that alien was persecuted on account of any political opinion she was believed by her
attackers to possess, and (2) Board's decision to deny asylum was based on finding
that alien failed to show that harm she feared, no matter how likely, was on account of
"political opinion" or "membership in a social group."

Lazo-Majano v. INS           9th Cir. 1986
F: El Salvadoran alien petitioned for review of order of Board of Immigration Appeals,
denying her asylum and withholding of deportation.
Ct: found that alien was a subversive and as such she was granted refugee status
(1) "Well-founded fear" standard necessary to grant asylum to refugees under Refugee
Act is more generous than "clear probability" standard for withholding of deportation,
and Board of Immigration Appeals has obligation to apply standards set by the statute.
(2) El Salvadoran alien had suffered persecution on account of political opinion and was
entitled to withholding of deportation; member of El Salvadoran military chose to regard
alien as a subversive and gave her the choice of being subjected to physical injury and
rape or being killed.
(3) In deciding whether anyone has well-founded fear of persecution or is in danger of

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losing life or liberty because of a political opinion necessary to withhold deportation, one
must look at person from perspective of persecutor; if persecutor thinks person guilty of
political opinion, then the person is at risk.

“Choosing to remain neutral is no less a political opinion than choosing to affiliate”

Matter of Acosta
- Must be an immutable characteristic to be an identifiable group/social group
- Taxi drivers who would not participate in government-sponsored assassinations were
not “immutable” - could change profession
- particularity requirement - must have some evidence that the applicant and the
specific group are “singled out” or “targeted” - - Is there a reasonable probability that
you will be persecuted b/c of these qualities?

       3. WHO is the persecutor?

- Persecutor must have the ability and the inclination to carry out the persecution
- the bigger the persecuting group, the more likely you will need asylum; traditionally,
governments were the typical persecuting group
- must be able to prove who the persecutor actually is

Matter of McMullen
F: Ex-IRA soldier was worried that the IRA would kill him for leaving
Ct: Evidence submitted by the alien did not show that the alien could not be protected
by the Irish Gov’t.
(1) Unlike asylum, which is discretionary withholding of deportation as amended by that
Act, is mandatory for an eligible alien.
(2) Those cases which hold that applications for withholding of deportation and/or
asylum can be made where persecution by a non-governmental individual or
organization is feared, if a showing is made that the government in power is unwilling or
unable to protect the alien, are as applicable under the Refugee Act of 1980 as they
were under prior law.
(3) The legislative history of the Refugee Act of 1980 indicates that Congress' intent in
substituting "life or freedom would be threatened" for "persecution" was simply to adopt
the United Nations 1951 Convention and 1967 Protocol Relating to the Status of
(4) Newspaper and magazine articles submitted by the respondent regarding conditions
in Ireland and Great Britain, which are of a general nature and which do not relate to
the respondent specifically, will be accorded little evidentiary value, as this evidence is
not probative on the issue of this particular alien being subject to persecution if

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deported to Ireland.
(5) Evidence submitted by the respondent to establish persecution claim, while showing
the difficulty of controlling terrorism in Ireland, does not show, 1) that the Irish
government would be unable, if necessary, to protect the respondent, a defected
member, from the Provisional Irish Republican Army, or, 2) that the government of
Ireland would persecute him.
(6) Decisions resulting from extradition proceedings are not entitled to res judicata
effect in later proceedings, and Board is thus not bound by United States Magistrate's
determination, in extradition case, that respondent's crimes were political in nature.

Aguirre-Aguirre v. INS (Cert. granted 10/98)
Ct: found that applicant’s crimes were not violent political expression
Dis: 1. the nature of the applicant’s actions against other Guatemalans made him
ineligible; 2. this was also a particularly serious crime that occurred outside the US (one
of the seven grounds of ineligibility)

       4. WHEN does the persecution occur?

Is the time of political strife in your country now or past?
If the political climate changes the need for asylum changes

       5. HOW do you prove the persecution?

- Testimony is good
- corroboration is better
- must show the persecuting group has the ability and inclination to persecute
- look at vagueness, dishonesty
- look at outside conditions
       can take judicial notice
       newspaper articles, etc.
- must prove subjective fear is objectively reasonable

Saballo-Cortez 9th Cir. 1984
F: Alien found to be incredible by IJ
I: was the finding of the alien’s credibility supported by the record?
Ct: Looked into inconsistencies between alien’s testimony and newspaper reports

Matter of Doss 1989 BIA
If something cannot be corroborated it is not error to prove it cannot be corroborated

D. Discretion: Asylum v. Withholding of Deportation

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factors to consider:

Arauz V. Rivkind      Eleventh Circuit 1987
F: Government appealed from order which remanded political asylum application to the
INS for hearing.
CT: (1) alien's prior conviction for conspiracy to possess marijuana with intent to
distribute made him statutorily ineligible for withholding of deportation; (2) conviction
did not make him ineligible for asylum; and (3) while immigration judge could consider
the conviction and base denial of asylum on the conviction, judge was also required to
consider any other evidence offered by the alien.
NB: look to the plain meaning of the statute

I: What is the proper weight to accord the manner of entry or attempted entry?
Ct: Relief should be granted in the absence of adverse factors
       - consider all factors
       - bad entry not fatal if there are other factors
       - look to : was the fraud used to get out of persecution or was the fraud
perpetrated on the US?


A. Citizenship
       1. Four ways to acquire USC

1. Born in the US
2. Born in US territory
3. Born outside US to US parents (in some cases) SEE BELOW
4. Naturalization

Jus soli = you acquire the citizenship of the place you were born

Rules regarding the acquisition of citizenship in the case of a child born outside the US
to one or more USC parents (#3 above)
1. If both parents are USC’s and at least one of the parents has lived in the US, then
the child is a USC
2. Where one parent is a USC and the other a “national” of the US, the child becomes a
citizen if the USC parent has been continuously present in the US 1 year prior to the
child’s birth
3. If the child is born in an “outlying possession” of the US, the child will be a USC if at

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                                    Immigration Law

least one of the parents has been physically present in the US for a continuous period
of not less than one year
4. If the child is born outside the US and outlying possessions the child will be a citizen
even if only one of the parents is a USC if that parent has been physically present in the
US or its possessions for a period totaling 10 yrs. 5 of those 10 yrs must have been
after the citizen parent reached the age of 14
5. May acquire citizenship derivatively through their parents naturalization

Rogers v. Bellei
F: congress imposes condition subsequent that the child of a one USC family born
abroad must reside in the US for 5 years continuously from the years 14-28
Ct: the imposition by congress of a condition subsequent that the USC born abroad to a
one USC family/parent is not unreasonable. Congress has the power to impose the
condition subsequent of residence in this country on appellee, who does not come
within the Fourteenth Amendment's definition of citizens as those 'born or naturalized in
the United States,' and its imposition is not unreasonable, arbitrary, or unlawful.
NB: Case is moot because the law was changed

       2. Derivative Citizenship

When a minor child born outside the US has a parent who naturalizes they can derive

B. Naturalization
- the judicial or administrative process of conferring citizenship to those who didn’t
acquire it at birth
                                    10 REQUIREMENTS

       1. LPR status

- must be lawfully admitted and in status
- not “abandoned”
- can be placed in removal proceedings if there is a problem

Matter of Kane BIA 1975
F: Jamaican was living in Jamaica 10+ months out of the year and running a bording
house, resided in the US two months/year but considered the US “home”
I: How can an LPR abandon their status?
Ct: Must be a temporary visit abroad, can’t be living in another country; look to objective
facts, not subjective intent
        2. Residence

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                                     Immigration Law

- Must have 5 years residence as an LPR
- residence = principal actual dwelling place
- exceptions -
       only need 3 years if marriage to USC
       can be outside US if working for US gov’t, US corp, religious org. . .
- absence of more than six months is a rebuttable presumption that the continuity has
been broken

       3. Physical Presence

- Must be physically present in the US during ½ of the 5 years of residence
- must be during the 5 years immediately before the application is heard
- exceptions -
       18 months for spouse of USC

       4. Age

- Must be 18 or older to file petition
- Parent must file for child under 18

       5. Literacy

- Must be able to speak, read, write simple English
- Exemptions
       Physical condition (deaf, blind, learning disabled . . .)
             50/20 - if you are over 50 and have been an Lpr for 20 yrs
             65/15 -                 65                          15

       6. Must know History and Government of the US

- Usually at a high school level
- standardized tests
- 50/20 & 65/15 exemptions - can take test in native language or with interpreter

       7. Good Moral Character

- same as discretionary applications for relief
- character must be good for statutory period of relief
- ex of stuff not barred: drunk driving, failure to pay taxes/child/spousal support
- but don’t smuggle drugs
        8. Not Otherwise Barred

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                                     Immigration Law

        army deserter
        alien exempted from military service during the draft based upon alienage

        9. Attachment to Constitutional Principles

- must be well disposed to the good order of the US
- Believes in US political process
- determined by behavior over time
- not convicted for military desretion

        10. Must be willing to take an oath of allegiance to the US

- renounce former allegiance
- if there is clear and convincing evidence that you are opposed to bearing arms, you
can perform non-combat military services if drafted
- if clear and convincing religious reason you can do national civil service


        1. Spouse
              3 years continuous residence
              18 months physical presence

      2. Minor Children of USC’s
            Residence & Physical Presence requirements do not apply
            Good moral character and attachment to constitutional principles is

        3. Minor Children of LPR’s that Naturalize (Derivative Citizens)
              Must be under 18
              IF one parent USC and one parent alien . . . derive citizenship if . . .
                     Alien parent naturalizes
        4. People who have served honorably in the military for 3 yrs
              residence and presence waived
              honorable discharge establishes good moral character

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                                     Immigration Law

                                  PROCEDURAL ISSUES

       1. preliminary application
              interviewed to see if applicant meets 10 requirements

       2. Dual Citizenship
             law looks with disfavor upon dual citizenship
             nothing precludes dual citizenship

                                    RIGHTS OF A USC

equal protection
serve as senator, rep, not president
certain restricted jobs
immunity from deportation

C. Denaturalization

- legal proceeding to revoke the original judicial decree of naturalization
- can’t be cancelled by congress for arbitrary or discriminatory provisions
- must be in one of three grounds
        1. procured naturalization by concealment of a material fact

What is a material fact?

Kungys v. US US Sup Ct
- A fact that was concealed was material if it would have led to an investigation and a
discovery of other facts bearing upon admissibility
- must be an affirmative concealment, can’t just be a failure to voluntarily disclose

       2. fraud or willful misrepresentation

       3. Illegally procured naturalization

What is illegal procurement?
- relates to something that would affect eligibility

Federenko v. US US Sup Ct 1981
I: did his failure to disclose his past as a Nazi concentration camp guard make the

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                                     Immigration Law

citizenship illegally procured?
Ct: yes. Material misrepresentation. The facts, if known, would have made him

D. Expatriation

- the voluntary relinquishment of citizenship
- must be
       with the specific intent to relinquish
       naturalization in a foreign state
       oath of allegiance to a foreign state
       serving in a military hostile to the US
       formal renunciation
       conviction for treason or subversion

Vance v. Terrazas            US Sup Ct 1980
F: Person who acquired dual Mexican and United States citizenship at birth brought
action for declaration of United States nationality.
CT: (1) government must prove intent to surrender United States citizenship and not
just the voluntary commission of an expatriating act; (2) proof by a preponderance of
the evidence is sufficient; and (3) rebuttable presumption that act of expatriation was
voluntary is not constitutionally infirm.


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