Outline for "Immigration and Citizenship Law"

7/28/2019 Outline for "Immigration and Citizenship Law"

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Acquisition of U.S. Citizenship at Birth

Birthright citizenship in the U.S. refers to a person's acquisition of citizenship by virtue of the

circumstances of his or her birth. It contrasts with citizenship acquired in other ways, for example

by naturalization later in life. Birthright citizenship may be conferred by jus soli or jus sanguinis. Under

U.S. law, any person born within the U.S. and subject to its jurisdiction is automatically granted U.S.

citizenship, as are many (though not all) children born to American citizens overseas.

Since the adoption of the XIV Amendment to the constitution on July 9, 1868, the citizenship of persons

born in the United States has been controlled by its Citizenship Clause, which states: "All persons born

or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside."

Jus Solifrom the first clause of the XIV amendment, citizens born in the territory are citizens. This is the

principle ofJus Solithat grants citizenship to everyone born in the country except the children of foreign

representatives during their official functions and children born to hostile armed forces during their

occupation of American soil. In 1898 the SC ruled that an American-born person of Chinese ancestry

constitutionally cannot be denied U.S. Citizenship and be excluded from the country on the ground that

his parents, who were legally in the United States when he was born, are nonetheless subjects of the

Emperor of China. (U.S. V. Wong Kim Ark)

Jus Sangini - Since 1970 Congress has made special provision for the transmission of U.S. nationality suresanguinis. This is a form of birthright citizenship not secured by the XIV amendment. To avoid the

indefinite perpetuation of U.S. citizenshipjure sanguis Congress rely solely on parental residency

requirements. 301 (Children born out of wedlock provision 1409)

Naturalization and Expatriation

Naturalization requirements (316): (a) Residence and physical presence: (1) the person must reside

continuously in the U.S. for 5 years as a lawfully admitted permanent resident (LPR), (2) during the five

years immediately previous to filing the petition the person was present in the U.S. for half that time

and (3) the person has resided 3 months in the district in which he files his petition; (b) Age: applicants

for naturalization must generally be 18 years old. Most children who are naturalized obtain citizenship,

known as derivative citizenship, when one of their parents is naturalized. The child must have been

admitted as a permanent resident and reside with the parent in the U.S. (no 5 year residencyrequirement for them)(c) English language proficiency: applicants must demonstrate an understanding

of the English language, including the ability to read, write, and speak words in ordinary usage in the

English language persons over 50 (residing over 20 years) over 55 (residing for 15 years)and those who

have a disability are exempted. (d) Knowledge of civics and history: applicants must pass an

examination. Those with a disability or unable are excepted. (e) Good moral character: naturalization

applicants must establish good moral character for the five years preceding the date of the application.

Applicants must also have not committed any felony. (f) Attachment to constitutional principles: the

purpose of this requirement is to only admit those who are in general accord with the basic principles

(g) Oath of allegiance (since 1975). Burden of proving legal entry is on the LPR.

Naturalization through service in the armed benefits noncitizen veterans in the naturalization process.

Usually the residence and physical residence requirements are waived.

Expatriation Communist party membership does not constitute a basis for subsequent denaturalization.

(modified by statute); To revoke a citizenship certificate the government must prove its case by clear

and convincing evidence. (Schneiderman v. U.S)A U.S. citizen may not be stripped of his citizenship for

swearing allegiance to a foreign country, without proof of intent to relinquish citizenship.

Preponderance of evidence standard set forth in statute dealing with expatriation is constitutional

(Vance v. Terrazas -Last in the series so it establishes the rule.) Citizenship is beyond Congresss power

but the level of proof in expatriation cases does not violate the citizenship clause of the XIV Am. or the

due process clause of the V Am.)


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Statutory provision that, if any of the statutory expatriating acts have been proved, there is a rebuttable

presumption that it was committed voluntarily does not direct a presumption that the act has been

performed with the intent to relinquish United States citizenship; the latter remains the burden of the

party claiming expatriation to prove by a preponderance of the evidence.

Immigrant Visas

Read (2), 203(a)-203(b)(5).

Immigrant visa categories: (a) family-sponsored, (b) employment based, (c) diversity and (d) refugees.

This framework and the quotas were established in the Immigration Act of 1990

(a) Family-sponsored Immigration includes persons in the four family-reunification preference

categories and the immediate relatives of U.S. citizens.

Immediate relatives: includes spouses, children (stepchildren and legitimated children if the

relationship was established before being 18 and adopted children before being 16) and if the

citizen is over 21 years-old the parents. 201(b)No quotas apply.

Family-sponsored preference categories: 1st preference: unmarried sons of U.S. citizens (over

18). 2nd preference: spouses and unmarried sons of LPRs. 3rd preference: married sons and

daughters of U.S. citizens. 4th preference: brothers and sisters of U.S. citizens.

Family-sponsored categories are subject to numerical ceilings; when reached backlogs develop.(b) Employment-based immigration: 1st preference: (1) aliens with extraordinary ability sustained

national or international acclaim, (2) outstanding professors and researchers and (3) certain

multinational executives and managers. 2nd preference: professionals holding advanced degrees

or its equivalents, or those that because of their exceptional ability in the sciences, arts, or

business will substantially benefit prospectively the national economy, cultural or education

interests, or welfare of the United States. Their services must be sought by an employer. 3rd

preference: professionals having only baccalaureate degrees and unskilled workers that would

fill positions for which there is as shortage of American workers. 4 th preference: special

immigrants including religious workers, former longtime employees of the U.S.S government or

international organizations 5thpreference: investors who will create a minimum of 10 jobs in

the U.S. (receive conditional permanent resident status for 2 years to avoid fraud)(c) Diversity immigration: 50,000 visas are extended through a lottery system every year. Applicants

must have a high school degree and in the last 5 years had 2 years of experience in a position that

requires at least 2 years of experience.

Ceilings and floors: The family ceiling thus came to be called a pierceable cap with a floor.

Back-log Charts: No immigrant subject to the quotas may receive a visa (or become an LPR by means of

adjustment of status) until his priority date is current in the chart. His relevant date is the day that the

first relevant document (visa petition or labor certification)was properly filed.

Conversion: if an applicant becomes ineligible for the category in which it first was when she filed (a

daughter married) then she changes to her new category but keeps her original relevant date.

Aging out: Children (under 21) can be at risk of waiting too long and becoming ineligible during that wait

period. Congress modified the rules to address this issue. (1) For immediate relative petitions, the childs

age is deemed to be the age he had when the parents filed the visa petition. (2) If the petition starts in

the second category but converts to the first due to the parents naturalization, the relevant age is that

in the date of the parents naturalization. (3) For FS-2A preference category and for derivative

beneficiaries, the age is determines as of the date when the relevant category becomes current, but he

age is reduced by the time period of time consumed while the visa petition was pending (to keep the

benefit the beneficiary must apply for the visa in 1 year form the time when it became current).


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Formula for calculating the age of the alien child involves two dates: (1) the age of the alien child onthe date on which a visa becomes available for his/her parent's immigration petitions; and (2) thenumber of days the immigration petition is pending. The age of the alien child = (1) - (2)Derivative status: Beneficiaries of preference petitions can give Derivative Status to their own families.

Derivative status allows the beneficiary's family to get immigrant visas without their own separate

petition. As an example, if a US Citizen sponsors his married son (Family 3), not only does the married

son get a green card but also the son's wife and children, all from the one petition for the son.Only preference petition beneficiaries get derivative status. Immediate Relatives are not in the

preference system so they do not get derivative benefits. Because of this, the US Citizen sponsor must

file a separate petition for each Immediate Relative.

Employment Based Immigration and Labor Certification I 360-381. Exercise on 361-362.

Labor certification: Before a noncitizen in these categories can become the beneficiary of an approved

visa petition, a labor certification must be secured form the Department of Labor. In 2005, DOL

revamped the process through the Program Electronic Review Management.

PERM: Employers must show that they unsuccessfully sought American workers for the open position

and offered the prevailing wage (determined by the SWA). After the recruitment, the employer

elaborates a recruitment report withal the hires and the number of US worker rejected and an

explanation of the job-related reasons for such rejection. (The report is not filed but the employer must

retain it readily available for 5 years).

Schedule A: this schedule list occupational categories that do not need to go through labor certification

process (physicians and registered nurses).

The employer need not prove that without the foreign employee the operation of the business would be

undermined. To establish business entity, an employer must show that the job requirements set forth

in an application for certification bear a reasonable relationship to the position in issue and are essential

to the reasonable performance of the job duties as specified by the employers(In the matter of

Information Industries, INC.)

Prevailing wage requirement: the prevailing wage was determined by considering not only the job title,

but the nature of the business or institution, were the job is located -Historically black colleges, charities,

etc (In Matter of Tuskegee Universityoverruled) In 1984 the Board of of Alien Labor Certification

Appeals BALCA overruled Tuskegee. BALCAdecided the skills and knowledge required to perform theduties of the job opportunity being offered are any different depending on the employers financial

ability to pay de ongoing rateor between charitable non-profit institutions and businesses operated for

profit. (InMatter of Hathaway Childrens Services ) Finally the DOL overruled the BALCAs decision for

researchers employed by colleges; federal funded research and development centers operated by

colleges and universities; and federal research agencies.

National interest waivers: The Attorney General can waive the requirement that a second-preference

immigrants services be sought by an employer. The Administrative Appeals Office AAO established

that following three pronged standard: (1)The petitioner seeking the waiver must persuasively

demonstrate that the national interest would be adversely if a labor certification is required. (2)The

petitioner must demonstrate that it would be contrary to the national interest to potentially deprive the

prospective employer of the services of the alien by making available the position to U.S workers. (3)TheAlien seeking an exemption from this process must present a national benefit so great as to outweigh

the national interest inherent in the labor certification process. (In Matter of N.Y. State Dept. of Trans. )

Aliens of extraordinary ability (the EB-1A Category): Aliens of extraordinary ability in the sciences, arts,

education, business or athletics are exempt from labor certifications. The INS abuses its discretion when

denying a (Munis) visa by improperly concluding that the alien does not possess an extraordinary ability

under 203(b)(1)(A)(I) if it failed to consider supportive evidence and fails to explain why the evidence

presented was insufficient to establish Munis extraordinary abilities. (Muni v. INS)


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Non-immigrants I 396-403 405-432.

Nonimmigrants : noncitizens who seek entry to the United States for a specific purpose to be

accomplished during a temporary stay (Business and entrepreneurial non-immigrants are admitted to

supply the American employers with the required foreign talent). Immigrant intent: nonimmigrants

must have a residence in a foreign country which he has no intention of abandoning. However, through

the Dual intent doctrine, a desire to remain in this country permanently in accordance with the law,

should the opportunity present itself, is not necessarily inconsistent with lawful nonimmigrant status .

Students: F-1 visa: must be accepted by a school approved by the AG, prove sufficient funds for the first

12 months, the scholastic preparation to purpose a full course of study and sufficient knowledge of

English or have arrangements to be tutored in another language. (F-1 visa holders are allowed to work

on campus and in practical training that relate to their degree program). J-1 visa: is a student visa for

students in exchange programs. J-1 visa holds may be subject to a 2-year rule requiring them to go back

abroad before adjusting to another nonimmigrant status or to become a LPR if: (1)a US agency financed

part of the program (2) the BECA designates the home country as requiring the skill or (3) are coming to

the U.S. for graduate medical training. M-visa: This visa allows students pursuing a non-academic course

of study (e.g. vocational) , might bring spouses and children as M-2 visa holders, have a residency

abroad which they intend not to abandon and cannot workin the U.S. , including on-campus.Business nonimmigrant visas: B-1 status: foreign businessmen, initiate the process overseas, no petition

on his behalf is filed with the USCIS in the U.S. and no labor certification is needed. The alien cannot

engage in skilled or unskilled labor. The INS may not issue temporary business visitors visas under

Operations Rule 214.2 (b)(5). (The INS had issued visas in the B-1 classification for temporary business

visitors who entered to install service or repair equipment purchased from foreign

companies.)(International Union of Bricklayers and Allied Craftsman v. Meese).

Work visas: H-2A: visa for aliens seeking to perform agricultural labor or services of a temporary or

seasonal nature in the United States on a temporary basis. A U.S. employer (or an association of U.S.

agricultural producers named as a joint employer) must file a Form I-129. Labor certification is necessary

when there are not sufficient U.S. workers who are able, willing, qualified, and available to do the

temporary work. The employer must show that the employment of H-2A workers will not adverselyaffect the wages and working conditions of similarly employed U.S. workers. H-2B: visa for temporary

(year or less) non-agricultural workers. Labor certification requirement and only available if unemployed

persons capable of performing such service cannot be found. The work must be a one-time occurrence,

a seasonal need, a peak load need or an intermittent need. (admitted up to one-ear with 2 one-year

extensions, limited to 66,000 a year). H-1B: This classification covers noncitizens coming temporarily to

the U.S. to provide services in a specialty occupation. The occupation must require at least a

bachelors degree. H-1B nonimmigrants can be admitted for up to three years initially, extendible to a

maximum authorized stay not exceeding six years. The employer must file a Labor Certification also

known as an attestation . Under the H-1B portability provision, an individual previously granted H-

1B status may start working for a new employer once the new employer files a non-frivolous H-1B

petition. The status might be extended beyond six years in certain circumstances, primarily when the

request for labor certification had been pending for more than 365 days. Spouses can be admitted as H-

4 nonimmigrants (no work permitted). O-visa: The O-1 nonimmigrant visa for individuals who possesses

extraordinary ability in the sciences, arts, education, business, or athletics, or who have a demonstrated

record of extraordinary achievement in the motion picture or television industry and has been

recognized nationally or internationally for those achievements. The O-1A: individuals with an

extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion

pictures or television industry) O-1B: individuals with an extraordinary ability in the arts or extraordinary

achievement in motion picture or television industry. O-2: individuals who will accompany an O-1, to


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assist in a specific event or performance, assistance must be an integral part of the O-1As activity.

And essential the O-1Bs production. O-3: individuals who are the spouse or children of O-1s & O-2s.

P-visa: non-immigrant visa for athletes coming to the U.S. temporarily to perform at a specific athletic

competition, individually or part of a team, at an internationally recognized level of performance.

Intra-company transfers nonimmigrantL visas . The L-1A nonimmigrant classification enables a U.S.

employer to transfer an executive or manager from one of its affiliated foreign offices to one of its

offices in the United States. This classification also enables a foreign company which does not yet have

an affiliated U.S. office to send an executive or manager to the United States with the purpose of

establishing one. (The employer must file Form I-129, Petition for a Nonimmigrant Worker, on behalf of

the employee.) The L-1B nonimmigrant classification enables a U.S. employer to transfer a professional

employee with specialized knowledge relating to the organizations interests from one of its affiliated

foreign offices to one of its offices in the United States. Must have worked over a year This classification

also enables a foreign company which does not yet have an affiliated U.S. office to send a specialized

knowledge employee to the United States to help establish one. (The employer must file Form I-129,

Petition for a Nonimmigrant Worker, on behalf of the employee.)

E nonimmigrant visas: The E-1 nonimmigrant classification allows a national of a treaty country (a

country with which the United States maintains a treaty of commerce and navigation) to be admitted to

the United States solely to engage in international trade on his or her own behalf. Certain employees ofsuch a person or of a qualifying organization may also be eligible for this classification. The E-2

nonimmigrant classification allows a national of a treaty country to be admitted to the United States

when investing a substantial amount of capital in a U.S. business. Certain employees of such a person or

of a qualifying organization may also be eligible for this classification.

NAFTA TN status: Under NAFTA Canadian and Mexican nationals are allowed to enter as: business

visitor, traders and investors, intra-company transfers and professionals. The professionals resemble

the H-b1 category but is limited to a carefully negotiated list of specifically eligible occupations.

Family-based Immigrant Visas

I 326-341; Family-based Immigrant Visas II: 341-345.

Family reunification categories: The permanent feature of current arrangements for permanentimmigration to the U.S. is family reunification.

(a) Immigration based on marriage: proxy-marriages where the contracting parties are not physically

present and marriages that conflict with public policy are exclude. (216 (e) The plenary power over

immigration held by Congress empowers it to deny same-sex marriages the same relief from

immigration restrictions that is accorded to heterosexual marriages without running afoul of equal

protection considerations. (Adams v. Howerton) Sham Marriages: The immigration Marriage Fraud

Amendments of 1986: All persons who obtain PLR through marriages that are less than two-years old

receive such status on a conditional basis. (216). The conditional period lasts two years unless the

aliens temporary LPR status is terminated. The conditional period counts fully for the residency

requirement. Within the last 90 days of the two-year period both spouses must petition to have the

condition removed (under certain circumstances a hardship waiver of the joint filing might be granted.)

If removal of the conditions is denied the alien becomes deportable but the determination is open for

reconsideration by the immigration judge. Moreover, DHS bears the burden of proof , under a

preponderance of the evidence standard.In eleventh-hour marriage, the alien bears the proof to

prove the genuinessof the marriage by clear and convincing evidence. That a divorce is imminent

when an alien achieves residency by marriage is not grounds for revoking the residency. (The marriage

was not a sham-marriage nor fraudulent from its inception, so the fact that it was factually dead

would not be a reason for denying residency.) (Dabaghan v. Civiletti).


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Inadmissibility Grounds and Waivers I 507-520.

Inadmissibility

Inadmissibility waiver: (1) Does the person is eligible for the .. and (2) will the judger give him a of

.discretion

Deportability

Felony convictions:

Inadmissibility due to immigration violations- The inadmissibility (those not admitted) and deportability

requirements do not match perfectly so a LPR who cannot be deported can nevertheless be denied

access if he leaves the country voluntarily. Generally, the inadmissibility grounds are more demanding.

INA 101(a)(13)(C) defines when a person will not be regarded as seeking admission into the U.S.

The BIA has ruled that LPR are presumed not to be applicants for admission. INA 212 (d) (3) provides

the DHS with discretionary power to waive nearly all the inadmissibility grounds for nonimmigrants.

However, to waive a prior fraud in seeking or obtaining immigration benefits, however, or to waive

inadmissibility based on earlier unlawful presence, a family relationship other than to a spouse or parentholding U.S. Citizenship will not suffice.

Misrepresentation: As use in 212 a misrepresentation is an assertion or manifestation not in

accordance with the facts. It requires an affirmative act taken by the alien. A misrepresentation can be

made in an oral interview, written application or by submitting evidence containing false information.

Difference between misrepresenting and failing to volunteer information: Silence or a failure to

volunteer information does not in itself constitute a misrepresentation. To fall within the purview of

212 it must have been practiced on an U.S. official (consular officer or INS officer), the

misrepresentation must have been made by the alien with respect to the aliens own visa application

and done by the applicant, his Atty. or agent. (The fact that the alien pursued the visa through an

attorney or agent does not insulate her from liability for misrepresentation made by such agents if she

was aware of the action being taken in furtherance of the applicationThe act of procuring a fraudulent birth certificate with the intent to defraud the U.S. by using that

certificate to obtain a U.S. passport falls within the definition of fraud in INA 212(a)(6)(C) rendering an

alien inadmissible and subject to deportation. (U.S. v. Cervantes Gonzalez) The fact that his wife (a U.S.

citizen) married him while he was in removal proceedings, that she is of Mexican descent, speaks

Spanish and had no job in the U.S. do not help him get a waiver.

Bars based on removal noncompliance according to 212(a)(9)(A) there is a permanent bar on those

who either stayed illegally over a year or were ordered removed and thereafter enters or attempts to

enter without being admitted. (The quick expedited removal of persons caught at the border will render

the alien inadmissible. However, if they were just returned without a removal procedure, this will not

affect their future admissibility.) Anyone at a port of entry or airport is considered to be seeking

admission to the U.S., however instead of removing the alien through expedited removal procedure, the

alien is allowed under (INA 235 (a)(5)) to withdraw their application for admission and return at their

own expense but without rendering them inadmissible in the future. (Those removed are inadmissible

for 10 years and up to 20 if the alien had already been removed or convicted of an aggravated felony.)

Unlawful presence bars According to 212(a)(9)(B)a non-citizen who has been unlawfully present for a

single period of more than 180 days but less than a year and departed voluntarily is inadmissible for

three years. A ten-year ban applies to any noncitizen that has been unlawfully present for a year or

more and departs or is removed. There are exceptions, tolling provisions and waivers.


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EWIs (entry without inspection) are unlawfully present from the first day. Visa holders (and those

admitted under the visa waiver program) are unlawfully present after the date stamped in the

admission documents- constructive presence. Aliens admitted for the duration of their status are

consider unlawfully present only after receiving notification of their violation. (A non-immigrant-other

than a stay over-starts the 180-day clock only after receiving a governmental notification that the

conditions have been violated) The time in removal proceedings counts as unlawful presence.

Non-citizens who have been unlawfully present for a single period of more than 180 days but less than a

year and departed voluntarily is inadmissible for three years. A ten-year ban applies to any noncitizen

that has been unlawfully present for a year or more and departs or is removed. There are exceptions,

tolling provisions and waivers. 212(a)(9)(B)

Non-immigrant-other than a stay over-starts the 180-day clock only after receiving a governmental

notification that the conditions have been violated. The time where the noncitizen is in removal

proceedings counts as unlawful presence.

Overstaying a nonimmigrant visas will result in the visa being void at the conclusion of the authorized

period of stay and although there is no bar for a nonimmigrant admission, such admission must be on

the basis of a new visa issued in his home country.

The permanent bar: According to 212(a)(9)(C) an alien who has been unlawfully present for an

aggregate period of more than 1year or has been ordered removed and has entered or attempts torenter without inspection (EWI) is bared for life (and eligible for waiver in 10 years).

Public charge provision any alien who, within five years from the date of entry, has become a public

charge for causes not affirmatively shown to have arisen since entry will be deported. INA 237(a)(5)

As an inadmissibility ground, public charge continues to play a highly significant role in disqualifying

applicants for visas as it offers bread discretion to make inadmissible any alien who in the opinion of

the consular officer or in the opinion of the A.G. is likely at any time to become a public charge.

Affidavits of support (used to be nonbinding) from a residency applicants relative may be sufficient

evidence that the applicant will not become a public charge.(Matter of Kohama) modified by statute.

Congressional modification to affidavits of support In 1996 Congress made the affidavits of support

enforceable, and mandates that every petitioner executes one even when the immigrants own

resources would satisfy a consular office under the broad discretion rule. The sponsor must be able toprove his or her ability to support his or her own household plus all sponsored immigrants at a minimum

of 125% the poverty line. ($25,812 in 2007). Assets that can easily be converted into cash can be

accepted. Finally, someone other than the petitioner may join as a co-sponsor accepting joint and

several liability with the petitioner. The affidavit is enforceable until the sponsored immigrant is

credited with work for 40 Social Security Quarters (10 years), naturalizes, departs and relinquishes LPR

status or dies. Form I-8649 (poverty guidelines) (pp.1197 of the supplement) can be used to calculate

the amount of resources needed for an effective affidavit of support. Assets can be added (Cash, stock

and equity on a house) with income but can only be counted as 1/5 of their worth. The aliens own

prospective income, or the previous wage cannot be added unless the money will certainly continue to

be delivered (pension, etc)

Admissions Procedures and Adjustment of Status

Non-immigrant visas: Most foreign nationals must first secure a nonimmigrant visa from a U.S. consular

officer in a foreign country. The non-citizen bears the burden to prove that he qualifies for a visa. There

is a fee and the consular agent may request any supporting documentation. (There is an expedited visa

for $1000) If the visa application is approves, the consular officer affixes a nonimmigrant visa to the

applicants passport. Carriers request a visa for foreign travelers coming to the U.S. to avoid being fined.


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Those who adjust their status can have their new status rescinded at any time within five years after

adjustment and even after gaining LPR status.

Those who need immediate access but are denied entry might be paroled into the country which does

not constitute an entry and still subjects them to the grounds of inadmissibility and not of removal.

LOOK AT THE DIFFERENT LEVELS OF REVIEW FOR ADJUSTMENT OF STATUS AS OPOSED TO VISA

PETITION Eligibility for adjustment of status is a defense in removal proceedings

Removal

Statutory grounds of Deportability Non-citizens are deportable if (1)inadmissible at time of entry or

guilty of subsequent violations of status; (2) convicted of criminal offenses; (3) failed to register or

falsified documents; (4) engaged in activity that endangered national security or posed adverse foreign

policy consequences; (5) became a public charge; (6) voted unlawfully. 237

Crime-related grounds

Criminal convictions101(a)(48)(A): many of th237(a)(2) require that the non-citizen was convicted of

a crime. defines conviction. For the purposes of the INA adjudication of guilt is not necessary and a nolo

contendere plea or admission of the facts can suffice. Suspended sentences and probation terms count

as terms of imprisonment. If the conviction is reversed on appeal the crime cannot be the basis forremoval. The non-citizen bears the burden of proving the conviction was vacated for substantive or

procedural error.

Expunctions: The BIA concluded that expunction under the state statutes has no impact on the

immigration consequences of the conviction and the noncitizen can still be removed. Federal laws allow

for expunction of conviction of simple possession of narcotics by first-time offenders, which removes

immigration consequences. The ninth circuit has ruled that analogous drug offenses under state law if

expunged also remove the conviction for deportability purposes. This was overruled which means

Expungment has NO relevance for immigration purposes.

A full and unconditional pardon will eliminate the immigration consequences of convictions for crimes

involving moral turpitude, aggravated felonies and other violations (high speed flight from an

immigration checkpoint. However the 11

th

Circuit has ruled that the pardon applies only to deportabilitygrounds and not to inadmissibility grounds.

Moral turpitude: An act of baseness, vileness, or depravity in the private and social duties which a man

owes to his fellow men, or to society in general, contrary to the accepted and costmary rule of right and

duty between man and man. Conviction of 2 or more crimes involving moral turpitude constitute a

ground of deportability no matter when they were committed nor what the sentence might be. One

conviction of a crime involving moral turpitude renders a noncitizen deportable if(1) the conviction

occurred within five years after the date of admission and (2) the crime is one for which a sentence

longer than a year may be imposed.

Crimes with an element of fraud are crimes involving moral turpitude. (Fraud must be an element that

must be proven as an essential element of the crime.) (Goldeshtein v. INS)

Aggravated felonies: The consequences of an aggravated felony conviction are severe for noncitizens.

Aggravated felons are not eligible for most forms of relief from removal; they may not obtain asylum;

cancelation of removal, voluntary departure. They are not entitled to ordinary form of judicial review or

removal orders based on their convictions. They are barred for life from ever re-entering the U.S. unless

they obtain the A.G.s consent to apply for readmission. Aggravated felons who are not LPR are subject

to administrative removal procedures.

The question whether a crime is one of moral turpitude must be answered categorically. For a crime to

involve Moral turpitude within the meaning of the INA , the crime must necessarily involve moral

turpitude in the elements-.


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Moral turpitude test: can anyone commit this crime without acting immorally?

State DUI offenses that require no showing ofmens rea or only have a showing of negligence are not

crimes of violence justifying deportation under INA 237(a).(Leocal v. Aschroft -U.S. 2004)

Now courts will first look at the crime charged and if the statute criminalizes activities that are not

aggravated felonies (categorical mismatch) some courts will then proceed to make a limited inquiry into

the record to determine whether the crime committed satisfies the generic aggravated felony definition.

Crimes that might not seem that bad might still be a crime of violence under INA101(a)(43)(F). (must

look at the immigration category and the elements of crime.)

Federal misdemeanors but state felonies congressional intent regarding conduct that constitutes a

misdemeanor under federal law and a felony under state law under INA101(a)(43). A drug crime does

not constitute an aggravated felony under INA if the crime is a felony under state law but only a

misdemeanor under federal law. (Lopez will face removal proceedings and be subject to the grounds of

inadmissibility 237(B)(i), however, if he is not an aggravated-felon he might be eligible for cancelation

of removal proceedings asylum or exile (Lopez v. Gonzalez -U.S. 2006)

A misdemeanor conviction under local law can constitute an aggravated felony by definition under the

INA, providing grounds for removability. Although he was convicted of a misdemeanor (having sex with

a minor under 17 when the accused is less than 5 years older than the victim) the Court favors looking at

the federal statute (which states what an aggravated felony is) and not trying to equate state crimes.(Guerrero-Perez v. INS -7th Circ. 2001)

Drug offenses: Under INA237 (a)(2)(B)(i) any drug related charge that is not a single offense of

possession of 30 grams or less of marijuana for ones use is a ground of deportation.

An aliens state conviction for conspiracy to commit money laundering does not constitute an

aggravated felony of trafficking in a controlled substance if the connection between the money

laundering and drugs exists solely in a pre-sentence report. (Lara-Chacon v. Ashcroft-9th Circ. 2003)

Any alien convicted for any crime related to a controlled substanceother that a single possession for

ones own use of 30 gr. or less of marihuana is deportable. 237(B)(i)

Divided categorical approach (second step of categorical approach)the immigration court can look at

the part of the statute that does constitute a drug-related crime and then at the factual statement of

the plea colloquy and other reliable court documentsbut not a simple pre-sentencing report.If the categorical or the divided categorical approach is not enough the court can look at any reliable

part of the record to establish moral turpitude. (Silvia-Trevino)

Categorical approach: Is it possible to commit this crime the crime must include the type of activity

listed in the immigration statute (drug related) as a necessary part of the crime.

Modified categorical approach: immigration court can look at the part of the statute that does

constitute a drug-related.

Should not apply the categorical approach to determine if the crime reaches the amount of loss

($10,000.00) required in the statute (Babaisako). The US SC ratified this in Nishawan and indicated that

all the record is valid to establish the monetary loss and not the categorical approach.

Crimes of Domestic Violence: Congress added crimes involving domestic violence as a deportability

ground in INA237(a)(2)(E). The statute lists specific crimes (domestic violence, stalking, child abuse,

child neglect, or child abandonment) that must be committed after admission. It also includes those who

violate protection orders by making threats of violence, causing bodily injury or engaging in repeated

harassment.

The statutory definition of domestic violence includes two aspects: (1) the crime must constitute a crime

of violence within the meaning of 18 U.S.C.16 (according to the terms in Leocal) and (2) the crime

must be committed against a person who is a spouse, former spouse or in a similar relationship. It also

covers other persons protected under federal or local domestic violence laws.


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(Anyhow, noncitizens under this scenario could be removed under a crime including moral turpitude, a

domestic violence crime and if the prison term is more than one year, aggravated felony. However it

does add violations of protection orders and child abuse)

Plea bargaining and immigration consequences: Close to half the states (including CA, TX, FL & NY) have

statutes requiring that noncitizens be informed that their plea or no lo contendere must be informed

that it will subject them to removal proceedings. Some circuit courts also allow to withdraw a guilty

plea, arguing it was involuntary, after learning about the immigration consequences. District courts tend

not to be receptive of such argument. Under the 6th amendment defense attorneys have an obligation

of informing his client Padilla. Whether a client has recourse against their attorney.

Crimes involving moral turpitude apply the categorical method (2 step analysis to determine if it is

possible to commit this crime without involving fraud or moral turpitude).

Relief from Removal

In most removal cases the major issue is the non-citizens application for relief from the removal

proceedings and not a challenge to the basis for removal. Therefore, generally a noncitizen will concede

deportability at the outset of the hearing and then request one or more forms of relief.

Due to the harms that removal can inflict, the immigration law provides avenues for persons found to fita ground of removal to obtain a ruling overriding that removability, thus permitting them to remain in

U.S. (relief can restore LPR status or just not place him in removal proceedings) The provisions allowing

relief from removals 2 general features: (1) statutory eligibility and (2) an exercise of governmental

discretion. The Supreme Court emphasized the need of both elements by determining that suspension

of deportation is a matter of discretion and of administrative grace, not mere eligibility; discretion must

be exercised even if all statutory prerequisites have been met. (U.S. ex rel Hitopoulos v. Shaughnessy)

Prosecutorial discretion: just like in criminal prosecution, DHS officials may decide (not only authorized

but expected) to forgo removal proceedings against a noncitizen that is fit for relief.

Deferred action: allows noncitizens to remain in the U.S. because of humanitarian considerations. (It

grants no immigration status and little other benefits other than work authorization upon a showing of

need and the status may be withdrawn at any time). Denials are not subject to judicial review.Deferred Action Factors to be considered: likelihood the alien will depart without formal proceedings;

age or physical condition affecting ability to travel; likelihood that another country will accept the alien;

likelihood that the alien will qualify for some form of relief which would prevent or indefinitely delay

removal. Whether the individual is part of a group considered to be high enforcement priority and

whether or not the individuals presence is required by law enforcement authorities.

Stay of Removal: occurs after a removal order has been entered. (Generally used to give the noncitizen

a reasonable amount of time to make arrangements prior to removal. Or to forestall removal pending

the outcome of a motion to reopen removal proceedings, but now it can be used to afford the same

relief as deferred action.)

Formula to review discretionary decisions: The denial of suspension to an eligible alien would be an

abuse of discretion if it were made without a rational explanation, inexplicably departed from

established policies or rested on an inadmissible basis such as an invidious discrimination against a

particular race.Judge Friendlys opinion (Wong Wing Hang v. INS)

Cancellation of removal

Adjudicatory discretion: The AG has typically delegated the exercise of discretion in individual cases to

immigration judges who preside over removal proceedings. Judge must balance the adverse factors

evidencing the aliens undesirability as a LPR with the social and humane considerations.

Favorable factors: family ties within the U.S.; residence of long duration in the country, evidence of

hardship to respondent and family, service in the armed forces, a history of employment, property or


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business ties, value and service to the community, proof of genuine rehabilitation if a criminal record

exists. Negative factors: significant violations of immigration law, existence of a criminal record (nature,

seriousness and recency) and other evidence of bad character or undesirability as a LPR.

(In some cases, the minimum equities required to establish eligibility for relies under 240A(a)

residency for 7 years and LPR for 5 years- may be sufficient in and of themselves to warrant favorable

discretionary action. )

Relief resulting in permanent resident status

Cancellation of removal(formerly known as suspension of deportation): Under the INA240A the AG

may cancel the removal of a noncitizen and allow the noncitizen to remain as a LPR.

Cancellation of removal for permanent residents: Eligibility for 240A(a) has two time-based

requirements for LPRs: (1) LPRs must have lived lawfully 7 years in the U.S. and (2) been LPR for 5 of

those years. The stop-time provision on 240A(d)(1)(A) stops the counting with the notice to appear to a

removal proceedings. The commission of an offense that renders an alien inadmissible or removable

also stops the time. (Matter of Perez= its the date when crime was committed and not of the

conviction).Cancellation of removal for non-permanent residents: A 10 year presence requirement is required for

non-LPRs. The policy of ICE (in IL) does not allow people to turn themselves to ICE to seek non-LPR

cancellation of removal.

Good Moral Character: INA240A(b)(1)(B) restricts cancellation to those who have been of good moral

character for ten years immediately preceding the date of application. INA101(f) list some persons

who are not of good moral character (aggravated felons) but does not define good moral character.

Extreme hardship: higher hardship than it is expected to normally suffer from deportation or non-

admission. (Standard for battered spouses or children seeking cancellation of removal)

Exceptional and Extremely Unusual Hardship: Long-term LPRs do not need to establish a particular

degree of hardship to be eligible for relief, however, it is likely to figure on the discretionary element of

a cancellation. However, a noncitizen must establish the removal would result in exceptional andextremely unusual hardship to the aliens spouse, parent, or child who is a U.S. citizen or a LPR.

(beyond result from ordinary deportation) (children are qualifying relative for this type of waiver)

Continuous physical presence: according to INA240A(d) a departure for more than 90 days or an

aggregate of 180 days breaks the continuity of the physical presence.

Nothing prohibits an LPR form applying for non-LPR cancelation.

Cancellation of removal problem in PAGE 790-791

Mr. Hernandez is eligible for non-;PR cancelation since he has been present (continuously) over 10 years

and has proved good moral character. (Economic hardship is generally not enough even for the

exceptional standard and even less for the exceptional and extremely unusual hardship.) Since the

economic matters will be insufficient it is relevant that the daughters medical condition might not be

treated in Mexico. Mrs. Hernandez is eligible for LPR cancelation (she is not an aggravated felon) which

does not subject her to prove the exceptional and extremely unusual hardship although the same

factors will be helpful to establish that the positive equities outweigh the negative equities. Since she is

eligible for LPR cancelation the fact that she went to Mexico for over 5 months does not matter (unlike

the non-LPRS, there is no limit of days abroad if the LPR does not abandon her residency in the U.S.)

The hardship standards is not so restrictive that it would not recognize that any exceptional and

extremely unusual hardship suffered by a single mother as a result of her removal from this country will


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necessarily be transferred to her children, the qualifying relatives under the circumstances. (Matter of

Gonzalez v. Recinas)

Cancellation of Removal of Battered Spouses or Children: for this group the standard is extreme as

opposed to exceptional and extremely unusual. The continued physical presence requirement is

reduced to 3 years and the stop-time rule does not apply and periods outside the U.S. related to the

battering do not count (This VAWA cancellation applies only if the batterer is a U.S. citizen or LPR)

Numerical limits on cancellation: the 1996 Act imposed a 4000 cap on the waivers that can be issued

every fiscal year.

Waivers(for those seeking to adjust status as a form of relief in removal proceedings 212(h) provides a

discretionary waiver for noncitizens who satisfy certain prerequisites (crimes involving moral turpitude,

possession of 30 grams or less of marijuana, conduct related to prostitution or unlawful commercialized

vice, and certain acts that receive immunity). 212(h) is unavailable to lawful permanent resident who

had departed and been readmitted to the U.S. (Matter of Sanchez). It is available for LPR who sought

adjustment of status though had not been deported and been readmitted to the U.S. (Matter of Parodi).

Whether this is applicable only to to those considered inadmissible or also to those subject to

deportation has raised an EPC issue but has not been definitively decided.)

The waiver is available for aggravated felons (inadmissible) seeking to adjust status to LPR only if theyhad not been a LPR before. However, LPRs who commit an aggravated felony are not eligible. (This EPC

question was definitely resolved claiming LPRs can be hold to a higher standard for having been granted

the privilege to reside in the U.S. ) Notwithstanding that 212H is only applicable to the inadmissible, the

waiver can also be granted to some facing deportation proceedings.

Removal Proceedings

Removal proceeding: There is only one basic type, this process starts when the government files a

Notice to Appear NTA which can be served in person or by mail. A hearing may not be scheduled until

10 days after being served with a NTA. Although many NTAs are served without the arrest of the

respondent, the power of arrest remains. INA 236(a) governs arrest with a warrant. Under INS287(a),

immigration officers may arrest without a warrant an alien who they believe (1) is entering or

attempting to enter the U.S. in violation of the immigration laws, or (2) is present in the U.S. in violationof such laws and is likely to escape before a warrant can be obtained.

There is a master-calendar hearing in which the judge inquires about the facts of each case. This hearing

is usually prolonged to allow the respondent to secure counsel or apply for a different status.

Right to counsel: Aliens in removal proceedings have the privilege of being represented, at no expense

to the Government, by counsel of the his choosing who is authorized to practice in such proceedings.

An alien in a deportation proceeding is not necessarily entitled to appointed counsel. -Deportations are

considered civil and not criminal proceedings and thus the 6 th amendment does not apply. (Aguilera-

Enriquez v. INS) Under the EAJA a prevailing party in a government adjudication can recover attorney

fee, but deportation hearings are notconsidered adverse adjudications for EAJA purposes.

Due process: If an individual is denied due process when in immigration proceedings she does not

receive a full and fair hearing as a result of prejudice. (Jacinto v. INS_Due process requires IJs to fully

develop the record in those circumstances where applicants appear without counsel. As with most

administrative proceedings, the formal rules of evidence do not apply in removal hearings.

The government must show the deportability by clear, unequivocal, and convincing evidence. Where

the government introduces no evidence at all, the noncitizens silence is insufficient by itself to meet

the governments burden to show deportability by clear and unequivocal evidence.ASK THE PROFESSOR

IF THIS IS FROM INA or CASE

Asylum


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INA208 provides that the A.G. may grant asylum in the U.S. to: an individual who has a well-founded

fear of persecution on account of race, religion, nationality, membership in a particular social group or

political opinion. INA101(a)(42).

INAs definition of asylum: (a well-founded fear the person would be persecuted for one of the

protected grounds) A different showing is needed for asylum (lower, more subjective standard of fear of

persecution will happen (Fonseca)

Withholding of removal: Statutory 241 b 3 a (no well-founded fear the person would be harmed for

one of the protected grounds) (must show that it is more likely than not that the persecution will

happen)

Persecution: in immigration law, punishment for political, religious, or other reasons that our country

does not recognize as legitimate. -J. Posner, 7th Circ. (1) Degree of harm and (2) legitimacy of the harm.

Uniform national policy: when a nation uniformly applies an oppressive policy to all its citizens.

Asylum analysis:(1) Is there persecution? (a) is the degree of harm high enough? and (b) is the harm

legitimate? (2) is the harm inflicted on account of one of the protected grounds.

Chinas population control measures do not constitute persecution to warrant refugee status. (Thepossibility of forced sterilization was unclear. The BIA wasnt convinced this fate awaited Mr. Chang. It

also decided that the general application of the program militated against being considered persecution.

(Matter of Chang was overruled by Congress)

Salvadorian citizen who sought asylum to avoid mandatory conscription in order not to be forced to

commit war crimes or human rights violations was not eligible for asylum because the U.S. had never

condemned the Salvadorian governments policies and it is not for the BIA to approve or disapprove of

government (Matter of MA)

A fear that a military regime will prosecute for treason based on refusal to follow an inhumane order

constitutes statutorily protected grounds warranting asylum. (Because Mr. Tagagas orders constituted a

war crime, the court put aside the fact that sovereign nations enjoy the right to enforce laws related to

military service, and penalties for evasion of such laws. (Tagaga v. INS (9th

Circ. 2000)Persecution by Nongovernmental Actors: For purpose of Immigration law, the persecution by non-

governmental actors where it is shown that the government of the proposed country of deportation is

unwilling or unable to control that group is considered persecution. (9th Circ. 1981)

Level of Risk: To be eligible for asylum, an applicant need only demonstrate a well-founded fear of

persecution, which can be met even if the applicant does not show that it is more likely than not he will

be persecuted if returned to his home country. An alien would be entitled to mandatory relief if he

demonstrates a clear probability of persecution . (The heart of the BIAs standard is to show basis for the

aliens fear) Ins v. Cardoza-Fonseca (US 1987)

Discretion to grant protection: whether the alien arrived from his own country or had passed through

other countries and attempted to seek asylum there; the length of time in a 3 rd country; his living

conditions, safety and potential for long-term residency are relevant to the analysis.

Past persecution: Although it is not a requirement, those aliens who suffered past persecution have a

rebuttable presumption that their current fear of persecution is well founded. (unless conditions have

change or it would be effective and reasonable to have the alien move to another part of their own

home country). In addition to the presumption, there is a discretionary asylum (but not withholding)

possibility for those suffering only of past persecution.

Protected grounds: the persecution must be linked to race, religion, nationality, membership in a

particular social group or political opinion.


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Political opinion: To obtain asylum, a petitioner must present evidence that compels the conclusion

that his expressive conduct constituted the statement of a political opinion and that he had well-

founded fear of persecution because of that political opinion. Remaining neutral in a conflict where the

persecutors are motivated by political motives is not enough as standing alone is not a political position

(although pacifism can be a political or religious view). (INS v. Elias-Zacarias)

Imputed political opinion: when one party believes the alien to have a political opinion and is likely to

persecute him for that reason.

Mixed motives:

Xiadong Li v. Gonzalez (RELIGIOUS MEETIGNS ?????)

Membership in a particular social group: the most elusive factor on the Refugee Convention and in the

U.S. statute.

Asylum may be granted to refugees based on persecution for membership in a particular social group if

the individual is a member of a group of persons who share a common characteristic that either cannot

be changed, or that they should not be required to change, in order to escape such persecution. (Matter

of H)

Female Genital Mutilation: The prospect of forced female genital mutilation may be a basis for asylum.

(This despite being widespread and widely accepted practice. (Matter of Kasinga)

Limitations on Asylum

Filing Deadline: asylum applicants must file their claims within one year of their arrival in the U.S.

(unless conditions change substantially or there are extraordinary circumstances related to the delay)

INA 208(a)(2)(b) - ineffective assistance of counsel or possession of another legal status. There is no

review of an administrative decision of an untimely claim. However, someone denied asylu because of

the deadline can have the issue reviewed de novo before an immigration judge and then appeal the

ruling to the BIA. Withholding of removal is not subject to any deadline requirement.

Firm Resettlement: Those who are firmly resettled in a 3rd country cant seek asylum in the U.S. (when

offered LPR status or citizenship) entrance to a 3rd country will not bar the claim if it is proven that it was

done only to escape prosecution to arrange onward travel and without creating ties to that country.Serious crimes: those who have committed serious nonpolitical crimes abroad or in the U.S. are barred

from seeking asylum.

Serious crimes committed prior to arrival: the INA does not require deportation boards that face aliens

who committed nonpolitical crimes prior to seeking asylum to balance the severity persecution or

compare the atrocities of the crimes with others it faced in the past. (INS v. Aguirre- Aguirre)

Serious crimes committed within the U.S. will disqualify the petitioner.

Persecutors: Those who assisted in the persecutions of others are excluded from seeking asylum. This

included those who assisted involuntary and under duress.

Acts of warfare taken in furtherance of political goals are not persecutory acts. (Membership in an

organization, even one that engages in persecution, will not bar ones relief unless ones actions in

inaction has the objective effect of furthering that persecution. Practices such as attacking military

bases, destroying property, or forcibly recruiting do not constitute persecution where the goal is political

in nature. (Matter of Rodriguez-Majano)

Terrorism:There is a broad and strict prohibition against anyone who has provided material support

to terrorist activity, which is very broadly defined.

Review of Agency Decisions in Federal Court


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242 of the INA now significantly curtails judicial review in a variety of ways, of which the most

important include the following:

Discretionary Relief:judicial review of any judgment regarding the granting of relief under the waiver

provision in 212(h) and212(i) cancellation of removal, voluntary departure, and adjustment of status.

(The only exception are asylum decitions but with a highly deferenail standard of review.

Review standards: 242 (b)(4) sets deferential standards. Administrative findings of fact are conclusive

unless any reasonable adjudicator would be compelled to conclude the contrary. A decision to not

admit an alien is conclusive unless manifestly contrary to law. The AGs discretionary judgment whether

to grant asylum: shall be conclusive unless contrary to the law and an abuse of discretion.

Injunction Against Removal 242 limits a courts power to issue a permanent injunction against a

removal.

INA 242(g) this provision(which..) applies only to three discrete actions by the AG: decision or action to

commence proceedings, adjudicate cases, or excuse removal orders.

Exhaustion of Administrative Remedies A court may review a final order of removal only if the alien has

exhausted all administrative remedies available to the alien.

Removal based on Criminal ConvictionsKolster v. INS

Boston-Bollers v. INS

Dulduvaldo v. INS

Habeas Corpus is this the only judicial remedy available for.

The district court had jurisdiction to entertain an aliens challenge in a habeas corpus proceeding

alleging that the AG has made an error of law in his deportation proceeding. The restorations on

discretionary relief from deportation contained in the 1996 statutes at issue do not apply to removal

proceedings brought against an alien who pled guilty to a deportable crime before enactment. (INS v. St.

CYR )

The Real ID ACT

The courts jurisdiction to review questions of law associated with discretionary decisions of the U.S. AG

and his representatives does not allow the court to review a petition that includes words indicating a

question of law, but which contains no real question of law. (Chen v. Gonzalez)

Constitutional Limits of Federal Immigration Power

Congress may enact legislation excluding Chinese laborers from entering the U.S. Despite being

authorized entry by a treaty, congress can block any aliens from entering the U.S.(Chae Chan Ping v. U.S.

The Chinese Exclusion Laws and Equal Protection

The Court made clear that aliens are entitled to the equal protection of the laws. (Yick Wo v. Hopkins -

U.S. 1886) However this applies only to state laws and not to the federal governments immigration

laws. Would the 5th amendment protect aliens today? It will protect immigrants in the U.S. but not

necessarily to those facing deportation or not admitted.

The Act of May 5, 1892, entitled An act to prohibit the coming of Chinese persons into the U.S. (Act).

Does not offend the Due Process Clause of the 5th amendment and the rights guaranteed under the

Fourth, Sixth and Eighth Amendments are not implicated. (Fong Yue Ting v. U.S. - U.S. 1893)The

majority sidesteps the constitutional implications of the Act by declaring that Chinese laborers are


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presumed not to be residents without credible proof as dictated by Congress, and that deportation, not

being a punishment for a crime, cannot trigger the constitutional safeguards associated with receiving

due process and a fair trial. Congresss power on immigration plenary- is not subject to constitutional

restraints.

The Constitutional Requirement of Due Process

Admission of aliens to the U.S. is a privilege granted by the sovereign U.S. Government. Such privilege is

granted to an alien only upon such terms as the United States shall prescribe - It must be exercised in

accordance with the procedure which the United States provides and whatever it is, it will be considered

due process. The exclusion of aliens is a fundamental act of sovereignty- is inherent in the executive

power to control the foreign affairs of the nation. (Knauff v. Shaughnessy)(This case is still valid for

aliens but not for LPRs.) Ms. Kanuff cannot come in despite being the wife of a soldier and having an

exemplary record working for the U.S. abroad. Despite that she was excluded on a regulation made by

the AG and was not told why; the executive can do just that through its wars powers.

Expulsion after a summary investigation does not violate due process. (2) Due process applies to

deportation procedures (but not to exclusion procedures) (3) Due process does not necessarily imply ajudicial procedure. (Yamata v. FisherThe Japanese Immigrant Case-U.S. 1903) There are fairly robust

procedures to enact the immigration laws that do not violate constitutional protections :s The

administrative investigation was enough as long as it was not entirely arbitrary- any recourse is with the

agency.)

A resident alien who briefly leaves the U.S. is entitled to due process upon return. (LPRs begin creating

the ties to society that create constitutional guarantees and these guarantees are not lost by a brief

absence). (Ms. Placencia should not be excluded but deported -gives her due process rights.)

(Landon v. Plasencia)(This case reliefs LPRs from the Knauff ruling)

Constitutional Limits

Provisions of the INA giving immigration preferences to mothers of citizens but not to unwed fathersare constitutional. (legislative authority of Congress in the area of immigration is as complete as any

area in which Congress may legislate) (Fiallo v. Bell)

The government may constitutionally deport an alien because of membership in the Communist Party

which ended prior to the 1940 Alien Registration Act. (The ex post facto rule of Article 1 only applies to

criminal statutes, not civil matters such as deportations) (Hairisiades v. Shaughnessy)That aliens remain

vulnerable to expulsion after long residence is a practice that bristles with severities. But it is a weapon

of defense and reprisal confirmed by international law as a power inherent in every sovereign state.

Any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to

the conduct of foreign relations, the war power, and the maintenance of a republican form of

government. Such matters are so exclusively entrusted to the political branches of government as to be

largely immune from judicial inquiry or interference.

Brandenbourg expansion of the first amendment to noncitizens???????????????

3ways of thinking of immigration:

Immigration as a transition: Americans in waiting approach (two tracks?)

Immigration as a contract: Aliens here as long as they abide and should have their expectations met

Immigration as affiliation: Treatment of lawful immigrants and other noncitizens should depend on the

ties they have formed in this country.


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Public Benefits

State laws/Constitutional Protection in Alienage Law

Employment law geared to limit the employment opportunities of aliens (must hire 85% citizens) was

unconstitutional as this rule conflicted with Congress policy which had determined aliens were

admissible and able to work in the U.S. Congress plenary power on immigration cannot be limited by

conflicting state laws(Truax U.S.) However the Traxcourt carved an exception for state laws that

regulated immigration for a special public benefit . This doctrine was later used to upheld a NY law

Crane that restricted public work projects funded with state funds to citizens only because it was for a

special public benefit. In order to protect a special public interest a state can treat citizens and non-

citizens differently. Yick Wo

Both Citizens and lawfully admitted resident aliens are entitled to the equal protections under state law.

Classifications need a reasonable basis and those based on alienage are suspect, thus, requiring strict

scrutiny. (Graham v. Richardson-U.S. 1971)A state may not condition its grant of welfare benefits upon

either the beneficiarys citizenship or, if the beneficiary is an alien, upon a requirement that the alien

must reside in the U.S. for a special period of time. Court does not follow the special interest doctrine

but favors uniform federal rules on immigration. Special interest doctrine = discretion of states to

distinguish between aliens and citizens when disseminating state benefits. Are immigrants a discrete

and insular minority? What about a sub set of immigrants?Congress may condition an aliens participation in a federal medical insurance program on a five-year

residence requirements and on admission for permanent residence. Both aliens and citizens are

afforded constitutional protection but this does not afford aliens all the protections of citizenship.

(Mathew v. Diaz -U.S. 1976) Only congress can discriminate amongst aliens on basis of the length of

their residency because it has plenary powers over immigration and it is uniform across the nation.

Diaz =The are two arguments in Graham a EP argument and a Plenary argument. None applies here.

The Plenary does not apply to Congress regulation as it is federal and apparently the power is so

broad that it does not fail an equal protection challange. :( Congress has decided that there is a

difference between immigrants and non-immigrant resident aliens.


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A universitys policy of categorically denying domiciled non-immigrant aliens who hold G-4 visas in-state

status under which preferential treatment is given to domiciled citizen and immigrant alien students for

purposes of tuition and fees is invalid under the Supremacy Clause. (Toll v. Moreno)

EPC= Rational Bases Review (not a F4 minority)

Supremacy Clause is in Article VI 2 of the Constitution which provides that a Federal action must

prevail over an inconsistent state action.

Suspect classification: is a class of persons that have historically been subject to discriminatory

treatment; statutes drawing a distinction between persons based on a suspect clarification (race,

nationality, or alienage) are subject to a strict scrutiny standard of review and not the normal rational

basis review that is satisfies when the challenged statute is rationally related to the achievement of a

legitimate state action.

Alienage is a unique class. For purpose of state law discriminating based on alienage, legal aliens are a

suspect class. As such, state actions are analyzed according to strict scrutiny. In contrast, because the

United States Congress has the power to regulate immigration, federal government action that

discriminates based on alienage will receive rational basis scrutiny. Graham (modified by Toll)

EPC challenges to state laws (to defend aliens) are not foreclosed but are no longer favored. The laws

will likely be reviewed by Conflict analysis.

Toll has changed the analysis and the Court no longer will no longer follow Graham and the heightenedscrutiny for EPC challenges but will review challenged state laws (to see if Congress conflicts with

something that Congress has done (Congress explicitly said do not legislate, there is a contradiction or

conflict or there is field preemption)

This federal authorization of state-imposed anti-immigrant discrimination exposeslongstanding wrinkles in equal protection doctrine, federalism, and immigration law.

Under Graham v. Richardson" and its progeny, state anti-immigrant discrimination generally

has been subject to strict scrutiny (and therefore invalidated), but under Mathews v. Diaz

and its progeny, identical federal discrimination generally has been subject only torational basis review (and therefore upheld).

The rationale for the divergent standards is that, at the federal level, equal protectionnorms must be balanced against the deference traditionally accorded to exercises of thefederal immigration power, in light of the foreign affairs implications of immigration

lawmaking. The states possess no similar immigration power, however, and therefore state

or local anti-immigrant discrimination is scrutinized solely in light of equal protection

principles

Under Toll v. Moreno the analysis has changed and the Court no longer will no longer follow Grahamand the heightened scrutiny for EPC challenges but will review challenged state laws (to see if Congress

conflicts with something that Congress has done (Congress explicitly said do not legislate, there is a

contradiction or conflict or there is field preemption)

( U.S. Supreme Court considered how the state-operated University of Maryland grants preferential

treatment for purposes of tuition and fees to citizens and immigrant aliens having "in-state" status, yetdenied "in-state" status to nonimmigrant aliens, even if domiciled in the state. The Court held that theUniversity's in-state policy is invalid under the Supremacy Clause of the Constitution, insofar as the policy

categorically denied in-state status to domiciled nonimmigrant aliens who hold G-4 visas.)

Shaughnessy v. U.S. ex rel. Mezei (U.S. 1953)

Rule of Law: If the A.G. excludes, for national reasons, an alien that no other country will admit, the

continued exclusion will not constitute the sort of unlawful detention that would permit a court to

admit him temporarily on bond.


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State and local regulation of immigration

I. General Preemption Principles

Our analysis of a preemption claim

[M]ust be guided by two cornerstones of [the Supreme Court's] pre-emption jurisprudence. First,

the purpose of Congress is the ultimate touchstone in every pre-emption case. . . . Second, [i]n all

preemption cases, and particularly in those in which Congress has legislated . . . in a field whichthe States have traditionally occupied, . . . [courts] start with the assumption that the historic

police powers of the States were not to be superseded by the Federal Act unless that was the

clear and manifest purpose of Congress.

Wyeth v. Levine, 129 S. Ct. 1187, 1194-95 (2009) (internal quotation marks and citations

omitted) (quotingMedtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)).

Even if Congress has not explicitly provided for preemption in a given statute, the SupremeCourt "ha[s] found that state law must yield to a congressional Act in at least two

circumstances." Crosby, 530 U.S. at 372. First, "[w]hen Congress intends federal law to 'occupythe field,' state law in that area is preempted."Id. (quoting California v. ARC America Corp., 490

U.S. 93, 100 (1989)). Second, "even if Congress has not occupied the field, state law is naturally

preempted to the extent of any conflict with a federal statute."Id. Conflict preemption, in turn,has two forms: impossibility and obstacle pre e for a private party to comply with both state and

federal law."Id. obstacle preemption exists "where emption.Id. at 372-373. impossibility

preemption exists "where it is impossibl 'under the circumstances of [a] particular case, [the

challenged state law] stands as an obstacle to the accomplishment and execution of the fullpurposes and objectives of Congress.' "Id. at 373 (quotingHines v. Davidowitz, 312 U.S. 52, 67

(1941)). To determine whether obstacle preemption exists, the Supreme Court has instructed thatwe employ our "judgment, to be informed by examining the federal statute as a whole andidentifying its purpose and intended effects."Id2

B. Preemption of Section 2(B)

As the Supreme Court recently instructed, every preemption analysis "must be guided bytwo cornerstones." Wyeth, 129 S. Ct. at 1194. The first is that "the purpose of Congress is the

ultimate touchstone."Id. The second is that a presumption against preemption applies when

"Congress has legislated . . . in a field which the States have traditionally occupied."Id. The

states have not traditionally occupied the field of identifying immigration violations so we applyno presumption against preemption for Section 2(B).

We begin with "the purpose of Congress" by examining the text of INA 287(g). In thissection of the INA, titled "Performance of immigration officer functions by State officers and

employees," Congress has instructed under what conditions state officials are permitted to assist

the Executive in the enforcement of immigration laws. Congress has provided that the AttorneyGeneral "may enter into a written agreement with a State . . . pursuant to which an officer or

employee of the State . . . who is determined by the Attorney General to be qualified to perform a


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function of an immigration officer in relation to the investigation, apprehension, or detention of

aliens in the United States . . . may carry out such function." 287(g)(1). Subsection (g)(3)

provides that "[i]n performing a function under this subsection, an officer . . . of a State . . . shallbe subject to the direction and supervision of the Attorney General." Subsection (g)(5) requires

that the written agreement must specify "the specific powers and duties that may be, or are

required to be, exercised or performed by the individual, the duration of the authority of theindividual, and the position of the agency of the Attorney General who is required to superviseand direct the individual."

These provisions demonstrate that Congress intended for states to be involved in the

enforcement of immigration laws under the Attorney General's close supervision. Not only must

the Attorney General approve of each individualstate officer, he or she must delineate which

functions each individual officer is permitted to perform, as evidenced by the disjunctive "or" insubsection (g)(1)'s list of "investigation, apprehension, or detention," and by subsection (g)(5).

An officer might be permitted to help with investigation, apprehension anddetention; or, an

officer might be permitted to help only with one or two of these functions. Subsection (g)(5) also

evidences Congress' intent for the Attorney General to have the discretion to make a stateofficer's help with a certain function permissive or mandatory. in subsection (g)(3), Congress

explicitly required that in enforcing federal immigration law, state and local officers "shall" bedirected by the Attorney General. This mandate forecloses any argument that state or localofficers can enforce federal immigration law as directed by a mandatory state law.

We note that in subsection (g)(10), Congress qualified its other 287(g) directives:

Nothing in this subsection shall be construed to require an agreement . . . in order for any officer

or employee of a State . . . (A) to communicate with the

Attorney General regarding the immigration status of any individual . . . or (B) otherwise to

cooperate with the Attorney General in the identification, apprehension, detention, or removal ofaliens not lawfully present.

INA 287(g)(10). Although this language, read alone, is broad, we must interpret Congress'intent in adopting subsection (g)(10) in light of the rest of 287(g). Giving subsection (g)(10)

the breadth of its isolated meaning would completely nullify the rest of 287(g), which

demonstrates that Congress intended for state officers to aid in federal immigration enforcement

only under particular conditions, including the Attorney General's supervision. Subsection(g)(10) does not operate as a broad alternative grant of authority for state officers to

systematically enforce the iNA outside of the restrictions set forth in subsections (g)(1)-(9).

The inclusion of the word "removal" in subsection (g)(10)(B) supports our narrow

interpretation of subsection (g)(10). Even state and local officers authorized under 287(g) to

investigate, apprehend, or detain immigrants do not have the authority to remove immigrants;removal is exclusively the purview of the federal government. By including "removal" in

287(g)(10)(B), we do not believe that Congress intended to grant states the authority to remove


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immigrants. Therefore, the inclusion of "removal" in the list of ways that a state may "otherwise

[ ] cooperate with the Attorney General," indicates that subsection (g)(10) does not permit states

to opt out of subsections (g)(1)-(9) and systematically enforce the INA in a manner dictated bystate law, rather than by the Attorney General. We therefore interpret subsection (g)(10)(B) to

mean that when the Attorney General calls upon state and local law enforcement officersor

such officers are confronted with the necessityto cooperate with federal immigrationenforcement on an incidental and as needed basis, state and local officers are permitted toprovide this cooperative help without the written agreements that are required forsystematic and

routine cooperation.8 Similarly, we interpret subsection (g)(10)(A) to mean that state officers can

communicate with the Attorney General about immigration status information that they obtain orneed in the performance of their regular state duties. But subsection (g)(10)(A) does not permit

states to adopt laws dictating how and when state and local officers mustcommunicate with the

Attorney General regarding the immigration status of an individual. Subsection (g)(10) does not

exist in a vacuum; Congress enacted it alongside subsections (g)(1)-(9) and we thereforeinterpret subsection (g)(10) as part of a whole, not as an isolated provision with a meaning that is

unencumbered by the other constituent parts of 287(g).9

In sum, 287(g) demonstrates that Congress intended for state officers to systematically aid

in immigration enforcement only under the close supervision of the Attorney Generalto whomCongress granted discretion in determining the precise conditions and direction of each stateofficer's assistance. We find it particularly significant for the purposes of the present case that

this discretion includes the Attorney General's ability to make an individual officer's

immigration-enforcement duties permissive or mandatory. INA 287(g)(5). Section 2(B)sidesteps Congress' scheme for permitting the states to assist the federal government with

immigration enforcement. Through Section 2(B), Arizona has enacted a mandatory and

systematic scheme that conflicts with Congress' explicit requirement that in the "[p]erformance

of immigration officer functions by State officers and employees," such officers "shall be subjectto the direction and supervision of the Attorney General." INA 287(g)(3). Section 2(B) therefore

interferes with Congress' scheme because Arizona has assumed a role in directing its officers

how to enforce the INA. We are not aware of any INA provision demonstrating that Congress

intended to permit states to usurp the Attorney General's role in directing state enforcement offederal immigration laws.

Arizona argues that in another INA provision, "Congress has expressed a clear intent to

encourage the assistance from state and local law enforcement officers," citing 8 U.S.C.

1373(c). Section 1373(c) creates an obligation, on the part of the Department of HomelandSecurity ("DHS"), to "respond to an inquiry by a Federal, State, or local government agency,

seeking to verify or ascertain the citizenship or immigration status of any individual . . . for any

purpose authorized by law."

We agree that 1373(c) demonstrates that Congress contemplated state assistance in the

identification of undocumented immigrants.10 We add, however, that Congress contemplated this

assistance within the boundaries established in INA 287(g), not in a manner dictated by a statelaw that furthers a state immigration policy. Congress passed 1373(c) at the same time that it

added subsection (g) to 287. See Omnibus Consolidated Appropriations Act, 1997, Pub.L.

104208, 133, 642 (1996). Thus, Congress directed the appropriate federal agency to respond


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to state inquiries about immigration status at the same time that it authorized the Attorney

General to enter into 287(g) agreements with states. Arizona and the dissent urge a very broad

interpretation of 1373(c): because DHS is obligated to respond to identity inquiries from stateand local officers, they argue, Arizona must be permitted to direct its officers how and when to

enforce federal immigration law in furtherance of the state's own immigration policy of attrition.

This interpretation would result in one provision swallowing all ten subsections of 287(g),among other INA sections. Our task, however, is not to identify one INA provision and concludethat its text alone holds the answer to the question before us. Rather, we must determine how the

many provisions of a vastly complex statutory scheme function together. Because our task is to

interpret the meaning of many INA provisions as a whole, not 1373(c) and 287(g)(10) at theexpense of all others, we are not persuaded by the dissent's argument, which considers these

provisions in stark isolation from the rest of the statute.11 In addition to providing the Attorney

General wide discretion in the contents of each 287(g) agreement with a state, Congress

provided the Executive with a fair amount of discretion to determine howfederalofficersenforce immigration law. The majority of 287 grants powers to DHS officers and employees to

be exercised within the confines

Documents

Outline for "Immigration and Citizenship Law"