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President Social Security Administration
Secy of DHS Attorney
GeneralSecy of Labor Secy of
Health &
Human Services
Secy of
State
Ombudsman(USCIS only)
Asst Secyfor Policy
Office of Intl
Affairs
HSI CBP USCISAAU
Field Offices
Ports of
Entry Border PatrolField
Offices
Asylum
Offices
Service
CentersApplication
Support
Centers
Special Counsel FBI EOIR
BIAChief IJ OCAHO
Immigration
JudgesALJs
BALCA ETA WHD
ORR PHS
ECA
Consular officers
Posted worldwide
PRMConsular
Affairs
DRO
National Visa
Center
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DHS - Dept. of Homeland Security
HSI - Homeland Security Investigations (formerly ICE)
DRO - Detention and Removal Office CBP - Customs and Border
Protection
USCIS - U.S. Citizenship & Immigration Services
AAU - Administrative Appeals Unit
EOIR - Executive Office for Immigration Review
BIA - Board of Immigration Appeals
OCAHO - Office of Chief Administrative Hearings Officer
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BALCA - Board of Alien Labor Certification Appeals
ETA - Employment & Training Administration
WHD - Wage & Hour Division
PHS - Public Health Service
ORR - Office of Refuge Resettlement
PRM - Bureau of Population, Refugees and Migration
ECA - Bureau of Education & Cultural Affairs
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DEPARTMENT OF HOMELAND SECURITY
Established in 2003 by Congress
Aggregation of 14 agencies, including FEMA, Coast Guard, Customs, INS,
TSA, Secret Service and others.
Responsible, inter alia,for border security, transportation security, counter
terrorism, adjudication of immigration benefits, interior enforcement of INA.
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DEPARTMENT OF LABOR
Works with USCIS in the labor certification process, certifies the availability of
American workers, WHD monitors compliance with employer sanctions under INA.
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DEPARTMENT OF STATE
Bureau of Consular Affairs - officers stationed at embassies and consulates make determinations on
issuance of visas, both immigrant and non immigrant.
Determinations made by consular officers outside of the US are not subject to judicialreview.
National Visa Center - created in 1994 to assume routine responsibilities in visa processing.
Checks visa applications for accuracy and completeness
Creates immigrant visa files and computer records
Issues notices to applicants and attorneys concerning visa processing.
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DEPARTMENT OF STATE
Bureau of Population, Refugees and Migration - Responsible for overseas refugee
programs. Serves as point of contact for UNHCR.
Bureau of Education and Cultural Affairs - involved with cultural and educational
exchange programs between the US and foreign countries. (J-1 visas)
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SOCIAL SECURITY ADMINISTRATION
Issues Social Security numbers for individuals in the United States
Issues SS# for individuals without work authorization annotating the lack of
employment authorization. E.g. non immigrant students.
May notify employers of employees who are using false or questionable
SS#s for employment purposes.
Employer is on notice that an individual may not be authorized for
employment in the US and may raise issues of employer sanctions.
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COURTS
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Why is judicial review of immigration decisions important?
Consequences of the decision on the individuals
involved.
Correct inadvertent govt mistakes.
Ensure that the executive branch is properly interpreting
and applying immigration law
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OVERVIEW OF COURTS
Prior to 1961 - no statutory provision for judicial review
Primary means of review via writ of habeas corpus (detained
cases)
Administrative Procedures Act for non detained cases.
1961-1965 - 106 of the Immigration & Nationality Act
Deportation review by Courts of Appeals
Exclusion review by means of habeas corpus
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OVERVIEW OF COURTS
1996 Illegal Immigration Reform & Immigrant Responsibility Act (IIRIRA)
established new provisions for judicial review. 242 of the INA.
Review of removal proceedings lies with Courts of Appeals.
Imposed new limitations on judicial review
non reviewability of criminal based grounds, except singlecrime involving moral turpitude
non reviewability of of discretionary determinations, except
asylum
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REAL ID ACT OF 2005 - provides that judicial review of all expulsion,
deportation and removal orders are now governed by section 242 of the INA.
All appeals go to the Circuit Courts of Appeal and 242 governs all
cases.
Congress sought to eliminate habeas corpus review, mandamus and
of the All Writs Act jurisdiction in the district courts concerning an
order of removal entered pursuant to the INA.
Congress limited review of discretionary determinations by the DHS or
the AG, such as:
AGs determination to grant relief under 212(h); 212(i);
240A; 240B; and 245, etc.
Any final removal order for criminal grounds.
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Any discretionary decision by the AG, except asylum;
Any removal decision by an IJ based upon medical grounds;
Collateral attacks on removal orders;
Injunctive relief enjoining the operation of removal
proceedings, except in limited cases; and
Prosecutorial discretion to commence proceedings, adjudicate
cases or execute removal orders pursuant to the Act.
Courts of Appeal continue to have jurisdiction to review constitutional
questions and questions of law.
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ISSUES IMPACTING REVIEW
Review of a removal order must be sought by filing a petition forreview within 30 days of the decision.
Mandatory and jurisdictional - No exceptions!
No automatic stay of removal order pending filing.
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JUDICIAL REVIEW UNDER SECTION 242 OF
THE IN A
Not a panacea to aliens subject to removal orders
No automatic stay of removal absent a court order.
No judicial review of removal orders based on grounds of inadmissibility or
removability including:
public health grounds certified by a medical officer
criminal grounds, such as aggravated felonies, drug offenses and firearms offenses;
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JUDICIAL REVIEW UNDER SECTION 242 OF
THE INA
No review of the denial of most types of relief granted in the discretion of the
immigration judge or immigration officer, including:
waivers of inadmissibility;
cancellation of removal,
voluntary departure
adjustment of status
Limited judicial review for determinations involving asylum or expedited removal
orders.
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JUDICIAL REVIEW UNDER SECTION 242 OF
THE INA Limited judicial review for determinations involving asylum or expedited removal
orders.
Asylum orders are reviewed only to determine if the denial is manifestly
contrary to law.
Court may not reverse an administrative determination concerning the
availability of corroborative evidence.
Judicial review of all questions of law and fact, including interpretation of
constitutional and statutory provisions must be consolidated in a direct appeal of a
final removal order to the court of appeals.
No habeas corpus review is permitted in any federal court. 242(b)(9) of
the INA.
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JUDICIAL REVIEW UNDER SECTION 242 OF
THE INA
Federal district courts have a limited role in reviewing immigration determinations,
such as:
Where there is a genuine issue of material fact concerning whether the
person appealing a removal order is a US national;
In expedited removal proceedings by habeas corpus to determine whether
the petitioner is an alien, was ordered removed in expedited proceedingsunder 235(b) of the INA and whether the petitioner can prove that s/he is a
lawful permanent resident or currently in refuge/asylee status.
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PROJECTING THE FUTURE
Legislation in the 113th Congress proposed further limitation on judicial review.
H.R. 2278 proposed significant additional restrictions on judicial review.
limit review of visa denial or revocation by DHS;
voluntary departure;
reinstatement of removal orders for aliens who illegally re-enter afterbeing removed or departed pursuant to a removal order; and
naturalization delays and/or denials.
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PROJECTING THE FUTURE
Legislation in the 113th Congress proposed further limitation on judicial review.
H.R. 2278 proposed significant additional restrictions on judicial review.
Section 603 would bar review of reinstated orders of removal
because of constitutional claims or questions of law.
S. 744 also proposed some limitations on judicial review for issues relating
to employer sanctions determinations and visa revocations and denials
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PROJECTING THE FUTURE
For the past 10 years, Congress has imposed significant restrictions on judicial
review. While neither of the proposed bills passed in the 113th Congress, there is
little reason to believe that future legislation will change this trend.