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Immigration Law Outline


									Immigration Law Outline                                                           Spring 2009
  A. Categories of People

  1. Immigrant §203: (defined by §101(a)(15) “every alien except an alien who is within one
     of the following classes of non-immigrant aliens”)
         a. Quota System:
                 i. Exempt from general Quotas:
                        1. Immediate relatives (spouses, parents of over 21s, children)
                        2. LPRs returning from temporary visits abroad
                        3. Some former US citizens
                        4. Children born to LPRs abroad
                        5. Recipients of permanent discretionary relief
                        6. Those fleeing persecution (have their own quotas)
                        7. “Parolees” (usually allowing non-citizens to come for urgent
                            personal reasons or to allow applicants for admission to remain
                            pending application – a grant of parole is not an admission)
                        8. Congress occasionally admits a special group on an ad-hoc basis
                                a. Relief for nurse shortage, eg
                                b. One-time statutes admitting underrepresented countries or
                                    people who arrive as part of an unusual migration
                ii. General Quotas: Subject to total limits + country limits
                        1. Family (in order of preference) §203(a): Total annual worldwide
                            limit for family-sponsored immigrants: 480K – No. of immediate
                            relatives (including children born abroad to LPRs temporarily
                            abroad) admitted in the preceding fiscal year + any employment
                            based visas that were available the preceding fiscal year but were
                            not used (Certain grants of parole also slight reduce annual ceiling
                            § 201(c)(1)(A)(ii)). However, in any year in which that formula
                            produces a number less than 226K, they will bump up the ceiling
                            to 226K:
                                a. Over 21 unmarried children of US citizens
                                        i. Annual allotment: 23,400 max/ yr + any left over
                                           from (iv) brothers and sisters category
                                b. LPR spouses/ children or over 21 unmarried children
                                        i. Annual allotment: 114,200 max/ yr + any amount
                                           over the 226K ceiling for total family sponsored
                                           immigrants determined by Congress for that year +
                                           any left over from (I – over 21 unmarried children)
                                           except that at least 77% of the visas in this sections
          will go to the spouses and children (under 21) of
      ii. 2 sub-groups:
                1. 2As: spouses and under 21 children of
                     LPRs – receive 77%
                         a. 75% of this group is exempt from
                              per-country limits
                2. 2Bs: over 21 unmarried children of LPRs
c. Married over 21 children of citizens
       i. Annual allotment: 23,400 max/ yr + any visas left
          over from (i) and (ii)
d. Siblings of citizens over 21
       i. Annual allotment: 65K max/ yr + any left over from
          (i), (ii) and (iii)
e. Issues to watch for:
       i. Waiting times depend on supply and demand of
          visas varying according to preference category and
          depending on country.
                1. Child Status Protection Act (2002):
                     Sometimes children “age-out” – the
                     legislation means processing times aren’t
                     counted against child
                         a. For immediate relatives of US
                              citizens – age is frozen when petition
                              is filed.
                         b. For children of LPRs – use age at the
                              time the visa becomes available, but
                              reduced by the amount of time the
                              visa petition was pending, as long as
                              the beneficiary files the necessary
                              forms with the consulate within one
                              year of the visa becoming available.
      ii. Note: Immediate relatives are exempt from the
          quotas, but they deduct the number of visas which
          they take up from the supply available during the
          next fiscal year to other family members of US
          citizens and LPRs (226K minimum addresses fear
          that the immediate relatives would use all).
     iii. Fraudulent Marriage: Marriage must be:
                1. Legally valid
2. Factually genuine
      a. Test: whether at the inception of the
          marriage the parties intended to
          establish a life together.
3. Sham marriages can be bilateral or unilateral
4. Immigration Marriage Fraud Amendments
      a. §216(a)(1) & (g)(1): A noncitizen
          receiving LPR status by virtue of a
          marriage that is less than 2 years old
          will have Conditional LPR status:
               i. If at any time during the
                  individual’s first two years of
                  permanent residence, the AG
                  (now Secty of Homeland
                  Security) finds that the
                  marriage was entered into for
                  the purpose of procuring
                  immigrant status or that the
                  marriage has been judicially
                  annulled or terminated (other
                  than by the spouse’s death),
                  or that a fee (other than an
                  attorney fee) was given for
                  the filing of the petition, then
                  permanent resident status is
              ii. Noncitizen can contest the
                  finding at a removal hearing
                  in which gov’t has burden of
             iii. Note on DEATH/ Widow’s
                  Penalty: If the citizen dies
                  and the marriage is less than
                  two years old, the noncitizen
                  probably will have the
                  conditional LPR status
                  terminated! But, if death
                  occurs after two years has
                  passed, then you can apply
       for waiver based on death of
       a spouse.
iv.    This distinction is due to §
       201(b)(2)(A)(i) “a spouse is
       considered an immediate
       relative if an alien who was
       the spouse of a citizen of the
       US for at least 2 yrs at the
       time of the citizen’s death,
       the alien (and each child of
       the alien) shall be considered
       … to remain an immediate
       relative after the date of the
       citizen’s death but only if the
       spouse files a petition …
       within 2 yrs after such date
       and only until the date the
       spouse remarries.”
 v.    9th Circuit says second
       sentence irrelevant and only
       the fact you are a spouse
       matters – the second sentence
       is only relevant when a
       person who might have filed
       for conditional LPR status
       didn’t get around to it in time
       (suggesting you could file a
       self-petition after death)
vi.    Other courts/ gov’t disagree
       and apply the second
       sentence so you couldn’t be
       considered a spouse.
vii.   Practically, this means that
       anyone who applies when
       they have been married
       already for two years, will
       have LPR status granted
       immediately, whereas if it is
       less than 2 years old,
              conditional status will be
              granted for two years.
       viii. Main Point: if you’ve been
              married almost two years, it’s
              better to wait until the two
              years have passed and apply
              for straight LPR status
              straight away.
b.   The conditional resident and spouse
     have an affirmative duty to jointly
     petition for removal of the condition
     and to appear at an interview in
     connection with that petition.
c.   § 216(b)(1) Petition must be filed
     during 90 day period immediately
     preceding the second anniversary of
     the person’s admission for
     permanent residence.
d.   §216(c)(2)(A) if the joint petition is
     not filed on time, or if without good
     cause either spouse fails to appear at
     the interview, then permanent
     residence is terminated.
e.   Through petition and interview, the
     couple must establish the marriage:
           i. Was legally valid
          ii. Was not entered into for
              immigration purposes
         iii. That no fee (other than
              attorney’s fee) was paid for
              the filing of the petition.
         iv. USCIS is looking for fraud
f.   § 216(c)(3)(D) If the decision is
     favorable, the condition is removed.
     If unfavorable, the permanent
     resident status is terminated , bu the
     noncitizen may contest the finding at
     a removal hearing in which gov’t has
     burden of proof.
       g. § 216(c)(4) If the immigrant is
           unable to meet the requirements for
           removing the conditions, that person
           can apply for a waiver (also applies
           to proceedings to terminate
           permanent resident status)
                i. If removal would cause
                   “extreme hardship” to
                   conditional resident, (or
                   possibly also to spouse or
                   dependent child)
               ii. Considering only the period
                   of time the alien was
                   admitted as a conditional
              iii. If the qualifying marriage
                   was entered into in good faith
                   by the alien spouse, but the
                   qualifying marriage has been
                   terminated (other than
                   through death of the spouse)
                   and the alien was not at fault
                   in failing to meet the
                   requirements or
              iv. If the qualifying marriage
                   was entered into in good faith
                   by the alien spouse and
                   during the marriage the alien
                   spouse or child was battered
                   by or was the subject of
                   extreme cruelty perpetrated
                   by his or her spouse or citizen
                   or permanent resident parent
                   and the alien was not at fault
                   in failing to meet the
                   requirement (battered wives)
5. Marriages entered into while petitioner is in
   removal proceedings will not be the basis
   for a LPR grant until the alien has resided
   abroad for two years.
                              a. Manwani v. INS found this to be too
                                 harsh so today it can be overcome
                                 according to:
                                      i. § 204(g): avoid the 2 year
                                          residency abroad requirement
                                          by proving genuineness of
                                          marriage by “clear and
                                          convincing evidence.”
            iv. Nonmarital children: Matter of Mourillon –
                 common parent that was necessary for a stepsibling
                 to qualify turned out to be a stepmother, rather than
                 the blood parent because of marital requirement.
             v. Same Sex Marriages Adams v. Howerton – same sex
                 marriages don’t qualify for family visas
2. Employment (in order of preference) §203(b): Total may not
   exceed 140K + any family-sponsored visas that were available the
   preceding year but were not used.
       a. First: 28.6% of emp. visas issued + unused visas from 4
          and 5)
              i. Aliens with extraordinary ability in the sciences, art,
                 education, business or athletics which has been
                 demonstrated by sustained national or international
                 acclaim and whose achievements have been
                 recognized in the field through extensive
             ii. Outstanding professors and researchers
            iii. Certain multinational executives and managers
                      1. Note: not as high a standard/ fine for
                          multinational transfers
            iv. Notes:
                      1. Requires documentation of evidence
                      2. Quota is not normally met in this category
       b. Second: 28.6% + any emp. visas not used by category 1
              i. Aliens who are members of the professions holding
                 advanced degrees (ie graduate degrees) or aliens of
                 exceptional ability (sciences, arts, professions or
                 business sought by a US employer)
                      1. Advanced degrees or Bachelor’s + 5 years
             ii. Waiver of job offer
               1. AG waiver
               2. Physicians working in shortage areas or
                   veterans facilities
               3. Waivers in areas of employment with
                   substantial intrinsic merit
     iii. Notes:
               1. Requires documentation of evidence
               2. Requires job offer and labor certification
                   (for most of the category) unless you receive
                   a national interest waiver
c. Third: 28.6% + any emp. visas not used by categories 1 &
   2/ limited now to 40K per year with 10K going to unskilled
       i. Skilled workers, professionals and other workers
      ii. Skilled labor requiring at least 2 years training or
          experience, not of a temporary or seasonal nature for
          which qualified workers are not available in the US
     iii. Professionals: Baccalaureate degrees / members of
          the professions
     iv. Other workers: unskilled labor, not of a temporary
          or seasonal nature, for which qualified workers are
          not available in the US
               1. Not more than 10K of the visas available
                   under the third preference can go to these
                   workers (less an offset for NACARA)
      v. NOTE: Labor Certification Required for all
          workers in this category under §212(a)(5)(A)
               1. Policy concerns over protecting workers
                   from exploitation through wages and
                   protecting US workers’ jobs
               2. Certs Typically obtained by employer from
                   Dept of Labor/ Labor Secty where:
                       a. There are insufficient qualified
                           workers who are able, willing and
                       b. The employment of the alien will not
                           adversely affect the wages and
                           working conditions of workers
                       c. Exception for members of teaching
                           profession or someone with
                           “exceptional ability in the sciences
         or the arts” - standard is whether
         there are not “equally qualified” US
         citizens, not “able, willing and
         qualified” only.
3. Procedure/ PERM (2005):
      a. First determine whether the
         particular job requires an active
         process for certification or if the
         occupation qualifies for automatic
         certification (Schedule A: nurses,
         physical therapists and those with
         “exceptional ability in science ad art
         only now)
               i. If qualify under automatic
                  cert, file visa petition with
                  USCIS immediately
      b. If not, file for labor cert with ETA
      c. Show recruitment of US workers
               i. Get prevailing wage
                  determination from SWA
                  agency and determine
                  requirement for job
              ii. (ONET shows qualifications
                  usually require for every job
                  in US)
             iii. Attempt to fill job according
                  to the following steps: write
                  job description (an art to craft
                  so no one will respond); if
                  you find someone who is
                  minimally qualified, then you
                  must hire, but if you say no
                  one was minimally qualified,
                  you might have to prove it if
             iv. If you fail to find anyone, file
                  application with dept of
                  labor: affidavit/ statement of
                  what you did/ don’t file all
                  docs unless audited.
       d. ETA “certifying officer” decides
          application: approve, denied in
          writing stating reasons and advising
          that review can be requested in 30
          days or forward review to BALCA
       e. If certification is denied appeal to
          BALCA – Board of Alien Labor Cert
          Appeals/ Labor dept ( like Marion
4. Matter of Marion Graham: live-in domestic
   help denied:
       a. Live-in requirement raises lots of red
          flags because it isn’t deemed a
          necessity and narrows pool of
       b. She could have won if she had
          succeeded in showing a live-in was a
          “business necessity” but she didn’t
          have enough documentation
                i. Business Necessity:
               ii. No real test for this at the
                   time – in live-in domestic
                   help she had to show that
                   living-in was essential to
                   performing the job duties in a
                   reasonable manner.
              iii. TEST today: job duties bear
                   a reasonable relationship to
                   occupation in context of
                   employer’s business and is
                   essential to perform the job in
                   a reasonable manner.
       c. PERM LIVE-IN TODAY: Must
                i. Live-in requirement is
                   essential to performing the
                   job duties in a reasonable
                   manner and
               ii. There are no cost-effective
               5. For combining two positions into one,
                   employer must demonstrate that hiring two
                   people will be “infeasible” / costly/
                   inefficient is not enough.
               6. Employers must show there are NO
                   qualified workers available, not no equally
                   qualified workers (exception above)
               7. Note: LPR applicants “adjusting status” can
                   change to same or similar job after having
                   waited 180 days without USCIS labor cert.
d. Fourth: Special Immigrants §101(a)(27): 7.1% of emp.
   Visas max
       i. LPRs returning from temporary visits abroad
      ii. Previous US citizens who may reapply for
     iii. Immigrants + spouse and children if accompanying
          or following to join who:
               1. For at least 2 yrs immediately preceding the
                   time of application for admission, has been a
                   member of a religious denomination having
                   a bona fide nonprofit, religious organization
                   in the US
               2. Seeks to enter the US solely for the purpose
                   of carrying on the vocation of a minister of
                   that religious denomination before Oct 1,
                   2008 (subject to other conditions – see
                   statute), and has been carrying on such
                   vocation, professional work, or other work
                   continuously for at least the 2 yr period
                   described above.
     iv. Employee of US gov’t of certain kinds
      v. Other
e. Fifth: Employment Creation: 7.1% of emp visas max
       i. Qualified immigrants seeking to enter the US for the
          purpose of engaging in a new commercial enterprise
          (only 100-150 admitted each year)
               1. In which such alien is investing $1mill and
               2. Creating full time employment for at least
                   10 US citizens, LPRs or other work
                   authorized immigrants (other than the
                           investing immigrant’s spouse, sons or
                       3. Must invest in a “new enterprise”
                       4. Status is terminable within 2 years if it’s
                           found the business was established for
                           purpose of evading immigration laws or if
                           less than 10 new jobs were created
                                a. Conditional LPR status like
                                    marriage/ must petition for removal
                                    of conditional status before end of
                                    two years
3. Diversity §203(c): Basic annual ceiling is 55K (§201(e)), but now
   reduced to 50K to offset NACARA admissions)
      a. Based on high admission/ low admission determinations by
               i. No visas for natives of high admission states
              ii. Low admissions states in low admission regions
                  receive percentage x population ratio
            iii. Low admission states in high admission regions get
                  the rest
             iv. Redistribution by Secretary of State is possible
              v. Natives of any single state receiving visa cannot
                  exceed 7% of total in any given year – results in long
                  wait times from highly demanding countries
             vi. Regions: Africa, Asia, Europe, North America
                  (other than Mexico), Oceania, South America/
                  Mexico/ Central America/ Caribbean
            vii. An alien is not eligible for a visa unless
                       1. The alien has at least a high school
                           education or equivalent or
                       2. Has, within 5 years of the date of application
                           for a visa, at least 2 years of work
                           experience in an occupation which requires
                           at least 2 years of training or experience.
      b. Odds of getting in are about 1:4
      c. Motivated by concerns for engineering national make-up
          (racial engineering – Europe is always on the list, but has
          also been a boon to Africans)
      d. Required to meet educational requirements and apply by
          internet (hard for many)
               4. Asylum/ Refugees (asylees exempt from quotas)
               5. Accompanying spouse or child: § 203(d) A “spouse or child” who
                   is “accompanying, or following to join” an immigrant within any
                   of the 3 broad preference categories is entitled to the same
                   preference status and to the same place in the queue as the
                   principal immigrant.
                       a. Spouse or child must be acquired before the principal
                           immigrant’s admission as an LPR
                       b. No analogous provision for spouse or child accompanying
                           or following the join an immediate relative.
                       c. Spouse or child is regarded as “accompanying” the
                           principal immigrant until 6 mos after issuance of principal
                           immigrant’s visa or adjustment of status/ No time limit on
                           “following to join.”
b. Country Limits:
       i. Generally, combined no of family + employment immigrants from one
          country cannot exceed 7% of total (usually 25K-26K per year)
               1. 2As exempt from country limits
               2. Limited to 2% for colonies of foreign countries
               3. Employment based immigrants are exempt from country limits
                   during any calendar quarter in which total worldwide ceiling for
                   employment immigrants exceeds the worldwide number of
                   qualified applicants. § 202(a)(5)(A)
      ii. Diversity immigrants from one country also generally cannot exceed 7%
     iii. Immediate relatives and other groups exempt from worldwide limits are
          exempt from per country limits also
c. Procedure (for all types):
       i. File Paperwork – generally first come, first served/ file to secure place in
               1. Visa Petitions:
                       a. I-130 for immediate relatives and family based preference/
                           must be filed by US citizen or LPR family member
                               i. Some self-petitioners in cases of abuse ok
                       b. I-140 for employment based
      ii. Check chart for country priority date
               1. Priority date: date on which applicant files documents
     iii. Once priority date comes up, and LPR or citizen is permitted to file a
          petition on your behalf; processing begins
               1. Processing time varies widely
                       a. NY/CA 6 mos for immediate relatives but
                             b. NY 6 mos for First Pref Family while CA 3.7 yrs
                     2. State dept publishes bulletin to estimate wait times, noted by letter
                         “C” for current
             iv. Hurdles to admission:
                     1. Labor certificate or filing of labor condition application for some
                     2. Visa petition
                     3. Once approved, must file visa application (some exempt)
                     4. Admission (visa is usually essential but does not guarantee

2. Non-Immigrant Categories: §101(a)(15)(A-V) “Stay of fixed duration (student, tourist,
   business, etc.)”
      a. In general:
               i. Restrictions on length of stay and permitted activities
              ii. Less demanding admission criteria
             iii. Normally no numerical restrictions (H1Bs capped)
             iv. Substantive eligibility rules less restrictive
              v. Noncitizens seeking admission are presumed to be immigrants (subject to
                  the corresponding higher standards) and must rebut that presumption by
                  showing they qualify as non-immigrants
             vi. 97% of people who come to US are non-immigrants (vast majority tourists)
      b. Temporary Stay
               i. B1: Business visitors
              ii. B2: Pleasure visitors
             iii. E1: Treaty trader/ E2: Treaty investor
             iv. H1B – limited to 65K per year + 20K additional for those with masters
                  degrees or higher/ Valid up to 6 years
                       1. Specialty occupation requires knowledge of theoretical and
                           practical application of a body of highly specialized knowledge (at
                           least bachelor’s degree or equivalent)
                               a. Includes fashion models
                               b. Typically tech workers (Bachelor’s + specialized
                       2. Dual Intent Allowed under H1B (but not all non-immigrant
                           categories): Often people enter on H1B and contemporaneously
                           seek LPR status – Congress has declared these two intentions don’t
                           conflict (defined as intent to leave US by the expiration of one’s
                           lawful stay, coupled with hope of acquiring LPR status)
                               a. Problem is that if you intend to stay permanently when you
                                   enter you are inadmissible/ ineligible
               b. But people genuinely do change their minds
               c. Ethical problems for lawyer: only a client knows his or her
                  intent to remain – if the client tells the lawyer of intent to
                  remain permanently, is the lawyer committing fraud?
                      i. Explain consequences of various forms of intent to
                          the client and leave it up to them to decide
       3. Employer must file “Labor Condition Application” stating:
               a. Employer is paying at least prevailing wage level in the
                  area of employment or the actual wage level at place of
                  employment, whichever is greater
                      i. Very hard to compute existing wages
               b. Working conditions of similarly employed workers will not
                  be adversely affected
               c. There is no strike or lockout
               d. The employer has notified existing employees of the filing
       4. Employer filing fee now $1000 + more for companies that appear
           to be H1B dependent
       5. Spouses and children may not work
v. Lesser Skills: H2A and H2B
       1. H1C: nurse
       2. H2A: Agricultural labor (temporary seasonal)
               a. Requires residence in foreign country
               b. Concerns over exploitation and benefits to consumer of
                  cheaper food prices/ Braceros and other guest workers
               c. Better for employer because employer avoids regulation
                  but must provide:
                      i. Housing on site or rental housing
                     ii. Governed by state requirements
                    iii. Employer must file ahead of time, predicting a
                          shortage (proving no domestic workers)
       3. H2B: other services where local US people cannot be found
               a. Employers need not supply supporting documents for labor
                  certification unless audited
       4. F1: Students/ Universities determine length of eligibility
           according to length of program and offers/ judges extensions
               a. Must agree to leave at expiration of authorized period and
                  must show sufficient funds
               b. OK to work on campus but not off + 1 year post graduation
                  of “optional practical training” (after bachelor’s, master’s
                  or phd)
                 c. No labor certificate required
                 d. Ski resorts/ fishing resorts/ baseball players where not
                     “internationally recognized”
                 e. Students from some countries receiving higher scrutiny
                     than others but if you have the financial resources, they
                     won’t turn you away.
         5. J1: Exchange Visitors: controversial au pair program
         6. C: Tourists
         7. K1: fiancé/ ees and K2: fiance’s children
         8. L1: intracompany transers
         9. S: snitch visas for those able to share critical reliable information
             about either ordinary criminal organizations or terrorist orgs.
         10. T: for victims of “severe forms of trafficking in persons” who are
             physically present in the US or port of entry as result of trafficking.
                 a. Must demonstrate extreme hardship involving unusual and
                     severe harm upon renewal
                 b. OK to work
                 c. Family accompanying or following OK
                 d. 5K limit per year not counting family
                 e. Adjust after 3 years to LPR
         11. U: for women who have suffered substantial physical or mental
             abuse as a result of any of enumerated acts of violence: rape/
             torture/ trafficking/ incest/ felonious assault, etc.
                 a. OK to work
                 b. Some family can come
                 c. Adjust after 3 years to LPR
         12. V: provides limited relief to certain long divided families
 vi. Other:
         1. O visa: athletes, entertainers, artists, scientists, education, business
             with “extraordinary ability”
         2. P visa: internationally recognizes but not extraordinary athletes
             and performers
vii. Cases
         1. Bricklayers’ Union: Company brought masonry workers in on B1
             visas when American workers existed and Union sued – B1
             excludes aliens coming in to perform skilled or unskilled labor (but
             INS Operations Instruction allowed B1 to install machinery) – the
             court held the statute controlled.
                               a. Today some of these workers can come in (after this
                                   decision many companies protested and the union backed
       c. Undocumented (10-19 million people)
       d. Special Registration System: non-immigrant male visa holders from a list of 25
          countries are required to register (Arabic or high population of Muslims)
       e. Procedure:
               i. Fit into a category and prove not inadmissible(non-immigrant’s burden)
                       1. §212(a) 5 major grounds for inadmissibility (see below)
              ii. Apply for a visa abroad
             iii. All non-immigrant visas are on line at state dept web site
             iv. Present visa to CBP inspector at port of entry
              v. To change status: Usually you can apply for adjustment of status (from
                  non-immigrant to LPR or to another non-immigrant category)
                       1. Often you must leave the country (although if applying just to
                           extend current status usually don’t have to leave)
                       2. Some categories ineligible
                       3. Applicants must obtain favorable exercise of administrative
                       4. Must have been lawfully admitted and continue to maintain status
                       5. If inside US file for LPR via “adjustment of status” – If not, file at
                           the consulate – some allowed to adjust in country, some not
3. Citizens:
       a. Birth on US soil “Jus Soli”
       b. By parentage “Jus Sanguine”
       c. Naturalization
4. Nationals: Some degree of membership in political community by virtue of historical
   imperialism (assume we include as citizens)
       a. American Samoans: Not US citizens but born on US soil
       b. Swains Islanders

B. Procedures:

5. Admission Procedure
     a. Petition for visa:
            i. Family member for immigrants family visas (see above)
           ii. Employer for employment
                    1. §212(a)(5)(A) failure to obtain a labor certification is grounds for
            iii. Visa application made in person (if between the ages of 14-79) with
                 consular officer at consular post abroad (photos/ other docs req’d)
                      1. Immigrant visa apps normally made abroad also, but not always
            iv. Once issued, the visa is only valid for a limited time
                      1. Immigrant visa must be used within 6 mos
                      2. Non-immigrant time period varies by country
             v. Consular absolutism: officer has a lot of discretion and no way to appeal
                 (making the fact they must give a reason for denial meaningless)
            vi. Waiver programs §217
                      1. Nationals of countries with historically low rates of visa refusals
                          can enter as tourists or business visitors for up to 90 days without a
                          visa (22/27 countries are Europe)
      b. CBP immigration inspector determines if US citizen or if not, if inadmissible at
              i. All non-immigrants are fingerprinted, digitally photo’d, have docs scanned
             ii. Removal hearings are a right if you are refused entry, but the vast majority
                 simply go home.
            iii. Arriving noncitizen bears burden of proving admissibility
6. Exclusion Grounds: No Due Process limitations on power to exclude Eiku
      a. Crime related
              i. Moral turpitude
             ii. Violations relating to a controlled substance (with exceptions)
            iii. Controlled substance traffickers
            iv. Prostitution and commercialized vices
                      1. Catch – all: gambling, etc.
             v. Conviction of “aggravated felony” now defined expansively to cover wide
                 range of criminal offenses for which relief is unavailable if you are
                 convicted, after having been admitted as an LPR (LPRs treated less
                 favorably here than undocumented immigrants)
      b. Political/ National security
              i. Political views or membership in parties
                      1. Desire to overthrow US gov’t or hostility to gov’t in general
                      2. Affiliation with the communist party
                      3. Anyone engaged in activities “prejudicial to the public interest”
                      4. Espionage, sabotage, subversion suspects
                      5. Adverse affect on US foreign policy
             ii. §212(a)(3) current political grounds
                      1. Communist party is no longer deemed a grounds for exclusion
            iii. Terrorist activities (overbroad definition) §212(a)(3)(B)
                      1. Activity or organization
               2. Engaged or liley to engage
               3. Statutory definition of “terrorism” is very broad and includes many
                  kinds of crime
               4. Includes anyone from a country the US has deemed a state sponsor
                  of terrorism (as determined by secretary of state)
c. Health §212(a)(1)
       i. Communicable diseases (HIV/ AIDS id’ed)
               1. Waivers for spouses and other close family members is possible
      ii. Drug “abuse” (not “use”)
    iii. Mental health
               1. Have not had one or more attacks of insanity
     iv. Commercial vices/ prostitution
      v. Homosexuals no longer excluded
d. Economic (Second most common reason for denial)
       i. Labor certification not approved
      ii. § 212(a)(4) Likely to become a public charge – “any alien in the opinion of
          the consular officer at time of application or opinion of agent at time of
          admission is likely at any time to become a public charge
               1. “Public Charge”: primarily dependent on US gov’t (mere receipt
                  of public funds is not a public charge):
                      a. Food stamps, Medicaid (but not long term institutional
                           care) or CHIP, emergency medical care, nutritional
                           programs, head start, job training, soup kitchens, crisis
                           counseling OK
                      b. TANF, SSI, State general assistance is NOT OK
                      c. Determinative question is whether the program is intended
                           to be a primary source of cash for income maintenance.
                      d. Affidavits of support can help overcome (they are binding)
                      e. Waiver available on giving of “public charge bond”
                           promising to indemnify gov’t of responsibility
               2. Factors:
                      a. Age
                      b. Health
                      c. Family
                      d. Status
                      e. Assets
                      f. Education/ Skiills
                      g. Gender (not technically)
     iii. Family based or immediate family visa must show financial sponsoring
          (affidavit of support) by sponsor of visa – legally binding and enforceable
          against the sponsor
               1. Must meet 125% of poverty level, calculated including who else
                   depends on you, included other family members you have
                   sponsored to come, must be over 18 and
               2. Family members can join and pool resources if one can’t do it
     iv. Includes former US citizens who renounced citizenship to avoid taxation
e. Immigration control
       i. Failure to complete documents correctly (most common reason for denial)
      ii. Failure to obtain labor certification
     iii. Misrepresentation in process
               1. Fraudulent visas: inadmissible for life
               2. False claim of citizenship or document fraud
     iv. No valid passport or visa at border
      v. Unlawful presence: If unlawfully present for a certain period of time there
          are admissibility consequences:
               1. §212(a)(9)(B):
                       a. (i)(I) if unlawfully present for period of more than 180 days
                           but less than one year and voluntarily depart, inadmissible
                           for three years
                               i. Intepret the statute to be mean continuous unlawful
                                   presence, not aggregate (ie two unlawful four month
                                   stays do not mean 8 months
                              ii. Not considered unlawfully present until the due date
                                   for voluntary departure comes if have been granted
                                   VD – ie presence before the case has been heard is
                                   not unlawful although violation of terms of
                                   admission make the person deportable
                             iii. Note: In contrast to above, there is unlawful
                                   presence while waiting for hearing after “Notice to
                                   appear,” according to former INS but the BIA sasys
                                   not – still unclear.
                             iv. Timely filed, nonfrivolous application for either
                                   extension of stay or change of status which is not
                                   decided before original stay authorized runs out, will
                                   be considered authorized stay, provided the person
                                   has not worked without authorization
                              b.    (i)(II): unlawfully present for one year or more
                                   inadmissible for 10 years
                               c. Exceptions to the two above: (pg 133 INA)
                                        i. Minors: no period of time in which an alien is under
                                           18 shall be taken into account in determining the
                                           period of unlawful presence
                                       ii. Asylees: If bona fide application pending, time not
                                           taken into account in determining unlawful presence
                                      iii. Family Unity
                                      iv. Battered women and children
                                       v. Victims of a severe form of trafficking in persons
                                      vi. Tolling for good cause (see above no iv nonfrivolous
                                           application pending)
                               d. §212(a)(9)(C): if unlawfully present for an aggregate
                                   period of more than one year or removed for any reason
                                   and who then enters or attempts to enter without being
                                   admitted will be inadmissible for 10 years, after which time
                                   Secretary of HS can grant permission to reapply for
            vi. No Show for removal hearing § 212(a)(9)(A) – inadmissible for five years
                 if you fail to attend without reasonable cause.
           vii. §212(a)(9)(A) Noncitizens who are ordered removed are generally
                 inadmissible for either 5 or 10 years depending on whether they were
                 removed upon or after arrival (20 years for second offenders, forever for
                 “aggravated felons”
                      1. AG can waive this by consenting to person applying for admission
     f. Other Inadmissible:
              i. Stowaways
             ii. Surreptitious entry (must enter at port of entry and be admitted or paroled)
           iii. Assisting others to enter unlawfully
            iv. Someone who was unlawfully present for an aggregate of more than 1 year
                 or who was removed and then enters without being admitted or attempts to
     g. General Notes:
              i. If inadmissible, but in the country, that is grounds for removal (before 96
                 had to be deported if you were in the country)
7. Waivers
     a. If inadmissible, apply for a discretionary waiver:
              i. §212(g) waive inadmissibility for health related condition if they prove
                 close family relationship
             ii. §212(d) humanitarian consideration
8. Deportability Grounds
      a. Entry
      b. Admission:
              i. §212(a) Grounds for admissibility
             ii. IO will try to determine you are clearly beyond doubt admissible
            iii. If you choose to go voluntarily you will avoid a formal removal order that
                 has future consequences, but on the other hand, people are being
                 discouraged from their right to a hearing to challenge the order.
            iv. If there’s any indication someone might be entitled to human rights relief at
                 the border, they are supposed to get a screening interview – risk that they
                 go home when encouraged or too much discretion at the border.
             v. certain categories of arriving noncitizens are detained even today while
                 admission decisions are pending
      c. Removal: Today everything is called removal, but the grounds listed are still
          either for “deportability” or “inadmissibility”/ The distinction is still relevant
          because discretionary relief available will depend on which category
              i. Voluntary departure §240(b): in lieu of removal proceedings or before
                 they’ve been initiated with restrictions
                      1. Can be granted by ICE before hearing or after by IJ but only within
                          30 days of master calendar hearing
                      2. Granted by IJ at conclusion of removal proceedings
                              a. Good moral character
                              b. Presence requirement
                              c. Must not be deportable on national security grounds
                              d. 60 days max to leave + mandatory bond
                      3. Often better to do VD because otherwise you are barred from re-
                          entry for 10 years §212(a)(9) aliens previously removed
             ii. You can specify country you prefer to be removed to or object to a country
                 / some have no countries willing to accept them (one man detained 10 years
                 waiting for a country – if that happens today, the person can’t indefinitely
                 be detained and must just be released)
            iii. Removal:
                      1. “Notice to appear” is first step in process §239(a)
                              a. Notice specifies:
                                      i. Time and place of removal hearing and notice of
                                         procedural rights
                                     ii. Grounds for inadmissibility/ deportability
                                    iii. Charging document similar to an indictment
         b. Hearing must be at least 10 days later unless noncitizen
             requests earlier (time to obtain counsel, etc)
         c. Person cannot be removed until the hearing (can be months
             or years but presence here while waiting is OK)
         d. Must prove “clearly and beyond doubt” you are admissible
         e. No Show: Inadmissible for five years if you fail to attend
2.   Hearing: immigration judge rules on deportability and/or
     availability of discretionary relief
3.   ICE or noncitizen can appeal to BIA (petition for review filed
     directly in court)
4.   Noncitizen (but not ICE) can appeal again in US Ct of Appeals
5.   Special grounds for removal:
         a. Expedited Removal (at the border) §235
                  i. Based on certain grounds for removal (fraud, no
                     docs, no sign you are a proper asylum applicant)
                 ii. §235(b)(1) New grounds after 1996:
                         1. undocumenteds unable to prove 2 or more
                             years continuous presence (but catch-22
                             because they will have difficulty
                             establishing longevity, but even if they can
                             since it’s more than one year here they will
                             be excluded for 10 years)
                         2. If apprehended within 14 days and 100
                             miles of checkpoint
                         3. If fraud of documents is grounds for
                             removal it bars you from admission on a
                             permanent bases 89% of cases.
               iii. Process:
                         1. Ordered removed on the spot / boat or plane
                             found immediately
                         2. 99% leave asap/ 1% have valid asylum app
                iv. No judicial review in expedited removals unless:
                         1. Asylum claimant
                         2. LPRs
                         3. Admitted refugees and those who have
                             already received asylum
                         4. But OK to review if person is a citizen,
                             whether person was ordered removed or
                             whether person falls in one of excepted
                             categories above
                b. §235(c) Removal on National Security Grounds
                         i. Removal without further hearing
                        ii. Closed hearings based on secret evidence
iv. Current Deportability Grounds: §237(a) Grounds for deportability
 v. Turns on “admission” not “entry”/ entry is part of definition of admission
    but not every physical crossing is entry (except Fleuti exception)
vi. Non-Criminal Grounds
         1. Entry without inspection (pre 1996 only/ now you have not been
         2. Entry while inadmissible
         3. §237 (a)(1) and (3) Post-entry conduct related to immigration
                a. Present in violation of the law or inadmissible
                b. Violating condition of stay
                c. Conditional status terminated on basis of marriage or
                d. Inadmissible at time of adjustment of status
                e. Violations of reporting/ registration laws of classes of
                f. People smuggling (special rule in the case of family
                g. §237(a)(1)(H) Waivers of removal for fraud or
                     misrepresentation available in certain cases
                h. Any alien who has become a public charge within 5 years
                     after the date of entry from causes not affirmatively shown
                     to have arisen since entry is deportable
                         i. Define as long term assistance at gov’t expense
                        ii. Receipt of public cash assistance
         4. Cases:
                a. Ching and Chen:
                         i. Entry occurs if crossing into territorial limits of US
                             (ie physical presence) OR
                        ii. Inspection and admission by an immigration officer
                             or actual and intentional evasion of inspection at the
                             nearest inspection point and freedom from official
                       iii. Case from 1984 / Chinese man and woman escaped
                             while awaiting flight back to HK and were deported
                             because they were deemed to have entered, rather
                             than being subjected to exclusion proceedings
                       iv. Today this matters for obscure situations
                b. Rosenberg v. Fleuti:
                         i. After Fleuti, a Swiss national, was admitted as LPR
                            in 1952, homosexuality became a grounds for
                            inadmissibility (although it was not at the time he
                            was admitted). He spent one afternoon in Mexico in
                            1956 and INS sought to deport him on the grounds
                            he was inadmissible upon re-entry due to
                        ii. Holding: There is no departure/ entry unless there is
                            intent to depart in a manner which can be regarded
                            as meaningfully interruptive of the alien’s permanent
                                 1. Factors to show intent:
                                         a. Length of time of absence
                                         b. Purpose of the visit
                                         c. Whether travel documents are
                       iii. Unclear if Fleuti is still relevant:
                                 1. Abandonment of LPR status turns on
                                     whether visit is temporary or prolonged
                                         a. If gone for less than 1 year, can
                                             present unexpired green card or
                                                  i. LPR status continues unless
                                                      gov’t proves abandonment by
                                                      clear unequivocal and
                                                      convincing evidence.
                                         b. Can apply in advance for re-entry
                                             permit upon return
         5. (a)(3) failure to register and falsification of documents with some
vii. Criminal Grounds §237(a)(2)
         1. Crimes involving moral turpitude: Any alien who is convicted of a
            crime involving moral turpitude committed within five years (or
            ten years in the case of an alien with LPR status under §245(j) after
            the date of admission and is convicted of a crime for which a
            sentence of one year or longer may be imposed is deportable
                a. With provisions for:
                         i. Aggravated felony
      ii. High speed flight
     iii. Multiple criminal convictions
     iv.  Failure to register as sex offender
      v.  (A) General crimes and (B) controlled substances
          (C) Certain firearm offenses, (D) Miscellaneous
          crimes and (E) Crimes of domestic violence
               1. Controlled Substances: no enumeration
                    except for exception for mj of less than 30 g
                    for one’s own use
               2. (3) Other national security
                        a. Nazi participation
b. Definition: “Base, vile or depraved” Act (intentionally
   general): 3 approaches from Marciano
       i. Traditional/ Dominant Jx: Learned Hand’s def:
          examine elements of the crime without examining
          intent or mens rea – if you can imagine a situation
          under which the act would not involve moral
          turpitude, then not, but if in every instance the
          elements do involve moral turpitude, then it is by
          definition a crime of MT
      ii. General Nature Test/ Minority but adopted in this
          case (Pino): Ask whether as a general nature as a
          matter of common usage this would be classified as a
          crime of moral turpitude
     iii. Minority/ Fact Based approach: Proposed by the
          dissent taking actual intent and extenuating
          circumstances into consideration when necessary.
     iv. As a practical matter today there are lists of crimes
          of moral turpitude that have already been decided as
c. Don’t forget to examine whether the crime is also an
   aggravated felony: §101(a)(43): List is growing
       i. Policy concerns: easy for congress to expand the list
          with little oversight – consequences are severe and
          definition very vague like “crime of violence”
               1. If found, can never return to US without
                    special permission of DHS secretary and if
                    you return then imprisoned for 20 yrs
               2. Impacts sentencing guidelines
               3. Even some misdemeanors qualify
                      4. Gehris case woman would have been
                          deported and barred from returning for
                          pulling another woman’s hair – she had been
                          here since age two – public outcry stopped it
             ii. Leocal: DUI conviction was not a crime of
                 aggravated felony (unanimous SC decision)
                      1. Look for defiiniton of crime of violence and
                          challenge statute pg556
                      2. SC disregarded INS interpretation of statute
     d. Examine all grounds for deportability – single/ multiple
         crimes – or can the crime be said to arise from the same
         “scheme” guidance pg 549-50 on what the same scheme is
              i. Same scheme: (sometimes matters for timing)
                      1. At one time
                      2. No substantial interruption that would allow
                          participant to dissociate himself from his
                          enterprise and reflect
                      3. Pacheco: not a single scheme because two
                          break-ins were separated by two days
                      4. 9th Circuit rejects this – classifies crimes
                          that arose out of single plan not a single
2. Why criminal defense attorneys care
     a. Withdrawing Pleas: Parrino
              i. Def argued his attorney incorrectly informed him
                 there would be no immigration problem if he pled
             ii. Standard is whether it would be a “manifest
                 injustice” to allow the guilty plea to stand
           iii. Court said deportation was a collateral consequence
                 of guilty plea of which there are many (like not
                 being able to vote) and it was not manifest injustice
     b. 6 Amend violations: Pozo
              i. IAC Strickland standard
     c. If serving as immigration attorney, always ask if there is a
         criminal background, and what administrative result was
         because some deportability grounds don’t require an actual
              i. Def of conviction §101(a)(48)(A)
                            ii. §101(a)(48)(B) term of imprisonment is deemed to
                                include the period ordered by the court regardless of
                                any suspension of sentence
                           iii. Try to withdraw guilty pleas, have something dealt
                                with in juvenile court etc.
                     d. Better in some ways to be arrested on criminal grounds
                         than by ICE because police have to respect same rights but
                         ICE can do whatever they want
              3. Policy issues:
                     a. Is deportation serving a punitive role?

d. Relief from Deportability
      i. Ways to contest:
              1. Contest particular element of deportability ground or claimed basis
              2. Try to avail yourself of particular defense such as waiver
              3. Show persecution
     ii. Recurring limitations/ You will be deported if:
              1. Found guilty of an aggravated felony
              2. Notified of removal hearing and don’t show
              3. Deportable on terrorist or national security grounds – affects
                  capacity to challenge
              4. Given voluntary departure but don’t go
    iii. 2 steps to claim relief from deportability
              1. Establish fit into statutory claim for some form of relief
                  (cancellation of removal part A)
              2. Provide evidence that candidate deserves favorable use of
                  discretion (always up to discretion of DHS agents – not entitled to
                  relief on this basis)
    iv. Cancellation of Removal: Best type of relief that grants LPR
              1. Statute:
                      a. §240(A) pg 574 LPRs Requires
                               i. 5 or more years lawfully admitted
                              ii. 7+ continuous years residence in US (Fleuti rule is
                                  sometimes used as standard to determine)
                             iii. No aggravated felony conviction
                             iv. Commonly used where deportation stems from
                              v. Applicant must always show he merits favorable
                                  exercise of discretion
              b. (B) pg 581 LPRs, undocumented, or other nonimmigrants
                  (limited to 4000) Requires:
                       i. 10 or more years continuous presence immediately
                          preceding date of application
                      ii. Good moral character
                     iii. No conviction of criminal grounds offenses under
                     iv. Establish removal would result in exceptional and
                          extremely unusual hardship to alien’s spouse, parent
                          or child who is a US citizen or LPR
                               1. Hardship to noncitizen is irrelevant
                               2. How much hardship is enough?
                               3. Jong Ha Wang
                                       a. Couple from Korea were deported/
                                           economic hardship was not enough/
                                           needs of children not enough
                                       b. Agency’s discretion for determining
                               4. Move to reopen removal proceedings if
                                   hardship has since come up and you were
                                   not eligible previously
                               5. For battery/ extreme cruelty standard is less
                                   than exceptional or extremely unusual
                      v. In practice this is mostly used by undocumented
                          migrants or arriving noncitizens who return from
                          temporary visits abroad after 10yrs + of
                          undocumented presence in US
              c. Battered spouse or child
                       i. 3 yrs continuous presence
                      ii. Good moral character
                     iii. No aggravated felonies
              d. Policy: Recognition of those who have been here long-
              e. §240(c) list of ineligible aliens (eg national security risk)
v. Other avenues of relief: Most not currently available
       1. NACARA (1997) §2459a legalization of Cubans and Nicaraguans
           and Salvadorans continuously present since Dec 1990 (those who
           came this way get deducted from diversity visas / still ongoing)
       2. Registry (Amnesty) §249
              a. Been here since 1972 and meet all requirements
                           b. Apply for registry during a removal hearing to IJ or before
                               a removal hearing to the USCIS
                           c. No hardship requirement, just good moral character, etc.
                    3. Private Congressional bills
                    4. Adjustment of status to LPR
                    5. Limited Relief from deportation when ICE defers action based on
                       low priority of your case (but you don’t get LPR)
           vi. Policy
                    1. Recognition that deportation is similar to punishment?
                    2. Recently the Sup Ct has recognized non-citizens right to review by
                       habeas corpus for removal proceedings/ human rights violations
                       vs. national security

C. Policy Arguments:

       a. Notes:
              i. Political/ Cultural
                     1. As documented by history, only political will is needed to change
                         immigration law: recently immigration law has been impacted by
                         national security concerns:
                             a. Patriot Act expanded the definition of terrorist activity and
                                 made it grounds for deportation, mandatory detention and
                                 permits arrest and detention on national security grounds
                                 with no access to representation/ facilities in isolated areas.
                             b. New structure of federal depts.: ICE + DHS
                     2. Question is how multi-cultural a national community do we want
                         to be?
             ii. Federal Power: Art 1 § 8 “establish an uniform rule of naturalization”
                     1. Sources of power
                             a. Chae Chan Ping v. US: Earliest statement of Plenary
                                 Power doctrine applying in the exclusion
                                       i. Immigration (admissibility, entry, etc) as distinct
                                          from naturalization (admittance to the political
                                          community), therefore the “rule of naturalization”
                                          clause doesn’t necessarily give federal control over
                                      ii. Commerce clause might be a basis but here.
                                     iii. Power found in War Powers and Supranational
                                          Sovereignty Powers (international law)
                      1. Held: Court cedes power to review
                           constitutionality of statutes in immigration
                           law because the other concerns take
                           precedence/ Inherently political question
                      2. No checks and balances
                      3. No due process limitations
      b. Fong Yue Ting: Plenary power gives Congress power to
          exclude/ Due Process is met in cursory review of exclusion
          procedure for Chinese laborers in the 1890s
2. Limits on power: None
      a. No DP: Whatever the procedure authorized by congress,
          that is due process as far as an alien is concerned.
      b. However, If the plenary powers doctrine rests on principles
          of international law, then there might be much more
          dictated today by international law that would protect
          human rights for those in limbo or for evaluating the
          doctrine today.
      c. Recently the Supreme Court has recognized right to review
          by habeas corpus for non-citizens (but counter arg is
          always national security).
      d. Residual State Power:
               i. DeCanas v. Bica: Preemption doesn’t apply in
                   every single matter relating to immigration

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