Immigration

Front 1

How did INS transition into DHS?

Back 1

Immigration services functions were completely separated from enforcement functions (in 2003)

Front 2

What are the 3 Bureaus under the Department of Homeland Security?

Back 2

Bureau of Customs and Border Protection (CBP)

Bureau of Immigration and Customs Enforcement (ICE)

Bureau of Citizenship and Immigration Services (USCIS)

Front 3

What is the function of the CBP?

Back 3

1. Responsible for border enforcement – intended to operate as a unified border agency
2. Includes the Border Patrol and Customs agents, so there are unified operations at all ports of entry

Front 4

What is the function of ICE?

Back 4

1. Responsible for interior enforcement of customs and immigration laws
a. Includes Customs investigators, detention and removal officers, and trial attorneys who represent the government cases in removal proceedings immigration court
b. Specifically, responsible for anti-smuggling efforts, locating persons illegally in the country, enforcing the laws against unauthorized employment, etc.
2. (1) Issues Notices to Appear (NTA) which is served on the IJ [transfers jurisdiction over the alien from DHS to the IJ on the date of filing]
3. (2) Provides assistant district counsel

Front 5

What is the function of USCIS?

Back 5

1. Functions cover the full range of applications for naturalization and for immigration benefits, including asylum and the overseas refugee resettlement program
a. Encompasses Regional Service Centers (RSCs) for centralized high-volume processing of certain types of applications
2. Includes the Asylum Office which deals w/ the affirmative asylum applications
a. Asylum Office can refer the matter to the IJ (NTA will simultaneously issue and jurisdiction will transfer from CIS to the DoJ)

Front 6

What two main units make up the DOJ?

Back 6

Office of immigration judge

Board of Immigration appeals

Front 7

What are the 3 departments that deal with immigration?

Back 7

DHS

DOJ

Department of state

Front 8

what are the functions of the office of immigration judge

Back 8

1. Removal proceedings must be conducted by an immigration judge [§101(b)(4); §240(a)(1)]
a. Some aliens may be removed without a formal hearing through a process called expedited removal (section 235(b)(1)) ( “exclusion” (removal at arrival) and “deportation”)
b. The jdx over removal proceedings concerns not only whether the alien is covered by one of the grounds of inadmissibility or deportability, but also determining if there are any waivers and applications for relief that are available
i. Can do all waivers except §212(e) which only the State Department can do
ii. Can grant voluntary departure
iii. Can consider cancellation of removal
2. Preside over bond redetermination proceedings for detained citizens
3. Has jdx of asylum under §208 & withholding of removal under §241(b)(3)
4. Can consider registry under §249
5. Can engage in administrative closure (respondent & ICE agree to administratively close matter)

Front 9

what are the functions of the Board of Immigration Appeals (BIA)

Back 9

1. Under 8 C.F.R. §1003.1(b), aliens found removable by IJs have a right to appeal to the Board of Immigration Appeals (BIA)  majority of BIA cases (not all adjudications are appealable)
2. Reviews a limited range of decisions made by immigration examiners (part of BCIS) on matters that have never been b/4 an IJ, such as denials of visa petitions for intending immigrants based on family relationships
3. For many years the caseload backlogged and in November 1999, the BIA implemented streamlining regulations which permitted a single BIA member to issue an affirmance w/o of the appealed decision if found “that the result reached in the decision under review was correct; that any errors in the decision under review were harmless or nonmaterial.”
a. When Atty General Ashcroft acceded to power in 2001, he found the progress unsatisfactory and pressed harder for summary procedures  single judge decisions are the norm and a three-member panel will only hear a case if it falls into one of six categories

Front 10

Judicial Review of orders of removal [§242]

Back 10

1. An alien can appeal a removal order to the federal courts of appeal
2. There is NO judicial review in a broad category of cases:
a. Any final removal order against a noncitizen deportable under most of the crime-related deportation grounds (except for a single crime of moral turpitude” are not subject to review “by any court” [§212(a)(2)(C)]
b. Discretionary decisions barred from review: certain waivers, relief from removal, and discretionary adjustment of status

Front 11

What is the function of the bureau of consular affairs under the state department?

Back 11

1. Includes consular officers who are stationed in cities across the world
2. Issues Immigrant Visas (IV’s) and Non-Immigrant Visas (NIV’s)
a. Citizens in states of high rates of visa abuse will not be granted visas
b. Securing a visa does not guarantee admission! Must satisfy §212 to be admissible!
i. Visas do not constitute permission to enter the U.S.  they are more akin to permission to travel to the U.S. and apply for admission at the border
ii. Visas are physically in the passport
3. The Homeland Security Act after 9/11—visas are still issued by consular officers who are still part of the Dept of State but most authority over visa policy, including the issuance of regulations governing visas is covered by DHS

Front 12

What is the National Visa Center?

Back 12

It was created by the Department of state to take over from consuls the more routine functions involved in visa issuance. They check visa requests for accuracy and completeness, create immigrant visa files and computer records, and mail necessary notices and requsts for information to applicants or their attorneys, even when the actual visa will be issued at a consular post abroad.

Front 13

What are some other agencies involved in immigration besides DOJ, DHS, and DOS?

Back 13

Department of Labor

Public Health Service

The Office of Refugee Resettlement

The Social Security Administration

Front 14

Summarize the 1996 Act that implemented section 242 regarding appellate review.

Back 14

The 1996 Act completely restructured court review. 242 replaced 106 as the primary section structuring judicial review. Section 242 limited the courts in many ways and eliminated judicial review in a broad number of categories. These restrictions on review came under constitutional challenge on various grounds.

In INS v. St. Cyr, the court read the key restriction in 242 narrowly so as to not preclude review in the district courts on a petition for habeas corpus, at least to consider "pure questions of law" raised by the noncitizen. However, this decision left undecided a host of further questions about the scope of review in habveas corpus.

Front 15

What is the Real ID act?

Back 15

Congress passed this act in 2005. It revised 242 to use more explicit language barring habeas review in immigration cases.

Front 16

What are the 4 ways someone can become a citizen?

Back 16

Ascription—every state ascribes citizenship to certain persons at birth  (1) jus soli OR (2) jus sanguinis
(2) Naturalization—persons to whom citizenship of a state is not ascribed at birth can so acquire through naturalization
(3) Derivation—citizenship of certain children is derived from that of the parents

Front 17

Where is it written that people born in the U.S. are citizens?

Back 17

In 1868 a definition of citizenship was written into the Fourteenth Amendment—“all persons born or naturalized in the US and subject to the jdx thereof are citizens of the US”

Front 18

Jus Soli

Back 18

Right of Land (conferral of US citizenship based on birth in the US)

i. If you’re born in the US, you are ALWAYS A CITIZEN
1. Rooted in the language of the 14th Amendment  “All persons born . . . in the US, AND subject to the jdx thereof, are citizens of the U.S. and of the state wherein they reside”
2. Codified in §301(a) – if you are born in the US you are a citizen of the US
ii. United States v. Wong Kim Ark – SCOTUS (1898)
1. “Born in the US and subject to the jdx thereof” should be given an expansive reading
2. “All persons born” does not restrict based on color or race  the 14th Amendment was not intended to impose any new restrictions on citizenship or prevent any persons from becoming citizens by the fact of birth in the US
iii. Since Wong Kim Ark, there has been a general rule of universal citizenship at birth
1. Birth in the US (even to tourists and undocumented illegals)  US citizenship
2. Exceptions to the rule are VERY narrow:
a. Birth to foreign sovereigns and accredited diplomatic officials (b/c not subject to jdx of US)
b. Birth on foreign public vessels, warships
c. Birth to alien enemies in hostile occupation of US territory

Front 19

Jus Sanguinis

Back 19

Right of Blood (conferral of nationality based on descent)
i. Since 1790 Congress has made special provisions for the transmission of US nationality to children born abroad to American parents
1. The current rules are set forth in: §§ 301(c), (d), (e), (g), (h); 308(2), (4); & 309
a. **The jus sanguinis rules are NOT governed by the 14th Amendment!**
2. To determine whether a person born outside the US is a US citizen, must check the precise requirements in effect at the time of birth of the individual in question!
ii. If both parents are US citizens  the child acquires citizenship at birth, provided that one of the parents had a residence [§101(a)(33)] in the US at some time prior thereto [§301(c)]
iii. If ONLY one parent is a US citizen  citizen parent must have been physically present in the US for a total of FIVE years b/4 the birth, TWO of which occurred after the age of 14 for child to acquire US citizenship [§301(g)]  the FIVE and TWO rule
1. What if citizen parent cannot meet the Five & Two Rule and want child to be a US citizen?
a. Citizen parent should move to the US b/4 or after the birth and file and immigrant visa petition for the child (and spouse if they so desire)
i. Both would qualify as immediate relatives not subject to the quota [§201(b)]
b. When child and spouse enter US, will both be stamped as LPRs, BUT b/c one of the parents is a US citizen, under the Child Citizenship Act [§320] the child will enter the US as a US citizen (child has immigrant visa w/ LPR status, is physically present in the US, is under 18, and has 1 US citizen parent)
iv. The main concern of Congress is that it wants to avoid creating a class of expatriates who can transmit US citizenship to their children for generations to come:
1. American citizen parents lacking a specified period of historical residence cannot transmit citizenship to their children  Five and Two Rule (only applicable post-1978)
2. From 1934-1978, the child had to establish his own residence or physical presence in the US for a specified # of years w/in a stated period or lose his jus sanguinis citizenship
a. Rogers v. Bellei: SCOTUS upheld provision that had to be physically present in the US for five years b/w the ages of 14 and 28 or lose US citizenship

Front 20

Explain the proccess of obtaining citizenship through Jus Sanguinis. How to apply?

Back 20

Abroad—parent obtains “Report of Child Born Abroad to US Citizen” & w/ evidence of satisfying requirements, child will receive a US passport

-In US—parent files N-600 and provides evidence for child to receive US passport

Front 21

Explain 3 important provisions of the naturalization procedures.

Back 21

§310 [sets forth the basic administrative procedure and judicial review provisions]; §335 [examination of application for naturalization]; and §336 [hearing b/4 an immigration officer if application is denied at the examination stage]

Front 22

What did the immigration act of 1990 do?

Back 22

Congress significantly amended title III of the INA and thereby brought an end to the blanket role of courts in the naturalization process, making naturalization almost entirely an administrative procedure under the authority of the Attorney General.

Front 23

Explain the naturalization process

Back 23

1. Application for naturalization goes to a USCIS officer who examines the applicant and makes a formal determination to grant or deny [§335]
a. In the majority of cases, the examination is an interview of the applicant
2. If application approved, the oath of allegiance can be administered by a court or DHS [§310(b)]
3. If application denied, must state reasons and applicant can request de novo review before an “immigration officer” of equal or higher grade to examiner who denied application [§336(a)]
a. If the review still results in denial, applicant can seek de novo judicial review in a federal district court that has jdx over the place of the applicant’s residence [§310(c)]

Front 24

In the naturalization process, according to Price v. INS, the examination of the petitioner must be limited to...

Back 24

inquiry concerning the applicant’s residence; physical presence in the US; good moral character; understanding of and attachment to the fundamental principles of the US Constitution; ability to read, write, and speak English; and other qualifications to become a naturalized citizen as required by law”

w/in these limits, the Atty General has the authority to require an applicant to aver to “all facts which in the opinion of the Atty General may be material to naturalization” [§335(a)] and to designate INS employees to take “testimony concerning any matter touching or affecting the admissibility of any petitioner for naturalization” [§335(b)]

Front 25

What is the attorney general's scope of authority in naturalization procedures?

Back 25

“prescribe the scope and nature of the examination of petitioners for naturalization as to their admissibility to citizenship” [§332(a)]

Front 26

Explain the holding of Price v. INS (naturalization procedure)?

Back 26

Citizen of England and resident of US did not include all affilliated organizations on his application. He claims he doesn't have to under 1st amendment.

Court says resident aliens’ constitutional rights can be limited and do not extend to aliens in the same degree as to citizens. Accordingly an alien must satisfy all the statutory requirements in order to be naturalized w/ the burden on the applicant to show eligibility. Court said disputed question could reasonable relate to other requirements for naturalization.

Dissent finds there should be different level of deference to 30 year residents than entering aliens but court has same standard.

Front 27

How do children derive citizenship? what are the 3 requirements?

Back 27

When their parents are naturalized. Section 320.

These are the requirements:


(1) At least one parent of the child = USC, by birth or naturalization
(2) Child = under 18 y/o
(3) Child = residing in the US in the legal & physical custody of the USC parent pursuant to a lawful admission for permanent residence

Front 28

What does the term "denaturalization" mean"

Back 28

revocation of the citizenship of a naturalized alien based on fraud or illegality in the original naturalization. any other deprivation of citizenship, whether applied to native-born or naturalized citizens will be called "expatriation"

Front 29

Under 340, what are two ways in which a person may be denaturalized?

Back 29

(a) illegally procured

(b) procured by concealment of a material fact or willful misrepresentation

Front 30

What does it mean that naturalization was illegal procured?

Back 30

1. Applicant didn’t meet statutory requirements at time of naturalization
2. Applicant did not have good moral character [§101(f)(6), (7), (8)] [Kungys v. United States]
a. Even non-material misrepresentations could constitute false testimony given for the purpose of obtaining benefits  §101(f)(6) lacks a materiality requirement
i. “Testimony” = oral statements made under oath and false testimony provisions do not apply to “concealments”
ii. Intentionally lying in an interview  lack of good moral character
b. There is a lack of good moral character whenever there is a subjective intent to deceive, no matter how immaterial the deception [Kungys v. United States – SCOTUS (1988)]

Front 31

Explain naturalization procured by concealment of a material fact or by willful misrepresentation

Back 31

1. May also demonstrate lack of good moral character under §101(f)(6) (giving false testimony for the purpose of obtaining a benefit under the INA)
2. What is a “material” fact?
a. Chaunt v. United States – SCOTUS (1960): Misstatement = material if its disclosure would have justified denial of citizenship OR might have led to the discovery of other facts which would warrant denial of citizenship
b. Kungys v. United States: Can the concealments or misrepresentations be shown by clear, unequivocal, and convincing evidence to have been predictably capable of affecting the decisions of the INS? Would the concealments or misrepresentations have a natural tendency to influence the decisions of the INS?
i. Limited to falsehoods in naturalization proceedings NOT misrepresentations made in the visa process b/c former falsehoods “procure” naturalization
ii. Applicant does not conceal if he merely fails to volunteer facts

Front 32

What is the holding of U.S. v. Puerta in regard to the burden of proof of the government in denaturalization?

Back 32

The government can denaturalize where false statements are coupled with evidence giving rise to a "fair inference" of ineligibility.

Front 33

A was arrested 5 years ago and charged with disorderly conduct. The charges were dropped.


Assume this person has recently been naturalized and these facts have now become known to the government. What happens?

Back 33

Charges that are dropped or expunged must be listed on a form when asked if you have ever been charged with a crime.

Naturalization was procured by concealment of a material fact or by willful misrepresentation (section 340)

Front 34

D fathered a child out of wedlock 8 years ago.

A was arrested 5 years ago and charged with disorderly conduct. The charges were dropped.


Assume this person has recently been naturalized and these facts have now become known to the government. What happens?

Back 34

this is not anything that will deny a person citizenship on its face but it could be given different facts within their discretion. For example, if the child had a horrible medical condition and the father didn’t handle it well, they may deny naturalization as an exercise of discretion

Front 35

How can you be expatriated?

Back 35

Must be done abroad and before American diplomatic officials.

Expatriation requires a finding that a citizen VOLUNTARILY committed an EXPATRIATING ACT w/ the INTENT to renounce citizenship  must renounce citizenship KNOWINGLY, WILLINGLY, and INTENTIONALLY
a. Any of the statutory expatriating acts [listed in §349(a)] are presumed to have been committed voluntarily – this is a rebuttable presumption [§349(b)]
b. The party claiming expatriation must prove by a preponderance that the act has been performed w/ the intent to relinquish citizenship [§349(b)]

Front 36

Can my employer ask about my national origin?

Back 36

Generally they cannot ask questions during interview but the employer may need info about your ethnicity for purposes of affirmative action or government purposes.

Front 37

Can my employer discriminate against me because I have an accent?

Back 37

Only if your accent may materially interfere with your ability to perform the job. They cannot refuse to hire you for a job that requires little to no spoken communication.

Front 38

Can my employer require me to be fluent in English?

Back 38

Yes, only if it is necessary for effective job performance. For example, may refuse to hire someone without written English skills for an editor position but not for a stockroom position.

Front 39

Can an employer discriminate based on national origin because of customer preference?

Back 39

? An employer cannot discriminate against job applicant because of customer or co-worker preference. For example, a bus driver may not fire a Lebanese driver because the customers are concerned about terrorism.

Front 40

Can my employer require me to speak English only at work?

Back 40

Only if it is necessary to promote workplace safety or efficiency. May require them to speak English during emergencies or to English speaking customers. But they cannot adopt an English only rule to discriminate against Hispanics. Even when there are non-discriminatory reasons, it should be narrowed as much as possible.

Front 41

How long can an employer keep someone on the job without documents?

Back 41

They have 3 days to produce them and then they may terminate them.

But remember you must treat everyone equally. Can't give one guy a month to produce his documents and another 3 days.

Front 42

explain how children born abroad by one u.s. citizen and one non-u.s. citizen who are unmarried can obtain citizenship

Back 42

§309 governs the acquisition of US citizenship by persons born to one US citizen parent and one non-citizen parent when the parents are UNMARRIED and the child is born ABROAD

a. Extends citizenship at birth to a child born outside the US and out of wedlock to a US citizen MOTHER under §309(c):
i. Child born after 12/23/52 acquires citizenship of mother if mother had US nationality at the time of the child’s birth AND mother was previously physically present in the US for a continuous period of 1 year

b. But a child born abroad and out of wedlock to a US citizen FATHER attains US citizenship only if ADDITIONAL REQUIREMENTS are met [§309(a)]:
(1) blood relationship established by clear & convincing evidence
(2) father had US nationality at time of child’s birth
(3) father agreed in writing to provide financial support until child is 18 years old AND
(4) while the child is under 18:
(A) child is legitimated under law of his residence/domicile;
(B) the father acknowledges paternity in writing under oath; OR
(C) paternity is established by a competent court

Front 43

Why is it constitutional to impose additional requirements on fathers to show they are the father of a child born abroad?

Back 43

'Nguyen v. INS held this constitutional because the mother's status is documented in most instances by the birth certificate or hospital records and the witnesses who attest to her having given birth.

Additionally, there is at least an opportunity for mother and child to develop a real, meaningful relationship. The same does not result from the birth, as a matter of biological inevitability, in the case of an unwed father.

Principles of equal protection do not require Congress to ignore this reality.

Front 44

List the 6 requirements for naturalization

Back 44

1. residence/ physical presence
2. age
3. english language proficiency
4. knowledge of civics and history
5. good moral character
6.attachment to constitutional priviledges

Front 45

§316(a) requires that no person can become a US citizen by naturalization unless what 3 residence requirements are satisfied?

Back 45

(1) resided continuously in the US for 5 years (60 months) as an LPR;
(2) physical presence in the US for at least half the statutory period (2.5 years; 30 months); AND
(3) resided within the district in which the petition was filed for at least 3 months

Front 46

Can you still naturalize if you have been temporarily absent from your residence or from the u.s.? explain

Back 46

a. Absence from the US for less than 6 months does not affect continuous residence

b. Absence more than 6 months but less than 1 year presumptively breaks continuity [§316(b)]
i. Rebutted if applicant “establishes he did not in fact abandon his residence”

c. Absence for 1 year or more breaks continuity of residence as a matter of law
i. There are exemptions to this, such as service for the US government, working with a recognized US research institution, working with a US corporation engaged in foreign trade & commerce, or working for a religious organization
1. Must still be physically present in the US for ½ the statutory 5 year period [§316(c)]

Front 47

What are the residence requirements for spouses of U.S. citizens seeking naturalization?

Back 47

Spouses of US citizens who seek naturalization have relaxed requirements [§319]
a. Residence continuously and lawfully in the US for 3 years (36 months) [§319(a)]
b. Physical presence in the US for at least half of the reduced statutory period (1.5 years; 18 months)
c. Applicant must live “in marital union” throughout 3 year period
d. VAWA self-petitioners [§101(a)(51)] also qualify for 3 year naturalization rule

Spouses of LPRs must satisfy 5 year residence; 2.5 year physical presence requirement
-Once spouse naturalizes, other spouse need only satisfy the reduced spouse requirements

Front 48

How old do you have to be to apply for naturalization?

Back 48

18. But most children who are naturalized obtain citizenship when one of their parents is naturalized.

Front 49

Naturalization applicants must demonstrate “an understanding of the English language, including an ability to read, write, and speak words in ordinary usage in the English language” [§312(a)(1)]

What are 3 exceptions?

Back 49

a. Over age of 50 and in US as LPR for at least 20 years
b. Over age of 55 and living in US in LPR status for at least 15 years
c. Physical or developmental disability prohibits compliance w/ requirement

Front 50

Naturalization applicants must demonstrate “a knowledge and understanding of the fundamentals of the history, and of the principles, and form of government of the US” [§312(a)(2)]

What are 2 exceptions?

Back 50

a. Physical or developmental disabilities or mental impairments
b. Special consideration given for persons over 65 who have lawfully resided for 20 years

Front 51

How long must you establish good moral character when applying for naturalization?

Back 51

The law says for the statutory period (5 years, or 3 years for spouses of u.s. citizens). HOWEVER, the government can deny naturalization application if crimes were committed or individual was convicted before the period and find there was no good moral character at that time

Front 52

What is the first thing you should do when your client comes to you seeking naturalization?

Back 52

Check their criminal record!

If applicant fits definition of aggravated felon, they will be arrested & deported when applies for naturalization b/c aggravated felons ALWAYS lack good moral character [§101(f)(8)]

Front 53

Naturalization requires attachment to constitutional principles. What types of people are specifically precluded from naturalization?

Back 53

a. Communists
b. Advocates of the overthrow of the US government by force or violence [§313(a)(4)]
c. Deserter of US armed forces at time US is at war w/ intent of avoiding draft
d. One who serves in armed forces of another country unless alien served in military of a country that has a treaty w/ the US [§315(a)]

Front 54

What was the holding in Schneiderman v. U.S. in regards to excluding naturalization applicants because of their lack of attachment to the constitution?

Back 54

The court determined that the government failed to prove with clear and convincing evidence that at the time of his naturalization and during the five years preceding his naturalization, petitioner had not behaved as a person attached to the principles of the U.S. Constitution. Although petitioner had exercised his freedom of thought by participating in the Communist Party of America and by desiring change to the constitution, such evidence did not show petitioner's failure to manifest attachment to the constitution. Even if the principles of the organization to which petitioner belonged were fundamentally opposed to those of the constitution, they could not be imputed to petitioner on the basis of his mere membership where petitioner had not subscribed unqualifiedly to all of the party's platforms and had never advocated violent overthrow of the government.

Front 55

You have a client that served in the army, but has not met the residence requirements for naturalization. Would you reccommend he apply?

Back 55

Yes.

328-330 give special treatment to noncitizen veterans in the naturalization process. Typically the residence/physical presence requirements are waived or eased.

Front 56

What is the definition of an immigrant?

Back 56

alien authorized for permanent residence in the US (a/k/a lawful permanent resident – LPR)
i. These aliens can stay in the US as long as they wish, provided they do not commit crimes or other post-entry acts which make them subject to removal proceedings
ii. After five years these aliens can apply for naturalization if they wish and become US citizens, but can remain LPRs indefinitely

Front 57

What is a non-immigrant?

Back 57

Non-immigrant = a non-citizen who seeks entry to the US for a specific purpose accomplished during a temporary stay

Categories of non-immigrants are in §101(a)(15) w/in the definition of “immigrant” – in the language of the INA, everyone is an “immigrant” except those listed in §101(a)(15)

In order for one of the visas to be granted, the alien must satisfy the requirements of each category AND the grounds for inadmissibility listed in §212(a)

Front 58

Explain the procedure of immigration

Back 58

Most immigration begins w/ a visa petition filed by an individual already in the US (a family member or prospective employer)

1. Family member/employer = petitioner; Alien = beneficiary
2. For employers, IF have to file labor certification, must do so before they file a visa petition

Once relationship is deemed genuine, BCIS approves the visa petition and transmits a copy to the consulate of the country the petitioner has designated as the place where the alien will apply for an immigrant visa

If alien is already in the US lawfully as a nonimmigrant, the beneficiary can adjust status [§245]

Front 59

There are four bases for immigrating to the US:

Back 59

(1) Family-sponsored; [§201(b)(2)(A); §203(a)]
(2) Employment; [§203(b)]
(3) Immigrant Visa Lottery (Diversity);
(4) Refugees/Asylum seekers

Front 60

What is the definition of an immediate relative?

Back 60

Spouses, children, & parents (if petition is over 21)

They are NOT subject to the quota.

Child must be under 21 and unmarried. The definition includes stepchildren and legitimated children if the qualifying relationship was established before the child reached 18, and it includes adopted children if the adoption occurred before age 16.

Front 61

List the 4 family based preference levels subject to the quota.

Back 61

(1) 23,400 Unmarried sons & daughters of citizens [over 21 b/c otherwise would be immediate relative]

(2) 114, 200 Spouses and unmarried sons & daughters of LPRs

(3) 23,400 Married sons & daughters of citizens

(4) 65,000 Brothers & sisters of citizens

Front 62

Consider the case of a noncitizen who enters under the third family preference as a married daughter of a u.s. citizen. What about her husband and children? Do they have to wait for her to enter and petition for them under the second preference?

Back 62

No. 203(d) provides that the spouse and child can enter under the same preference category in the same order of consideration as the principal alien. They are called derivative beneficiaries.

Applies ONLY when the family relationship existed when principal alien was admitted. After acquired spouses and children of an LPR must use 2nd preference.

However you can “follow to join” and enter the U.S. after the principal alien so long as the family member remains the spouse or child at the time of his or her admission.

Front 63

What preference level is “priority workers” and what kind of workers do they include? Quota?

Back 63

1st preference 40,000

(1) Aliens with “extraordinary ability” – sustained national or international acclaim
(2) Outstanding professors and researchers
(3) Certain multinational executives and managers

Front 64

What preference level are alien workers who are members of professions or aliens of exceptional ability (not “extraordinary”) and explain the requirements. Quota?

Back 64

2nd preference 40,000

They have exceptional ability in the sciences, arts, or business, will substantially benefit the national economy, cultural or educational interests or welfare of the u.s. Their services must be sought by a U.S. employer unless this requirement is waived by the Attorney General “in the national interest.” Also waiver if it is a physician working in a shortage or veteran’s area.

Front 65

What preference level are professionals with a bachelor degree or skilled and unskilled workers filling a labor shortage? Quota?

Back 65

3rd preference

40,000

Front 66

What preference level are “special immigrants”? what workers does this include? quota?

Back 66

4th preference, 10,000

Religious workers, former long time employees of u.s. government or of international organizations

Front 67

What preference level are employees created by immigrant investors? Quota?

Back 67

5th, 10,000

Must invest at least $1,000,000 in an enterprise, but this amount is lowered in rural areas or areas with high unemployment. Must create jobs for at least 10 u.s. workers.

Front 68

What employment preference levels require labor certification? Who can self petition?

Back 68

Second and third preferences. 1st through 3rd generally cannot petition for themselves, except for extraordinary ability of 1st and national interest waiver under 2nd. 4th and 5th may self petition.

Front 69

What are requirements to apply for the lottery? (diversity immigrants)

Back 69

1. Basic rules of admissibility in §212 apply
2. Cannot be in US illegally when apply for lottery
3. High school education or equivalent OR w/in 5 years b/4 application must have at least 2 years experience in an occupation that requires at least 2 years of training or experience [§203(c)(2)]

Front 70

Explain the purpose of priority dates on a visa bulletin chart.

Back 70

The allocation priority dates show an applicant’s position on the waiting list. No immigrant subject to the quotas may receive a visa until his or her priority date is current. The priority date is the date when the first relevant document was properly filed with the appropriate agency.(visa petition or labor certification for those employment preferences subject to this requirement)

Front 71

Suppose a woman in the 1st family preference gets married. What happens to her visa petition?

Back 71

She becomes ineligible for the first preference but she can still retain the same priority date for the third family-sponsored preference. The visa petition automatically converts to a petition that is now relevant, retaining the original priority date.

Front 72

When a LPR petitioner that is petitioning for his spouse or child subsequently naturalizes, what happens to their visa petitions? What happens to unmarried offspring over 21?

Back 72

Their visa petition automatically converts to an immediate relative petition. Unmarried offspring over 21 (formerly in the 2nd preference) would then convert to 1st preference.

Front 73

Explain the rules regarding aging out of a visa petition

Back 73

For immediate relative petitions, the child’s age is now deemed to be the age at the time when the parent files the visa petition.

For the second preference categories and derivative beneficiaries, the age is determined when the relevant category becomes current, but congress provided that their age shall by reduced by the period of time consumed while visa petition was pending (how long it took to approve the visa petition. Beneficiary must apply for visa or adjustment of state within 1 year of the date when category becomes current or they risk aging out.

Front 74

Suppose Daddy U.S. Citizen petitioned many years ago for admission of his noncitizen brother. When that visa petition was filed, the brother had a daughter who was 10 years old. 13 years later, his 4th preference priority date becomes current, and the daughter’s actual age is 23. How might she still qualify ?

Back 74

If the immigration authorities took three years to approve the visa petition for the brother, that period is now deducted from her age. Thus she is deemed to be 20 and she qualifies for derivative status provided her father moves ahead with the immigration process within one year from the date a visa number became available.

Front 75

What is the holding of Fiallo v. Bell in regard to fathers of illegitimate children?

Back 75

Definitions of “child” and “parent” [§§101(b)(1), (2)] are not unconstitutional b/c they exclude the relationship b/w an illegitimate child and his natural father from the preferences accorded to the “child” or “parent” of a US citizen or LPR

(definition has been amended to include a child born out of wedlock, by, through whom, or on whose behalf a status, privilege, or benefit is sought by virtue of the relationship of the child to its natural mother or to its natural father if the father has or had a bona fide parent-child relationship with the person)

Front 76

Are legitimated children and adopted children entitled to preferential immigration status?

Back 76

Legitimated children are ineligible for preferential status unless their legitimation occurred prior to their 18th birthday and at a time when they were in the legal custody of the legitimating parent.

Adopted children are not entitled to preferential status unless they were adopted before the age of 16.

Front 77

What marriages are recognized by the INA?

Back 77

General rule is that “validity of a marriage is judged by the law of the place where it is celebrated”, but there are exceptions:

Marriages entered into solely to obtain immigration benefits are not recognized.

Marriages legal at locus may not be recognized if they conflict w/ public policy (polygamy, proxy marriages, first cousins in some states, etc.)

Front 78

What is the 2 step analysis in Adams v. Howerton to determine whether a marriage is recognized? Is gay marriage recognized?

Back 78

1) Look to the state law
2) Does the state-approved marriage qualify under the INA?
Case held that the ordinary meaning of marriage did not include homosexual marriages.

Front 79

What is the holding of Dabaghian v. Civiletti / Bark v. INS in regards to sham marriages?

Back 79

marriage is a sham if couple did not intend to establish a life together at the time when they were married [Bark v. INS – 9th Cir. (1975)]

Post-marriage conduct relevant only to the extent that it bears on the subjective state of mind of the parties at the time they were married—federal dictate on the kind of life a couple is to lead is constitutionally impermissible [Bark v. INS]

Evidence of separation alone cannot support a finding that a marriage was not bona fide when it was entered into [Bark v. INS] (Doesn’t matter if marriage is factually dead at the time of adjustment of status)

Front 80

What is a lawyer’s ethical obligations in regard to sham marriages?

Back 80

Although there are several rules that have strengthened the confidentiality of lawyers and clients, the DOJ has imposed disciplinary sanctions on lawyers that knowingly or with reckless disregard present false evidence. Thus, if a lawyer knows of a sham marriage and fails to disclose it when client applies for adjustment of status, they may be convicted for fraud.

Front 81

What did the Immigration Marraige Fraud Amendments of 1986 do?

Back 81

all persons who obtain LPR status based on a marriage that is < 2 years old at the time receive the status on a “conditional basis”

Conditional period counts toward residence period for naturalization [§216(e)]

During the last 90 days of the 2-year conditional period, couple must jointly file (unless there’s a waiver) an I-751 to have the conditional basis “removed”

If found that underlying marriage was improper or has been judicially annulled or terminated during conditional period, the LPR status will be terminated [§216(b)(1)] and alien is deportable [§216(a)(1)(D)] (DHS bears burden of proof by preponderance of evicdence)

If underlying marriage found valid, conditional basis will be removed at the end of the conditional period

Front 82

When can a spouse qualify for a waiver of joint filing for marriage? Who bears burden of proof?

Back 82

-§216(c)(4)(A): Extreme hardship if alien removed
-§216(c)(4)(B): Marriage entered into good faith but terminated and alien not at fault in failing to file jointly
-§216(c)(4)(C): Marriage entered into good faith but spouse has been battered and not at fault in failing to file jointly

Noncitizen bears burden of proof.

Front 83

If an alien is caught in a marriage sham can he/she later try to immigrate based on marriage?

Back 83

No. an alien caught in marriage fraud is inadmissible forever based on marriage

Front 84

Government will not approve spousal second preference petition for spouse of alien if alien, by virtue of prior marriage, has been accorded status of LPR as spouse of US citizen or spouse of LPR UNLESS:

Back 84

Five years must have passed since the petitioner attained LPR status OR

LPR must “establish to the satisfaction of the Atty General by clear and convincing evidence that the prior marriage was not entered into for the purpose of evading any provisions of the immigration laws”

§204(a)(2)(B) – does not apply if prior marriage terminated b/c death of spouse
There is a rebuttable presumption that second marriage is fraudulent

Front 85

Noncitizens A and B (both living in Venezuela) were married one year ago. A has just been granted a visa under the employment-based third preference and plans to move with B to the U.S. B therefore also received a visa in the third preference category as a derivative beneficiary. Will B’s permanent resident status be granted on a conditional basis?

Back 85

§203(d) provides that the spouse or child may be admitted in the same preference category and in the “same order of consideration” as the principal alien

Front 86

Noncitizen C marries U.S. citizen D and is admitted as an immediate relative under INA 201 (b). 18 months later, C separates form D. 6 months pass and the couple has not reconciled. What happens?

(b) Suppose instead they are legally divorced after 20 months. What result?

(C)What if D instead died after 20 months?

Back 86

90 days before the 2 year conditional period, they have to jointly file an I-751. If they didn’t file jointly, they should get a divorce D has to file an out of time I-751 and may get a hardship waiver.

(b) §216(c)(4)(B): Marriage entered into good faith but terminated and alien not at fault in failing to file jointly

(c) The spouse remains an immediate relative for the purpose of obtaining citizenship. File petition with attorney general. (under old law you would have to have 24 months of marriage but not anymore)

Front 87

Noncitizen G is admitted as a nonimmigrant and does not leave the Us at the end of her authorized stay. She is thus present illegally. DHS locates her one month after the admission period expires and begins removal proceedings. G then marries U.S. Citizen H, and H files a visa petition on her behalf so that she may adjust her status under INA 245. What result?

Now suppose instead that after the marriage she obtains agreement from DHS to depart voluntarily, the removal proceedings are dropped, and she leaves the country in the fifth month after expiration of her admission period. Her plan is to return with an immigrant visa based on her marriage to H. How soon can she immigrate on the basis of the marriage under these circumstances?

Back 87

it is presumed that the marriage is fraudulent and you ask the judge for a velarde hearing.

(b) no unlawful presence because she has to overstay her visa for 6 months. If she was to overstay she would have to get a waiver. This takes at least 6 months.

Front 88

Noncitizen E marries U.S. citizen F and is admitted as an immediate relative. One year later, a child is born. Six months after that, F walks out and refuses to help E in any further immigration proceedings. What result?

(b) suppose instead that the child was born outside the U.S. after the marriage but before E’s admission. Would this make any difference?

(c) suppose that it is noncitizen E who leaves with the child after 18 months because F has become angry and spends the evenings berating her and striking her. She feared for the baby’s safety although F never actually harmed the child. Can E retain her permanent resident status?

Back 88

divorce and in time or out of time I-751 filing (depending on how long divorce takes) and waiver B or C (subject of emotional hardship)

(b) 301(g) 5 and two rule – F had to be in the united states for at least 5 years prior to the birth. 2 of which after the age of 14.

E would have no remedy unless she can get in on some other Visa unrelated to marriage. Or child can petition for mother at age 21.

(c) petition under VAWA or take advatange of section C

Front 89

Noncitizen I marries citizen J and is admitted as a conditional permanent resident. The conditional basis is removed 2 years later but 6 months after that they divorced. One year later I marries K a noncitizen not admitted to the U.S. and files a second preference petition on K’s behalf. What result?

Back 89

I’s status is LPR and K is subject to quota which is probably 5 years behind. I would naturalize quicker than the quota would become current.

Front 90

Why was VAWA enacted? What protections does it provide that IMFA did not?

Back 90

Victims of abuse were deterred from going to the authorities for fear that their abuser would retaliate by preventing removal of the victim spouse’s conditional status. IMFA provided a waiver for such abused spouses. VAWA gives relief to spouses in abuses marriages even if they have not been granted conditional status. Thus, a battered spouse who is eligible for immigration based on marriage can self-petition.

Front 91

Under the 4th preference, citizens can petition for their brother or sister subject to the quota. What did Young v. Reno hold about adopted siblings?

Back 91

Siblings are defined on the basis of their relationship to a common parent.

An adopted sibling cannot petition for a natural sibling [Young v. Reno – 9th (1997)]

w/ an adopted sibling, b/c the natural parent no longer has the status of parent, the legal relationship b/w the adopted sibling and natural sibling also ceases as there is no longer a common parent [Matter of Li – BIA (1993)]

Allowing preferential immigration status on behalf of the natural siblings would enable them to petition on behalf of the natural parents of the original petitioner which would circumvent the express language that “no natural parent of any adopted child shall, by virtue of such parentage” benefit from the INA [Matter of Li; §101(b)(1)(E)]

Front 92

What is the difference between EB-5 and E-2 and L1?

Back 92

EB-5 is an IMMIGRANT visa subject to the quota. They are given a 2 year conditional status and must prove that the investment is a valid enterprise.

E-2 and L-1 are non-immigrant visas. E-2 deals with treaty investors and L-1 deals with business immigration.

Front 93

Explain the Labor Certification procedure

Back 93

1. Employer must engage in good-faith recruitment efforts aimed at qualified US workers for a minimum of six months
2. Employer submits application on Form ETA 9089 between 30-180 days after recruitment.
3. Must maintain and submit full file of employee if application is selected for audit.
4. Once certification approved, employer files that document with visa petition on Form I-140 (if job is on Schedule A, employer can skip application process and go directly with I-140 petition)

USCIS may still deny a visa petition if they question employee qualifications or employer ability to pay, or otherwise for fraud/misrepresentation

Front 94

What are the two main requirements an employer has to show before petitioning for a labor certification?

Back 94

No domestic workers available & qualified for position at place of intended employment AND

Entry of the alien will not adversely affect the wages and working conditions of similarly employed US workers

Front 95

To establish business necessity for labor certification, an employer must show the job requirements:

Back 95

bear a reasonable relationship to the occupation in the context of the employer’s business AND (2) are essential to perform, in a reasonable manner, the job duties as described by the employer [Matter of Information Industries, Inc. – BALCA (1989)]

Front 96

During the recruitment process prior to labor certification, the employer must:

Back 96

1. Must offer the “prevailing wage” and be able to pay that wage

Matter of Hathaway Children’s Services – BALCA (1994): charitable non-profits and for-profit businesses should not be treated differently re: the prevailing wage determination
American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) [§212(p)]: For employees of institutions of higher education and affiliated non-profit entities and for employees of all nonprofit and governmental research organizations, the prevailing wage is determined by reference to other non-profit institutions and NOT to private, for-profit institutions

2. Must show its job requirements are not unduly restrictive

Unless adequately documented as arising from business necessity, job requirements must be those normally required for the job in the US
To establish business necessity, an employer must show the job requirements: (1) bear a reasonable relationship to the occupation in the context of the employer’s business AND (2) are essential to perform, in a reasonable manner, the job duties as described by the employer [Matter of Information Industries, Inc. – BALCA (1989)]
If job requirements are normal for the job in the US, do not need to show that job requirements arise from business necessity

Front 97

What is ONET?

Back 97

The online system developed by the DOL to provide the general public information on skills, abilities, knowledge, work activities, interests and specific vocational preparation levels associated with occupations.

Front 98

What is required to receive a “national interest” waiver under the second employment preference?

Back 98

(1) Alien will be employed “in an area of substantial intrinsic merit”,
(2) “The proposed benefit will be national in scope”, AND
(3) The petitioner seeking the waiver must persuasively demonstrate that the national interest would be adversely affected if a labor certification were required for the alien

Front 99

What is the standard for aliens of extraordinary ability under Muni v. INS?

Back 99

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 [Muni v. INS (1995)]

Must have sustained national or international acclaim and recognition in the field
Alien must continue to work in the area of extraordinary ability
Alien’s entry must bring substantial prospective benefit to the US
Regulations list about 7-8 characteristics to qualify as having extraordinary ability—alien must meet 3-4 of those characteristics

Front 100

What did the American Competitiveness in the 21st century act provide?

Back 100

Employer’s use of the H-1B visa grew explosively and congress responded by raising the ceiling on H-1B admissions and easing the situation of H-1B workers awaiting permanent residence status.

The American Competitiveness in the 21st Century Act provides: Job flexibility for long delayed applicants for adjustment of status to permanent residence. A petition under this section for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or similar occupational classification as the job for which petition was filed.

This act calls into question many of the labor protections afforded by the traditional labor certification system.

Front 101

What is the definition of a non-immigrant?

Back 101

a non-citizen who seeks entry to the US for a specific purpose accomplished during a temporary stay

Every non-citizen that wishes to come to the U.S. is presumed to be a non-immigrant. The non-citizen applicant must shoulder the burden of demonstrating that he or she is entitled to nonimmigrant status.

Front 102

Are there numerical limits to nonimmigrant visas?

Back 102

Only for H-1B and H-2B

Front 103

There are three ways to gain non-immigrant status in the US:

Back 103

(1) Non-citizen applies for a non-immigrant visa at overseas consulate
1. This allows the alien to travel to the US to apply for admission but does not guarantee admission
2. Once the alien is admitted to the US, the category & expiration date shown in the admission documents (I-94) determines the rights & limitations w/ the alien’s admission  status

(2) Non-citizen is national of one of more than 24 states that can enter the US w/o a visa as a business visitor or tourist for 90 days under the visa waiver program [§217]

(3) Non-citizen admitted as a non-immigrant can change to a different non-immigrant status under §248

Front 104

What is the presumption of immigrant intent and what is a noncitizen required to show?

Back 104

1. Every non-citizen that wishes to come to the U.S. is presumed to be a non-immigrant. The non-citizen applicant must shoulder the burden of demonstrating that he or she is entitled to nonimmigrant status.
2. For many of the non-immigrant categories, the most important requirement is that the noncitizen “has a residence in a foreign country which he has no intention of abandoning”
3. A desire to remain in the U.S. permanently in accordance with the law, should the opportunity to do so present itself, is not necessarily inconsistent with the lawful nonimmigrant status. “dual intent” is allowed for several nonimmigrant categories. Other categories may deny visas because of immigrant intent.

Front 105

What visa do students generally come on and what are the requirements?

Back 105

F-1 student is generally admitted as a nonimmigrant for the period of the program of study, referred to as the duration of status. They must demonstrate that:
-the student have a foreign residence that they have no intention of abandoning
-Accepted by a school approved by the AG
-Document that they have sufficient funds
Sufficient knowledge of English and scholastic preparation

Their spouses and children may accompany them as F-2 nonimmigrants

Front 106

What is the J Visa? What are requirements/restrictions?

Back 106

Those seeking admission as a J-1 nonimmigrant must be participating in a cultural exchange program that the U.S. department of state’s BECA has designated. Spouses and children accompany on J-2.

Must meet a long list of criteria including having a foreign residence that they have no intention of abandoning.

They have the additional requirement that they must return abroad for 2 yers if they wish to adjust to any other nonimmigrant status or become an LPR. (very few exceptions – even have to return for 2 years if marry u.s. citizen)

Same work restrictions as F visa.

Front 107

What is an M visa?

Back 107

Nonacademic (vocational) students. Similar requirements to F. Additional restriction is that they can’t even work on campus.

Front 108

What is the business tourist visa? Advantages? Limitations?

Back 108

B-1: Business Tourist Visa—“visiting the US temporarily for business”

Advantages over other business non-immigrant categories: alien initiates the process overseas w/ no petition on their behalf filed; does not require a labor certification

Limitations: Must not be entering for local employment; labor for hire; or for the purpose of performing skilled or unskilled labor. “Business” refers to conventions, conferences, consultations, and other legitimate activities of a commercial or professional nature.

Cannot receive a salary or other remuneration from a US source (other than an expense allowance or other reimbursement)

Front 109

What are the temporary worker Visas and describe each.

Back 109

H-2A: Temporary Agricultural Workers
-Labor Certification
-Employer must show has MANY benefits in place: worker’s compensation insurance, housing, fair wage, return transportation, meals or cooking facilities, but no health insurance

H-2B: Temporary Non-agricultural Workers
-Employer must file a labor certification
-Double temporariness requirement  non-citizen must be TEMPORARILY ENTERING to fill a TEMPORARY JOB
Matter of Artee Corp.: Not the nature or the duties of the job which must be examined to determine the temporary need; it is the nature of the need for the duties to be performed which determines if the job is temporary
-As a general rule the period of the need must be one year or less AND
There must be a one-time need, a seasonal need, a peak load need, or an intermittent need  MAKE SURE THE NEED IS TEMPORARY
-Admitted for up to one year w/ one-year extensions possible up to a three year maximum
The processing time for the petition counts in the time of the visa
b/c this short time, these visas are very time-critical
-Quota = 66,000/year

Front 110

Describe the H-1B Visa

Back 110

Specialty Occupation --> Exception to Presumption of Immigrant Intent

1. Covers non-citizens coming temporarily to the US to provide services in a “specialty occupation” [defined in §214(i)  4 year degree to perform a job OR equivalent]

2. Does not require a full labor certification, but requires the petitioner to file a Labor Condition Application (LCA)
a. Employer must notify bargaining representative of its employees of the H-1B petition OR posted notice of its filing “in conspicuous locations at the place of employment’
b. Employer must attest that job is offered at prevailing wage and that will not adversely affect the working conditions of similarly employed workers
i. Government tells the employer what must pay the alien (this is uncontestable)  “prevailing wage determination” Employer can be fined and owe backpay for failing to accurately predict the prevailing wage.
c. Not required to undertake recruitment efforts

3. Unlike H-2B workers, H-1B workers can come temporarily to the US to fill a permanent job

4. Admitted for up to three years initially, extendible for up to six; can get extended past 6 in certain circumstances, primarily when the request for labor certification and adjustment of status has been pending for more than 1 year.

5. Subject to quota – 65,000 (some employees are exempt from this cap – employees of higher education or non-profit entities)

6. No requirement of foreign residence w/ no intent to abandon

Front 111

What is an L visa? requirements?

Back 111

1. Used by foreign corporations to transfer executive level employees to the US to oversee operations of the corporation’s US branches or subsidiaries
a. Foreign corporation must be a qualifying entity—a business w/ a branch in the US and in at least 1 other country = qualifying entity
i. Both sides of the qualifying entity must remain in business during duration of non-immigrant’s stay in the US
2. Alien must “render services in a capacity that is managerial, executive, or involves specialized knowledge” [two branches under L-1 visa]
a. “Managerial” and “executive” = defined in §101(a)(44)  no labor certification
b. “Specialized knowledge” = “specialized knowledge of the company product and its application in international markets or an advanced level of knowledge of processes and procedures of the company”  labor certification
3. Alien must be employed by firm for at least 1 year w/in 3 years preceding the date of application
4. Admitted for 1-3 years extendible to a maximum of 7 years for managers and executives and 5 years for those w/ “specialized knowledge”  get two extensions under L-1
5. If alien has L-1 non-immigrant visa can lawfully seek permanent residency at same time under priority worker immigrant distinction  Exception to presumption of immigrant intent
a. L-1 non-immigrant visa dovetails w/ first employment-based preference
6. If an alien enters as an L-1; spouse and children can enter as L-2 (L-2s cannot work in US)

Front 112

E Nonimmigrants

Back 112

1. Requires a treaty of commerce and navigation b/w the US and the alien’s country of origin
2. Renewable indefinitely [unlike H-1B and L non-immigrant visas] AND permits incidental activities as well as those for which visas were originally granted
3. Need not retain foreign residence they do not intend to abandon
4. Spouse & children can come in under same visa – spouse granted work authorization
5. E-1 Treaty Trader: Must carry on substantial, international trade, which is principally b/w the US and the treaty country
6. E-2 Treaty Investor: Must develop and direct operations of an enterprise in which he has invested or is actively in the process of investing a substantial amount of capital
a. Once corporation qualifies as an E-2 entity, manager or someone w/ “essential skills” of same nationality can go to the US under E-2 visa to work for entity

Front 113

What is the T visa? requirements? limitation?

Back 113

i. T (Trafficking) Visa: Alien is victim of trafficking that is in the US by virtue of trafficking and who will suffer extreme hardship involving unusual and severe harm upon removal


1. Valid for up to 4 years with 1 year extensions based on need for their assistance in investigation or prosecution
2. 5,000 per year
3. After 3 years, may adjust to LPR

Front 114

What is the U visa? requirements? limitation?

Back 114

Alien has suffered substantial physical or mental abuse as a result of being a victim of criminal activity; the victim has information concerning the criminal activity; the alien has been helpful in prosecuting that criminal activity; and that criminal activity occurred in the US
1. 10,000 per year
2. Eligible to adjust to LPR status after three years if continue to cooperate & meet other requirements

Front 115

What is the T visa? requirements? limitation?

Back 115

i. T (Trafficking) Visa: Alien is victim of trafficking that is in the US by virtue of trafficking and who will suffer extreme hardship involving unusual and severe harm upon removal


1. Valid for up to 4 years with 1 year extensions based on need for their assistance in investigation or prosecution
2. 5,000 per year
3. After 3 years, may adjust to LPR

Front 116

What is the U visa? requirements? limitation?

Back 116

Alien has suffered substantial physical or mental abuse as a result of being a victim of criminal activity; the victim has information concerning the criminal activity; the alien has been helpful in prosecuting that criminal activity; and that criminal activity occurred in the US
1. 10,000 per year
2. Eligible to adjust to LPR status after three years if continue to cooperate & meet other requirements

Front 117

what is a V visa?

Back 117

i. Created to ease the hardship caused by long backlogs and adjudicatory delays in close family member visa categories. The relief is limited to spouses and minor children who are the beneficiaries of second preference petitions filed on or before December 21, 2000. They may obtain a V visa when more than 3 years have elapsed since the petition was filed.
ii. Permits entry if the person is outside u.s. or adjustment of a lawful status if person already present

Front 118

All noncitizens who seek admission to the U.S. must first fit into the qualifying categories of "immigrants" or "nonimmigrants." What additional requirement must they meet?

Back 118

They must avoid any determination of inadmissibility under INA 212(a). This section lists classes of "aliens who are ineligible to recieve visas and ineligible to be admitted to the United States"

Front 119

What are the two ways inadmissibility grounds are applied?

Back 119

First and most importantly by the consular officer considering issuance of visa, but the inspector at the port of entry, an officer of the DHS's CBP has full authority to consider anew the application of all the inadmissibility grounds even if the noncitizen bears a visa fuly issued by a consul.

Also note that an individual already in the US that seeks to become a :LPR through adjustment of status must be admissible.

Front 120

What form do you file for adjustment of status?

Back 120

I-485

Front 121

Who do inadmissibility grounds apply to? Deportability grounds?

Back 121

Inadmissibility grounds apply to any noncitizen who has NOT been admitted into the United States. Deportability grounds apply only AFTER a noncitizen has been admitted.

Thus, EWIs gain no advantages over the noncitizen who presents himself for inspection at the border or port of entry. Both will be tested against the inadmissibility grounds.

Front 122

For purposes of inadmissibility, are LPRs considered "admitted" or "seeking admission"?

Back 122

LPRs are presumed not to be applicants for admission. Government bears burden of proof to establish that an exception applies.

Front 123

Are aggravated felonies a ground for inadmissibility?

Back 123

They are a ground for deportability but not expressly listed in 212 as a basis for inadmissibility. However, many such felonies fall within other specific langauge of 212 and the commission of an aggravated felony can disqualify a person from a waiver under 212(h)

Front 124

1. Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure any benefit provided under the INA is inadmissible. What is the penalty?

Back 124

4. Penalty = lifetime exclusion unless waiver obtained

If applicant falls in this ground of inadmissibility, placed in expedited removal

Front 125

what is the definition of "misrepresentation" under inadmissibility rules?

Back 125

2. “Misrepresentation” = an assertion or manifestation not in accordance w/ the facts
a. Must have been made to a US government official & must have been made re: alien’s own visa application
b. Silence or failure to volunteer information ≠ a misrepresentation by itself

Front 126

What is the definition of "willfully" under inadmissibility rules regarding willful misrepresentation of facts?

Back 126

Willfully” = knowingly and intentionally (not accidentally, inadvertently, or in an honest belief that the facts are otherwise)

Front 127

What is the purpose of the inadmissibility of those who committed fraud or willful misrepresentation of material facts to gain benefit under INA?

Back 127

Designed to ensure that aliens who attempted to secure entry by fraudulent means cannot proceed w/ an application as if the falsity was never made when the falsity is discovered

Front 128

Mr. Gonzales purchased a Texas birth certificate. He used it to try to obtain a U.S. passport. He has not been convicted of fraud. He argues that possession of these documents does not fall within the definition of fraud in the Act and should not be a ground for inadmissibility. Is he correct?

Back 128

Any alien who by fraud or willfully misrepresenting a material fact, seeks to procure a visa, other documentation, or admission to the US or other benefit under the Act is inadmissible.

He sought to procure a U.S. passport This document was necessary to travel in and out of U.S. and to obtain employment. Thus, his conduct was a ground for inadmissibility regardless of whether he had been convicted of fraud. (Matter of Certvantes-Gonzalez)

Front 129

What factors of extreme hardship will a court consider in determining if one is entitled to a waiver under 212 for fraud/misrepresentation?

Back 129

: presence of LPR or citizen family ties to the US; qualifying relative’s family ties outside US; conditions in the country to which qualifying relative would relocate and the extent of the qualifying relative’s ties to that country; financial impact of departure from this country; and significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate

(matter of cervantes-gonzalez)

Front 130

If you show extreme hardship, are you entitled to a waiver under 212 for fraud/misrepresentation?

Back 130

3. Although extreme hardship is required for the waiver, it does not create entitlement to relief; it is but ONE favorable discretionary factor. AG have authority to construe hardship narrowly.

Front 131

What is the rentry bar for a non-citizen unlawfully present for a single period of more than 180 days but less than 1 year (181-366 days) who voluntarily departs?

Back 131

inadmissible for 3 years

Front 132

What is the reentry bar for any non-citizen who has been unlawfully present for a single period of 1 year or more? when it is triggered?

Back 132

a 10 year bar applies and is triggered once the noncitizen departs or is removed

Front 133

are waivers available for reentry bars?

Back 133

Yes - waiver for extreme hardship but INS has applied fairly restrictive standards

Front 134

What is the definition of unlawful presence?

Back 134

covers persons who either entered without inspection or stayed beyond the expiration date of a nonimmigrant admission

Front 135

Is a noncitizen who violates the terms of her nonimmigrant status for example by working for a different employer thereby unlawfully present if the admission period has not expired?

Back 135

Generally not. The person is certainly unlawfully present in the sense that DHS could validly initiate removal proceedings but the 180 day clock on reentry bars starts only after receiving a governtal notification that the conditions have been violated.

Front 136

Does time while the noncitizen is in removal proceedings count as unlawful presence?

Back 136

Generally yes.

Front 137

Do the reentry bars apply if the noncitizen has not departed the United States after accumulating 180 days or 1 year of unlawful presence?

Back 137

No. This makes adjustment of status a highly desireable procedure.

Front 138

What do you have to do to get a permanent re-entry bar?

Back 138

if you are unlawfully present for an aggregate of 1 year or more, or you have been ordered removed

AND

you attempt to re-enter without being admitted - whether successful or not


May obtain a waiver after 10 years

Front 139

Suppose Pablo overstays his Visa and wants to obtain admission through a different visa. Can he do so without departing the US?

Back 139

5. If a noncitizen is admitted on a nonimmigrant visa and stays longer than the authorized time period, that visa is void at conclusion of his authorized stay and must return to home country for the rest of his life to be admitted on basis of new visa. Exception for extraordinary circumstances

Front 140

There is a rebuttable presumption that anyone who enters the US will be a public charge. How may one rebut this presumption?

Back 140

2. This presumption can be rebutted by filing an affidavit of financial support [Form I-864]
a. Employment-based immigrants rebut presumption by virtue of immigration is for a JOB
b. Required for family-based immigrants (immediate relatives & preferences) as well as immigration based on marriage in order to rebut the presumption
c. Affidavits needs to show can support own household AND all sponsored immigrants (if co-sponsor) at a minimum of 125% of the poverty line for 10 years
i. Affidavit indemnifies the government from having to provide public assistance to the alien; essentially a 10-year contract b/w the sponsor and the government

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What are grounds for inadmissibility based on public heath?

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1. §212(a)(1)(A)(i) blocks admission of non-citizens having communicable diseases “of public health significance” – HIV, AIDS, infectious tuberculosis, lepracy, etc
2. Immigrants must document a vaccination against certain vaccine-preventable diseases  §212(a)(1)(A)(ii)

waiver available for a limited period

Front 142

Explain the nonimmigrant Visa procedure

Back 142

DHS assigns a consular officer to select consular posts to conduct interviews.

Everyone age 14-79 must be interviewed subject to highly lmited waiver.

Noncitizen bears burden of proving he qualifies for the visa (because presumtion of immigrant intent.) Most important in high demand categories is establishing that noncitizen has a home in a foreign country to which he intends to return.

Consular officer may deny the visa if they find any of the inadmissibility grounds apply.
Or if waiver available they assist with waiver application.

If approved, visa is attached to passport.

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What is the Visa Waiver Program?

Back 143

Covers temporary visitors in the B-1 or B-2 categories who seek admission for up to 90 days from selected countries w/ low visa abuse rates (mostly Europe and other Western countries)
-Visitor waives all rights to extend stay, change nonimmigrant status [§248], or adjust to LPR status under §245(a) except as an immediate relative of a US citizen
-Visa waiver – cannot come to US w/ intent to marry but no fraud charged unless evidence
-Waives rights to removal hearing, but can apply for asylum

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Upon admission, the inspector keeps the upper portion of the I-94 card and gives the nonimmigrant the bottom portion which shows

Back 144

the classification in which the noncitizen is admitted, the time allowed for him to stay, and any other conditions of entry, including whether the alien has employment authorization

Front 145

VISA VS. STATUS (I-94)

Back 145

a. Although people often speak of a noncitizen being in the US “on a tourist visa” or “on a student visa” this is incorrect  the visa only helps move the alien to the port of entry; the status of the alien (the type & length of admission) is listed on the I-94
b. It is important to differentiate b/w the VISA and the STATUS
i. Visa could say that it expires on a certain date but the I-94 may list a sooner date  the alien must leave the US or extend the authorized stay by the date listed on the I-94 regardless of the date listed on the visa
1. The date on the visa is relevant in that the alien can use that same visa to return to the US at another time b/4 that visa expires (unless it is a single-entry visa)

Front 146

When do you fill out I-94?

Back 146

Before arrving in the U.S. - must carry it with them through inspecton

Front 147

Suppose you have a Visa that expires September 1st.

She enters U.S. on January 1st. Her I-94 authorizes a 3 month stay until April 1st.

Can she stay past April 1st?

Can he return in August?

Back 147

Shes not auhorized to stay past the period specified on the I-94.

If she stays past April 1st her Visa is void and she CANNOT return in August onthat visa.

If she leaves before April, she can return on the same Visa in August and receive a new I-94.

*** if her new I-94 authorizes her t stay until November 1st, she can stay until then even though her visa expires in september.

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What are 2 paths a nonimmigrant can take to gain LPR status?

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(1) obtain an immigrant visa at a US consulate and then travel to the US; OR

(2) become an LPR through “adjustment of status” while remaining in the US

Front 149

What happens to beneficiary if petitioner of an immigrant visa dies?

Back 149

1. Certain events such as petitioner’s death may mean automatic revocation. The beneficiary receives no vested rights based merely on the approval of a petition. The revocation may block or void the beneficiary’s admission as an immigrant.
2. An exception based on humanitarian grounds is possible. Also, spouse of u.s. citizen can self-petition for 2 years after death if they had been married for 2 years. Battered spouses and children may sometimes also self-petition.

Front 150

If your petition for an immigrant visa is denied, what can you do?

Back 150

1. Denial of a visa petition is usually subject to administrative review upon appeal by BIA in family cases and DHS’s appeals office in employment categories. The administrative decision is often subject to judicial review.

Front 151

An immigrant visa will be available if either:

Back 151

the priority date is current OR if the alien is an immediate relative (which is not subject to the quota)

Front 152

What happens at the port of entry with an immigrant visa?

Back 152

The visa is not stamped into the passport – it consists of a set of documents to be presented to the admitting immigration officer at port of entry. This officer will keep the immigrant visa, make notation of admission as LPR in passport, and issue the I-551 – the celebrated “green card” – although it is light pink

Front 153

If LPR plans to leave for less than 12 months, what documentation do they need to return?

Back 153

the green card may be used as a re-entry permit but it will not assure readmission – merely dispenses with certain documentary requirements.

Front 154

What is adjustment of status?

Back 154

1. Adjustment of status permits aliens to adjust status from nonimmigrant to immigrant for noncitizens who meet certain requirements while remaining in the US

Front 155

Adjustment is only allowed when:

Back 155

an immigrant visa is immediately available as of the filing date of the adjustment application (application for adjustment = Form I-485)

Front 156

What happens if you apply for adjustment and then depart the U.S.?

Back 156

c. Departing U.S. is treated as abandonment of the adjustment application, but can apply for a grant of advance parole which wont jeopardize application or work authorization

Front 157

suppose a nonimmigrant went out of status while waiting for an action on a request to extend his nonimmigrant status. is he now ineligible to adjust?

Back 157

No.failure to maintain status is considered to have happened for a technical reason.

similarly, expiration of nonimmigrant status while an adjustment applicatio is pending does not run afoul of the Act

Front 158

Categories of aliens ineligible for adjustment of status under §245(a) [§245(c)]

Back 158

a. An alien crewman [§245(c)(1)]
b. An alien who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status unless they are immediate relatives of US citizens [§245(c)(2)]
c. Noncitizens who are “in unlawful immigration status on the date of filing the application for adjustment of status or who have failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the US” are ineligible unless they are immediate relatives of US citizens [§245(c)(2)]
d. An alien who was admitted as a nonimmigrant under §101(a)(15)(S) [§245(c)(5)]
e. Aliens deportable under §237(a)(4)(B)  terrorists [§245(c)(6)]
f. Aliens who were employed while the alien was an unauthorized alien or who has otherwise violated the terms of a nonimmigrant visa [§245(c)(8)]
g. Noncitizen must have been inspected and admitted or paroled  EWIs do not qualify for adjustment under §245(a)

Front 159

how can someone that is uneligible to adjust status nevertheless adjust under 245(i) grandfather clause?

Back 159

If they were present in the U.S. on 12/21/00 and filed a visa petition or labor certification before 4/30/01

Front 160

Can you review a denial of adjustment of status?

Back 160

6. An applicant who is denied adjustment of status has no administrative appeal, but may renew adjustment application b/4 the IJ conducting the alien’s removal proceedings (if such proceedings occur)
a. IJ reviews adjustment application de novo
b. Adjustment, in this respect serves as a relief from removal!

Front 161

Once granted adjustment of status are you safe from rescission after 5 years?

Back 161

7. The law provides that your adjustment of status can be rescinded for a period of 5 years if the AG finds that person was not in fact eligible. However, case law has also rescinded status beyond the 5 year period.

Front 162

Suppose a noncitien is detained at the border and ruled inadmissible under 212 on a nonwaivable ground. She because gravely ill and needs medical attention. Can officials send her to a nearby hospital without admitting her and without violating the Act?

Back 162

Yes. Atty General can parole noncitizens “temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit of any alien applying for admission”

Front 163

What is expedited removal?

Back 163

If an immigration officer determines that an alien who is arriving in the US is inadmissible under §212(a)(6)(C) [“an alien who, by fraud or willfully misrepresenting a material fact seeks to procure a visa, other documentation, or admission into the US or any other benefit is inadmissible”] OR §212(a)(7) [fraudulent documents], the officer shall order the alien removed from the US w/o further hearing or review unless the alien indicates an intention to apply for asylum under §208 or a fear of persecution.

Front 164

Explain what asylum is as a relief from expedited removal

Back 164

1. If alien indicates intent to apply for asylum or a fear of persecution, he is detained and referred to an asylum officer who interviews the individual to determine if he has a “credible fear of persecution” = “a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under §208” [§235(b)(1)(B)(v)]
a. If passes credible fear screening, alien receives a removal hearing under §240
b. If officer finds no credible fear, alien may request review by an IJ in a special procedure—alien detained during this time period

Front 165

What is the penalty of applying for admissiona nnd being placed in expedited removal?

Back 165

c. Expedited removal makes an alien inadmissible for five years, subject to a waiver [§212(a)(9)(A)(i)]
i. Waiver = Immigrant who is spouse or son or daughter of US citizen or LPR, if refusal of admission to such immigrant alien would result in extreme hardship to the citizen or LPR spouse or parent of such alien [§212(a)(9)(A)(v)]
ii. Immigration officer have discretion to allow applicant to withdraw their application for admission but there is no absolute right to withdraw. Withdrawal is not considered removal under a formal order and incurs no bar to reapplying

Front 166

Expedited removal applies by statute to all arriving aliens. What about aliens who enter surreptitiously across other parts of the border?

Back 166

Atty General has “sole and unreviewable discretion” to designate for expedited removal aliens, even if not arriving aliens, “who have not been admitted or paroled into the US, if they do not afffiramtively show, to the satisfaction of an immigraiton officer, that they have been physcially present in the US continuously for the 2-year period immediately preceding the date of the inadmissiblity determiantion”

Front 167

Essentially, noncitizens are deportable if they fall into any of the following categories:

Back 167

1. Inadmissible at time of entry or guilty of subsequent violations of status
2. Convicted of criminal offenses
3. Failed to register or falsified documents
4. Engaged in activity that endangered national security or posed adverse foreign policy consequences
5. Became a public charge
6. Voted unlawfully

Front 168

Inadmissible vs. Deportable aliens

Back 168

-Aliens arriving at a port of entry and in the US who have not been admitted = subject to inadmissibility grounds
-Aliens admitted are subject to grounds of deportability

Front 169

list and describe the 6 bases for deportability under Immigration Control Grounds

Back 169

1. Inadmissible at Time of Entry or Adjustment of Status [§237(a)(1)(A)]
a. An alien is deportable if the alien was inadmissible at the time of entry or adjustment of status (even after inspection and admission)
i. Enables the government to expel aliens who had no right to enter the country  “delayed exclusion”
b. If alien was inadmissible b/c of §212(a)(6)(C)(i)—fraud or misrepresentation in obtaining an immigrant visa or admission—deportation may be waived if the alien is the spouse, parent, son, or daughter of a US citizen or LPR [§237(a)(1)(H)(i)(I)]

2. Unlawful Presence [§237(a)(1)(B)]
a. Nonimmigrant overstayers are deportable b/c they have been admitted
b. If unlawfully present for >180 days = inadmissible for 3 or 10 years after departure if they leave the US and seek to return [§212(a)(9)(B)]

3. Failure to Maintain Nonimmigrant Status [§237(a)(1)(C)(i)]  Status Violators
a. Nonimmigrants who fail to maintain their status or violate the conditions of their admission are deportable
b. Includes: working w/o employment authorization; overstaying I-94; criminal; violate terms of nonimmigrant visa

4. Termination of conditional permanent residence [§237(a)(1)(D)]
a. (i) Any alien w/ permanent resident status on a conditional basis under §216 (relating to conditional permanent resident status for certain alien spouses and sons & daughters) OR under §216A (relating to conditional permanent residence status for certain alien entrepreneurs, spouses, and children) who has had such status terminated under such respective section is deportable
b. (ii) This does not apply in the cases described in §216(c)(4) [re: hardship waivers]

5. Marriage Fraud [§237(a)(1)(G)]  deportable and barred for life!

6. Failure to register & falsification of documents [§237(a)(3)]
a. (C) Document Fraud  Atty General can waive this if alien is an LPR if no previous civil $ penalty was imposed against the alien for document fraud and the offense was incurred solely to assist, aid, or support the alien’s spouse or child (and no other individual).
b. (D) Falsely Claiming Citizenship  deportable and INADMISSIBLE FOREVER!!
i. (i) Any alien who falsely represents, or has falsely represented, himself to be a citizen of the US for any purpose or benefit under the INA or any Federal or State law is deportable
ii. (ii) Except, if each natural parent of the alien (or adoptive parent) is or was a citizens, the alien permanently resided in the US prior to attaining the age of 16, and the alien reasonably believed at the time of making such representation that he or she was a citizen, the alien shall not be considered to be deportable under any provision of this subsection based on such representation
c. §262 requires noncitizens who remain in the US for more than 30 days to register, be fingerprinted, provide their address, and provide written notice of change of address
d. §265(a)&(b) authorizes the AG to require special registration for groups of non permanent residents and to seek additional info from noncitizens (or a subgroup of noncitizens) from particular countries.

Front 170

some deportability crime-related grounds require a conviction. What is a conviction? Who has the burden of proving reversal of a conviction?

Back 170

101(a)(48)(A) defines conviction: formal judgment of guilt entered by a court or if adjudication of guilt has been withdrawn, where (i) judge or jury found alien guilty or the alien entered a plea of guilty or nolo conendere or admitted sufficient facts to warrant a finding of guilt and (ii) judge ordered some form of punishment, penalty or restraint on liberty.
a. Burden of proving a conviction was vacated to avoid immigration consequences: 9th circuit says DHS has burden while 1st circuit says noncitizen bears the burden

Front 171

what is the difference between an expunction and a conviction and what are the immigration consequences of each?'

Back 171

2. Expunctions – expunction limits the subsequent effect of a lawful conviction while a reversal means the underlying conviction was not lawful.
a. BIA has ruled that an expunction under a state statute has no impact on the immigration consequences and the noncitizen can still be removed. One exception is for expunctions under state statutes analogous to federal juvenile delinquency laws
b. Federal law allows expunction of convictions of simple possession of narcotics by first time offenders (First Offender Act) which removes immigration consequences. Only the 9th circuit erases immigration consequences under state expunction statutes for simple possession of narcotics by first time offenders.

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What is the benefit of a pardon?

Back 172

A full and unconditional pardon by a state governor or the President of the US will eliminate the immigrant consequences of convictions for CIMT, aggravated felonies, and high speed flight from an immigration checkpoint. 11th circuit has ruled that the pardon provision applies ONLY to grounds of deportability and not to inadmissibility.

Front 173

How does blacks law dictionary define a crime involving moral turpitude?

Back 173

CMIT has been defined as an act of baseness, vileness, of 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.

Front 174

What are requirements under a CIMT to be derpotable?

Back 174

a. §237(a)(2)(A)(i)(I) Any alien who is convicted of a crime involving moral turpitude committed w/in 5 years (or 10 years of LPR alien) after the date of admission AND
i. “Admission” = “any admission”  whatever admission runs into the stop time rule is what the Service will use, so look at each admissions separately
b. §237(a)(2)(A)(i)(II) Any alien who is convicted of a crime for which a sentence of one year or longer may be imposed
c. §237(a)(2)(A)(ii) Multiple Criminal Convictions—any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined and whether the convictions were in a single trial

Front 175

what did Goldeshtein v. INS hold about crimes with the element of fraud qualifying as a CIMT?

Back 175

The “essential element” must be written in the statute—a crime that involves no element of fraud as per the statute is not made fraudulent by the mere fact that the violator knew of its illegality

Front 176

Who is an aggravated felon?

Back 176

1. (A) Murder, rape, sexual abuse of a minor
2. (B) Illicit trafficking in a controlled substance; (C) illicit trafficking in firearms or explosives
3. (D) Money laundering if the amount of funds exceeded $10,000
4. (F) Aggravated felonies include “a crime of violence” for which the term of imprisonment is at least one year [§101(a)(43)(F)]
a. 18 U.S.C. §16 defines “crime of violence” as:
i. (a) An offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another OR
ii. (b) Any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense
5. (G) Theft offenses or burglary offenses for which the term of imprisonment is at least one year
6. (H) Demand for or receipt of ransom; (I) Child Porn; (K) Prostitution
7. (J) Racketeer Influenced Corrupt Organizations (RICO), gambling
8. (M) An offense involving fraud or deceit in which the loss to the victim(s) exceeds $10,000 OR tax evasion where loss to government exceeds $10,000
9. (N) Alien smuggling, except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense to assist, abet, or aid, ONLY the alien’s spouse, child, or parent (an no other individual)
10. (P) False Documents
11. (S) Obstruction of justice, perjury or subornation of perjury, bribery of a witness, for which the term of imprisonment is at least one year
12. (U) An attempt or conspiracy of any of the above
13. The term “aggravated felon” applies to an offense described above whether in violation of Federal or State Law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed w/in the previous 15 years

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consequences of being an aggravated felon

Back 177

a. Explicitly DEPORTABLE [§237(a)(2)(A)(iii)]
i. Waiver if alien subsequent to criminal conviction has been granted a full and unconditional pardon by the POTUS or by the Governor of any state [§237(a)(2)(A)(v)]
ii. If has a controlled substance conviction (under law of any State, the US, or a foreign country relating to controlled substances – which would be an aggravated felony as per §212(a)(2)(C)), is removal other than a single offense involving possession for one’s own use of 30g or less of marijuana [§237(a)(2)(B)]
b. An alien who has been admitted to the US as an LPR and has been convicted of an aggravated felony is not eligible for a §212(h) waiver for inadmissibility
i. Aggravated felons are not explicitly inadmissible, but many of the grounds of being an aggravated felon are listed as grounds of inadmissibility: §212(a)(2)(A) crimes against moral turpitude; §212(a)(2)(C) controlled substance traffickers; §212(a)(2)(D) prostitution; §212(a)(2)(H) smugglers; §212(a)(2)(I) money launderers
1. Furthermore, CIMT = explicitly inadmissible, and all CIMTs are subsumed in “aggravated felon”
ii. §212(h) only cures §212(a)(2)(A)(i)(I) [CIMTs] AND §212(a)(2)(A)(i)(II) [drugs] if it’s a single offense of simple possession of 30g or less of marijuana
1. No §212(h) waiver FOR ANYONE who is a murderer or torturer or who conspired to commit murder or torture
2. No §212(h) waiver for ANY OTHER DRUG OFFENSES
c. Not eligible for most forms of relief from deportation
i. Asylum [§208(b)(2)(B)(i)]
ii. Cancellation of removal [§240A(a)(3)]
iii. Voluntary departure [§240B(a)(1) & (b)(1)(C)]
d. Aggravated felony conviction + imprisonment for an aggravate of 5 years = no withholding of removal b/c considered a particularly serious crime [§241(b)(3)(B)(ii)]
e. Conviction of aggravated felony = no good moral character  NO naturalization [§101(f)(8)]
f. Barred from life from re-entering the US w/o the Atty General’s consent to application for readmission [§212(a)(9)(A)(i)]

Front 178

what kind of crime is a DUI?

Back 178

DUI may be considered a “crime of violence” b/c it involves “a substantial risk” of physical force against another person or his property Leocal v. Ashcroft

A crime of violence is an aggravated felony.

Front 179

Did congress intend that state charges would count as an aggravated felony for removal purposes even though the underlying conduct would not be punishable as a federal felony?

Back 179

No. -A state felony will not be deemed an “aggravated felony” when the corresponding federal offense is a misdemeanor. Lopez v. Gonzales

Front 180

Can a state misdemeanor constitute an aggravated felony under the INA?

Back 180

There is no explicit provision in the statute directing that the term “aggravated felony” is limited only to felonies  Congress did not specifically articulate that aggravated felonies cannot be misdemeanors [Guerrero-Perez v. INS (7th Cir. 2001) – rule applies nationwide under Matter of Small (BIA 2002)]

Front 181

What is the narrow exception to the definition of an aggravated felon deportable because of a controlled substance?

Back 181

conviction of a single offense of possession of 30 grams or less of marijuana for one's own use is not a ground of deportaton

Front 182

What did Lara-Chacon v. Ashcroft hold about the definition of "relating to a controlled substance"

Back 182

i. When a criminal statute does not by its language indicate that it was contemplated to be a narcotic law, and historically has constituted a criminal offense separate and distinct from the underlying felony, such a statute is not a law relating to narcotic drugs. Thus racketeering does not equal relating to a controlled substance.

Front 183

explain what a crime of domestic violence is and when it can be a ground for deportability

Back 183

a. Crime occurred anytime after admission
b. Includes domestic violence, stalking, child abuse, child neglect, or child abandonment. Also includes violated protection orders by making threats of violence, causing bodily injury or engaging in repeated harassment
c. Crime must constitute a crime of violence (defined under aggravated felony above) AND the crime must be committed against a person who is a current or former spouse or someone similar to that of a spouse.
d. VAWA provides a waiver for victims of domestic violence for noncitizens who had been the victim of battering or extreme cruelty if the noncitizen was acting in self-defense or if there are other extenuating circumstances

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What happens when a noncitzen pleads guilty to an aggravated felony conviction but was not informed that it would lead to their removal?

Back 184

many states have statutes that require a trial court to inform noncitizen that acceptance of a guilty plea may lead to their removal from the U.S. However, federal courts are generally unwilling to set aside a criminal conviction based on ineffective assistance of counsel if the counsel failed to inform them.

Front 185

What are the 5 different crimial grounds for deportability?

Back 185

CIMT, aggravated felony, druggies, certain firearm offenses, crimes of domestic violence

Front 186

what are consequences of removal?

Back 186

i. Aliens previously deported may not enter for 10 years w/o the Atty General’s permission; aliens removed under expedited removal are subject only to a five-year bar [§212(a)(9)(A)]
1. An alien deported more than once must wait 20 years for re-entry
2. An aggravated felon faces a lifetime bar (absent Atty General permission to re-apply for admission)
ii. Removal terminates residence for registry and naturalization purposes
iii. Aliens who fail to depart after a final removal order are subject to fines of $500/day [§274D]

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What is "deferred action" status

Back 187

form of relief from removal.

presence of deportable aliens is tolerated b/c of humanitarian considerations (a/k/a “nonpriority enforcement status)

3. It is conferred SOLELY AT THE DISCRETION of the Service and confers NO BENEFITS
a. Aliens granted deferred action status may obtain work authorization upon a showing of need but few other benefits

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what is stay of removal?

Back 188

i. Rough equivalent to deferred action status for persons who already have an order of removal
1. Can stay removal of an alien “for such time and under such conditions as may be appropriate”
2. These are typically used while aliens are waiting for appeals
ii. No deportation order may be executed during the time for filing an appeal to the BIA, or while an appeal to the BIA is pending
iii. What about appealing to the circuit courts of appeals?
1. Filing a petition for review in the court of appeals USED TO produce an automatic stay of deportation (except w/ aggravated felons)
2. After the 1996 amendments stays pending court of appeals review are DISCRETIONARY [§242(b)(3)(B)]

Front 189

what is the "stop time" rule for cancellation of removal proceedings?

Back 189

Alien stops accruing time when the NTA is issued or the criminal offense [§212(a)(2) or §237(a)(2)] was committed whichever is earliest [§240A(d)]
Commission of the offense NOT conviction of the offense is what stops time!

Front 190

what is cancellation of removal? who need no apply?

Back 190

i. Confers LPR status on deportable noncitizens who have lived in the US for a substantial period of time b/c such aliens are likely to have developed ties to the US; effectively wipes out the underlying basis for removal

aggravated felons are not eligible

Front 191

what are the requiements for cancellation of removal for LPRs?

Back 191

must have resided in the U.S. for at least 7 years continuously and must have been an LPR for 5 years

Front 192

what is presence requirement for cancellation of removal for a EWI or nonpermanent resident

Back 192

1. Aliens must have been “physically present in the US for continuous period of not less than 10 years immediately preceding the date of such application”
a. Sometimes can get the Service to “repaper”  will junk the old NTA & re-issue after a particular amount of time accrues. Never tell anyone you got ICE to “repaper”
b. Continuous presence and residence requirements waived for military

Front 193

besides presence for 10 years, what other 2 requirements are there for cancellation of removal for a non-LPR?

Back 193

good moral character for 10 years immediately preceding the date of application

exceptional and extremely unusua hardship:

2. Alien must establish that removal would result in “exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen or LPR”  hardship that is substantially beyond that which ordinarily would be expected to result form the alien’s deportation [“stratospheric”]
a. This is MORE than just hardship resulting form the removal of an alien who has become “acclimated” to the US
b. The fact that alien’s USC child would fare less well in the alien’s country of nationality than in the US does not meet this standard
c. The hardship standard is not so restrictive that only a handful of applicants, such as those who have a qualifying relative w/ a serious medical condition, will qualify for relief [In re Gonzalez Recinas (BIA 2002)]
d. In In re Gonzales Recinas, the BIA found that based on a “cumulative analysis”, the heavy financial and familial burden on the adult alien, the lack of support from the four USC children’s father, the USC children’s unfamiliarity with the Spanish language or way of life of Mexico, the lawful residence in the US of all immediate family members, and the concomitant lack of family in Mexico met the standard b/c the level of hardship presented is higher than established in most other removal cases

Front 194

what is the special rule for battered spouse & children for Cancellation of Removal?

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The Atty General may cancel removal of, and adjust to the status of an LPR, an alien who is inadmissible OR deportable from the US if the alien shows that—
1. (i)(I) the alien has been battered or subjected to extreme cruelty by a spouse or parent who is or was a USC (or is the parent of a child of a USC and the child has been battered or subjected to extreme cruelty by a USC parent);
a. (II) the alien has been battered/subjected to extreme cruelty by a spouse or parent who is a LPR (or is the parent of a child of an alien who is or was a LPR and the child has been battered or subjected to extreme cruelty by such LPR parent) OR
b. (III) the alien has been battered or subjected to extreme cruelty by a USC or LPR whom the alien intended to marry, but whose marriage Is not legit b/c that USC or LPR is a bigamist
2. (ii) the alien has been physically present in the US for a continuous period of not less than THREE YEARS immediately preceding the date of such application, and the issuance of a charging document for removal proceedings shall not toll the 3-year period of continuous physical presence in the US;
a. Alien shall not be considered to have failed to maintain continuous physical presence by reason of an absence if the alien demonstrates a connection b/w the absence and the battering or extreme cruelty perpetrated against the alien [§240A(b)(2)(B)]
3. (iii) the alien has been a person of good moral character during such period;
a. Alien is not precluded under this section if the Atty General finds that the act or conviction was connected to the alien’s having been battered or subject to extreme cruelty [§240A(b)(2)(C)]
4. (iv) the alien is not inadmissible under §212(a)(2) or §212(a)(3); is not deportable under §237(a)(1)(G) or §237(a)(2) or §237(a)(3) or §237(a)(4), and HAS NOT BEEN CONVICTED OF AN AGGRAVATED FELONY; and
5. (v) the removal would result in extreme hardship to the alien, the alien’s child, or the alien’s parent

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what is the registry?

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a way to immigrate if resident before 01/01/72 – file for adjust status

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How can you get relief from removal through a private bill?

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Sometimes possible to secure relief from removal as a result of federal legislation granting LPR status to one specific individual.

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Explain Voluntary Departure

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i. Under §240B, an alien is permitted to apply for voluntary departure in lieu of being subject to removal proceedings
1. Most noncitizens granted voluntary departure were arrested for being EWI and have no colorable claim to lawful residence – b/c their chances of effecting another surreptitious entry are greater than successfully contesting deportability in a hearing, many would rather accept the government’s offer of a ride over the border than stay and fight expulsion, especially if they will be detained throughout the proceedings
ii. An alien is ineligible for voluntary departure AT ANY TIME if the alien was previously permitted to so depart after having been found inadmissible under §212(a)(6)(A) (aliens present w/o admission/parole  EWIs) [§240B(c)]
1. This only applies if the alien was granted voluntary departure under a prior law NOT the current section §240B [Matter of Arguelles (BIA 1999)]
iii. The statutory requirements for voluntary departure depend on when an alien applies for voluntary departure: in lieu of removal proceedings OR b/4 the conclusion of the removal proceedings, or at the conclusion of removal proceedings
1. Requirements and Conditions under §240B(a) of the Act (In Lieu of Being Subject to Removal Proceedings):
a. Alien applies for voluntary departure w/ the Service and the authorized officer can specify the period of time permitted for voluntary departure
b. The Service officer can grant extensions of the departure period, but the total period permitted (including extensions) cannot exceed 120 days [§240B(a)(2)(A)]
c. The Service may attach to the granting of voluntary departure any conditions it deems necessary to ensure the alien’s timely departure from the US, including a bond, continued detention pending departure, and removal under safeguards
2. Requirements and Conditions under §240B(a) of the Act (b/4 the Conclusion of Removal Proceedings): Master Calendar Hearing
a. Request must be made prior to or at the master calendar hearing (where the case is initially calendared for the merits hearing)
b. Alien must have conceded removability, waived appeal of all issues, and not been convicted of an aggravated felony or be deportable on national security grounds
c. IJ may not grant a voluntary departure period exceeding 120 days [§240B(a)(2)(A)] and may impose other conditions as deemed necessary to ensure departure, including the posting of a voluntary departure bond [§240B(a)(3)]
3. Requirements and Conditions under §240B(b) of the Act (At the Conclusion of Removal Proceedings): Individual/Merits Hearing
a. Different requirements:
i. (1) Alien must have been physically present in the US for at least 1 year immediately preceding the date the NTA was served [§240B(b)(1)(A)]
ii. (2) Alien must show that he is, and has been, a person of good moral character for at least 5 years immediately preceding the application for voluntary departure [§240B(b)(1)(B)] [aggravated felons need not apply]
iii. (3) Alien must show by clear & convincing evidence that he has the means to depart the US and intends to do so [§240B(b)(1)(D)]
b. Alien MUST post a mandatory voluntary departure bond of an amount sufficient to ensure the alien’s departure [§240B(b)(3)]
c. Voluntary departure can only be granted for a max of 60 days [§240B(b)(2)]
iv. Favorable Exercise of Discretion
1. Adverse Factors: Nature and circumstances of the deportation ground; additional violations of the immigration laws; the existence, seriousness, and recency of any criminal record; any other evidence of bad character
2. Favorable Factors: Long residence; close family ties; humanitarian needs
v. Consequences of failure to depart voluntarily under §240B: Civil penalty of $1,000 to $5,000; AND ineligible for relief of cancellation of removal [§240A], voluntary departure [§240B], adjustment of status [§245], change of nonimmigrant classification [§248], and registry [§249] for a 10-year period [§240B(d)]
vi. Voluntary departure does not cure unlawful presence!!

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what is asylum?

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under U.S. law, those fearing persecution are entitled to remain as asylees, a status that is technically temporary but leads to LPR status in most cases

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Define "refugee"

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any person who is outside any country of such person’s nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail him or herself of the protection of, that country b/c of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion

i. DOES NOT include people who fled civil war and ethinic strife, or some combination of natural disasters and human-caused suffering

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There are two ways for a non-citizen to seek refugee status which may lead to LPR status in the US:

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i. (1) Overseas Refugee Programs—selection for a program enables a refugee, while in a foreign country (typically in a refugee camp) permission to immigrate to the US  alien from abroad enters US as refugee
ii. (2) Political Asylum—noncitizen reaches the US and then seeks asylum status domestically  person

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Asylum Status vs. Refugee Status: when do they terminate and what are the numerical limitations?

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i. Termination:
1. Asylum may be terminated if the Atty General determines that the alien no longer meets the conditions of asylee status b/c of a fundamental change in circumstances [§208(c)(2)(A)]  attention is given to the conditions in the asylee’s home country
2. Refugee status may be terminated by the Atty General if the Atty General determines the alien was not in fact a refugee as per the definition in §101(a)(42) [§207(c)(4)]
ii. Numeric Limitations:
1. Asylees can adjust to LPR status after 1 year in the US, but the Refugee Act limits the # of asylee adjustments to 10,000/year; there is no quota on the number of “asylees”
2. There is no ceiling on refugee LPR adjustments; there is a quota on the number of “refugees”

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what is nonrefoulement?

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ii. An affirmative refugee status determination  limited protection against return (nonrefoulement) AND the range of protections embodied in asylum law in the country of safe haven

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THERE ARE THREE DISCRETE CONCEPTS IN asylum LAW. what are they and what form do they require?

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i. Political Asylum  §208 (easiest form of relief to obtain)
ii. Withholding of Removal  §241(b)(3)
iii. Withholding under the Torture Convention (hardest form of relief to obtain)

I-589

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describe the history of political asylym in the US

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i. From the very beginning of federal immigration laws, Congress has recognized special exemptions for otherwise deportable or inadmissible non-citizens who have become political enemies of the government in the nation to which they would be sent
ii. The Immigration and Nationality Act of 1952 authorized the Attorney General in his discretion to withhold deportation of an alien w/in the US who was subject to physical persecution in his country of nationality
iii. In 1968 the US became a party to the UN Protocol Relating to the Status of Refugees and was thus bound by all the provisions of the UN Convention
1. Despite this, Congress did not change any of the statutory provisions
2. What was previously a purely discretionary permitting the Atty General to withhold deportation was transformed into a firm legal obligation
iv. The Refugee Act of 1980 added §208 to the INA and created a new immigration status—“asylum”
1. Asylum was provided, at the discretion of the Atty General, to applicants in the US who show they meet the statutory definition of refugee—well-founded fear of persecution based on one of the five specified grounds if returned to their home countries

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what are 2 benefits of asylum?

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-Can petition for LPR status after 1 year
-Once granted asylum can petition for spouse & unmarried minor children abroad (Form I-730)

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when does an applicant apply for asylum?

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i. Applicants for asylum must show “by clear and convincing evidence that the application has been filed within one year after the date of the alien’s arrival in the US” [§208(a)(2)(B)]
1. Notwithstanding the one year time limit, an alien may apply for asylum “if the alien demonstrates to the satisfaction of the Atty General either the existence of changed circumstances which materially affect the applicant ‘s eligibility for asylum OR extraordinary circumstances relating to the delay in filing an application w/in the one year time period” [§208(a)(2)(D)]
2. If cannot show changed circumstances, file for withholding of removal

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A non-citizen can apply for asylum AFFIRMATIVELY or DEFENSIVELY. Explain the differences

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1. AFFIRMATIVELY:
a. Available to applicants not in removal proceedings  apply through Asylum Office in CIS
b. If the application is complete, applicant gets notice for interview & an asylum officer will conduct an interview
c. Asylum officers grant meritorious cases (very few) and refer the rest to the IJ  when the non-citizen is referred to the IJ, they are simultaneously issued a notice to appear which transfers jdx from CIS to the DoJ. The asylum claim can be further considered in the course of a removal proceeding.
2. DEFENSIVELY:
a. Available in expedited removal and traditional removal proceedings
b. In expedited removal proceedings [§235(b)(1)], non-citizens arriving at the port of entry are subject to removal by an immigration officer, if found inadmissible under §212(a)(6)(C) or §212(a)(7) (having false or inadequate documentation)
i. If the non-citizen expresses a fear of return or asks for asylum, they are referred to an asylum officer who interviews the non-citizen to determine if they have a “credible fear of persecution”  IJ to have an asylum hearing
c. In removal proceedings, non-citizen’s application heard through the IJ
d. If the applicant applies for asylum only after the issuance of a removal order, the applicant must file a motion to reopen w/ the IJ or BIA which “must reasonably explain the failure to request asylum prior to the completion of the proceedings”

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what happens if you file a frivolous application for asylum?

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Filing a frivolous asylum application makes the applicant permanently ineligible for any benefits under the INA

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Explain the judicial review of asylum decisions

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.3. The immigration judge’s decision (on either a defensive asylum claim or a referred claim) is appealable to the Board of Immigration Appeals (BIA)
4. The decision of the BIA is further appealable to the Circuit Courts of Appeal and the SCOTUS
5. The “scope and standard of review” for removal cases: “The administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” [§242(b)(4)]
a. Immigration court’s findings will ONLY be set aside if they are “clearly erroneous”

-Appeals must be made w/in 30 days
-Must file stay of deportation when file appeal w/ Circuit Courts of Appeals

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how is eligibility determined for asylum?

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i. Under §208(a), eligibility for asylum depends entirely on the Atty General’s determination that an alien is a “refugee” as defined in §101(a)(42) and a favorable exercise of discretion [INS v. Cardoza-Fonseca – SCOTUS (1987)]

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can someone be a refugee if the persecution occurred in the past?

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a. A finding of past persecution gives rise to a regulatory presumption that the applicant has a well-founded fear of future persecution [Matter of Chen (BIA 1989)]
i. Rebutted if INS proves by a preponderance that since the time the persecution occurred conditions have changed to such an extent that the applicant no longer has a well-founded fear

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What is Persecution?

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(1) The harm imposed must be of a serious nature AND
(2) The harm must be imposed for one of the designated reasons

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What does “On Account Of” mean in regards to persecution?

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a. Prosecution and punishment under a law of general applicability will not ordinarily constitute persecution “on account of” one of the five statutory grounds
b. “Persecution on account of political opinion” = persecution on account of the victim’s (not persecutor’s) political opinion [INS v. Elias-Zacarias – SCOTUS (1992)]

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Explain the "internal flight alternative" in asylum law

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a. The applicant lacks a well-founded fear if he “could avoid the persecution by relocating to another part of the applicant’s country of nationality, if under all the circumstances it would be reasonable to expect the applicant to do so.”
i. If the persecutor is the gvt and the applicant has been persecuted in the past, there is a presumption that internal relocation is not possible (INS can rebut the presumption by a preponderance)

In deciding the reasonableness of relocation, must consider whether the applicant would face “other serious harm” in that location, as well as, the existence of civil strife and “social and cultural constraints”

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What constitutes a particular social group under asylum law?

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a. “Persecution on account of membership in a particular social group” = “persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic” [Matter of Acosta (BIA 1985); Matter of Mogharrabi (BIA 1987)]
i. Shared characteristic may be innate OR may be a shared past experience but MUST be one that members of the group either cannot change or should not be required to change b/c it is fundamental to their individual identities

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What is the burden of proof for a refugee applicant?

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1. “The burden of proof is on the applicant to establish that the applicant is a refugee, within the meaning of §101(a)(42)(A)” [§208(b)(1)(B)(i)]
a. An applicant for asylum does not need specific corroboration, provided that the alien’s “testimony is believable, consistent, and sufficiently detailed to provide a plausible and coherent account of the basis for his fear” [Matter of Acosta (BIA 1985); Matter of Mogharrabi (BIA 1987)]
i. “The testimony of the applicant may be sufficient to sustain the applicant’s burden w/o corroboration, but only if the applicant satisfies the trier of fact that the testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. Where the trier determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.” [§208(b)(1)(B)(ii)]
1. If the court is satisfied w/ the testimony, the applicant can be granted asylum w/o documentation or witnesses
b. Credibility Determination:
i. “A trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness; the inherent plausibility of the applicant’s or witness’s account; the consistency b/w the applicant’s or witness’s written and oral statements; the internal consistency of each such statement; the consistency of such statements w/ other evidence of record . . . “ [§208(b)(1)(B)(iii)]
ii. Credibility findings are subject to judicial review, but BIA can reverse the IJ on credibility only upon a determination that they are “clearly erroneous”

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a. Four Elements must be shown to establish a well-founded fear of persecution (from Matter of Acosta – BIA (1985)):

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i. (1) The alien possesses a belief or characteristic a persecutor seeks to overcome in others by means of punishment of some sort;
ii. (2) The persecutor is already aware, or could become aware, that the alien possesses this belief or characteristic;
iii. (3) The persecutor has the capability of punishing the alien; AND
iv. (4) The persecutor has the inclination to punish the alien

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Post 9/11 Burdens on Asylum Applicants:

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a. (1) Real ID Act  Affirmative burden on asylum applicant to prove who he or she is, which essentially means that they need to provide an identity document
b. (2) If there is someone in the US w/ personal knowledge of the persecution, MUST be in court to testify or must say why not in court and have affidavits presented
c. (3) Must provide ICE lawyers w/ original documents so they can do forensic analysis

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3. The 1990 asylum regulations have avoided using the BIA’s formulation asking whether a “reasonable person in the applicant’s circumstances would fear persecution” in favor of asking:

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whether “there is a reasonable possibility of suffering such persecution if the applicant were to return to the home country”
a. Applicant doesn’t need to show that he would be singled out for persecution if he can show a pattern or practice in the home country of persecution of a group of persons similarly situated to the applicant and establishes his own inclusion in and identification w/ such group of persons

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What are exceptions to asylum

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i. PERSECUTORS [§208(b)(2)(A)(i)]
1. Aliens who “ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion”
2. Laipenieks v. INS (9th Cir. 1985): “Active personal involvement in persecutorial acts needs to be demonstrated” for an alien to be removable as a persecutor
ii. CRIMINALS
1. Alien was convicted of a particularly serious crime in the US [§208(b)(2)(A)(ii)]
a. Conviction of an aggravated felony [§208(b)(2)(B)(i)]
2. Reasons to believe alien committed a “serious nonpolitical crime” outside the US [§208(b)(2)(A)(iii)]
3. Alien is a security risk to the US [§208(b)(2)(A)(iv)]
iii. FIRM RESETTLEMENT
1. The alien was firmly resettled in another country prior to arriving in the U.S. [§208(b)(2)(A)(vi)]
2. Firmly resettled = entry into another state w/, or while in that state receiving, an offer of permanent resident status, citizenship, or some other type of permanent resettlement
a. Not applicable if:
i. Entry into that state was a necessary consequence of flight; that alien remained in that state only as long as was necessary to arrange travel; and that alien did not establish significant ties in the state OR
ii. Conditions of alien’s residence in that state were so substantially and consciously restricted by the authority of the country of refuge
3. §208(a)(2)(A) Safe Third Country Provision—denies the right to apply for asylum to aliens who “may be removed, pursuant to a bilateral or multilateral agreement” to a state where there is no threat to life or freedom on the protected grounds and where “ the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection
iv. TERMINATION OF ASYLUM  §208(c)(2)
1. Asylum granted does not convey a right to remain permanently in the U.S. and asylum may be terminated if the Atty General finds that—
a. (A) the alien no longer meets the conditions for asylum b/c of a fundamental change in circumstances
b. (B) the alien falls under one of the exceptions clauses

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What is the differnce b/w asylum and witholding of removal?

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i. Under §208(a), eligibility for asylum depends entirely on the Atty General’s determination that an alien is a “refugee” as defined in §101(a)(42) & the Atty General’s favorable exercise of discretion
1. Every alien that meets the statutory definition is not automatically granted asylum  if the definition is satisfied, the alien MAY be granted asylum in the discretion of the Atty General
ii. Under §241(b)(3), “the Atty General may not remove an alien to a country if the Atty General decides that the alien’s life or freedom would be threatened in that country” b/c of one of the five grounds
1. There is no discretion—an alien who satisfies this standard is automatically entitled to relief
iii. Congress’s language in the two standards conveys different meanings:
1. “Would be threatened” in §241(b)(3) has no subjective component, but requires the alien to establish by objective evidence that it is more likely than not that the alien will be subject to persecution upon deportation
2. “Fear” in §208(a) makes the eligibility determination turn to some extent on the subjective mental state of the alien
iv. The standards for §208 and §241(b)(3) are NOT identical:
1. Those “refugees” who can show a clear probability of persecution are entitled to mandatory withholding of removal and are eligible for discretionary asylum
2. Those “refugees” who can only show a well-founded fear of persecution are not entitled to anything, but are eligible for the discretionary relief of asylum

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i. GETTING TO A REMOVAL HEARING:

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1. If the DHS chooses to initiate removal proceedings, it serves a charging document commanding appearance b/4 an IJ for a hearing at a designated time and place  the charging document is the Notice to Appear (NTA) [Form I-862]
a. Issuance of the NTA transfers jdx over the alien from the DHS to the IJ
2. NTA will state ONE of THREE things:
a. (1) You are an arriving alien  expedited removal [LOOK AT GROUNDS OF INADMISSIBILITY  §212 and see if there’s a waiver there…]
i. If become admissible (talk to the DA about reducing a sentence or charge), then can file a termination of proceedings b/c will now be admissible to the US
1. Usually ICE will issue a new NTA which will charge the same alien under Box #3
b. (2) You are an alien present in the US who has not been admitted or paroled
c. (3) You have been admitted to the US, but are deportable [LOOK AT GROUNDS OF REMOVABILITY  §237 and see if there’s a waiver there…]
i. If you are admitted and get married, your spouse can petition for you as an immediate relative (Form I-130)
ii. The removal proceeding will continue until the I-130 is approved
iii. When the I-130 is approved, can adjust status
3. While many NTAs are served w/o the respondent being arrested, there is the power to arrest with a warrant [§236(a)]
a. Immigration officers can arrest w/o a warrant any alien who the officer believes (1) is entering, or attempting to enter the US in violation of the immigration laws, or (2) is present in the US in violation of the immigration was and is likely to escape before an arrest warrant can be obtained [§287(a)]
b. The decision to begin removal proceedings must be made w/in 48 hours of arrest, except in the event of an emergency or extraordinary circumstance or in the case of terrorists
4. Most aliens never get to a removal hearing because they elect to voluntarily depart [See §240B]

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ii. CONDUCTING THE REMOVAL HEARING:

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1. Removal proceedings are typically conducted in two stages: the master calendar hearing and the individual merits hearing
a. Master calendar determines if an individual merits hearing is even required, and in many cases it is not
b. If issues of fact are disputed, if inadmissibility or deportability is contested, or if the respondent seeks asylum, cancellation of removal, or other forms of relief besides voluntary departure, the IJ will set an individual merits hearing for a future date
2. The IJ has the authority to “administer oaths, receive evidence, and interrogate, examine, and cross-examine the alien and any witnesses. The IJ may issue subpoenas for the attendance of witnesses and presentation of evidence…” [§240(b)(1)]
a. IJ can also sanction (by $ penalty) any action in contempt and can sanction private attorneys, but not the DHS attorneys
b. IJ has jdx over: voluntary departure, cancellation of removal, asylum, withholding of removal, registry, and waivers!!
3. Aliens in removal proceedings “shall have the privilege of being represented, at no expense to the Government, by counsel of the alien’s choosing” [§240(b)(4)(A)]
a. Aliens who cannot afford an atty must be informed of free legal services in the area
4. Consequences of failure to appear [§240(b)(5)]
a. Any alien who, after written notice has been provided to the alien or the alien’s counsel of record, does not attend a proceeding, shall be ordered removed in absentia if the Service establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is removable [§240(b)(5)(A)]
b. An in absentia removal order can be rescinded ONLY—
i. Upon a motion to reopen filed w/in 180 days after the date of the order of removal if the alien demonstrates that the failure to appear was b/c of exceptional circumstances [§240(b)(5)(C)(i)]
1. “Exceptional circumstances” = “exceptional circumstances (such as serious illness of the alien or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances) beyond the control of the alien” [§240(e)(1)]
ii. Upon a motion to reopen filed at any time if the alien demonstrates that the alien did not receive notice or the alien demonstrates that the alien was in Federal or State custody and the failure to appear was through no fault of the alien [§240(b)(5)(C)(ii)]
5. Relief from Removal [§240(c)(4)]:
a. (A) An alien applying for relief or protection from removal has the burden of proof to establish that the alien—
i. (i) satisfies the applicable eligibility requirements; AND
ii. (ii) w/ respect to any form of relief that is granted in the exercise of discretion, that the alien merits a favorable exercise of discretion
1. Withholding of removal and withholding under the Torture Convention do not have favorable discretion  ONLY statutory eligibility applies

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iii. MOTIONS TO REOPEN [§240(c)(7)], MOTIONS TO RECONSIDER [§240(c)(6)]:

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1. An alien may file ONE motion to reopen proceedings [§240(c)(7)(A)]
a. Should state new facts that will be proven at a hearing to be held if the motion is granted, and shall be supported by evidence [§240(c)(7)(B)]
b. Must be filed w/in 90 days of the date of entry of a final administrative order of removal [§240(c)(7)(C)(i)]
c. There is no time limit on the filing of a motion to reopen if the basis of the motion is to apply for relief under §§ 208, 241(b)(3) (asylum, withholding of removal) and is based on changed country conditions if such evidence is material and was not available and would not have been discovered or presented at a previous proceeding [§240(c)(7)(C)(ii)]
d. There are at least three independent grounds to deny a motion to reopen [from INS v. Abudu – SCOTUS (1988)]
i. (1) Movant has not established a prima facie case for the underlying relief
ii. (2) Movant has not introduced previously unavailable, material evidence, or, in an asylum application case, has not reasonably explained his failure to apply for asylum initially
iii. (3) Where ultimate grant of relief is discretionary, BIA may leap ahead and simply determine that even if the previous two concerns were met, the movant would not be entitled to the discretionary grant of relief
2. An alien may file ONE motion to reconsider a decision that the alien is removable [§240(c)(6)(A)]
a. Must be filed within 30 days of the date of entry of a final administrative order of removal [§240(c)(6)(B)]
b. Must specify the errors of law or fact in the previous order and be supported by evidence [§240(c)(6)(C)]

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Detention after final removal

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1. When an alien has been found to be unlawfully present in the US and a final order of removal has been entered, the government ordinarily secures the alien’s removal during a subsequent 90-day statutory “removal period” during which time the alien normally is held in custody
2. A special statute authorizes further detention if the Government fails to remove the alien during those 90 days – “An alien ordered removed [1] who is inadmissible, or [2] removable, or [3] who has been determined to be a risk to the community or unlikely to comply w/ the order of removal, may be detained beyond the removal period, and if released, shall be subject to certain terms of supervision” [§241(a)(6)]
a. Does this post-removal-period statute authorize the Atty General to detain a removable alien indefinitely beyond the removal period or only for a period reasonably necessary to secure removal?
i. The statute contains an implicit “reasonable time” limitation [Zadvydas v. Davis – SCOTUS (2001)]
1. After a 6-month detention period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond w/ evidence sufficient to rebut that showing