I) Immigration and the Constitution

I) Immigration and the Constitution a) Sources of the Federal Immigration Power i) The Enumerated Powers – Nothing specifically says Congress may regulate immigration (1) The Commerce Clause (a) Congress may “regulate commerce with foreign nations” (i) Passenger Cases – Supreme Court invalidates state attempts to regulate immigration (ii) Wickard v. Filburn – Congress may regulate activities substantially affecting interstate commerce, even when the effects are indirect 1. The economic effects of larege-scale immigration on both interstate and international commerce are compelx and cotroversial, and substantial (2) The Migration or Importation Clause (a) The migration or importation of such persons as any of the states now existing shall think proper to permit, shall not be prohbited by the Congress prior to the year 1808. (3) The Naturalization Clause (a) Congress may establish a uniform Rule of naturalization (i) Congress made lawful admission as a permanent resident a prerequisite to naturalization (4) The War Clause (a) Congress is authorized to regulate alien enemies – nationals of countries with which the United States is at war ii) Implied Constitutional Powers (1) Chae Chae Ping (The Chinese Exclusion Cases) (a) The government of the United States, through actions of the legislative department, can exclude aliens from its territory 1. Jurisdiction over its own territory to control aliens is an incident of every independent nation 2. If the United States could not control aliens it would be to that extent subject to the control of another power (b) To preserve its independence, and give security against foreign aggression and encroachment, is the highest duty of every nation, and to attain these ends nearly all other consideations are to be suboridnated (i) If the government of the United States, through its legislative department, considers the presence of foreigners of a differen race in this country to be dangerous to its peace and secuirty, their exclustion is not to be stayed because at the time there are no actual hostilities with the nation of which the foreigners are subjects (c) Decisions of the legislature are conclusive upon the judiciary (i) If the govenrment of the country of which the foregners excluded are subjects is dissatisfied with this action it can make complaint to the excutive head of our government, or resort to any other measure which, in its judgment, its interests or dignity may demand 1. There lies the other country’s only remedy (d) Whatever license a foreigner may obtain while in the country, when that alien departs, the license is at the will of the United States after departure, revocable at any time, at its pleasure. iii) Beyond the Constitution (1) Historically, nations have found that national governments must control immigration in their collective capacity b) Limits to the Federal Immigration Power (1) Ekiu (a) No procedural due process right for a noncitizen to enter the United States (2) Fong Yue Ting (a) No procedureal due process for a noncitizen subject to deportation (i) Overruled if you could prove via a white witness that you were a resident at the time the law was passed (3) Shaughnessy (a) Although an LPR has a right to be heard, one who leaves without permission or authorization does not retain the right to a hearing upon return to the country (i) Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned (4) Harisiades (a) Substantive Due Process (i) LPR’s have a vested right to substnitve due process and should have the same rights as citizens (ii) If an LPR is deported, the decision is subject to a rational basis review (b) Speech (i) Out Constitution sought to leave no excuse for violent attack on the status quo by provding a legal alternative – attack by ballot 1. This means freeedmo to advocate or promote adverse beliefs by means of the ballot box, but it does not include the practice or incitement of violence 2. The fist amendment simply does not protect people that want to promote the violent overthrow of the government (c) Ex Post Facto (i) Membership in the Communist party was always a ground for deportation 1. Congress has maintained a standing admonition to aliens, on pain of deportation, not to become members of any organization that advocates overthrow of the United States Government by force and violence (5) Zadvydas (a) Reasonable Detention Period (i) If an alien is going to be deported, it is assumed that the alien must go somewhere (ii) Court must ask whether the detention in question exceeds a period reasonably necessary to secure removal 1. After 6 months, if the aline provides good reason to believe tha tthere is no signifcant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing II) Immigrant Priorities a) The Fundamentals: Quotas and Preferencing i) Immigrants Exempt From the General Quotas (1) Immediate Relatives (a) Spouse of United States Citizens (b) Parents of United States Citizens (c) Children of United States Citizens (2) LPR’s returning from temporary visits abroad (a) They were either exempt at the time of their original admission or they were already counted once before (3) Certain former US citizens (4) Children born to LPRs temrporarily abroad (5) Persons who receive certain permanent forms of discretionary relief from removal (6) People fleeing persecution (7) Parolees (a) The Attorney General has the discrediton to “parole” a noncitizen into the United States temporarily (b) Typically used for urgent persoanl reasons or to allow applicants for admission to avid detention pending determinations of admissiblity (c) A gran to f parole is not considered admission – the parolee is still outside of the United States in the eyes of the law (8) Special Ad Hod groups ii) Immigrants Subject to the General Quotas (1) Programs and Ceilings (a) Three main programs for immigrans subject to general quotas: (i) Family-Sponsored Immigrants 1. 480,000 – (number of immediate relatives who were admitted in the preceding fiscal year) + ((employment-based visas that were available in the preceding fiscal year bue were not used) 2. Ceiling must always be at least 226,000 a. Minimum addresses the fear that high immediate relative numbers would wipe out too many of the visas allotted to other family members (ii) Employment-Based Immigrants 1. 140,000 + (Family-sponsored visas that were available in the preceding year but were not used) (iii) Diversity Immigrants 1. Annual ceiling of 55,000 (2) Preference Categories and Sub-Ceilings (a) Family Sponsored Program (i) 1st: Unmarried sons and daughters of United States Citizens 1. 23,400 + (Visas that the 4th preference applicants don’t need) (ii) 2nd: Spouses and unmarried sons and daughter of LPRs 1. 114,200 + (Visas that the 1st preference applicants don’t need) + (Amount by which the total worldwide family-sponsored ceiling exceeds 226,000) a. 2nd is the only preference that refers to the relatives of LPRs b. Due to extreme backup, Congress provided that whenever the total ceiling for faimly-sponsored immigrants exceeded 226,000, the total excess would go to the 2nd preference. 2. 2A’s: Spouses and “children” of LPRs a. At least 77% of the 2nd go to 2A’s b. 75% of 2A’s exempt from the per-country limit 3. 2B’s: All other 2nd Preference Immigrants (iii) 3rd: Married sons and daughters of United States citizens 1. 23,400 + (Visas that the 1st and 2nd prefernce applicants don’t need) (iv)4th: Siblings of over-age-21 United States citizens 1. 65,000 + (Visas that the 1st, 2nd, and 3rd preference applicants don’t need) (b) Employment Based Immigrants (i) Priority Workers 1. 28.6% (ii) Members of the Professions holding Advanced Degrees 1. 28.6% (iii) Skilled Workers, Professionals 1. 28.6% (iv)Special Immigrants (Religious workers and long-term foreign employees of U.S. Government) 1. 7.1% (v) Employment Creation 1. 7.1% (c) A spouse or chilld who is accompanying, or following to join an immigrant who is within any of the three broad perference categories is entitled to the same preference status and the same place in line as the principal immigrant (3) Selecting Individual Applicants (a) Generally, whoever files first is first in line to get a visa (i) Prioirty Date – Date on which the applicant files the relevant document 1. Starts the prioirty clock (ii) Immigrants at the front of the line are processed in monthly gulps (b) System is complicated by the pe-country limit iii) Family Immigration (1) The Basics (a) Exempt from quotas (i) If the prospective immigrant is exempt from the quota, then the only delay are those needed for the applicant to gather up the necessary documents and fro the relevant government agencies to process them (b) Subject to quotas (i) Supply of visas, demand of visas, and length of wait vary from one preference category to another (ii) Wait is afffect by the country to which the visa will be charged (c) Monthly Visa Bulletin (i) Chart that indicates, for every comibnation of country and preference category, how long ago the people who are now about to receive visas first applied 1. Displays the priority date of the person who will be in line for the next month a. Current - If there is no backlog at all for the particular preference/country comibnation, the class is said to be current, and the letter C appears b. Unavailable – If no visas will be available that month, the letter “U”, for unavailable, appears i. Occurs when the annual numerical limits for the year have already been reached (ii) Status Change During the Wait 1. Typically a status change will occur because a person was married or because the person turned age 21 a. INS regulations provide that upon most changes in status or either the petitioner or the beneficiary, the application is automatically treated under whatever category the enw circumstances dictate i. Practical effect is that the prioirty date is the date on which the immediate relative petition was originally filed, not the later date on which the person changed status (2) Spouses (a) Same Sex Marriages (i) At present, no state clearly recognizes these 1. DOMA (Defense of Marriage Act) – No state shall be required to give recognition to a samae sex marrigae from another state. a. Any Federal regulation where the word spouse appears, assumption should be of one man and one woman (b) Fraudulent Marriages (i) Marriage must be legally valid in the jurisdiction in which it was celebrated 1. Parties must be marriageable age 2. Parties not already married to others 3. Ceremony performed by authorized officeila (ii) Marriage must be factually genuine 1. Standard Test: Whether, at the inception of the marriage, the parties intended to spend a life together (iii) Two Types of Sham Marriages 1. Bilarteral – Both spouses marry solely to failitate immigration a. The intending immigrant spuose typically pays the citizen or LPR spouse to enter into the marriage 2. Unilateral – The beneifciary spouce deceives the petitioner spouse as to the beneificiary’s feelings and intentions (iv)“Conditional” Permanent Residence 1. Whenever a noncitizen receives LPR status as an immediate relative, as a family-sponsored second preference immigrant, or as a fiance of a United States citizen by virtue of a marriage that is less than two years old, the resulting permanent residence will be subject to certain conditions subsequent. The Attorney General Must terminate LPR status if he finds: a. The marriage was entered into for the purpose of procuring immigrant status, b. The marriage has been judicially anulled or terminated OR c. A fee was given for the filing of the petiition 2. Conditional resident and spouse have an affirmative duty to jointly petition the INS for removal of the condition and to appear at an INS interview in connection with the petition a. Petition must be filed during the 90 day period immediately preceding the second anniversary oof the person’s admission for permanent residence – If not filed on time and without a good reason, permanent residence status is terminated b. Petition seeks to establish that the marrigae was legally valid, that it has not been judicially annulled, or terminated, that it was not entered into for immigration purposes, and that no fee was paid for the filing of the petition c. If the INS decision is favorable after petition, the condition is removed 3. Immigrant may ask Attorney General for waiver a. Finding of extreme hardship to conditional resident, spouse, or dependent child OR b. Meet 3 Conditions: i. Marriage was entered into in good faith ii. Marriage was terminated for cause iii. Conditional resident was not at fault in failing to meet the usual requirements OR c. Extreme Cruelty i. The battered 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 n failing to meet other requirements (v) No Marriage While Awaiting Deportation - §240(h) 1. A visa may not be approved by reason of immediate relative statuse by reason of a marriage which was entered into during the period that an alien is awaiting a deportation hearing until the alien has resided outside the United States for a 2-year period beginning after the date of the marriage a. May be avoided in two ways: i. Don’t get married until you leave the country – Voluntary departure would be the best method for this ii. Get divorced during proceeding and then get remarried – Still have to avoid the INS sham divorce statute (divorce msut be genuine) 2. Recently reached a compromise bill: a. If you get married during this time, it will not be recognized unless you leave for you years or you prove with clear and convincing evidence that the marriage is real (c) Other Family Members (i) “Children” 1. Must be unmarried and under age 21 (ii) Sibling 1. To establish the existence of a sibling relationhip the petitioner must show that he and the beneficiary are, or once were, “children” of a common “parent” within the meaning of the statute (iii) Stepchild 1. Unmarried person under the age of 21 years who was not born out of wedlock, provided the child has not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred AND 2. Must establish that the marriage which created the step- relationships still exists at the time the visa petition to accord the stepsibling classification is being considered OR 3. Where the parties have legally separated or where the marriage has been terminated by divorce or death, the appropriate inquiry is whether a family relationship has continued to exist as a matter of fact between the stepparent and stepchild a. Same inquiry for stepsiblings iv) Employment Based Immigration (1) The First Three Preferences: Superstars, Stars and Others (a) General Eligibility Requirements (i) First Preference - Superstars 1. Three Prongs a. Immigrants with extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim. i. Extraordinary Ability – Level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor b. Professors and researchers who are outstanding c. Certain multinational executives and managers, who need not demonstrate any particlua level of fame or success (ii) Second Preference – Starts 1. Two Prongs a. Members of the professions holding advanced degrees or their equivalent b. Immigrants with exceptional ability in the sciences, arts or business 2. Generally requires that the applicant demonstrate a job offer from an American employer a. INS has the discretion to waive this requirement in the ntional interest, but national interest requirement may be waived if the applicant can show i. That the area of employment is one of subtantial intrinsic merit ii. That the person’s employment will benefit the nation, not just the local area, AND iii. That the particular applicant will servie the national interest to a substantially greater degree than would an available US worker having the same minimum qualfications 3. Generally requires that an applicant obtain labor certification (iii) Thrid Preference – Others 1. Three Prongs a. Immigrants capable of performing certain skilled labor for which qualified U.S. workers are not available b. Immigrants who have baccalaureate degrees and are members of the prosfessions c. Other workers who are capable of performing unskilled labor for which qualified US workers are not available 2. No provision for national interest waivers 3. No more than 10,000 of these may be provided to prong (c) – Other workers in a single fiscal year (b) Labor Certification (i) Labor certification required for those that apply under the second and third employment-based preferences 1. National interest waivers are sometimes possible for second preference applicants (ii) Designed to assure that the immigrant’s employment will neither displace nor disadvantage American workers (iii) When labor certification is required, it is merely the first step in the process 1. Next step would be to get a visa petition (iv)Obtaining Labor Certification 1. Check 2 schedules published by Labor Department a. Schedule A – Occupations that the Labor Department has pre-certified as meeting the statutory requirements for labor certification i. If listed in Schedule A, labord ckertificiation is deemed to have been automatically granted ii. Immigrant or employer bypasses the Labor Department entirely and files an application with the INS, which then decides whethher the immigrant’s job really does fall within one of the Schedule A occupations iii. Physical therapists, professional nurses, and immigrants of exceptional ability in the sciences or arts b. Schedule B – Occupations that will not meet the statutory creiteria for labor certification i. Applicant whose occupation is on that list must apply for a waiver and make certain showings beyond those usually required 2. If the occupation is not listed on Schedule A, an individual application for labor certification must be file a. Application submitted to the local offoce of the state employment service 3. File goes to Dept of Labor a. Application is adjudicated by a certifying officer i. Employer must document its unsuccesful attempts to recruit American workjers at the prevailing wages 4. If the CO finds that the applicant meets all the requirements, labor certification is granted a. If the CO finds that the applicant does not meet the requirements, the CO issues a Notice of Findings i. Explains the problem and gives the applicant 35 days to submit documentray evidence or written argument to cure the defect ii. If the applicant fails to reply, labor certification is denied (v) Displacing American Workers 1. An alien seeking to enter the US for the prupose of performing labior is inelgible to receive a visa unless the Sec of Labor has determined and certified that: a. There are not sufficient workers in the US who are able, willing, qualified, and available i. At the time of applciation for a visa and ii. At the time of admission into the US AND iii. At the place wherhe the alien is to perform such labor AND b. The employment of the alien will not adversely affect the wages and working conditions of US workers similarly employed 2. Employers desiring to employ aliens must apply for labor certification: a. Must show that the job opportunity has been and is being descirbed without unduly restrictive requirements. Presumed unduly restrictive if: i. They are other than those normally required for the job in the US ii. Execeed the requirements listed in the Dictionary of Occupational Titles iii. Include a foreign language iv. Involve a combination of duties OR v. Require the worker to live on employer’s premises b. Business Necessity- Must Show: i. That the job requirements bear a reasonable realationship to the occupation in the context of the employer’s business AND ii. That the requrements are essential to perform, in a reasonable manner, the job duties as described by the employer (2) The Fourth Preference: Certain “Special Immigrants” (a) Mostly concerned with the special circumstances of the people they encompass (3) The Fifth Preference: Immigrant Investors (a) Approximately 10,000 visas per year are reserved for immigrans who: (i) Establish new commercial enterprises in the United States (ii) Invest at least $1,000,000 (Need not be paid all up front, they need only be actively in the process of investing that amount) (iii) Employ at least ten Americans (b) Sham Immigrant Investors (i) Someone could start a new company, invest the requisite capital, hire ten or more American, acquire LPR status, and then immediately sut down the company, lay off the employees, and withdraw funds (ii) Conditions subsequent 1. Attorney General may terminate the immigrant investor’s status within two years upon finding: a. That the establsihment of the commercial enterprise was intended solely as a means of evading the immigration laws OR b. The vaious requirements for 5th prefernce statuts ar enot being sustained 2. Petition for removal of conditional status within 90 days prior to the second year after admission v) Diversity Immigrants (1) Admits up to 50,000 diversity immigrants each year (2) Attoney General tabluates, for each foreign state, the number of people from the state who became LPRs during the preceding five-year period as immediate relatives, family-sponsored immigrants, and employment-based immigrants (a) Any foreign state for which that five-year number exceeds 50,000 is classified as a “high admission state” (b) Every other state is “low admission” (i) All 50,000 diversity visas are allocated to natives of low-admission states (3) World Divided into six regions: (a) Region is high admission if its natives accounted for more than one- sixth of the total LPR grants of the preceding five-year period (i) Africa (ii) Asia (iii) Europe (iv)North America (other than Mexico) (v) Oceania (vi)South America, Mexico, Central America, and the Caribbean (4) Attorney General computes, for each region, the total population of the low-admission states of that region (5) Attorney General divides up the 50,000 visas between two groups: (a) The group of high admission regions (b) The group of low-admission regions (6) Attorney General must figure out what percentage of the last five years’ immigrants were natives of high-admission regions (a) Low-admission regions receive that percentage of the 50,000 visas (b) High-admission regions get the rest (7) Within the low-admission regions, the visas are allocated among the different regions in proportion to the populations of the low-admission states in those regions (a) Within the group of high-admission regions, the visas are allocated amont the regions in propstion to the populations of the low-admission states in those regions (8) Two Other Requirements: (a) Individual must meet specified requirements concerning education level or work experience (b) Not more than 7% of the 50,000 vissas may go to natives of any single state in a given year III) Nonimmigrant Priorities a) Statutory Interpretation relating to Immigration i) Literal Plain Meaning Rule – Focuses on the lieteral language of the statute. When that language admist of only one meaning, the court must adopt that meaning even if doing so will produce absurd results ii) Social Prupose Rule – Court seeks out the purposes of the legislation and adopts whicheve interpreation will best advance those purposes iii) Golden Rule – Intermediate approach. The court fives the literal language its ordinary meaning, unless doing so would produce an absurd result b) Treaty Traders and Investors i) Both categories are ordinarily admitted for two years initially (1) Unlimited number of possible two-year extensions ii) No need to intend to retain one’s foreign residence (1) Both require an intent to depart upon termination iii) Categories: (1) E-1: Treaty Traders; E-2: Treaty Investors (a) Persons entitled to enter the United States under and in pursuance of the provisions of a treaty (b) Eligibility of a given individual rests ultimately on the terms of the particular treaty c) Temporary Workers i) Three Cateogires of Temporary Workers: (1) H-1B’s – Requires that a person be in a specialty occupation (a) Occupation that requires theoretical and practical application of a body of highly specialized knowledge (b) Occupation that in the United Staes, requires at least a bachelor’s degree in the particula specialty or the equivalent of a bachelor’s degree (c) Individuals who work temporarily for a US employer but whose slaray will be paid by his foreign employer (i) Salary need not be paid by the US employer, it may be paid by the foreign employer (d) Must be coming temporarily to the US (i) May be admitted for up to six years (ii) May enter with the hope of attaining LPR status at some future time 1. Noncitizen’s seeking of permanent resident status is not evidence of an intention to abandon a foreign residence for obtaining an H-1B visa (e) Employer must file a Labor Condition Application (LCA) (i) Employer attests to serveral things: 1. It is paying at least the prevailing wage level in the area of employment or the actual wage level at the place of employment (whichever is greater) 2. The owrking conditions of similarly employed workers will not be adversely affected 3. There is not a strike or lockout 4. The employer has notified its existing employees of the filing (f) Abuse of H-1B Petitions (i) Not adequately protecting American workers (ii) Not maying the prevailing wage (g) Immigration Act of 1990 (i) Limited the annual admissions of H-1B visas to 65,000 (2) O – Athletes, entertainers, persons in the other arts, the sciences, education, and business (a) Nonimmigrant must have extraordinary ability demostrated by sustained national or international acclaim (b) Initial admission may be for a period of up to three years, with possible one-year extensions (3) P – Entertainers (a) P -1: Internationally recognized athletes, and members of internationally recognized entertainment groups performing in specific events (b) P – 2: Artists and entertainers who wish to enter under reciprocal exchange programs (c) P – 3: Artists whou would provide programs that are culturally unique ii) Lesser Skills and Shortages: H-2’s (1) Comes to the US to: (a) Perform agricultural labor or service of a temporary or seasonal nature OR (b) Perform other temporary service or labor if unemployed persons capable of performing such service or labor cannot be found in this country (2) Both prongs require that the person have a residence in a foreign country which he has no intention of abandoning (3) Employer must obtain from the Dept of Labor a cdedrtification that sufficent American workers cannot be found and that nonimmigrants’ employment will not depress the wages or working conditions of American workers (4) H-2B’s (a) Initially admitted for up to a year (i) May receive one year extensions up to a total stay of three years (ii) Must first apply for labor certification (iii) Labor Depts’s temproray labor certification is merely advisory d) Educational Categories i) Students (1) F-1 (a) Private institutions (i) F-1 status may not be granted to permit a child to attend a public school (ii) May not be granted to permit a student to attend a public secondary school unless the student pay the full per-capita cost of education 1. Maximum duration of 12 months (b) Attorney General required to colect information on every foreign student they enroll (i) An institution that fails to provide the required information automatically loses its authoirty to accept foreign students (ii) Required Information 1. Identity 2. Address 3. Dates of any changes in immigration status 4. Whether the student is maintaining full-time student status 5. Any disciplinary action the institution has taken as a result of criminal conviction (iii) Attorney General must analyze the information and file a report with Congress (c) Duration of Student’s Stay (i) Admitted for “Duration of Status” (ii) A designated school official estimates a reasonable completion date for the particular program and may add a grace period up to one year 1. Student may remain in the United States until that date, assuming he or she remains in a full0tmie student in good standing 2. If unable to complete his studies by this time, the student applies to the university for an extension a. Extension will be granted upon a showing of “compelling academic or medical reasons” i. May include change of major or research topic, unexpected research problems, or documented illness b. University must inform the INS of the extension (d) Eligibility (i) Must demonstrate sufficient funds (ii) Stringent restrictions on employment 1. May work on campus up to 20 hours per week while school is in session and 40 hours per week during school vacations 2. Off campus employment is generally allowed only when unforeseen circumstances arising after admission make employment after the first year economically necessary and the INS grants permission 3. May work up to 20 hours per week off-campus after the first year without a showing of economic necessity i. Student must be on good academic standing and the empler must attest that it has recruited 60 days for the position and this it will pay prevailing wages 4. May engage in “practical training” for limited time periods ii) Exchange Visitors (1) J-1 for visitor, J-2 for spouse and children (a) Purpose (i) Mutual exchange program in which students, teachers, scholars, and others enter the country temporarily to pursue various education-related goals (ii) Provide training that will enable the visitors to benefit their countries of origin when they return, to foster intellectual and cultural interchange, and in the process to build positive foreign relations (iii) Summer Camp Counselors (iv)Au Pairs 1. Foreing national who comes to the US for a year to live with a host family, provde child care, and attend a post-secondary educational institution 2. Problems with exploitation as a means attaining cheap labor 3. Requirements a. Over 18 years old b. Secondary school graduate c. Proficient in English d. Pass a background check e. Must attend a postsecondary educational insitution for at least six hours per week f. Limited to 45 hours per week of child care g. Duration of stay is one year (v) Maximum Stay 1. Depends on the category a. Students in degree programs may remain as long as they are pursuing full courses of study at the institutions for which they were approved and are maintaining satisfactory advancements (vi)Difference between J-1 and F-1 1. Might not qualify for J-1 a. Studies must be part of a specific program approved in advance by the State Department b. Applicant must be sponsored by a U.S. government agency or a recognized international agency, or one of various private agencies e) Tourists i) 101(a)(15)(B) (1) Authorizes the admission of certain nonimmigrants who want ot visit the United States temporarily either for business (B-1) or for pleasure (B-2) (2) Time Period (a) Authorized period of initial admission ranges from six months to one year (i) Extensions may be granted in 6 month increments (3) Denial (a) Typical reason for denial is that the consular officer believes the applicant intends to remain permanently (4) People Given Visas For Pleasure May Not Stay for Education (a) B-2 was not intended to be a catch-all category for all who wish to come to the US temporarily for whatever purpose f) Finaces i) Fiance: K-1 Children: K-2 (1) Requirements (a) Must have met each other during the two-year period preceding the filing of the petition (2) K-3: Spouses of citizens while the immigration documents are processing (a) K-4: Children of spouses g) A Few Other Nonimmigrant Categories i) T: Victims of Trafficing (1) Voctims of a severe for of trafficking in persons who are physically present in the Unted States or a port of entry as a result of the trafficking (2) If age 15 or over, the person must comply with any reasonable request for assistance in the investigation or prosecution of the trafficking (3) Person must demonstrate extreme hardship involving unusual and severe harm upon removal (4) Attorney General may grant T status to accompanying designated family members (5) Principal T immigrant may work (6) Limit of 5,000 per year ii) U: Victims of Abuse (1) Those who have suffered substantial phyiscla or mental abuse as a result of any of several enumerated acts of violence (a) Rape, torture, trafficking, domestic violence, incest, sexual assault, prostitution, female genital mutilation, involuntary servitude, abduction, felonious assault, and several other criminal acts (2) Must possess information concerning the violence and must help prosecute (3) Various family members may be admitted if extreme hardship would otherwise ensue and the investigation or prosecution would be harmed without those family members’ assistance (4) Limit of 10,000 per year (5) May work (6) May adjust to LPR status after three years after certain conditions iii) V: Long Divided Families (1) Spouses and children of LPR’s (2) Permits the admission of nonimmigrants while they wait for their priority dates to become current, but only if the petition was filed before Decemer 21, 2000 (3) No numerical limits (4) Employment is permitted (5) Adjustment of statuse to permanent residence is contemplated h) General Nonimmigrant Problems i) Intent to Remain Permanently (1) Most nonimmigrant categories require either that the person seek to enter the country temporarily, or that the person have a foreign residence which he has no intention of abandoning, or both (2) Problem (a) If, after admission the INS discovers that the person originally entered with the intent to remain permanently, he or she might be deportable as one who was inadmissible at entry or as one who failed to maintain his or her nonimmigrant stause (i) Finding of preconceived intent to remain can also be a negative factor in various discretionary determinations (b) Genuine Change of Mind Not Precluded (i) If the change occurs very soon after the intial entry, the immigration authorities are more likely to suspect fraud 1. Question is one of fact (c) Dual Intent (i) 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 (3) Intent to remain raises both legal and ethical issues IV) Exclusion Grounds and Waivers a) Grounds Related to Immigration Control i) Preservation of the Integrity of Documents (1) 212(a)(7) – Excludes immigratns and nonimmigrants who are not in possession of valid passports and visas (2) 212(a)(5)(A) – Excludes immigrants if they do not have labor certification (3) Fraud (a) 274C – Doucment related fraud subjects aliens to fines and exclusion (b) Noncitizens who procure visas, admission, or certain other documents or benefits by fraud or misrepresenatation become inadmissible for life ii) Surreptitious Entry (1) 212(a)(6)(A) Excluded if present in the United States without having been admitted or paroled (a) Includes those that arrive at places other than officially designated ports of entry iii) Out of Status (1) 212(a)(9)(B) – Unlawfully present in the United States for 180 days or for one year inadmissible for three years or ten years, respectively (a) Contemplates continuous unlawful preesentce, not an aggregate of two or more separate stays (“For a period” of more than 10 years) (b) Violation of Terms of Admittance (i) 237(a)(1)(C)(i) – Presence does not become unlaful until the immigration judge hears the case and determines that the violation has occurred (c) Notice to Appear (d) Document filed by the INS to begin removal proceedings if they think someone is in the United States unlawfully (i) Time from the issuance to the time of removal order counts as unlawful presence unless the persul ultimately is found not to be deportable 1. Not necessarilly final word, this issue is still unclear (e) Nonimmigrants Applying for Extension of Stay (i) Entire period in which a timely filed, nonfrivolous application for either extension of stay or change of status is pending as a prediod of stay authorized by the Attorney General (for purposes of 212(a) (9) iv) 212(a)(6)(B) – Failure to Attend Removal Hearing (1) Any noncitizen who fails to attend hor or her removal hearing without reasonable cause rendered inadmissible for five years b) Political and National Security Grounds i) Exclusion in General (1) 212(a)(3)(A) – Excludes individuals believed to be seeking entry to engage in specified unlawful activities, including espionage, sabotage, and the forceful overthrow of the Government (a) (3)(A)(ii) – Extended to the case in which the consular officer of the the Attorney General has reason to believe that the person seeks to enter the United States to engage in any other unlawful activity ii) Terrorist Activities (1) Any alien who has or the Attorney General has reasonable grounds to believe has terrorist ties iii) Foreign Policy (1) An alien whose entry or proposed activities in the US the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is inadmissible (a) Exceptions (i) An alien who is an official of a foreign government or a candidate for election to a foreign government (ii) An alien shall not be excludable because of the alein’s past, current, or expected beliefs, statements, or associations if such would be lawful within the US unless the Secretary of State personally determines that the alien’s admission would compromise a compelling US foreign policy interest iv) Immigrant Membership in Totalitarian Party (1) Any immigrant who is or has been a member of an affiliated with the Communist or any other totalitarizn party, domestic or foreign, is inadmssible v) Participant in Nazi persecutions or genocide (1) Any alien who associated with the Nazi government in Germany vi) Association with terrorist organizations (1) Any alien who the Secretary of State, after consultation with the Attorney General (or vice versa) determines has been associated with a terrorist organization and intends while in the US to engage solely, principally, or incidentally in activities that could endanger the welfare, safety, or security fo the US is inadmissible c) Criminal Grounds i) Criminal and related Grounds (1) 212(a)(2) – Any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of (a) A crime involving moral turpitude (b) A violation of any law relating to a controlled substance (2) Exception (a) Any alien who committed only one crime if (i) The crime was committed when the alien was under 18 years old AND (ii) The crime was committed more than 5 years before the date of application for a visa or other documentation OR (b) Any alien who committed only one crime if (i) The maximum penalty possible for the crime of which the alien was convicted did not exceed imprisonmnet for one year AND (ii) The alien was not sentenced to a term of imprisonment in excess of 6 motnhs (3) Multiple Criminal Convictions (a) Any alien convicted of 2 or more offenses for which the aggregate sentences to confement were 5 years or more is inadmissible d) Economic Grounds i) Three Economic Grounds For exclusion (1) 212(a)(5)(A) – Labor Certification (2) 212(a)(10)(E) – Those who formally renoucned their US citizenship for the purpose of avoiding taxation by the United States (3) 212(a)(4) – Noncitizens likely at any time to become public charges (a) Meaning of Public Charge (i) Primarily dependent on the government for subsistence as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization ofor long-term care at government expense 1. Mere receipt of public funds does not make a person a public charge a. Non Public Charges – Food Stamps, Medicaid, CHIP, EMS, Head Start, Job training programs, soup kitchens… (ii) Main question is whether the assistance program is intended to be a primary source of cash for income maintenance (b) Evidence that a person will likely become a public charge (i) Upon entry, a person should have a permanent job lined up, or in the alternative sufficient funds to provide support until a job is found (ii) Factors 1. Age, health, family status, financial status, education, skills, and affidavits of support (iii) Affidavits of Support 1. Sponsor states a willingness to come to the applicant’s aid in the event later aid is needed a. Welfare reform of 1996 made this a binding contract on the sponsor i. Must be legally enforceable against the sponsor by the sponsored immigrant, the Federal Government, any state, or by any other entity that provides any means tested public benefit ii. The promise is binding for 40 qualifying quarter years (ten years) after the immigrant last receives benefits or until naturalization if sooner b. Sponsor must be a US national or an LPR c. Sponsr must be over age 18 d. Sponsor must be domiciled in the United States e. Sponsor must be the person who is petitioning for the immigrant’s admission 2. If the petitioner lacks the required resources, he or she may join with another person as a co-sponsor a. A co-sponsor will ot suffice unless the petitioner is also eligible to be a sponsor 3. Sponsor’s income must be at least 125% of the poverty level 4. For immediate relative and family-sponsored petitions, affidavits of support are mandatory e) Public Health and Morals i) Health (1) 212(a)(1) – Neither a physical nor a mental disorder is generally a basis for exclusion unless the associated behavior poses one of several specified threats (a) Even if there is a threat, deiscretionary waivers are possilbe (b) Drug addicts and drug abusers are specifically inadmissible (2) 212(a)(1)(A)(ii) – Expressly excludes noncitizens who are determined by the Department of Health and Human Services to have a communicable disease of publich health significance, which shall include infection with HIV (a) The Attorney General has discretion to waive that exclusion ground for spouses and certain other close family members of US citizens or LPRs ii) Morals (1) List has been significantly trimmed over the years (a) Prostitution and other commercialized vices remain on the list V) Admission Procedure a) Modern Procedure: Preliminary Comments i) Four Hurdles to the Admission Procedure (1) Labor Certification (a) Applies only to immigrants applying under the 2nd and 3rd employment-based preferences (2) Visa Petition (a) Filed with the INS to establish the the noncitizen beneficiary meets the definition of the particular status (3) Obtaining Visa (a) Visa Application (i) Filed with the US consulate abroad after the visa petition is approved (ii) Beneficiary will need to presuade the consulate that he fits the grounds for definition of the applicable status, but also that none of the grounds for inadmissibility applies 1. Process involves paperwork and sometimes a personal interview (4) Actual Admission (a) Person appears at authorized entry point and formally applies for admission (i) Visa is essential for admission, but it does not guarantee admission 1. INS inspector may reexamine the noncitizen to assure that none of the statutory inadmissibility grounds applies b) Visa Petitions i) Procedure – Petition is a Standard Form (1) Parties (a) Party who files the form is the petitioner (b) The noncitizen on whose behalf the petition is filed is called the beneficiary (2) Forms (a) I-I30 – Petition filed on behalf of immediate relatives (i) In immediate relatives and family preference cases, the US citizen or LPR is the one who must file the visa petition 1. If the family member declines to do so, the would-be immigrant is generally to apply for LPR status 2. Exceptions have been made for battered immigrants to apply on their own behalf (b) I-I40 – Petition filed on behalf of employment-based immigrants (i) Certain employment-based first preference immigrants may either petition for themselves or have others, such as their employers, petition for them – 204(a)(1)(E) (ii) For most employemt-based preferences, the petitioner must be the employer – 204(a)(1)(F,G,H) (3) The INS comprises three geographich “Regions” (i) Eastern, Central, and Western (ii) Each region encompasses several local districts (iii) Each of the three regions operates a regional office that adjudicates a wide variety of applications and petitions for which personal interviews are assumed to be generally unnecessary 1. Burlington, Vermont; Dallas, Texas; Laguna Niguel, California (iv)Most visa petitions filed within the US are mailed directly to these regional offices 1. Certain petitioners who live outside the US may file in INS offices overseas 2. Designated US consulates may adjudicate certain visa petitions that are “clearly approvable” (4) Priority Date (i) Family Based – Date visa petition was filed (ii) Employment Based – Date the request for labor certification was accepted for processing (5) Interview (i) INS has the discretion ot require both the petitioner and the beneficiary to appear in person for an interview 1. In practice, this is seldom invoked because most of the decisions can be made without a personal interview ii) Decision (1) No Right to Hearing Provided in the INA Prior to Adverse Decision (i) However, before an adverse decision can be made on the basis of derogatory non-classified information of which the petitioner or beneficiary is unaware, he or she must be given that information and an opportunity to respond 1. Process must comport with due process (2) Denial of Visa (i) When the INS denies a visa petition it must state its reasons for doing so 1. Denials are subject ot both administrative and judicial review a. INS denials of family-based petitions are appealable to the BIA b. Denials of employment-based petitions are normally appealable to the INS Associate Commissioner for Examinations, who has delegated apellate function to the Administrative Appeals Unit (ii) The Attorney General may revoke a previous approval of a visa petition for what he deems to be good and sufficient cause iii) Approval of Visa Petition (1) Procedure (i) When the INS approves the visa petition, it forwards the approval to the State Department’s National Visa Center (NVC) in Portsmouth, New Hampshire (ii) NVC checks the petition for accuracy and completeness, creates a file, and mails Packet III to the visa applicant (iii) NVC sends the file to the appropriate US consulate overseas (iv)This begins the application process 1. The approval of a visa petition may not be revoked once the beneficiary has begun his or her journey to the US (2) Delay in Processing (i) Premium Processing – For $1,000 employment-based petitions will be processed within 15 days 1. Money has been pledged to use the additional revenues to hire additional staff to reduce the processing times for other petitioners as well (3) Preparation of Forms (a) The preparation of forms to effect a change in immigration status requires legal training and familarity with immigration law, and failing to properly prepare the forms courl result in great harm, including deportation (b) Practice (i) Preparation or filing of any brief or other document, paper, application, or petition on behalf of another person (c) Preparation (i) The study of the facts of a case and the applicable laws, coupled with the giving of advice and auxiliary activites including the incidental preparation of papers 1. Does not include the lawful functions of a notary public or service consisting solely of assistance in the completion of blank spaces on printed Service forms by one whose remuneration, if any, is nominal and who does not hold himself out as qualified in legal matters or in immigration and naturalization procedures (d) Although the act of recording a client’s responses to the question on I- 130 does not require legal skill or knowledge, the act of determining whether the I-130 should be filed at all does require special legal skills c) Visa Applications i) Comparison Between Nonimmigrant and Immigrant Visas (1) Similarities (a) Both are designed to screen the applicants to determine whether they are elgibile for the status they seek (b) Both visa issuance provides a document that permits the applicant to obtain transportation to the US and which satisfies the requirement for admission (2) Difference (a) More detailed attention ordinarily given to immigrant visa applications (b) Numerical differences (i) The need to sevice the large and widespread demand for Nonimmigrants is why there are more consular posts with NIV jurisdiction ii) Nonimmigrant (1) Application is usually made at the consular post abroad where the alien resides (2) Dcuments (a) (B-2) Tourist visas are issued almost immediately without the need for supporting documents (b) Other may require substantive documentation (3) Immigrant (a) Applcations ordinarily made at the consular post abroad that services the applicant’s residence (b) Applicant must phyiscally attend the scheduled interview with the consul to secure the visa (i) Residence reule, found to be the last place of residence, may bring hardship 1. hardship may deem necessary for waiver of presence iii) Consular Officers (1) Given great deal of subjective discretion (2) There is no administrative appeal, and n ojudicial review, or a consular decision denying an application for either an immigrant, or a nonimmigrant visa (a) Limited Safeguards: (i) State Department regulations require the principal consular officer at the particular post to review all refusals (ii) Visa Office (VO) in Washington D.D. may issue an advisory opinion 1. Binds the consulate on an interpretation of law 2. On a questio of fact or an advisory opinion of the law to the facts, the opinion is purely adivsory 3. Attorneys are officially denied access to either the wording of the advisory request submitted by consular officers or the written advisory ipinion itself (3) Pros and Cons of Consular Absolutism (a) Pro (i) Administrative Efficiency and Convenience (ii) Consular officers are well-trained and specifically picked as the best in their field (iii) Limited record is avaiable for judiciary to review (iv)Consular officers would write out their opinions in a manner that would deny review (b) Con (i) Reduces biases – Prospect of review would encourage accountability (ii) Goes with principals of fairness and justice (iii) To err is human, and any exercise of discretion is potentially fallible d) Actual Admission i) Upon arriving at US ports of entry, travelers encounter INS immigration inspectors (1) Determine whether the person is a US citizen, and whether the person is inadmissible (2) Visas (a) If the noncitizen passenger has a visa he has laready undergone rigorous screening at his Consulate (b) If the noncitizen lacks a vis he will generally be inadmissible on that ground alone (c) Primary Inspection (i) Quick process that entails scanning the passport and visa and possibly checking a lookout list on the computer (d) If there are doubts, the person is referred to a secondary inspection, where they receive more intensive scrutiny ii) Hearings Before Immigration Judges (1) Removal Hearing (a) Only a small proportion of those arriving passengers whom the immigration officers refuse to admist actually exercise their statutory right to a hearing because: (i) Expedited Removal (ii) Many are unwilling to accept detention (iii) Some might feel intimidated (iv)Some want to avoid a formal removal order, which would bar admission for up to five years 1. 235(a)(4) – Attorney General has the discretion to permit noncitizens to withdraw their applications for admission and depart immediately (b) Notice to Appear (i) Formally begins when the removal proceeding 1. Specifies the time and place of the hearing, the alleged facts and charged exlsuion grounds, and the individual’s proceducral rights – 239(a) 2. Hearing may not start until ten days after service to afford the person some opportunity to secure counsel a. Noncitizen may request an earlier date – 239(b)(1) (c) Noncitizen v. INS (i) 291 – Noncitizen bears the burden of proving admissibility 1. Must prove that he is clearly and beyond doubt entitled to be admitted and is not inadmissible under section 212 iii) Appeals from Immigration Judge Decisions (1) The statute authorizes both the noncitizen and the INS to appeal to the Attorney General from an adverse decisionof the immigration judge in removal proceedings (a) Authority dleegated to the BIA (i) 242(a)(1) – Generally, judicial review of a removal order, whether for deportation or inadmissibility, is by petition for review filed directly in the court of appeals iv) Expedited Removal (summary exclusion) – 235(b)(1) (1) Applies whenever the immigration officer at the border determines that an arriving noncitizen is inadmissible under : (a) 212(a)(6)(C) – Fraud (b) 212(a)(7) – Lack of proper documents (2) Exception (a) Noncitizens who indicate a fear of persecution or an intentio to apply for asulum receive screeinging interviews to determine whether their cases are strong enough to warrangt providing the regular asulum procedures (3) Procedure (a) Once the inspector concludes that an arriving noncitizen is inadmissible for fraud or lack of documents, the noncitizen or ordered removed without further hearing (i) Administrative appeal only applies to returning LPR’s, admitted regugees, and people who have already received asylum (ii) No judicial review of whether the alien is actually inadmissible or entitled to any relief from removal (b) Only permissible judicial review ois on the issues of: (i) Whether the person is a citizen (ii) Whether the person was in fact ordered removed (iii) Whether the person comes within one of the above exceptions (c) Statute purports to bar constitutional challengesto the statute (4) Applcation (a) Applies to noncitizens upon their arrival (b) 235(b)(1)(A)(iii) - Attorney General has the unreviewable discretion to extend it to noncitizens who: (i) Are present in the US without having been admitted AND (ii) Who are unable to prove continuouse physical presence in the US for the immediately preceding two years v) Othe Special Removal Procedures (1) National Security and Foreign Policy Cases (a) 235(c) – Speical procedureds for tension between fairness and not disclosing secure confidential information (i) If an immigration officer or an immigration judge suspects that an arriving alien may be inadmissible under 212(a)(3)(A)(i) or (ii), the officer or judge shall order the alien removed (ii) Attorney General automatically reviews these removal orders and concludes, based on confidential information, whether further inquiry is to be conducted (2) Terrorism Cases (a) May be removed through another expedited process (i) Applies to both inadmissible AND deportable noncitizens e) Adjustment of Status - 245 i) Adjustment applicant must be admissible as an immigrant, and the particular immigrant category must be current – 245(a) (1) Immigration visa must be “immediately available” at the tome the application is filed (a) If the applicant is subject to a numerical quota, a visa will not be considered “immediately available” unless the latest Visa Office Bulletin shows that the preference categoyr is current or that the person’s priority date has been reached (b) INS must approve a visa petition (i) INS generally permits the simulatenous submission of the visa petitionand the adjusment of status application, provided approval of the visa petition would make the visa immediately avaialable ii) Extra Requirements – 245(i) (1) Pre 1990 – Applicant had to be inspected and admitted or paroled (2) 1994 – Restrictions temporarily softended to encourage adjustment of status (a) Exempted certain nonctizens from the disqualifications created by their entires without inspection (i) Applicant had to pay $1,000 to qualify for adjustment of status (3) 1998 – Temporary, limited restorations of 245(i) (a) Requirements come and go and face an uncertain future (b) Still can be used for someone that file before 1998 (4) Consequence of 245(i) (a) Under 212(a)(9)(b)(i), you Become inadmissible for 3 years/10 years for being present after visa application runs out (i) Important point is that both parts of this ground become applicable only when the person actually leaves the country. (ii) If you can apply for adjustment of status, you don’t have to leave the country (iii) Millions of people benefited, much more at astake than leaving the country and re-attaining a visa iii) Employment Based Immigrants – 245(k) (1) Otherwise eligible applicants for the 1st, 2nd, 3rd, and some 4th preeference employment-based slots could adjust their status, even if currently or formerly out of status, provided they had entered lawfully and were not out of status more than 180 days iv) No administrative appeal from an INS decision denying an application for adjustment of statuse (1) Must wait for the INS to initiate removal proceedings and then renew the adjustment application before the immigration judge VI) Deportation Procedure: Removal Process a) Apprehension i) INA expressly charges the Attorney General with the administration and enforcement of the immigration laws (1) AG given both the power and the duty to control and guard the boundaries oand border os the United States against the illegal entry of aliens ii) 287(a) – Specific powers given to INS employees without a search or arrest warrant (1) The power to interrogate any person believed to be a noncitizen as to their rights to be in the US (2) The power to arrest any noncitizen in the country if there is reason to believe that the alien is in the US in violation of the immigration laws and is liekly to escape beofre an arrest warrant can be obtained (3) Within a reasonable distance from any external boundary , the power to board any vessel within US territorial waters and any train, aircraft, or other vehicle, for the purpose of searching ofr noncitizens AND (4) Within 25 miles of any external boundary, the power to enter private lands other than dwellings for the purpose of patrolling the border iii) Immigration Officers Include: (1) All immigration inspectors at the border (2) All border patrol agenst (3) All investigators (4) The Attorney General may also deputize properly trained state employees to perform investigation, apprehension, and detention functions iv) In certainsituations the immigration officer must have a reasonable suspicion that the subject is not a citizen or that he or she is within the US in violation of the law (1) Other actions require probable cause to believe the person is a oncitizen who is here unlawfully v) Proceedings begin when the INS served on the subject a document called an “order to show cause” b) Before the Hearing i) Within 48 hours of the arrest, the INS must decide whether there is prima facie evidence that the arrested alien is in the US in violation of law ii) If there is prima facie evidence, the INS issues a Notice to Appear, serves it on the alleged noncitizen, and files it with the immigration judge iii) Notice to Appear (1) Nature of the proceedings (2) Deportability Grounds (3) Factuall allegations necessary to establish those charges (4) The time snad place of the person’s required appearance before the immigration judge (5) Instructions on the person to keep the government apprised of his address and the conseqences of failing to do so (6) Gives the person a chance to secure counsel before the removal hearing may be scheduled iv) Decision to Detain (1) Removal proceedings typically take at least several months, and sometimes several years to complete (2) Mandatory for Certain Categories of Noncitizens (a) Almost anyone who is inadmissible or deportable on creim-related grounds (b) Those who are inadmissible or deportable on terrorism grounds (c) Most arriving passengers (d) Individuals awaiting the execution of final removal orders (3) If decision not to detain, the INS has the discretion whether to detain the person without bond, release on cash bond of at least $1,500, or release on conditional parole (4) If detaines, person has a right to a prompt and informal redetermination hearing before an immigration judge (5) Miranda inappliable to deportation (a) When the INS decides to institute removal proceedings, it must advise: (i) Any statements the person makes can be used against him or her (ii) Must advise of the right to counsel at the person’s own expense (iii) Must provide a list of any free legal services programs avaialge in the locale (b) Each of tehse rights comes into play only at some point after the INS has made the decision to institute formal proceedings c) The Removal Hearing i) Judge (1) Immigration Judge presides over the hearing which is held at the immigration court (a) IJ’s are not Article III judges (2) If the individual is not already represented, the IJ advises of the right to counes at no expense to the government and makes sure the person has received a list of any free legal services programs availabe in the district where the hearing is being held ii) Burden (1) INS has the burden of proving by clear and convincing evidence that the subject of the hearing is a noncitizen (2) Burden on the INS to prove by clear and convincing evidence that the subject of the hearing is a noncitizen (3) Burden shift to the noncitizen to prove by clear and convincing evidence that he or she is lawfully present pursuant to a prior admission (4) Burden shift to the INS to prove the alleged deportability grounds by clear and convincing evidence (a) One may be ordered removed only on the grounds formally charged, but at any time during the proceeding the INS may lodge additional charges (i) Noncitiznen may receive a reasonable continuance to prepare to meet those charges (5) Burden shift to noncitizen to establish eligibility and deservedness for any affirmative relief for which he or she applies at the hearing iii) Hearing (1) If contested, the INS presents its case first (a) Case may consits of documetns, testimony, or both (2) FRE does not apply (a) Heasay evidence is perfectly admissible as long as it is relevant d) Adminsitrative Review i) Either the noncitizen or the INS may appeal the decision of the IJ to the BIA ii) Appellant has 30 days to file summarizing the grounds to the appeal (1) Filing automatically stays notice of execution of the IJ’s decision iii) Incentive for the noncitizen to appeal solely to delay removal (1) BIA may summarily dismiss an appeal if it lacks an arguable basis in law or fact or for certain other reasons e) Judicial Review i) Removal order must be administratively final – 242(a)(1) ii) Petitioner must exhaust all administrative remedies (1) Appeal must be within 30 days of the final removal order – 242(b)(1) (2) No longer stay removal unless the court affirmativel declares otherwise – 242(b)(3)(B) (3) Court may reivew not only the finding of deportability, but also the denials of motions to reopen – 242(b)(6) (4) The reviewing court decides the case on the basis of the record, not by taking new evidence of its own – 242(b)(4)(A) f) The Execution of the Removal Order i) Attorney General directed to remove noncitizens within 90 days of the times their orders become administratively final (1) Exception – Stay in connection with Motion to Reopen or Motion to Reconsider VII) Deportability Grounds a) General Considerations i) The Theory of Deportation (1) Harsh Sanction (a) Can entail great economic hardship, restricted personal freedom, and fundamental and unwelcome lifestyle changes (2) Consequences and Purposes of Deportation (a) Form of incapactiation (b) Roots of deportation to the historical prcatices of banishment (c) Check on the admission process (i) Device for removing those noncitizens who should not have entered in the first place or were admitted but hsoul dnot have been (d) Remedy for breach of a valid contract (e) Remove from our midst noncitizens whose continued presence Congress finds injurios to the public welfare ii) Current Deportability Grounds – 237(a) (1) Inadmissible at time of entry or of adjustment of status or violates status (a) Inadmissible (b) Present in violation of law (c) Violated nonimmigrant staus or condition of admission (d) Termination of conditional permanent residence (e) Marriage Fraud (f) Smuggling (2) Criminal Offenses (a) General Crimes (i) Crimes of moral turpitude (ii) Multiple criminal convictions (iii) Aggravated felony (b) Controlled Substances (c) Firearm Offenses (d) Miscellaneous Crimes (3) Failure to Register of Falsification of Documents (a) Change of address (b) Document Fraud (c) Falsely claiming citizenship (4) Secuirty and Related Grounds (a) In General (b) Terrorists (c) Foreign Policy (d) Nazis (5) Public Charge (6) Unlawful voters b) The Meaning and Significance of “Entry” and “Admission” i) Entry – Pre-IIRIRA (1) No deportation proceedings could be brought until the noncitizen had made an entry (2) Either the manner or the timing of the person’s entry was an essential element of most of the specific deporation grounds enumerated in the pre- IIRIRA version of the INA (3) Entry into the US was an essential element of certain criminal offenses ii) Admission - IIRIRA (1) Determines whether a noncitizen will be subject to the inadmissibility grounds or the deportability groudns (a) Amended many of the specific inadmissiblity and deportability grounds by replacing “entry” with “admission” iii) Entry still a crucial concept in immigration law (1) Some of the inadmissibility grounds still use enter/entry (a) Some of the deportability grounds still use the term (2) Congress’s decision to change only slected grounds of inadmissiblity and deportability, and to leave other grounds intact, was clearly deliberate (3) Criminal provisions continue to make “entry” an essential element of various offenses (4) Entry can made a difference when it comes to procedure (a) Standards of proof for the two classes vary slightly – 240(c)(2) (b) Expedited removal procedure is inapplicable to noncitizens who have been present in the US at least two years (i) Arguably, entry determines presence (c) If a person who has been removed subseqently reenters the US, the prior removal orderis reinstated and the perosn can be ejected without a new removal hearing (d) Fleuti – An innocent, casual, and brief exustion by a resident alien outside this country’s borders may not have been intended as a departure disruptive of his resident alien status and therefore may not subject him to the consequences of an “entry” in the country on his return (i) IIRIRA changing “entry” to “admission” effect on Fleuti -101(a) (13) 1. Admission – The lawful entry of the alien into the US after inspection and authorization by an immigration officer 2. An LPR shall not be regarded as seeking an admission for purposes of the immigration laws unless the alien: a. Has abandoned or relinquished that status b. Has been absent from the US for a continuous period in excess of 180 days c. Has engaged in illegal activity after having departed the US d. Has departed from the US while under legal process seeking removal of the alien from the US, including removal proceedings under this Act and extradition proceedings e. Has committed an offense of 212(a)(2) f. Is attempting to enter at a time or place other than as desingted by immigration officers or has not been admitted to the US after inspection and authorization by an immigration officer (ii) Question of whether “unless” means if one of the listed event has occurred, the statute implies that an LPR who has made an entry is regarded as seeking an admission 1. To fall within a category, does it mean you have not been admitted, or does not say one way or another (iii) Some courts say that use of the word entry in the definition of admission means that Fleuti is still applicable c) Deportability Grounds Concerned With Immigration Control i) Entry Without Inspection (1) Repealed as a deportability ground and made a ground for inadmissibility (a) Criminal offense (b) After a prior removal order, the offense can be a felony ii) Entry While Inadmissible and Related Issues (1) Entry While Inadmissible (a) 212(a)(6)(A)(i) – An alien present in the US without being admitted or paroled, or who arrives in the US at any time or place other than as designated by the Attorney General, is inadmissible (b) 237(a)(1)(A) – Any alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable (i) Reflects view of deportation as an instrument for correcting errors or lapses in the admission process (2) Fraud (a) 212(a)(6)(c)(i) – Any alien who, by fraud or willfully misrepresenting a material fact, seeks to prcure a visa, other documentation, or admission into the US or other benefit provided is inadmissible (i) Documents - 212(a)(7)(A) : Fraud rendered the documents invalid 1. An alien who is not in possession of a valid unexpired immigrant visa, reentry permit, … is inadmissible (ii) Claims of false US citizenship 1. 237(a)(3)(D) - Any alien who falsely represents or has falsely represented himself to be a citizen of the US for any purpose is deportable 2. 212(a)(6)(C)(ii) - A noncitizen who gains entry by falsely claiming to be a US citizen has not been inspected and therefore is deportable for having entered without inspection iii) Post-Entry Conduct Related to Immigration Control (1) Present in Violation of the Law (a) 237(a)(1)(B) – Any alien who is present in the US in violation of this Act or any other law of the US is deportable (i) Sometimes invoked for a violation of the conditions of his or her stay (ii) Simoltaneously trigger 237(a)(1)(C)(i) – Failure to maintain, or to comply with the conditions of one’s nonimmigrant status (2) Violation of Conditional Status (a) Applies to both marriages and immigrant investors (i) 237(a)(1)(D) – Any alien with permanent resident status on a conditional basis under 216 who has had such status terminated under 216 is deportable (3) Inadmissibility at the time of adjustment of status (a) 212(a)(1)(A) – Same grounds as inadmissiblity at the time of entry (4) Administrative Requirements (a) 261-266 – Registration, address reporting for various classes of noncitizens present in the US (i) Wilful violations of these requirements are criminal offenses (266) and can be grounds for deportability (266(b) (5) Smugglers (a) 237(a)(1)(E) – Any aien who knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the US in violation of law is deportable d) Crime-Related Deportability Grounds i) What is a Convition? (a) 101(a)(48)(A) – The term conviction means, with respect to an alien, a formal judgment of guilt of the alien enterd by a court (1) Erasing A Conviction (a) Withdrawing Guilty Pleas (i) Parrino – Withdraw does not constitute manifest injustice simply because the noncitizen was unaware of the collateral consequences of the guilty plea (ii) Pozo – Determination of whether the failure to investigate the consequences of a guilty plea constitutes ineffective assistance of counsel 1. Turns to a significant degree upon whether the attorney had sufficient information to form a reasonable belieft that the client was in fact an alien (2) Expungements (a) BIA interpreted the statutory language of conviction to mean that expungement under a state rehabilitative statute never erases the conviction for immigration purposes (i) Courts and the BIA have retreated from this significantly (3) Executive Pardons (a) 237(a)(2)(A)(v) – A pardon eliminates deportability for moral turpitude, aggravated felonies, and high-speed flight ii) Crimes Involving Moral Turpitude (1) 237(a)(2)(A)(i) – (a) Any alien who is convicted of a crime (i) If an alien has an appeal as of right, the conviction becomes final when the appeal is confirmed (ii) If the appeal is discretionary, the pendency of th review does not affect the finality of the conviction (b) Involving moral turpitude (i) Term comes from old cases that use old language, “vile and depraved” – every crime that involves dishonesty, even petty theft. 1. The only way to be sure that a crime involves moral turpitude is to consult the list in a treatise. (ii) Elements of the crime in the abstract must involve moral turpitude (c) Committed within five years after the date of admission AND (d) Is convicted of a crime for which a sentence of one year or longer may be imposed (i) Potential punishment is what counts for this purpose iii) Two Crimes Involving Moral Turpitude (1) 237(a)(2)(A)(ii) (a) Any alien who at any time after admission (b) Is convicted oof two or more crimes involving moral turpitude (c) Not arising out of a single schme of criminal misconduct (i) Courts are split as to what constitutes a scheme 1. Some courts hold that the crimes must take place at one time, and hter must be no substantial interruption that would allow the participaln to disassociate himself from his enterprise and reflect on what he has done 2. Some courts hold that the statute refers to a single schmere rather than to a single act a. Scheme is sufficient if it s planned at the same time and executed in accordance with that plan (d) Regardless of whether conrifned therefor and regardless of whether the convictions were in a single trial (e) Is deportable (2) Judicial Recommendations Against Deportation (JRAD) (a) Pre-1990 (i) Sentencing judge, at the time of sentencing or within thrity days thereafter, could make a recommendation that the perosn not be deported 1. Prevented the INS from deporting the person on the basis of the particular crime (b) Immigration Act of 1990 (i) Repealed JRAD provision 1. Retroactive in that it prohibited courts from issuing future JRADs even in connection with pre-1990 convictions (3) Drug Offenses (a) 237(a)(2)(B) – Any alien who at any time after admission has been convicted of a violation of any law or regulation relating to a controlled substance, other than a single offense involving marijuana, is deportable (b) 101(a)(43)(B) – Illicit trafficking in a controlled substance, including a drug trafficking crime is an aggravated felony (4) Aggravated Felonies (a) 237(a)(2)(A)(iii) – Any alien who is convicted of an aggravated felony at any time after admission is deprtable (b) Consequences of Committing Aggravated Felony (i) Aggravated felonies don’t have to be committed within five years after admission in order to give rise to deportability (ii) Makes a perosn deportable without regard to the potential or actual sentence (iii) Calling a crime an aggravated felony eliminates most discretionary relief possibilities (iv)Deletes certain procedural safeguards (v) Triggers mandatory detention from the time removal proceedings begin until the time the person is removed (vi)Prevents the person after removal from ever returning to the United States without special permission from the Attorney General (vii) Subjects the person to a 20 year prison term if found in the US unlawfully without special permission (c) Expanded over the years to the point that it need not be aggravated and need not be a felony (d) 101(a)(43): (i) Mruder, rape, or sexual abuse of a minor (ii) Illicit trafficking in a controlled substance (iii) “ “ Firearms (iv)Money laundering and related crimes if the fund are more than $10,000 (v) A crime of violence for which the term of imprisonment is at least one year 1. An offense that has an element the use, attempted use, or threatened use of physical force against the person or property of another OR 2. Any other offense that is a felony and that, by its nature, involves a substantial risk that physical force againts the person or property of another may be used in the course of committing the offense (vi)A theft offense or burglary offense which the term of imprisonment is at least one year (vii) Demand for ransom (viii) Child porn (ix)RICO (x) Managing prostitution (xi)Transmitting national defense information (xii) Crime involving fraud or deciet in which te loss to the victim exceeds $10,000 (xiii) Alien smuggling (xiv) Altering a passport (xv) Failure to appear by a D for service of sentence if the offense is punishble by imprisonment for a term of 5 years or more (xvi) Bribery, counterfeiting, forgery (xvii) Perjury, obstruction of justice (xviii) Failure to appear before a court pursuant to a court order answer to or dospose of a charge of a felony for which a sentence of 2 years imprisonment or more may be imposed (xix) An attempt or conspiracy to commit any of these offenses (xx) Incorporating Paragraph: 1. The term applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years. 2. Notwithstanding any other provision of law, the term applies regardless of whether the conviction was entered before, on, or after the date of enactment of this paragraph (e) 101(48)(B) (i) Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarcertaion or confinement ordered by a court of law regardless of any suspension of the imposition or sentence in whole or in part (5) Miscellaneous Crminal Grounds (a) Random crime related grounds (i) None of these requires that a particular sentence be imposed or that the crime be committed with a certain number of years after admission (b) Deportability grounds that do not require a criminal conviction at al (i) Smuggling (ii) Marriage Fraud (iii) Breach of certain registration and reporting requirements (iv)Illegal voting (v) War crimes (vi)Affiliation with subversive groups (vii) National Security (c) Failure to maintain status or to comply with the conditions of that status (i) 237(a)(1)(C)(i) – Any alien who was admitted as a nonimmigrant and who has faile dto maintain the nonimmigrant status in which the alien was admitted or th which it was changed, or to comply with the conditions of any such status is deportable b) Political and National Security Grounds II) Relief From Deportability a) Recurring Limitations i) Individuals who are properly notified of their removal hearings and fail to appear, or who receive voluntary departure and fail to leave on time, become ineligible to apply for any of several specified remedies for ten years ii) Aggravated felons are expressly disqualified from most of the major relief provisions, including cancellation of removal and registry (1) A conviction of an aggravated felony precludes a showing of good moral character, which itself is a required element of several releive provisions iii) Anyone who is deportable on terrorist grounds is barred from several forms of discretionary relief iv) Judical review of discretionary relief severely curtailed in IIRIRA b) Lasting Relief i) Cancellation of Removal – 240A (1) Cancellation of Removal: Part A (Certain Permanent Residents) (a) General Applicability and Scope (i) The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the US if the alien: 1. Has been an alien lawfully admitted for permanent residence for not less than [at least] 5 years a. LPR status terminates upon entry of a final administrative order of exclusionor deportation i. Administrative order is deemed final when the BIA affirms it or the time ofor filing a BIA appeal lapses 2. Has resided in the US continuously for 7 years after having been admitted in any status a. 240A(d)(1) – Any period of continuous residence or continuous physical presence in the US shall be deemed to end when the alien is served a notice to appear or when the alien has committed an offense [involving drugs or moral turpitude] b. 240A(d)(2) – An alien shall be considered to have failed to maintain continuous physcial presence in the US if the alien has departed from the US for any period in excess of 90 days or for any peridos in the aggregate exceeding 180 days 3. Has not been convicted of any aggravated felony a. National security offenders are ineligible pursuant to 240A(c)(4) (b) Discretion – Applicant must show he or she merits the favorable exercise of discretion (2) Cancellation of Removal: Part B (Certain nonpermanent residents) (i) The Attorney General may cancel removal of AND adjust to the status of LPR, an alien who is inadmissible or deportable if the alien: 1. “May” implies administrative discretion a. Not normal to deny these, but such does happen (ii) Has been physically present in the US for a continuous period of not less than 10 years immediately preceding the date of such application 1. Thus, the only real inadmissibility requirement that may be waived is presence without admission 2. Arriving noncitizens who return from temprorary visits abroad after ten years of undocumented presence in the US may apply 3. Service of a Notice to Appear ends physical presence a. Impossible to reach the ten-year theshold while waiting for a removal hearing or an appellate proceeding (iii) Has been a person of good moral character during such period 1. 101(f) – Defines persons who lack good moral character a. alcoholism, criminal activites, false testimony… i. List is not exhaustive (iv)Has not been convicted of an offense under [lots of statutes] AND (v) Exceptional and Extremely Unusual Hardship to the alien’s spouse, parent, or child, who is a citizen of the US or an LPR 1. Mere showing of economic detriment not enough 2. Two Settings for Exceptional and Extremely Unusual Hardship: a. Noncitizen applies to the IJ for cancellation i. Applicant has the burden of establishing the required hardship ii. Appealable to the BIA iii. Courts barred from reviewing any judgment regarding the granting of relief b. Inelligible for canecllation at the time of proceedings, but becomes eligible before the actual removal i. Proper procedure is a motion to reopen removal proceedings ii. BIA and IJ have discretion in motions to reopen iii. Appealable to the Judiciary (b) The Attorney General may cancel removal of AND adjust to LPR an alien who is inadmissible or deportable from the US if the alien demonstrates they have been victims of domestic violence (i) Mus show extreme cruelty (c) 240A(e)(1) – Attorney General may only grant this to an aggregate of 4,000 individuals in any fiscal year (d) 240A(c) – Disqualified Groups (i) Crew members, certain exchange visitors, political or certaint people inadmissible or deportable on political or national security grounds (e) NACARA (i) Statute granted special dispensations to nationals of certain named countries 1. Two Kinds of Relief: a. Amnesty i. Goes to certainnationals of Cuba and Nicaragua b. Right to apply for canellationof removal: i. Must have entered prior to 1990 ii. Must affirmatively apply iii. Must have been present for 7 years (presence does not end with Notice to Appear) iv. Exception and extremely unusual hardship to oneself or to one’s family members v. Still discretionary vi. Exempt from the 4000 person limit ii) Registry (1) 249 - A record of lawful admsission for permanent residence may, in the discretion of the Attorney General may be made in the case of any alien, if no such record is otherwise available and he shall saitsfy the Attorney General that he is not inadmissible insofar as it relates to [bunch of statutes], and he establishes that he (a) Entered the US prior to 1/1/1972 (b) Has had his residence in the US continuously since such entry (c) Is a person of good moral character AND (d) Is not ineligible to citizneship and is not deportable under [statutes[ (i) Disqualifies noncitizens who have invoked a special statutory exemption from military service but who, as the price for that exemption, had to give up eligibility for citizenship (2) Confers a discretionary authroity on the Attorney General to award LPR status to certain noncitiznens who entere the US before a specified date (a) Congress advances date from time to time iii) Legalization (1) General Legalization in 1986: 245A (a) Legalization in Two Phases: (i) May 5, 1987 – May 4, 1988, Eligible individuals could apply to the INS for “temporary resident alien” (TRA) status – 245A(a)(1)(a). 1. Principal requirement of continuous unlawful redience from January 1, 1982 until the filing of the application 2. If eligible, the application had to be granted – No discretionary hurdle (ii) A person who received TRA status had to apply for LPR status during the two-year period that began one and one-half years after he or she had attained TRA status 1. Elgibility a. Consitunous residence since attainment of TRA status b. Admissibility as an immigrant c. Demonstration of certain English language skills and knowledge of American history and government 2. If the person did not apply in time, TRA status terminated 3. LPR status must be granted after one meets the statutory requirements (b) No provision for the families of legalized immigrants (i) Upon attaining LPR status, the individual could file a family- sponsored second preference visa petition for his or her spouse or childrent (2) SAW: Legalization of Agricultural Workers - 210 (a) Two Phases (i) Temproray residnet status 1. Main requirement was that th eperson had performed seasonal agricultural services in te US for at least 90 man-days, during the period ending on May 1, 1986 (ii) Permenent resident status 1. Easier than converting under general legalization program (3) Cubans and Haitians (a) If you were a national of one of several nations, if you apply for cancellation part B, requirements will be more lenient than they usually are. (i) Now, if you are a national for Nicaragua or Cuba, you get an automatic legalizaiton, granted there are no big background or criminal problems. iv) Adjustment of Status (1) Dual Function in the Deportability Context (a) Affirmative Relief from Removal (b) Means of attaining LPR status without leaving the US v) Private Bills (1) Legislation that provides LPR status for a specific individual when existing general provisions would not (2) Must persuade a Member of Congress to introduce the bill (a) Routed to the Immigration subcommittees of the House and Senate Judiciary Committees (i) Both now have formal rules that lay out the procedures for, and discuss generally the substanitve criterai for granting, private immigration legislation c) Limited Relief i) Deferred Action (1) Extraordinary sympathetic factors would make removal unconscionble for some aliens (2) The INS could not remove all deportable individuals even if it wanted to (a) Require apprehension, investigation, processing, possibly detention, prosecution, adjudication, removal, record-keeping (3) INS policy has been to refrain from initiating removal proceedings in certain unusually compassionate cases (4) Case is put on the back burner (a) INS remains free to proceed against the person in the future if its workload or its priorities change, realistically, since the actual reason for holding back is the presence of exceptionally sympathetic factors, relief will typically be permanent unless those individual factors change (i) Regardless, the person can never attain LPR status ii) Voluntary Departure (1) Voluntary Departure – 240B (a) The person who receives and accepts a grant of voluntary departure leaves the US voluntarily, in exchange no formal removal order issues (b) 240B(a) (i) The Attorney General may permit an alien voluntarily to deprat the US at the alien’s own expense in lieu of being subject to proceedings under 240 or prior to the competion of such proceedings, if the alien is not deportable: 1. Because of an aggravated felony 2. For terrorism reasons 3. For being removed but then returning while still inadmissible (ii) The person may be required to post bond (a)(3) (iii) The voluntary departure period may be as long as 120 days (iv) May be granted either before proceedings begin or while they are going on (c) 240(b)(B) (i) The Attorney General may permit an alien voluntarily to depart the US at the alien’s own expense if, at the conclusion of a proceeding under 240, the immigration judge enters an order granting voluntary departure in lieu of removal and finds that 1. The alien has been physically present in the US for a period of at least one year immediately preceding the date the notice to appear was served 2. The alien is, and has been, a person of good moral character for at least the 5 years immediately preceding the alien’s application for voluntary departure 3. The alien is not deportable under [same as (a)] AND 4. The alien has established by clear and convincing evidence that the alien has the means to depart the US and intends to do so (ii) The bond is mandatory, not discretionary (iii) The maximum period allowed is 60 days (iv)May be granted only at the conclusion of removal proceedings (d) The DOJ regualtion s empower both the INS and the EOIR to grant voluntray departure, but in differing circumstances: (i) The INS has the authroity to grant only under (a), and only in lieu of proceedings 1. If proceedings have commenced (Notice to Appear), and the INS agrees to voluntary departure, the INS has two options: a. Join with the noncitizen in a motion to the IJ to dismiss the case at which point the INS may grant VD b. Join with the noncitizen in a motion to grant voluntary departure (e) Advantages for Noncitizen (i) Noncitizens who are formally ordered removed are ineligible to return to the US for at least ten years 1. Still subject to 212(a)(9) restrictions (ii) One who departs voluntraitly might evade apprehension (f) 240B(f) – Bars judicial review of an otder denyin voluntay departure under (b) iii) Objections to Destination – 241(b)(2) (1) Aleins Arriving at the United States (a) Countries to which alien may be removed (i) [With some exceptions], an alien who arrives at the US shall be removed to the country in which the alien boarded the vessel or aircraft on which ht eh alien arrived in the US 1. If the alien came from a country next to the US, and the alien is not a national of that country, the alien should be sent to the country from which the alien came before entering the next- door country 2. If the government of the countries above are unwilling to accept the alien into that country’s territory, removal shall be to any of the following countries, as directed by the Attorney General: a. The country of which the alien is a citizen, subject, or national b. The country in which the alien was born c. The country in which the alien has residence d. A country with a government that will accept the alien into the coutry’s territory if removal to each country above is impracticable, inadvisable, or impossible (b) Other Aliens (i) Selection of Country By Alien: 1. Any alien ordered removed (except above) may designate one country to which the alien wants to be removed AND 2. The Attorney General shall remove the alien to the country that the alien so designates (ii) Limitation on Designation 1. AN alien may designate a foreign territory contiguous to the US only if the alien is a native, citizen, subject, ro national of, or has resided in, that designated territory or island (c) Disregarding Designation (i) The Attorney General May Disregard a Designation if 1. The alien fails to designate a country promptly 2. The government of the country does not inform the Attorney General finally, within 30 days after the request, whether the government will accept the alien 3. The government of the country is not willing to accept the alien into the country 4. The Attorney General decides that removing the alien to the coutnry is prejudicial to the US (d) Alternative Removal Country (i) If the alien is not removed to a country above, the Attorney General shall remove the alien to: 1. The country from which the alien was admitted to the US 2. The country in which is licated the foreign port from which the alien left for the US 3. A country in which the alien resided before the alien entered the country from whicht e alien enterd the US 4. The country in which the alien was born 5. The country that had soveregnty over the alien’s birthplace when the alien was born 6. The country in which the alien’s birthplace is located when the alien is ordered removed 7. Any other country whose government will accept the alien into that country iv) Stays of Removal (1) After issuance of a final removal order, alien is generally given a cedrtain amount of time to take care of any personal matters before leaving the US (2) If there is not enough time, the INS in its discretion may give a grant of a temporary stay III) Deportation Procedure – The Courts a) A Sampling of Specific Procedural Ingredients i) Representation (1) In removal proceedings, the aliens shall have the privilege of being represented, at no expense to the Government, by counsel of the alien’s choosing who is authorized to practice in such proceedings (2) Authorization to Practice (a) A person entitled to representation may be represented by any of the following: (i) Attorneys in the US (ii) Law students and law graduates not yet admitted to the bar, provided that 1. Appearing at the request of the person entitled to representation 2. Student - Filed a statement that he or she is participating, under direct superivision with renumeration that does not come from the person represented 3. Graduate – Filed a statement that the person is appearing under the supervision of a licensed attorney or accredited representative 4. The law student’s or law graduate’s appearance is permitted by the official before whom he or she wishes to appear a. In 1997, changes were made: i. Now you can work under any qualified individual ii. You can work for any non-profit organization. iii. It is okay to receive renumeration, provided you don’t get money directly or indirectly from a client. (iii) Reputable Individuals 1. Any reputable individual of good moral character, provided that: a. He is appearing on an individual case basis, at the request of the person entitled to representation b. He is appearing without direct or indirect remuneration and files a written declaration to that effect c. He has a pre-existing relationship or connection with the person entitled to represenattion i. May be waived as a matter of administrative discretion d. His appearance is permitted by the official before whom he wished to appear (b) Organizations (i) Non-profit, religious, charitable, social service, or similar provided that: 1. It makes only nominal charges 2. It has adequate knoledge, information, and experience ii) Discipline fo Practicioners (a) There are extra ethical rules for lawyers that represent aliens in removal proceedings (i) Bribery, gross payments, false statements, … (ii) Engages in frivolous behavior when he or she knows that his or her actions lack an arguable basis in law or in fact, or are taken for an imporper purpose, such as to harass or to cuase unnecessay delay (iii) Engages in conduct that constitutes ineffective assistance of counsel (iv)Engages in the unauthorized practice of law iii) Paying for a Lawyer (1) Four reasons attorneys don’t want to represent agricultural clients: (a) Mobility of the client population (b) Language barreiers involved in serving a non-English speaking population (c) The high costs incurred in cases involving aliens (d) The lack of any potential for large fee awards (2) Legal Aid (a) The IJ must advise the repsondent of the availability of free legal services programs (3) Pro Bono Legal Services (a) Bar Associations often maintain referral services that provide the names of attorneys who have volunteered to take on deportation cases pro bono b) Evidence and Proof i) Illegally Obtained Statements (1) Legally coerced statements (a) 5th makes these suppressible in deportation proceedings (2) Self-Incrimination (a) Privilege applies in deportation cases as long as the statement would be incriminating (b) 235(a)(5) – An applicant for admission may be required to state under oath any information sought by an immigration officer regarding: (i) The purposes and intentions of the applicant in seeking admission to the US, including: 1. The applicant’s intended length of stay 2. Whether the applicant intends to remian permanently or become a US citizen 3. Whether the applicant is inadmissible a. 235(a)(1) 0 An applicant present in the US who hasa not been admitted is deemed to be an applicant for admission i. Combination suggests that an immigration officcer may require a noncitizen who is present wihtout having been admitted to state under oath any information regarding inadmissibility ii) Burden of Proof and Sufficiency of the Evidence (1) Scope of Judicial Review (a) No decision of deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence (i) Judicial review is limited to ascertaining whether the evidence relied upon by the trier of fact was based on reasonable, substantial, and probative evidence (ii) Where the decision rests upon evidence of such a nature that it cannot be said that reaonable person might not have reached the conlcusion which was reached, the case may not be reversed because the judgment of the appellate body differs from that of the adminsitrative body (2) Burden of Proof (a) No deportation decision may be entered unless it is found by clear, unequivocal [Congress repealed unequivocal], and convincing evidence that the facts alleged as grounds for deportation are true (i) Falls somewhere between preponderance of the evidence and beyond a reasonable doubt (ii) Applies only in the case of noncitizens who have previosly been admitted (b) Alien’s Burden of Proof (i) In every removal proceeding, the burden is on the noncitizen to prove either: 1. If the alien is an applicant for admission, that the alien is clearly and beyond doubt entiteld to be admitted and is not inadmissible under 212 OR 2. By clear and convincing evidence, that the alien is lawfully present in the US pursuant to a prior admission (c) Exception to the Government’s Burden of Proof: (i) A person against whom proceedings are brought has the burden of proving time, place, and manner of his or her entry into the US 1. If not sustained, the person is rebuttably presumed to be in the US in violation of law (d) INS must establish alienage before the burden of proving time, place and manner of entry will shift (i) Methods of Proving Alienage 1. Apprehending officer asks about citizenship 2. DOJ could grant a limited immunity that would prevent the use in subsequent criminal proceedings, of statemetns the person makes during the deportation hearing 3. Silence a. In a deportation case it is permissible to draw adverse inferences from the defendant’s decision to remain silent i. However, silence must be combined with other evidence to constitute clear, unequivocal and convincing evidence c) Judicial Review of Removal Orders i) Petitions for Review (1) 242(a)(1) – Judicial review of a final order of removal [other than expedited removal 235(b)(1)] is governed only by [the Hobbes Act] (a) Under the Hobbes Act, one files a petition for review in the court of appeals (2) Petition for review is filed in the circuit in which the removal hearing was held – 242(b)(2) (a) Time Limits (i) Appeal must be filed no later than 30 days 1. Motion to reopen or reconsider does not toll the clock (ii) Noncitizen must file a brief within 40 days after the administrative record is avaialable 1. Otherwise, the court must dismiss unless a manifest injustice would result – 242(b)(3)(C) (iii) There is no time limit on the filing of the government brief (3) Stay of Removal (a) There is no automatic stay of removal (i) Person must move the court to grant a stay – 242(b)(3)(B) (ii) Person’s departure does not bar judicial review, the case proceeds in the person’s absence (b) It is now routine practice for noncitizens to couple their petitions for review with motions for stays of removal pending decision (i) Courts must decide: 1. Invest time studying the merits before deciding the motion for a stay, and then, if the stay is granted, study the meirts again 2. Deny the stay and allow the INS to remvoe the petitioner from the coutnry before the court can decide whether the petition is meritorious 3. Grant the stay without examining the merits, permitting the person to buy time in the US by filing a nonmeritorious petition a. 9th Circuit grants automatic stay, and the INS has 7 days to oppose (4) Exhaust all Administrative Remedies (a) One must exhaust all administrative remedies that are available of right – 242(d)(1) (b) Res judicata and collateral estoppel are fully applicable – 242(d)(2) (5) Decided Solely on the Record (a) 242(b)(4)(A) – The court of appeals shsall decide the petition only on the adminsitrative record on which the order of removal is based (i) Charging document (ii) Transcript of the removal hearing (iii) Documentary evidence (iv)Decision of the IJ (v) Papers connected with the BIA proceeding (vi)Decision by the BIA (6) Scope of the Court’s Reivew (a) 242(b)(4)(B) – The administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conlcude to the contrary ii) Exceptions to the Availability of Review (1) Crome-Related Removal Orders (a) No court shall have jurisidiction to review any final order of removal against an alien who is removable by reason af having committed [almost any crime covered in the Code] - 242(a)(2)(C) (i) Because courts always have jurisdiction to determine their own jurisdiction, the courts have consistently inerpreted this as not barring review of whether the person is removable 1. i.e. Court may review whether a crime is an aggravated felony (ii) Provision does not strip courts of their habeas corpus jurisdiction to review removal orders for which petitions for review are based (2) Denials of Discretionary Release (a) 242(a)(2)(B) – No court shall have jurisdiction to review: (i) any judgment regarding granting of relief under: 1. Cancellation of removal 2. Voluntray Departure 3. Adjustment of status 4. Waivers of inadmissiblity (ii) 242(a)(2)(B) - any other decision or action of the Attorney General the authority for which is specified to be in the discretion of the Attorney General, other than the granting of relief under asylum procedures 1. Refers to a. Revocation of visa petition b. Refugee admissions c. Adjustment of status of refugees d. Detention pending removal of arriving nonctizens e. Change of nonimmigrant status f. Registry 2. Two Issues a. Only those authorized by this Title does not refer to: i. Laws relating to citizenship ii. Decisions contained in statutes or statutory provisions that did not amend the INA b. Even when a provision withi Title II makes relief contingent on the favorable exercise of administrative discretion, it is not clear that all judicial discretion is barred i. Depends on what exactly is within the discretion of the Attorney General – Whether the person is eligible at all for the decision (?) (3) Expedited Removal Orders (a) 242(a)(2)(A) – Courts lack the jurisdiction to review expedited removal orders (i) A court may use habeus corpus to review certain things, but not the merits of the case (b) 242(e)(3)(A) – D.C.. District Court may review: (i) Whether 235(a) is constitutional OR (ii) Whether the Attorney General’s regulations or other written poliyc statements comply with the statute and other laws (4) Voluntary Departure Regulations (a) 240B(e) – The Attorney General may by regulation limit elgibiltiy for voluntary departure under this section for any class or classes of aliens. No court may review any regulation issued under this subsection (5) Prosecutorial Discretion (a) 242(g) – No court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act (b) Narrowly construed to bar only the three actions mentioned (6) Detention Decisions (a) 236(a) – Attorney General has discretion to detain noncitizen, release him or her on bond, or grant parole without requiring bond (b) 236(e) – No court shall set aside any action or decision of the Attorney General under this section regardin ghte detention or release of any alien or the grant, revocation, or denial of bond or parole (i) Does not bar the use of habeus corpus to challenge the constitutionality of 236 itself iii) Habeus Corpus (1) 242(a)(1) – Judicial Review of a final order of removal is governed only by [the petition for review procedure] (2) 242(e)(2) – Judicial Review of any determination made under 235(b)(1) (3) Repealed 212(c) – Gave courts habeus corpus jurisdiction as an alternative to general petitions for review (a) 212(c) relief remains available for alins whose convictions were obtained trhrough plea agreements and who would have been eligible for 212(c) relief at the time of their plea then in effect – St. Cyr (b) Court seems to imply that Congress did not intend to eliminate habeus corpus review for cases in which there were questions of law iv) Other Stategies (1) General Federal Question Jurisdiction (2) Injunctions and Class Actions (3) Collateral Attacks in Criminal Proceedings (4) Consolidating Reviewable Claims d) Exceptions to Usual Removal Proceedings i) Expedited Removal ii) Criminal Cases (1) Prison Hearings (a) Deportationsbased on criminal convictions are to be started as expeditiously as possible after the date of the conviction (i) Held in desgnated state of federal prison facilities (b) 238(a)(1) – Attorney General is to hold deportation hearings for aggravated felons before they complete their criminal sentences (c) Goal is to complete all the administrative steps, including any BIA appeal, before the person’s release from incarceration so that the person may be immediately removed from the US without additional detention (d) 212(a)(2) – Requires Attorney General to detain most noncitizen criminal offenders as soon as they are released from criminal incarceration (i) Most courts have founds such mandatory detention unconsitutional (e) Problem of securing counsel from within prison (2) Administrative Removal (a) 238(b) for Aggravated felons who are not LPRs (i) Noncitizen must receive: 1. Notice of the charges 2. Opportunity to be heard 3. Reasonable opportunity to inspect and to rebut the evidence 4. Record must be maintained 5. Adjudicator may not be the person who issued the charge 6. 14 days before the Attorney General executes the removal orders so that the person will have time to seek extremely limited judicial review (b) Procedure requires the usual removal procedure with an administratively final decision by the INS, the adjudicator is an INS officer, and the entire proceeding is done on paper, without opportunity for evidentiary hearing or even an interview (3) Judicial Removal (a) 238(c) – A US district court shall have jurisdiction to enter a judicial order of removal at the time of sentencing aganst an alien who is deportable, if such an order has been requested by the US Attorney with the concurrence of the Commissioner and if the court chooses to exercise such jurisdiction (i) 238(c)(2) – Before deciding whether to exercise this jurisdiction, the judge must hold what amounts to a mini-removal hearing on the issues of both deportability and affirmative relief (ii) 238(c)(3)(i) – A judicial order of removal or denial of such order may be appealed by either party to the court of appeals for the circuit in which the district court is located (iii) 238(c)(4) – Denial of a requiest for a judicial order of removal shall not preclude the Attorney General from initiating removal proceedings upon the same ground of deportability or upon any other ground of deportability under 237(a) (iv)238(c)(5) – The Attorney General may, pursuant to a plea agreement which calls for the alien, who is deportable under thie Act, to waive the right to notice and a hearing under this section, and stipulate to the entry of a judicial order of removal from the US as ac ondition of the plea agreement, or as a condition of probation or of supervised release or both 1. INS will not be bound by federal prosecutors’ promises of nonremoval unless the prosecutor has first secured written authorization from the INS iii) In Absentia Removal Hearings (1) 239(a)(1)(F)(i) and (ii) – Notice to Appear instructs the person to privde his or her address and telepohone number and to inform the INS of any changes of address or telephone number (2) Consequences of Failure to Notify (a) Removal hearing will be held in absentia – 240(b)(5)(A) and (B) (i) At the hearing the INS must prove by clear, unequivocal, and convincing evidence tha the required notice was provided and that the person id deportable (ii) To get the removal order rescinded person must: 1. Move to reopen within 180 days, showing exceptional circumstances a. Serious illness of the alien or death of an immediate relative of the alien or something else no less copelling and must be beyond the person’s control – 240(e)(1) 2. Must move to reopen at any time, showing he or she either did not receive the required notice, or was in custdoy and was not at fault in failing to appear (3) Judicial Review (a) The only issues the court has the jurisdiction to address are (i) Adequacy of the notice (ii) The reasons for the person’s absence AND (iii) Deportability (4) Other Adverse Consequences (a) Becomes ineligible for various discretionary remedies until ten years after the removal order (b) Renders the perosn inadmissible to the US for five years following their eventual departure iv) Noncitizens Reenterning After Prior Removal (1) 241(a)(5) – If the Attorney General finds that an alien has reentered the US illegally after having been removed or having departed voluntairly, under an order of removal, (a) The prior order of removal is reinstated from its orignial date and is not sujbect to being reopened or reviewed, (b) The alien is not elgibile and may not apply for any relief under this Act AND (c) The alien shall be removed under the prior order at any time after reentry v) Crew Members (1) Conditional Permit - Typically allowed to stay up to 29 days (a) If not a Bona Fide crew member, INS has the discretion to revoke the conditional permit, take the person into custody, and require the captain to detain the person on board of the vessel (b) Person removed without ever having received a hearing vi) Terrorist Removal Proceeding (1) Special proceeding balancing the rights of the noncitizen with the importance of national security vii)Rescission of Adjustment of Status (1) 246 – Attorney General may rescind a grant of adjustment of status, within five years, if the person was in fact ineligible for adjustment at the time it was granted (a) With the LPR status having been terminated, the INS may then be able to initiate removal proceedings on the ground that the person has now overstayed his or her original nonimmigrant visa (2) Proceedings must be intitiated, not concluded within 5 years of the adjustment IV)Refugees a) Overseas Refugees i) People that are physically situated outside of the interior of the US, outside the border. In some other country. Likley to be in a country where they temporarilly sought asylum. In the case of overseas refugees, all of the decision making takes place overseas (1) 207(a) - Presidential Determination (a) President makes annual determination of how many refugees may be admitted in the upcoming fiscal year (i) Determination specifies how that total is to be allocated among refugees fleeing various countries and regions of the world 1. Most recent priority system a. Individuals who are in the greatest, or the most immediate danger b. Certain refugees from certain countries including former Soviet Union, Vietnam, Iran, Cuba, Bosnia, Burma and some African countries c. Specified family links to the US d. Specified family links to the US (ii) President may provide additional slots for unforseen emergency refugee situations that cannot be accommodated by the originally announced quota – 207(b) (iii) Appropriate consulation is required for all of the above provisions (2) 207(c)(1) – Attorney General Admittance (a) Subject to the Presidential determinations, the Attorney General may admit any refugee (i) Who is not firmly resettled in any foreign country (ii) Is of special humanitarian concern, AND (iii) Is admissible (b) Automatically exempted from certain exclusion grounds (i) Labor certification (ii) Public Charge (iii) Required documents (c) Spouses and childred accompanying are admitted under the same criteria – 207(c)(2) (d) Attorney General may later terminate the refugee status upon a determination that the principal refugee did not in fact meet the refugee definition at the time of admission - 207(c)(4) (e) The Attorney General may not parile into the US an alien who is a refugee unless the Attorney General determines that compelling reasons in the public interest with respect ot that particular alien require that the alien be pariled into the US rather than be admitted as a refugee under 207 – 212(d)(5)(B) (3) A refugee whose status has not been termianted, and who is still admissible receives LPR status after one year – 209(a) (4) Office of Refugee Resettlement (a) HHS office charged with funding and admisnitering various federal programs relating to resettlement – 411 (5) Internally Displaced Persons (IDPs) – Refugee definition extended to persons still within their country of origin b) Asylum and Nonrefoulement (same exact application process) i) Asylum – Permits the person to remain in the US at least temporarily and in most cases, permanently – 208 (1) Any alien who is physically present in the US or who arrives in the US, irrespective of such alien’s status, may apply for asulum (a) Further reaching than withholding – resultis in permission to permanently resettle in the US (2) Adjustment of Status (a) 209(b) - Maximum number of adjustments: (i) Attorney General may adjust the status of nor more than 10,000 refugees in a fiscal year who: 1. Applies for admission 2. Has been physically present in the US for at least one year 3. Continues to be a refugee 4. Is not firmly resettled in any foreign country 5. Is admissible (with some exceptions) (3) Asylum Procedure (a) Two Different Procedures (i) Removal Proceedings Intitiated 1. If the INS has initiated removal proceedings, the application is filed with the IJ a. Resulting decision is appealable to the BIA (ii) Affirmative Applications 1. If removal proceedings have not yet been instituted, one may take the initiative and apply to the INS a. Adjudicated by geographically dispersed INS asylum officers, who have received specialized training

2. Initial Proceedings a. Applcant receives a nonadversial interview b. The applicant has a right to counsel and may submit affidavits of witnesses and other documents c. Asylum officer either grants asylum or refers the case to an IJ for removal proceedings i. Person may renew the applcation de nove before the IJ ii) Nonrefoulement – Withholding of removal - 241 (1) Definition (a) The Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freediom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion c) Persecution or Fear of Persecution i) Forms of persecution (1) The infliction of objectively serious harm or suffering that is subjectively experienced as serious harm or suffering by the applicant, regardless of whether the persecutor intends to cause harm - DOJ (2) Harm or suffering could consist of confinement or torture (3) Economic deprivations or restrictions so severe that they constitute a threat to an individual’s life or freedom ii) Not Persecution (1) Term requires more than simply governmental discrimination (2) Minor disadvantage or trivial inconvenience not enough (3) No other motivation, such as dissent or disagreement with the conditions in another country or a desire to experience greater economic advantage or personal freedom in the US satisfies the definition (a) All reasons for escape other than persecution are simply irrelevant to the refugee definition – victims of other fates are ruled out unless they also fear persecution iii) Fear (1) Primary motivation for requesting refugee status must be a genuine apprehension of danger in another country (Acosta) (a) The term clearly contemplates that harm or suffering by the applicant, must be inflicted upon an individueal in order to punish fim for possessing a belief or characteristic a persecutor seeks to overcome (b) The home government must be either the party that is inflicting the harm or unwilling or unable to control a private actor who is inflicting it (c) A refugee must do more than show a well-founded fear of persecution in a particular place or abode within a country – he must show that the threat of persecution exsits for him country-wide (i) If the government is either the perpetrator or the sponsor of the persecution, there is a rebuttable presumption that relocation is not a reasonable alternative iv) Past Persecution (1) A person who has already suffered persecution in a given country, and who as a result is unwilling to return to that country, qualifies as a refugee even if a change in conditions has eliminated any well-founded fear of the future persecution v) Individualized Pesecution (1) Need for individualized targeting (a) Generally harsh conditions shared by many other persons does not amount to persecution (Acosta) (i) Views 1. Exposure to the general dangers of war or other strife is not persecution 2. Must adequately distinguis one’s situation from that of others in the country (b) Department of Justice View on Individualism (i) The IJ shall not require the applicant to provide evidence that he or she would be singled out individually for persecution if: 1. The applicant established that there is a pattern or practice in his or her country of nationality or last habitual residence of persecution of a group of persons similarly situated to the applicant on account of [5 groups] AND 2. The applicant establishes his or her own inclusion in and identification with such group or persons such that his or her fear of persecution upon return is reasonable vi) Adverse Impact of Facially Neutral Law (1) Prosecution or Persecution (a) Courts have generally found that criminal prosecution is not persecution (i) Prosecution can be regarded as persecution where: 1. The prosecution is found in fact to be a pretext for persecution on account of one of the requirements OR a. Singling out of a particular group that is being prosecuted 2. The punishment for the particular crime is found to be excessive. a. Usually a pretty good indication that the prosecution is a pretext (ii) Congress has changed the statute to say that forced abortion or forced sterilization will constitute persecution on account of political opinion. 1. Must have favorable exercise of discretion 2. Limited to 1000 persons per year d) On Account of Race, Religion, Nationality, Membership in a Particualar Social Group, or Political Opinion i) Race, Religion, Nationality (1) Race and Nationality (a) Relatively infrequent, but rising lately (2) Religion (a) Conscientious objector claims have raised questions about relgious persecution (b) International Religious Freedom Act (i) Creates office charged with monitoring relgious persecution around the world ii) Political Opinion (1) Political Opinion by Doing Nothing (Elias-Zacarias) (a) Not political opinion if the only evidence is that ht eperson has done nothing (i) Persecution on account of political opinion is persecution on account of the victim’s persecution, not the persecutor’s 1. Must be the actual political opinion, not something that you do or say (b) Neutrality may be a political opinion, but must prove that this is the political opinion (i) A rule that one must identify with one of two dominant factions in order to possess a political opinion, when many persons may be opposed to the views of both factions would frustrate the purpose of the refugee act (ii) Must make a conscious and deliberate choice to remain neutral (2) Imputed Political Opinion (a) As long as the persecutor believes the applicant holds a particular view and intends to persecute the person because of it, it does not matter that the belief is wrong - View is accepted by all that matter (i) 9th – Even falsely or cynically imputed political opinion may suffice (3) Refugees Sur Place (a) Applicants who were not refugees when they left home, but who become refugees while abroad (i) Conditions at home changed while they were away (ii) Refugees actions or words 1. Because a person may assert an unpopular opinion for the very purpose of creating eligibility for asylum, UNHCR urges a careful examination of the circumstances 2. Courts have been less inclied to find a will founded fear of persecution based on political opinion when the fear arises because of post-departure activities 3. Common Fact Sitautions a. Departure or failure to return violated the country’s emigration laws b. After leaving the country, the applicant began expressing new views or engaging in political associations that might lead to persecution upon return c. The applicant applied for asylum, was turned down, and now fears that the very act of having applied for asylum will prompt the government of the country of origin to brand him a subversive or a traitor iii) Particular Social Group (1) General Defintion of Social Group (a) Group of persons all of whom share a common, immutable characteristic (Acosta) (i) Characteristic that is so fundamental to individual identity or conscience that it ought not be required to be changed 1. Might be inherent characterisitic or one based on past- experience a. Past Experience i. When past experience defines a particular social group, the past experience must be an experience that, at the time it occurred, the member either could not have changed or was so fundamental to his or her identity or conscience that he or she should not have been required to change it (DOJ) b. Employment is not immutable c. Gays officially recognized as a social group 2. Must be determined on a case-by-case basis (ii) Whatever the common characteristic that defines the group, it must be one that the members of the group either cannot change, or should not be required to change because it is fundamental to either individual identities or consciousness (iii) Homogeneous requirement in Sanchez-Trujillo to hard to define (b) Groups must be so fundamental to identity that a person would have to face the persecution due to inability to comply with standards outside of the group (i) People who find the practices of a country merely offensive or people that do not wish to compy with the practices do not qualify 1. i.e. Iranian women who find the laws so abhorrent that they refuse to conform even though the routine penalty for noncompliance is 74 lashes, a year’s imprisonment, and in many cases brutal rape and death (c) People that would be unable to escape otherwised accepted persecution if they were returned to their country (i) The characteristic must be so fundamental to the idividual of a person that they should not be required to change it 1. i.e. Young women of the Tchamba-Kunsuntu Tribe who have not hd FGM, as practiced by that tribe, and who oppose the practice a. The characteristic of having intact genitalia is one that is so fundamental to the identity of a young woman that she should not be required to change it (ii) In looking at the otherwise accepted persecution, must settle between relativism and universalism (2) The Problem of the Non-State Actor (a) Two Situations (i) Situations in which the state will not provide protection 1. Factors to consider a. Attempts by the applicant to obtain protection from government officials and the resultant response b. Official action that is perfunctory c. General country conditions d. Government’s denial of services e. That nature of the government’s policies with respect to the harm or suffering at issue f. Any steps the government has taken to prevent infliction of such harm or suffering (ii) Situations in which the state is unable to provide protection (b) Nexus (i) There must be a conncection between the serious harm and the failure of state protection 1. If the refugee claimaint is at real risk of seruios harm at the hands of a non-state agent for reasons unrelated to any of the Convention grounds, but the failure of state protection is for reason of a Convention Ground, the nexus requirement is satisfied 2. If the refugee claimant is at real risk of serious harm at the hands of a non-state agent for reasons related to any of the Convention grounds, but the failure of state protection is not for reason of a Convention Ground, the nexus requirement is satisfied iv) Well-Founded Fear and Would Be Threatened: Standards of Proof (1) A fear is well-founded if a reasonable person in the applicant’s circumstances would fear persecution (a) Less than a 50% chance (b) At least a 10% chance e) Methods of Proof i) Material Facts (1) Membership in a Persecuted Group (a) Group membership, with nothing more, is normally insufficeint to create a high enough probability that the particular applicant would actually suffer the feared persecution (i) Absent special circumstances, more will generally be required (b) DOJ requires applicant to show well-founded fear of persecution by showing a pattern or practice of the country persecuting a group of people and the applicant’s inclusion in that groups – such that the applicant’s fear of persecution upon return is reasonable (2) Past Persecution (a) Material in Two Ways: (i) Can help the applicant establish a well-founded fear of future persecution (ii) Made an independent basis for refugee status even when there is no threat of future persecution (b) Rebuttable presumption that one who has suffered past persecution has a well-founded fear of future persecution (i) Two Ways to Rebut Presumption 1. By showing any fundamental change in circumstances that eliminates the required well-founded fear on one of the protected grounds OR 2. By showing that the applicant could avoid future persecution by relocating to another part of the applicant’s country and under all of the circumstances it would be reasonable to expect the applicant to do so (c) Discretionary component of asylum addresses other issues that may arrive (i) If a person is found to be a refugee solely on the basis of past persecution, discretionary relief must be denied unless the person has demonstated: 1. Compelling reasons for being unable or unwilling to return 2. A reasonable possibility that he or she may suffer other serious harm upon removal to that country (d) Past persecution is not an basis for eligibility for withholding of removal (i) Requires that life or freedom would be threatened 1. Future persecution is more likely than not ii) Relevant Evidence (1) The Applicant’s Own Testimony (a) Asylum claimants rarely able to offer corroborative evidence of specific acts or threats (b) Often must rely on their own testimony (c) Credibility (i) Minor Inconsistencies 1. When there are merely minor inconsistencies about which the applicant would have no reason to fabricate, these should not conclusively mean that an applicant is not credible (ii) Character/Morality 1. The personal choices that an asylum applicant has made concerning marriage, children, and living arrangements should not be used to evaluate the applicant’s credibility concerning his claims of persecution, unless they reflect some inconsistency in a relevant portion of the applicant’s testimony (iii) Failure to Apply Elsewhere 1. Failure to apply for asylum in a country which the applicant passses or in which he worked prior to his arrival in the US does not provide a valid basis for questioning the credibility of persecution claims a. It is quite reasonable for an individual who has experienced persecution to seek a homeland with more stability and that offers more promising economic opportunities (iv)Judges Determination 1. Reviewing courts generally accord great deference to the credibility determination of the IJ who views the witness as the testimony is given and the applicant’s demeanor a. De novo standard for questions of law (v) Evidence from other sources refuting testimony (vi)Internally Inconsistent 1. Decision will not be disturbed when : a. The discrepencies and omissions described by the IJ are actually present b. These discrepancies and omissions provde specific and cogent reasons to conclude that the respondent provded incredible testimony AND c. The respondent has not provided a convincing expalantion for the discrepancies and omissions (vii) Character Evidence (viii) Deliberate Lies 1. Not always an adverse finding a. May show that a person fears their country so much that he would lie to keep from going back (ix)Vague or Evasive statements may distract from credibility (x) Inherently Unbelievable Stories 1. testimony of persecution in a country that is a democracy with a good human rights record (d) Testimony Alone (i) DOJ and UNHCR say that the testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration (ii) Whenever it is reasonable to expect corroborating evidence, even an applicant whose testimony is found credible must offer such evidence or explain why he or she did not (2) State Department Opinion (a) Human Rights reports are considered by thoses involved in asylum adjudication proceedings (i) Largely based on foreign policy (b) Advisory Opinions in Individual Cases (i) SD provides individualized letters in a small fraction of cases (c) Advice from UNHCR (i) US has no formal provision for UNHCR participation (ii) Attorneys for asylum claimants frequently ask for expressions of tis views about the particular cases, and when avaialbe, UNHCR accomodates the requests and the letters are admitted into evidence (d) Other Sources of Information (i) Documentation Center within the INS with Information on human rights (ii) BIA taking notice of country conditions generally 1. Accepts certain facts as true a. Noticed facts can not be contraverted b. Noticed facts must not be used in such a way as to deny the applicant an individualized adjudication c. Applicant must have a meaningful opportunity to submit rebuttal evidence f) Exceptions to Eligibility i) Firm Resettlement (1) 207(c)(1) – Refugees and asylum claimants are disquaified if they are firmly resettled in another country (a) No analogous provision for withholding of removal (2) A person will be considered firmly resetlted in another coutnry if before arriving in the US the person received an offer to resettle permanently in another country (a) Exceptions (i) Entry in the thrid country was a necessary consequence of his flight from persecution (ii) Remained in the country only as long as was necessary to arrange onward travel AND (iii) Significant ties were not established OR (iv)Conditions attached to residence can be so substantially and consciously restricred that in fact the person was not resettled 1. No right to work (3) Different than Safe Third Country (a) US law permits the INS to remove asylum applicant to third countries in which they are not firmly resettled ii) Past Wrongdoing – 208(b)(2)(A) (1) Not eligible if the Attorney General finds that: (a) The alien ordered, incited, assisted, or otherwise particiapted in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion (b) The alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community in the US (i) Both the same ground, only one factual determination (ii) Particularly serious crime is more serious than a serious nonpolitical crime, although many crimes may be classified as both (iii) Aggravated Felony 1. Asylum a. 208(b)(2)(B)(i) – An alien who has been convicted of an aggravated felony shall be consdered to have been convicted of a particularly serious crime 2. Withholding of Removal a. 241(b)(3)(B) – An alien who has been convicted of an aggravated felony (or felonies) fo rhw hich the alien has been sentenced to an aggregate termo of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime i. Aggravated felonies that don’t have a sentence of five years must be evaluated based on the merits of the case (iv)Factors: 1. Nature of the conviction 2. Circumstances and underlying facts of the conviction 3. Type of sentence imposed 4. Whether the type and circumstances of the crime indicate that the laine will be a danger to the community 5. Crimes against persons are more serious than crimes against property (c) There are serious reasons for believing that the alien has committed a serious nonpolitical crime outside the US prior to the arrival of the alien in the US (i) Look to whether the nature and purpose of the crime was committed out of genuine political motives and not merely for personal reasons or gain 1. There shoul be a close and direct causal link between the crime committed and its alleged political purpose and object (d) There are reasonable grounds for regarding the alien as a danger to the security fo the United States (e) The alien is inadmissible under [statute relating to terrorist activity g) Discretion in Asylum Cases i) Use of fraud and circumvention of orderly asylum procedures may be important factor in determining to grant asylum (1) Circumvention should be a serious adverse factor, but it should not be considered in such a way that the practical effect is to deny relief in virtually all cases ii) Look to the Totality of the Circumstances (1) Wethere the alie passed through any other coutnries or arrived in the US dreictly from his country (2) Whether orderly refugee procedures were in fact available to help him in any country he passed through (3) Whether he made any attempts to seek asylum before coming to the US (4) Length of time the alien remained in the thrid country (5) Living conditions, safety, and potential for long-term residency in a third- country (6) Whether the alien has relatives in the US or other personal ties to this country which motivated him to seek refuge here rather than elsewhere (7) Extent of the alien’s ties to any country that he does not fear persecution (8) Seriousness of fraud the alien engaged in to circumvent procedures (9) General humanitarian considerations such as tender age or poor health iii) Applcaint has the burden of proving that favorable exercise of discretion is warranted (1) Alien should present evidence on any relevant factors which he believes support the favorable exercise of discretion in his case h) Procedure i) Two Separate Procedures (1) EOIR: Already in Proceedings (a) Person applies for asylum and/or withholding of removal by filing an application with the immigration judge (i) Decision is appealable to the BIA (ii) BIA decision is appealable in court – 242(a)(1) (2) INS: Affirmative Applications (a) Applications filed with asylum officers (i) INS officers specially trained in International law, country conditions, and asylum law (ii) Officerts are based in several major cities throughout the United States (b) Nonadversial Interview (i) Noncitizen may be represented by counsel and may submit documentary evidence (c) Decision (i) If the officer grants the application, then applicant will be admitted (ii) If the officer denies the application, then refers the case to an IJ for the intiation of removal proceedings 1. EOIR proceedings with IJ, BIA, and reviewing court kick in ii) Problems with Adjudication Process: (1) Political Bias (a) Critics charge that various officials who decide asylum cases improperly emphasize political factors (2) Long Delays (a) INS and IJ’s have considerable applications each year, which may take years to get through (b) Prevents applicants from security and peace of mind (i) However, very act of applying entitles applicants to some benefits (3) Unfounded Claims (a) Many intermim benefits while the claim is pending (4) Fiscal Costs (a) Costs behind the hearings, appeals, benefits, and detention can be considerable (5) Procedural Fairness (a) Assusing the noncitizens how or learn of their right to apply for asylum (i) Regulations require the INS to provide the necessary application forms only when the noncitizen affirmatively requests forms or expresses fear of future persecution 1. Similar regulations apply to the IJ iii) Time Constraints (1) Time to Finish Proceedings (a) 208(d)(5)(A)(ii) – In the absence of exceptional circumstances, the initial interview shall commence not later than 45 days after the date an application is filed (b) 208(d)(5)(A)(iii) – In the absence of exceptional circumstances, final administrative adjudication of the asylum application, not including adminsitrative appleal, shall be completed within 180 days after the date an application is filed iv) Barring or Discouraging Access to Asylum Seekers (1) Filing Deadlines (a) 208(a)(2)(B) – With some exceptions, asylum shall not apply to an alien unless the alien demonstrates by clear and convincing evidence that the application has been filed within 1 year after the date of the alien’s arrival in the United States (i) Exceptions 1. 208(a)(2)(D) – An application for asulum of an alien may be considered if the alien demonstrates to the satisfaction of the Attorney General either: a. The existence of changed circumstanes which materally affect the applicant’s eligibility for asylum OR b. Extraordinary circumstnaces relating to the delay in filing an application within the [one year period]. (b) Once the administrative officials find an absence of clear and convincing evidence that the applicant arrived during the past year, and also find that neither of the exceptions applies, the asylum denials are final – No Judicial Review is permitted (i) 208(a)(3) – No court shall have jurisdiction to review any determination of the Attorney General [concerning the limit] (2) Safe Countries (a) Countries that neither practice persecution nor return refugees to countries that will persecute them (i) Asylum claimiants from countries that are on the safe list are presumed ineligible (b) 208(a)(2)(A) – Safe Third Country (i) The Attorney General may determine that the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country in which the aliens’s 1. Life or freedom would not be threatened on account of [five grounds], AND 2. Where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection, 3. Unless the Attorney General finds that is in the public interest for the alien to receive asylum in the US (ii) Attorney General’s decision is not reviewable under 208(a)(3) (iii) Provisioin is inoperative unless the US enters into a safe third country agreement 1. No such agreement exists (3) Expedited Removal (a) If an immigration officer invokes the expedited exclusion provision, and the person either requests asylum or otherwise indicates a fear of persecution, then an asylum officer interviews the person and performs a preliminary screeding to decide whether there is a credible fear of persecutuion (i) Credible Fear of Persecution 1. 235(b)(1)(A)(i) – An asylum officer shall conduct interviews of aliens at a port of entry or at such other place designated by the Attorney General a. 235(b)(1)(B)(v) – Credible fear of persecution means that there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alein’s claim and such other facts as are known to the officer, that that alien could establish eligibility for asylum (ii) Detention For Further Consideration 1. 235(b)(1)(B)(ii) – If the officer determines at the tim eof the interview that an alien has acreidble fear of persecution ,t hat alein shall be detained for furthef consideration fot he applicatio for asylum (iii) No Credible Fear 1. Upon finding none, the alien is removed a. 235(b)(1)(B)(iii)(I) – If the officer determines at the time of the interview that an alien does not have a credible fear of persecution, the officer shall order the alien removed from the US without further hearing or review b. 235(b)(1)(B)(III)(II) – The officer shall prepare a written record of a determination undder (I). Such record shall include: i. A summary of the amterial facts as stated by the applicant ii. Such additional facts relied upon by the officer, AND iii. The officer’s analysis of why, in the light fo such facts, the alien has not establised a credible fear of persecution (iv)Review 1. Upon the individual’s request, an immigration judge will promptly review a. 235(b)(1)(B)(iii)(III) – The Attonrey General shall privde by regulation and upon the alien’s request for prompt review by an im immigratoin judge of a determination under (I) that the alien does not have a credible fear of persecution i. Such review shall include an opportunity for the alien to be heard and quastioned by the immigration judge, either in person or by telephonic or video connection ii. Review shall be concluded as expeditiously as possible, to the maximum extent practicable within 24 hours, but in no case later than 7 days after the date of the determination under subclause (I) 2. There is no other administrative review unless the person attests under penalty of perjury that he or she has already been admitted as an LPR, a refugee, or an asylee - 235(b)(1)(C) a. Nor, with one very limited excpetion, is there any judicial review – 242(a)(2)(A), 242(e) (4) Detention (a) Those who apply for asylum in removal proceedings are subject to the same detention rules as anyone else in those proceedings. (i) May be held without bond, released on bond, or paroled without bond – 236(a) (5) Denying Employment Authorization (a) 208(d)(2) – An applicant for asylum is not entitled to employment authorization, but such authorization may be provided under regulation by the Attorney General. (i) An applicant who is not otherwise eligible for employment authorization shall not be granted such authorization prior to 180 days after the date of filing of the application for asylum. (6) Sanctioning Frivolous Applications (a) 208(d)(4)(A) – The Attorney Generlal shall advise the alien of the consequences of knowingly filing a frivolous application for asylum (b) 208(d)(6) – If the Attorney General determines that an alien has knowingly made a frivolous application for asylum and the alien has received the notice under (4)(A), the alien shall be permanently ineligible for any benefits under the INA. (7) Application Fees (a) 208(d)(3) – The Attoreny General may impose fees for the consideration of an application for asylum. (8) Preinspection (a) 235A authorization - Idea that passengers can be inspected before they travel all the way to the US and if found inadmissible, will not face another voyage home (b) Interdiction (i) Intercepts vessels suspected of carrying entrants and turns them away before they reach the nation’s shores. 1. Prevalant with Haitians V) Undocumented Migrants (1) Immigration Offense (a) Entry Without Inspection - 275(a) (i) Forbids Any Alien Who: 1. Enters or attempts to enter the US at any time or place other than as designated by immigration officers 2. Eludes examination or inspection by immigration officers OR 3. Attempts to enter or obtains entry to the US by a willfully false or misleading representation or the willful concealment of a material fact (b) Reentry of Deported Alien (i) Any alien who: 1. Has been denied admission, excluded, deported, or removed or has departed the US while an order of exclusion, deportation, or removal is outstanding shall be fined (ii) The Supreme Court has held that a person could not constitutionally be convicted under 276 wihtout ahving had at some point, a meaningful opportunity to contest the validity of the underlying deportation order (c) Fraud (i) 18 USC 1001 1. Felony to defraud the US government (ii) 274C 1. Expands the range of document related violations and prescribes civil penalties to be imposed after administrative proceedings (iii) Marriage Fraud – 275(c) 1. Any individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years or fined not more than $250,000, or both (iv)Immigration-Related Entrpreneuership Fraud 1. Any individual who knowingly established a commercial enterprise for the purpose of evading any provision of the imigration laws shall be imprisoned for not more than 5 years, or fined, or both (d) Facilitating Illegal Immigration (i) 274(a)(1)(A)(B)(C)(D) – Generally covers: 1. Bringing noncitizens to the US other than at designated prots of entry 2. Transporting, within the US, noncitizens who are present in violation of law 3. Harboring such persons 4. Inducing illegal entry (ii) Mens rea required (2) Employer Misconduct (a) Employer Sanctions (i) 274A – Unlawful Employment of Aliens 1. 274A(a)(1) It is unlawful for a person or other entity to: a. Hire, recruit, or refer for a fee, for employement in the US an alien knowing the alien is an unauthorized alien with respect to such employment OR i. 274(h)(3) – Unauthorized alien means an alien that is not that the time EITHER: ii. An alien lawuflly admitted for permanent residence iii. Authorized to be so employed by this Act or the Attorney General b. To hire for employment in the US an indvidual without complying with the paperwork requirements of 274A(b) 2. 274A(a)(2) - Continued Employment a. It is unlawful for a person or other entity, after hiring an alien for employment in accordance with (1), to continue to employ the alien in the US knowing the alien is an unauthorized alien with respect to such employment 3. Grandfather Clause a. Above sections shall not apply if the employment or continued employment has occurred before the date of the enactment of the Act 4. Casual Employment a. DOJ – Employment does not include causal employment by individuals who provide domestic service in a private home that is sporadic, irregular, or intermittent 5. Knowing a. Constructive knowledge is enough i. Deliberate failure to investigate suspicious circumstances imputes knowledge ii. Statute requires only that the employer verify that the document on its face appear genuine iii. Willful blindness – Awareness that the fact was highly probable and a conscious decision to avoid enlightenment b. INS – Knowledge which would fairly be inferred through notice of certain facts and circumstances which would lead a person, through the exercise or reasonable care, to know about a certain condition i. Reason to know standard (beyond willful blindness) c. Continue To Employ i. The INS must provide an employer with a reasonable amount of time for compliance after the employer acquires knowledge that an employee is unauthorized (3) Verification Procedure (a) First, the employer must examine certain documents furnished by the employee – 274(b)(1): (i) (b)(1)(B) Documents that Simoltaneously establish the employee’s identity and his or her employment authorization OR 1. (i) United States Passport 2. (ii) Resident alien card, alien registration card, or other document designated by the Attorney General, if the document: a. Contains a photograph of the individual and such other personal identifying information relating to the individual which the Attorney General finds: i. Is evidence of authorization of employment in the US AND ii. Contains security features to make it resistant to tampering, counterfeiting, and fraudulent use (ii) (b)(1)(C) – Documents that establish only employment authorization AND 1. (i) Social Security Card OR 2. (ii) Other documentation evidencing authorization of employment in the US which the Attorney General finds, by regulation, to be acceptable for purposes of this subsection (iii) (b)(1)(D) – Documents establishin only identity if individual 1. (i) Driver’s license or similar document issued for purpose of identification by the state if it contains a photograph or other information that the Attorney General, by regulation, finds sufficient 2. (ii) – If the individual is under 16 years of age or in a state that does not provide ID cards other than a driver’s license, documentation which the Attorney General finds, by regulatioin, as a reasonable means of identification (b) Second, Employer Attestation -274A(b)(1)(A) (i) Employer must attest under penalty of perjury, on a standard INS form, that it has performed the required verification (c) Third, Employee Attestation – 274A(b)(2) (i) Employee must attest, under penalty of perjury on the form that the Employer attested on that the alien is 1. A citizen or national of the US 2. An LPR OR 3. An alien who is authorized to work (d) Fourth, Retention of Document – 274A(b)(3) (i) The employer must retain the form and make it available for inspection by the INS or other related employment group until: 1. In the case of referral for a fee a. Three years after the date of the recruiting or referral 2. In the case of hiring an individual the latter of a. Three years after the date of hiring OR b. One year after the date the individual’s employment is terminated (4) Enforcement (a) The INS is charged with investigating and prosecuting violations (i) Sometimes makes arrangement with Labor Department (ii) Any person with knowledge of a potential violation of 274A may file a complaint with the INS (b) If violation, INS serves Notice of Intent to Fine (i) Party has a right to request a hearing before an administrative law judge (ALJ) (ii) INS must prove its case with a preponderance of the evidence 1. IF the INS proves its case a. Civil Fines imposed i. Higher fines for substantive violations than paperwork violations b. Criminal Proceedings i. Pattern or practice of violating the substantive provisions – prison up to six months ii. Ten or more unauthorized workers within 12 month period – prison up to five years (c) Judicial Review of the final administrative decision is avaialble by petition for review in the court of appeals b) Prohibitions on Discrimination – 274B i) General Rule (1) (a)(1) – It is an unfair immigration-related employment practice for a person or other entity to discriminate against any individual with respect to the Hiring, Recruitment, Referral for a Fee, or Discharge from employment (a) Because of the individual’s national origin OR (b) Because of the individual’s citizenship status if the individual is a member of a protected group (i) A Protected Individual is 274B(a)(3): 1. A citizen or national of the United States OR 2. Noncitizens: a. An LPR b. Granted temporary residence – Legalization 210(a) c. Refugee d. Asylum 3. A protected individual is not: a. An alien who fails to apply for naturalization within six months of the date the alien first becomes eligible to apply for naturalization AND b. An alien who has applied on a timely basis but has not been naturalized as a citizen within 2 years after the date of the application UNLESS i. The alien can establish that ht ealien is actively pursuing naturalization ii) Right to Prefer Equally Qualified Citizens – 274B(a)(4) (1) Regardless of the rest of the provision, it is okay to prefer to hire, recruit, or refer an individual who is a citizen or national of the US over another individual who is an alien if the two individuals are equally qualified (a) Does not apply to termination of employment iii) Retaliation or intimidation prohibited – 274B(a)(5) iv) Treatment of Certain Documentary Practices as Emplyment Practices – 274B(a)(6) (1) A person’s or other entity’s request for more or different documents than are required or refusing to honor documents tendered that on their face reasonably appear to be genuine shall be treated as an unfair immigration- related employment practice IF (a) Made for the purpose or with the intent of discriminating against an individaul in violation of the anti-discrimination clause v) Exceptions: (1) Does not apply to (a) A person that employers three or fewer employeees (b) A person whose discrimination is covered under Title VII (c) Discrimination that is required by law to do business with the Government vi) Penalties are drafted to match those of 274A vii)Procedure (1) People that Can Bring Suit – 274B(b)(1) (a) Party who alleges discrimination (b) Anotehr person adversely affected (c) INS officer (2) Can’t file with both IRCA and EEOC (a) Exception is that if one of those parties has dismissed the case as outside the scope of the applicable statute – 274B(b)(2) (b) EEOC and OSC have entered into a memorandum of understanidng that makes each agency an agent of the other for the sole purpose of allowing charging parties to file charges to satisfy the statutory time limit (i) Memorandum also permits the agencies to refer charges to each other when appropriate (3) Filing and Investigating Within Time Period (a) 274B charge must be filed within 180 days of the discriminatory act – 274B(d)(3) (i) Same time limit as Title VII (b) Special Counsel is supposed to deicde, withing 120 days after receiving the charge, whether there is a reasonable cause to believe the charge is true 247B(d)(1) (4) Complaint Filed if Complaint is Supported (a) If the OSC finds that there is a reasonable cause to believe the charge is true, the OSC ay file a complaint with the Administrative Law Judge – 247B(d)(1) (i) ALJ has received special training in the subject of employment discimination – 274B(e)(2) (5) Hearing (a) After the complaint is filed, the ALJ conducts a recorded evidentiary hearing – 274B(e), (f) (b) Conviction (i) If the ALJ finds by a preponderance of the evidence that the charged party has violated 274B, the ALJ orders that party to: 1. Cease the violation AND 2. Pay a civil fine within the applicable statutory range 3. Comply with any additional sanctions the ALJ deems appropriate (c) Review (i) No Administrative review (ii) Either side may obtain judicial review in the court of appeals – 274B(i) (d) District Court Enforcement Action (i) Unappealed decision of the ALJ is not directly enforceable 1. Either the charging party or the OSC may petition a federal disctric court to order the charged party to comply, presumably under penalty of contempt – 274B(j)(2) (6) In any of the proceedings, the prevailing party, other than the government, may recover attorney fees from the losing party if the latter’s argument were without reasonable foundation in law and fact – 274B(h), 274B(j)(4) (7) Disparate Impact (a) Title VII allows disparate impact claims (i) Employer may defend by producing evidence of a business necessity for the challenged policy (b) ALJ decisions have consisitently held that the alien must show intentional discrimination to prevail c) Undocumented Migrants and Public Benefits i) Rights of Undocumented Migrants (1) Access to the courts (a) Tort, contract, divorce, recover lost wages, workers’ compensation (2) Right to own real property (3) Right to serve as trustee (4) Right to acquire and convey personal property (5) Consitutional Rights (a) 4th, 5th, 6th, and 14th (b) Courts have used the 14th EP to strike down state laws denying benefits (6) Labor Rights (a) NLRA (i) May vote in union elections (b) FLSA ii) Denial of Rights (1) Federal and state governments permitted to discriminate against all aliens for some purposes and to disntinguish between LPRs and undocumented aliens iii) Limited Ability to Exercise Rights (1) Fear of exposing their undoucumented status (2) Access to power in the form of money and information iv) Public Benefits (1) Federal (a) 1996 Welfare Act made undocumented aliens ineligible for all publisn benefits: (i) Contracts, loans, professional or commercial licenses, retirement benefits, welfare, health or disability benefits, food assistance, housing, post-secondary education (ii) Any other simial benefits provided by the federal government (b) Exceptions (i) Emergency disaster relief (ii) Emergency medical care (iii) Treatment for communicable diseases (2) State and Local Benefits (a) Ineligible unless the state passes post-Welfare Act legislation to the contrary (b) States are authorized to restrict or prohibit paymet of general cash public assistance to noncitizens (i) Restrictions may not be broader than any of those provided by the federal programs (c) Ineligible for preferential post-secondary tuition rates v) Proposition 187 (1) Prohibited schools from allowing undocumented migrants (a) Schools required to report violators to the INS (2) Prohibited publicly funded health facilities from serving undocumented migrants except in medical emergencies (3) Welfare Act found to preempt 187 as occupying the field VI)Citizenship a) Why Should the Law Classify People As Citizens or Noncitizens and Apply Different Obligations to Each Group? i) Terminology (1) Citizen (a) Subsect of nationals that are almost 100% of the entire group (2) National (a) People who owe permanent allegiance to the United States (i) American Samoa and Swains Island (ii) Because this group is so small, it is usually referred to as the same group (iii) Outside of the US, these people are referred to as Nationals (iv)Much more important term in international law than in domestic law ii) Welfare Reform – 1996 (1) Until 1996, LPRs were given most of the same rights as LPRs (a) Welfare reform legislation changed the situation (i) LPRs are generally ineligible for most of the major forms of Federal and State assistance 1. States are authorized to impose on LPRs the same disqualifications that the Federal law imposes (b) Inelgibility from Federal Benefits (i) Unqualified 1. Undocumented migrants and nonimmigrants a. Ineligible for alsmot all public assistance (ii) Qualified Noncitizens 1. People Affected a. LPRs, b. Refugees and Asylum c. Parolees 2. Benefits Lost a. Supplemental Security Income b. Food Stamps c. Anything the state authorizes 3. Exceptions a. First five years after admission as a refugee or the grant of asylum or withholding of removal b. LPRss who have worked for 40 quarter-years without having received any federal means-tested public benefits c. People dealing with the Armed Forces (c) Policy (i) For Distinction between LPRs and Citizens 1. Assuring that immigrants become self-reliant 2. Still receive the emergency assistance necessary for survival a. EMS, Fire, Contagious disease control 3. Not making the same commitment to us, so we should not make the same contribution to them (ii) Against Distinction between LPRs and Citizens 1. Extremely harsh consequences a. Humanitarian concerns 2. LPRs pay taxes a. They fund these programs the same that citizens do (iii) Reasons Not to Become a Citizen 1. May lose citizenship in one’s home country 2. May have certain emotional ties to home country a. Citizenship is often a means of identity for noncitizen (d) Safeguards (i) Deeming Provisions 1. Supposed to come in with an affidavit fo support from sponsor 2. Supposed to take in income fo the sponsor 3. The only situation that it matters when LPRs are excluded from thse programs is when something happens to the sponsors (ii) Inadmissible 1. If within the first five years, you somehow do qualify for public assistance, you will be deported a. Exception i. Prove that the need is because of circumstances after you come from the US b) Schuck Articles i) Citizenship (1) Very easy to get (2) Hard to lose, once you become a citizen (3) Naturalization rates are fairly low (a) Fewer people apply than one would expect ii) Dangers of Devalued Citizenship (1) Political Dangers (a) Politicians have little incentive to respond to the claims of noncitizens (b) Person chooses not to participate in the democracy (i) Inf order for democracy to work, the governed people must have the right to have a stay in the democracy (c) If LPRs want to disadvantage themselves, they should have the right to do so (i) Why should we worry about them if they are not worried about it\ 1. Depends on how much we think of these things as a collective enterprise for the good of the community (d) Nothing in Federal Law disqualifies LPRs from voting (i) The states decide who can vote, even in federal elections (ii) All fifty states have laws that inhibit voters (iii) Some municipalities allow noncitizens to vote in certain local elections (2) Cultural Dangers (a) Immigrants should become integrated members of the community (b) What is the role of the individual? (i) In a real community, people make sacrifices for one another 1. To what extent does one owe an obligation to the country a. Refusing to naturalize is evidence that you are not willing to contribute to society b. Legal obligations as a citizen that LPRs don’t have i. Jury Duty ii. Draft – opportunity to opt out on the condition that you forfeit all possibility for citizenship in the future c) Aleinikoff Article i) Question of whether the courts should give the same protection to noncitizens ii) Problem with reading significance into an LPR’s decision not to pursue naturalization d) Necessity for the Concept of Citizenship i) Emotional attachment makes necessity for distinction (1) Devalued attachment if there is no ramification e) Procedure i) Acquiring Citizenship (1) At the moment of birth (a) Two Methods (i) Jus Soli (rights in the soil) 1. Acquiring citizenship by being born in the territory 2. US has the most liberal standards a. Exception is children of diplomats (ii) Jus Sanguinis (rights in the blood) 1. Inheriting citizenship through parents 2. All persons born or naturalized in the US, and subject to the jurisdiction thereof, are citizens of the United States a. Subject to the jurisdiction thereof (b) Family History (i) Must figure out which law applies 1. The law that determines whether the applicant is a citizen is the one that applied at the time of the applicant’s birth a. If a parent is important, must look t the law that existed at the parent’s birth to determine the parent’s citizenship (c) If an applicant loses their citizenship because of a retention requirement, they may regain the citizenship simply by taking an oath of office. (2) Naturalization – Later in life (a) 1990 – Congress changed the Law (i) Instead of court swearing the citizen in, the INS could do so 1. In order to preserve the solemnity of the ceremony, Congress changed the law again, giving delegates the authority to naturalize. a. Court determines their own jurisdiction to naturalize (b) Denial of Naturalization (i) Trial de novo over whether the person was eligible (c) Dual Citizenship (i) Ultimately up to the country to accept oath of renunciation (ii) Other country may or may not require renunciation oath 1. State Department assumes that you really don’t mean it a. Must go to the US consular office and affirmatively renounce citizenship b. Has been applied retroactively (iii) Two Points 1. Every country decides who its own citizens 2. Every country varies ii) Loss Of Citizenship (1) Denaturalization (Revocation of Naturalization) (a) The only people that have to worry about this are people who acquire citizenship through naturalization in the first place (b) Under the law, you can be denaturalized at any time (no s of l) (i) If naturalization was illegally procured (ii) If naturalization was procured by misrepresentation of a material fact (c) The phrase illegally procured means that you in fact were not eligible for naturalization at the time it was acquired (i) No bad faith requirement (d) Administrative Reopening of Case (i) Attorney General may reopen the case if less than two years have gone by 1. If more than two years, the process goes to Court (ii) Administrative Denaturalization 1. Burden of proof on applicant to prove eligibility (e) Nazi War Criminals who misrepresented their admissiblity (2) Expatriation (a) Applies to Any US citizen (i) Voluntary performing of any specified acts – 349 1. Serving in foreign army (b) Supreme Court has held that it would be unconstitutional to force relinquishment of citizenship (i) Must have the intent to renounce citizenship