Immigration Law Outline

A. Categories of People

Spring 2009

1. Immigrant 203: (defined by 101(a)(15) every alien except an alien who is within one of the following classes of non-immigrant aliens) a. Quota System: i.Exempt from general Quotas: 1. Immediate relatives (spouses, parents of over 21s, children) 2. LPRs returning from temporary visits abroad 3. Some former US citizens 4. Children born to LPRs abroad 5. Recipients of permanent discretionary relief 6. Those fleeing persecution (have their own quotas) 7. Parolees (usually allowing non-citizens to come for urgent personal reasons or to allow applicants for admission to remain pending application a grant of parole is not an admission) 8. Congress occasionally admits a special group on an ad-hoc basis a. Relief for nurse shortage, eg b. One-time statutes admitting underrepresented countries or people who arrive as part of an unusual migration ii.General Quotas: Subject to total limits + country limits 1. Family (in order of preference) 203(a): Total annual worldwide limit for family-sponsored immigrants: 480K No. of immediate relatives (including children born abroad to LPRs temporarily abroad) admitted in the preceding fiscal year + any employment based visas that were available the preceding fiscal year but were not used (Certain grants of parole also slight reduce annual ceiling 201(c)(1)(A)(ii)). However, in any year in which that formula produces a number less than 226K, they will bump up the ceiling to 226K:

a. Over 21 unmarried children of US citizens i.Annual allotment: 23,400 max/ yr + any left over from (iv) brothers and sisters category b. LPR spouses/ children or over 21 unmarried children i.Annual allotment: 114,200 max/ yr + any amount over the 226K ceiling for total family sponsored immigrants determined by Congress for that year + any left over from (I over 21 unmarried children) except that at least 77% of the visas in this sections will go to the spouses and children (under 21) of LPRs. ii.2 sub-groups: 1. 2As: spouses and under 21 children of LPRs receive 77% a. 75% of this group is exempt from per-country limits 2. 2Bs: over 21 unmarried children of LPRs c. Married over 21 children of citizens i.Annual allotment: 23,400 max/ yr + any visas left over from (i) and (ii) d. Siblings of citizens over 21 i.Annual allotment: 65K max/ yr + any left over from (i), (ii) and (iii) e. Issues to watch for: i.Waiting times depend on supply and demand of visas varying according to preference category and depending on country. 1. Child Status Protection Act (2002): Sometimes children age-out the legislation means processing times arent counted against child

a. For immediate relatives of US citizens age is frozen when petition is filed. b. For children of LPRs use age at the time the visa becomes available, but reduced by the amount of time the visa petition was pending, as long as the beneficiary files the necessary forms with the consulate within one year of the visa becoming available. ii.Note: Immediate relatives are exempt from the quotas, but they deduct the number of visas which they take up from the supply available during the next fiscal year to other family members of US citizens and LPRs (226K minimum addresses fear that the immediate relatives would use all). iii.Fraudulent Marriage: Marriage must be: 1. Legally valid 2. Factually genuine a. Test: whether at the inception of the marriage the parties intended to establish a life together. 3. Sham marriages can be bilateral or unilateral 4. Immigration Marriage Fraud Amendments (1986) a. 216(a)(1) & (g)(1): A noncitizen receiving LPR status by virtue of a marriage that is less than 2 years old will have Conditional LPR status: i.If at any time during the individuals first two years of permanent residence, the AG (now Secty of Homeland Security) finds that the

marriage was entered into for the purpose of procuring immigrant status or that the marriage has been judicially annulled or terminated (other than by the spouses death), or that a fee (other than an attorney fee) was given for the filing of the petition, then permanent resident status is terminated. ii.Noncitizen can contest the finding at a removal hearing in which govt has burden of proof. iii.Note on DEATH/ Widows Penalty: If the citizen dies and the marriage is less than two years old, the noncitizen probably will have the conditional LPR status terminated! But, if death occurs after two years has passed, then you can apply for waiver based on death of a spouse. iv.This distinction is due to 201(b)(2)(A)(i) a spouse is considered an immediate relative if an alien who was the spouse of a citizen of the US for at least 2 yrs at the time of the citizens death, the alien (and each child of the alien) shall be considered to remain an immediate relative after the date of the citizens death but only if the spouse files a petition

within 2 yrs after such date and only until the date the spouse remarries. v.9th Circuit says second sentence irrelevant and only the fact you are a spouse matters the second sentence is only relevant when a person who might have filed for conditional LPR status didnt get around to it in time (suggesting you could file a self-petition after death) vi.Other courts/ govt disagree and apply the second sentence so you couldnt be considered a spouse. vii.Practically, this means that anyone who applies when they have been married already for two years, will have LPR status granted immediately, whereas if it is less than 2 years old, conditional status will be granted for two years. viii.Main Point: if youve been married almost two years, its better to wait until the two years have passed and apply for straight LPR status straight away. b. The conditional resident and spouse have an affirmative duty to jointly petition for removal of the condition and to appear at an interview in connection with that petition.

c. 216(b)(1) Petition must be filed during 90 day period immediately preceding the second anniversary of the persons admission for permanent residence. d. 216(c)(2)(A) if the joint petition is not filed on time, or if without good cause either spouse fails to appear at the interview, then permanent residence is terminated. e. Through petition and interview, the couple must establish the marriage: i.Was legally valid ii.Was not entered into for immigration purposes iii.That no fee (other than attorneys fee) was paid for the filing of the petition. iv.USCIS is looking for fraud f. 216(c)(3)(D) If the decision is favorable, the condition is removed. If unfavorable, the permanent resident status is terminated , bu the noncitizen may contest the finding at a removal hearing in which govt has burden of proof. g. 216(c)(4) If the immigrant is unable to meet the requirements for removing the conditions, that person can apply for a waiver (also applies to proceedings to terminate permanent resident status) i.If removal would cause extreme hardship to conditional resident, (or

possibly also to spouse or dependent child) ii.Considering only the period of time the alien was admitted as a conditional LPR iii.If the qualifying marriage was entered into in good faith by the alien spouse, but the qualifying marriage has been terminated (other than through death of the spouse) and the alien was not at fault in failing to meet the requirements or iv.If the qualifying marriage was entered into in good faith by the alien spouse and during the marriage the alien spouse or child was battered by or was the subject of extreme cruelty perpetrated by his or her spouse or citizen or permanent resident parent and the alien was not at fault in failing to meet the requirement (battered wives) 5. Marriages entered into while petitioner is in removal proceedings will not be the basis for a LPR grant until the alien has resided abroad for two years. a. Manwani v. INS found this to be too harsh so today it can be overcome according to: i. 204(g): avoid the 2 year residency abroad requirement by proving genuineness of marriage by clear and

convincing evidence. iv.Nonmarital children: Matter of Mourillon common parent that was necessary for a stepsibling to qualify turned out to be a stepmother, rather than the blood parent because of marital requirement. v.Same Sex Marriages Adams v. Howerton same sex marriages dont qualify for family visas 2. Employment (in order of preference) 203(b): Total may not exceed 140K + any family-sponsored visas that were available the preceding year but were not used. a. First: 28.6% of emp. visas issued + unused visas from 4 and 5) i.Aliens with extraordinary ability in the sciences, art, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. ii.Outstanding professors and researchers iii.Certain multinational executives and managers 1. Note: not as high a standard/ fine for multinational transfers iv.Notes: 1. Requires documentation of evidence 2. Quota is not normally met in this category b. Second: 28.6% + any emp. visas not used by category 1 i.Aliens who are members of the professions holding advanced degrees (ie graduate degrees) or aliens of exceptional ability (sciences, arts, professions or business sought by a US employer) 1. Advanced degrees or Bachelors + 5 years experience

ii.Waiver of job offer 1. AG waiver 2. Physicians working in shortage areas or veterans facilities 3. Waivers in areas of employment with substantial intrinsic merit iii.Notes: 1. Requires documentation of evidence 2. Requires job offer and labor certification (for most of the category) unless you receive a national interest waiver c. Third: 28.6% + any emp. visas not used by categories 1 & 2/ limited now to 40K per year with 10K going to unskilled i.Skilled workers, professionals and other workers ii.Skilled labor requiring at least 2 years training or experience, not of a temporary or seasonal nature for which qualified workers are not available in the US iii.Professionals: Baccalaureate degrees / members of the professions iv.Other workers: unskilled labor, not of a temporary or seasonal nature, for which qualified workers are not available in the US 1. Not more than 10K of the visas available under the third preference can go to these workers (less an offset for NACARA) v.NOTE: Labor Certification Required for all workers in this category under 212(a)(5)(A) 1. Policy concerns over protecting workers from exploitation through wages and protecting US workers jobs 2. Certs Typically obtained by employer from

Dept of Labor/ Labor Secty where: a. There are insufficient qualified workers who are able, willing and qualified b. The employment of the alien will not adversely affect the wages and working conditions of workers c. Exception for members of teaching profession or someone with exceptional ability in the sciences or the arts - standard is whether there are not equally qualified US citizens, not able, willing and qualified only. 3. Procedure/ PERM (2005): a. First determine whether the particular job requires an active process for certification or if the occupation qualifies for automatic certification (Schedule A: nurses, physical therapists and those with exceptional ability in science ad art only now) i.If qualify under automatic cert, file visa petition with USCIS immediately b. If not, file for labor cert with ETA c. Show recruitment of US workers i.Get prevailing wage determination from SWA agency and determine requirement for job ii.(ONET shows qualifications usually require for every job in US)

iii.Attempt to fill job according to the following steps: write job description (an art to craft so no one will respond); if you find someone who is minimally qualified, then you must hire, but if you say no one was minimally qualified, you might have to prove it if audited. iv.If you fail to find anyone, file application with dept of labor: affidavit/ statement of what you did/ dont file all docs unless audited. d. ETA certifying officer decides application: approve, denied in writing stating reasons and advising that review can be requested in 30 days or forward review to BALCA e. If certification is denied appeal to BALCA Board of Alien Labor Cert Appeals/ Labor dept ( like Marion Graham) 4. Matter of Marion Graham: live-in domestic help denied: a. Live-in requirement raises lots of red flags because it isnt deemed a necessity and narrows pool of applicants. b. She could have won if she had succeeded in showing a live-in was a business necessity but she didnt have enough documentation i.Business Necessity:

ii.No real test for this at the time in live-in domestic help she had to show that living-in was essential to performing the job duties in a reasonable manner. iii.TEST today: job duties bear a reasonable relationship to occupation in context of employers business and is essential to perform the job in a reasonable manner. c. PERM LIVE-IN TODAY: Must show: i.Live-in requirement is essential to performing the job duties in a reasonable manner and ii.There are no cost-effective alternatives. 5. For combining two positions into one, employer must demonstrate that hiring two people will be infeasible / costly/ inefficient is not enough. 6. Employers must show there are NO qualified workers available, not no equally qualified workers (exception above) 7. Note: LPR applicants adjusting status can change to same or similar job after having waited 180 days without USCIS labor cert. d. Fourth: Special Immigrants 101(a)(27): 7.1% of emp. Visas max i.LPRs returning from temporary visits abroad ii.Previous US citizens who may reapply for citizenship iii.Immigrants + spouse and children if accompanying

or following to join who: 1. For at least 2 yrs immediately preceding the time of application for admission, has been a member of a religious denomination having a bona fide nonprofit, religious organization in the US 2. Seeks to enter the US solely for the purpose of carrying on the vocation of a minister of that religious denomination before Oct 1, 2008 (subject to other conditions see statute), and has been carrying on such vocation, professional work, or other work continuously for at least the 2 yr period described above. iv.Employee of US govt of certain kinds v.Other e. Fifth: Employment Creation: 7.1% of emp visas max i.Qualified immigrants seeking to enter the US for the purpose of engaging in a new commercial enterprise (only 100-150 admitted each year) 1. In which such alien is investing $1mill and 2. Creating full time employment for at least 10 US citizens, LPRs or other work authorized immigrants (other than the investing immigrants spouse, sons or daughters) 3. Must invest in a new enterprise 4. Status is terminable within 2 years if its found the business was established for purpose of evading immigration laws or if less than 10 new jobs were created a. Conditional LPR status like marriage/ must petition for removal of conditional status before end of two years

3. Diversity 203(c): Basic annual ceiling is 55K (201(e)), but now reduced to 50K to offset NACARA admissions) a. Based on high admission/ low admission determinations by AG i.No visas for natives of high admission states ii.Low admissions states in low admission regions receive percentage x population ratio iii.Low admission states in high admission regions get the rest iv.Redistribution by Secretary of State is possible v.Natives of any single state receiving visa cannot exceed 7% of total in any given year results in long wait times from highly demanding countries vi.Regions: Africa, Asia, Europe, North America (other than Mexico), Oceania, South America/ Mexico/ Central America/ Caribbean vii.An alien is not eligible for a visa unless 1. The alien has at least a high school education or equivalent or 2. Has, within 5 years of the date of application for a visa, at least 2 years of work experience in an occupation which requires at least 2 years of training or experience. b. Odds of getting in are about 1:4 c. Motivated by concerns for engineering national make-up (racial engineering Europe is always on the list, but has also been a boon to Africans) d. Required to meet educational requirements and apply by internet (hard for many) 4. Asylum/ Refugees (asylees exempt from quotas) 5. Accompanying spouse or child: 203(d) A spouse or child who

is accompanying, or following to join an immigrant within any of the 3 broad preference categories is entitled to the same preference status and to the same place in the queue as the principal immigrant. a. Spouse or child must be acquired before the principal immigrants admission as an LPR b. No analogous provision for spouse or child accompanying or following the join an immediate relative. c. Spouse or child is regarded as accompanying the principal immigrant until 6 mos after issuance of principal immigrants visa or adjustment of status/ No time limit on following to join. b. Country Limits: i.Generally, combined no of family + employment immigrants from one country cannot exceed 7% of total (usually 25K-26K per year) 1. 2As exempt from country limits 2. Limited to 2% for colonies of foreign countries 3. Employment based immigrants are exempt from country limits during any calendar quarter in which total worldwide ceiling for employment immigrants exceeds the worldwide number of qualified applicants. 202(a)(5)(A) ii.Diversity immigrants from one country also generally cannot exceed 7% iii.Immediate relatives and other groups exempt from worldwide limits are exempt from per country limits also c. Procedure (for all types): i.File Paperwork generally first come, first served/ file to secure place in queue 1. Visa Petitions: a. I-130 for immediate relatives and family based preference/ must be filed by US citizen or LPR family member i.Some self-petitioners in cases of abuse ok

b. I-140 for employment based ii.Check chart for country priority date 1. Priority date: date on which applicant files documents iii.Once priority date comes up, and LPR or citizen is permitted to file a petition on your behalf; processing begins 1. Processing time varies widely a. NY/CA 6 mos for immediate relatives but b. NY 6 mos for First Pref Family while CA 3.7 yrs 2. State dept publishes bulletin to estimate wait times, noted by letter C for current iv.Hurdles to admission: 1. Labor certificate or filing of labor condition application for some 2. Visa petition 3. Once approved, must file visa application (some exempt) 4. Admission (visa is usually essential but does not guarantee admission)

2. Non-Immigrant Categories: 101(a)(15)(A-V) Stay of fixed duration (student, tourist, business, etc.) a. In general: i.Restrictions on length of stay and permitted activities ii.Less demanding admission criteria iii.Normally no numerical restrictions (H1Bs capped) iv.Substantive eligibility rules less restrictive v.Noncitizens seeking admission are presumed to be immigrants (subject to the corresponding higher standards) and must rebut that presumption by showing they qualify as non-immigrants

vi.97% of people who come to US are non-immigrants (vast majority tourists) b. Temporary Stay i.B1: Business visitors ii.B2: Pleasure visitors iii.E1: Treaty trader/ E2: Treaty investor iv.H1B limited to 65K per year + 20K additional for those with masters degrees or higher/ Valid up to 6 years 1. Specialty occupation requires knowledge of theoretical and practical application of a body of highly specialized knowledge (at least bachelors degree or equivalent) a. Includes fashion models b. Typically tech workers (Bachelors + specialized knowledge) 2. Dual Intent Allowed under H1B (but not all non-immigrant categories): Often people enter on H1B and contemporaneously seek LPR status Congress has declared these two intentions dont conflict (defined as intent to leave US by the expiration of ones lawful stay, coupled with hope of acquiring LPR status) a. Problem is that if you intend to stay permanently when you enter you are inadmissible/ ineligible b. But people genuinely do change their minds c. Ethical problems for lawyer: only a client knows his or her intent to remain if the client tells the lawyer of intent to remain permanently, is the lawyer committing fraud? i.Explain consequences of various forms of intent to the client and leave it up to them to decide 3. Employer must file Labor Condition Application stating: a. Employer is paying at least prevailing wage level in the area of employment or the actual wage level at place of employment, whichever is greater

i.Very hard to compute existing wages b. Working conditions of similarly employed workers will not be adversely affected c. There is no strike or lockout d. The employer has notified existing employees of the filing 4. Employer filing fee now $1000 + more for companies that appear to be H1B dependent 5. Spouses and children may not work v.Lesser Skills: H2A and H2B 1. H1C: nurse 2. H2A: Agricultural labor (temporary seasonal) a. Requires residence in foreign country b. Concerns over exploitation and benefits to consumer of cheaper food prices/ Braceros and other guest workers c. Better for employer because employer avoids regulation but must provide: i.Housing on site or rental housing ii.Governed by state requirements iii.Employer must file ahead of time, predicting a shortage (proving no domestic workers) 3. H2B: other services where local US people cannot be found a. Employers need not supply supporting documents for labor certification unless audited 4. F1: Students/ Universities determine length of eligibility according to length of program and offers/ judges extensions a. Must agree to leave at expiration of authorized period and must show sufficient funds b. OK to work on campus but not off + 1 year post graduation of optional practical training (after bachelors, masters or

phd) c. No labor certificate required d. Ski resorts/ fishing resorts/ baseball players where not internationally recognized e. Students from some countries receiving higher scrutiny than others but if you have the financial resources, they wont turn you away. 5. J1: Exchange Visitors: controversial au pair program 6. C: Tourists 7. K1: fianc/ ees and K2: fiances children 8. L1: intracompany transers 9. S: snitch visas for those able to share critical reliable information about either ordinary criminal organizations or terrorist orgs. 10. T: for victims of severe forms of trafficking in persons who are physically present in the US or port of entry as result of trafficking. a. Must demonstrate extreme hardship involving unusual and severe harm upon renewal b. OK to work c. Family accompanying or following OK d. 5K limit per year not counting family e. Adjust after 3 years to LPR 11. U: for women who have suffered substantial physical or mental abuse as a result of any of enumerated acts of violence: rape/ torture/ trafficking/ incest/ felonious assault, etc. a. OK to work b. Some family can come c. Adjust after 3 years to LPR 12. V: provides limited relief to certain long divided families

vi.Other: 1. O visa: athletes, entertainers, artists, scientists, education, business with extraordinary ability 2. P visa: internationally recognizes but not extraordinary athletes and performers vii.Cases 1. Bricklayers Union: Company brought masonry workers in on B1 visas when American workers existed and Union sued B1 excludes aliens coming in to perform skilled or unskilled labor (but INS Operations Instruction allowed B1 to install machinery) the court held the statute controlled. a. Today some of these workers can come in (after this decision many companies protested and the union backed off) c. Undocumented (10-19 million people) d. Special Registration System: non-immigrant male visa holders from a list of 25 countries are required to register (Arabic or high population of Muslims) e. Procedure: i.Fit into a category and prove not inadmissible (non-immigrants burden) 1. 212(a) 5 major grounds for inadmissibility (see below) ii.Apply for a visa abroad iii.All non-immigrant visas are on line at state dept web site iv.Present visa to CBP inspector at port of entry v.To change status: Usually you can apply for adjustment of status (from nonimmigrant to LPR or to another non-immigrant category) 1. Often you must leave the country (although if applying just to extend current status usually dont have to leave) 2. Some categories ineligible 3. Applicants must obtain favorable exercise of administrative discretion

4. Must have been lawfully admitted and continue to maintain status 5. If inside US file for LPR via adjustment of status If not, file at the consulate some allowed to adjust in country, some not 3. Citizens: a. Birth on US soil Jus Soli b. By parentage Jus Sanguine c. Naturalization 4. Nationals: Some degree of membership in political community by virtue of historical imperialism (assume we include as citizens) a. American Samoans: Not US citizens but born on US soil b. Swains Islanders

B. Procedures:

5. Admission Procedure a. Petition for visa: i.Family member for immigrants family visas (see above) ii.Employer for employment 1. 212(a)(5)(A) failure to obtain a labor certification is grounds for inadmissibility iii.Visa application made in person (if between the ages of 14-79) with consular officer at consular post abroad (photos/ other docs reqd) 1. Immigrant visa apps normally made abroad also, but not always iv.Once issued, the visa is only valid for a limited time 1. Immigrant visa must be used within 6 mos 2. Non-immigrant time period varies by country v.Consular absolutism: officer has a lot of discretion and no way to appeal

(making the fact they must give a reason for denial meaningless) vi.Waiver programs 217 1. Nationals of countries with historically low rates of visa refusals can enter as tourists or business visitors for up to 90 days without a visa (22/27 countries are Europe) b. CBP immigration inspector determines if US citizen or if not, if inadmissible at border. i.All non-immigrants are fingerprinted, digitally photod, have docs scanned ii.Removal hearings are a right if you are refused entry, but the vast majority simply go home. iii.Arriving noncitizen bears burden of proving admissibility 6. Exclusion Grounds: No Due Process limitations on power to exclude Eiku a. Crime related i.Moral turpitude ii.Violations relating to a controlled substance (with exceptions) iii.Controlled substance traffickers iv.Prostitution and commercialized vices 1. Catch all: gambling, etc. v.Conviction of aggravated felony now defined expansively to cover wide range of criminal offenses for which relief is unavailable if you are convicted, after having been admitted as an LPR (LPRs treated less favorably here than undocumented immigrants) b. Political/ National security i.Political views or membership in parties 1. Desire to overthrow US govt or hostility to govt in general 2. Affiliation with the communist party 3. Anyone engaged in activities prejudicial to the public interest 4. Espionage, sabotage, subversion suspects

5. Adverse affect on US foreign policy ii.212(a)(3) current political grounds 1. Communist party is no longer deemed a grounds for exclusion iii.Terrorist activities (overbroad definition) 212(a)(3)(B) 1. Activity or organization 2. Engaged or liley to engage 3. Statutory definition of terrorism is very broad and includes many kinds of crime 4. Includes anyone from a country the US has deemed a state sponsor of terrorism (as determined by secretary of state) c. Health 212(a)(1) i.Communicable diseases (HIV/ AIDS ided) 1. Waivers for spouses and other close family members is possible ii.Drug abuse (not use) iii.Mental health 1. Have not had one or more attacks of insanity iv.Commercial vices/ prostitution v.Homosexuals no longer excluded d. Economic (Second most common reason for denial) i.Labor certification not approved ii. 212(a)(4) Likely to become a public charge any alien in the opinion of the consular officer at time of application or opinion of agent at time of admission is likely at any time to become a public charge 1. Public Charge: primarily dependent on US govt (mere receipt of public funds is not a public charge): a. Food stamps, Medicaid (but not long term institutional care) or CHIP, emergency medical care, nutritional programs, head start, job training, soup kitchens, crisis counseling OK

b. TANF, SSI, State general assistance is NOT OK c. Determinative question is whether the program is intended to be a primary source of cash for income maintenance. d. Affidavits of support can help overcome (they are binding) e. Waiver available on giving of public charge bond promising to indemnify govt of responsibility 2. Factors: a. Age b. Health c. Family d. Status e. Assets f. Education/ Skiills g. Gender (not technically) iii.Family based or immediate family visa must show financial sponsoring (affidavit of support) by sponsor of visa legally binding and enforceable against the sponsor 1. Must meet 125% of poverty level, calculated including who else depends on you, included other family members you have sponsored to come, must be over 18 and 2. Family members can join and pool resources if one cant do it alone iv.Includes former US citizens who renounced citizenship to avoid taxation e. Immigration control i.Failure to complete documents correctly (most common reason for denial) ii.Failure to obtain labor certification iii.Misrepresentation in process 1. Fraudulent visas: inadmissible for life

2. False claim of citizenship or document fraud iv.No valid passport or visa at border v.Unlawful presence: If unlawfully present for a certain period of time there are admissibility consequences: 1. 212(a)(9)(B): a. (i)(I) if unlawfully present for period of more than 180 days but less than one year and voluntarily depart, inadmissible for three years i.Intepret the statute to be mean continuous unlawful presence, not aggregate (ie two unlawful four month stays do not mean 8 months ii.Not considered unlawfully present until the due date for voluntary departure comes if have been granted VD ie presence before the case has been heard is not unlawful although violation of terms of admission make the person deportable iii.Note: In contrast to above, there is unlawful presence while waiting for hearing after Notice to appear, according to former INS but the BIA sasys not still unclear. iv.Timely filed, nonfrivolous application for either extension of stay or change of status which is not decided before original stay authorized runs out, will be considered authorized stay, provided the person has not worked without authorization b. (i)(II): unlawfully present for one year or more inadmissible for 10 years

c. Exceptions to the two above: (pg 133 INA) i.Minors: no period of time in which an alien is under 18 shall be taken into account in determining the period of unlawful presence ii.Asylees: If bona fide application pending, time not taken into account in determining unlawful presence

iii.Family Unity iv.Battered women and children v.Victims of a severe form of trafficking in persons vi.Tolling for good cause (see above no iv nonfrivolous application pending) d. 212(a)(9)(C): if unlawfully present for an aggregate period of more than one year or removed for any reason and who then enters or attempts to enter without being admitted will be inadmissible for 10 years, after which time Secretary of HS can grant permission to reapply for admission. vi.No Show for removal hearing 212(a)(9)(A) inadmissible for five years if you fail to attend without reasonable cause. vii.212(a)(9)(A) Noncitizens who are ordered removed are generally inadmissible for either 5 or 10 years depending on whether they were removed upon or after arrival (20 years for second offenders, forever for aggravated felons 1. AG can waive this by consenting to person applying for admission f. Other Inadmissible: i.Stowaways ii.Surreptitious entry (must enter at port of entry and be admitted or paroled) iii.Assisting others to enter unlawfully iv.Someone who was unlawfully present for an aggregate of more than 1 year or who was removed and then enters without being admitted or attempts to enter g. General Notes: i.If inadmissible, but in the country, that is grounds for removal (before 96 had to be deported if you were in the country) 7. Waivers a. If inadmissible, apply for a discretionary waiver: i.212(g) waive inadmissibility for health related condition if they prove close

family relationship ii.212(d) humanitarian consideration 8. Deportability Grounds a. Entry b. Admission: i.212(a) Grounds for admissibility ii.IO will try to determine you are clearly beyond doubt admissible iii.If you choose to go voluntarily you will avoid a formal removal order that has future consequences, but on the other hand, people are being discouraged from their right to a hearing to challenge the order. iv.If theres any indication someone might be entitled to human rights relief at the border, they are supposed to get a screening interview risk that they go home when encouraged or too much discretion at the border. v.certain categories of arriving noncitizens are detained even today while admission decisions are pending c. Removal: Today everything is called removal, but the grounds listed are still either for deportability or inadmissibility/ The distinction is still relevant because discretionary relief available will depend on which category i.Voluntary departure 240(b): in lieu of removal proceedings or before theyve been initiated with restrictions 1. Can be granted by ICE before hearing or after by IJ but only within 30 days of master calendar hearing 2. Granted by IJ at conclusion of removal proceedings a. Good moral character b. Presence requirement c. Must not be deportable on national security grounds d. 60 days max to leave + mandatory bond 3. Often better to do VD because otherwise you are barred from reentry for 10 years 212(a)(9) aliens previously removed

ii.You can specify country you prefer to be removed to or object to a country / some have no countries willing to accept them (one man detained 10 years waiting for a country if that happens today, the person cant indefinitely be detained and must just be released) iii.Removal: 1. Notice to appear is first step in process 239(a) a. Notice specifies: i.Time and place of removal hearing and notice of procedural rights ii.Grounds for inadmissibility/ deportability iii.Charging document similar to an indictment b. Hearing must be at least 10 days later unless noncitizen requests earlier (time to obtain counsel, etc) c. Person cannot be removed until the hearing (can be months or years but presence here while waiting is OK) d. Must prove clearly and beyond doubt you are admissible e. No Show: Inadmissible for five years if you fail to attend 2. Hearing: immigration judge rules on deportability and/or availability of discretionary relief 3. ICE or noncitizen can appeal to BIA (petition for review filed directly in court) 4. Noncitizen (but not ICE) can appeal again in US Ct of Appeals 5. Special grounds for removal: a. Expedited Removal (at the border) 235 i.Based on certain grounds for removal (fraud, no docs, no sign you are a proper asylum applicant) ii.235(b)(1) New grounds after 1996: 1. undocumenteds unable to prove 2 or more years continuous presence (but catch-22

because they will have difficulty establishing longevity, but even if they can since its more than one year here they will be excluded for 10 years) 2. If apprehended within 14 days and 100 miles of checkpoint 3. If fraud of documents is grounds for removal it bars you from admission on a permanent bases 89% of cases. iii.Process: 1. Ordered removed on the spot / boat or plane found immediately 2. 99% leave asap/ 1% have valid asylum app iv.No judicial review in expedited removals unless: 1. Asylum claimant 2. LPRs 3. Admitted refugees and those who have already received asylum 4. But OK to review if person is a citizen, whether person was ordered removed or whether person falls in one of excepted categories above b. 235(c) Removal on National Security Grounds i.Removal without further hearing ii.Closed hearings based on secret evidence iv.Current Deportability Grounds: 237(a) Grounds for deportability v.Turns on admission not entry/ entry is part of definition of admission but not every physical crossing is entry (except Fleuti exception) vi.Non-Criminal Grounds 1. Entry without inspection (pre 1996 only/ now you have not been

admitted) 2. Entry while inadmissible 3. 237 (a)(1) and (3) Post-entry conduct related to immigration control a. Present in violation of the law or inadmissible b. Violating condition of stay c. Conditional status terminated on basis of marriage or investor d. Inadmissible at time of adjustment of status e. Violations of reporting/ registration laws of classes of noncitizens f. People smuggling (special rule in the case of family reunification) g. 237(a)(1)(H) Waivers of removal for fraud or misrepresentation available in certain cases h. Any alien who has become a public charge within 5 years after the date of entry from causes not affirmatively shown to have arisen since entry is deportable i.Define as long term assistance at govt expense ii.Receipt of public cash assistance 4. Cases: a. Ching and Chen: i.Entry occurs if crossing into territorial limits of US (ie physical presence) OR ii.Inspection and admission by an immigration officer or actual and intentional evasion of inspection at the nearest inspection point and freedom from official restraint iii.Case from 1984 / Chinese man and woman escaped while awaiting flight back to HK and were deported

because they were deemed to have entered, rather than being subjected to exclusion proceedings iv.Today this matters for obscure situations b. Rosenberg v. Fleuti: i.After Fleuti, a Swiss national, was admitted as LPR in 1952, homosexuality became a grounds for inadmissibility (although it was not at the time he was admitted). He spent one afternoon in Mexico in 1956 and INS sought to deport him on the grounds he was inadmissible upon re-entry due to homosexuality ii.Holding: There is no departure/ entry unless there is intent to depart in a manner which can be regarded as meaningfully interruptive of the aliens permanent residence. 1. Factors to show intent: a. Length of time of absence b. Purpose of the visit c. Whether travel documents are necessary iii.Unclear if Fleuti is still relevant: 1. Abandonment of LPR status turns on whether visit is temporary or prolonged absence a. If gone for less than 1 year, can present unexpired green card or i.LPR status continues unless govt proves abandonment by clear unequivocal and convincing evidence. b. Can apply in advance for re-entry permit upon return 5. (a)(3) failure to register and falsification of documents with some waivers

vii.Criminal Grounds 237(a)(2) 1. Crimes involving moral turpitude: Any alien who is convicted of a crime involving moral turpitude committed within five years (or ten years in the case of an alien with LPR status under 245(j) after the date of admission and is convicted of a crime for which a sentence of one year or longer may be imposed is deportable a. With provisions for: i.Aggravated felony ii.High speed flight iii.Multiple criminal convictions iv.Failure to register as sex offender v.(A) General crimes and (B) controlled substances (C) Certain firearm offenses, (D) Miscellaneous crimes and (E) Crimes of domestic violence 1. Controlled Substances: no enumeration except for exception for mj of less than 30 g for ones own use 2. (3) Other national security a. Nazi participation b. Definition: Base, vile or depraved Act (intentionally general): 3 approaches from Marciano i.Traditional/ Dominant Jx: Learned Hands def: examine elements of the crime without examining intent or mens rea if you can imagine a situation under which the act would not involve moral turpitude, then not, but if in every instance the elements do involve moral turpitude, then it is by definition a crime of MT ii.General Nature Test/ Minority but adopted in this case (Pino): Ask whether as a general nature as a matter of common usage this would be classified as a crime of moral turpitude

iii.Minority/ Fact Based approach: Proposed by the dissent taking actual intent and extenuating circumstances into consideration when necessary. iv.As a practical matter today there are lists of crimes of moral turpitude that have already been decided as qualifying c. Dont forget to examine whether the crime is also an aggravated felony: 101(a)(43): List is growing i.Policy concerns: easy for congress to expand the list with little oversight consequences are severe and definition very vague like crime of violence 1. If found, can never return to US without special permission of DHS secretary and if you return then imprisoned for 20 yrs 2. Impacts sentencing guidelines 3. Even some misdemeanors qualify 4. Gehris case woman would have been deported and barred from returning for pulling another womans hair she had been here since age two public outcry stopped it ii.Leocal: DUI conviction was not a crime of aggravated felony (unanimous SC decision) 1. Look for defiiniton of crime of violence and challenge statute pg556 2. SC disregarded INS interpretation of statute d. Examine all grounds for deportability single/ multiple crimes or can the crime be said to arise from the same scheme guidance pg 549-50 on what the same scheme is i.Same scheme: (sometimes matters for timing) 1. At one time 2. No substantial interruption that would allow participant to dissociate himself from his

enterprise and reflect 3. Pacheco: not a single scheme because two break-ins were separated by two days 4. 9th Circuit rejects this classifies crimes that arose out of single plan not a single event 2. Why criminal defense attorneys care a. Withdrawing Pleas: Parrino i.Def argued his attorney incorrectly informed him there would be no immigration problem if he pled guilty ii.Standard is whether it would be a manifest injustice to allow the guilty plea to stand iii.Court said deportation was a collateral consequence of guilty plea of which there are many (like not being able to vote) and it was not manifest injustice b. 6th Amend violations: Pozo i.IAC Strickland standard c. If serving as immigration attorney, always ask if there is a criminal background, and what administrative result was because some deportability grounds dont require an actual conviction i.Def of conviction 101(a)(48)(A) ii.101(a)(48)(B) term of imprisonment is deemed to include the period ordered by the court regardless of any suspension of sentence iii.Try to withdraw guilty pleas, have something dealt with in juvenile court etc. d. Better in some ways to be arrested on criminal grounds than by ICE because police have to respect same rights but ICE can do whatever they want 3. Policy issues:

a. Is deportation serving a punitive role?

d. Relief from Deportability i.Ways to contest: 1. Contest particular element of deportability ground or claimed basis 2. Try to avail yourself of particular defense such as waiver 3. Show persecution ii.Recurring limitations/ You will be deported if: 1. Found guilty of an aggravated felony 2. Notified of removal hearing and dont show 3. Deportable on terrorist or national security grounds affects capacity to challenge 4. Given voluntary departure but dont go iii.2 steps to claim relief from deportability 1. Establish fit into statutory claim for some form of relief (cancellation of removal part A) 2. Provide evidence that candidate deserves favorable use of discretion (always up to discretion of DHS agents not entitled to relief on this basis) iv.Cancellation of Removal: Best type of relief that grants LPR 1. Statute: a. 240(A) pg 574 LPRs Requires i.5 or more years lawfully admitted ii.7+ continuous years residence in US (Fleuti rule is sometimes used as standard to determine) iii.No aggravated felony conviction iv.Commonly used where deportation stems from

convictions v.Applicant must always show he merits favorable exercise of discretion b. (B) pg 581 LPRs, undocumented, or other nonimmigrants (limited to 4000) Requires: i.10 or more years continuous presence immediately preceding date of application ii.Good moral character iii.No conviction of criminal grounds offenses under 212(a) iv.Establish removal would result in exceptional and extremely unusual hardship to aliens spouse, parent or child who is a US citizen or LPR 1. Hardship to noncitizen is irrelevant 2. How much hardship is enough? 3. Jong Ha Wang a. Couple from Korea were deported/ economic hardship was not enough/ needs of children not enough b. Agencys discretion for determining hardship 4. Move to reopen removal proceedings if hardship has since come up and you were not eligible previously 5. For battery/ extreme cruelty standard is less than exceptional or extremely unusual v.In practice this is mostly used by undocumented migrants or arriving noncitizens who return from temporary visits abroad after 10yrs + of undocumented presence in US c. Battered spouse or child

i.3 yrs continuous presence ii.Good moral character iii.No aggravated felonies d. Policy: Recognition of those who have been here long-term e. 240(c) list of ineligible aliens (eg national security risk) v.Other avenues of relief: Most not currently available 1. NACARA (1997) 2459a legalization of Cubans and Nicaraguans and Salvadorans continuously present since Dec 1990 (those who came this way get deducted from diversity visas / still ongoing) 2. Registry (Amnesty) 249 a. Been here since 1972 and meet all requirements b. Apply for registry during a removal hearing to IJ or before a removal hearing to the USCIS c. No hardship requirement, just good moral character, etc. 3. Private Congressional bills 4. Adjustment of status to LPR 5. Limited Relief from deportation when ICE defers action based on low priority of your case (but you dont get LPR) vi.Policy 1. Recognition that deportation is similar to punishment? 2. Recently the Sup Ct has recognized non-citizens right to review by habeas corpus for removal proceedings/ human rights violations vs. national security

C. Policy Arguments:

a. Notes:

i.Political/ Cultural 1. As documented by history, only political will is needed to change immigration law: recently immigration law has been impacted by national security concerns: a. Patriot Act expanded the definition of terrorist activity and made it grounds for deportation, mandatory detention and permits arrest and detention on national security grounds with no access to representation/ facilities in isolated areas. b. New structure of federal depts.: ICE + DHS 2. Question is how multi-cultural a national community do we want to be? ii.Federal Power: Art 1 8 establish an uniform rule of naturalization 1. Sources of power a. Chae Chan Ping v. US: Earliest statement of Plenary Power doctrine applying in the exclusion i.Immigration (admissibility, entry, etc) as distinct from naturalization (admittance to the political community), therefore the rule of naturalization clause doesnt necessarily give federal control over exclusion ii.Commerce clause might be a basis but here. iii.Power found in War Powers and Supranational Sovereignty Powers (international law) 1. Held: Court cedes power to review constitutionality of statutes in immigration law because the other concerns take precedence/ Inherently political question 2. No checks and balances 3. No due process limitations b. Fong Yue Ting: Plenary power gives Congress power to exclude/ Due Process is met in cursory review of exclusion procedure for Chinese laborers in the 1890s

2. Limits on power: None a. No DP: Whatever the procedure authorized by congress, that is due process as far as an alien is concerned. b. However, If the plenary powers doctrine rests on principles of international law, then there might be much more dictated today by international law that would protect human rights for those in limbo or for evaluating the doctrine today. c. Recently the Supreme Court has recognized right to review by habeas corpus for non-citizens (but counter arg is always national security). d. Residual State Power: i.DeCanas v. Bica: Preemption doesnt apply in every single matter relating to immigration