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The Law Office of Christopher Worth ______429 Montauk Highway, P.O The Law Office of Christopher Worth ____________________________________________________________________________________________________________ 429 Montauk Highway, P.O. Box 1115 East Quogue, NY 11942 Phone (631) 676-4999 Fax (631) 913-1000 _____________________________________________________________________________________ Immigration Law Issue Spotting for the Criminal Lawyer, Family Lawyer and General Practitioner Suffolk County Bar Association ✺ ​ Hauppauge, New York ✺ ​ April 25, 2019 ​ ​ _____________________________________________________________________________________ — IMMIGRATION LAW 101 — 1. US Citizens (USC’s) a. Who are USCs i. Those born in the U.S. (14th Amendment & doctrine of jus soli), except children of ​ ​ ​ ​ ​ diplomats or children born during foreign occupation ​ 1. N.b. Myth of the Anchor Baby - Status of parents of children born in the ​ ​ ​ US does not change as a result of the birth ​ ​ ii. Acquired citizenship for children of USC’s born abroad - US Citizenship Acquired at ​ Birth 1. Both parents are USCs, and one has lived in the US, 8 U.S.C. § 1401(c) 2. One parent is a USC (5 & 2 Rule), a. parent has lived in US at least 5 years, and b. at least 2 of those were after age of fourteen (14), 8 U.S.C. § 1401(g) iii. Derivative Citizenship: 1. Children will derive citizenship upon the parent’s naturalization if (a) parent is a USC, (b) child was under 18 years-old at the time of the parent’s naturalization, (c) the child is residing in the US as an LPR, and (d) is in the legal and physical custody of the USC parent, 8 U.S.C. § 1431 b. Requirements for Naturalization i. Legal Permanent Residence (LPR) for 5 years, Good Moral Character (GMC), English language and U.S. civics requirement, Attachment to Constitution, Oath of Allegiance, and applicant is over 18 years-old 1. If LPR based on marriage, only need 3 years as LPR to naturalize 2. English-language requirement waived for 50/20 or 55/15 ​ 3. Civics Requirement - applicants must answer 6 of 10 questions about U.S. civics correctly ii. Good Moral Character (GMC) during the 5 years preceding application ​ ​ 1. GMC Issues: Failure to Pay Taxes - Matter of Locicero, 11 I&N Dec. 805 ​ ​ (BIA 1966) (no GMC w/ gross underreporting of income tax); failure to pay child support; habitual drunkard, INA §101(f)(1); person who derived his income principally from illegal gambling, INA §§101(f)(4), (5); detention in a penal facility for 180 days or more, INA §101(f)(7); false testimony to obtain an immigration benefit, INA §101(f)(6); conduct relating to prostitution, alien smuggling, or polygamy, INA §101(f)(3), 212(a)(10)(A); conviction or admission to a “crime involving moral turpitude”, INA ​ ​ §101(f)(3), 212(a)(2)(A); two or more criminal convictions, INA §101(f)(3), 212(a)(2)(B), conduct inconsistent with that of the average citizen in the applicant’s community (residual clause, INA §101(f)) c. Denaturalization i. For concealment of material fact(s) in the application for naturalization; See ​ ​ ​ Maslenjuk v. United States, 137 S. Ct. 1918 (2017) ​ ii. New efforts to denaturalize US Citizens - in a budget request for FY2019, the Trump administration asked for $207.6 million to investigate 887 leads into ​ American citizens who may be vulnerable to denaturalization, and to review another ​ 700,000 immigrant files d. Renunciation of Citizenship (for U.S. born and Naturalized) - 8 U.S.C. 1481(a)(5) i. Previously: could be triggered by serving in a foreign military or naturalizing in a second country ii. Now: requires signing an oath of renunciation voluntarily and with intent to relinquish U.S. Citizenship, in a foreign consulate, and paying a $2,350.00 renunciation fee iii. Approximately 5,000 people renounce U.S. Citizenship annually, many for tax ​ reasons but others for personal and political reasons ​ ​ e. Dual Nationality i. U.S. is pro dual nationality, and obtaining a second nationality will not result in loss ​ ​ of U.S. citizenship absent a formal renunciation 1. US citizens must use their US passports to enter and leave the US 2. Aliens - Any person not a USC or a “national” of the U.S. (i.e. resident of American Samoa) ​ ​ ​ a. Major Distinctions between USC’s and Aliens i. Voting - Only USCs can vote ii. USCs are not subject to U.S. immigration law ​ ​ b. Ancillary Distinctions between USC’s and Aliens i. Public benefits - depending upon whether an alien’s particular status, he or she may be eligible for certain public benefits ii. Probate - higher estate tax exemptions for “US Persons” (USC’s and Legal Permanent Residents (LPR)), and gift tax exemption for gift from USC spouse to alien spouse c. No Difference between USC’s and Aliens i. Selective Service Registration - all males between ages of 18 & 25 must register ​ ​ within 30 days of arrival in the U.S., including Citizens, LPRs, asylees, undocumented, everyone except those in the US on valid non-immigrant visas ​ ​ ii. Taxes - everyone earning a certain income in the U.S. is required to file income taxes 1. Individual Taxpayer Identification Number (ITIN) - used by those not eligible for social security numbers to pay taxes 2. IRS is statutorily prohibited from sharing information with Immigration and Customs Enforcement (ICE) (5 U.S.C. § 552a) 2 3. Tax Revenues - Estimate are that half of undocumented workers pay their ​ ​ taxes; in 2015, they paid $23.6 billion in income taxes (not including those ​ ​ working under the social security number of another person) iii. Right to attend public schools, Plyler v. Doe, 457 U.S. 202 (1981) ​ ​ iv. Emergency Medical Care - Emergency Medical Treatment and Active Labor Act of 1986 (EMTALA) - all hospitals that have emergency departments and receive federal funding must provide urgent care to all patients regardless of ability to pay v. Access to police protection and civil courts 3. Aliens - Where Does the Government Derive Power to Regulate Aliens and Who Wields It? a. Abridged History of US Immigration Law i. First 100 Years 1. Open borders, no immigration law ii. 1875 - 1917 - First Immigration Laws ​ 1. Chinese Exclusion Act of 1882 - provided for the exclusion of persons from China 2. Immigration Act of 1882 - first general immigration law, excluding “idiots, lunatics, convicts and persons likely to become public charges”; see also ​ Immigration Act of 1891 (establishing Bureau of Immigration, providing for ​ medical and general inspection, excludability based on disease and criminal conduct, and status as pauper or polygamist); Immigration Act of 1907 (adding ​ ​ additional exclusion grounds and deportation grounds for prostitution) iii. 1917 - 1951 - First Quota Systems ​ 1. Asiatic Barred Zone Act, 1917 - excluded natives of Asia-pacific triangle 2. Quota Act of 1921 - establishes national origin quota to prevent influx from eastern Europe; see also National Origin Quota Act, 1924 - reduced per ​ ​ country quota, established limit of 150,000 admissions per year, established system for issuing visas abroad iv. 1952 - Immigration and Nationality Act of 1952 (INA) ​ ​ 1. Retained quota system but decreased the per country percentage 2. Established racial quotas for Asians, preferences within quotas for aliens with special skills, established procedures and relief from deportation and denaturalization v. 1965 - Immigration and Nationality Act of 1965 1. Eliminated racial and national origin quotas, but established quotas for Western (120,000) and Eastern (170,000) Hemispheres, changed priority system for skilled workers and family, established labor certificate requirement a. N.B. - Up until this time, racial and national quotas withstood ​ judicial equal protection challenges, as well as overcame President Truman’s attempt to veto the passage of the INA of 1952 for ​ ​ carrying forward racial quotas 3 vi. 1986 - Immigration Reform and Control Act of 1986 (IRCA) 1. Establishes sanctions against employers for hiring aliens not authorized to work in the U.S. 2. Amnesty - for those in the United States prior to January 1, 1982 vii. 1996 1. Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) and ​ Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) - Limited judicial review of deportation based on certain ​ criminal convictions, expanded CIMT criteria, reinstated provisions of mandatory detention of those convicted of deportable crimes, and established more onerous grounds of inadmissibility b. Notable Jurisprudence re: Federal Authority to Regulate Immigration i. Art. I, § 8, cl. 4 of the Constitution empowers Congress to “establish a uniform Rule of Naturalization,” but does not speak to any power to regulate immigration ii. Chae Chan Ping v. U.S., 130 U.S. 581, 609 (1889) (“The Chinese Exclusion Case”) - ​ power to exclude foreigners is “an incident of sovereignty” (also known as the “Plenary Power Doctrine”) iii. Fong Yue Ting v. U.S., 149 U.S. 698, 711 (1893) (holding that “the right to exclude or ​ to expel all aliens [is] … an inherent and inalienable right of every sovereign and independent nation.”) iv. Denmore v. Kim, 538 U.S. 510, 521 (2003) (upholding mandatory detention under the ​ INA and clarifying that “in the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens”) c. Government Agencies which Regulate Immigration i. Department of Homeland Security (DHS): Includes 3 immigration-related departments: ​ ​ 1. Customs and Border Protection (CBP) - jurisdiction w/in 100 miles of ​ ​ all land and sea borders; will effect arrests with probable cause of violation ​ ​ ​ of the Immigration and Nationality Act (INA) 2. United States Citizenship and Immigration Services (USCIS) - ​ adjudicates applications for benefits 3. Immigration & Customs Enforcement (ICE) - enforces US ​ immigration law via: a. Enforcement and Removal Operations (ERO)- arrest fugitive aliens in the US b. Homeland Security Investigations (HSI) - investigate employer violations, human trafficking and assist in locating and arresting fugitive aliens c. Office of the Principal Legal Adviser (OPLA) - represents the government before the immigration courts 4 ii.
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