I.

Family Immigration Nonimmigrant: no intention of making US permanent home Immigrant: wants to abandon former residence and have one in the U.S. Eligibility: to sponsor you must either be a citizen or an LPR and must be able to show you can support the immigrant at 125% of the poverty level (requires an affidavit of support). A. Visas to Family Members 1. (Immediate Relatives- Highest Preference) i. Unmarried son or daughter (under 21)of US citizen ii. If an immiediate relative child under age 21 gets married, he/she can no longer be classified as such and will become a third preference category married son/daughter of a U.S. citizen & a visa would no longer be immediately available. iii. Gay spouse is ineligible, instead a visitors visa is usually issued iv. Conditional Permanent resident: whenever a noncitizen receives LPR status as an immediate relative or as a family-sponsored second preference immigrant or as a united state citizens fianc, by virtue of a marriage that is less than 2 years old, the resulting permanent resident will be subject to conditions subsequent a. Doesnt apply to accompanying or following spouse/statutory child b. Conditional residence is for two years and that resident in that time will have same rights and responsibilities as other permanent residents c. To maintain permanent residence past those two years, the conditional resident is required to file a joint petition with his or her spouse to remove the condition (must be done within 90 days before the card expires and if not, or if without good cause either spouse fails to appear at interview, permanent residence is terminated). d. IMFA also applies to anyone who acquires permanent residence by virtue of being the son or daughter of an individual through a qualifying marriage e. Certain restrictions are placed on a person who obtains LPR status by marrying a USC or another LPR and then after termination of that marriage, marries another non-citizen and seeks family-sponsored second pref for that noncitizen, unless a period of 5 years has elapsed after the alien acquired the status of LPR, or the alien established to the AG by clear and convincing evidence that the prior marriage wasnt entered into for the purpose of evading any part of immigration laws. 2. First preference: unmarried sons and daughters of U.S. citizens and children if any i. As long as marriage took place before child turned 18 and the marriage is still intact, step-relationship would be found regardless of any existing parent-child relationship. ii. A citizen father may petition for his child born out of wedlock; whereas children born out of wedlock to citizen mothers automatically qualify iii. Adopted children may qualify but only if adoption was finalized prior to childs 16th birthday 3. Second preference: spouses or children of an alien lawfully admitted in U.S. for permanent residence- LPR a. The spouse or child must be acquired before the principal immigrants admission as an LPR: condition satisfied if child is product of marriage before the principal immigrants admission as an LPR b. A spouse or child will be regarded as accompanying the principal immigrant until 6 months after the issuance of the principal immigrants visa c. There is no analogous time limit on a spouse or child who is following to join:\ i. 2As- spouses and children (under 21) of LPRs

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ii. 2Bs-all other 2nd prefs (over 21 unmarried sons and daughters of LPRs) 4. Third Preference: Married sons and daughters of US citizens 5. Fourth Preference: Brothers and sisters of over-age 21 U.S. citizens II. Employment-Based Immigration Labor Certification: For the 2nd and 3rd preference applicants, a requiredstatement from the U.S. department of labor that a particular position at a particular company is open because no jobs are available a. To get LC, the alien must get a permanent offer from one, full-time U.S. employer (multiple employers cannot combine)> the alien cannot be admitted as an LPR unless the mployer obtains LC that qualified U.S workers arent available for the employment offered to the alien and that the wages and working conditions offered will not adversely affect those of similarly employed U.S. workers. A total minimum of 140,000 immigrant visas per year are available for PREFERENCE categories which is divided in 5 ways: 1. First Preference (E1) Priority Workers: Persons of extraordinary ability in sciences, arts, education, business or athletics; outstanding professors and researchers; and certain multinational executives and managers i. No LC required for this category- saves about a year of time ii. Includes inter-company transfers iii. To come via this category must have worked for at least 1 year as an executive or six months for very large corporations iv. For extraordinary ability, NO specific job offer is necessary, so long as they plan to work in their field of notoriety a. This group can self-petition v. Outstanding professors and researches with 3 years experience. No LC, but employer must offer job and file petition vi. Certain executives and managers with 3 years experience must be coming to work in that capacity. No LC required, but employer must provide job offer and file petition. 2. Second Preference (E2) Members of the Profession: Professionals holding advanced degrees and persons of exceptional ability in the sciences, arts and business and visa requires LC and job offer. i. LC and job offer requirement can be waived if alien shows how exemption could be in national interest ii. Professional holding advanced degree (beyond bachelors) or a bachelors plus 5 years progressive experience 3. Third Preference (E3) Professionals, Skilled and unskilled workers and workers who can demonstrate their labor is needed (other workers): Professionals holding their bachelor degrees, skilled workers with at least 2 years experience and other workers whose skills are in short supply in the U.S. i. No more than 10,000 workers whose skills are in short supply in the U.S. ii. Requires Labor Certification iii. Professionals are those jobs that usually require bachelors iv. Skilled workers are persons capable of perfroming a job requiring at least 2 years training or experience. (Waitress, for example. Max 10,000) v. Note: The department of labor has flagged certain occupations which will require additional showings beyond the usually required. Schedule B-parking attendants, nurses aides, cab drivers. 4. Fourth Preference (E4) Special Immigrants: certain religious workers, ministers of religion, certain international organization employees and their immediate family members and qualified, recommended current and former U.S. government employees. i. No LC required

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ii. Preference not allowed to take overflow from other categories iii. Only 10,000 per year 5. Fifth Preference (E5) Employment Creation/Entrepreneurs: persons who create employement for at least 10 unrelated persons by investing capital in a new commercial enterprise in the U.S. i. Minimum capital required is between $500k and $1 million depending on the employment rate in the geographic area. ii. Business investment must employ at least 10 americans iii. No LC required 1. Displacing American workers: if the job offered to an immigrant has restrictive job requirements, the employer must show their business necessity. i. To establish a business necessity, an employer must demonstrate that the job requirements bear a reasonable relationship to the occupation in the context of the employers business and are essential to perform, in a reasonable manner, the job duties as required by the employer. ii. The Secretary of Labor can require the employer to advertise the job at the prevailing wage (the average wage of workers similarly situated in the area of intended employment). Diversity Based Immigration: countires of high immigration cant participate in diversity lottery. Theory behind this is to give people with no other hope a chance to enter the United States. Procedure: 1. USCIS determines number of noncitizens who entered from each foreign country over the past 5 years; 2. World divided into 6 regions and each receives inverse percentage compared to how many immigrants came from that region in last five years. III. Nonimmigrant Priorities An entering non-immigrant must fit into one of 22 categories & not be excludable A. Commercial Visas a. Business Visitors i. B1: activities of a commercial or professional character (a) Consultations, attending seminars (b) Admitted for up to one year, with possibility of multiple extensions in six month increments. (c) Specifically excludes those coming to perform skilled, unskilled labor, or engaging in employement. (d) Dont include purely local employment nor construction workers (unless supervisor of construction) (e) Manual work may be business rather than labor and therefore qualify for a B1 visa if the work is a necessary incident to international trade or commerce. (f) Transporting of passengers arent necessary incidents to trade, but transporting of goods does qualify for a B1 visa - Must have legitimate commercial or professional activity and must maintain a foreign residence b. Treaty Traders (E1) and Investors (E2) i. The eligibility of an individual under these visas rests on the terms of the particular treaty. The source for determining eligibility is the statute itself and case law ii. Both categories are admitted up to 2 years, with an unlimited number of possible 2 year extensions.

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Intent to retain ones foreign residence is not required. However, intent to depart upon termination is required. iv. Spouse and children may follow to join. Spouses have permission now to work. (a) Treated Traders (E1): granted to those entering the U.S. to engage in substantial trade in goods or services, including trade in services or technology, on their own behalf or as employees of a treaty trader. To qualify: must be executive, manager, or possesses essential skills. (b) Treaty Investor (E2): granted to those who are coming to the U.S. temporarily to direct or develop a bona fide enterprise in which they have made a substantial investment. i. The INS may require an alien to prove that investment funds belong to him, constituting a personal business risk in order to qualify for E-2 treaty investor status. (Nice v. Turnage) c. Temporary Workers i. The H status category is designed to help employers meet an immediate and temporary need for labor. It is divided into six classes: 1. Specialty Occupations-H1B: requires theoretical and practical application of a body of highly specialized knowledge a. Requires 1) at least a bachelors in the particular specialty or 2) the equivalent of the bachleors in the U.S. or 3) a license to practice. b. Employer must file labor condition application: assertions by the employer that wages are equal or exceed the prevailing avg and that there will be no adverse impact on U.S. workers c. Dual intent is okay. H visas can enter with hope of attaining LPR. d. This nonimmigrant must be coming temp to the U.S. and may be admitted for six years and apply for extension e. Also for fashion models 2. Agricultural Workers- H2A: employer must still obtain from the DOL a certification that sufficient American workers cant be found and that the nonimmigrants employment wont adversely affect the wages and working conditions of American Workers. a. May not remain in U.S. longer than 3 years. 3. Lesser Skills & Labor Shortages-H2B: work of a temporary nature and includes nonagricultural seasonal workers a. Admitted up to one year with one year extensions for a max of 3 years b. Require labor attestations not labor certs (no addtl docs needed unless audited). c. Whether a position is temporary is based on the nature of the petitioning employers need for that service, not the temporary nature of the job. Therefore, a temp staffing service that has a permanent need for persons with a particular skill cant petition for H2B workers to fill its clients short term openings. 4. Trainees-H3: coming as a trainee 5. Spouses and children of H-H4: may not accept employment in the U.S. unless they specifically included in the employers petition. d. Intra-Company Transfers: L status- intended to enable multinational corporations to transfer high level or essential employees from overseas offices to aid or initiate business operations in U.S. i. Requires that the applicant has been continuously employed abroad for one year out of the last three prior to the application. ii. The U.S. offices may have a parent subsidiary relationship or may be affiliates owned by the same company, provided that at least 50% of iii.

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each entity is owned and controlled by the same shareholders (clients arent affiliates). iii. The employee must be managerial, executive, or have specialized knowledge of product or procedures. People who manage functions included. iv. Usually granted for three years but extended according to the following: a. manager or exec- 7 years/ specialized knowledge- 5 years. May have dual intent. v. Following or accompanying to join included. Spouses to work. vi. Transferees who have been in the U.S. for the max time must remain outside of the country for one year before applying to return as an H or L vii. Employers may file blanket petitions for more than 1 employee intra transfer. e. Educational Visas- F1 Visas and F2 for their spouses/children i. Exchange Visitors (students, professors, etc.)- INA101(a)(15)(F) ii. Vocational/nonacademic students (M status): need full course of study at an established or recognized or other nonacademic institution and children are granted M2 (a) Status is granted for the period of time necessary to complete the course of study plus 30 days (1 year). It is renewable. (b) M status may not accept employment. In some circumstances, practical training after completion of program may be authorized iii. Students (F status): to receive a visa, one must pursue a full time study: (a) Time is determined by school official plus 60 days (b) Full-time requirement can be waived to part time if approved y school official (c) If student wants to attend longer than 12 mos, student mustgo to private school. Public is prohibited. (d) Foreign students are admitted for duration of status - A designated school official estimates a reasonable completion date for the particular program. Student may remain until then assuming good standing. - Student can apply for extension with the university for compelling academic or medical reasons, such as changes of research topics, problems or illness. (e) An applicant must also demonstrate sufficient funds - Students may work on campus up to 20hrs/wk and 40 on vacation. Off campus work only allowed when unforeseen circumstances arise. - Foreign students also engage in O.P optional training program after they finish term of study - If student comes to school thats not approved, he wont get visa (f) F1 students are prohibited from attending public elementary schools and public secondary schools unless they pay full per capita costs of their education & max 12 mos. (g) F1 students may still attend private elementary and secondary schools (h) Any student in violation is now deportable and inadmissible for 5 years after date of violation. iv. Exchange Visitors (J1 Status for them J2 for their spouses and children)- purposes of this program are to provide training that will enable the visitors to benefit their countires of origin when they return; faster intellectual & cultural interchange and; build positive foreign relations. (a) Most popular use is as a student

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(b) Advantage over F1 is that there are more liberal employment rules. Many of the exchange programs provide fellowships or other types of funding. Another is that J students can remain as long as they are in a full time course of study and satisfactorily progressing whereas F only for duration that is approved by school official (c) Not every applicant qualifies for J visa because the specific program of study must be approved by the state dept. In addition, the applicant must be sponsored by a U.S. government agency, recognized intl agency or a private agency. (d) Professors and researches can stay for 5 years with no extensions (e) A 2-year foreign residency requirement applies to J1s in a program receiving financing from the U.S government or from their own government, or are nationls of countires designated as clearly requiring the persons services, or obtained J status to receive graduate medical training in the U.S. (f) The spouse and children of a nonimmigrant exchange visitor are also subject to the two year foreign residence requirement. (g) Waiver of 2 year residence requirement avaialable (if not eligible to change to A or G visa) (1) Cases of exceptional hardship on alien spouse or child who must be LPR or citizen; filed with USCIS; not to alien himself (2) Non-objection letters from applicants home country (3) Persecution; filed with USCIS - Its all discretionary; all these waivers apply to J visas except where an alien has had graduate medical training. f. Tourists: B2 for pleasure (72% of all nonimmigrants admitted) i. B2 visitor for pleasure visa is not available for persons who come to the U.S. to pursue non-approved educational programs. ii. B2 visa holders are barred from employment. There is one category of B2 that doesnt involve pleasure: medical treatment. iii. They may use B2 to seek out a business to invest in or to create themselves (which they can then use to obtain intra-company status) iv. Accompanying a significant other who is temporarily working or studying in the U.S. would be considered travel for pleasure (applies to both gay and straight) g. Fiances and Fiancees: (K visa) visas facilitate getting married when the fianc is a noncitizen i. Requires that the couple has met each other during the two year period preceding the petitions filing. ii. Spouses get immediate relative status. However, the processing time is not immediate therefore K(ii) was created which allows the spouse to come in and wait until their immigrant visas are being processed. These are K3 visas. K1 is for fiancs and K2 is for children accompanying or following to join iii. The noncitizen must be married within 3 months iv. The 90 day period may be tolled if the parties can show that a delay resulted from factors beyond their control. (ambiguous statutes-construe in favor of alien) h. Persons with extraordinary abilities (O Visa)- covers athletes, persons in arts, sciences, education & business i. Must have extraordinary ability which is demonstrated by sustained national or international acclaim. Lesser standard applies to artists. ii. Employers must file on their behalf. Support staff and family members are also covered. They may be admitted up to 3 years with possible and unlimited 1 year extensions. i. Internationally Recognized Artists & Athletes (P visas): category for internationally recognized but not necessarily extraordinary athletes and members of internationally recognized entertainment groups. These are P-1

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(a) Members must have sustained a substantial relationship with the group for at least one yea and must be integral to the groups performance. (b) P2: artists or entertainers who enter as part of an exchange program. P3: entertainers or artists who would provide programs that are culturally unique. (c) Employers must file on their behalf. P-1 admitted up to 5 years and extended up to 5 more; other Ps have up to 1 year and extensions in 1 year increments (d) Unlike H1B, neither P or O are numerically restricted B. Other Nonimmigrant Cateogries i. S- snitch visa for those who have valuable info for criminal organization or terrorists ii. T: for vistims of trafficking- must show extreme hardship & comply with investigation. Accompanying to join can also come along iii. U: for those whove suffered substatnital physical or mental abuse. Must also comply with investigation. After 3 years may adjust to LPR under certain conditions iv. V: limited relief to long divided families. Remedy long processing times for immediate relatives (spouses/children) of LPRs. C. General Nonimmigrant Problems: 1. Intent to Remain Permanently: Ineligible. If ICE discovers the person originally entered with intent to remain permanently, might be deportable for failing to maintain nonimmigrant status. (a) Can have negative impact in discretionary determinations, if change occurs very soon after admission, then there is suspicion for fraud. However, preconceived intent to remain doesnt preclude having a genuine change of mind. (b) Preconceived intent differs from dual intent. A person might enter U.S. with alternative plans in mind. A desire to remain in country permanently, in accordance with the law, should opportunity present itself, is not inconsistent with lawful nonimmigrant status (c) Three sources of ethical constraint: model rules, regulations governing conduct of lawyers who appear before DHS &EOIR and model code (d) To avoid ethical issues, advise the client as to separate course of conducts consequences 2. Change of Nonimmigrant Status: more convenient here rather than making the nonimmigrant go home- this allows nonimmigrant to become LPR without leaving (adjusts). Also nonimmigrants can switch to other nonimmigrant categories (changes). (a) Must meet conditions and obtain favorable exercise of administrative discretion. Non citizens who have overstayed their visas and some noncitizen categories arent eligible for change of status (b) Noncitizens who are inadmissible for having been unlawfully present for more than 6 months and certain other designated noncitizens, are also ineligible for change of status (c) However, change (248) the sec. of homeland security may, under such condition as he may prescribe, authorize a change from any nonimmigrant classification in the case of any alien lawfully admitted to the U.S. as a nonimmigrant whose continuing to maintain that status and whose not inadmissible under 212(A)(9)(B)(i). (d) If a nonimmigrant just wants to extend their stay, they apply directly to the USCIS. IV. Exclusion Grounds and Waivers A. Grounds Related to Immigration Control a. Excludable Aliens

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1. Document related- excludes immigrants and nonimmigrants who are not in possession of valid passports and visas i. Subject to a discretionary waiver authority granted in 212(k) pertaining to these immigrants, if the AG is satisfied that inadmissibility was not known to, nor could have been determined by exercise or reasonable diligence by, the immigrant before the time of departure from the port of embarkation. 2. Noncitizens who procure visas, or other documents by fraud or misrepresentation become inadmissible for life i. AG has discretion to waive in case of an immigrant who is the spouse, son, or daughter of a US citizen or of an LPR if it is established to the AGs satisfaction that the refusal of admission to the US of such alien would reslt in extreme hardship to the citizen or LPR spouse or parent of such an alien, or in the case of an alien classified under 204(a)(1)(A)(ii, iv) or aliens U.S. citizen, LPR, or qualified parent or child. 3. False claims of citizenship, both oral and written, constitute grounds for inadmissiblility. i. Doesnt apply to persons who obtained LPR before 16, have a natural or adopted parent who is a U.S. citizen, and reasonably believed they were citizen 4. Surreptitious Entry: Noncitizens who are present in the U.S. without having been admitted or paroled as well as those who arrive other than at officially designated ports of entry. 5. Assisting other noncitizens to enter unlawfully is also a ground for inadmissibility, subject to family unification waiver. 6. Noncitizens who have been unlawfully present in the U.S. for 180 days but less than a 1 year are inadmissible for 3 years. Unlawfully present for 1 year or more inadmissible for 10 years. 10 year bar applies whether departure was voluntary. i. Unlawfully present: present after expiration of authorized stay or is present without being admitted or paroled. ii. Presence must be continuous not an aggregate of two or more stays. 1. For example, a person w/ 2 separate 4 month periods of unlawful presence would not be inadmissible under the 180 day provision 2. An individual who is granted the remedy of voluntary departure is not considered unlawfully present until the due date for his or her departure. 3. The violation of the terms of admission (F1 student visa, for example) makes the person deportable, but the presence does not become unlawful, and thus the 180 day and 1 year period do not start to run, until the immigration judge hears the case and determines whether a violation has occurred. iii. Notice to appear by ICE: The time from when the notice to appear is issued until the time a removal order is issued is counted as unlawful presence. 1. However, the new immigration department (EOIR) disagrees with this interpretation. It believes that time spent in removal proceedings is not unlawful presence. Who is right? INS can make the rule but BIA (EOIR houses BIA) has the power to interpret. (See problem #3 below) iv. When a person files for a change in status with the USCIS, the time that it takes for the USCIS to render a decision is not considered unlawful presence unless the decision is unfavorable. The petitioner must also not have violated any of the terms such as work. v. Tolling for good cause: In the case of an alien who

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B.

1. (I) has been lawfully admitted or paroled into the US, 2. (II) has filed a nonfrivolous application for a change or extension of status before the date of expiration of the period of stay authorized by the AG, and 3. (III) has not been employed w/o authorization in the US before or during the pendency of such application, a. The calculation of the period of time specified in clause (i)(I) shall be tolled during the pendency of such application, but not to exceed 120 days. b. Note: the former INS in 2000 issued a memo that designates the entire period during which a timely filed, nonfrivolous app for either extension of stay or change of status is pending as a period of stay authorized by the AG for purposes of 212(a)(9), provided the person hasnt worked w/o authorization. The practical effect was to eliminate the 120-day limit and to extend the tolling to cover the 10-yr bar as well as the 3-yr bar. vi. Waiver: The AG has sole discretion to waive clause (i) in the case of an immigrant who is the spouse/son/daughter of a US citizen or LPR, if it is established to his satisfaction that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen of LPR spouse or parent of such alien. No court has jxn to review a decision or action by the AG regarding a waiver under this clause. vii. Exceptions to this ground of inadmissibility 1. minors, applicants for asylum, do not accumulate unlawful presence. 2. 3 or 10 year bar may be waived for an immigrant who is a spouse, son, or daughter of a U.S. citizen or permanent resident if excluding the immigrant would cause hardship to the citizen or permanent resident spouse or parent. 7. failure to attend their removal hearing is inadmissible for five years. i. People who were removed after any other removal proceeding, or who left the U.S. while in removal proceeding, are inadmissible for 10 years. (20 years for second offenders). However, the Secretary of Homeland Security has the discretion to waive this ground by consenting to the person applying for admission. 8. (aggregate presence): A noncitizen who was unlawfully present for an aggregate period of more than one year or was removed for any reason, and who then enters or attempts to enter without being admitted, becomes inadmissible for at least 10 years. 9. General Waivers for Nonimmigrants i. 212(d) Temporary admission of nonimmigrants authorizes join Sec. of Homeland Security/ Sec of State waivers, for nonimmigrants only, or all but a handful of the exclusion grounds. Political and National Security Grounds: inadmissible because believed to engage in activies prejudicial to the public interest. (obvious ones are those who engage in genocide, public officials responsible for severe violations of religious feedom, participated in future & extrajudicial killings.) i. Inadmissible because they were members of affiliates of organizations whose purpose was to overthrow the U.S. gov or governments in general ii. Inadmissibile if believed likely to engage, after entry, in such activites such as espionage, sabotage, or other subversion iii. Terrorism related exclusion: terrorist activity means any activity which is unlawful under the laws of the place where its committed or which, if it had been committed in

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the U.S., would be unlawful) and which involves and of the following: (1) the hijacking/sabotage of any conveyance including an aircraft, vessel, or vehicle, etc.) iv. Engage in terrorist activity defined: as used in this act, it means in an individual capacity or as a member of an organization a. (I) to commit or incite to commit, under circumstances indicating an intention to cause death or serious bodily injury, a terrorist activity; b. (II) to prepare of plan a terrorist activity; c. (III) to gather info on potential targets for terrorist activity; d. (IV) to solicit funds or other things of value for(aa) a terrorist activity evidence that he did not know, and should not reasonably have known, that the org was a terrorist org; e. (V) to solicit any individual f. (VI) to commit an act that the actor knows, or reasonably should know, affords material support v. Nonimmigrants from certain countries who are considered sponsors of terror vi. Did you provide material support? If doesnt matter what the organization went on to use it for. Contribution doesnt have to be nominal. vii. Individuals who entries or activities might adversely affect U.S. foreign policy WAIVERS: the only inadmissibility grounds that may not be waived for nonimmigrants under INA 212(d)(3) are those that cover individuals believed to be entering to engage in espionage, sabortage, forceful overthrow of the gov, or other unlawful activity, those relating to foreign policy, and those that relate to WWII era Nazis and genocide. The terrorist exclusion remains waivable even after 9/11. C. Criminal Grounds. a. Inadmissible if: i. Convicted of or admits to committing a crime of moral turpitude or a controlled substance violation. 1. Moral turpitude: larceny, theft, murder, fraud, rape, abuse, etc 2. controlled substance: other than a single offense of 30 grams or more ii. Was convicted of 2 or more offenses of any type and received total sentences of 5 or more years iii. Trafficked or assisted in the trafficking of controlled substances, or knowingly benefited from it. iv. Is coming to engage in prostitution or commercialized vice v. Previously departed the U.S. as a condition for receiving immunity vi. Engaged in violations of religious freedom as official of government vii. Has engaged in money laundering b. Exceptions and waivers to criminal grounds i. The ground of inadmissibility for moral turpitude does not apply if the person seeking admission committed the crime before the age of 18 and at least 5 years have passed since the end of any confinement or, ii. The max penalty was less than one year and the person was actually sentenced for no longer than 6 months. iii. Waiver not available to anyone who has previously been admitted as an LPR and has not resided continuously in the U.S. for at least 7 years immediately preceding the initiation of removal proceedings is inadmissible. D. Economic Grounds a. INA 212(a)(5)(A) (labor cert) & 212(a)(4) (likely to become public charge) b. Newest one: those U.S. citizens who renounce their citizenship for tax purposes. c. Public charge

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E.

V. A.

B.

i. Factors when determining public charge: 1. Primarily dependent on the U.S. government? Institutionalization for long term care at U.S. government expense. 2. p. 123 of stat bk. defines public charge and the factors are listed in determining whether public charge is possible. a. Age, health, family status, financial status, education, skills, and affidavits of support. 3. Statute provides for an affidavit of support, the big thing is that whereas in the good old days you could get anyone to sign the affidavit for you. This one is treated as a contract. See language on bottom of 176, sponsor agrees to provide support at an annual income not less than 125% of poverty line. The affidavit is enforceable up until naturalization or the alien has worked for 40 qualifying quarters (basically 10 years) under social sec act, whichever comes first. 4. Sponsors obligations can run for quite a long time. P. 179 defines sponsor: 18 years of age, domiciled in state or territory of U.S. Sec d of same page requires change of address, they always want to know where the sponsor is. Draws attention to e on same page: the alien himself can sue the sponsor with respect the financial support. The sponsor can also be sued by the government. Public Health and Morals a. Neither a physical nor mental disorder is generally a basis for exclusion unless the associated behavior poses one of specified threats. See Ina 212(a)(1)(A)(iii). However, waivers available. b. Drug addicts and drug abusers are specifically inadmissible. c. Excludes people with a communicable disease of public health significance, which shall not include infection with HIV. Admission & Removal Visa Petitions a. In immediate relative cases or family preference cases, it is the LPR family member or U.S. citizen that files the visa petition. i. Congress made exception for victims of violence, self-petitioner must show: 1. good moral character 2. good faith in entering the marriage, 3. subjected to extreme cruelty by their citizen or LPR spouse. Visa Applications a. Major exception is the visa waiver program. i. Nationals of certain countries can enter the country as B2 business or pleasure visitors for up to 90 days without having to procure visas. b. Remember: Certain types of visas will require labor cert. or USCIS approval of a visa petition or both before the visa application may be submitted. c. Immigration law and procedure i. Comparison between nonimmigrant and immigrant visas 1. Nonimmigrant for short periods and immigrants for permanent residence leading to citizenship. 2. Applicants are subject to exclusion grounds although not all apply to nonimmigrants, and some of the waiver provisions are not available to immigrants. ii. Nonimmigrants 1. Usually made at consulate abroad. Ages 14 an 79 require interview. 2. Tourists do not require supporting documents.

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3. E1 (treaty trader) or E2 (treaty trader) usually require extensive document to show they meet the qualifications. 4. Visas requiring prior approval of visa petition by USCIS a. Temp worker (H), b. intra-company transferee (L), c. fianc (K), d. alien of extraordinary ability in sciences, arts, education, business or athletics (O), and e. athlete or performing artist (P). iii. Immigrant 1. Made at consulate abroad. Alien living temp in U.S. is considered resident of consular district of last residence aboard. 2. Immigrant has to interview before getting visa unless it is a hardship for the alien to return tot heir home country. - A consular officers decision to issue or withhold a visa is not subject to administrative or judicial review. C. Actual Admission a. Upon arrival, noncitizens encounter CBP immigration inspectors. Their job: to determine whether inadmissibility grounds apply. b. Expedited removal available. Immigration officer hears the case. Is noncitizen clearly and beyond a doubt entitled to be admitted? A non-citizen may also be paroled. c. Hearings before Immigration judges i. Formal removal orders bar future admissions for up to five years. Officers can also the noncitizen to withdraw their application and leave in order to avoid this bar on future admission. ii. Removal hearings: begin when ICE serves a notice to appear. 1. Noncitizen bears the burden of proving inadmissibility. They must prove that he or she is clearly & beyond a reasonable doubt entitled to be admitted and is not inadmissible under section 212. iii. Formal rules of evidence dont apply, but hearings are solemn affairs w/ both parties (ICE v. noncitizen) commonly represented by counsel. Hearings recorded verbatim, and formal records are maintained. 1. INA 291 makes clear that an arriving noncitizen bears the burden of proving admissibility. INA didnt specify the standard of proof that the IJ was supposed to apply until IIRIRA 304, created new INA 240, [SB 290] which appears to address the issue: 2. Noncitizens who are alleged to be present in the US w/o having been admitted (i.e. entry w/o inspection) are regarded as applicants for admission; they have to establish either that they are admissible or that they in fact have been lawfully admitted. Under INA 240(c)(2)(B), they must make the latter showing by clear and convincing evidence. d. Appeals from immigration judge decisions i. Noncitizen or ICE may appeal to the Board of Immigration Appeals BIA. After BIA, the petitioner may directly with court of appeals. e. Expedited Removal i. Applies whenever immigration officer determines that an arriving noncitizen is inadmissible under 212(a)(6)(C) (fraud) or 212(a)(7) (lack of proper documents) 1. One major exceptionall noncitizens who indicate a fear of persecution or an intention to apply for asylum receive screening interviews. 2. Person is removed without further hearing. There is no appeal except for returning LPRs, admitted refugees, and asylees.

pg. 12

3. Only permissible issue for judicial review are: whether person is a citizen, whether the person was in fact ordered removed, or whether the person comes in previously mentioned classes (LPRs, refuges, and asylees). D. Adjustment of Status a. What if the person is in U.S. & the category applying to is current? INA 245 allows it! However, must be admissible and the category must be current (immediately available). Applicant may submit visa petition and adjust app at the same time provided that approval of petition make visa immediately available. b. INA 245 is discretionary. Wrongly denied adjustment? Only recourse is to wait for removal proceedings and renew adjustment application before the immigration judge. INS decision granting or denying relief in re: adjustment is still un-reviewable. Eligibility or inadmissibility is reviewable. c. Otherwise eligible applicants for 1st, 2nd, 3rd, and some 4th preference employment based slots could adjust their status while in the U.S., even if currently or formerly out of status, provided that they had entered lawfully (inspected and admitted or paroled) and were not out of status more than 180 days. i. Remember: unlawful presence exclusion ground can kick in if they wait around to long. ii. Paroled: You havent been admitted but your presence is being tolerated because of some problem. Ex. Losing your documents on the plane. d. All nonimmigrants who are in the U.S. may apply to have their status adjusted to permanent status except crew members, J visa holders, and visa waiver beneficiaries. i. Nonimmigrants other than immediate relatives are ineligible to adjust if they have accepted unauthorized employment or have otherwise failed to maintain lawful immigration status since entering the U.S. 1. Adjustment may be allowed if the nonimmigrant is lawfully present in the U.S. on date of filing for adjustment through employment (see above in re 1st, 2nd, 3rd, and 4th categories) and has not failed to maintain lawful status continuously, engaged in unauthorized employment, otherwise violated the terms and conditions of his or her admission for an aggregate period exceeding 180 days. a. Note: authorities treat adjustment apps as evidence of immigration intent thus preventing extension of current nonimmigrant status. Therefore, it is advisable to change to a nonimmigrant status that allows dual intent before applying to adjust to permanent residence. e. Aliens for which it is unavailable i. In transit w/o visa ii. Those under visa waiver program iii. Admitted to provide evidence in a criminal investigation iv. Deportable terrorist v. Employment based and not in LPR status 1. 245(k): mechanism to allow someone who has not been a major violator and who is trying to get an employment based visa. Allows them to adjust if his unlawful presence, absence, or time working illegally didnt exceed 180 days. vi. Unlawfully employed because not an LPR or otherwise violated terms of employment f. Note: May be granted voluntary departure VI. Deportability Grounds

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A.

In general i. Policy considerations and the legal consequences of expelling noncitizens who have reached the interior differ from those concerning the removal of noncitizens arriving at ports of entry. 1. Noncitizens that have lived in the U.S. for many years can be considered inadmissible if the evaded inspection and thus entered without being admitted when they entered the country. INA 212(a)(6). They are considered applicants for admission. (so are nonimmigrants trying to adjust thus they subject to inadmissibility grounds). In practice, however, they are considered removable for being present in the U.S. in violation of the law. INA 237(a)(1). 2. Usually, a persons inadmissibility or removability only comes to the attention of immigration authorities when he or she applies for one of the immigration benefits. ii. In removal proceeding, the opposing parties are ICE and the noncitizen. ICE initiates by presenting noncitizen with notice to appear which contains facts and inadmissibility grounds. Immigration judge hears the case and determines whether the person is a noncitizen and whether if the person is deportable ie. Whether the person fits into one of the deportability grounds. If found deportable, the judge decides whether the individual is deserving of discretionary relief. a. The meaning and significance of Entry and Admission i. IIRIRA has changed entry to admission. Admission determines whether the alien will be subject to the inadmissibility grounds or the deportability grounds. INA 240(e)(2) ii. Some provisions such as smuggling citizens, entering to engage in terrorism, entering to perform labor and becoming a public charge after entry keep the word entry. This was deliberate. The precise of meaning of the word entry used in these provisions is unresolved. 1. Criminal provisions also use the word entry as an essential element. iii. While arriving noncitizens whom immigration inspectors find inadmissible on document or fraud grounds are automatically subjected to the expedited removal procedure described in chapter 6, that procedure is inapplicable to noncitizens who have been present in the U.S. at least 2 years, and even its applicability to those in the U.S. less than two years is at the discretion of the AG. iv. Definitions 1. Admission: the lawful entry of the alien into the U.S. after inspection and authorization by an immigration officer. 2. Entry: refers to physically crossing into the U.S. territory, free from official restraint. a. Entry may be achieved after being inspected and authorized by an immigration officer, or by evading inspection, but physical presence as a result of parole does not constitute entry. b. Not every physical crossing into the U.S. constitutes an entry. v. Aliens who escape custody and enter the country after denial of admission are subject only to deporation proceedings, not exclusion proceedings (Matter of Chin and Chen) 1. why entry is relevant: it can mean the difference between a. mandatory expedited removal, and for those who are apprehended quickly, discretionary expedited removal, and b. for those who have previously been ordered removed, the loss of the right to a removal hearing if they illegally reenter.

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B.

vi. 2nd time entry problem when LPR returns (Rosenberg v. Fleuti). One leaving the U.S. briefly which does not meaningfully interrupt the noncitizens LPR status may not be considered to have entered for purposes of deporation. 1. However, briefness doesnt matter anymore under IIRIRA. LPRs will not be regarded as seeking admission (and thus not subject to inadmissibility grounds) unless they: a. Have abandoned or relinquished their permanent resident status, b. Have been absent from the U.S. for a continuous period in excess of 180 days, c. Have engaged in illegal activity after their departure from the U.S. d. Have departed from the U.S. while in removal or extradition proceedings e. Have committed a criminal or related offense identified as crimes of moral turpitude, drug trafficking, or prostitution. i. [Carmins v. Gonzalez] Alien went abroad, committed sexual battery and then came back after 3 weeks. Govnt couldnt get him under absence for not being casual, brief, and innocent, since Fleuti no longer applies but his crime of moral turpitude qualifies under this provision. f. Are attempting to enter at a place other than a designated port of entry or have not been admitted to the U.S. after inspection and authorization by an immigration officer. INA 101(a)(13)(C). Deportability Grounds concerned with immigration control i. 237(a) [SB 270]: Any alien (incl. an alien crewman) in and admitted to the US shall, upon the order of the AG, be removed if the alien is w/in one or more of the following classes: 1. (1) Inadmissible at time of entry or of adjustment of status or violates status (A) Inadmissible aliens; (B) Present violation of law; (C) Violated nonimmigrant status or condition of admission; (D) Termination of conditional permanent residence; (E) Smuggling; (F) repealed; (G) Marriage fraud; (H) waiver authorized for certain misrepresentations a. Entry without inspection as deportability ground was repealed and replaced with presence in the U.S. without admission a ground for inadmissibility. A NC also commits a criminal offense by entering w/o inspection (subject to fines).After a prior removal order, the offense can be a felony. b. Any alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time. INA 237(a)(1)(A). 2. (2) Criminal offenses (A) General crimes [(i) crimes of moral turpitude; (ii) multiple criminal convictions; (iii) aggravated felony; (iv) high speed flight; (v) failure to register as a sex offender; (vi) waiver authorized (for pardon by gov or president)]; (B) Controlled substances; (C) certain firearm offenses; (D) miscellaneous crimes; (E) crimes of domestic violence, stalking, or violation of protection order, crimes against children (3) Failure to register and falsification of documents (A) change of address; (B) failure to register or falsification of documents; (C) Document fraud; (D) falsely claiming citizenship;

pg. 15

C.

a. For (C), there is a discretionary waiver available. Although you procured the visa or Labor cert fraudulently, well forgive you if exclusion would result in extreme hardship to a U.S. citizen or permanent resident spouse or parent. INA 237(a)(1)(h) Passport would not fall under the exception. Is not a visa and not other documents. (4) Security and related grounds (A) in general; (B) terrorist activities; (C) foreign policy; (D) participated in Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing; (E) recipient of military-type training; (E) participated in commission of severe violations of religious freedom (note, 2 Es in original); (5) Public Charge (6) Unlawful voters (7) Waiver for victims of domestic violence WAIVER: Secretary of homeland security has discretion to waive this ground for LPRs who assist only certain family members Crime-Related Grounds for Deportability i. Conviction of a crime involving moral turpitude, for which the maximum possible sentence is one year or longer; ii. Convicted of two or more crimes of moral turpitude regardless of possible sentence; iii. Convicted of an aggravated felony; iv. Convicted of high speed flight from an immigration checkpoint; v. Convictions relating to controlled substances other than a single offense involving possession for one's own use of 30 grams or less of marijuana; vi. Convictions for most firearms offenses; or vii. Conviction for a crime of domestic violence and violation of protective orders. b. What is a conviction? i. Two elements 1. a judge or jury has found the person guilty or the person has entered a plea of guilty or nolo contender or has admitted sufficient facts to warrant a finding of guilty; 2. the judge has ordered some form of punishment, penalty, or restraint on the persons liberty. INA 101(a)(48)(A). a. The judge can defer judgment on condition that the noncitizen not violates certain conditions. This definition applies retroactively to crimes committed before enactment of IIRIRIA. b. Judgment deeming someone a youthful offender or juvenile delinquent is not a conviction. ii. Although noncitizen can appeal, conviction is final for immigration purposes while appeal is pending. iii. In re: violation of state laws and for the conviction to give rise to a conviction of a crime for immigration purposes, the procedure has to provide the constitutional safeguards normally attendant on criminal convictions. [case where burden of proof was preponderance and not beyond reasonable doubt therefore making it easier for prosecutors to prove their case].Where there is a conflict between state law and federal law in classifying a crime, federal law controls. iv. Withdrawing Guilty pleas 1. [U.S. v. Parrino] Surprise as to consequences of a sentence that results from erroneous information received from the Ds own

pg. 16

attorney is not sufficient ground to permit withdrawal of the guilty plea. However, it would have been a different story if the surprise stemmed from reasonable misunderstanding of prosecutor or judge in re: length of sentencing. Between 18 and 21 states are requiring their judges to advise the noncitizen of the potential immigration consequences. Direct consequences required to satisfy due process but not collateral consequences. v. Expungements 1. Expungements never erase convictions for immigration purposes. However, the judgment can be set aside if there was a flaw in the original proceeding that was not a harmless error. 2. Expungements of first time possession of narcotics cannot be used as a conviction in subsequent removal proceedings. vi. Executive Pardons 1. Presidents and governors can eliminate a noncitizens deportability for moral turpitude, aggravated felonies, and convictions of high speed flight from immigration check points. c. Crimes involving Moral Turpitude i. INA (a)(2)(A)(i and ii) 1. The meaning of crime involving moral turpitude a. [Marciano v. INS]. For deportability purposes, statutory rape involves moral turpitude regardless of the factual context of the crime. Moral turpitude definition: an act of baseness, vileness, or moral depravity. Crimes involving fraud or intent to defraud is a crime of moral turpitude. Simple assault, no. Aggravated assault, yes! Aggravated DUI can be moral turpitude if there is knowledge of ones license being suspended. b. Generally referring to crimes involving dishonesty, immorality, or violence which are not defined in the immigration laws. As a result, the question of which criminal convictions involve an act of moral turpitude have been determined by court decisions and are very fact-specific. Analysis of these crimes is additionally complex because the law generally requires that crimes involving moral turpitude have been committed within five years of coming to the US and involve a potential sentence of at least one year (INA 237(a)(2)(A)(i)). c. Also removable if convicted at any time of two or more crimes involving moral turpitude not arising out of a single scheme. To constitute a single scheme, the crimes must not take place at one time; there must be i. no substantial interruption that would allow the participant ii. to disassociate himself from his enterprise and iii. reflect on what he has done. d. Criminal offenses i. (A) General crimes 1. (i) Crimes of moral turpitude Any alien who a. (I) is convicted of a crime involving moral turpitude committed within five years after the date of admission, and

pg. 17

2.

3. 4. 5.

b. (II) is convicted of a crime for which a sentence of one year or longer may be imposed, i. is deportable. (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 therefor and regardless of whether the convictions were in a single trial, is deportable. (iii) Any alien convicted of an aggravated felony at any time after admission. (iv) high speed flight from an immigration checkpoint is deportable. (v) pardon by the President or by the Governor waives all.

d. Drug Offenses i. INA 237(a)(2)(B): controlled substance which is defined in 21 U.S. 802. ii. A noncitizen convicted of trafficking in a controlled substance has more to worry about than deportation. This is an aggravated felony. e. Aggravated Felonies i. In determining whether a crime is an aggravated felony, federal law not state law controls. In re: drug possession, the BIA defers to the federal district circuit courts of appeal as to whether a particular state crime constitutes felony drug trafficking offense. ii. While an alien can be deported for a number of violations ranging from simple immigration violation to serious criminal convictions, the most serious and unforgiving ground of deportability is aggravated felony, found at INA 237(a)(2)(A)(iii). iii. Aliens convicted of an aggravated felony may be permanently barred from any relief from deportation, bond during immigration proceedings, mandatory detention, certain forms of judicial review, etc. Noncitizens may be sentenced up to 20 years if they re-enter illegally after being convicted. iv. Removal orders based on aggravated felony are not subject to judicial review, although federal courts do have jurisdiction to determine whether a particular offense is an aggravated felony. v. Aggravated felony is defined in the immigration laws at INA 101(a)(43) as follows: 1. The term aggravated felony means a. (A) murder, rape, or sexual abuse of a minor; b. (B) illicit trafficking in a controlled substance c. (C) illicit trafficking in firearms or destructive devices d. (D) (relating to laundering of monetary instruments) or (relating to engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds exceeded $10,000; e. (E) relating to explosive materials offenses or relating to firearms offenses, f. (F) a crime of violence for which the term of imprisonment at least one year;

pg. 18

g. (G) a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment at least one year; h. (H) demand for or receipt of ransom); i. (I) child pornography); j. (J) racketeer influenced corrupt organizations, or gambling offenses, for which a sentence of one year imprisonment or more may be imposed; k. (K) an offense that - (i) relates to the owning, controlling, managing, or supervising of a prostitution business; transportation for the purpose of prostitution if committed for commercial advantage; or peonage, slavery, involuntary servitude, and trafficking in persons; l. (L) relating to gathering or transmitting national defense information (relating to disclosure of classified information, sabotage, treason, protecting the identity of undercover intelligence agents,); m. (M) an offense that - (i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or revenue loss to the Government exceeds $10,000; n. (N) alien smuggling), except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien's spouse, child, or parent (and no other individual). o. (O) committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph; p. (P) an offense (i) which either is falsely making, forging, counterfeiting, mutilating, or altering a passport or document fraud for which the term of imprisonment is at least 12 months, except in the case of a first offense for which the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien's spouse, child, or parent (and no other individual), q. (Q) failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more; r. (R) an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year; s. (S) obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year; t. (T) an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years' imprisonment or more may be imposed; and u. (U) an attempt or conspiracy to commit an offense described in this paragraph. i. The term applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years. Notwithstanding any other provision of law (including any effective date), the term applies regardless of whether the conviction was entered before, on, or after September 30, 1996.

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D.

E.

VII.

1. a foreign conviction can never be used against noncitizen in the states if the noncitizen was never imprisoned. vi. Crimes of Violence, prong F [Leocal v. Ashcroft] State DUI offenses that require no showing of mens rea or only a showing of negligence are not crimes of violence justifying deportation under 237(a). There must be some active employment of force. If someone is DUI, he is not setting up in his mind, The first person I see, Im running over!. This is the accidental use of physical force not intentional use of force. Intentional is needed for the statute to apply. 1. Crime of violence can encompass minor crimes. [case where a lady had been living all her life in the U.S. pulled someones hair and this was considered crime of violence. Only a pardon saved her from deportation]. 2. Burglary is a crime of violence since by its nature it involves a substantial degree of risk that the burglar will use force against the victim. 3. Conviction of vehicular burglary does not satisfy prong G. 4. Petty larceny can be aggravated felony as long as one year sentence is imposed. [Can be partially suspended, etc. but it will still count]. a. Defense attorneys now ask judges to impose 364 day sentences rather than a year to get around this requirement. Political and National Security grounds a. There is no deportability ground based on affiliation with the communist party. However, they may be inadmissible at entry because of it. b. Remember: 237(a)(1)(A) renders any one deportable who was inadmissible at the time of either entry or adjustment of status. Other deportability grounds a. Deportable for violating health related conditions imposed at entry. b. Deportable for past or present drug abuse or addiction. c. Deportable for becoming a public charge within 5 years after entry unless he or she can affirmatively show causes arising after entry. Relief From Deportation Relief provisions are seen as affirmative defenses for which the noncitizen has the burden of proof A. Lasting Relief- INA240A i. Cancellation of removal: part A 1. General applicability and scope a. Available to any removable noncitizen who: i. Has been lawfully admitted for permanent residence for at least 5 years, ii. Has resided in the U.S. continuously for seven years after having been admitted in any status, and iii. Has not been convicted of any aggravated felonies b. Granted or denied at the discretion of the immigration judge. c. Problems 1-3, page 581. ii. Cancellation of removal: part B 1. General applicability and scope a. Allows immigration authorities to cancel noncitizens removal and adjust his or her status to that of a lawful permanent resident. Again, tt also applies to LPRs who dont fit part as requirements. b. To be eligible, the noncitizen must:

pg. 20

i. Physically present in the U.S. for a continuous period of at least 10 years, ii. Needs good moral character, iii. Not convicted of any crimes or document offenses that would make him inadmissible or removable, and iv. Not subject to any of the security grounds of inadmissibility or removability. 1. must show that removal would resut in exceptional and extremely unusual hardship to their citizen or LPR spouse, parent, or child. 2. For victims of abuse, physical presence is reduced to 3 years and extreme hardship rather than exceptional iii. Applicable to both parts 1. Noncitizens are ineligible for cancellation if: a. they are inadmissible or otherwise removable on national security grounds, b. fail to depart under grant of voluntary departure, or c. are ordered removed for failing to appear at removal proceedings. 2. INA 240(d) defines continuous physical presence a. An absence of more than 90 days or aggregate of more than 180 days interrupts continuous presence. b. Continuous residence or continuous physical presence ends when the noncitizen commits an offense that makes him or her removable, or when he or she is served with a notice to appear, whichever is earlier. i. In contrast, LPR status only ends when a final removal order is entered against the noncitizen. ii. If an alien voluntarily departs under threat of deportation, continuous physical presence is broken. However, merely turning an alien back at the border after visiting his sick mother does not break continuity. iii. For battered spouses/children, will not interrupt if alien can show absence was related to battery. c. Now, about continuous presence requirement in 240Ab1A in re romalez, if an alien voluntarily departs under threat of deportation, his continuous physical presence is broken. i. However, Ashcroft v. Morales 384 f.3d 418, 7th circuit, if immigration inspector merely says "i'm tired! Walk back across the border..." this merely turning the alien back at the border, this does not constitute a break in the continuous physical presence, he has been merely sent back across the border NOT left under threat of deportation. There was no deportation proceeding! ex. taken back in a truck. So if he's he been here for 9 years and visits his sick mother, comes back across border and gets taken back in a truck... he didn't leave under threat of deportation and there is no break in continuous physical presence. iv. Exceptional and extremely unusual hardship

pg. 21

1. to a citizen or LPR spouse, child, or parent. 2. Hardship claim must be supported by affidavit or other evidentiary material; this standard is very difficult to satisfy. BIAs definition is binding on IJ and federal courts. 3. Financial and educational detriment to a noncitizens two citizen children did not meet this standard, even though the noncitizens status as a single mother and her lack of family in the country to which she would be removed made her case unusual. a. On the other hand, [In re: Recinas] divorcee w/ 6 children 4 of which were U.S. citizens. She had a business and some assets. Her mother took care of the kids. The board found that the 4 U.S. citizens were fully dependent on the mother and the mother had no one back in Mexico who could care for the children. The family support group in U.S. was a big factor in deciding that removing her would pose an exceptional and extremely unusual hardship. They were different in degree but not in kind as the 1st case. Here, it was cumulative, the actual NUMBER of children that would be affected. b. Another case dealt with someone trying to show that his or her U.S. citizen child would fare less well in the aliens country than in the U.S. Sorry chuck.Not having marketable skills in Mexico, for example, is not sufficient to satisfy the standard. c. A noncitizens political involvement could expose him and/or his family to exceptionally and unusual extreme hardship. 4. [INS v. John Ha Wang] The immigration courts discretion allows it to deny a noncitizens motion to reopen a case for the purpose of requesting cancellation of removal, even if the noncitizen can show that intervening circumstances have given rise to prima facie eligibility for relief. 5. [Hee Yung Ahn v. INS] A BIA ruling denying cancellation of deportation should contain a discussion of the reasons for its decision and an indication that all pertinent factors were considered. The BIA has broad discretion in determining what constitutes extreme hardship and may construe that term narrowly. 6. When an immigration judge grants adjustment to LPR status based on cancellation of removal, the noncitizen is admitted to the U.S. as a permanent resident as of the date of the cancellation of removal or adjustment of status. B. Limited Relief a. Deferred action i. Technically ICE remains free to proceed against the person in the future if its workload or its priorities change; realistically, since the actual reason for holding back is the presence of exceptionally sympathetic factors, relief will typically be permanent unless those factors change. ii. One who accepts this gets in return, no formal removal order issued against them. 1. 240B(a): at their own expense, either in lieu of removal proceedings or during removal proceedings. a. Aggravated felons, terrorists, and those previously removed but then returned are ineligible. b. Noncitizen may be required to post bond and the period allowed for voluntary departure may be up to 120 days.

pg. 22

c. The noncitizen must demonstrate the ability to pay for his or own departure. However, the government may grant voluntary departure and pay the expenses if its deemed in the best interests of the U.S. 2. 240B(b): at the conclusion of the removal proceedings at aliens expense. Bond is mandatory, not discretionary. Max period is 60 days. a. To be entitled, the noncitizen: i. physically present in the U.S. for at least 1 year immediately before notice to appear served, ii. Good moral character for the preceding 5 year period, 1. habitual drinking, gambling, giving false info to receive immigration benefits, etc. iii. Not have been removable under agg felony or national security, and iv. Show by clear and convincing evidence of means and intent to depart. iii. Benefits 1. Voluntary departure avoids the stigma of removal, enables noncitizens to select their destinations, and facilitates the possibility of return to the U.S. 2. A noncitizen granted voluntary departure is not considered removed and consequently, is not subject to the 5 year (10 year if departed while order was outstanding) bar on reentry after removal. a. 20 years for 2nd immigration offense or permanent for aggravated felony. 3. Noncitizen will still be accountable for any unlawful presence accumulated and therefore 3 year or 10 year bans would apply. a. However, a person who has been present in the U.S. for between 180 days and 1 year and is granted voluntary departure at the commencement of removal proceedings is not subject to the 3 year bar. Note statutory language: prior to commencement, it doesnt say after commencement. 4. 240B(a)(4): doesnt apply to arriving aliens. They can, however, withdraw their applications. 5. If the alien gets voluntary departure, he will be able to apply for LPR before 3 years if he gets the hardship waiver. The hardship waiver removes the 3 year ban for purposes of applying for LPR once his family sponsored visa comes current. iv. Finality 1. The final decision lies with the immigration judge; its discretionary. 2. A decision to deny relief is not subject to judicial review. 3. The secretary of Homeland Security may issue regulations that further limit eligibility for voluntary departure, ad no court may review any such regulation. b. Objections to destination i. 241(b)(2) sets up a multi-step approach to selecting the removal country. 1. Step 1: non-citizens preferred country, sent there unless exception applies. [no contiguous islands] a. AG can disregard designation if alien takes too long, the govnt of the country doesnt accept/deny w/in 30 days, the govnt isnt willing to accept, or the AG decides its prejudicial to the US.

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B.

2. Step 2: removed to the country where he or she is a subject, national, or citizen unless the govnt of that country doesnt accept/deny w/in 30 days or other reasonable period, or isnt willing to accept the alien. 3. Step 3: six possibilities i. Country from which person was admitted to U.S. ii. Country of birth iii. Country in which is located the foreign port from which alien left for US, iv. Country where alien resided before entered the country from which he entered the US, v. Country that had sovereignty over aliens birthplace when born, vi. Country in which aliens birthplace is located when removed. b. [Jama v. INS] Even if country in paragraph E (i-vi) doesnt accept, judge still has the discretion to send him there. Another country whose government will accept language in vii does not require acceptance for those countries listed in E. c. If removal to any of these impracticable, inadvisable, or impossible, then step 4 applies. 4. Step 4: immigration judge is free to designate another country whose government will accept the alien. a. Only step in which the countrys affirmative acceptance is a prerequisite to removal. ii. [Linnas v. INS] Deportation is neither a punishment nor extradition; therefore, bill of attainder is inapplicable. Furthermore, aliens have no right to remain the U.S. so due process is not required. c. Stay of removal i. Granted at discretion of CIS district director. Not appealable but the noncitizen may renew the application to stay removal before the BIA. ii. Since the mere filing of a motion to reopen does not automatically stay removal, the regulations authorize non-citizens to couple a motion to reopen with a request for a stay to permit a decision on the motion. iii. If a person is removed while the application to stay removal or motion to reopen is pending, the motion and application are considered withdrawn. Sorry chuck! Miscellaneous Defenses a. U.S. Citizenship: a person who can prove it has a complete defense to removal. b. Reasons why removing noncitizens and their U.S. citizen children is not unconstitutional: i. Citizen child cannot make a real choice in re: where to live and is dependent. ii. Parents may allow the child to live in foster care. iii. Upon attaining age of majority, the citizen child will be free to return to the U.S. c. Defense that deportation is cruel and unusual punishment doesnt work. d. Estopping government from deporting a noncitizen requires a showing of Affirmative misconduct. i. A governments failure to act timely is not enough. ii. Affirmative misstatements are not affirmative misconduct. e. Claim that the statute is unconstitutional; rare. A noncitizen whose been ordered removed and who plans to immigrate to be reunited with his U.S. citizen or LPR family may request the AGs consent to reapply for admission. If granted and hes not otherwise inadmissible, the noncitizen will no longer be subject to the lengthy bars to admission.

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VIII. Refugees & Asylum Noncitizens seeking asylum overseas Refugee Noncitizens seeking asylum within U.S. border Asylum-seeker Seekers of either of the following remedies must first qualify as Refugee under INA 101(a)(42) Asylum, permission to remain temporarily, and usually permanently (discretionary) withholding of removal narrower remedy, prevents removal to the country of persecution (mandatory) A. Overseas Refugees a. Meeting the Refugee requirement i. Among other requirements, the applicant must possess a well founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 1. must be of special humanitarian concern to the U.S., 2. must not have firmly resettled in another country, and 3. must be admissible under most 212(a) provisions. a. AG may waive inadmissibility in interest of family unity, humanitarian purposes, or public interest. ii. Refugees are not subject to admissibility criteria relating to labor certification, foreign medical graduates, public charges, and valid entry documents and visas. Were going to forgive you for these things. iii. The refugee must be sponsored by a responsible person or organization. Ex. Churches, community organizations, relatives, etc. iv. AG is prohibited from paroling a refugee into the US absent compelling reasons in the public interest with respect to that particular alien. 212(d)(5)(B). Since the refugee definition doesnt encompass people fleeing war or natural catastrophe, the prohibition doesnt affect the use of the parole power on behalf of these groups. b. After one year i. The refugee is eligible to apply for adjustment of status to LPR. Whereas asylum status may be terminated if conditions improve in the asylees home country, refugee status is not conditional in this respect. ii. The noncitizen may be removed if they are later found to have not fallen within the Refugee meaning at the time of their admittance. B. Asylum and nonrefoulement a. Again, these are noncitizens who have reached the border or are present in the interior. They must first qualify as refugees. b. Remedies i. Nonrefoulement (withholding of removal) and asylum under 208. An application for asylum under 208 is automatically treated as an application for withholding of removal. 1. Asylum i. Discretionary 1. Ex. You should not focus entirely on the fraudulent documents. The IJ should look at all the circumstances. The alien has been so persecuted that the ONLY way he has been able to come is by the fraud. We should not hold the fraud against him. ii. It can provide relief of removal. Must apply within 1 year of arrival to the U.S. After 1 year as an asylee, the

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noncitizen is able to adjust status to that of LPR. Thus, it is further reaching than withholding of removal. iii. When noncitizen applies for adjustment, 4 (public charge), 5 (LC requirements, 7A (documentary requirements), we know your an asylee so we're going to forgive you for these things. AG or Sec of HS may waive any another provision of 212 other than 2C (drug traffickers) A espion B terrorist C acticities potentially adverse foreign policy consequences, E nazi persecution. b. Three contexts in which it is applied for i. Upon arrival at the airport, ii. After arrival, within one year, or iii. During the removal process as a defense to removal, within 1 year. c. Remember: i. A noncitizen that arrives at the border is deemed an applicant for admission. The noncitizen is inspected. If deemed inadmissible under 212, removal is ordered unless the noncitizen indicates an intention to apply for asylum. Inspector has authority to allow inadmissible noncitizen to withdraw their application for admission. d. Exceptions: i. A1- Persecuted another on account of race, religion, etc.? ii. A2 alien, having been convicted of a particularly serious crime, constitutes danger the U.S. 1. Profs interpretation - you should have two findings, 1) conviction and 2) that the alien is a danger to the community of U.S. The other interpretation requires only a conviction (by mere conviction the alien is a danger to the U.S...come on!), the language "constituting danger" is therefore redundant. 2. Agg felony is automatically a particularly serious crime. iii. A3 a serious nonpolitical crime before arrival. A serious political crime may not exclude you. Participating in overthrow would not be create an automatic exception. iv. A4 - terrorists, espionage, etc. v. A5 - more extensive into terrorist activity. vi. A6 - was he "firmly resettled in another country" if you have been granted asylum in another country, we don't need to give it to you. 2. Withholding of removal 241(b)(3) a. Mandatory: With some exceptions, a noncitizen may not be removed to a country where the noncitizens life or freedom would be threatenedbecause of the aliens race, religion, nationality, membership in a particular social group, or political opinion.

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b. It doesnt allow the opportunity for LPR status, petitioning for family members, etc. Alien granted this relief is considered removed, and only removal to a certain country is prohibited. Therefore, they may be removed to a third country if such country is willing to accept the individual. c. Mandatory if the applicant is qualified. The standard of proof is higher than for asylum. i. Therefore, a noncitizen, having established a clear probability (more likely than not) of persecution, must be granted withholding of removal, but may be denied asylum at the discretion of an immigration judge. d. Withholding of removal relief may be terminated pursuant to changed country conditions, fraud, or exception. e. Exceptions 1. Persecuted someone else on account of race, religion, etc? 2. Alien, having been convicted of particularly serious crime, constitutes a danger to the U.S. 3. Serious nonpolitical crime, a. Courts tend to look at the nature of the crime to determine whether it has met the seriousness component. There is no balancing test. Nature of offense v. persecution feared. Crime must be committed out of a political motive. There must be a link between crime and political element. Political element should outweigh the other aspect of the crime. b. Court looks at the totality of the circumstances. Fraudulent documents wont automatically deny them relief if getting fraudulent documents was the only way they could flee from persecution. 4. Danger to security of the U.S.? ii. Language in re: agg felony differs from 208. 5 year term of imprisonment imposition required to make it a particular serious crime, however it gives AG power can find that the alien has been convicted of a particularly serious crime despite the language requiring 5 year sentence imposition. ii. Controversial issues generated by asylum and withholding of removal. 1. Persecution or fear of persecution a. [Matter of Acosta] In order to qualify as a refugee, the alien must: 1) have a well founded fear of persecution; 3) show that persecution is on account of race, religion, nationality, membership in a particular social group, or political opinion, and 4) be unable or unwilling to return because of persecution or his well-founded fear of persecution. Fear is proven through affidavits; corroboration is not reqd.

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i. Well founded fear standard for asylum: the court in INS v. Cardoza-Fonseca held that the well founded fear standard is more generous than the 241(b)(3) clear probability standard (more likely than not). Thus, 208(a) only requires a showing of past persecution or good reason to fear future persecution. Subjective mental state of the alien is somewhat determinative. A less than 50% showing of fear will do. A fear is well founded if a reasonable person in the applicants circumstances would fear persecution. Remember: its still discretionary. 1. Examples of reasons why it wouldnt be well founded a. Can the alien relocate to another part of the country? b. Changed country conditions? i. Govnt must prove either by preponderance of the evidence. ii. Would be threatened standard for withholding iii. Two components: subjective and objective 1. Subjective: applicant shows that his fear is genuine 2. Objective: requires showing by credible and specific evidence in the record of facts that would support a reasonable fear of persecution. iv. If applicant has suffered past persecution, fear is presumed. However, it can be rebutted by change of circumstances. v. If applicant can establish that there is a pattern or practice of persecution in their country on account race, religion, etc. and that their fear of persecution upon return is reasonable because the persecuted group of persons is similarly situated to the applicant, the applicant need not show they will be individually singled out. vi. Persecution defined: BIA relies on congressional committed reports that define it to require either a threat to the life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive. The BIA adds that the term contemplates that harm or suffering must be inflicted to punish individual for that difference. b. Prosecution v. prosecution 1. [Matter of Izatula] Prosecution for an attempt to overthrow a lawfully constituted government does not constitute persecution unless its a country where a coup is the only means to effect regime change (totalitarian). c. Coercive population controls as persecution i. Was added to 101(a)(42) as a ground for achieve refugee status. Even if already sterilized, past

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persecution triggers a presumption of future persecution under which the government may rebut if they prove by preponderance that there are changed circumstances in the country. ii. Spouse of one who is sterilized can also qualify as a refugee. 2. Nexus requirement: on account of race, religion, nationality, membership in a particular social group, or political opinion a. Political opinion i. [INS v. Elias-Zacarias] A guerilla armys attempt to coerce military service does not necessarily constitute persecution on account of political opinion. 1. Majority: Ask what the persecutors motive or cause for persecuting the alien is. Minority: A refusal to support a cause can express a political opinion. ii. Neutrality as political opinion 1. Ninth circuit has held that political neutrality is a political opinion for purposes of determining persecution. I dont want to get involved with this cause! 2. Imputed political opinion: if persecutor imputes certain political opinion to alien even if the alien doesnt hold opinion, this would be sufficient for relief on grounds of persecution on account of political belief. a. Was the actors action in part motivated by an assumption that Aliens political views were adverse to those of the government or was it for example, to ascertain the whereabouts of someone that they believed DID hold political views that were adverse to the government. b. In mixed motive cases, an asylum applicant is not obliged to show conclusively why persecution has occurred or may occur; however, in proving past persecution, the applicant must produce evidence, either direct or circumstantial, from which it is reasonable to believe that the harm was motivated in part by an actual or imputed protected ground. b. Particular social group i. General definition of social group 1. Majority view [Matter of Acosta BIA] Persecution on account of membership in a social group means persecution that is directed toward an individual who is a member of a group, all of whom share a common, immutable characteristic. Common characteristic must be unchangeable and it should not be reqd to be changed because it is fundamental to their identity. 2. Minority view [Sanchez-Trujillo v. INS 9th cir]. The term particular social group implies people voluntarily & cohesively associated with each other who are motivated by some common desire. ii. Sexual orientation and social group 1. [Matter of Toboso-Alfonso] Homosexuals constitute a particular social group subject to persecution. iii. Gender and social group

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1. [Fatin v. INS] In order for an alien to obtain asylum using gender, the alien must show that members of that group are persecuted for their membership. Gender is a social group. a. Three part test with particular social group problems: i. identify group and whether it constitutes a particular social group, ii. establish membership, and iii. show alien will be persecuted or has a well founded fear of persecution on account of that membership. (Fatin failed this prong) b. Note 7: Practice of religion may be fundamental to ones identity and thus immutable. Therefore, it could constitute a particular social group. 2. [Matter of Kasinga] Forced female genital mutilation is a basis for asylum. a. [In re A-T] Alien came in as visitor for pleasure and applies for asylum. Alien had already undergone FGM but has no memory. Although I have had FGM, I want relief on the basis of the theory that persecution is continuing. BIA rejects FGM as continuing persecution. Reason: continuing harm applies to sterilization or forced abortion not FGM. There is no basis for recognizing FGM on the basis of past persecution alone. Plus, you have to qualify within one year. There is no explanation as to why you waited so long. You already had FGM when you arrived. There are no changed circumstances. Having a child that would have to undergo FGM is too speculative. Last argument: Alien feared she would be subjected to arranged marriage. The mere fact that its arranged does not equal persecution. Persecution would not be on account of her membership in a particular social group. Moreover, women who opposed arranged marriages did not have social visibility and were not readily identifiable. b. Male circumcision: is not obligatory, forcible nature of FGM that is so reprehensible. Circumcision does not affect eradicate sexual function like FGM. 3. Well founded fear & would be threatened: methods of proof a. Material facts i. Membership in a persecuted group 1. Does membership in the persecuted group establish that the particular applicant is sufficiently likely to incur those consequences? a. Alien must show a pattern or practice of the country persecuting a group of people and the applicants inclusion in that groupthe alien must also show

pg. 30

that fear of persecution upon return is reasonable. ii. Past persecution 1. Materiality to asylum eligibility a. Evidence of past persecution can help the applicant establish a well founded fear of future persecution. b. The refugee definition makes past persecution an independent basis for refugee status, even where there is no threat of future persecution. 2. Limitations a. Government can rebut presumption of future persecution if it shows by preponderance of evidence 1) changed circumstances or 2) the alien can relocate to another part of the country and it would be reasonable for the alien to do so. b. Although sterilization/FGM has already been suffered and future persecution because of it is unlikely, aliens have still been granted asylum because its nature constitutes a continuing harm. 3. Regulations guiding IJ discretion in Asylum a. Compelling reasons for being unable or unwilling to return b. A reasonable possibility that he or she may suffer other serious harm upon removal. c. An applicant who has suffered past persecution but who lacks compelling reasons or reasonable possibility of serious harm critical to the favorable exercise of discretion will want to assert the past persecution as a way of establishing a future threat to life or freedom in order to qualify for withholding of removal. i. Refugee status not implicated in withholding of removal; nor is past persecution as basis for withholding. b. Relevant evidence i. The applicants own testimony 1. Thus, credibility of the applicant is required. Observe demeanor and candor. 2. Denials of asylum are often because of lack of corroborating evidence. However, corroborating evidence is not reqd due to the difficulty of acquiring such info.

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3. [Damaize-Job v. INS] Newspaper accounts of persecution in the individuals country of origin, the disappearance of family members, prior arrests or imprisonment due to political beliefs or ethnicity, and explicit threats on the individuals life all provide substantial evidence of a clear probability or well founded fear of persecution. ii. State department opinions 1. Country reports: describe status of human rights in most of the worlds countries. Sometimes politics plays a part so actual human rights violations are downplayed. 2. Advisory opinions: issued for individual cases. Procedural fairness is questioned because alien cannot cross-examine the writer of the letter. iii. Advice from UNHCR (united nations) 1. U.S. doesnt really pay them any mind in adjudicating immigration cases. 4. Exceptions to eligibility a. Firm resettlement i. Before arriving to the U.S., did the alien receive an offer to resettle permanently in that country? ii. Firm resettlement: (significant ties) will be found if he received an offer of LPR status, citizenship, or some other type of permanent resettlement in another country unless his entry to that country was a necessary incident from his flight from persecution or the conditions of his residence were so substantially restricted by the authority of that country that he was in fact not resettled. Yes, we'll give you LPR but you can't leave the house. 1. Judge must consider the conditions in which other residents of that country lives in, holding property, living conditions, availability to work. Does he enjoy normal rights as other inhabitants of that country? b. Past wrongdoing i. Persecution of others - wouldnt be able to even qualify as refugee, therefore it is redundant to have it as an exception to asylum and withholding of removal. ii. Reasonable grounds to believe danger to the U.S. iii. Terrorists, language varies between asylum and withholding of removal. iv. Particularly serious crimes, one caveat for withholding of removal. Agg felony is not automatic. 5 year sentencing requirement for it to be considered a particularly serious crime and thus automatic. AG may label it particularly serious despite language. 1. Determining particularly serious; same for both a. Nature of conviction elements of crime

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b. Type of sentence imposed c. Underlying facts of conviction d. Courts have held crimes against persons are particularly serious crimes per se v. [Matter of Carballe] Final conviction of a particularly serious crime is the test. Two separate findings 1) conviction and 2) that the alien is a danger to the community is not the test. However, Prof believes that it should be two separate findings. Physical force against another is a particularly serious crime. Mitigating factors can be considered in determining whether the nature of the crime is particularly serious. Prof notes note 1 on p.1073. 1. [Sale v. Haitian Centers Council]. Neither the non-return provision of 243(h) nor Article 33 of the UN protocol applies to actions of forced repatriation by the Coast Guard on the high seas. C. Beyond Persecution: Protection against other dangers a. Convention against torture i. IF determines whether NC has established that he or she is more likely than not to be tortured in the country of removal. The NC need not show that it will be on account of race, religion, nationality, membership in a particular social group, or political opinion. Torture must be by government officials or by private actors with government acquiescence [see below]. If met, relief is mandatory subject to bars in 241(b)(3)(B) 1. persecutor of another 2. security threat a. if so, deferral of removal is granted. However, they will be detained. ii. CAT relief requires the individual face a specific risk of being tortured by the government or at the instigation of or with the consent or acquiescence of the government. Acquiescence requires willful acceptance of the torture. b. Statute i. Torture defined 1. any act by which severe pain or suffering, whether physical or

mental, 2. is intentionally inflicted on a person 3. for information or a confession, punishing foran act he or a third person has committed or is suspected of committed, or 4. intimidating or coercing him or a third person, or 5. based on discrimination of any kind a. Torture does not include pain or suffering inherent in or incidental to lawful sanctions. ii. In order to constitute torture, mental pain or suffering must be prolonged mental harm caused by or resulting from: 1. IIED or pain 2. drugs or devices 3. threat of imminent death; or

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4. threat that another person will imminently be subjected to death, pain or suffering, drugs or devices.
IX. Enforcement

A.

B.

Recruitment and Employment of Illegal Aliens (274A) a. A pre-1986 hiring would not subject to the statute. b. It is unlawful to hire or recruit an alien, or to refer an alien for a fee, knowing the alien is unauthorized to work. c. It is equally unlawful to continue to employ an alien knowing that the alien is unauthorized to work. i. Ex. ICE conducts random checks and discovers identification for one of the employers employees belongs to someone else. If employer does nothing, this would suggest a knowing ineligibility of an aliens authorization. Continuing to let the alien work would be unlawful. ii. Employers may give preference in recruitment and hiring to a U.S. citizen over an alien with work authorization only where the U.S. citizen is equally or better qualified. Compliance with employment eligibility verification a. Employers must comply with employment eligibility verification requirements before hiring. i. Perform certain paperwork for every person hired, examination of identity documents, etc. Basically, a system designed to in good faith verify that the employee may be hired lawfully. 1. 3 categories of documents a. (B) Those that simultaneously establish identity & employment authorization, b. (C) Those that establish the latter, c. (D) Those that establish the former, i. Employer must get either 1 in (B) or ii. 1 in (C) and 1 in (D) ii. Employment includes any service or labor performed for any type of remuneration within the United States. Day laborers or other casual workers engaged in any compensated activity. 1. Exception: sporadic domestic service by an individual in a private home. b. Compliance requires no knowledge of ineligibility i. Statute requires only that the employer verify that the document appears genuine on its face. ii. An employer has constructive knowledge that an employee is an illegal, unauthorized worker if a reasonable person would infer it from the facts. A deliberate failure to investigate suspicious circumstances imputes knowledge. 1. Constructive knowledge constituting a violation of federal law has been found where a. (1) the I-9 employment eligibility form has not been properly completed, including supporting documentation,

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C.

b. (2) the employer has learned from other individuals, media reports, or any source of information available to the employer, that the alien is unauthorized to work, or c. (3) the employer acts with reckless disregard for the legal consequences of permitting a third party to provide or introduce an illegal alien into the employers work force. 2. Knowledge cannot be inferred solely on the basis of an individuals accent or foreign appearance. a. Actual specific knowledge is not required. For example, a newspaper article stating that ballrooms depend on an illegal alien workforce of dance hostesses was held by the courts to be a reasonable ground for suspicion that unlawful conduct had occurred. c. It is illegal for non-profit and religious organizations to knowingly assist an employer to violate employment sanctions, regardless of claims that their convictions require them to assist aliens. Harboring or aiding illegal aliens is not protected by the First Amendment. Prohibitions on Discrimination a. General i. Section 274B of the INA prohibits employment discrimination on the basis of citizenship status or national origin. Specifically, any employer, recruiter or referrer for a fee who employs more than three persons may not discharge or refuse to hire, recruit or refer a U.S. citizen or an alien authorized to work in the United States on the basis of citizenship status. b. Protection against retaliation i. Moreover, the statute prohibits retaliation or intimidation by an employer against an employee seeking to exercise his or her rights under this section. c. Protection against document abuses i. Finally, the statute prohibits "document abuse" on the part of the employer, which occurs when the employer asks an employee for more or different documents than those required by the employment eligibility verification system in section 274A, with the intent of discriminating against the employee in violation of section 274B. d. Who is covered? i. Unauthorized aliens are excluded from coverage 1. Unauthorized is defined as: (a) not lawfully admitted for permanent residence; or (b) not admitted for employment under the INA or by the Attorney General. ii. Only applicable to protected citizens 1. Section 274Bs citizenship status discrimination provisions apply only to protected individuals which are defined as U.S. citizens, U.S. permanent residents, U.S. refugees and asylees, and temporary residents. 2. In order to continue being protected under these provisions, protected individuals must take steps to acquire U.S. citizenship.

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a.

For example, permanent residents must apply for naturalization within 6 months of becoming eligible or if he or she has applied but has not been naturalized within 2 years, he or she must show that he was actively pursuing.

e. Rationale i. Congress included section 274B in IRCA out of a concern that employers might overreact to the threat of employer sanctions penalties by refusing to hire anyone who appears "foreign" or who speaks with an accent.
X. Citizenship

1.

2.

Citizenship acquired at birth a. Jus sanguinis: Country only grants its nations citizenship on the children of its existing citizens, regardless of where the children were born. Citizenship by descent b. Jus solis: confers the nations citizenship on persons born within that nations territory. c. Our system is a mixture of both. Citizenship acquired after birth a. Applicant may elect to take final oath. b. There are other laws that award nationality after birth. Administrative naturalization is the most common. c. Substantive criteria of Administrative naturalization i. LPR only: nonimmigrants or those who have not been admitted at all are disqualified. ii. requirements: 1. Resided cont: Once an LPR, must have resided continuously in the U.S. during the 5 year period immediately preceding the filing of the application and must continue to reside continuously until grant of naturalization. [3 if married in preceding 3 yr period only a citizen] 2. Physically present: Must be physically present for at least half that period. 3. good moral character: during all periods where continuous residence and physical presence are reqd. 4. 18+ 5. English fluency a. Exceptions: age (over 50 and living in U.S. for 20 yrs or over 55 and has been living here for over 15 years) and disability. 6. Knowledge of U.S. government of history/principles. 7. No communist involvement in 10 year preceding filing. 8. OATH! iii. [In re petition for Vafaei-Makhsoos] INA 316(b) does not provide an exception for involuntary absences under its requirement for continuous residence for naturalization. d. Procedure (AG has sole power to naturalize) i. An applicant who is not subject to the judicial exclusivity rule (either because the court declines to assert exclusive jurisdiction or because the

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3.

B.

45 day period has expired) may elect to have the oath administered by an immigration judge. Note: federal courts may assert authority to administer oath of allegiance in naturalization. ii. Other methods for naturalization (generally for children) 1. automatically confers citizenship on child who: a. has a U.S. citizen parent; b. is under 18, and c. resides in the U.S. as an LPR in the legal physical custody of the citizen parent. 2. for children born overseas, citizenship by descent if: a. one citizen parent b. who was physically present c. before childs birth for 5 years exp d. 2 of which were after the parent was 14. 3. children abroad who satisfy neither of the previous methods may be naturalized as long as: a. either citizen parent or citizen parents parent b. has been physically present c. for at least 5 years, 2 of which were after parent or g-parent was 14; before birth not required, before child turns 18 is. d. child resides outside U.S. in legal/physical custody of citizen parent e. but is temporarily in U.S. after a lawful admission Dual nationality a. Only the country whose nationality the applicant purports to renounce can ultimately decide whether to give effect to that renunciation. Person applying for citizenship in another country will not lose U.S. citizenship unless it is found that he or she subjectively intended to relinquish it. b. Problems i. Divided loyalty ii. Double taxation iii. Military service eligibility iv. Double voting Losing citizenship a. Revocation of naturalization aka denaturalization i. INA 340(a) requires revocation of any naturalization order that was illegally procured or procured by concealment of a material fact or by willful misrepresentation. *Brought by U.S. attorneys ii. INA 340(h): naturalized citizen may be served with an intent to reopen naturalization proceeding within 2 years of the effective date of that naturalization. This usually happens due to fraud or misrepresentation. *Brought by USCIS iii. [Kungys v. U.S.] A misrepresentation is material if it has a natural tendency to lead to the conclusion that the applicant is qualified. b. Expatriation i. Unlike denaturalization, also applies to citizens by birth.

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ii. INA 349: Somebody says I want to give up my citizenship, and expatriates themselves as a US citizen iii. What acts result as expatriation for purposes of INA 349 1. [349(a)(1)] Obtaining naturalization in a foreign state upon his own application, or upon application filed by a duly authorized agent, after having attained the age of 18 years 2. (2) Taking an oath or making an affirmation of other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of 18 years 3. (3)entering, or serving in, the armed forces of a foreign state if (A) such armed forces are engaged in hostilities against the US, or (B) such person serve as commissioned or noncommissioned officer 4. (4)(A) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of 18 years, if he has or acquires the nationality of such foreign state; or (B) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of 18 years for which office, post, or employment an oath, affirmation, or declaration of allegiance is required iv. Has to be an ACT PLUS INTENT 1. Had to have done the act voluntarily 2. w/ the INTENTION of giving up his citizenship a. voluntariness w/out consent is NOT sufficient v. Preponderance of the evidence is the standard vi. INA 349(b) Act shall be presumed to be voluntarily, but such a not presumption of intent. Presumption of voluntariness may be rebutted upon a showing, by a preponderance of evidence, that the act or acts committed or performed were not voluntarily vii. [Vance v. Terrazas USSC 1980] Only an express, actual intent to renounce may form the basis of revocation of citizenship. Citizen must be voluntarily performing an act with the intention of relinquishing U.S. nationality. To prove act was voluntary, govnt must meet preponderance of the evidence standard. This standard also applies to citizens rebuttal. 1. Other methods of expatriation a. In armed forces of hostile foreign countries, look for intent, and voluntarily. b. Treason or subversion c. Renouncing citizenship to avoid taxes still taxed 10 years after and can never come back.

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