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Page i
Immigration and
Nationality Law
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Page ii
Carolina Academic Press
Law Casebook Series
Advisory Board
k
Gary J. Simson, Chairman
Case Western Reserve University School of Law
John C. Coffee, Jr.
Columbia University Law School
Randall Coyne
University of Oklahoma College of Law
Paul Finkelman
Albany Law School
Robert M. Jarvis
Shepard Broad Law Center
Nova Southeastern University
Vincent R. Johnson
St. Mary’s University School of Law
Michael A. Olivas
University of Houston Law Center
Kenneth L. Port
William Mitchell College of Law
H. Jefferson Powell
Duke University School of Law
Michael P. Scharf
Case Western Reserve University School of Law
Peter M. Shane
Michael E. Moritz College of Law
The Ohio State University
Emily L. Sherwin
Cornell Law School
John F. Sutton, Jr.
Emeritus, University of Texas School of Law
David B. Wexler
John E. Rogers College of Law, University of Arizona
University of Puerto Rico School of Law
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Page iii
Immigration and
Nationality Law
Cases and Materials
Fourth Edition
Richard A. Boswell
Professor of Law
University of California
Hastings College of the Law
Carolina Academic Press
Durham, North Carolina
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Page iv
Copyright © 2000, 2010
Richard A. Boswell
All Rights Reserved
ISBN: 978-1-59460-439-3
LCCN: 2010920632
Carolina Academic Press
700 Kent Street
Durham, North Carolina 27701
Telephone (919) 489-7486
Fax (919) 493-5668
www.cap-press.com
Printed in the United States of America
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Page v
To my parents Dorothy E. Boswell and William P. Boswell who have taught
me so much about love and the value of all human beings.
and
To Karen, with love and appreciation for her ever constant support.
R.A.B.
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Contents
Acknowledgments
xix
Chapter 1 • Introduction
Immigration Reform
Restructuring of INS into the Department of Homeland Security
Division of Responsibilities between the Departments of State and
Homeland Security
A Multitude of Government Agencies
Department of Homeland Security
Chart 1 U.S. Department of Homeland Security
Department of Justice’s Executive Office for Immigration Review
Department of Labor
Department of State
Public Health Service
A Historical Perspective
The Tarnished Golden Door: Civil Rights Issues in Immigration
Questions
Toward a Global View of the “Immigration Problem”
Graph 1 Migration Rate per 1,000
Graph 2 Net Immigration per 1,000
Graph 3 Refugees as a Percentage of Population
Graph 4 Refugees by Country of Destination in Thousands
Graph 5 (Map) Colombian Civil War
Graph 6 (Map) War in Iraq
Graph 7 Foreign Remittance as a Percentage of GNP
Sharon Stanton Russell, International Migration: Global Trends
and National Responses
R. George Wright, Federal Immigration Law and the Case
for Open Entry
Glossary of Commonly Used Terms in Immigration Law
31
45
Chapter 2 • Immigrants’ Rights in the Social Context
A. Employment Discrimination against Immigrants
1. Title VII of the Civil Rights Act of 1964
2. Section 1981 and Employment Discrimination
3. Unfair Immigration-Related Employment Practices
In re Charge of Zeki Yeni Komsu v. Mesa Airlines
Notes
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B. Education
James Plyer, Superintendent of the Tyler Independent School District
and Its Board of Trustees, et al. v. J. and R. Doe, et al.
Notes
C. Access to Public Benefits
John O. Graham, Commissioner, Department of Public Welfare,
State of Arizona v. Carmen Richardson
F. David Mathews, Secretary of the Department of Health, Education,
and Welfare v. Santiago Diaz et al.
Notes
Federal Welfare Restrictions after 1996
D. State Laws Affecting Foreigners in the United States
California Ballot Proposition 187
League of United Latin American Citizens, et al. v. Pete Wilson, et al.
Notes
1. Recent State Laws Enacted against Foreigners in the United States
Pedro Lozano, et al. v. City of Hazleton
2. The Real ID Act of 2005
Chapter 3 • Admissibility and Removal
A. Substantive Grounds for Inadmissibility
1. Economic
2. Political, Foreign Policy and Security
3. Health
4. Criminal
5. Quasi-Criminal or Moral
6. Miscellaneous
B. The Process of Determining Admissibility
1. The “Removal” Hearing
C. The Power to Determine Who Is Admissible
Chae Chan Ping v. United States
The Chinese Exclusion Case
Notes
Shaughnessy v. United States ex rel. Mezei
Notes
1. Parole of Persons into the United States
D. Determining Admissibility for Detention or Removal
Neil Clark v. Sergio Suarez Martinez
E. Expedited Removal — Removal without Hearing
1. The Application of Expedited Removal
American Immigration Lawyers Ass’n v. Janet Reno, Att’y Gen.
F. The Significance of Admission into the United States
1. The Meaning of “Entry” and “Admission”
G. The Reentry Doctrine
Michael Landon, District Director, INS v. Maria Antonieta Plasencia
Notes
Some Procedural Questions
Some Final Substantive Questions
H. Procedures to Determine Admissibility — Flow Charts
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Chart 1
Chart 2
Chart 3
Chart 4
Chart 5
I. Problem Exercises
Exercise 1
Exercise 2
Exercise 3
Exercise 4
General Procedure to Determine Admissibility
Removal Proceedings (Admission)
Expedited Removal (No Persecution Claim)
Expedited Removal (Persecution Claim)
Expedited Removal (Claim of Status)
Chapter 4 • Removal after Admission
A. Introduction
B. Substantive Grounds of Deportability and Waivers
C. Removal of “Foreign” Terrorists
D. Expedited Removal of Aggravated Felons
E. An Overview of Removal Hearing Procedures
Jack Wasserman, Practical Aspects of Representing an Alien at
a Deportation Hearing
Note
1. Detention or Release
2. Place for “Removal”
F. The Burden of Proof in Removal Proceedings
Elizabeth Rosalia Woodby v. Immigration and Naturalization Service
Joseph Sherman v. Immigration and Naturalization Service
Notes
G. The Burden of Proof Applied
Matter of Vivas
H. The Evolution of Search and Seizure Law
United States v. Felix Humberto Brignoni-Ponce
Note
United States v. Ralph Arvizu
1. Smuggling Operations
2. The Warrant Requirement
Blackie’s House of Beef, Inc. v. Leonel J. Castillo, Commissioner
of the I.N.S.
3. Search or Seizure?
Immigration and Naturalization Service, et al. v. Herman
Delgado, et al.
Notes
I. The Exclusionary Rule
Immigration and Naturalization Service v. Adan Lopez-Mendoza, et al.
Notes
1. Special Registration — Post 9/11 Enforcement
J. Removal Procedure
Chart 1 Removal Proceedings (Timeline)
Chart 2 Removal Procedure and Burdens of Proof
Procedural Questions
K. Employer Sanctions
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1. Employer Sanctions — Extending the Enforcement Powers of DHS
a. Covered Employees
b. Verification Requirements
c. Enforcement Procedures
Collins Foods Int’l, Inc. v. Immigration and Naturalization Service
L. Employment Authorization
8 C.F.R. § 274a.12
Notes
Rogelio Gomez-Arauz v. D. Gene McNary, Comm’r. I.N.S., et al.
M. Problem Exercises
Exercise 1
Exercise 2
Exercise 3
Exercise 4
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Chapter 5 • Protections from Harm
A. Protecting Refugees with Parole
B. Asylum Procedure
Chart 1 Affirmative Asylum Application
1. Asylum Applications as a Defense to Removal
Chart 2 Defensive Asylum Claim
C. Refugee Procedure
Chart 3 Refugee Processing
D. Credibility and the Presentation of Asylum Claims
Karen Musalo, Credibility and Burden of Proof in Asylum Claims
after the Board of Immigration Appeals’ Four 1998 Decisions
Notes
E. Restriction on Removal — Burden of Proof
8 U.S.C. § 1231(b)(3), Sec. 241(b)(3)
Immigration and Naturalization Service v. Predrag Stevic
Chart 4 Restriction on Removal Flow Chart
F. Asylum
Immigration and Naturalization Service v. Luz Marina
Cardoza-Fonseca
Notes
G. The Scope of Protection: Where Does the Statute Apply?
Chris Sale, Acting Comm’r, INS, et al. v. Haitian Centers
Council, Inc., et al.
Notes
H. Grounds of Persecution — Establishing Nexus
United Nations High Commissioner for Refugees, Handbook on
Procedures for Determining Refugee Status
Immigration and Naturalization Service v. Jairo Jonathan
Elias-Zacarias
I. Gender-Based Claims and Social Group
Karen Musalo, The Developing Jurisprudence of Gender-Based Claims
Note
Olimpia Lazo-Majano v. Immigration and Naturalization Service
Note
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In re Fauziya Kasinga
Notes
In re R-ANotes
Francis Gatimi, et al. v. Eric H. Holder, Atty Gen’l
Notes
J. Statutory Bars to Relief
Mamadou Diallo v. Ashcroft
Notes
Immigration and Naturalization Service v. Juan Anibal
Aguirre-Aquirre
K. Temporary Protected Status and Extended Voluntary Departure
Hotel & Rest. Employees Union, Local 25, et al. v. William
French Smith, Attorney General, et al.
Notes
L. Protection under the Convention against Torture
Li Chen Zheng, aka Zheng Li Chen v. John Ashcroft, Attorney General
Note
M. Problem Exercise
Chapter 6 • Persons Coming to the U.S. Temporarily — Nonimmigrants
A. Premium Processing Fee
B. Categories of Nonimmigrant Visas
1. Foreign Government Officials (Diplomatic Personnel) — A Visas
2. Visitors — B Visas
3. Persons in Transit or Traveling without a Visa (TWOV) — C Visa
4. Crew Members — D Visas
5. Treaty Traders or Investors — E Visas
6. Students — F Visas
7. Representatives to or Employees of International
Organizations — G Visas
8. Temporary Workers — H Visas
9. Media Representatives — I Visas
10. Exchange Visitors — J Visas
11. Fiancées or Fiancés of U.S. Citizens — K Visas
12. Intracompany Transferees — L Visas
13. Vocational Students — M Visas
14. Extraordinary Ability in Arts and Science — O Visas
15. Athletes and Performing Artists — P Visas
16. International Cultural Exchange Program — Q Visas
17. Religious Occupations — R Visas
18. Informants Against Criminal or Terrorist Organizations — S Visas
19. North American Free Trade Agreement — TN and Other Visas
20. Victims of Severe forms of Trafficking in Persons — T Visa
21. Humanitarian/Material Witness — U Visa
22. Spouse and Children of Certain Permanent Residents — V Visas
C. Nonimmigrant Visa Procedure
Chart 1 Overseas Visa Applicant
Chart 2 Applicant Seeking Extension and Change of Status
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Chart 3 Applicant’s Request for Change or Extension of
Status Is Denied
Chart 4 Nonimmigrant Visa Chart
D. Pleasure Visa (B-2)
Matter of Healy and Goodchild
Notes
1. Visa Waiver Program
E. Study Visas (F, J and M)
Matter of Yazdani
F. Business Visas (B-1, E)
Jose Garavito, et al. v. Immigration and Naturalization Service
Notes
Matter of Nago
Notes
G. Work Visas (H, L)
1. Temporary Workers (H visas)
Hong Kong T.V. Video Program, Inc. v. David N. Ilchert,
District Director, I.N.S.
Notes
Matter of St. Pierre
Matter of Artee, Corp.
2. Intracompany Transferees (L Visas)
Matter of Chartier
Matter of Siemens Medical Systems, Inc.
H. Limitations on Status
1. Extension of Status
Egil D. Lauvik v. Immigration and Naturalization Service
Notes
2. Change of Status
Lun Kwai Tsui v. Attorney General of the United States
Notes
Presumption of Immigrant Intent
3. Maintenance of Status
Khalid Mahmood v. Raymond J. Morris, District Director, INS
Note
I. Revocation of Nonimmigrant Visas
Chart 5 Nonimmigrant Visa Flow Chart
8 U.S.C. § 1201(i), Sec. 221(i)
Nikolaas “Kallie” Knoetze v. Dep’t of State
Notes
J. Problem Exercises
Exercise 1
Exercise 2
Exercise 3
Chapter 7 • Family-Based Immigrants
A. Immigrants Admitted without Numerical Limits
B. Immigrants Subject to Numerical Limits
C. Allocation of Visas
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Refugio Silva, et al. v. Griffin B. Bell, United States Attorney
General, et al.
Notes
D. Definition of “Child”
8 U.S.C. § 1101(b), Sec. 101(b)
1. Child Status Protection Act
2. Constitutional Issues
Ramon Martin Fiallo, etc., et al. v. Griffin B. Bell, Attorney
General of the United States
Notes
3. Adoption
Karen Yuen Fong Young v. Janet Reno
Matter of Garcia-Rodriguez
Kuli Haapai Kaho, et al. v. David N. Ilchert, District Director,
Immigration and Naturalization Service
4. Stepchildren
Matter of McMillan
Notes
5. “Legitimacy”
Matter of Vizcaino
Note
6. Orphans
Matter of Greenwood
7. Filial Relationships
Matter of Mahal
E. Spousal Relationships
1. The Definition of “Marriage”
Matter of McKee
2. Restrictions on Immigration Benefits Notwithstanding the
Existence of a Marriage
Immigration and Marriage Fraud Amendments of 1986
Paul and Mona Anetekhai v. Immigration and Naturalization Service
Notes
Presumptions of Fraud
Matter of Patel
Notes
F. Exemption from the Petition Requirement
G. Procedural Flow Charts
Chart 1 Spousal Relation Flow Chart
Chart 2 Child-Parent Relation Flow Chart
H. Problem Exercises
Exercise 1
Exercise 2
Chapter 8 • Employment-Based Immigrants
A. Labor Certification Requirements
Chart 1 Visa Office Bulletin (August, 2009)
Chart 2 Visa Office Bulletin (August, 2008)
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B. Labor Certification and Its Relationship to the Employment-Based
Preferences
Nooria Madany, et al. v. William French Smith, et al.
Notes
Production Tool Corp., et al. v. Employment and Training
Administration, et al.
C. The Significance of Labor Certification
Matter of Raol
Note
D. Recruitment as Part of the Certification Process
Industrial Holographics, Inc., et al. v. Raymond J. Donovan,
Sect’y of Labor, et al.
Warmtex Enterprises v. Lynn Martin, Sect’y of Labor
E. Business Necessity
Pancho Villa Restaurant, Inc. v. U.S. Dep’t of Labor
Actual Minimum Job Requirements in Labor Certifications:
Application of Title 20, Section 656.21(B)(6) of the Code
of Federal Regulations to Experience or Training Gained
with the Employer
F. Qualifying “Experience” for Certification
Matter of Lam
G. Issues Involving Labor Certifications
H. Procedural Flow Chart
Chart 3 Labor Certification
Chapter 9 • Permanent Residency for Persons Already in the United States
A. Adjustment of Status
B. Procedural Flow Charts
Chart 1 Affirmative Adjustment Application before USCIS
Chart 2 Adjustments Application as Defense from Removal
C. Statutory Reference
8 U.S.C. § 1255, Sec. 245
1. Qualifying for Adjustment
a. “[I]nspected and [A]dmitted . . .”
Matter of Areguillin
Notes
2. Unauthorized Employment Restriction
8 U.S.C. § 1255, Sec. 245
Matter of Hall
Notes
3. “Preconceived Intent” and Adjustment
Matter of Cavazos
Lolo Mamoka, et al. v. Immigration and Naturalization Service
Matter of Kotte
Notes
4. Marriage While in “Removal” Proceedings
a. Conditional and Temporary Residence
Matter of Enriquez
Note
Problem
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D. Additional Provisions Allowing for Adjustment of Status
1. Section 245(i) Adjustment
2. Registry
3. Amnesty under the 1986 Act
4. The Chinese Student Protection Act
Gee-Kwong Chan, et al. v. Janet Reno, Attorney General of
the United States, et al.
5. Cuban Refugee Adjustment
6. Nicaraguans, Cubans, Guatemalans, Salvadorans and
Eastern Europeans (NACARA)
7. Haitian Relief and Adjustment Act
8. USA PATRIOT Act of 2001
E. Loss of Permanent Residency
1. Abandonment of Permanent Residency
Matter of Huang
Notes
2. Rescission of Adjustment
8 U.S.C. § 1256, Sec. 246
Matter of Saunders
Matter of Belenzo
Notes
3. If Not Rescission — Removal Proceedings
Matter of Awwal
Notes
Chapter 10 • Relief from and Amelioration of Grounds for Removal
A. Relief from Removal
1. Voluntary Departure
Oscar Alberto Cañas-Cuadras v. Immigration and
Naturalization Service
Notes
2. Deferred Action
O.I. 103.1a(l)(ii)
Matter of Quintero
Notes
3. Cancellation for Long-Term “Non-Permanent Residents”
What Went Wrong with Wang?: An Examination of INS v. Wang
Notes
a. What Is “Hardship”?
In re O-J-ONotes
Procedural Notes
B. Waivers of Grounds for Removal and Inadmissibility
1. Cancellation of Removal — Long-Term Permanent Residents
Immigration and Naturalization Service v. Enrico St. Cyr
In re Florencio Alvarado-Alvino
In re Cristobal Perez
Notes
2. Crimes
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Aggravated Felonies — 8 U.S.C. § 1101(a)(43), Sec. 101(a)(43)
Notes
3. Interpretation of the Term “Aggravated Felony”
Josue Leocal v. John D. Ashcroft
Alberto Gonzales v. Luis Alexander Duenas-Alvarez
Jose Antonio Lopez v. Alberto Gonzales
a. What Is a “Conviction”?
In re Mauro Roldan-Santoyo
Hector Tito Lujan-Armendariz, Petitioner v. Immigration and
Naturalization Service, Respondent
Mauro Roldan-Santoyo, Petitioner v. Immigration and
Naturalization Service, Respondent
Note
Chart 1 Waiver Chart
b. Waivers for Crimes
8 U.S.C. § 1182(h), Section 212(h)
In re Jose Mendez-Moralez
Notes
4. Other Waivers
a. Waivers for Nonimmigrants
Matter of Hranka
Note
b. Waivers for Fraud or Material Misrepresentation — Sections
212(i) and 237(a)(1)(H) Waivers
In re Luis Felipe Cervantes-Gonzalez
Notes
c. Waiver for Prior Removal
Matter of Lee
Notes
d. Miscellaneous Waivers
C. Problem Exercise
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Chapter 11 • Citizenship — Acquisition and Loss
A. Citizenship — A Historical Perspective
Dred Scott v. John F.A. Sandford
Notes
B. U.S. Citizenship and Its Acquisition
William P. Rogers, Sect’y of State v. Aldo Mario Bellei
Notes
Lorelyn Penero Miller v. Madeleine K. Albright, Secretary of State
Notes
C. Citizenship through Naturalization
D. Loss of Citizenship — Expatriation
Cyrus Vance, Sect’y of State v. Laurence J. Terrazas
Expatriation of United States Citizens: Attorney General’s
Statement of Interpretation
1. Dual Citizenship
E. Loss of Citizenship — Denaturalization
1. Grounds for Denaturalization
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2. Effect of Denaturalization
Feodor Fedorenko v. United States
Notes
3. Administrative Denaturalization
Irina Gorbach, et al. v. Janet Reno, Att’y Gen., et al.
Note
F. Flow Charts
Chart 1 Naturalization Flow Chart
Chart 2 Loss of Nationality
Chart 3 Denaturalization
Chapter 12 • Administrative Appeals and Judicial Review
A. Administrative Review
1. The Department of State — Bureau of Consular Affairs, Exchange
Visitor Waiver Review Board
2. The Department of Labor — Board of Alien Labor Certification
Appeals (BALCA)
Chart 1 Procedural Flow Chart — Labor Certification Appeals
3. Secretary of Health and Human Services — Public Health Service
4. The Department of Justice — Review by the Attorney General
5. U.S. Immigration and Customs Services (USCIS) — Administrative
Appeals Unit (AAU)
Chart 2 Procedural Flow Chart — Administrative Review
of USCIS Decisions
6. Office of the Chief Administrative Hearing Officer (OCAHO)
7. Executive Office for Immigration Review — Board of Immigration
Appeals and Immigration Judges
8. Jurisdiction of the Immigration Judge
Matter of Roussis
Notes
9. Venue for the Removal Hearing
Matter of Rahman
Notes
10. Motions to Reopen and Motions to Reconsider
In re H-ANotes
Chart 3 Procedural Flow Chart—Board of Immigration Appeals
B. Judicial Review
1. Review of Final Orders of Removal
2. A Rule of Thumb to Understanding “Final Orders”
Chart 4 Procedural Flow Chart — Judicial Review of Final
Orders of Removal
3. Administrative Procedure Act and Federal Question
4. Limitations on Review
Janet Reno, et al. v. American-Arab Anti-Discrimination Comm., et al.
Notes
Immigration and Naturalization Service v. Fredy Orlando Ventura
5. Habeas Corpus Review
David Cole, Jurisdiction and Liberty: Habeas Corpus and Due
Process as Limits on Congress’ Control of Federal Jurisdiction
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Note
Immigration and Naturalization Service v. Enrico St. Cyr
Franklin Henderson, Saul Navas, Engin Yesil, and Guillermo
Mojica v. Immigration and Naturalization Service, et al.
Notes
6. Injunctive Relief
Antonio Barahona-Gomez, et al. v. Janet Reno, Att’y Gen., et al.
7. Varying Forms of Review
Teodor G. Paunescu and Lelia A. Paunescu v. Immigration and
Naturalization Service
Notes
Elian Gonzalez, a Minor, by and through Lazaro Gonzalez, as Next
Friend, or Alternately, as Temporary Legal Custodian v. Janet
Reno, Attorney General of the United States, et al.
Notes
934
935
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960
960
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967
967
973
973
987
Table of Cases
989
Table of Authorities
997
Articles and Books Cited
1007
Index
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Acknowledgments
In the very first edition of this text I called upon a quote by the late Chief Judge Irving R. Kaufman of the United States Court of Appeals for the Second Circuit in a case called
Lok v. INS.1 There the judge noted that the Internal Revenue Code and the Immigration
and Nationality Acts as examples of congresses “ingenuity in passing statutes certain to
accelerate the aging process of judges.” That was an apt description then as it is now. Indeed the immigration statute has probably increased in complexity since 1977. One thing
that we have seen since that time in 1977 is that immigration law and policy have constantly been the focus of national attention.
So much has occurred since the publishing of the first edition of this book in 1987. While
there have been many changes in the law, one thing that has not changed is that immigration law has remained intricately related to how the people of this country view themselves in the present and what they expect to be in the future.
Since the first time that I began to study and work in this field I have been moved by
the countless life stories of the many immigrants who were either forced or chose to leave
their homes in search of a better life. Each person has a story to tell which will resonate
with anyone who is willing to listen. These stories have served as a constant reminder for
those of us who spend so much of our time in this field of law. This appreciation of the
human stories that make up immigration cases is what I hope the readers will examine
and reflect on as they explore the law and policies in his field. One small gesture in this
regard is that each case provides the reader with the complete name (where possible) of
the persons involved.
As is the case with any publication there are many more people to thank than there is
space to adequately acknowledge their contributions. I would first thank those human
beings who constituted the flesh and blood behind the cases that are contained on these
pages. For each petitioner, respondent, appellant or plaintiff, there are countless other
loved ones and family members whose futures were forever changed by the judicial or
administrative decisions. I am forever indebted to the luminaries of this field who have
inspired me and left their indelible marks—the late Charles Gordon, Jack Wasserman, David
Carliner and Maurice Roberts. My deepest appreciation and respect to Ira Kurzban who
has been a source of knowledge, encouragement and admiration. I also wish to thank
the many students who I have had the privilege to engage in the effort to try to better understand immigration law and policy over the last quarter of a century. I particularly
want to acknowledge the research support from the Hastings Law Library staff, of Hilary
Hardcastle, Vincent Moyer and Grace Takatani. During the last year I was fortunate to have
a most able and diligent research assistant, Amy Leung who proved herself to be most
invaluable. Throughout the years my students have asked very difficult and important
1. 548 F.2d 37 (2d Cir. 1977).
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ACKNOWLEDGMENTS
questions and have given me valuable information to help make this book a more effective teaching tool. My deepest and greatest appreciation goes to my life partner, Karen
Musalo who has been there from the very first edition and has provided a critical eye and
to given me the support without which this could not have been completed.
Notwithstanding all of the wonderful and dedicated supporters on this project I assume
full responsibility for any errors, omissions or misstatements that might be found within
these pages.