IMMIGRATION LAW
OUTLINE
I.
IMMIGRATION AND THE CONSTITUTION
A.
SOURCES OF THE FEDERAL IMMIGRATION POWER
1.
The Enumerated Powers
a.
The Commerce Clause
(1)
(2)
(3)
(4)
b.
The Migration or Importation Clause
(1)
(2)
c.
d.
2.
Henderson v. Mayor of New York (1875).
Dual theory of interstate and international commerce effects.
Supreme Court invalidated States’ attempts to regulate immigration
in the nineteenth century.
Head Money Cases (1884): Court for the first time considered the
constitutionality of a federal statute that regulated immigration and
held that Congress had the power to regulate immigration via the
Commerce Clause.
Questionable if this applies to immigrants as it was written in the
context of slaves.
Implication is that Congress may prohibit migration and importation
after 1808.
The Naturalization Clause: more about the rules of naturalization.
The War Clause: foreign policy.
Implied Constitutional Powers (Focus on sovereignty and foreign policy & war clause)
•
Chae Chan Ping v. United States (the Chinese Exclusion Case) ⇛ still good law in
that Congress still has the right to exclude a group of people in its immigration policy.
Facts: Π attacked the validity of the 1888 Act (discontinuation of a certificate program
allowing the reentry of Chinese laborers if they temporarily leave the U.S.) on two
grounds:
(1) It violated an 1880 treaty between the U.S. and China; and
(2) It violated the U.S. Constitution. Didn’t say that it was a violation of a
specific clause but that the constitution doesn’t give Congress the
authority to deport.
Issue: Was it beyond Congress’ power to ban the reentry of Chinese laborers into the
United States?
Analysis:
1
•
•
•
•
•
•
Court stated that the statute has the same weight as a treaty and because it
was enacted after the treaty the statute prevails.
The U.S., as a sovereign nation (see p. 13) has complete jurisdiction to
restrict or exclude aliens.
The determination of when to exclude aliens is up to the judiciary but it is the
legislature that determines exclusion through enacting laws.
Court says that the Chinese won’t assimilate but were they really given the
opportunity especially they weren’t allowed to become citizens?
Foreign Policy & Foreign Relations
• Power in the constitution to deal with war and foreign relations.
• Plenary power of Congress & the Executive to enact immigration laws to
exclude.
Case focuses on two aspects:
(1) Sovereignty of the U.S.
(2) Foreign Policy and the War Clause
There is no power by the judiciary to decide if the statute is constitutional ⇛ it
is solely on the political branch.
Precise Rule of Law: The federal government has the power to exclude foreigners
from the country whenever, in its judgment, the public interest requires such
exclusion.
•
3.
Beyond the Constitution
a.
b.
c.
4.
Curtiss-Wright Theory: Sovereignty from the British Crown passed to the
states in their collective capacity upon the Declaration of Independence. The
only powers Congress intended to reallocate were those the states
possessed in their individual capacities so that after ratification of the
Constitution all sovereign powers remained with the states in their collective
capacity (that is, with the federal government). Therefore, no federal
sovereign power is dependent on an affirmative constitutional grant.
Obviousness so there is no need to enumerate anything specific.
Other nations have the power to exclude.
Residual State Power
a.
States could not regulate immigration individually for two reasons:
(1)
(2)
b.
c.
Need for uniformity for immigrants from New York to San Francisco.
The passage of laws concerning immigration belongs to Congress
not to the States otherwise a single State could cause international
problems for the entire nation.
State actions regarding immigration have been struck down.
In the absence of federal legislation dicta gives the states leverage.
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B.
LIMITS TO THE FEDERAL IMMIGRATION POWER
1.
The foundation cases:
•
Nishimura Ekiu v. United States (1892)
Facts: Π arrived in U.S. from Japan with $20.00; told immigration officers that her
husband had been living here for a year and that he would call her from a
prearranged hotel. Immigration officers didn’t believe her. She was excluded as a
public charge (someone how will need public support exclusion based on economic
standing).
Analysis:
• Court held that the power to regulate immigrants is in the national
government, specifically the political department via the Commerce Clause.
• The immigration officer is the fact-finder at the ports and that is the person to
whom Congress has left the decision. The decision is not left to the Court.
• Does the Court hold that Congress didn’t violate due process because factfinding is left to the administrative official instead of the Court? Or, does the
Court hold that Congress alone decides what process is constitutionally due in an
exclusion case?
• Π filed a write for habeas corpus because of a due process violation.
• Congress determines due process, there is no due process limit on
Congress’s power to exclude.
• Are there limits from the first 10 Amendments? The limits are directed toward
the President and the Legislature.
Precise Rule of Law: Congress can properly limit the judiciary from reviewing findings
of fact made by executive officials assigned the duty of reviewing immigration
requests without denying due process of law to potential immigrants.
•
Fong Yue Ting v. United States (1893)
Facts: A law enacted stated that all Chinese laborers had to apply to the collector of
the internal revenue of their respective districts for a certificate of residence. Those
who don’t within one year of the passage of the Act would be unlawfully in the U.S.
and can be arrested and taken before a Judge. If the laborer can establish that there
was an unavoidable cause preventing him from getting his certificate and a white
witness can attest that he was a resident of the U.S. at the time of the passage of the
Act then he can get a certificate. Three Chinese laborers challenge the
constitutionality of the white witness requirement.
Analysis:
• The U.S. has the right to refuse to admit a foreigner and to compel a
foreigner to leave;
• Congress could have deported the Πs without certificates if the statute had
been written as such, but the statute allowed for a hearing;
• White witness is justified because Asians are not known to take an oath to
testify truthfully.
• Deportation is not a punishment but a method of enforcement to those who
do not comply with the conditions set by the government for residence in the U.S.
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•
Dissent of Brewer:
• The penalties of the Act are directed at persons lawfully residing in the
U.S.;
• These persons are within the protection of the Constitution;
• The penalties deprive them of liberty and impose punishment without due
process.
• A domiciled alien should be afforded the same protection as a naturalized
citizen they are not travelers but resident aliens.
• U.S. can constitutionally forbid Chinese from entering the U.S. but once
they are in residence here they cannot deport them if it is unconstitutional
and the Constitution does not say anywhere that you can deport a
resident alien.
• The 5th and 14th Amendments speak of “person” not “citizen”.
• Deportation is punishment as it deprives a person of their liberty, removal
from their home, family, business and property.
• Punishment implies a trial.
• The mere discretion of an official as to the right to liberty and residence is
not enough protection.
• With no limits sovereignty becomes dangerous.
• Dissent of Field (wrote opinion in Chinese Exclusion Case):
• There is a big difference between exclusion and deportation.
• The political branch does not have the right to arbitrarily deport. If the
government had this power it would be a despotic power.
• Still believes that Congress has the right to exclude but not to deport
aliens.
• Dissent of Fuller: “It is, in effect, a legislative sentence of banishment, and, as
such, absolutely void.”
Precise Rule of Law: Congress, having the right to expel aliens of a particular class,
undoubtedly has the right to provide and carry out a system of registration and
identification of the members of that class.
Fong Yue Ting is still good law.
a.
Whether deportation is punishment is important in that all deportation proceedings are
subject to all of the many constitutional safeguards applicable in criminal proceedings.
2.
Modern Developments
a.
The Chinese Exclusion Case, Nishimura Ekiu and Fong Yue Ting can be
viewed as the three Basic building blocks of the “plenary” congressional
power over immigration:
(1) Chinese Exclusion Case: inherent federal power to exclude aliens;
(2) Nishimura Ekiu: appeared to reject due process limits on the exercise of
that power; and
(3) Fong Yue Ting: extended the principles of both cases from exclusion to
deportation.
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b.
Procedural Due Process in Exclusion Cases
(1)
(2)
(3)
(4)
•
Due Process does not require judicial fact-finding.
Knauff: Π an alien wife of a U.S. citizen. Finding of court was that
she was inadmissible and was excluded from entry. The Court
classified her admission as a privilege rather than a right and
characterized the exclusion of an alien as a fundamental sovereign
act “inherent in the executive power to control the foreign affairs of
the nation.”
If entry would be prejudicial and alien is determined to be a danger
then reasons can be kept secret as to why alien has been denied
access.
“Whatever the procedure authorized by Congress is, it is due process
as far as an alien denied entry is concerned.” (p.47)
Shaughnessy v. United States ex rel. Mezei
Facts: Π lived in the U.S. as a legal permanent resident from 1923-1948 when he
went abroad to Rumania. Π was delayed when denied an exit visa for 19 months
when he remained in Hungary. Received entry visa from American Consul in
Budapest and arrived in U.S. via France on 2/9/1950 when he was temporarily
excluded from the U.S. by an immigration inspector acting pursuant tot he
Passport Act (authorized President to impose additional restrictions on aliens
entering or leaving the U.S. during periods of international tension and strife.
Under it, the Attorney General acting for the President, may shut out aliens whose
“entry would be prejudicial to the interests of the U.S. Furthermore, the Attorney
General need not be compelled to disclose the evidence underlying his
determinations). Π was permanently excluded for security reasons and was
denied entry to a dozen Latin-American countries as well as France and Great
Britain. Trapped on Ellis Island.
Issue: Whether the Attorney General’s continued exclusion of respondent without
a hearing amounts to an unlawful detention, so that courts may admit him
temporarily to the U.S. on bond until arrangements are made for his departure
abroad?
• Π asserts unlawful confinement on Ellis Island and sought relief through a
series of habeas corpus proceedings.
• District court paroled Π, App. court affirmed stating that to “continue an
alien’s confinement beyond that moment when deportation becomes patently
impossible is to deprive him of his liberty.” The App. court called this a case
of exclusion NOT deportation.
Analysis:
• Ellis Island is not considered the U.S.
• There is no consideration given to previous entrances to the U.S. making
each entrance “new”.
• Π left without papers and the length of his absence broke the “continuous
residence” status he held.
5
•
Harboring an alien at Ellis Island pending determination of entrance is a
“temporary harborage, an act of legislative grace, [bestowing] no additional
rights.”
• An alien can be released on bond but not when that alien is deemed a
security risk.
• Court doesn’t have jurisdiction to review Congress’s decision to exclude not
a deportation proceeding.
• Mentions Chew where the court assimilated Π’s status as a continuous
resident because he was a seaman and gone for months at a time.
• Mezei differs because he didn’t get the proper papers to leave/return and
was behind the Iron Curtain for 19 months.
Dissent:
• Not surprising that no country will take him since the U.S. now calls him a
threat to security but won’t divulge why.
• Deprivation of liberty but must determine if this deprivation is a denial of due
process of the law.
• Fifth Amendment: reasonable general legislation reasonably applied to the
individual.
• If a law is unfair to U.S. citizens then a defense of fairness against more
helpless and handicapped aliens is not possible.
• Does an excluded alien have any rights? When an alien has no place to go
(denial of entrance by other countries) then a hearing is needed so that the
alien can be informed of the government’s grounds for exclusion.
• Problem when Communism is seen as the only danger because then the
U.S. ignores other dangers.
• Congress can admit aliens and decide by what means they can be excluded
but can’t take away an alien’s life, liberty or property without due process.
Precise Rule of Law: If the attorney general excludes, for national security
reasons, an alien that no other country will admit, the continued exclusion will not
constitute the sort of unlawful detention that would permit a court to admit him
temporarily on bond.
c.
Procedural Due Process in Deportation Cases: More Cracks in the Plenary
Congressional Power: Nishimura Ekiu, Knauff, and Mezei hold that aliens in
exclusion proceedings simply could not invoke the due process clause at all –
even when they were returning residents and even when the practical
consequence of exclusion was indefinite detention.
(1)
(2)
•
Kwong Hai Chew and Plasencia created exceptions for most
returning residents.
Rodriguez-Fernandez suggested that even initial entrants might well
be able to invoke the due process clause when challenging their
detention pending exclusion.
Kaoru Yamataya v. Fisher (The Japanese Immigrant Case)
Facts: A Japanese citizen was deported on the ground that she had been
inadmissible at the time of entry. Suspected of becoming a public charge.
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Issue: If an immigrant, already admitted to the country, is subsequently excluded
based upon mistaken admission, does due process require a judicial hearing for
exclusion?
Analysis:
• Congress can exclude anyone it wishes before landing in U.S.
• Deportation requires due process procedure.
• Secretary of the Treasury or any executive officer cannot at any time within
the year limited by the statute arbitrarily cause an alien, who has entered the
country (even illegally) to be taken into custody and deported without giving
the opportunity to be heard.
• Π had notice of the investigation and other considerations were evident (see
p. 64) and these considerations cannot justify the intervention of the courts.
• No judicial review is warranted and the language barrier has no bearing.
• Cites Fong Yue Ting as precedent but then moves away from it.
• “Court has never held, nor must we now be understood as holding, that
administrative officers, when executing the provisions of a statute involving
the liberty of persons, may disregard the fundamental principles that inhere in
‘due process of law’ as understood at the time of the adoption of the
Constitution.” (p. 64)
• No officer can arbitrarily deport someone.
• Π states she didn’t know what was going on because of language barrier.
• Deportation is governed by due process the limitation is that Π didn’t
exhaust all possible administrative remedies.
Precise Rule of Law: If an immigrant, already admitted to the country, is
subsequently excluded based upon mistaken admission, a factual inquiry by an
executive officer will suffice to comport with due process requirements.
d.
•
Substantive Applications of the Plenary Power Doctrine ⇛ Substantive Due
Process in Deportation
Harisiades v. Shaughnessy
Facts: Πs legal permanent residents who were at one time members of the
Communist Party (2 resigned and 1 was kicked out). Government initiated
deportation proceedings in accordance with statute.
Issue: May the government constitutionally deport a resident alien because of
membership in the Communist Party which terminated prior to the 1940 Alien
Registration Act?
• Πs claim three things:
1.
Act deprives them of liberty without due process of law in violation of
the Fifth Amendment;
2.
Act abridges their freedoms of speech and assembly in contravention
of the First Amendment; and
3.
Act is an ex post facto law which Congress is forbidden to pass by
Art. I, § 9, cl. 3 of the Constitution.
• Due Process violation argument
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•
Claimed a vested right as a permanent resident and therefore the
grounds for deportation must be reasonable within Equal Protection
framework.
• Court questions whether the fear of Communism is reality or fantasy (p.
70) and on the failure of Πs to naturalize (though not concerned with the
fact that as non-citizens they contribute to U.S.)
• First Amendment argument
• Doesn’t protect from advocating violent because under Constitution you
can “attack” by ballot (though aliens can’t vote).
• Reno (Supp. p. 3)
• Ex Post Facto argument
• No longer members but since 1923 there’s been notice of the U.S.’s
attitude re Communism.
• Dissent talks about the U.S. philosophy of inherent forgiveness and
redemption.
Precise Rule of Law: The government may constitutionally deport a resident alien
because of membership in the Communist Party which terminated prior to the
1940 Alien Registration Act.
•
Fiallo v. Bell (p.78)
• Out-of-wedlock children
• Court applies rational basis test.
• In dicta court states that cases (though none were cited) reflect the need of
the judiciary to review the power of Congress to regulate the admission and
exclusion of aliens. (p. 79)
• Limited review of substantive due process over admission to U.S.
• Still, no court can say that the ground for deportation is invalid under both
Fiallo and Harisiades.
•
Francis v. INS
Facts: Π a permanent alien who had committed the deportable offense of
possession of marijuana, sought discretionary relief to remain in the country.
• § 212(c) relief: even if convicted of a felony if you can show that alien is a
good person then deportation can be suspended. But this applied only to
exclusion trying to re-enter and acknowledge that alien has been convicted
of a felony.
• Π states that it shouldn’t matter if he’s in deportation or exclusion
proceedings because of Equal Protection.
Issue: If an act of Congress permits deportable alien residents to reenter the
country on a discretionary basis, but does not grant such discretionary permission
to remain to aliens who have never left the country, does this distinction deprive
resident aliens of equal protection of the laws?
Analysis: Court says the law is irrational.
Precise Rule of Law: If an act of Congress permits deportable alien residents to
reenter the country on a discretionary basis, but does not grant such discretionary
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permission to remain to aliens who have never left the country, then the act
deprives resident aliens of equal protection of the laws.
•
INS v. Chadha
• Separation of powers.
• Π overstayed visa and was found deportable but immigration judge granted
an extension but the House/Senate has the power to nullify.
• Π challenged the one-house veto on a separation of powers violation
argument.
• Is this issue non-justiciable? No, because it is up to the court to determine if
Congress’s action is constitutional.
• Court feels free to talk about the Constitutional protection because case is not
about immigration issue but separation of powers and the relationship
between the court and congress.
• Only case where the court invalidates a statute on deportation.
Facts: pursuant to the INA’s legislative veto provision, the House of
Representatives passed a resolution that ordered the attorney general to continue
with a discretionarily suspended deportation proceeding.
Issue: May Congress or the executive decide the constitutionality of a statute?
Precise Rule of Law: Whether a statute is constitutional is for the courts to decide.
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II.
IMMIGRANT CATEGORIES
A.
OVERVIEW
1.
2.
Refer to INA § 101(a)(15)
Immigrants:
a.
b.
c.
3.
B.
May remain in the U.S. permanently so long as they refrain from behavior
that would make them deportable.
May work.
Qualify for some government-provided benefits not available to
nonimmigrants.
Permanent resident status can be lost by leaving the U.S. too often, for too long, or
with the wrong intentions.
HISTORICAL BACKGROUND
1.
2.
3.
1776-1875: One Hundred Years of Open Frontier.
1875-1917: Institution of Federal Controls on Immigration.
1917-1924: Solidification of Restrictive Immigration Policies.
a.
b.
4.
5.
6.
In 1917 literacy test enacted and the creation of an Asiatic Barred Zone to
shut out Orientals.
Numerical restrictions enacted in 1924.
1924-1952: Legislation (Displaced Persons Act)
The Immigration and Nationality Act of 1952
Legislative Activity After 1952:
a.
b.
Proposals for Amendment of McCarran-Walter Act.
The 1965 Amendments
(1)
(2)
(3)
(4)
(5)
(6)
Ended national origins quota system.
Abolished special immigration restrictions relating to Orientals and
forbade immigration discriminations because of race, sex, nationality,
place of birth, or place of residence.
Fixed a unified immigration quota, for areas outside the Western
Hemisphere of 170,000 annually.
Established categories of immigrants exempt from worldwide
numerical restrictions: Immediate relatives of U.S. citizens and
Special Immigrants.
Established new system of quota priorities.
Ended the exemption of Western Hemisphere natives, other than
immediate relatives of American citizens from numerical restrictions.
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7.
8.
The Refugee Act of 1980
1986 Legislation:
a.
b.
9.
The Immigration Act of 1990:
a.
b.
10.
11.
b.
b.
C.
Expanded the deportation grounds for aliens convicted of crimes and
narrowed the provisions for discretionary relief for such aliens.
Eliminated some of the procedural safeguards for certain aliens found in the
U.S. without having been inspected, and for asylum seekers who appear at
ports of entry without proper documents.
Personal Responsibility and Work Opportunity Reconciliation Act of 1996:
a.
13.
Codified “temporary protected status”, a discretionary remedy designed for
aliens who have fled war, natural disaster, or certain other dangers but who
do not qualify for asylum.
Revamped exclusion grounds.
Miscellaneous and Technical Immigration and Naturalization Amendments of 1991.
Antiterrorism and Effective Death Penalty Act of 1996:
a.
12.
The Immigration Reform and Control Act of 1986: imposition of sanctions on
employers of undocumented aliens; prohibitions on certain forms of
discrimination; legalization, or amnesty; and agricultural workers.
The Immigration Marriage Fraud Amendments of 1986
Makes even permanent resident aliens ineligible for most federal meanstested benefits, including food stamps and supplemental security income.
Authorizes states to adopt similar disqualifications with respect to state
benefits.
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA)
THE MORALITY OF IMMIGRATION RESTRICTIONS
1.
Roger Nett, The Civil Right We Are Not Ready for: The Right of Free Movement of
People on the Face of the Earth
a.
b.
c.
d.
e.
Equal opportunity underlies civil rights.
Free and open movement is a fundamental right.
Analogizes to desegregation.
Political dimension: asylum.
Material dimension: why should where you’re born affect your life?
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2.
D.
Is the government on any firmer a moral footing when it excludes individuals because
of their place of birth or their parentage than either a private or governmental
employer or university is when it rejects applicants because of their race?
THE FUNDAMENTALS: QUOTAS AND PREFERENCES
1.
Immigrants Exempt from the General Quotas:
a.
b.
Immediate Relatives: spouses, parents, and children of U.S. citizens, except
that in the case of a parent the citizen son or daughter must be 21 years of
age ⇛ INA § 201(b)(2)(A)(i).
Aliens who have already been lawfully admitted for permanent residence and
are returning from temporary visits abroad are not counted against the quota
⇛ INA §§ 101(a)(27)(A), 201(b)(1)(A).
c.
d.
e.
Former U.S. citizens ⇛ INA §§ 101(a)(27)(B), 201(b)(1)(A).
Children born to permanent resident aliens temporarily abroad INA
§201(b)(2)(B).
Aliens who receive certain permanent forms of discretionary relief from
removal ⇛ INA § 201(b)(1)(C,D,E).
f.
g.
Aliens fleeing persecution ⇛ INA § 201(b)(1)(B) but they are subject to
special quotas of their own.
Parolees: Attorney General has discretion to “parole” an alien into the U.S.
temporarily ⇛ INA § 212(d)(5). A grant of parol is not considered an
admission.
2.
Immigrants Subject to the General Quotas
a.
Programs and Ceilings
(i)
(ii)
(iii)
b.
Family-sponsored immigrants: INA § 203(a).
Employment-based immigrants: INA § 203(b).
Diversity immigrants (ceiling fixed at 55,000).
Both have ceilings that
change from year to year.
Preference Categories and Sub-Ceilings
(1)
Family-sponsored program is subdivided into four “preference
categories”. See INA § 203(a).
(a)
(b)
(c)
(d)
First: sons and daughters of U.S. citizens.
Second: spouses and unmarried sons and daughters of
lawful permanent resident aliens.
Third: married sons and daughters of U.S. citizens.
Fourth: brothers and sisters of over-age-21 U.S. citizens.
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(2)
Employment-based immigrants have five preferences. See INA §
203(b).
(a)
(b)
(c)
(d)
(e)
E.
First: “priority workers”.
Second: “members of the professions holding advanced
degrees” and “aliens of exceptional ability”.
Third: “skilled workers, professionals” [without advanced
degrees].
Fourth: “special immigrants” including religious workers and
certain long-term foreign employees of the U.S. government.
Fifth: “employment creation” primarily entrepreneurs who
invest at least $1,000,000 each in enterprises that employ at
least ten Americans.
FAMILY IMMIGRATION
1.
Spouses
a.
•
Same-Sex Marriages
Adams v. Howerton
Facts: Π, an American citizen, challenged the ∆’s (INS) refusal to accord spousal status
to his homosexual companion, an alien.
Issue: Is it unconstitutional to deny same-sex marriages the same relief from immigration
restrictions that is accorded to heterosexual marriages?
Analysis:
• INS says same-sex marriage doesn’t allow sponsorship.
• 2 point process to analyze:
• Not clear if Colorado recognizes same-sex marriages but that doesn’t matter
because federal law controls immigration law.
No
• Statutory interpretation of how federal law determines what a spouse is: Same
Sex
• Give words ordinary meaning (looking up “spouse” in dictionary).
Marriages
• Interpret statute as a whole at time there was a mandatory
exclusion of homosexuals.
• Deference given to agency interpretation in terms of what the law should
mean.
• Is there a Constitutional violation?
• Rational basis review of issue no need to define boundaries.
• Three bases for rational finding:
1. No offspring from same-sex marriages.
2. Not recognized in most states.
3. Violates traditional societal mores.
Precise Rule of Law: The plenary power over immigration held by Congress
empowers it to deny same-sex marriages the same relief from immigration restrictions
that is accorded to heterosexual marriages without running afoul of equal protection
considerations.
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c.
Fraudulent Marriages - Immigration Marriage Fraud Amendments of 1986
(IMFA).
(1)
(2)
IMFA section 2(a) introduced the concept of “conditional permanent
residence”.
Whenever an alien receives permanent residence as an immediate
relative, as a family-sponsored second preference immigrant, or as a
fiancé of a U.S. citizen, by virtue of a marriage that is less than two
years old, the resulting permanent residence will be subject to certain
conditions subsequent:
(a)
INS has the
burden of
proof in both
conditions
subsequent if
the alien
contests the
finding at a
removal
hearing.
(b)
(3)
(4)
“Extreme hardship” will waive a removal finding.
Until 1990 the only other available waiver provision required the
conditional resident alien to show that he or she:
(a)
(b)
See
INA
§216(c)(4)(B)
(c)
(5)
(6)
d.
If at any time during the first two years of permanent
residence the Attorney General finds that the marriage was
entered into for the purpose of procuring immigrant status, or
that the marriage has been judicially annulled or terminated
(other than by death of spouse), or that a fee was given for
the filing of the petition (other than an attorney’s fee), then
the Attorney General must terminate permanent resident
status. See INA § 216(b)(2).
The conditional resident and his or her 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 that petition. See INA § 216(c).
Entered into the marriage in good faith;
Terminated the marriage for good cause (problematic
because many jurisdictions no longer require a showing of
fault in divorce actions); and
Was not at fault in failing to meet the usual requirements.
Section 701 of the Immigration Act of 1990 deleted from INA §
216(c)(4)(B) the requirement that the termination of the marriage be
“by the alien spouse for good cause”. The Act also included a third
waiver addressed specifically to battered spouses and spouses
otherwise subjected to “extreme cruelty”. See INA § 216(c)(4)(C).
IMFA extended the statute to anyone who acquires permanent
resident status “by virtue of being the son or daughter of an individual
through a qualifying marriage”. INA §§ 216(a)(1), 216(g)(2).
Fraudulent Marriages – Minty Sui Chung, Speaker
(1)
1986 Act created new status for coming to U.S. under IMFA.
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(a)
(2)
Domestic Violence Aspect
(a)
(3)
(c)
(d)
Death of petitioner
Extreme hardship without permanent visa on beneficiary
(wife)
Termination of marriage but entered into with good faith
Battery or extreme cruelty.
1994 Violence Against Women Act
(a)
(b)
(c)
1.
If a woman with temporary visa is threatened by husband he
could tell her that unless she drops charges of abuse he
won’t go to the INS meeting for permanent status.
Four Waivers for non-cooperation by petitioner (husband)
(a)
(b)
(4)
Required that any marriage under 2 years would get a
temporary 2-year green card. After this period of time the
couple had to file for removal of the temporary status and
change to permanent status with INS.
Full faith and credit
Provided relief for women by enhancing their safety.
One part provides safety for immigrant women and children
and allowed filing for legal permanent status without
knowledge of petitioner
Other Family Members
a.
b.
c.
•
Parents, children of U.S. citizens, child accompanying or following to join a
preference immigrant, sons and daughters, and brothers and sisters receive
preference. See INA §§ 201(b)(2)(A)(i), 203(d), 203(a).
United States law accords no preference to relatives other than the family
members mentioned above.
A “child” must be unmarried and under 21. See INA § 101(b)(1).
Matter of Mourillon
Facts: Beneficiary is the half-brother of petitioner and denied preference because
petitioner is illegitimate. Petitioner contests ruling based upon the law of
legitimacy in the Netherlands.
Issue: (1) Can an illegitimate child claim a sibling relationship with the offspring of
his or her parent and a stepparent for purposes of the INA? And (2) If a family
relationship is maintained after the death or separation of the relevant parents,
are stepsiblings classifiable for the purposes of the INA?
Analysis:
• Court found that Netherlands Code doesn’t support petitioner’s argument.
15
•
INA § 101(b)(1)(B) defines the term “child” as an unmarried person under the
age of 21 years who is a “stepchild, whether or not born out of wedlock,
provided the child had not reached the age of eighteen years at the time the
marriage creating the status of stepchild occurred.”
• To qualify as step-siblings either:
• Marriage which created the relationship must continue to exist or
• Where the parties to marriage have legally separated or the marriage has
been terminated by death or divorce a family relationship must continue
to exist between the stepsiblings.
• Court finds that both qualifications met by petitioner and beneficiary.
Precise Rule of Law: (1) Unless an illegitimate child is legitimated by the common
parent, the child cannot claim a sibling relationship with other children of the
common parent by virtue of their birth. (2) If a family relationship is maintained
after the death or separation of the parents creating a step-relationship,
stepsiblings are classifiable as siblings for purposes of the INA.
2.
Family Unification Policy
a.
F.
Criticism of family unification policy as causing “chain” migration.
EMPLOYMENT-RELATED IMMIGRATION
1.
The First Three Preferences: Superstars, Stars and Others
a.
General Eligibility Requirements
(1)
Superstars: aliens with (1)“extraordinary ability (defined as a 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) in the
sciences, arts, education, business or athletics which has been
demonstrated by sustained national or international acclaim;” (2)
Professors and researchers who are “outstanding”; and (3) certain
multinational executives and managers, who need not demonstrate
any particular level of fame or success. INA § 203(b)(1).
(2)
Stars: members of the professions holding advanced degrees or their
equivalent and aliens with “exceptional ability in the sciences, arts or
business”. INA § 203(b)(2).
• This preference differs from (i) in the use of the word “exceptional” versus
“extraordinary” and that (ii) generally requires the alien to obtain a job
offer from an American employer (INA § 203(b)(2)(A)) and a documents
called “labor certification” from the Department of Labor (INA §
212(a)(5)(A,C)).
• The INS has the discretion to waive the job offer requirement in the
national interest. INA § 203(b)(2)(B).
(3)
Others (three subprongs):
16
(a)
(b)
INA
§ 203(b)(3)
(c)
•
•
b.
Labor certification is required. INA §§ 203(b)(3)(C), 212(a)(5)(C).
Unlike the second preference there is no provision for national interest
waivers.
Labor Certification & Its Procedure
(1)
(2)
(3)
•
•
•
•
•
•
Aliens capable of performing certain “skilled labor” for which
qualified U.S. workers are not available;
Aliens who have baccalaureate degrees and are members of
the professions; and
“other workers” who are capable of performing unskilled
labor for which qualified U.S. workers are not available
(limited to 10,000 visas in a fiscal year).
Check two schedules published by the Labor Department (A and B).
Schedule A (20 C.F.R. §656.10 (1996)): lists occupations Labor
Department has “pre-certified” as meeting the substantive statutory
requirements for labor certification. Under Schedule A the alien or
employer bypasses the Labor Department entirely and files the visa
petition with the INS, which decides whether the alien’s job really
does fall within one of the Schedule A occupations.
Schedule B (20 C.F.R. § 656.11 (1996)): occupations where the
Labor Department has made a blanket determination that certain
occupations ordinarily will not meet the statutory criteria for labor
certification. When the alien’s occupation is on the list the applicant
must apply for a waiver and make certain showings beyond those
usually required.
Application submitted to local office of state employment service.
For approval employer must document unsuccessful attempts to recruit
American workers at prevailing wages.
Employer must notify its own employees’ bargaining representative of the
filing.
If certifying officer (“CO”) finds all requirements met then issues labor
certificate.
If CO doesn’t find all requirements met then must submit discretionary
evidence within 35 days of notice or a written argument to cure the defect.
Matter of Marion Graham (Displacing American Workers)
Facts: Π sought to hire an alien to fill a position as a live-in housekeeper.
Issue: If an employment position offered to an alien has restrictive job
requirements, must the employer show that the requirements are a business
necessity in order to overcome the presumption that jobs with overly
restrictive requirements cannot be offered to aliens?
Analysis:
• Relevant business in this situation is that of running a household or managing
one’s personal affairs.
17
•
Pertinent factors in determining whether live-on-the-premises is essential:
employer’s occupation or commercial activities outside the home,
circumstances of the household itself, and any other extenuating
circumstances.
• Evidence needed to prove: a requisite degree of specificity for a written
assertion generally should enable the CO to determine whether there are
cost-effective alternatives to a live-in requirement and whether the needs
of the household for a live-in worker are genuine.
Rule of Law: If an employment position offered to an alien has restrictive job
requirements, the employer must show that the requirements are a business
necessity in order to overcome the presumption that jobs with overly restrictive
requirements cannot be offered to aliens.
•
Matter of Tel-Ko Electronics
Facts: Π is an electronics company who sought to hire a Korean engineer for a
position that required frequent contact with Korean companies. Employer stated
that foreign language requirement was a necessity but CO stated that it was
unduly restrictive.
Issue: To establish that job requirements form a business necessity, must the
employer show that the job requirements bear a reasonable relationship to the
occupation in the context of the employer’s business and that the requirements
are essential to perform the employer’s job duties?
Analysis:
• Business necessity requirement test employer must show that:
1. job requirements bear a reasonable relationship to the occupation in
the context of the employer’s business;
2. the requirements are essential to perform, in a reasonable manner,
the job duties as described by the employer.
• Prong 1: position would be interacting almost entirely with Korean-speaking
suppliers in order to serve those suppliers. This establishes that the foreign
language requirement bears a reasonable relationship to the job in the
context of the Employer’s business.
• Prong 2: when the job duties include or demand interaction with clients who
only speak a foreign language, the second prong is met. Π supplied
evidence to demonstrate this by submitting reports applicant would be
expected to draft which were written almost entirely in Korean.
Rule of Law: To establish that job requirements form a business necessity, the
employer must show that the job requirements bear a reasonable relationship to
the occupation in the context of the employer’s business and that the
requirements are essential to perform the employer’s job duties.
•
Industrial Holographics, Inc. v. Donovan (Adversely Affecting the Wages and
Working Conditions of American Workers)
Facts: Π sought labor certification for an alien without having advertised the job
to Americans at the prevailing wage rate.
Issue: May the secretary of labor properly require an employer to advertise a job
at the “prevailing wage” rate before seeking alien certification?
18
Analysis:
• Π’s assertion that statutory authority exceeded by Secretary of Labor by
requiring “prevailing wage” is rejected. Regulations assume that employment
of alien below wage rate with adversely affect American workers. Πs give no
evidence to show this assumption is arbitrary or capricious.
• Court concludes that Secretary acted reasonably in giving operational content
to the language of INA § 212(a)(14) by applying the prevailing wage standard
in this case.
Precise Rule of Law: The secretary of labor may properly require an employer to
advertise a job at the “prevailing wage” rate before seeking alien certification even
though the statute merely requires that the employed alien not adversely affect
the wages and working conditions of similarly situated Americans.
3.
The Fourth Preference: Certain “Special Immigrants”
a.
4.
The Fifth Preference: Alien Entrepreneurs
a.
b.
c.
d.
e.
G.
INA § 203(b)(4) is not generally aimed at redressing labor shortages but
serves a variety of other miscellaneous functions, mostly concerned with the
special circumstances of the people they encompass.
Aliens exempted from labor certificate are those who: (1) invest a specified
minimum amount (recently $40,000) in a United States enterprise; (2) would
serve as the principal manager; (3) would employ at least one U.S. citizen or
permanent resident alien other than the investor or his or her family. 8 C.F.R.
§ 212.8(b)(4)(1990).
Investor program to create jobs in the U.S. and to improve the country’s
balance of trade. Contrary view objects to the notion because views it as a
means for the rich to “buy” their way into the U.S.
New standards enacted in 1990: INA § 212(a) added a new provision
§203(b)(5) which reserves 10,000 visas a year for aliens who establish new
commercial enterprises in the U.S., invest at least $1,000,000 (with the
Attorney General authorized to modify the minimum amount in specified
ways), and employ at least ten Americans.
INA § 216A empowers the Attorney General to terminate the alien’s status
within two years upon finding that “the establishment of the commercial
enterprise was intended solely as a means of evading the immigration laws”
or that the various requirements for fifth preference status are not being
sustained. The alien must petition for removal of the conditions during the
90-day period immediately preceding the second anniversary of admission.
Few applicants under this visa: for explanations why see casebook p. 204.
DIVERSITY IMMIGRANTS
1.
Temporary program ⇛ NP-5 program authorized the admission of 5,000
nonpreference immigrants in each of fiscal years 1987 and 1988. They were to come
19
2.
3.
4.
from “foreign states the immigration of whose natives to the U.S. were adversely
affected by “the 1965 law abolishing national origin quotas.”
OP-1 program: 10,000 additional immigrants could be admitted in each of fiscal years
1990 and 1991 from “underrepresented countries”, defined to include any country that
used up less than 25% of its per-country limit in fiscal year 1988.
Immigration Act of 1990 established the “AA-1” program for aliens from countries that
were “adversely affected” by the abolition of the national origins quota system.
Congress also enacted the first permanent immigrant preference based on diversity.
INA § 203(c).
H.
IMMIGRANTS, SELF-IDENTITY, AND HOME
I.
IMMIGRANT SELECTION: SOME GENERAL POLICY DIRECTIONS
1.
2.
3.
4.
J.
One perennial battleground has been the relative priorities that family unity and skill
levels should command as bases for immigration preferences ⇛ family connection
immigrants are also workers as noted in a recent INS study.
Point system: applicants for admission would receive specified numbers of points for
prescribed characteristics – family connections, education level, occupation, youth,
etc.
Free Movement (closest thing in U.S. is NAFTA).
Immigrant Visa Auction and the Sale of Immigrant Visas
NOTE ON THE ENGLISH-ONLY MOVEMENT
1.
2.
Post WWI movement against teaching foreign language.
English as official language at both state and federal levels “Official English” whose
proponents seek to make English the sole language for conducting the business of
government.
20
III.
NONIMMIGRANT CATEGORIES
A.
OVERVIEW
1.
Aliens seeking admission are presumed to be immigrants and therefore subject to the
higher standards of immigrant selection; to rebut that presumption they must show
they qualify as nonimmigrants. INA § 214(b).
Nonimmigrants must overcome two separate hurdles:
2.
(1)
(2)
B.
establish qualification under one of the specific statutory categories; and
avoiding the various affirmative grounds of inadmissibility.
COMMERCIAL CATEGORIES OF NONIMMIGRANTS
1.
Business Visitors
•
2.
International Union of Bricklayers and Allied Craftsmen v. Meese
Facts: Π represented skilled American workers and challenged ∆ (INS) Operations
Instructions that allowed skilled foreign laborers to enter the U.S. and work
temporarily. Πs allege two things:
(1) INS Operations Instruction 214.2(b)(5) violates INA § 101(a)(15)(B)
because the issuance of B-1 visas to aliens coming to the U.S. to perform
skilled or unskilled labor is expressly prohibited by § 101(a)(15)(B).
(2) INS Operations Instruction violates INA § 101(a)(15)(H)(ii) because
aliens have been permitted to bypass the labor certification requirement
contained in the regulations under INA § 101(a)(15)(H)(ii).
Issue: Can the INS properly issue B-1 visas to skilled laborers entering the U.S. to
perform contract or temporary work, circumventing labor certification procedures in
the process?
Analysis:
• To resolve the conflict between the INA provisions and those in the INS
Operations Instruction the Court looks at several factors to determine which is
superior:
• The Language of the Act and the Operations Instruction
• Demonstrates the conflict between the two regarding what classifies an
alien as a “temporary visitor for business”.
• The Operations Instruction lacks the safeguards contained in INA.
• Intent of Congress
• One of Congress’ central purposes in the Act was the protection of
American labor.
Rule of Law: The INS may not properly issue B-1 visas to skilled laborers entering the
U.S. to perform contract or temporary work, circumventing labor certification
procedures in the process.
Treaty Traders and Investors
21
a.
Treaty Traders have “E-1” status ⇛ INA § 101(a)(15)(E)(i)
b.
c.
Treaty Investors have “E-2” status ⇛ INA § 101(a)(15)(E)(ii)
Eligibility of an alien rests on the terms of the particular treaty. But in practice
various treaties tend to track the statutory language thus the best guides to
the meanings of the treaties are the statute itself and other sources
interpreting it.
E-entrants are admitted for up to one year with the possibility of renewal in
increments of two years.
State Department regulations do require an intent to depart upon termination
of E-status.
Neither the statutory definition nor the INS regulations expressly require an
intent to retain one’s foreign residence.
d.
e.
f.
•
C.
Nice v. Turnage
Facts: Π alleged, but could not prove, that he had invested $25,000 of his own funds
in a business, qualifying him for E-2 Treaty Investor status.
Issue: Must an alien merely show that investment funds are in his possession and
control in order to qualify for E-2 Treaty Investor status?
Analysis:
• Court found legislative history “of little assistance” in determining qualifications for
treaty investor status when Π relied on a statement in the Report of the House
Committee that the treaty investor provision is intended to prevent sham
investments.
• Court held that INS could require proof that Π was personally at risk and did not
abuse its discretion in concluding that the proof offered by Π was insufficient.
Precise Rule of Law: The INS may require an alien to prove that investment funds
belong to him, constituting a personal business risk, in order to qualify for E-2 Treaty
Investor status.
EDUCATIONAL CATEGORIES
1.
Students
a.
b.
c.
Major provision governing the admission of foreign students is INA §
101(a)(15)(F).
“F-1” aliens (“F-2” in the case of the aliens’ families) must be distinguished
from another group expressly authorized by § 101(a)(15)(M) who enter to
attend vocational or other “nonacademic” institutions.
Two provisions of IIRAIRA took aim at “F-1’s”:
(1)
An F-1 status may no longer be granted to permit a child to attend a
public elementary school. INA § 214(l)(1)(A). (Congress
inadvertently created two subsection 214(l) so be certain to double
check validity).
22
•
•
(2)
•
•
2.
Nor may F-1 status be granted to permit a student to attend a public
secondary school unless the student pays the full per-capita cost of
education (and even then the maximum duration is 12 months).
Violation of section 214 makes a student not only deportable but also
inadmissible for five years after the date of the violation. INA §
212(a)(6)(G).
Regarding foreign students, IIRAIRA § 641 requires the Attorney
General, in consultation with the Secretary of State and the Secretary
of Education, to collect individualized information from colleges and
universities on every foreign student they enroll.
The required information includes identity, address, dates of any changes in
immigration status, whether the student is maintaining full-time student
status, and any disciplinary action the institution has taken as a result of a
criminal conviction.
Mashi v. INS
Facts: When Π, an Iranian citizen studying in the U.S., dropped out of a college
course due to circumstances beyond his control (arrested for political protest and
missed exam as a result), the ∆ (INS) sought to deport him for not meeting the
required number of credits in a semester.
Issue: May foreign students be deported for falling below a set number of credits in a
single semester?
Analysis:
• Court said 12 credit doesn’t apply to Π because enacted after he was a student
so only had to maintain full course of study.
• Π took summer courses.
• Π had high GPA.
• Court sees purpose of student visas as a cultural exchange and foreign policy
and therefore deportation of Π wouldn’t adversely affect the purposes.
• Sees 12 hour credit requirement as arbitrary. (INS enacted this rule because it
would be easy to enforce and monitor).
• BIA says Π’s incarceration was contrary to his being a foreign student.
• Court says that Π only incarcerated because of INS’ investigation Π.
• Court gives deference to agency regulations Ins interpreting their own
regulation with 12 credit rule.
Precise Rule of Law: Foreign students may not be deported for falling below a set
number of credits in a single semester if they are making proper progress in their
studies.
Exchange Visitors
a.
b.
J-1 status under INA § 101(a)(15)(J).
The more closely the exchange visitor’s program resembles what might be
thought of as employment, the more controversial the program has been.
23
c.
d.
e.
D.
To a student, one advantage of a J-1 visa over an F-1 visa lies in the slightly
more liberal employment rules governing J-1 visas.
Can be difficult to qualify for a J-1 visa must be part of a specific program
approved in advance by the USIA.
See INA § 212(e) for the “biggest hitch of all J-entrants”.
•
Sheku-Kamara v. Karn
Facts: Benedict Sheku-Kamara entered the U.S. under an exchange visitor visa and
subsequently married. His wife, Π, later sought permanent residence and claimed
she was not subject to the two-year foreign residence requirement for exchange
visitors.
Issue: Are the spouse and children of a nonimmigrant exchange visitor subject to the
two-year foreign residence requirement?
Analysis:
• Court says Π tied to husband’s visa.
• Π argued she and husband no longer funded by government, married after
husband got visa and derives no benefit Court says getting to U.S. is a big
benefit.
• Court says re privately funded is invalid argument because statute says if ever
had public government funding.
• Court says two arguments for residency requirement:
(1) Spouse would be in superior position to visa holder;
(2) General good of return for cultural exchange.
Precise Rule of Law: The spouse and children of a nonimmigrant exchange visitor are
also subject to the two-year foreign residence requirement.
•
Silverman v. Rogers
Facts: Π, an exchange visitor from Turkey who was trained to be a psychiatric nurse,
married Silverman, a U.S. citizen who was very ill, and then sought a waiver (under
hardship) of the two-year foreign residence requirements.
Issue: Does the Secretary of State have veto power over waivers of the two-year
foreign residence requirement of INA § 212(e)?
Analysis:
• Court looks to Congressional intent/history which states: Too many waivers were
being granted so should limit agency power to veto or have final say so it goes to
the Secretary of State.
• Under § 212(e) Π must return for 2 years but Π signed a bond to work for 10
years.
Precise Rule of Law: The Secretary of State has veto power over waivers of the twoyear foreign residence requirement of INA § 212(e).
Õ§ 212(e) could be clearer if:
• Add “request pursuant to” just before “Commissioner…”
• Enumerate the options.
TOURISTS
24
1.
2.
3.
•
E.
INA § 101(a)(15)(B) authorizes the admission of certain aliens who want to visit the
U.S. temporarily either for business (B-1’s) or for pleasure (B-2’s).
B-2 visitors in fiscal year 1995 accounted for about 77% of all nonimmigrants admitted
that year.
Provisions under INA § 101(a)(15)(B) include the alien can’t work, can’t abandon
home country heavily scrutinized where INS looks at bank account statement, if own
property, if country of origin has a long wait for immigrants to U.S.
Matter of Healy and Goodchild
Facts: ∆s, Healy and Goodchild, entered the U.S. under a B-2 visitor for pleasure visa with the
intention of studying at Claymont school.
Issue: Is the B-2 visitor for pleasure visa available for persons who come to the U.S. to pursue
nonapproved educational programs?
Analysis:
• Court looked to language of the statute which said that under a B-2 visa an alien can’t
study.
• Term “pleasure” is not defined in the Act but is defined by State Department regulation 22
C.F.R. § 41.25 as: “legitimate activities of a recreational character, including tourism,
amusement, visits with friends or relatives and rest; medical treatment, or activities of a
fraternal, social or service nature.” (See p. 276 of casebook).
Precise Rule of Law: The B-2 visitor for pleasure visa is not available for persons who come to
the U.S. to pursue nonapproved educational programs.
FIANCÉS AND FIANCÉES
•
1.
2.
“K visa” ⇛ INA §§ 101(a)(15)(K) and 214(d).
Provisions include: alien can’t apply for an extension, can’t change under § 248 to
another status, can only get married and become a conditional resident, under §
214(d) must have met fiancé within last two years.
3.
Dual intent ⇛ (1) Non-immigrant and happy to return; (2) Would like legal permanent
residence status.
Moss v. INS
Facts: Π was admitted as a nonimmigrant alien fiancée, but did not get married until ninetytwo days after her entry.
Issue: May the ninety-day period for marriage in INA § 214(d) be tolled if the parties can show
that a delay resulted from factors beyond their control?
Analysis:
• Π had to get married in 90 days but got married in 92 days Court infers delay because of
illness.
• Purpose of time limit in statute is a bona fide intent to marry.
• FN2: concept of 3 months versus 90 days.
Precise Rule of Law: The ninety-day period for marriage in INA § 214(d) may be tolled if the
parties can show that a delay resulted from factors beyond their control.
25
F.
GENERAL NONIMMIGRANT PROBLEMS
1.
Intent to Remain Permanently
a.
Problem can arise in several contexts:
(1)
(2)
(3)
b.
c.
•
2.
Alien might be applying for one of the relevant nonimmigrant visas.
The alien might already have received the visa and be applying for
admission at a designated port of entry.
Once admitted, alien might apply for extension of stay or for a
change to another nonimmigrant status that is similarly inconsistent
with an intent to remain permanently.
If after admission INS discovers that the alien originally entered with the
intent to remain permanently, the alien might be deportable as one who was
inadmissible at entry. INA § 237(a)(1)(A).
Deportable if alien failed to maintain his or her nonimmigrant status. INA §
237(a)(1)(C)(i).
Matter of Hosseinpour
Facts: Π, a nonimmigrant student, applied for an adjustment in status, which the ∆
(INS) ruled terminated his student status.
Issue: Does an application for adjustment of status automatically terminate
nonimmigrant status?
Analysis:
• Court stated that request for adjustment was OK because Π had dual intent but
deportable because Π overstayed visa.
• INS did not preclude Π from obtaining an extension for three reasons:
(1) There is no evidence in the record that the Π ever applied for an extension of
his stay as a nonimmigrant student;
(2) The order to show cause charging the Π with being out of status was not
issued until after the expiration of the Π’s authorized stay; and
(3) The decision whether or not to extend a nonimmigrant’s authorized stay is
within the sole discretion of the district director and is not reviewable by the
immigration judge or by the Court.
Precise Rule of Law: An application for adjustment of status does not automatically
terminate nonimmigrant status.
Change of Nonimmigrant Status
26
IV. INADMISSIBLE ALIENS
A.
OVERVIEW
1.
2.
Under INA § 212(a) various classes of aliens are “ineligible to receive visas and
ineligible to be admitted to the U.S.” unless they qualify for waivers under any of the
specific statutory provisions.
Exclusionary Grounds under INA § 212(a):
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
Health related;
Criminal and Related Grounds;
Security and Related Grounds (political);
Public Charge;
Labor Certification;
Illegal Entrants and Immigration Violators;
Documentation Requirements (fraud);
Ineligible for citizenship;
Aliens Previously Removed; and
Miscellaneous:
-
3.
4.
5.
6.
7.
8.
Provisions above can also affect aliens already in U.S.
Aliens can adjust to immigrant status without having to go abroad for new visas but
only if they are “admissible”. INA § 245(a).
Many years after entry an alien can be removed if it is determined that at the time of
entry or adjustment of status he or she was in fact “inadmissible”. INA § 237(a)(1)(A).
Lawfulness of alien’s original admission can also be called into question if the person
eventually applies for naturalization. INA § 316(a).
In 1996 with IIRAIRA Congress amended INA § 235(a)(1) to say that “[a]n alien
present in the United States who has no been admitted …shall be deemed for
purposes of this Act an applicant for admission.” As an applicant for admission, such
an alien becomes inadmissible (with some exceptions) under new INA § 212(a)(6)(A).
Before IIRAIRA aliens who were found to be “inadmissible” otherwise known as
“excludable” and who did not receive discretionary relief, were “excluded”.
•
•
9.
Polygamists
Former citizens avoiding taxes
International child abductors.
Now aliens are “removed” whether this means turning them away at the border
or evicting them from the interior.
Proceedings used to be called “exclusion” or “deportation” but now both are
called “removal” proceedings.
Two steps for grounds for admission application:
a.
Consular officer approval;
27
b.
B.
INS at port of entry (even if have a visa).
GROUNDS RELATED TO IMMIGRATION CONTROL
1.
Aliens who have committed specified forms of document fraud are excludable after
paying administrative fines. INA § 212(a)(6)(F).
(a)
(b)
(c)
2.
Exclusion grounds relate to surreptitious entry ⇛
(a)
(b)
3.
4.
These aliens are subject to discretionary waivers in certain family-related
circumstances. INA § 212(d)(12).
Aliens who procure visas, admission, or certain other documents or benefits
by fraud or misrepresentation also become permanently inadmissible. INA §
212(a)(6)(C)(i).
False claims of citizenship (whether oral or written) constitutes an
independent ground for inadmissibility. INA § 212(a)(6)(C)(ii).
Aliens who are present in the U.S. without having been admitted or paroled
as well as aliens who arrive other than at officially designated ports of entry.
INA § 212(a)(6)(A).
Aliens who assist other aliens to enter unlawfully are inadmissible. INA §§
212(a)(6)(E), 212(d)(11).
Aliens who are out of status certain aliens who have been unlawfully present in the
U.S. for 180 days or for one year are inadmissible for 3 years or 10 years,
respectively. INA § 212(a)(9)(B).
Removal Process:
a.
b.
Aliens who, without reasonable cause, fail to attend removal hearing are
inadmissible for five years. INA § 212(a)(9)(B).
Aliens how are ordered removed are generally inadmissible for either 5 years
or 10 years, depending on whether they were removed upon or after arrival.
INA § 212(a)(9)(A).
(1)
(2)
(3)
•
Second offenders are inadmissible for 20 years.
Aggravated felons can never return.
The Attorney General is entitled to waive subsection 9(A) by
consenting to such aliens reapplying for readmission.
The barring doesn’t do much if the person has no prospects of receiving a visa
anyway ⇛ they have nothing to lose.
C.
POLITICAL AND NATIONAL SECURITY GROUNDS
1.
In 1952 the INA contained three broad exclusion grounds pertaining to either national
security or political expression:
28
a.
Excluded aliens who had ever advocated, been members of or affiliated with
any organization that advocated, or published or circulated writings
advocating, any of certain political views, including communism, anarchy, or
the propriety of overthrowing the U.S. government or all government. INA §
212(a)(27).
•
b.
c.
d.
e.
2.
3.
D.
Various prongs covered beliefs, statements, advocacy, writings, and
publications.
Aliens believed to be entering the U.S. to engage in activities “prejudicial to
the public interest”. INA § 212(a)(28).
Aliens believed likely to engage, after entry, in such activities as espionage,
sabotage, or other subversion. Not waivable. INA § 212(a)(29).
Exclusion of participants in Nazi war crimes before and during WWII (added
in 1978). Not waivable. INA § 212(a)(33).
Terrorism category added in 1990. Waivable. INA § 601.
Attorney General has the authorization, after a favorable recommendation by the
Secretary of State or a consular officer, to admit a nonimmigrant who is inadmissible
on any ground other than a specified few.
McGovern Amendment of 1978-1979 provided that when a nonimmigrant was
excludable solely “by reason of membership in or affiliation with a proscribed
organization”, the Secretary of State “should” recommend that the Attorney General
grant a waiver, unless the Secretary of State certifies to Congress that the alien’s
admission would be contrary to national security interests.
ECONOMIC GROUNDS
1.
2.
Based on fear that classes of aliens (medical exclusions, illiteracy) covered were
likely to require public assistance.
Only two explicitly economic grounds after Immigration Act of 1990:
a.
Labor certification ⇛ INA § 212(a)(5)(A);
b.
Public charge ⇛ INA § 212(a)(4).
3. Public Charge
a.
b.
c.
Most common exclusionary ground used.
Test of what is a public charge is whether the particular program “is
specifically designed to support individuals unable to provide for themselves.”
Not just the receipt of public funds.
Factors in public charge determinations:
(1)
(2)
(3)
(4)
Age;
Health;
Family status;
Financial status;
29
(5)
(6)
(7)
d.
Education;
Skills; and
“Affidavits of Support”. INA § 212(a)(4)(B).
Affidavit Controversy:
(1)
Factors affecting affidavit’s weight:
(a)
(b)
(c)
Motivation of sponsor;
His or her relationship to the applicant; and
Sponsor’s financial ability to provide the promised support.
(2)
Affidavit now considered a contract legally binding for ten years.
(3)
“Deeming”: when sponsor’s income is applied to immigrant ⇛ can
lead to denial of welfare benefits.
(a)
Sponsor restrictions:
•
•
•
(4)
E.
Lawful permanent resident alien and over 18 years of
age (INA § 213A(f)(1)(A,B));
Sponsor must be the person who is petitioning for the
alien’s admission (INA §213A(f)(1)(D)); and
The sponsor’s income must be at least 125% of the
poverty level (INA §§ 213A(f)(1)(E), 213A(f)(6)).
For most family-related petitions (other than for spouses and children
of citizens) affidavits of support are mandatory.
PUBLIC HEALTH AND MORALS
1.
2.
3.
1990 Act narrowed list neither a physical nor mental disorder will generally be a
basis for exclusion unless associated behavior poses one of several specified threats.
INA § 212(a)(1)(A)(ii). Discretionary waivers are possible. INA § 212(a)(A)(iii).
Drug addicts and drug abusers are specifically excludable. INA § 212(a)(1)(A)(ii).
HIV/AIDS
a.
b.
1993 Congress enacted National Institutes of Health Revitalization Act
section 2007 of statute amended INA § 212(a)(A)(i): expressly excludes
aliens who are determined by the Department of Health and Human Services
to have “a communicable disease of public health significance, which shall
include infection with [HIV].”
Attorney General has discretion to waive exclusion ground for spouses and
certain other close family members.
30
V.
ADMISSION PROCEDURE
A.
OVERVIEW
1.
Why should have administrative review because:
a.
b.
c.
2.
Why shouldn’t have administrative review because:
a.
b.
c.
3.
B.
There is always a risk of mistake.
Risk of bias when have administrative agency that is unchecked.
Want some form of documentation so public can see any bias.
Inefficient.
Consulars have expertise in foreign affairs.
No right to have visa approved.
Generally there is judicial review with agency decisions.
FOUR HURDLES TO OVERCOME:
1.
2.
3.
Employment based certificates needed for aliens applying under the second and third
employment-based preferences;
Visa petition from INS: establish that the beneficiary meets the status.
Visa application (everyone goes through this):
a.
b.
c.
d.
e.
4.
Counselor office in country of origin.
Must show you meet status and don’t fall under exclusion (none of the
affirmative grounds for inadmissibility apply).
Burden on the alien to show eligibility.
Can include personal interviews.
If denied alien has no recourse.
Actual Admission to U.S.:
a.
b.
c.
Usually a superficial screening either have visa or don’t.
If have visa doesn’t mean guaranteed admission.
Process:
(1)
(2)
(3)
Primary inspection;
Secondary inspection;
If found inadmissible then put in removal proceedings.
(a)
Detention encourages departure.
(b)
Can be paroled and then later inspected ⇛ discretionary.
INA § 212(d)(5).
31
C.
VISA PETITIONS
1.
2.
3.
4.
D.
Pertinent American relative is the one who must file the visa petition.
1994 Congress addressed problem of spousal abuse and visa petition and authorized
certain battered immigrants to self-petition. INA § 204(a)(1).
Petitioner does not have a right to a hearing.
When INS denies a visa petition it is subject to both administrative and judicial
reviews.
VISA APPLICATIONS
•
Hermina Sague v. United States
Facts: Π was denied a visa to visit spouse and U.S. citizen and sought judicial review. Π
sued for denial of constitutional rights.
Issue: Is a consular officer’s visa decision subject to administrative or judicial review?
Analysis:
• Court said it can’t hear case:
• Plenary power doctrine Congress has the right to exclude without judicial
interference.
• Absence of statutory authorization via precedent.
Precise Rule of Law: A consular officer’s decision to issue or withhold is not subject to
administrative or judicial review.
1.
Under IIRAIRA the process of summary exclusion is if an immigration officer
determines alien inadmissible, because of fraud, then there is no administrative
review of the decision.
a.
2.
3.
4.
Removal hearing is in front of an Immigration judge ⇛ most people agree to
“voluntary departure”.
Immigration Court/Judges are now independent of the INS.
Standard of Proof stiff:
a.
b.
E.
Very controversial especially with asylum cases.
Burden on the applicant that they are admissible.
Standard is “clearly and beyond doubt entitled to be admitted and is not
inadmissible under INA § 212.” INA § 240(c)(2)(a).
ACTUAL ADMISSION
1.
At the Boarder
a.
b.
Immigration officials now allowed to remove an alien via “expedited removal”.
INS has discretion to parole an alien who has been “detained”.
32
2.
•
F.
Hearings Before Immigration Judges
Matter of Exilus
Facts: Π, an asylum applicant, wanted to submit interrogatories to the State Department and
also requested a simultaneous translation of entire exclusion proceeding.
Issue: Must an alien show that he has suffered prejudice in order to establish that he has been
denied a fair hearing?
Analysis:
• Court finds no basis in facts for Πs arguments.
• Interrogatories wouldn’t prejudice Π and they increase the already heavy workload of
State.
• No prejudice for lack of interpreter.
• Due Process doesn’t require translation.
Precise Rule of Law: In order to establish that he has been denied a fair hearing in violation of
the constitutional requirements of due process, an alien must show that he has suffered
prejudice.
ADJUSTMENT OF STATUS
1.
2.
The adjustment applicant must be admissible as an immigrant, and the particular
immigrant category must be current. INA § 245(a).
One who applies for adjustment of status must meet extra requirements not imposed
on those who seek the same status through the traditional visa route.
a.
b.
3.
An alien has to have been “inspected and admitted or paroled.” INA §
245(a).
Affirmative disqualifications: alien crew members, most aliens (other than
immediate relatives and special immigrants) who have been out of status for
any time after entry, and certain aliens admitted without visas. INA § 245(c).
There is no appeal for a denial of adjustment of status.
• Jain v.INS
Facts: Π was denied an adjustment in status because the ∆ (INS) determined that he had
entered the country as a nonimmigrant with an intent to remain permanently.
Issue: Can a preconceived intent to remain permanently in the country after entering on a
temporary nonimmigrant visa be the basis for denying ad adjustment in status?
Analysis:
• Adjustment of status is discretionary because it allows the government to maintain who
will or will not be admitted.
• Adjustment in status is considered extraordinary relief.
Precise Rule of Law: A preconceived intent to remain permanently in the country after
entering on a temporary nonimmigrant visa can be the basis for denying an adjustment in
status.
33
VI. DEPORTABLE ALIENS
A.
GENERAL CONSIDERATIONS
1.
2.
3.
4.
IIRAIRA changed the terms “deportation” and “exclusion” to “removal”.
IIRAIRA changed undocumented aliens from being faced with deportation to being
faced with inadmissibility.
Deportation grounds are not as strict as inadmissibility.
There are 2 purposes of deportation:
a.
b.
5.
6.
7.
8.
•
B.
Enforce exclusion grounds/ admission requirements.
Kick out people who mess up while they are here. Such as people who
breached a contract with the U.S. (working when they shouldn’t be) or people
whose presence is found to be injurious to the public welfare.
INA § 237(a)(1-5).
Most people in “removal hearings” decide to opt for “voluntary departure”.
Crime is the most common ground for deportation.
Deportation and Statutory Interpretation
Fong Haw Tan v. Phelan
Facts: Π was convicted of two counts of murder. After being paroled the ∆ (INS) sought
to deport him as a repeat criminal.
Issue: May aliens be deported as repeat criminals if they commit a crime and are
sentenced after a previous conviction and sentencing?
Analysis:
• Look to Congressional Intent for meaning behind “sentenced more than once”.
• Statutory cannon used by the court in this case is to interpret narrowly. Any doubt in
deportation should be construed in the alien’s favor.
Precise Rule of Law: Aliens may be deported as repeat criminals if they commit a crime
and are sentenced after a previous conviction and sentencing.
THE MEANING AND SIGNIFICANCE OF “ENTRY” AND “ADMISSION”
1.
2.
•
IIRAIRA changed the significance of “entry” to almost a meaningless standard and
now relies on the term “admission” in determining whether an alien will be subject to
inadmissibility grounds or the deportability grounds.
Entry is still a significant term as it determines presence this can be crucial in terms
of procedure.
Matter of Ching and Chen
Facts: ∆s escaped from airline custody after they had been denied admission and were
subsequently apprehended.
Issue: Are aliens who escape custody and enter the country after denial of admission
subject to exclusion proceedings?
34
Analysis:
• Three-part analysis to determine if there was an entry:
(1) A crossing into the territorial limits of the U.S., i.e., physical presence;
(2)(a) Inspection and admission by an immigration officer or
(2)(b) Actual and intentional evasion of inspection at the nearest inspection point; and
(3) Freedom from official restraint.
• Escape constituted an entry.
• Two entry attempts the second was successful.
• The instant applicants must be deemed to have entered the U.S. without inspection.
• After IIRAIRA the question is only if admitted legally. Ching & Chen no longer
matters.
Precise Rule of Law: Aliens who escape custody and enter the country after denial of
admission are subject only to deportation proceedings, not exclusion proceedings.
•
Rosenberg v. Fleuti
Facts: Π was ordered deported upon reentry after an absence from the U.S. of less than
one day.
Issue: May on leaving the U.S. briefly be considered to have entered for purposes of
deportation?
Analysis:
• Deviates from meaning of statutory language.
• INS treated ∆ as if entering the U.S. for the first time. New provision from when ∆
first legally entered.
• S. Ct. avoided constitutional questions, so get a strange interpretation of what an
entry is.
• Analysis comparing case to an involuntary leave of U.S. (e.g. on a sleeper car and go
into Canada without knowledge).
• When Congress has allowed brief departures as seen in other statutes demonstrating
that Congress didn’t want harsh repercussions.
• Test set up as: “congressional purpose to construe the intent exception to §
101(a)(13) as meaning an intent to depart in a manner which can be regarded as
meaningfully interruptive of the alien's permanent residence.”
• Three Factors to consider:
(1) How long was alien gone?
(2) Purpose of the visit?
(3) Did alien need travel documents?
•
•
Court states for now innocent departure doesn’t mean “entry”. No entry unless chose
to leave interrupting the stay.
Dissent: Courts can construe statutes not construct them. The Legislative history
says Congress rejected such a definition of “entry”.
• IIRIRA replaced entry with admission and Fleuti taken and codified in IIRIRA §
301(a).
• “Isn’t this simply a case in which the Court rejected the Literal Plain Meaning Rule
of statutory interpretation in favor of the Golden Rule [an intermediate approach.
35
The court gives the literal language its ordinary meaning, unless doing so would
produce an absurd result]? (see casebook p. 234).
3.
INA § 101(a)(13) alien not seeking admission when:
a.
(ii) alien has been absent from U.S. for continuous period in excess of 180
days.
(v) alien has committed an offense identified in § 212(a)(2), unless since such
offense the alien has been granted relief under § 212(h) or 240A(a).
c.
4.
Structure of INA § 101(a)(13) defines “admission” as “lawful entry” after inspection
and authorization.
a.
C.
DEPORTABILITY GROUNDS CONCERNED WITH IMMIGRATION CONTROL
1.
Entry Without Inspection: IIRIRA made an alien’s presence in the U.S. without
admission a ground for inadmissibility.
Entry While Inadmissible and Related Issues
2.
•
3.
D.
Created an exception: a lawful permanent resident alien will not be regarded
as seeking admission “unless” one of certain things is true – the person has
relinquished permanent residence, or the absence has been greater than 180
days, or the person has committed a crime covered by § 212(a)(2).
Gunaydin v. INS
Facts: Π claimed he could not be deported for an illegal entry into the country
because he was currently in the country after a legal entry.
Issue: Does deportability for failure to present for inspection at entry have to be based
upon the alien’s last entry into the country?
Analysis:
• INA § 241 allows for deportation of permanent residents who fail to present
themselves for inspection at every entry into the country.
• INS has discretion in appropriate instances to soften the consequences of entry
without inspection.
Precise Rule of Law: Deportability for failure to present for inspection at entry need
not be based upon the alien’s last entry into the country.
Post-Entry Conduct Related to Immigration Control
CRIME – RELATED DEPORTABILITY GROUNDS
1.
What is a conviction? See INA §§ 237(a)(2)(A)(i,ii,iii,iv), 237(a)(2)(B)(i), 237(a)(3)(B).
a.
Was there ever a conviction?
•
Matter of Ozkok
36
Facts: Π claimed that he had not been criminally convicted for immigration
purposes even though he had pleaded guilty to drug possession because the
judgment was stayed.
Issue: Has there been a criminal conviction for immigration purposes when there
has been no judgment or adjudication of guilt?
Analysis:
• Π served no time in jail.
• If sentence is revoked then there is no conviction.
• BIA crafts new test with 3 steps (casebook p. 413):
(1) Finding of guilt by a jury or entering a plea of guilty or nolo contendere or has
admitted sufficient facts to warrant a finding of guilty;
(2) Judge has ordered punishment, penalty, or restraint on the person’s liberty to
be imposed (including incarceration, probation, a fine or restitution, or
community-based sanctions such as rehabilitation program, a work-release or
study-release program, revocation or suspension of a driver’s license,
deprivation of nonessential activities or privileges, or community service); and
(3) Judgment or adjudication of guilt entered because of violation of terms of
probation or failure to comply with court order without availability of further
proceedings regarding the person’s guilt or innocence of the original charge.
Precise Rule of Law: A criminal conviction will be found for immigration purposes
when there has been a finding of guilt, some form of punishment, and a judgment
may be entered if the person violates the terms of probation.
b.
Erasing a Conviction
(1)
Withdrawing Guilty Pleas
•
United States v. Parrino
Facts: ∆ sought to withdraw the guilty plea that led to deportation
proceedings against him, contending that his attorney and given him wrong
advice regarding the possibility of deportation.
Issue: Is surprise as to the collateral consequences of a sentence that results
from erroneous information received from the ∆’s own attorney sufficient
ground to permit the withdrawal of a guilty plea?
Analysis:
• Relief allowed when surprise/unexpected consequence is:
• Result from judge or U.S. prosecutor;
• In direct relation to deportation what is connection between
deportation and criminal law.
Precise Rule of Law: Surprise as to the collateral consequences of a
sentence that results from erroneous information received from the
defendant’s own attorney is not sufficient ground to permit the withdrawal of a
guilty plea.
•
People v. Pozo
Facts: The court of appeals held that ∆ received ineffective assistance of
counsel at the time he entered pleas of guilty to second-degree sexual
37
assault and to escape because his attorney did not inform him of the possible
deportation consequences that would flow from the pleas.
Issue: May an attorney’s failure to inform his client of the possible deportation
consequences of a guilty plea constitute ineffective assistance of counsel and
thus render the plea involuntary?
Analysis:
• Court not required to advise about collateral consequences (e.g.
deportation as a result of a criminal conviction) but will allow withdrawal
of a plea if can show that the attorney should have known that the ∆ was
a non-citizen.
•
•
•
If prosecutor promises no immigration effects the it must be in writing to be valid.
After these decisions, the Attorney General issued an interim rule specifying that
the INS will not be bound by plea agreements unless the government agent who
makes the promise has first secured a written authorization from the INS.
After Ozkok several strategies remain viable to avoid a criminal conviction (see
casebook p.415).
(2)
Expungement:
(a)
(b)
2.
rehabilitation, atonement, erasure.
BIA cut off state convictions being able to be expunged from
an alien’s record.
Crimes Involving Moral Turpitude
a.
The meaning of “Crime Involving Moral Turpitude”
•
Marciano v. INS
Facts: Π argued that his conviction for statutory rape should not be grounds
for his deportation because criminal intent was not an element of the offense
and the defense of reasonable mistake of age was not available under the
state statute.
Issue: For deportability purposes, does statutory rape involve moral turpitude
regardless of the factual context of the crime?
Analysis:
• Court finds widely accepted definition of “moral turpitude” as an act of
baseness, vileness, or depravity in the private and social duties which a
man owes to his fellow men, or to society in general, contrary to the
accepted and customary rule of right and duty between man and man.
• Dissent gave 3 options to determine moral turpitude:
(1) Traditional formula: crime in the abstract would not be moral
turpitude (e.g. mercy killing). Don’t look at the particular facts but in
an all-or-nothing approach.
(2) Pino analysis: whereby the court determines whether the crime
generally or commonly involves moral turpitude and;
38
(3) An analysis of the facts of the crime, to see whether the
circumstances show moral turpitude (this effectuates the plain language
of the deportation statute).
b.
Two Crimes Involving Moral Turpitude
(1)
(2)
(3)
3.
Drug Offenses and Aggravated Felonies
a.
b.
No sentence limitation on drug offenses.
INA §101(43)?? Aggravated felony: described in huge list (see p. 32 of
statutory supplement). No requirement regarding a time limit after arrival
(same as drug offense).
POLITICAL AND NATIONAL SECURITY GROUNDS
E.
•
Kulle v. United States
Facts: Π, facing deportation because of his position as a guard at a concentration camp
during WWII, argued that he never personally persecuted anyone.
Issue: Because the INA authorizes deportation of anyone who “assisted” in persecution, does
personal involvement in atrocities need to be proven?
Analysis:
• Π argued for need of clear and convincing evidence to establish he violated the statute.
• Court rejected that argument because statute simply states that Π must have assisted
and there is testimony supporting this allegation.
• As a guard at a concentration camp Π assisted in persecution.
• Court says deportation is not a punishment.
Precise Rule of Law: Because the INA authorizes deportation of anyone who “assisted” in
persecution, personal involvement in atrocities need not be proven.
1.
2.
F.
INA § 237(a)(2)(A)(ii)
“Reaches aliens who after entry have been convicted of two crimes
involving moral turpitude ‘not arising out of a single scheme of
criminal misconduct’, regardless of how many years after entry and
regardless of the nature or length of the sentence."
Inner quote not defined by statute and court have divided into two
different camps. (see casebook p. 443).
1990 Immigration Act made aliens who had engaged in “genocide” both inadmissible
and deportable.
Short of genocide persecutors other than WWII-era Nazis are still not deportable.
OTHER DEPORTABILITY GROUNDS
1.
Public Charge
a.
After 5 years of admission from causes arising before admission then
deportable.
39
b.
INA § 237(a)(5).
40
VII. RELIEF FOR DEPORTABLE ALIENS
A.
LASTING RELIEF
1.
Cancellation of Removal
a.
INA § 240(a): Applies to legal permanent residents (for 5 years) and who
have resided in the U.S. for 7 years. (see p. 228 of supplement)The most
common uses for this remedy are where the deportability charges stem from
criminal convictions. Derives from INA § 212(c) (the pre-1996 section
number).
(1)
(2)
b.
INA § 240(b): Need favorable discretion (same as A). It is a scaled down
version of “suspension of deportation”. Cancellation of removal for “certain
nonpermanent residents” but nothing in the actual text precludes use of part
(b) by those lawful permanent residents who do not meet all the requirements
of part (a).
(1)
(2)
•
(3)
(4)
(5)
(6)
•
After IIRIRA lawful domicile is no longer required. Instead INA §
240A(a)(2) requires that the alien “[have] resided in the U.S.
continuously for 7 years after having been admitted in any status.”
Longer an alien is in U.S. the more relief can be granted. INA
§212(c) for people who have established roots gives another
chance because crime was not serious and/or rehabilitation.
Ten years of continuous physical presence. Once receive Notice to
Appear the clock stops counting towards 10 years. Multiple
accumulated absences of 180 days or 90 days continuous makes an
alien ineligible.
Two separate branches of cancellation: a general branch and a
special branch for battered spouses and battered children.
Two branches contain roughly parallel requirements continuous physical
presence, good moral character, and hardship.
They must establish statutory eligibility, and then they must receive
the favorable exercise of discretion.
Once removal is cancelled then one’s status is adjusted to that of
lawful permanent resident. INA §§ 240A(b)(3) and 240A(e).
Notice to Appear automatically ends a person’s continuous physical
presence. INA § 240A(d)(1).
The issue of hardship is “extreme” (now “exceptional and extremely
unusual”) can surface in either of two distinct settings that it is crucial
to separate issue arises in removal proceedings.
INS v. Jong Ha Wang
41
Facts: ∆ (INS) narrowly construed the statutory requirement of “extreme
hardship” necessary to suspend deportation of an otherwise deportable alien.
Issue: May the INS narrowly construe the statutory requirement of “extreme
hardship” necessary to suspend deportation of an otherwise deportable alien?
Analysis:
• 9th Circuit reasoned that statute should be construed liberally (see notes on
p. 486 for factors that the court felt should influence extreme hardship
determinations) but this was found erroneous for two reasons:
(1)
Court ignored the regulation which requires the alien seeking
suspension to allege and support by affidavit or other evidentiary
material the particular facts claimed to constitute extreme hardship.
(2)
Court improvidently encroached on the authority which the Act
confers on the Attorney General and his delegates who have the
authority to construe “extreme hardship” narrowly should they deem
it wise to do so.
Precise Rule of Law: The INS may narrowly construe the statutory requirement of
“extreme hardship” necessary to suspend deportation of an otherwise deportable
alien.
•
2.
Ahn v. INS
Facts: Πs argued that the BIA never properly considered their claim that their
son’s eye condition and Mr. Ahn’s political activity as a college student made it
extremely hard on them to be deported to Korea.
Issue: Should a ruling by the BIA denying a suspension of deportation contain a
discussion of the reasons for its decision and an indication that all the pertinent
factors were considered?
Analysis:
• BIA has broad discretion in determining what constitutes extreme hardship.
• ∆s duration in U.S. and son’s eye condition are insufficient to demonstrate an
extreme hardship.
• Mr. Ahn’s political claims must be considered under INA § 243(h) not INA §
244(a)(1).
Precise Rule of Law: The BIA has broad discretion in determining what
constitutes “extreme hardship” and may construe that term narrowly should it
deem it wise to do so.
Legalization
a.
b.
Immigration Reform and Control Act of 1986 (IRCA) ⇛ known as amnesty.
Allowed certain aliens who had been residing unlawfully in the United States
for several years to regularize their status.
Legalization or amnesty programs allow aliens living unlawfully in U.S. to
obtain permanent resident status.
(1) Special program for agricultural workers;
(2) Special program for Cubans and Haitians.
42
3.
Adjustment of Status
a.
b.
c.
4.
Private Bills
a.
b.
B.
INA § 245
Revamped in 1998 so that it only applies to immigrants not nonimmigrants.
IIRAIRA changed INA § 212(a)(9)(B)(i) so that aliens who have been
unlawfully present for more than 180 days were inadmissible for varying
numbers of years but only if those aliens have departed.
Number of private bills introduced and the number enacted have slowed to a
trickle in recent years.
Member of Congress must be persuaded to introduce a private immigration
bill. Then such bill is routed to the immigration subcommittee of the Judiciary
Committee of the respective houses.
LIMITED RELIEF
1.
Deferred Action
a.
b.
Similar to prosecutorial discretion
Case is put on the back burner. Concerned more with efficiency issues than
sympathy but once on back burner it is most likely to stay there. ⇛ See INS
Operations Instruction 242.1A(22)(May 1993)(casebook p. 505)
2.
Voluntary Departure: Two distinct types
a.
No removal hearing ⇛ take voluntary departure instead of hearing. All
discretionary.
(1)
Ineligibility requirements in INA § 240B(a)(1)
(a)
(b)
(c)
(2)
Aggravated felon, terrorists, previously removed and
returned early.
May need to post a bond.
Maximum period of time 120 days to leave the U.S.
Voluntary Departure at the conclusion of removal hearing must
convince the Judge you qualify.
(a)
(b)
Same groups of ineligibility.
Additional requirements:
•
•
In U.S. for one year;
Good moral character for 5 years preceding application;
43
•
b.
c.
d.
•
Maximum time you can stay in U.S. is 60 days.
No judicial review for order denying voluntary departure.
Without option of voluntary departure the system would shut down.
Two reasons why alien might agree to voluntary departure:
(1)
(2)
•
•
Clear and convincing evidence that have means and
intent to deport U.S.; and
Have the means and intent to depart the U.S.
Aliens who are formally ordered “removed” (other than upon arrival at
a port of entry) are ineligible to return to the U.S. for at least ten
years.
Often there is little to gain by waiting for a removal hearing and in the
meantime the alien must either post bond or remain in detention.
The alien who departs voluntarily might simply try to reenter
surreptitiously and evade apprehension.
Orantes-Hernandez v. Meese
Facts: El Salvadoran citizens, Π, seeking political asylum in the U.S. who were
taken into custody by the INS, ∆, filed a class action alleging that actions of INS
officials processing their claims violated numerous provisions of the Refugee Act
of 1980.
Issue: When processing El Salvadoran refugees, must INS officials inform them
of the existence of all of their rights and refrain from threatening or attempting to
persuade the refugee in any manner?
Analysis:
• INS officials must inform refugees of the existence of all of their rights and
must not employ threats or attempt to persuade the refugee in any manner.
• The record clearly reflects that INS officials have routinely taken advantage of
the lack of the Πs knowledge regarding their rights under U.S. immigration
laws.
• The INS must immediately remedy the ongoing and widespread wrongs it has
perpetuated.
• INS officials must clearly explain the meaning of political asylum, the legal
ramifications of and processes involved in applying for asylum, and refrain
from persuading the refugees to sign voluntary departure forms.
• They must also provide class members with access to telephones and
updated and accurate legal services lists.
Precise Rule of Law: When processing El Salvadoran refugees, INS officials must
inform them of the existence of all of their rights and must not employ threats or
attempt to persuade the refugee in any manner.
44
VIII. DEPORTATION PROCEDURE
A.
OVERVIEW
1.
Apprehension:
a.
b.
2.
Notice to Appear
a.
b.
c.
3.
c.
d.
If alien is unhappy with the outcome can appeal to BIA.
New rule can issue one sentence order to affirm an Immigration Court
opinion.
Review confined to the record.
Judicial Review: technical minefield. The requirements include:
a.
b.
7.
INA § 240(d)(4): What alien is entitled to.
Judge’s power: swears in witnesses, receive evidence rules of evidence do
not apply (i.e. hearsay is admissible), asks questions, issues oral decision.
Interpreter provided.
Administrative Review
a.
c.
6.
Alien pleads
Can ask for Voluntary Departure
Removal Hearing
a.
b.
5.
Issued within 24 hours.
Issue of detention.
Bond process
Master Calendar Hearing
a.
b.
4.
At border
Interior of U.S. (workplace)
For review the removal order must be administratively final.
Some removal orders are statutorily immune from judicial review (result of
IIRAIRA). These include orders of expedited removal, most removal orders
based on crime-related deportability grounds, and almost all denials of
discretionary relief.
Execution of Removal Order
a.
Motion to reopen = new evidence or
45
b.
c.
B.
Motion to reconsider = Judge got it wrong.
NO automatic stay of removal during appeal process.
SPECIFIC PROCEDURAL INGREDIENTS
1.
Entitled to representation someone who is of the alien’s choosing who is authorized
to be at the removal hearing. INA § 240(b)(4)(A):
a.
b.
c.
d.
•
2.
Aguilera-Enriquez v. INS (A Constitutional Right to Counsel?)
Facts: Π, a Mexican citizen convicted of cocaine possession, which consequently led to a
deportation order, appealed the immigration judge’s ruling that an indigent alien does not
have the right to appointed counsel in a deportation hearing.
Issue: Is the test for whether due process requires the appointment of counsel for an
indigent alien whether, in a given case, the assistance of counsel would be necessary to
provide “fundamental fairness”?
Analysis:
• “fundamental fairness” is the test to be applied in this case.
• Absence of counsel did not deprive Π of due process because Π raised no defense
to the charge that resulted in the deportation hearing. There was no argument
presented to the immigration judge with which a lawyer could have assisted Π.
• On appeal, Π was effectively represented by counsel and his argument was
considered upon briefing and oral argument.
• Therefore, Π’s lack of counsel before the immigration judge did not deprive him of
“fundamental fairness”.
• Dissent: deportation is serious so that counsel should be provided. Furthermore,
conclusions of a fair hearing are reached by second-guessing the record which was
made without Π’s participation. Legal permanent residents should have counsel
appointed.
Precise Rule of Law: The test for wither due process requires the appointment of counsel
for an indigent alien is whether, in a given case, the assistance of counsel would be
necessary to provide “fundamental fairness”.
Legal Aid
a.
b.
c.
3.
Attorneys in the U.S.;
Law students and law graduates not yet admitted to the bar;
Reputable individuals; and
Accredited representatives.
Legal services cut in 1996 so that there would no longer be representation of
people who are not legal permanent residents even if they get funding for it.
Pro Bono representation is difficult to organize.
INS can’t refuse counsel nor to communicate with counsel or transfer the
alien to speak with counsel.
Evidence and Proof
46
•
4.
•
INS v. Lopez-Mendoza (Admissibility of Evidence)
Facts: Πs challenged the admissibility of their admissions of unlawful presence in their
deportation hearing.
Issue: Must the exclusionary rule be applied in civil deportation proceedings?
Analysis:
• No. The general exclusionary rule, excluding evidence obtained pursuant to unlawful
arrests, is applied primarily in criminal proceedings. Its application in civil actions,
such as deportation hearings, is less clear.
• Using a cost-benefit analysis, the potential damage to the immigration system by
excluding the evidence far outweighs any deterrent effect the exclusionary rule would
have on INS officers. Therefore, even if Πs were arrested illegally, their admission
should not be excluded.
Precise Rule of Law: The exclusionary rule need not be applied in civil deportation
proceedings.
Burden of Proof and Sufficiency of the Evidence
Woodby v. INS
Facts: After resident aliens, Πs, were arrested and ordered deported, they challenged the
degree of proof required at the administrative level of their deportation proceedings.
Issue: Must he INS establish the facts supporting deportability by clear, unequivocal, and
convincing evidence?
Analysis:
• Yes. Although deportation hearings are civil proceedings, a person cannot be
banished from this country on no higher degree of proof than required in negligence
cases.
• The hardship of deportation is greater than denaturalization, and denaturalization
hearings require clear, unequivocal, and convincing evidence.
• Dissent: should be reasonable, substantial and probative evidence under INA §
242(b)(4). ⇛ Congress codified Woodby in 1996 by stating the INS must now prove
deportability by “clear and convincing evidence”. INA § 240(c)(3)(A).
5.
•
Motions to Reopen or Reconsider
INS v. Abudu
Facts: The BIA refused to reopen deportation proceedings for Π, contending that he had
not reasonably explained his failure to apply for asylum prior to the completion of his initial
deportation proceedings.
Issue: Is abuse of discretion the proper standard for courts to use when reviewing BIA
denials of motions to reopen cases?
Analysis:
• Yes. The BIA has broad discretion in reviewing cases, and the court of appeals erred
in requiring a strict standard of proof tantamount to the standard needed for a
summary judgment motion.
• Π had a great deal of time to raise the issue initially, and very little new evidence that
was previously unavailable has since surfaced to explain his failure to initially apply.
47
•
There is a strong public interest in bringing litigation to a close as promptly as is
consistent with the interest in giving the adversaries a fair opportunity to develop their
respective cases.
• This ruling applies only to denials based on a failure to initially raise the asylum issue.
Precise Rule of Law: Abuse of discretion is the proper standard for courts to use when
reviewing BIA denials of motions to reopen cases.
4.
Judicial Review of Removal Orders
•
•
Originally got review via habeas corpus, until 1961. Then Congress enacted
statute to put all removal reviews in the Court of Appeals and exclusions in district
courts. Detention decisions are an open question.
Petition for review in the court of appeals is still the exclusive vehicle for obtaining
judicial review of an administratively final removal order. However, IIRAIRA
dramatically curtailed the judicial role.
a. Petitions for Review: General Parameters INA § 242
(1) Appeal must be within 30 days after the final removal order.
(2) A motion to reopen or reconsider does not toll the clock. No review of
prosecutorial discretion.
(3) Since IIRAIRA there is no stay of removal unless the court affirmatively
grants one. INA § 242(b)(3)(B).
(4) Other limitations:
•
•
•
•
b.
Aliens must first exhaust all administrative remedies that are available as
of right. INA § 242(d)(1).
Res judicata and collateral estoppel are fully applicable.
Another court, with limited exceptions, cannot have previously decided
the validity of the removal order. INA § 242(b)(4)(A).
“the administrative findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.” INA §
240(c)(3).
Unreviewable Decisions Related to Removal
(1)
Almost any of the crime-related grounds are barred from obtaining
judicial review.
(a)
(b)
(c)
(d)
(e)
Aggravated felonies
Controlled substances
Firearms offenses
Other miscellaneous crimes
Two moral turpitude crimes punishable by sentences of at
least one year.
48
(2)
c.
Congress has also forbidden courts to review “any judgment
regarding the granting of relief.”
• IIRAIRA changes: limited class action and can get injunctive
relief for class action. Discretionary relief.
• Attorney General has the discretionary power to extend the
expedited removal procedure to aliens who are present in the
United States and unable to prove two years of continuous
physical presence. INA § 235(b)(1)(A)(iii).
Limitations on Other Forms of Action and Other Remedies
(1)
Habeas Corpus
(a)
(b)
Whether or not habeas corpus extends in a deportation
context turns on issues such as: meaning of custody, and
the scope of review (only the lawfulness of the decision to
detain, or the lawfulness of the decision to deport).
Three constitutional arguments might be mounted against
statutory provisions that purport to oust judicial review:
•
•
•
(2)
Injunctions and Class Actions
(a)
(b)
d.
Procedural due process (fundamental fairness requires
an opportunity for judicial review of administrative or
even congressional decision);
Separation of powers (it is the job of the judiciary to
decide what the law it); and
Prohibition against suspending habeas corpus.
The Supreme Court in McNary v. Haitian Refugee Center
held that the district court had jurisdiction to hear the case as
a class action. Postponing adjudication until individual
deportation orders were entered and reviewed “would foster
the very delay and procedural redundancy that Congress
sought to eliminate in passing [the petition for review
provision].”
Declaratory and injunctive relief are still available as
remedies and class actions remain viable in immigration
though IIRAIRA has narrowed their use considerably in the
context of arriving aliens.
Consolidating Reviewable Claims
(1)
Orders related to removal: discretionary relief; motions to reopen or
reconsider; requests by nonimmigrants for extensions of stay;
change of status; permission to work; or permission to transfer
schools; temporary stays of removal, etc.
49
• Cheng Fan Kwok v. INS
Facts: After Π, a Chinese seaman, deserted his ship and stayed in the
country illegally, the appellate court dismissed, for lack of jurisdiction, his
petitioner to review a denial of a stay of deportation.
Issue: In deportation matters, do courts of appeals have jurisdiction to review
orders denying ancillary relief only if those orders are either entered in the
course of a proceeding conducted under INA § 242(b) or are denials of
motions to reopen such proceedings?
Analysis:
• In deportation matters, courts of appeals have jurisdiction to review
orders denying ancillary relief only if those orders are either entered in
the course of a proceeding conducted under INA § 242(b) or are denials
of motions to reopen such proceedings.
• INA § 106(a) gives judicial review in deportation matters to courts of
appeals for final orders entered pursuant to INA § 242(b).
• In instances where INA § 106(a) is inapplicable, the alien first must turn
to an appropriate district court. Here, the order for a stay of deportation
comes from a proceeding after the termination of the § 242(b) hearing
therefore it is not covered by § 106(a) and courts of appeals do not have
jurisdiction to hear appeals from denials of stays.
Precise Rule of Law: In deportation matters, courts of appeals have
jurisdiction to review orders denying ancillary relief only if those orders are
either entered in the course of a proceeding conducted under INA § 242(a) or
are denials of motions to reopen such proceedings.
• Mohammadi-Motlagh v. INS
Facts: Π, an Iranian national, entered the U.S. under a student visa. He
transferred schools without authorization therefor from the INS and only
several months later applied for a transfer. The INS denied the request and
instituted deportation proceedings. In a hearing before an immigration judge
Π attempted to argue the merits of the transfer denial. The judge did not
consider the argument, contending he had no jurisdiction to review such a
denial. The judge found Π deportable. BIA affirmed, also after having
refused to review the denial of transfer.
Issue: Is an order denying a school transfer to a student visa holder
appealable?
Analysis:
• An order denying a school transfer is not appealable.
• Direct appeal may be had only of final orders of deportation pursuant to a
§ 242(b) proceeding.
• Exception when an appeal would be based only on legal issues, with no
factual determinations involved.
• A challenge to the immigration judge’s ruling can only be made in federal
court.
50
Precise Rule of Law: An order denying a school transfer to a student visa
holder is not appealable.
5.
Rescission of Adjustment of Status
• Matter of Belenzo
Facts: ∆ entered the U.S. as a visitor in August of 1971 and obtained permanent
resident status by marrying a U.S. citizen in March 1972. He was divorced in 1973.
∆ last entered the U.S. in 1976. Thereafter, the INS discovered that ∆ was still
married to a Philippine citizen that he had married in 1964. The INS brought
deportation proceedings against ∆. The judge dismissed the case on the grounds
that the action was brought over five years after ∆’s status adjustment in 1972,
pursuant to INA § 246(a), which limits rescissions of adjustments to a five-year time
period. The INS appealed and the BIA affirmed the dismissal. The INS filed a motion
for reconsideration and the BIA denied the motion. The INS appealed to the attorney
general.
Issue: Is the five-year limitation period of INA § 246 applicable to a deportation
proceeding?
Analysis:
• Five-year limitation period of INA § 246 is not applicable to deportation
proceedings.
• When an alien’s status has been adjusted pursuant to INA § 245, the INS has up
to five years to rescind that adjustment. However, a deportation proceeding is
different from a status rescission proceeding.
• The INS seeks deportation not rescission in this case and as such ∆ is not
entitled to the five-year limitation period.
• The deportation provisions of the INA, as opposed to those governing rescission
of status proceedings, contain no time limitation and furnish generous procedural
safeguards.
Precise Rule of Law: The five-year limitation period of INA § 246 is not applicable to a
deportation hearing.
51
IX. REFUGEES
A.
OVERVIEW
1.
2.
President allocates the number of refugees accepted in the United States every year
under INA § 207(a)(2).
Definition of a refugee found in INA § 101(a)(42) contains the following elements:
(a)
3.
4.
Refugee differs from an asylum applicant in that the refugee applies from abroad and
the refugee is subject to numerical limitations.
In addition to the statutory requirement the alien:
(a)
(b)
(c)
5.
7.
8.
9.
labor certification;
self-sufficiency;
valid entry documents and visas;
literacy; and
foreign medical graduates.
The Attorney General may waive other inadmissibility provisions for humanitarian
purposes.
Each refugee must be sponsored by a responsible person (usually a relative) and/or
an organization.
After approval the refugee must enter the United States within 4 months.
After one year in the U.S. the refugee is eligible to apply for adjustment of status to
lawful permanent residence.
(a)
B.
must be generally admissible as an immigrant under INA § 212(a);
must not be firmly resettled in any other country; and
must be determined to be of special humanitarian concern to the United
States.
Several of the inadmissibility provisions of INA § 212(a) do not apply to refugees
including:
(a)
(b)
(c)
(d)
(e)
6.
Possession of a “well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or political
opinion.”
Where asylum status may be terminated during this period if conditions
improve in the alien’s home country, refugee status is not conditional in this
respect. INA §§ 207(c)(4), 208(c)(2).
ASYLUM AND NONRETURN
52
•
Non-return
• The Refugee Act of 1980 amended INA § 243(h) which was changed by IIRAIRA to
become § 241(b)(3).
• Attorney General determines whether an alien may not be removed.
•
Asylum
• More far-reaching than non-return.
• See INA §§ 208 and 209(b,c).
• If the INS has already initiated removal proceedings, the alien:
• files the application for asylum or non-return with the immigration judge; then
• the resulting decision whether to order removal is appealable to the BIA; and
• if the aliens wishes the decision is reviewable in court.
• If no removal proceedings have been instituted the alien may take the initiative and
apply to the INS for either asylum or nonrefoulement or both.
• Except in “expedited removal” cases the applicant receives a “nonadversarial”
interview.
• Applicant has right to counsel.
• May submit affidavits of witnesses and other documents.
• Decision of the immigration judge is subject to both a BIA appeal and judicial review.
1.
Persecution or Fear of Persecution
• Matter of Acosta
Facts: ∆ was threatened in El Salvador for being part of a taxi collective and feared
persecution if he returned.
Issue: Is an alien eligible for a discretionary grant of asylum only if he qualifies as a
“refugee” under INA § 101(a)(42)(A)?
Analysis:
• An alien is eligible for a discretionary grant of asylum only if he qualifies as a
“refugee” under INA § 101(a)(42)(A).
• In order to qualify as a refugee, the alien must:
• Have a fear of persecution;
• The fear must be well founded;
• The persecution feared must be on account of race, religion, nationality,
membership in a particular social group or political opinion; and
• The alien must be unable or unwilling to return to his country of nationality or
to the country in which he last habitually resided because of persecution or
his well-founded fear of persecution.
• ∆ is motivated by a fear of persecution but that fear is not well founded.
• ∆ admitted that the threats have subsided and that he would not work as a
taxi driver if deported.
• ∆ does not satisfy the third or fourth requirements because any persecution
was not because of a political opinion or membership in a social group. ∆
can always move to another city in El Salvador.
53
Precise Rule of Law: An alien is eligible for a discretionary grant of asylum only if
he qualifies as a “refugee” under INA § 101(a)(42)(A).
• Matter of Izatula
Facts: ∆ refused to serve in the Afghan army and supported the Afghan rebels,
for which his life was threatened.
Issue: Must an alien prove a risk of being punished for political activities and that
any punishment is not sanctioned by sovereign authority in order to establish a
well-founded fear of persecution?
Analysis:
• An alien must prove a risk of being punished for political activities and that
any punishment is not sanctioned by sovereign authority in order to establish
a well-founded fear of persecution.
• Even though Soviet troops have pulled out of Afghanistan, ∆ still has a
legitimate fear that the punishment he would receive for supporting the
mujahedin would result from a legitimate, internationally recognized form of
persecution.
• ∆’s brother was punished by the government and never heard from again.
• Denial reversed.
Precise Rule of Law: An alien must prove a risk of being punished for political
activities and that any punishment is not sanctioned by sovereign authority in
order to establish a well-founded fear of persecution.
2.
“On Account of Race, Religion, Nationality, Membership in a Particular Social Group,
or Political Opinion”
a.
Race, Religion, Nationality (Definitions from UNHCR Handbook)
(1)
(2)
(3)
b.
•
Race includes “in its widest sense to include all kinds of ethnic
groups that are referred to as ‘races’ in common usage.”
Nationality includes not only citizenship but also “membership of an
ethnic or linguistic group.”
No definition of religion in handbook.
Political Opinion
INS v. Elias-Zacarias
Facts: Π refused to fight with a guerrilla army in Guatemala and feared
persecution by that army upon his return.
Issue: Does a guerrilla organization’s attempts to coerce a person into performing
military service necessarily constitute “persecution on account of political
opinion”?
Analysis:
• No it doesn’t.
• Π’s refusal to aid the guerrillas involved no political opinion, but simply a fear
of retaliation.
54
•
Refusing to take sides in a governmental dispute does not necessarily
indicate a political opinion.
• Π has no sufficiently argued that the guerrillas’ motive for their persecution of
him will be based on his political opinion rather than his refusal to fight with
them.
• Asylum denied.
Precise Rule of Law: A guerrilla organization’s attempts to coerce a person into
performing military service does not necessarily constitute “persecution on
account of political opinion.”
c.
“Particular Social Group”
(1)
General Definition of “Social Group”
• Sanchez-Trujillo v. INS
Facts: Π, a young, urban, working-class male of military age, illegally
immigrated to escape his embattled nation.
Issue: Does the term “particular social group” as used in the Refugee Act of
1980 imply a collection of people closely and voluntarily affiliated with each
other who are actuated by some common impulse or interest?
Analysis:
• Yes, the voluntariness of the association is paramount.
• Here, the group of young, working-class males of military age is too
broad and vague to constitute an association with a social group.
• Major segments of the population of an embattled nation will rarely if ever
constitute a distinct social group for the purposes of establishing refugee
status.
Precise Rule Of Law: The term “particular social group” as used in the
Refugee Act of 1980 implies a collection of people closely and voluntarily
affiliated with each other who are actuated by some common impulse or
interest.
• Matter of Acosta
Facts: Π was threatened in El Salvador for being part of a taxi collective and
feared persecution if he returned.
Issue: Does “persecution on account of membership in a social group” mean
persecution that is directed toward an individual who is a member of a group
of persons, all of whom share a common, immutable characteristic?
Analysis:
• Yes, the common characteristic that defines a group must either be one
that members of the group cannot change or should not be forced to
change because it is fundamental to their individual identities or
consciences.
• Here, ∆’s taxi collective does not meet the standards of the particular
social group.
55
•
The common characteristics binding the group are being a taxi driver in
San Salvador and refusing to participate in work stoppages, neither of
which is immutable.
Precise Rule Of Law: “Persecution on account of membership in a ‘social
group’ means persecution that is directed toward an individual who is a
member of a group of persons, all of whom share a common, immutable
characteristic.
• Two competing definitions of “Social Group”
#1: 9th Circuit test: voluntary association
#2: “Immutable” test from Acosta
(2)
Sexual Orientation and “Social Group”
• Matter of Toboso-Alfonso
Facts: While living in Cuba, ∆ was threatened by both the public and the
Cuban government for being a homosexual. The police kept a file on him,
and he was forced to attend maintenance hearings simply because of his
homosexuality. Additionally, he was harassed at work and at home. He left
Cuba and during his exclusion proceedings applied for asylum and nonreturn. The immigration judge discretionarily denied asylum based on a prior
drug conviction, but granted non-return. The INS appealed.
Issue: Can homosexuals constitute a particular social group subject to
persecution?
Analysis:
• Yes, here ∆’s homosexuality is an immutable characteristic, and, once
identified by the Cuban government, he was subjected to persecution.
• The persecution resulted not from any acts by ∆, but simply because of
his status as a homosexual.
• If sent back to Cuba, ∆ would face persecution, and his fear is well
founded.
• Affirmed.
Precise Rule of Law: Homosexuals can constitute a particular social group
subject to persecution.
(3)
Gender and “Social Group”
• Fatin v. INS
Facts: Π, an Iranian woman, feared the Islamic rules imposed on women by
the Iranian government.
Issue: In order for an alien to obtain asylum using gender as a “particular
social group”, must the alien show that members of that group are
“persecuted” for their membership?
56
Analysis:
• Yes, here, while the characteristic of being a woman is immutable, Π has
failed to demonstrate that she would be singled out for persecution for
being a member of that group.
• She would simply be required to follow the same laws as all other women
in Iran, and the mandate to wearing veils is insufficient to constitute
persecution.
• Denial of application for asylum is affirmed.
Precise Rule Of Law: In order for an alien to obtain asylum using gender as a
“particular social group,” the alien must show that members of that group are
“persecuted” for their membership.
• Matter of Kasinga
Facts: ∆, a nineteen year old citizen of Togo, was a member of a tribe that
practiced female genital mutilation. Her aunt, as her guardian, forced her into
a polygamous marriage, and both the aunt and the new husband were going
to force ∆ to undergo FGM. The Togolese police and government knew of
the practice and did nothing to stop it. ∆ had nowhere to hide in all of Togo
or neighboring Ghana. She procured a false passport to enter the U.S. but
immediately requested asylum. The immigration judge denied asylum and ∆
appealed.
Issue: In certain cases, is FMG a sufficient basis for a grant of asylum?
Analysis:
• Yes, here the practice in ∆’s particular social group satisfies the
requirements of asylum.
• ∆’s immutable social group consists of young women of her Togolese
tribe who have not undergone FGM and who oppose the practice
• There is a well-founded fear of persecution, on account of her social
group, if she returns to Togo.
• Additionally, ∆’s fears are countrywide.
• Such a severe bodily invasion meets the standard required for asylum,
even if done with a benign intent.
• Denial of asylum reversed.
Precise Rule of Law: In certain cases, female genital mutilation is a sufficient
basis for a grant of asylum.
d.
“On Account Of”
(1)
(2)
(3)
Because of the indeterminate definitions of terms like “persecution”,
“political opinion”, and “social group” results will be inconsistent
because of the level of judgment required in making the decisions.
“On account of” requires a nexus between the alleged persecution
and one of the five statutory grounds. Except for Elias-Zacarias no
court has seriously explored what the nexus is.
This term is particularly important in persecution on account of
gender.
57
(a)
(b)
Fatin ⇛ court acknowledged that women form a social group
but denied relief (under that theory) because the woman
could not show she was being persecuted “solely” on
account of her gender.
Kasinga poses similar questions on how to define the social
group in a way that would enable the BIA to connect the
persecution to the social group:
•
•
•
(4)
(5)
(6)
(7)
3.
Women who were members of Kasinga’s tribe?
Women subjected to the particular FGM method her tribe
used?
Women who are opposed to FGM?
IIRAIRA changed the wording of INA § 241(b)(3) from “on account of”
to “because of”.
“But for” analysis of causation? What happens when there are two or
more facts? ⇛ There can be (and usually are) two or more but-for
causes of the same consequence.
If a person discriminates on the basis of one of the named
classifications the fact that the persecutor is additionally
discriminating on some other basis doesn’t lessen the harm or
diminish the victim’s need for protection.
As long as the persecution would not have occurred but for the
victim’s race, religion, nationality, political opinion or social group,
then the person meets the statutory definition of “refugee”.
“Well-Founded” Fear and “Would Be Threatened”: The Standards of Proof
•
INS v. Cardoza – Fonesca
Facts: ∆ entered the U.S. from Nicaragua and remained longer than permitted by
her visa. Upon her failure to voluntarily depart the U.S., the INS began
deportation proceedings against her. While conceding that she remained in the
U.S. illegally, ∆ requested withholding of deportation under § 243(h) and asylum
as a refugee under § 208(a). To support her request under § 243(h), she
attempted to show that if she were returned to Nicaragua, her “life or freedom
would be threatened” on account of her political views. To support her request
under § 208(a), she attempted to show that she had a “well-founded fear of
persecution” upon her return. Evidence supporting both claims related primarily
to the activities of her brother, who had been tortured and imprisoned because of
his political activities in Nicaragua. The immigration judge applied a clear
probability of persecution standard to both claims and found she was not entitled
to either form of relief. On appeal, the BIA agreed with the immigration judge. In
the Court of Appeals for the 9th Circuit, ∆ contended that the immigration judge
and the BIA erred in applying the same standard to both claims. She asserted
that the “well-founded fear” standard should have been applied to her § 208(a)
claim. The court agreed, holding that the “well-founded fear” standard that
58
governs asylum proceedings is different from the “clear probability” standard that
governs withholding of deportation proceedings. The appeals court remanded
∆’s asylum claim to the BIA for evaluation under the proper legal standard. The
Supreme Court granted certiorari to resolve a circuit conflict on this question.
Issue: (1) Is the attorney general required to withhold deportation of an alien who
demonstrates that his life or freedom would be threatened on account of one of
the listed factors if he is deported? (2) Is the attorney general authorized, in his
discretion, to grant asylum to an alien who is unable or unwilling to return to his
home country because of persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a particular social group, or
political opinion?
Analysis:
(1)
• Yes, the “would be threatened” language of § 243(h) has no subjective
component, but requires the alien to establish by objective evidence that it is
more likely than not that she will subject to persecution upon deportation.
• An alien who satisfies § 243(h)’s stricter standard is automatically entitled to
withholding of deportation.
(2)
• Yes, by contrast, § 208(a) is a discretionary mechanism which gives the
attorney general the authority to grant the broader relief of asylum to
refugees.
• The reference to “fear” in the § 208(a) standard obviously makes the eligibility
determination turn to some extent on the subjective mental state of the alien.
• It is significant that when Congress amended the INA in 1980, adding §
208(a), the standard of eligibility for relief under § 243(h) was not amended,
although Congress did change § 243(h) from a discretionary to a mandatory
provision.
• The language of the two sections and the actions of Congress do not lend
themselves to an interpretation that the two standards are identical.
Precise Rule of Law: (1) Under INA § 243(h), the Attorney General is required to
withhold deportation of an alien who demonstrates that his life or freedom would
be threatened on account of one of the listed factors if he is deported. (2) Under
INA § 208(a), the Attorney General is authorized, in his discretion, to grant
asylum to an alien who is unable or unwilling to return to his home country
because of persecution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or political opinion.
BIA chose to follow the interpretation of the Fifth Circuit which held that “an alien
possesses a well-founded fear of persecution if a reasonable person in her
circumstances would fear persecution if she were to be returned to her native
country.”
4.
Methods of Proof
59
a.
Material Facts
(1)
Membership in a Persecuted Group
(a)
(b)
(2)
Would such group persecution satisfy the “singling out”
requirement?
Even if the group consequences can be termed
“persecution”, does membership in the persecuted group
establish that the particular applicant is sufficiently likely to
incur those consequences?
Past Persecution
(a)
Role of past persecution: for non-return must show more
than past persecution ⇛ must show future persecution.
(3)
Relevant Evidence
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
Newspaper articles about the country or even about the
applicant.
Membership card to opposed political group.
Medical reports
Testimony from family members
Documents filed for application.
State Department Opinions
Advice from UNHCR
Expert testimony (academics, professors).
Applicant’s testimony is most important.
• Damaize-Job v. INS
Facts: Π, a Miskito Indian from Nicaragua, appealed the denial of his
application for asylum and sought to prevent deportation, arguing
that if he were returned to Nicaragua he would be persecuted and
likely killed.
Issue: For purposes of gaining asylum under INA § 208(a), and
preventing deportation under § 243(h), do newspaper accounts of
persecution in the individual’s country of origin, the disappearance of
family members, prior arrests or imprisonment due to political beliefs
or ethnicity, and explicit threats on the individual’s life provide
substantial evidence of a clear probability or well-founded fear of
persecution?
Analysis:
• Yes, Π has demonstrated ample evidence of all of the factors.
• That he was able to remain unharmed in Nicaragua for a time
before leaving, and to obtain a Nicaraguan passport, do not
60
support the INS’s holding that he did not demonstrate a
reasonable or legitimate fear of persecution.
• Further supporting Π’s claims are records from former U.S.
Secretary of State characterizing the treatment of Miskitos in
Nicaragua a “genocide”.
• Additionally, the immigration judge’s questioning of Π’s credibility
was based on entirely improper reasons. The fact that Π
confused some dates, failed to apply for asylum in other
countries he stopped in before the U.S., and failed to marry the
mother of his children are all invalid grounds upon which to base
a finding that an asylum applicant is not credible.
• Because no valid reasons were expressed for doubting his
credibility, the conclusion must be reached that he was otherwise
credible.
Precise Rule of Law: For purposes of gaining asylum under INA §
208(a), and preventing deportation under INA § 243(h), newspaper
accounts of persecution in the individual’s country of origin, the
disappearance of family members, prior arrests or imprisonment due
to political beliefs or ethnicity, and explicit threats on the individual’s
life all provide substantial evidence of a clear probability or wellfounded fear of persecution.
5.
Exceptions to Eligibility
a.
Firm Resettlement
(1)
(2)
(3)
(4)
(5)
INA § 207(c)(1): disqualification for refugees who are “firmly
resettled” in third countries.
INA § 208(b)(2)(A)(vi) applies the above to asylum applicants.
Justice Department regulations find that a person will be considered
“firmly resettled” in another country if, before arriving in the U.S., the
person received an offer to resettle permanently in that country,
either before entering that country or while there.
Real issue is over whether the refugee’s ties to the third country are
“significant”.
As a policy matter:
(a)
(b)
(c)
(6)
Assume that a refugee has received an offer of permanent
resettlement from a country that he or she passed through
en route to the U.S.;
That the conditions of residence in that country were not
restrictive; and
That the person has no significant ties to either that country
or the U.S.
IIRAIRA § 604(a) permits the INS to remove asylum applicants even
to third countries in which they are not firmly resettled.
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(a)
(b)
b.
There must be a bilateral or multilateral agreement
Certain minimum safeguards have to be present.
Past Wrongdoing
(1)
INA §§ 208(b)(2)(A)(i to v) and 241(b)(3)(B).
(a)
(b)
(c)
Criminal conduct: having been convicted of a serious nonpolitical crime.
If applicant has ever been a persecutor.
If the Attorney General reasonably believes the applicant is a
danger to the U.S.
• Matter of Carballe
Facts: Π, a Cuban citizen convicted in the U.S. and sentenced on counts of
robbery with a firearm, attempted robbery with a firearm, grand theft, and
accessory after the fact, filed an application for asylum and withholding of
deportation, claiming that he would be persecuted if returned to Cuba.
Issue: Under INA § 243(h)(2)(B), is an alien ineligible for withholding of
deportation if he has been finally convicted of a particularly serious crime of
the type indicating that he poses a danger to the community?
Analysis:
• Yes, the language of the section and its legislative history make clear that
only one test is required.
• The phrase “danger to the community” is an aid in defining “particularly
serious crime,” not a mandate that the court must determine whether an
alien is likely to become a recidivist.
• The focus is on the nature of the crime; there is no statutory requirement
that any separate determination be made.
• Π was convicted of multiple felonies involving the use of a firearm
against other individuals. On their face these are dangerous crimes.
• Π is statutorily precluded from relief under INA § 243(h)(2)(B).
Precise Rule of Law: Under INA § 243(h)(2)(B), an alien is ineligible for
withholding of deportation if he has been finally convicted of a particularly
serious crime of the type indicating that he poses a danger to the community.
6.
Discretion in Asylum Cases
a.
BIA faces two problems:
(1)
(2)
The perpetration of fraud and
The bypassing of the more orderly procedure for the admission of
overseas refugees.
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7.
Procedure
a.
b.
Two separate adjudication systems
(1)
INS
(2)
EOIR ⇛ immigration judges and the BIA.
Application process
(1)
(2)
(3)
Asylum officers in the INS receive affirmative applications (when
alien is not in removal proceedings).
New regulations enacted in 1994 the INS asylum officer no longer
“denies” an application for asylum or non-return but after a more
abbreviated procedure, the officer either grants the application or
refers the case to an immigration judge for the initiation of removal
proceedings.
In 1996 AEDPA created a new procedure called “expedited removal”
which IIRAIRA amended. ⇛ Certain arriving aliens, especially those
without documents and those whom immigration inspectors suspect
of fraud, are relegated to a more summary process.
c.
Problems that are the center of debate:
(1)
(2)
(3)
(4)
(5)
•
Political Bias where asylum cases are improperly decided based on
the foreign relations agenda of the State Department.
Long Delays where the most serious overload occurs at the
administrative level.
Unfounded Claims slow down the process.
Fiscal Costs based upon appeals and detention costs.
Procedural Fairness regarding whether the alien truly understands
his/her procedural rights. This may arise regarding the acceptability
of interpreters.
Sale v. Haitian Centers Council
Facts: After the number of Haitians seeking asylum in the U.S. increased dramatically,
President Bush issued an order forcing them to return to Haiti without the opportunity to
establish their qualifications as refugees.
- In 1981 the U.S. and Haiti entered into an agreement authorizing the U.S. Coast
Guard to intercept vessels containing undocumented aliens. Under this agreement, the
Coast Guard would conduct interviews on board to determine who should be repatriated
and who should be permitted to continue to the U.S and file a formal application for
asylum as a political refugee. Following a military overthrow of Haiti’s government the
number of Haitians attempting to flee increased to the point of capacity for the makeshift
detention area at the U.S. base in Cuba. President Bush had two alternatives: (1) to let
the Haitians come to the U.S. and file their applications there or (2) to repatriate them
back to Haiti without a hearing. The Haitian Centers Council (HCC) representing the
Haitians filed suit complaining that the screening procedures did not adequately protect
63
statutory and treaty rights to apply for refugee status and avoid repatriation. The district
court granted the HCC’s preliminary injunction. The HCC then applied for a restraining
order to enjoin implementation of the Executive Order, claiming it violated INA § 243(h),
which protects from deportation any alien whose life would otherwise be threatened, and
Article 33 of the UNPRSR. The court denied the application for a restraining order,
concluding that INA § 243(h) was not an available source of relief for aliens in
international waters. The court of appeals reversed the government appeals and the
Supreme Court granted certiorari.
Issue: Does either the non-return provision of INA § 243(h) or Article 33 of the United
Nations Protocol Relating to the Status of Refugees (UNPRSR) apply to actions of forced
repatriation by the Coast Guard on the high seas?
Analysis:
• No, the statutory language chosen by Congress, its failure to suggest any
extraterritorial application, and the legislative history of the current version of INA §
243(h), clearly indicate that it was intended to apply in only one context: to determine
the domestic procedures by which the attorney general decides whether deportable
and excludable aliens may remain in the U.S.
• As to Article 33 of the UN Convention, both the text and negotiating history of the
Article affirmatively indicate that it was not intended to have extraterritorial effect.
• The most reasonable interpretation of Article 33 is that it only obligates a country with
respect to aliens within its territory.
• An alien intercepted on the high seas is in no country at all.
• A treaty cannot serve to impose uncontemplated extraterritorial obligations on those
who ratified it that are broader than the text commands.
• Reversed.
Precise Rule of Law: Neither the non-return provision of INA § 243(h) nor Article 33 of the
UNPRSR applies to actions of forced repatriation by the Coast Guard on the high seas.
C.
TEMPORARY SAFE HAVEN
1.
United States Domestic Law: Temporary Protected Status and Its Predecessors
a.
Two forms of relief for aliens who are seeking to escape civil war or similar
forms of generalized violence but who are not within the statutory definition of
a “refugee”:
(1)
The Attorney General has the discretion to “parole” aliens who have
(2)
not yet entered the U.S. ⇛ used to be a blanket approach but
IIRAIRA amended so that the executive branch has no clearly
available statutory authority to bring into the U.S. a group of people
who face dangers other than persecution.
Extended Voluntary Departure (EVD) for those who have already
entered the U.S., either unlawfully or as lawful immigrants.
(a)
EVD was technically an exercise of the Attorney General’s
power to grant voluntary departure in several respects:
•
EVD was granted on a blanket basis;
64
•
•
•
•
•
(b)
b.
2.
EVD is disadvantageous in that it is ungoverned by a legally
enacted standards and therefor subject to the same political
biases. That critics have imputed to the overseas refugee
admission program and to asylum adjudication. It also
leaves a recipient with a highly uncertain and insecure
status.
Temporary Protected Status (TPS)
(1)
(2)
c.
Nationals of a particular war-torn country though often
limited to those who had already entered the U.S. by the
date of the EVD announcement or some other date.
Generally EVD was granted for a lengthy time period.
Grant would typically be renewed if the danger had not
sufficiently subsided by the initial expiration date;
In some instances Congress eventually enacted special
legislation to allow adjustment of status to permanent
residence.
While local INS officials and immigration judges routinely
grant voluntary departure on a case-by-case basis under
INA § 240B, only the Attorney General acting nationwide
and often upon the advice of the State Department,
could grand EVD.
INA § 244.
See p. 944 of casebook
American Baptist Churches v. Thornburgh: class action settlement enabled
certain Salvadorans and certain Guatemalans to register within a time frame
and receive TPS.
International Law Solutions
a.
b.
c.
Refugee definition contained in the 1951 Convention should be expanded to
cover aliens who flee armed conflict.
The Geneva Convention Relative to the Protection of Civilian Persons in
Time of War, provides a right not to be returned to a country in which armed
conflict would threaten one’s life.
Customary international law.
(1)
The BIA and at least one court have rejected arguments based on
customary international law, finding the evidence inadequate to
demonstrate opinio juris.
(2)
Immigration judge Nejelski reached a contrary conclusion ⇛ holding
the existence of a customary norm of international law was a
question of fact.
65
X.
Undocumented Aliens
A.
Impact
1.
Economic
a.
b.
c.
d.
e.
f.
2.
Shift from adjudication to enforcement regarding undocumented aliens.
a.
b.
B.
Displacement of American workers.
Adverse affects on wages or working conditions.
Aliens as victims of exploitation. In comparison to conditions at home?
Contribution to federal, state, and local taxes?
Creation of jobs by consuming goods and services and by sustaining
marginal enterprises that also employ Americans.
Providing labor to help keep down consumer costs.
IIRAIRA heightened border enforcement.
Brought about more border violence.
EMPLOYER MISCONDUCT
1.
Employer Sanctions
a.
b.
IRCA enacted in 1986 which targeted illegal immigration.
INA § 274A: imposed civil fines and in certain instances criminal punishment,
on those who knowingly hire aliens not authorized to work.
c.
Concern over applicability of IRCA to casual domestic employment. ⇛
Justice Department defines employment as to not include: “casual
employment by individuals who provide domestic service in a private home
that is sporadic, irregular, or intermittent.”
“Knowing” is interpreted to include “knowledge which may fairly be inferred
through notice of certain facts and circumstances which would lead a person,
through the exercise of reasonable care, to know about a certain condition.”
d.
e.
f.
Verification system ⇛ INA § 274A(a, b).
GAO report found that employer sanctions had caused widespread
discrimination, both in hiring decisions and in decisions whether to demand
documentation. ⇛ Controversial also in the report’s accuracy.
(1)
2.
To reduce discrimination the report suggested enhanced efforts to
educate employers and the development of a more effective
document system.
Prohibitions on Discrimination
66
a.
b.
Employer sanctions would be coupled with provisions that expressly
prohibited designated forms of job discrimination and established new
administrative machinery for enforcing those prohibitions. INA § 274B.
Present version of INA § 274B reflects a series of amendments made mostly
by the Immigration Act of 1990. ⇛ Most changes were designed to
strengthen the program, both substantively and procedurally, so that it could
combat more effectively the widespread discrimination identified by the final
GAO report.
C.
UNDOCUMENTED ALIENS AND PUBLIC BENEFITS
1.
Plyler v. Doe
Facts: After the Texas Legislature revised its education laws to preclude children not
legally admitted into the U.S. from enrolling in public schools, a class action suit was
filed seeking permanent injunctive relief to prevent the children from being excluded.
The district court preliminarily enjoined the school district from enforcing the statute,
holding that the provision violated the Equal Protection Clause of the 14th
Amendment and that illegal aliens were entitled to the protection of the Clause. The
court of appeals upheld the district court’s injunction; however, it disagreed on the
application of the standard used to analyze the statute. Texas appealed the Supreme
Court granted certiorari.
Issue: If a state chooses to deny a discrete group of children the free public education
that it offers to other children residing within its borders, must the denial be justified by
a showing that it furthers a substantial state interest?
Analysis:
• Yes, the Equal Protection Clause provides protection to all “persons” within
Texas’s jurisdiction, not just to its citizens.
• Those who elect to enter the U.S. illegally should be prepared to bear the
consequences, including deportation. However, the children of illegal entrants
are not comparably situated.
• The statute is directed against children and imposes its discriminatory burden on
the basis of a legal characteristic over which children have practically no control.
• Public education is pivotal in preparing individuals for a successful life and in
sustaining our political and cultural heritage. To limit access to education is to
force an enduring disability on the children at issue. Because of the importance
of the issues presented, the discrimination contained in the statute cannot be
justified unless it can be proven to further a substantial state interest.
• Texas argues that the fact that the children are subject to deportation reflects
congressional disapproval of illegal aliens. While this may be so, it was likely not
Congress’s intention to withhold education from these children as long as they
remain in the country though no fault of their own.
Precise Rule of Law: If a state chooses to deny a discrete group of children the free
public education that it offers to other children residing within its borders, the denial
must be justified by a showing that it furthers a substantial state interest.
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XI. Citizenship
A.
SIGNIFICANCE OF CITIZENSHIP
1.
2.
3.
B.
Vote
Federal jobs
Kids are citizens
ACQUIRING CITIZENSHIP
1.
Citizenship Acquired at Birth
a.
Jus Soli: born in U.S. regardless of parents’ status. Comes from 14th
Amendment.
b.
Jus Sanguinis: citizenship via descent ⇛ parents
(1)
(2)
2.
•
Have citizenship if one parent is a citizen and you were born outside
of the U.S.
Specific statutory requirements.
Citizenship Acquired After Birth
Attorney General has authority to grant naturalization.
a.
Administrative Naturalization (vs. Derivative Naturalization ⇛ through the
administrative naturalization of parents)
(1)
(2)
INA § 316(a)
Substantive Criteria:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
Lawful permanent residence.
Residence and Physical Presence: applicant must reside
continuously in the U.S. during the five-year period
immediately preceding the filing of an application. INA §
319(a).
Good Moral Character. INA § 319(a)(3).
Age: only those 18 and older may apply for administrative
naturalization.
English Language: an ability to read, write, and speak words
in ordinary usage.
Knowledge of Civics: fundamentals of the history, and of the
principles and form of government of the U.S. INA §
312(a)(2).
Taking of oath to support the U.S. Constitution and
denounce all previous foreign citizenship.
68
• In re Naturalization of Vafaei-Makhsoos
Facts: Π, an Iranian citizen and lawful permanent U.S. resident, had his petition for
naturalization denied following an involuntary absence during which time he was
unable to return to the U.S. due to a travel ban imposed by the Iranian government.
Issue: Does INA § 316(b) provide an exception for involuntary absences under its
requirement for continuous residence for naturalization?
Analysis:
• No, the statutory language of INA § 316(b) draws no distinction between
voluntary and involuntary absences. Although there are certain limited
exceptions to the statute, they are explicit and this strict interpretation of
congressional intent must be adhered to.
• Presumably one of the reasons that the continuous residence requirement was
conducted was to ensure that petitioners for citizenship will be properly exposed
to American institutions and culture.
• The fact that the immigration judge found Π did not abandon his lawful
permanent residence status due to the time he spent in Iran has no bearing on
the issue of naturalization.
• The issues before an immigration judge at a deportation hearing are entirely
distinct from the statutory requirements for naturalized citizenship.
Precise Rule of Law: INA § 316(b) does not provide an exception for involuntary
absences under its requirement for continuous residence for naturalization.
C.
LOSING CITIZENSHIP
1.
Revocation of Naturalization
a.
INA § 340(a) requires the revocation of any naturalization order that was
“illegally procured or…procured by concealment of a material fact or by willful
misrepresentation”.
b.
INA § 340(h) [formerly INA § 340(i)] Congress transferred from the courts to
the Attorney General the power “to correct, reopen, alter, modify, or vacate
an order naturalizing the person.” The new rule authorizes the INS to reopen
naturalization proceedings itself (rather than seek a court order) and revoke
naturalization, under certain circumstances.
c.
Fraud
• Kungys v. United States
Facts: ∆, an applicant for naturalization, willfully misrepresented the date and place
of his birth on his visa and naturalization application.
Issue: For purposes of denaturalization, is a misrepresentation material if it has a
natural tendency to lead to the conclusion that the applicant is qualified?
Analysis:
• Yes, § 340 requires that misrepresentations in the naturalization process must be
material to be sufficient to warrant denaturalization.
• This Court has not been particularly instructive in defining “material”.
69
•
•
•
“A material fact” is commonly understood to mean a fact having a natural
tendency to influence, or be capable of influencing, a decision-maker.
In the context of § 340, the question thus becomes whether the misrepresentation
had a natural tendency to have facilitated the naturalization. With respect to
place and date of birth most likely not.
To so conclude it was would require clear proof by the government that had it
known of ∆’s true date and place of birth, it would have denied his naturalization
petition. This has not been shown.
Precise Rule of Law: For purposes of denaturalization, a misrepresentation is material
if it ahs a natural tendency to lead to the conclusion that the applicant is qualified.
2.
Expatriation
a.
b.
c.
Applies without regard to the circumstances under which citizenship was
originally acquired.
Requires consent of the individual.
Renouncement of citizenship.
70