Acquisition of U.S. Citizenship at Birth Birthright citizenship in the U.S.

refers to a person's acquisition of citizenship by virtue of the circumstances of his or her birth. It contrasts with citizenship acquired in other ways, for example by naturalization later in life. Birthright citizenship may be conferred by jus soli or jus sanguinis. Under U.S. law, any person born within the U.S. and subject to its jurisdiction is automatically granted U.S. citizenship, as are many (though not all) children born to American citizens overseas. Since the adoption of the XIV Amendment to the constitution on July 9, 1868, the citizenship of persons born in the United States has been controlled by its Citizenship Clause, which states: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." Jus Soli from the first clause of the XIV amendment, citizens born in the territory are citizens. This is the principle of Jus Soli that grants citizenship to everyone born in the country except the children of foreign representatives during their official functions and children born to hostile armed forces during their occupation of American soil. In 1898 the SC ruled that an American-born person of Chinese ancestry constitutionally cannot be denied U.S. Citizenship and be excluded from the country on the ground that his parents, who were legally in the United States when he was born, are nonetheless subjects of the Emperor of China. (U.S. V. Wong Kim Ark ) Jus Sangini - Since 1970 Congress has made special provision for the transmission of U.S. nationality sure sanguinis. This is a form of birthright citizenship not secured by the XIV amendment. To avoid the indefinite perpetuation of U.S. citizenship jure sanguis Congress rely solely on parental residency requirements. 301 (Children born out of wedlock provision 1409) Naturalization and Expatriation Naturalization requirements (316): (a) Residence and physical presence: (1) the person must reside continuously in the U.S. for 5 years as a lawfully admitted permanent resident (LPR), (2) during the five years immediately previous to filing the petition the person was present in the U.S. for half that time and (3) the person has resided 3 months in the district in which he files his petition; (b) Age: applicants for naturalization must generally be 18 years old. Most children who are naturalized obtain citizenship, known as derivative citizenship, when one of their parents is naturalized. The child must have been admitted as a permanent resident and reside with the parent in the U.S. (no 5 year residency requirement for them)(c) English language proficiency: applicants must demonstrate an understanding of the English language, including the ability to read, write, and speak words in ordinary usage in the English language persons over 50 (residing over 20 years) over 55 (residing for 15 years)and those who have a disability are exempted. (d) Knowledge of civics and history: applicants must pass an examination. Those with a disability or unable are excepted. (e) Good moral character: naturalization applicants must establish good moral character for the five years preceding the date of the application. Applicants must also have not committed any felony. (f) Attachment to constitutional principles: the purpose of this requirement is to only admit those who are in general accord with the basic principles (g) Oath of allegiance (since 1975). Burden of proving legal entry is on the LPR. Naturalization through service in the armed benefits noncitizen veterans in the naturalization process. Usually the residence and physical residence requirements are waived. Expatriation Communist party membership does not constitute a basis for subsequent denaturalization. (modified by statute); To revoke a citizenship certificate the government must prove its case by clear and convincing evidence. (Schneiderman v. U.S) A U.S. citizen may not be stripped of his citizenship for swearing allegiance to a foreign country, without proof of intent to relinquish citizenship. Preponderance of evidence standard set forth in statute dealing with expatriation is constitutional (Vance v. Terrazas -Last in the series so it establishes the rule.) Citizenship is beyond Congresss power but the level of proof in expatriation cases does not violate the citizenship clause of the XIV Am. or the due process clause of the V Am.)

Statutory provision that, if any of the statutory expatriating acts have been proved, there is a rebuttable presumption that it was committed voluntarily does not direct a presumption that the act has been performed with the intent to relinquish United States citizenship; the latter remains the burden of the party claiming expatriation to prove by a preponderance of the evidence. Immigrant Visas Read (2), 203(a)-203(b)(5). Immigrant visa categories: (a) family-sponsored, (b) employment based, (c) diversity and (d) refugees. This framework and the quotas were established in the Immigration Act of 1990 (a) Family-sponsored Immigration includes persons in the four family-reunification preference categories and the immediate relatives of U.S. citizens. Immediate relatives: includes spouses, children (stepchildren and legitimated children if the relationship was established before being 18 and adopted children before being 16) and if the citizen is over 21 years-old the parents. 201(b)No quotas apply. Family-sponsored preference categories: 1st preference: unmarried sons of U.S. citizens (over 18). 2nd preference: spouses and unmarried sons of LPRs. 3rd preference: married sons and daughters of U.S. citizens. 4th preference: brothers and sisters of U.S. citizens. Family-sponsored categories are subject to numerical ceilings; when reached backlogs develop. (b) Employment-based immigration: 1st preference: (1) aliens with extraordinary ability sustained national or international acclaim, (2) outstanding professors and researchers and (3) certain multinational executives and managers. 2nd preference: professionals holding advanced degrees or its equivalents, or those that because of their exceptional ability in the sciences, arts, or business will substantially benefit prospectively the national economy, cultural or education interests, or welfare of the United States. Their services must be sought by an employer. 3rd preference: professionals having only baccalaureate degrees and unskilled workers that would fill positions for which there is as shortage of American workers. 4th preference: special immigrants including religious workers, former longtime employees of the U.S.S government or international organizations 5thpreference: investors who will create a minimum of 10 jobs in the U.S. (receive conditional permanent resident status for 2 years to avoid fraud) (c) Diversity immigration: 50,000 visas are extended through a lottery system every year. Applicants must have a high school degree and in the last 5 years had 2 years of experience in a position that requires at least 2 years of experience. Ceilings and floors: The family ceiling thus came to be called a pierceable cap with a floor. Back-log Charts: No immigrant subject to the quotas may receive a visa (or become an LPR by means of adjustment of status) until his priority date is current in the chart. His relevant date is the day that the first relevant document (visa petition or labor certification)was properly filed. Conversion: if an applicant becomes ineligible for the category in which it first was when she filed (a daughter married) then she changes to her new category but keeps her original relevant date. Aging out: Children (under 21) can be at risk of waiting too long and becoming ineligible during that wait period. Congress modified the rules to address this issue. (1) For immediate relative petitions, the childs age is deemed to be the age he had when the parents filed the visa petition. (2) If the petition starts in the second category but converts to the first due to the parents naturalization, the relevant age is that in the date of the parents naturalization. (3) For FS-2A preference category and for derivative beneficiaries, the age is determines as of the date when the relevant category becomes current, but he age is reduced by the time period of time consumed while the visa petition was pending (to keep the benefit the beneficiary must apply for the visa in 1 year form the time when it became current).

Formula for calculating the age of the alien child involves two dates: (1) the age of the alien child on the date on which a visa becomes available for his/her parent's immigration petitions; and (2) the number of days the immigration petition is pending. The age of the alien child = (1) - (2)

Derivative status: Beneficiaries of preference petitions can give Derivative Status to their own families. Derivative status allows the beneficiary's family to get immigrant visas without their own separate petition. As an example, if a US Citizen sponsors his married son (Family 3), not only does the married son get a green card but also the son's wife and children, all from the one petition for the son. Only preference petition beneficiaries get derivative status. Immediate Relatives are not in the preference system so they do not get derivative benefits. Because of this, the US Citizen sponsor must file a separate petition for each Immediate Relative. Employment Based Immigration and Labor Certification I 360-381. Exercise on 361-362. Labor certification: Before a noncitizen in these categories can become the beneficiary of an approved visa petition, a labor certification must be secured form the Department of Labor. In 2005, DOL revamped the process through the Program Electronic Review Management. PERM: Employers must show that they unsuccessfully sought American workers for the open position and offered the prevailing wage (determined by the SWA). After the recruitment, the employer elaborates a recruitment report withal the hires and the number of US worker rejected and an explanation of the job-related reasons for such rejection. (The report is not filed but the employer must retain it readily available for 5 years). Schedule A: this schedule list occupational categories that do not need to go through labor certification process (physicians and registered nurses). The employer need not prove that without the foreign employee the operation of the business would be undermined. To establish business entity, an employer must show that the job requirements set forth in an application for certification bear a reasonable relationship to the position in issue and are essential to the reasonable performance of the job duties as specified by the employers(In the matter of Information Industries, INC.) Prevailing wage requirement: the prevailing wage was determined by considering not only the job title, but the nature of the business or institution, were the job is located -Historically black colleges, charities, etc (In Matter of Tuskegee University overruled) In 1984 the Board of of Alien Labor Certification Appeals BALCA overruled Tuskegee. BALCA decided the skills and knowledge required to perform the duties of the job opportunity being offered are any different depending on the employers financial ability to pay de ongoing rateor between charitable non-profit institutions and businesses operated for profit. (In Matter of Hathaway Childrens Services ) Finally the DOL overruled the BALCAs decision for researchers employed by colleges; federal funded research and development centers operated by colleges and universities; and federal research agencies. National interest waivers: The Attorney General can waive the requirement that a second-preference immigrants services be sought by an employer. The Administrative Appeals Office AAO established that following three pronged standard: (1)The petitioner seeking the waiver must persuasively demonstrate that the national interest would be adversely if a labor certification is required. (2)The petitioner must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the alien by making available the position to U.S workers. (3)The Alien seeking an exemption from this process must present a national benefit so great as to outweigh the national interest inherent in the labor certification process. (In Matter of N.Y. State Dept. of Trans. ) Aliens of extraordinary ability (the EB-1A Category): Aliens of extraordinary ability in the sciences, arts, education, business or athletics are exempt from labor certifications. The INS abuses its discretion when denying a (Munis) visa by improperly concluding that the alien does not possess an extraordinary ability under 203(b)(1)(A)(I) if it failed to consider supportive evidence and fails to explain why the evidence presented was insufficient to establish Munis extraordinary abilities. (Muni v. INS)

Non-immigrants I 396-403 405-432. Nonimmigrants : noncitizens who seek entry to the United States for a specific purpose to be accomplished during a temporary stay (Business and entrepreneurial non-immigrants are admitted to supply the American employers with the required foreign talent). Immigrant intent: nonimmigrants must have a residence in a foreign country which he has no intention of abandoning. However, through the Dual intent doctrine, a desire to remain in this country permanently in accordance with the law, should the opportunity present itself, is not necessarily inconsistent with lawful nonimmigrant status . Students: F-1 visa: must be accepted by a school approved by the AG, prove sufficient funds for the first 12 months, the scholastic preparation to purpose a full course of study and sufficient knowledge of English or have arrangements to be tutored in another language. (F-1 visa holders are allowed to work on campus and in practical training that relate to their degree program). J-1 visa: is a student visa for students in exchange programs. J-1 visa holds may be subject to a 2-year rule requiring them to go back abroad before adjusting to another nonimmigrant status or to become a LPR if: (1)a US agency financed part of the program (2) the BECA designates the home country as requiring the skill or (3) are coming to the U.S. for graduate medical training. M-visa: This visa allows students pursuing a non-academic course of study (e.g. vocational) , might bring spouses and children as M-2 visa holders, have a residency abroad which they intend not to abandon and cannot work in the U.S. , including on-campus. Business nonimmigrant visas: B-1 status: foreign businessmen, initiate the process overseas, no petition on his behalf is filed with the USCIS in the U.S. and no labor certification is needed. The alien cannot engage in skilled or unskilled labor. The INS may not issue temporary business visitors visas under Operations Rule 214.2 (b)(5). (The INS had issued visas in the B-1 classification for temporary business visitors who entered to install service or repair equipment purchased from foreign companies.)(International Union of Bricklayers and Allied Craftsman v. Meese). Work visas: H-2A: visa for aliens seeking to perform agricultural labor or services of a temporary or seasonal nature in the United States on a temporary basis. A U.S. employer (or an association of U.S. agricultural producers named as a joint employer) must file a Form I-129. Labor certification is necessary when there are not sufficient U.S. workers who are able, willing, qualified, and available to do the temporary work. The employer must show that the employment of H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. H-2B: visa for temporary (year or less) non-agricultural workers. Labor certification requirement and only available if unemployed persons capable of performing such service cannot be found. The work must be a one-time occurrence, a seasonal need, a peak load need or an intermittent need. (admitted up to one-ear with 2 one-year extensions, limited to 66,000 a year). H-1B: This classification covers noncitizens coming temporarily to the U.S. to provide services in a specialty occupation. The occupation must require at least a bachelors degree. H-1B nonimmigrants can be admitted for up to three years initially, extendible to a maximum authorized stay not exceeding six years. The employer must file a Labor Certification also known as an attestation . Under the H-1B portability provision, an individual previously granted H1B status may start working for a new employer once the new employer files a non-frivolous H-1B petition. The status might be extended beyond six years in certain circumstances, primarily when the request for labor certification had been pending for more than 365 days. Spouses can be admitted as H4 nonimmigrants (no work permitted). O-visa: The O-1 nonimmigrant visa for individuals who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who have a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements. The O-1A: individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry) O-1B: individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry. O-2: individuals who will accompany an O-1, to

assist in a specific event or performance, assistance must be an integral part of the O-1As activity. And essential the O-1Bs production. O-3: individuals who are the spouse or children of O-1s & O-2s. P-visa: non-immigrant visa for athletes coming to the U.S. temporarily to perform at a specific athletic competition, individually or part of a team, at an internationally recognized level of performance. Intra-company transfers nonimmigrant L visas . The L-1A nonimmigrant classification enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States. This classification also enables a foreign company which does not yet have an affiliated U.S. office to send an executive or manager to the United States with the purpose of establishing one. (The employer must file Form I-129, Petition for a Nonimmigrant Worker, on behalf of the employee.) The L-1B nonimmigrant classification enables a U.S. employer to transfer a professional employee with specialized knowledge relating to the organizations interests from one of its affiliated foreign offices to one of its offices in the United States. Must have worked over a year This classification also enables a foreign company which does not yet have an affiliated U.S. office to send a specialized knowledge employee to the United States to help establish one. (The employer must file Form I-129, Petition for a Nonimmigrant Worker, on behalf of the employee.) E nonimmigrant visas: The E-1 nonimmigrant classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation) to be admitted to the United States solely to engage in international trade on his or her own behalf. Certain employees of such a person or of a qualifying organization may also be eligible for this classification. The E-2 nonimmigrant classification allows a national of a treaty country to be admitted to the United States when investing a substantial amount of capital in a U.S. business. Certain employees of such a person or of a qualifying organization may also be eligible for this classification. NAFTA TN status: Under NAFTA Canadian and Mexican nationals are allowed to enter as: business visitor, traders and investors, intra-company transfers and professionals. The professionals resemble the H-b1 category but is limited to a carefully negotiated list of specifically eligible occupations. Family-based Immigrant Visas I 326-341; Family-based Immigrant Visas II: 341-345. Family reunification categories: The permanent feature of current arrangements for permanent immigration to the U.S. is family reunification. (a) Immigration based on marriage: proxy-marriages where the contracting parties are not physically present and marriages that conflict with public policy are exclude. (216 (e) The plenary power over immigration held by Congress empowers it to deny same-sex marriages the same relief from immigration restrictions that is accorded to heterosexual marriages without running afoul of equal protection considerations. (Adams v. Howerton) Sham Marriages: The immigration Marriage Fraud Amendments of 1986: All persons who obtain PLR through marriages that are less than two-years old receive such status on a conditional basis. (216). The conditional period lasts two years unless the aliens temporary LPR status is terminated. The conditional period counts fully for the residency requirement. Within the last 90 days of the two-year period both spouses must petition to have the condition removed (under certain circumstances a hardship waiver of the joint filing might be granted.) If removal of the conditions is denied the alien becomes deportable but the determination is open for reconsideration by the immigration judge. Moreover, DHS bears the burden of proof , under a preponderance of the evidence standard. In eleventh-hour marriage, the alien bears the proof to prove the genuiness of the marriage by clear and convincing evidence. That a divorce is imminent when an alien achieves residency by marriage is not grounds for revoking the residency. (The marriage was not a sham-marriage nor fraudulent from its inception, so the fact that it was factually dead would not be a reason for denying residency.) (Dabaghan v. Civiletti).

Inadmissibility Grounds and Waivers I 507-520. Inadmissibility Inadmissibility waiver: (1) Does the person is eligible for the .. and (2) will the judger give him a of .discretion Deportability Felony convictions: Inadmissibility due to immigration violations- The inadmissibility (those not admitted) and deportability requirements do not match perfectly so a LPR who cannot be deported can nevertheless be denied access if he leaves the country voluntarily. Generally, the inadmissibility grounds are more demanding. INA 101(a)(13)(C) defines when a person will not be regarded as seeking admission into the U.S. The BIA has ruled that LPR are presumed not to be applicants for admission. INA 212 (d) (3) provides the DHS with discretionary power to waive nearly all the inadmissibility grounds for nonimmigrants. However, to waive a prior fraud in seeking or obtaining immigration benefits, however, or to waive inadmissibility based on earlier unlawful presence, a family relationship other than to a spouse or parent holding U.S. Citizenship will not suffice. Misrepresentation: As use in 212 a misrepresentation is an assertion or manifestation not in accordance with the facts. It requires an affirmative act taken by the alien. A misrepresentation can be made in an oral interview, written application or by submitting evidence containing false information. Difference between misrepresenting and failing to volunteer information: Silence or a failure to volunteer information does not in itself constitute a misrepresentation. To fall within the purview of 212 it must have been practiced on an U.S. official (consular officer or INS officer), the misrepresentation must have been made by the alien with respect to the aliens own visa application and done by the applicant, his Atty. or agent. (The fact that the alien pursued the visa through an attorney or agent does not insulate her from liability for misrepresentation made by such agents if she was aware of the action being taken in furtherance of the application The act of procuring a fraudulent birth certificate with the intent to defraud the U.S. by using that certificate to obtain a U.S. passport falls within the definition of fraud in INA 212(a)(6)(C) rendering an alien inadmissible and subject to deportation. (U.S. v. Cervantes Gonzalez) The fact that his wife (a U.S. citizen) married him while he was in removal proceedings, that she is of Mexican descent, speaks Spanish and had no job in the U.S. do not help him get a waiver. Bars based on removal noncompliance according to 212(a)(9)(A) there is a permanent bar on those who either stayed illegally over a year or were ordered removed and thereafter enters or attempts to enter without being admitted. (The quick expedited removal of persons caught at the border will render the alien inadmissible. However, if they were just returned without a removal procedure, this will not affect their future admissibility.) Anyone at a port of entry or airport is considered to be seeking admission to the U.S., however instead of removing the alien through expedited removal procedure, the alien is allowed under (INA 235 (a)(5)) to withdraw their application for admission and return at their own expense but without rendering them inadmissible in the future. (Those removed are inadmissible for 10 years and up to 20 if the alien had already been removed or convicted of an aggravated felony.) Unlawful presence bars According to 212(a)(9)(B)a non-citizen who has been unlawfully present for a single period of more than 180 days but less than a year and departed voluntarily is inadmissible for three years. A ten-year ban applies to any noncitizen that has been unlawfully present for a year or more and departs or is removed. There are exceptions, tolling provisions and waivers.

EWIs (entry without inspection) are unlawfully present from the first day. Visa holders (and those admitted under the visa waiver program) are unlawfully present after the date stamped in the admission documents- constructive presence. Aliens admitted for the duration of their status are consider unlawfully present only after receiving notification of their violation. (A non-immigrant-other than a stay over-starts the 180-day clock only after receiving a governmental notification that the conditions have been violated) The time in removal proceedings counts as unlawful presence. Non-citizens who have been unlawfully present for a single period of more than 180 days but less than a year and departed voluntarily is inadmissible for three years. A ten-year ban applies to any noncitizen that has been unlawfully present for a year or more and departs or is removed. There are exceptions, tolling provisions and waivers. 212(a)(9)(B) Non-immigrant-other than a stay over-starts the 180-day clock only after receiving a governmental notification that the conditions have been violated. The time where the noncitizen is in removal proceedings counts as unlawful presence. Overstaying a nonimmigrant visas will result in the visa being void at the conclusion of the authorized period of stay and although there is no bar for a nonimmigrant admission, such admission must be on the basis of a new visa issued in his home country. The permanent bar: According to 212(a)(9)(C) an alien who has been unlawfully present for an aggregate period of more than 1year or has been ordered removed and has entered or attempts to renter without inspection (EWI) is bared for life (and eligible for waiver in 10 years). Public charge provision any alien who, within five years from the date of entry, has become a public charge for causes not affirmatively shown to have arisen since entry will be deported. INA 237(a)(5) As an inadmissibility ground, public charge continues to play a highly significant role in disqualifying applicants for visas as it offers bread discretion to make inadmissible any alien who in the opinion of the consular officer or in the opinion of the A.G. is likely at any time to become a public charge. Affidavits of support (used to be nonbinding) from a residency applicants relative may be sufficient evidence that the applicant will not become a public charge.(Matter of Kohama) modified by statute. Congressional modification to affidavits of support In 1996 Congress made the affidavits of support enforceable, and mandates that every petitioner executes one even when the immigrants own resources would satisfy a consular office under the broad discretion rule. The sponsor must be able to prove his or her ability to support his or her own household plus all sponsored immigrants at a minimum of 125% the poverty line. ($25,812 in 2007). Assets that can easily be converted into cash can be accepted. Finally, someone other than the petitioner may join as a co-sponsor accepting joint and several liability with the petitioner. The affidavit is enforceable until the sponsored immigrant is credited with work for 40 Social Security Quarters (10 years), naturalizes, departs and relinquishes LPR status or dies. Form I-8649 (poverty guidelines) (pp.1197 of the supplement) can be used to calculate the amount of resources needed for an effective affidavit of support. Assets can be added (Cash, stock and equity on a house) with income but can only be counted as 1/5 of their worth. The aliens own prospective income, or the previous wage cannot be added unless the money will certainly continue to be delivered (pension, etc) Admissions Procedures and Adjustment of Status Non-immigrant visas: Most foreign nationals must first secure a nonimmigrant visa from a U.S. consular officer in a foreign country. The non-citizen bears the burden to prove that he qualifies for a visa. There is a fee and the consular agent may request any supporting documentation. (There is an expedited visa for $1000) If the visa application is approves, the consular officer affixes a nonimmigrant visa to the applicants passport. Carriers request a visa for foreign travelers coming to the U.S. to avoid being fined.

Visa-waiver program: Those who enter through this program (B1 and B2 from 27 nations) waive all their rights to extend their stay, to change to nonimmigrant status to adjust to LPR status. (Citizens from the visa-waiver nations they might still get a visa in their home country) Decision at the port of entry: The consuls decision on admissibility does not bind immigration officers at the point of entry. After being admitted, the aliens receive a I-94 form which determines the length and type of the admission. (It is the I-94 and not the visa that determines the status of the alienoverstaying that date will void the visa) Immigrant admissions: the process of securing status as a LPR usually start with a visa petition. After that the resident either goes to the U.S. consulate for an immigrant visa (abroad) or seeks a change of status (in the U.S.) The family member of employer who starts the process by filing the visa is called the petitioner.(exceptionally, some immigrant can self-petition e.g. investors, aliens of extraordinary ability or spouses of deceased American citizens that were married over 2 years) and the alien is called the beneficiary. Denial of the visa is subject to administrative review upon the petitioners appeal-by the Board of Immigration Appeals in family cases and by the Department of Homeland Securitys Administrative appeals Office in the employment-based categories. After a visa petition is approved it is forwarded to NVC (National Visa Center) which forms the file and sends it to the consulate or the USCIS office in the U.S. The immigrant must then wait for a visa to be available due to the quotas. The approval by the USCIS is not enough, the immigrants admissibility will be decided by the consul, or examiner who will then send a series of documents to be presented at the port of access. If admitted, the officer will keep the documents and forward them or the issuance of a permanent resident card. This document will be enough to seek re-entry later on but not sufficient to guarantee it as the inadmissibility grounds must be met every time. Internal defacto review mechanism for denials through which a new officer looks at the application and may issue it under his own name. Claims (even for decisions of foreign consuls) are reviewable when the claim is brought by U.S. citizens instead of the aliens. (Until 2004 the revocation of a visa was not a ground for deportability, it only precluded him form coming back if he left. This has changed and so has the non-reviewability of visas revocations. ) Adjustment of status: In 1952 Congress adopted INA 245 which authorized adjustment of status from nonimmigrant to immigrant for noncitizens without requiring the alien to leave. This process is only available when a visa is immediately available to the applicant. The visa requirement is still present and the applicants may be scheduled for an interview with the USCIS examiner. EWIs cannot adjust, only those inspected and admitted or paroled into the U.S. Alien crewman , those who accept a job before filing for adjustment of status, those in unlawful status and those who seeks status under 203(b) are not afforded adjustment of status. 245(c) INA245(i) Outlines the exceptions to the requirements to 245(a)&(c) (those present-illegally- in 1988 and who filed before April 30, 2001) and allowing some EWIs to change status. Simply departing the U.S. is treated as abandonment of the adjustment application and even coming back will be harder due to the non-immigrant intent doctrine. EWIs can adjust under 245(i) and it has been hold to waive immigration-related grounds on inadmissibility (not the criminal ones). (245(i) applicants benefit from amnesty) Those who overstay visas (because they were inspected and admitted) do not have to leave the country and become subject to the 10-year bar. Thus they can adjust status. An applicant who is denied adjustment status has no administrative appeal. Instead, in most cases she may renew her adjustment application before the immigration judge conducting her removal proceedings. Whatever the decision there is little chance of appealing it to the courts unless it is a constitutional claim or a question of law. 242(a)(2)(B)

Those who adjust their status can have their new status rescinded at any time within five years after adjustment and even after gaining LPR status. Those who need immediate access but are denied entry might be paroled into the country which does not constitute an entry and still subjects them to the grounds of inadmissibility and not of removal. LOOK AT THE DIFFERENT LEVELS OF REVIEW FOR ADJUSTMENT OF STATUS AS OPOSED TO VISA PETITION Eligibility for adjustment of status is a defense in removal proceedings

Removal Statutory grounds of Deportability Non-citizens are deportable if (1)inadmissible at time of entry or guilty of subsequent violations of status; (2) convicted of criminal offenses; (3) failed to register or falsified documents; (4) engaged in activity that endangered national security or posed adverse foreign policy consequences; (5) became a public charge; (6) voted unlawfully. 237 Crime-related grounds Criminal convictions101(a)(48)(A): many of th237(a)(2) require that the non-citizen was convicted of a crime. defines conviction. For the purposes of the INA adjudication of guilt is not necessary and a nolo contendere plea or admission of the facts can suffice. Suspended sentences and probation terms count as terms of imprisonment. If the conviction is reversed on appeal the crime cannot be the basis for removal. The non-citizen bears the burden of proving the conviction was vacated for substantive or procedural error. Expunctions: The BIA concluded that expunction under the state statutes has no impact on the immigration consequences of the conviction and the noncitizen can still be removed. Federal laws allow for expunction of conviction of simple possession of narcotics by first-time offenders, which removes immigration consequences. The ninth circuit has ruled that analogous drug offenses under state law if expunged also remove the conviction for deportability purposes. This was overruled which means Expungment has NO relevance for immigration purposes. A full and unconditional pardon will eliminate the immigration consequences of convictions for crimes involving moral turpitude, aggravated felonies and other violations (high speed flight from an immigration checkpoint. However the 11th Circuit has ruled that the pardon applies only to deportability grounds and not to inadmissibility grounds. Moral turpitude: An act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and costmary rule of right and duty between man and man. Conviction of 2 or more crimes involving moral turpitude constitute a ground of deportability no matter when they were committed nor what the sentence might be. One conviction of a crime involving moral turpitude renders a noncitizen deportable if (1) the conviction occurred within five years after the date of admission and (2) the crime is one for which a sentence longer than a year may be imposed. Crimes with an element of fraud are crimes involving moral turpitude. (Fraud must be an element that must be proven as an essential element of the crime.) (Goldeshtein v. INS) Aggravated felonies: The consequences of an aggravated felony conviction are severe for noncitizens. Aggravated felons are not eligible for most forms of relief from removal; they may not obtain asylum; cancelation of removal, voluntary departure. They are not entitled to ordinary form of judicial review or removal orders based on their convictions. They are barred for life from ever re-entering the U.S. unless they obtain the A.G.s consent to apply for readmission. Aggravated felons who are not LPR are subject to administrative removal procedures. The question whether a crime is one of moral turpitude must be answered categorically. For a crime to involve Moral turpitude within the meaning of the INA , the crime must necessarily involve moral turpitude in the elements-.

Moral turpitude test: can anyone commit this crime without acting immorally? State DUI offenses that require no showing of mens rea or only have a showing of negligence are not crimes of violence justifying deportation under INA 237(a).(Leocal v. Aschroft -U.S. 2004) Now courts will first look at the crime charged and if the statute criminalizes activities that are not aggravated felonies (categorical mismatch) some courts will then proceed to make a limited inquiry into the record to determine whether the crime committed satisfies the generic aggravated felony definition. Crimes that might not seem that bad might still be a crime of violence under INA101(a)(43)(F). (must look at the immigration category and the elements of crime.) Federal misdemeanors but state felonies congressional intent regarding conduct that constitutes a misdemeanor under federal law and a felony under state law under INA101(a)(43). A drug crime does not constitute an aggravated felony under INA if the crime is a felony under state law but only a misdemeanor under federal law. (Lopez will face removal proceedings and be subject to the grounds of inadmissibility 237(B)(i), however, if he is not an aggravated-felon he might be eligible for cancelation of removal proceedings asylum or exile (Lopez v. Gonzalez -U.S. 2006) A misdemeanor conviction under local law can constitute an aggravated felony by definition under the INA, providing grounds for removability. Although he was convicted of a misdemeanor (having sex with a minor under 17 when the accused is less than 5 years older than the victim) the Court favors looking at the federal statute (which states what an aggravated felony is) and not trying to equate state crimes. (Guerrero-Perez v. INS -7th Circ. 2001) Drug offenses: Under INA237 (a)(2)(B)(i) any drug related charge that is not a single offense of possession of 30 grams or less of marijuana for ones use is a ground of deportation. An aliens state conviction for conspiracy to commit money laundering does not constitute an aggravated felony of trafficking in a controlled substance if the connection between the money laundering and drugs exists solely in a pre-sentence report. (Lara-Chacon v. Ashcroft-9th Circ. 2003) Any alien convicted for any crime related to a controlled substance other that a single possession for ones own use of 30 gr. or less of marihuana is deportable. 237(B)(i) Divided categorical approach (second step of categorical approach)the immigration court can look at the part of the statute that does constitute a drug-related crime and then at the factual statement of the plea colloquy and other reliable court documents but not a simple pre-sentencing report. If the categorical or the divided categorical approach is not enough the court can look at any reliable part of the record to establish moral turpitude. (Silvia-Trevino) Categorical approach: Is it possible to commit this crime the crime must include the type of activity listed in the immigration statute (drug related) as a necessary part of the crime. Modified categorical approach: immigration court can look at the part of the statute that does constitute a drug-related. Should not apply the categorical approach to determine if the crime reaches the amount of loss ($10,000.00) required in the statute (Babaisako). The US SC ratified this in Nishawan and indicated that all the record is valid to establish the monetary loss and not the categorical approach. Crimes of Domestic Violence: Congress added crimes involving domestic violence as a deportability ground in INA237(a)(2)(E). The statute lists specific crimes (domestic violence, stalking, child abuse, child neglect, or child abandonment) that must be committed after admission. It also includes those who violate protection orders by making threats of violence, causing bodily injury or engaging in repeated harassment. The statutory definition of domestic violence includes two aspects: (1) the crime must constitute a crime of violence within the meaning of 18 U.S.C.16 (according to the terms in Leocal ) and (2) the crime must be committed against a person who is a spouse, former spouse or in a similar relationship. It also covers other persons protected under federal or local domestic violence laws.

(Anyhow, noncitizens under this scenario could be removed under a crime including moral turpitude, a domestic violence crime and if the prison term is more than one year, aggravated felony. However it does add violations of protection orders and child abuse) Plea bargaining and immigration consequences: Close to half the states (including CA, TX, FL & NY) have statutes requiring that noncitizens be informed that their plea or no lo contendere must be informed that it will subject them to removal proceedings. Some circuit courts also allow to withdraw a guilty plea, arguing it was involuntary, after learning about the immigration consequences. District courts tend not to be receptive of such argument. Under the 6th amendment defense attorneys have an obligation of informing his client Padilla. Whether a client has recourse against their attorney. Crimes involving moral turpitude apply the categorical method (2 step analysis to determine if it is possible to commit this crime without involving fraud or moral turpitude). Relief from Removal In most removal cases the major issue is the non-citizens application for relief from the removal proceedings and not a challenge to the basis for removal. Therefore, generally a noncitizen will concede deportability at the outset of the hearing and then request one or more forms of relief. Due to the harms that removal can inflict, the immigration law provides avenues for persons found to fit a ground of removal to obtain a ruling overriding that removability, thus permitting them to remain in U.S. (relief can restore LPR status or just not place him in removal proceedings) The provisions allowing relief from removals 2 general features: (1) statutory eligibility and (2) an exercise of governmental discretion. The Supreme Court emphasized the need of both elements by determining that suspension of deportation is a matter of discretion and of administrative grace, not mere eligibility; discretion must be exercised even if all statutory prerequisites have been met. (U.S. ex rel Hitopoulos v. Shaughnessy) Prosecutorial discretion: just like in criminal prosecution, DHS officials may decide (not only authorized but expected) to forgo removal proceedings against a noncitizen that is fit for relief. Deferred action: allows noncitizens to remain in the U.S. because of humanitarian considerations. (It grants no immigration status and little other benefits other than work authorization upon a showing of need and the status may be withdrawn at any time). Denials are not subject to judicial review. Deferred Action Factors to be considered: likelihood the alien will depart without formal proceedings; age or physical condition affecting ability to travel; likelihood that another country will accept the alien; likelihood that the alien will qualify for some form of relief which would prevent or indefinitely delay removal. Whether the individual is part of a group considered to be high enforcement priority and whether or not the individuals presence is required by law enforcement authorities. Stay of Removal: occurs after a removal order has been entered. (Generally used to give the noncitizen a reasonable amount of time to make arrangements prior to removal. Or to forestall removal pending the outcome of a motion to reopen removal proceedings, but now it can be used to afford the same relief as deferred action.) Formula to review discretionary decisions: The denial of suspension to an eligible alien would be an abuse of discretion if it were made without a rational explanation, inexplicably departed from established policies or rested on an inadmissible basis such as an invidious discrimination against a particular race. Judge Friendlys opinion (Wong Wing Hang v. INS) Cancellation of removal Adjudicatory discretion: The AG has typically delegated the exercise of discretion in individual cases to immigration judges who preside over removal proceedings. Judge must balance the adverse factors evidencing the aliens undesirability as a LPR with the social and humane considerations. Favorable factors: family ties within the U.S.; residence of long duration in the country, evidence of hardship to respondent and family, service in the armed forces, a history of employment, property or

business ties, value and service to the community, proof of genuine rehabilitation if a criminal record exists. Negative factors: significant violations of immigration law, existence of a criminal record (nature, seriousness and recency) and other evidence of bad character or undesirability as a LPR. (In some cases, the minimum equities required to establish eligibility for relies under 240A(a) residency for 7 years and LPR for 5 years- may be sufficient in and of themselves to warrant favorable discretionary action. )

Relief resulting in permanent resident status Cancellation of removal(formerly known as suspension of deportation): Under the INA240A the AG may cancel the removal of a noncitizen and allow the noncitizen to remain as a LPR. Cancellation of removal for permanent residents: Eligibility for 240A(a) has two time-based requirements for LPRs: (1) LPRs must have lived lawfully 7 years in the U.S. and (2) been LPR for 5 of those years. The stop-time provision on 240A(d)(1)(A) stops the counting with the notice to appear to a removal proceedings. The commission of an offense that renders an alien inadmissible or removable also stops the time. (Matter of Perez = its the date when crime was committed and not of the conviction). Cancellation of removal for non-permanent residents: A 10 year presence requirement is required for non-LPRs. The policy of ICE (in IL) does not allow people to turn themselves to ICE to seek non-LPR cancellation of removal. Good Moral Character: INA240A(b)(1)(B) restricts cancellation to those who have been of good moral character for ten years immediately preceding the date of application. INA101(f) list some persons who are not of good moral character (aggravated felons) but does not define good moral character. Extreme hardship: higher hardship than it is expected to normally suffer from deportation or nonadmission. (Standard for battered spouses or children seeking cancellation of removal) Exceptional and Extremely Unusual Hardship: Long-term LPRs do not need to establish a particular degree of hardship to be eligible for relief, however, it is likely to figure on the discretionary element of a cancellation. However, a noncitizen must establish the removal would result in exceptional and extremely unusual hardship to the aliens spouse, parent, or child who is a U.S. citizen or a LPR. (beyond result from ordinary deportation) (children are qualifying relative for this type of waiver) Continuous physical presence: according to INA240A(d) a departure for more than 90 days or an aggregate of 180 days breaks the continuity of the physical presence. Nothing prohibits an LPR form applying for non-LPR cancelation. Cancellation of removal problem in PAGE 790-791 Mr. Hernandez is eligible for non-;PR cancelation since he has been present (continuously) over 10 years and has proved good moral character. (Economic hardship is generally not enough even for the exceptional standard and even less for the exceptional and extremely unusual hardship.) Since the economic matters will be insufficient it is relevant that the daughters medical condition might not be treated in Mexico. Mrs. Hernandez is eligible for LPR cancelation (she is not an aggravated felon) which does not subject her to prove the exceptional and extremely unusual hardship although the same factors will be helpful to establish that the positive equities outweigh the negative equities. Since she is eligible for LPR cancelation the fact that she went to Mexico for over 5 months does not matter (unlike the non-LPRS, there is no limit of days abroad if the LPR does not abandon her residency in the U.S.) The hardship standards is not so restrictive that it would not recognize that any exceptional and extremely unusual hardship suffered by a single mother as a result of her removal from this country will

necessarily be transferred to her children, the qualifying relatives under the circumstances. (Matter of Gonzalez v. Recinas) Cancellation of Removal of Battered Spouses or Children: for this group the standard is extreme as opposed to exceptional and extremely unusual. The continued physical presence requirement is reduced to 3 years and the stop-time rule does not apply and periods outside the U.S. related to the battering do not count (This VAWA cancellation applies only if the batterer is a U.S. citizen or LPR) Numerical limits on cancellation: the 1996 Act imposed a 4000 cap on the waivers that can be issued every fiscal year. Waivers(for those seeking to adjust status as a form of relief in removal proceedings 212(h) provides a discretionary waiver for noncitizens who satisfy certain prerequisites (crimes involving moral turpitude, possession of 30 grams or less of marijuana, conduct related to prostitution or unlawful commercialized vice, and certain acts that receive immunity). 212(h) is unavailable to lawful permanent resident who had departed and been readmitted to the U.S. (Matter of Sanchez). It is available for LPR who sought adjustment of status though had not been deported and been readmitted to the U.S. (Matter of Parodi). Whether this is applicable only to to those considered inadmissible or also to those subject to deportation has raised an EPC issue but has not been definitively decided.) The waiver is available for aggravated felons (inadmissible) seeking to adjust status to LPR only if they had not been a LPR before. However, LPRs who commit an aggravated felony are not eligible. (This EPC question was definitely resolved claiming LPRs can be hold to a higher standard for having been granted the privilege to reside in the U.S. ) Notwithstanding that 212H is only applicable to the inadmissible, the waiver can also be granted to some facing deportation proceedings. Removal Proceedings Removal proceeding: There is only one basic type, this process starts when the government files a Notice to Appear NTA which can be served in person or by mail. A hearing may not be scheduled until 10 days after being served with a NTA. Although many NTAs are served without the arrest of the respondent, the power of arrest remains. INA 236(a) governs arrest with a warrant. Under INS287(a), immigration officers may arrest without a warrant an alien who they believe (1) is entering or attempting to enter the U.S. in violation of the immigration laws, or (2) is present in the U.S. in violation of such laws and is likely to escape before a warrant can be obtained. There is a master-calendar hearing in which the judge inquires about the facts of each case. This hearing is usually prolonged to allow the respondent to secure counsel or apply for a different status. Right to counsel: Aliens in removal proceedings have the privilege of being represented, at no expense to the Government, by counsel of the his choosing who is authorized to practice in such proceedings. An alien in a deportation proceeding is not necessarily entitled to appointed counsel. -Deportations are considered civil and not criminal proceedings and thus the 6th amendment does not apply. (AguileraEnriquez v. INS) Under the EAJA a prevailing party in a government adjudication can recover attorney fee, but deportation hearings are not considered adverse adjudications for EAJA purposes. Due process: If an individual is denied due process when in immigration proceedings she does not receive a full and fair hearing as a result of prejudice. (Jacinto v. INS_ Due process requires IJs to fully develop the record in those circumstances where applicants appear without counsel. As with most administrative proceedings, the formal rules of evidence do not apply in removal hearings. The government must show the deportability by clear, unequivocal, and convincing evidence. Where the government introduces no evidence at all, the noncitizens silence is insufficient by itself to meet the governments burden to show deportability by clear and unequivocal evidence. ASK THE PROFESSOR IF THIS IS FROM INA or CASE Asylum

INA208 provides that the A.G. may grant asylum in the U.S. to: an individual who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion. INA101(a)(42). INAs definition of asylum: (a well-founded fear the person would be persecuted for one of the protected grounds) A different showing is needed for asylum (lower, more subjective standard of fear of persecution will happen (Fonseca) Withholding of removal: Statutory 241 b 3 a (no well-founded fear the person would be harmed for one of the protected grounds) (must show that it is more likely than not that the persecution will happen) Persecution: in immigration law, punishment for political, religious, or other reasons that our country does not recognize as legitimate. -J. Posner, 7th Circ. (1) Degree of harm and (2) legitimacy of the harm. Uniform national policy: when a nation uniformly applies an oppressive policy to all its citizens. Asylum analysis: (1) Is there persecution? (a) is the degree of harm high enough? and (b) is the harm legitimate? (2) is the harm inflicted on account of one of the protected grounds. Chinas population control measures do not constitute persecution to warrant refugee status. (The possibility of forced sterilization was unclear. The BIA wasnt convinced this fate awaited Mr. Chang. It also decided that the general application of the program militated against being considered persecution. (Matter of Chang was overruled by Congress) Salvadorian citizen who sought asylum to avoid mandatory conscription in order not to be forced to commit war crimes or human rights violations was not eligible for asylum because the U.S. had never condemned the Salvadorian governments policies and it is not for the BIA to approve or disapprove of government (Matter of MA) A fear that a military regime will prosecute for treason based on refusal to follow an inhumane order constitutes statutorily protected grounds warranting asylum. (Because Mr. Tagagas orders constituted a war crime, the court put aside the fact that sovereign nations enjoy the right to enforce laws related to military service, and penalties for evasion of such laws. (Tagaga v. INS (9th Circ. 2000) Persecution by Nongovernmental Actors: For purpose of Immigration law, the persecution by nongovernmental actors where it is shown that the government of the proposed country of deportation is unwilling or unable to control that group is considered persecution. (9th Circ. 1981) Level of Risk: To be eligible for asylum, an applicant need only demonstrate a well-founded fear of persecution, which can be met even if the applicant does not show that it is more likely than not he will be persecuted if returned to his home country. An alien would be entitled to mandatory relief if he demonstrates a clear probability of persecution . (The heart of the BIAs standard is to show basis for the aliens fear) Ins v. Cardoza-Fonseca (US 1987) Discretion to grant protection: whether the alien arrived from his own country or had passed through other countries and attempted to seek asylum there; the length of time in a 3rd country; his living conditions, safety and potential for long-term residency are relevant to the analysis. Past persecution: Although it is not a requirement, those aliens who suffered past persecution have a rebuttable presumption that their current fear of persecution is well founded. (unless conditions have change or it would be effective and reasonable to have the alien move to another part of their own home country). In addition to the presumption, there is a discretionary asylum (but not withholding) possibility for those suffering only of past persecution. Protected grounds: the persecution must be linked to race, religion, nationality, membership in a particular social group or political opinion.

Political opinion: To obtain asylum, a petitioner must present evidence that compels the conclusion that his expressive conduct constituted the statement of a political opinion and that he had wellfounded fear of persecution because of that political opinion. Remaining neutral in a conflict where the persecutors are motivated by political motives is not enough as standing alone is not a political position (although pacifism can be a political or religious view). (INS v. Elias-Zacarias) Imputed political opinion: when one party believes the alien to have a political opinion and is likely to persecute him for that reason. Mixed motives: Xiadong Li v. Gonzalez (RELIGIOUS MEETIGNS ?????) Membership in a particular social group: the most elusive factor on the Refugee Convention and in the U.S. statute. Asylum may be granted to refugees based on persecution for membership in a particular social group if the individual is a member of a group of persons who share a common characteristic that either cannot be changed, or that they should not be required to change, in order to escape such persecution. (Matter of H) Female Genital Mutilation: The prospect of forced female genital mutilation may be a basis for asylum. (This despite being widespread and widely accepted practice. (Matter of Kasinga) Limitations on Asylum Filing Deadline: asylum applicants must file their claims within one year of their arrival in the U.S. (unless conditions change substantially or there are extraordinary circumstances related to the delay) INA 208(a)(2)(b) - ineffective assistance of counsel or possession of another legal status. There is no review of an administrative decision of an untimely claim. However, someone denied asylu because of the deadline can have the issue reviewed de novo before an immigration judge and then appeal the ruling to the BIA. Withholding of removal is not subject to any deadline requirement. Firm Resettlement: Those who are firmly resettled in a 3rd country cant seek asylum in the U.S. (when offered LPR status or citizenship) entrance to a 3rd country will not bar the claim if it is proven that it was done only to escape prosecution to arrange onward travel and without creating ties to that country. Serious crimes: those who have committed serious nonpolitical crimes abroad or in the U.S. are barred from seeking asylum. Serious crimes committed prior to arrival: the INA does not require deportation boards that face aliens who committed nonpolitical crimes prior to seeking asylum to balance the severity persecution or compare the atrocities of the crimes with others it faced in the past. (INS v. Aguirre- Aguirre) Serious crimes committed within the U.S. will disqualify the petitioner. Persecutors: Those who assisted in the persecutions of others are excluded from seeking asylum. This included those who assisted involuntary and under duress. Acts of warfare taken in furtherance of political goals are not persecutory acts. (Membership in an organization, even one that engages in persecution, will not bar ones relief unless ones actions in inaction has the objective effect of furthering that persecution. Practices such as attacking military bases, destroying property, or forcibly recruiting do not constitute persecution where the goal is political in nature. (Matter of Rodriguez-Majano) Terrorism: There is a broad and strict prohibition against anyone who has provided material support to terrorist activity, which is very broadly defined. Review of Agency Decisions in Federal Court

242 of the INA now significantly curtails judicial review in a variety of ways, of which the most important include the following: Discretionary Relief: judicial review of any judgment regarding the granting of relief under the waiver provision in 212(h) and 212(i) cancellation of removal, voluntary departure, and adjustment of status. (The only exception are asylum decitions but with a highly deferenail standard of review. Review standards: 242 (b)(4) sets deferential standards. Administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude the contrary. A decision to not admit an alien is conclusive unless manifestly contrary to law. The AGs discretionary judgment whether to grant asylum: shall be conclusive unless contrary to the law and an abuse of discretion. Injunction Against Removal 242 limits a courts power to issue a permanent injunction against a removal. INA 242(g) this provision(which..) applies only to three discrete actions by the AG: decision or action to commence proceedings, adjudicate cases, or excuse removal orders. Exhaustion of Administrative Remedies A court may review a final order of removal only if the alien has exhausted all administrative remedies available to the alien. Removal based on Criminal Convictions Kolster v. INS Boston-Bollers v. INS Dulduvaldo v. INS Habeas Corpus is this the only judicial remedy available for. The district court had jurisdiction to entertain an aliens challenge in a habeas corpus proceeding alleging that the AG has made an error of law in his deportation proceeding. The restorations on discretionary relief from deportation contained in the 1996 statutes at issue do not apply to removal proceedings brought against an alien who pled guilty to a deportable crime before enactment. (INS v. St. CYR ) The Real ID ACT The courts jurisdiction to review questions of law associated with discretionary decisions of the U.S. AG and his representatives does not allow the court to review a petition that includes words indicating a question of law, but which contains no real question of law. (Chen v. Gonzalez)

Constitutional Limits of Federal Immigration Power Congress may enact legislation excluding Chinese laborers from entering the U.S. Despite being authorized entry by a treaty, congress can block any aliens from entering the U.S.(Chae Chan Ping v. U.S. The Chinese Exclusion Laws and Equal Protection The Court made clear that aliens are entitled to the equal protection of the laws. (Yick Wo v. Hopkins U.S. 1886) However this applies only to state laws and not to the federal governments immigration laws. Would the 5th amendment protect aliens today? It will protect immigrants in the U.S. but not necessarily to those facing deportation or not admitted. The Act of May 5, 1892, entitled An act to prohibit the coming of Chinese persons into the U.S. (Act). Does not offend the Due Process Clause of the 5th amendment and the rights guaranteed under the Fourth, Sixth and Eighth Amendments are not implicated. (Fong Yue Ting v. U.S. - U.S. 1893) The majority sidesteps the constitutional implications of the Act by declaring that Chinese laborers are

presumed not to be residents without credible proof as dictated by Congress, and that deportation, not being a punishment for a crime, cannot trigger the constitutional safeguards associated with receiving due process and a fair trial. Congresss power on immigration plenary- is not subject to constitutional restraints.

The Constitutional Requirement of Due Process Admission of aliens to the U.S. is a privilege granted by the sovereign U.S. Government. Such privilege is granted to an alien only upon such terms as the United States shall prescribe - It must be exercised in accordance with the procedure which the United States provides and whatever it is, it will be considered due process. The exclusion of aliens is a fundamental act of sovereignty- is inherent in the executive power to control the foreign affairs of the nation. (Knauff v. Shaughnessy) (This case is still valid for aliens but not for LPRs.) Ms. Kanuff cannot come in despite being the wife of a soldier and having an exemplary record working for the U.S. abroad. Despite that she was excluded on a regulation made by the AG and was not told why; the executive can do just that through its wars powers. Expulsion after a summary investigation does not violate due process. (2) Due process applies to deportation procedures (but not to exclusion procedures) (3) Due process does not necessarily imply a judicial procedure. (Yamata v. Fisher The Japanese Immigrant Case -U.S. 1903) There are fairly robust procedures to enact the immigration laws that do not violate constitutional protections :s The administrative investigation was enough as long as it was not entirely arbitrary- any recourse is with the agency.) A resident alien who briefly leaves the U.S. is entitled to due process upon return. (LPRs begin creating the ties to society that create constitutional guarantees and these guarantees are not lost by a brief absence). (Ms. Placencia should not be excluded but deported -gives her due process rights.) (Landon v. Plasencia) (This case reliefs LPRs from the Knauff ruling) Constitutional Limits Provisions of the INA giving immigration preferences to mothers of citizens but not to unwed fathers are constitutional. (legislative authority of Congress in the area of immigration is as complete as any area in which Congress may legislate) (Fiallo v. Bell) The government may constitutionally deport an alien because of membership in the Communist Party which ended prior to the 1940 Alien Registration Act. (The ex post facto rule of Article 1 only applies to criminal statutes, not civil matters such as deportations) (Hairisiades v. Shaughnessy) That aliens remain vulnerable to expulsion after long residence is a practice that bristles with severities. But it is a weapon of defense and reprisal confirmed by international law as a power inherent in every sovereign state. Any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference. Brandenbourg expansion of the first amendment to noncitizens??????????????? 3ways of thinking of immigration: Immigration as a transition: Americans in waiting approach (two tracks?) Immigration as a contract: Aliens here as long as they abide and should have their expectations met Immigration as affiliation: Treatment of lawful immigrants and other noncitizens should depend on the ties they have formed in this country.

Public Benefits State laws/Constitutional Protection in Alienage Law Employment law geared to limit the employment opportunities of aliens (must hire 85% citizens) was unconstitutional as this rule conflicted with Congress policy which had determined aliens were admissible and able to work in the U.S. Congress plenary power on immigration cannot be limited by conflicting state laws(Truax U.S.) However the Trax court carved an exception for state laws that regulated immigration for a special public benefit . This doctrine was later used to upheld a NY law Crane that restricted public work projects funded with state funds to citizens only because it was for a special public benefit. In order to protect a special public interest a state can treat citizens and noncitizens differently. Yick Wo Both Citizens and lawfully admitted resident aliens are entitled to the equal protections under state law. Classifications need a reasonable basis and those based on alienage are suspect, thus, requiring strict scrutiny. (Graham v. Richardson-U.S. 1971)A state may not condition its grant of welfare benefits upon either the beneficiarys citizenship or, if the beneficiary is an alien, upon a requirement that the alien must reside in the U.S. for a special period of time. Court does not follow the special interest doctrine but favors uniform federal rules on immigration. Special interest doctrine = discretion of states to distinguish between aliens and citizens when disseminating state benefits. Are immigrants a discrete and insular minority? What about a sub set of immigrants? Congress may condition an aliens participation in a federal medical insurance program on a five-year residence requirements and on admission for permanent residence. Both aliens and citizens are afforded constitutional protection but this does not afford aliens all the protections of citizenship. (Mathew v. Diaz -U.S. 1976) Only congress can discriminate amongst aliens on basis of the length of their residency because it has plenary powers over immigration and it is uniform across the nation. Diaz =The are two arguments in Graham a EP argument and a Plenary argument. None applies here. The Plenary does not apply to Congress regulation as it is federal and apparently the power is so broad that it does not fail an equal protection challange. :( Congress has decided that there is a difference between immigrants and non-immigrant resident aliens.

A universitys policy of categorically denying domiciled non-immigrant aliens who hold G-4 visas in-state status under which preferential treatment is given to domiciled citizen and immigrant alien students for purposes of tuition and fees is invalid under the Supremacy Clause. (Toll v. Moreno) EPC= Rational Bases Review (not a F4 minority) Supremacy Clause is in Article VI 2 of the Constitution which provides that a Federal action must prevail over an inconsistent state action. Suspect classification: is a class of persons that have historically been subject to discriminatory treatment; statutes drawing a distinction between persons based on a suspect clarification (race, nationality, or alienage) are subject to a strict scrutiny standard of review and not the normal rational basis review that is satisfies when the challenged statute is rationally related to the achievement of a legitimate state action. Alienage is a unique class. For purpose of state law discriminating based on alienage, legal aliens are a suspect class. As such, state actions are analyzed according to strict scrutiny. In contrast, because the United States Congress has the power to regulate immigration, federal government action that discriminates based on alienage will receive rational basis scrutiny. Graham (modified by Toll) EPC challenges to state laws (to defend aliens) are not foreclosed but are no longer favored. The laws will likely be reviewed by Conflict analysis. Toll has changed the analysis and the Court no longer will no longer follow Graham and the heightened scrutiny for EPC challenges but will review challenged state laws (to see if Congress conflicts with something that Congress has done (Congress explicitly said do not legislate, there is a contradiction or conflict or there is field preemption)

This federal authorization of state-imposed anti-immigrant discrimination exposes longstanding wrinkles in equal protection doctrine, federalism, and immigration law. Under Graham v. Richardson" and its progeny, state anti-immigrant discrimination generally has been subject to strict scrutiny (and therefore invalidated), but under Mathews v. Diaz and its progeny, identical federal discrimination generally has been subject only to rational basis review (and therefore upheld). The rationale for the divergent standards is that, at the federal level, equal protection norms must be balanced against the deference traditionally accorded to exercises of the federal immigration power, in light of the foreign affairs implications of immigration lawmaking. The states possess no similar immigration power, however, and therefore state or local anti-immigrant discrimination is scrutinized solely in light of equal protection principles Under Toll v. Moreno the analysis has changed and the Court no longer will no longer follow Graham
and the heightened scrutiny for EPC challenges but will review challenged state laws (to see if Congress conflicts with something that Congress has done (Congress explicitly said do not legislate, there is a contradiction or conflict or there is field preemption)

( U.S. Supreme Court considered how the state-operated University of Maryland grants preferential
treatment for purposes of tuition and fees to citizens and immigrant aliens having "in-state" status, yet denied "in-state" status to nonimmigrant aliens, even if domiciled in the state. The Court held that the University's in-state policy is invalid under the Supremacy Clause of the Constitution, insofar as the policy categorically denied in-state status to domiciled nonimmigrant aliens who hold G-4 visas.)

Shaughnessy v. U.S. ex rel. Mezei (U.S. 1953) Rule of Law: If the A.G. excludes, for national reasons, an alien that no other country will admit, the continued exclusion will not constitute the sort of unlawful detention that would permit a court to admit him temporarily on bond.

State and local regulation of immigration

I. General Preemption Principles Our analysis of a preemption claim [M]ust be guided by two cornerstones of [the Supreme Court's] pre-emption jurisprudence. First, the purpose of Congress is the ultimate touchstone in every pre-emption case. . . . Second, [i]n all preemption cases, and particularly in those in which Congress has legislated . . . in a field which the States have traditionally occupied, . . . [courts] start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress. Wyeth v. Levine, 129 S. Ct. 1187, 1194-95 (2009) (internal quotation marks and citations omitted) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)). Even if Congress has not explicitly provided for preemption in a given statute, the Supreme Court "ha[s] found that state law must yield to a congressional Act in at least two circumstances." Crosby, 530 U.S. at 372. First, "[w]hen Congress intends federal law to 'occupy the field,' state law in that area is preempted." Id. (quoting California v. ARC America Corp., 490 U.S. 93, 100 (1989)). Second, "even if Congress has not occupied the field, state law is naturally preempted to the extent of any conflict with a federal statute." Id. Conflict preemption, in turn, has two forms: impossibility and obstacle pre e for a private party to comply with both state and federal law." Id. obstacle preemption exists "where emption. Id. at 372-373. impossibility preemption exists "where it is impossibl 'under the circumstances of [a] particular case, [the challenged state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' " Id. at 373 (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). To determine whether obstacle preemption exists, the Supreme Court has instructed that we employ our "judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects." Id2 B. Preemption of Section 2(B) As the Supreme Court recently instructed, every preemption analysis "must be guided by two cornerstones." Wyeth, 129 S. Ct. at 1194. The first is that "the purpose of Congress is the ultimate touchstone." Id. The second is that a presumption against preemption applies when "Congress has legislated . . . in a field which the States have traditionally occupied." Id. The states have not traditionally occupied the field of identifying immigration violations so we apply no presumption against preemption for Section 2(B). We begin with "the purpose of Congress" by examining the text of INA 287(g). In this section of the INA, titled "Performance of immigration officer functions by State officers and employees," Congress has instructed under what conditions state officials are permitted to assist the Executive in the enforcement of immigration laws. Congress has provided that the Attorney General "may enter into a written agreement with a State . . . pursuant to which an officer or employee of the State . . . who is determined by the Attorney General to be qualified to perform a

function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States . . . may carry out such function." 287(g)(1). Subsection (g)(3) provides that "[i]n performing a function under this subsection, an officer . . . of a State . . . shall be subject to the direction and supervision of the Attorney General." Subsection (g)(5) requires that the written agreement must specify "the specific powers and duties that may be, or are required to be, exercised or performed by the individual, the duration of the authority of the individual, and the position of the agency of the Attorney General who is required to supervise and direct the individual." These provisions demonstrate that Congress intended for states to be involved in the enforcement of immigration laws under the Attorney General's close supervision. Not only must the Attorney General approve of each individual state officer, he or she must delineate which functions each individual officer is permitted to perform, as evidenced by the disjunctive "or" in subsection (g)(1)'s list of "investigation, apprehension, or detention," and by subsection (g)(5). An officer might be permitted to help with investigation, apprehension and detention; or, an officer might be permitted to help only with one or two of these functions. Subsection (g)(5) also evidences Congress' intent for the Attorney General to have the discretion to make a state officer's help with a certain function permissive or mandatory. in subsection (g)(3), Congress explicitly required that in enforcing federal immigration law, state and local officers "shall" be directed by the Attorney General. This mandate forecloses any argument that state or local officers can enforce federal immigration law as directed by a mandatory state law. We note that in subsection (g)(10), Congress qualified its other 287(g) directives: Nothing in this subsection shall be construed to require an agreement . . . in order for any officer or employee of a State . . . (A) to communicate with the

Attorney General regarding the immigration status of any individual . . . or (B) otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present. INA 287(g)(10). Although this language, read alone, is broad, we must interpret Congress' intent in adopting subsection (g)(10) in light of the rest of 287(g). Giving subsection (g)(10) the breadth of its isolated meaning would completely nullify the rest of 287(g), which demonstrates that Congress intended for state officers to aid in federal immigration enforcement only under particular conditions, including the Attorney General's supervision. Subsection (g)(10) does not operate as a broad alternative grant of authority for state officers to systematically enforce the iNA outside of the restrictions set forth in subsections (g)(1)-(9). The inclusion of the word "removal" in subsection (g)(10)(B) supports our narrow interpretation of subsection (g)(10). Even state and local officers authorized under 287(g) to investigate, apprehend, or detain immigrants do not have the authority to remove immigrants; removal is exclusively the purview of the federal government. By including "removal" in 287(g)(10)(B), we do not believe that Congress intended to grant states the authority to remove

immigrants. Therefore, the inclusion of "removal" in the list of ways that a state may "otherwise [ ] cooperate with the Attorney General," indicates that subsection (g)(10) does not permit states to opt out of subsections (g)(1)-(9) and systematically enforce the INA in a manner dictated by state law, rather than by the Attorney General. We therefore interpret subsection (g)(10)(B) to mean that when the Attorney General calls upon state and local law enforcement officersor such officers are confronted with the necessityto cooperate with federal immigration enforcement on an incidental and as needed basis, state and local officers are permitted to provide this cooperative help without the written agreements that are required for systematic and routine cooperation.8 Similarly, we interpret subsection (g)(10)(A) to mean that state officers can communicate with the Attorney General about immigration status information that they obtain or need in the performance of their regular state duties. But subsection (g)(10)(A) does not permit states to adopt laws dictating how and when state and local officers must communicate with the Attorney General regarding the immigration status of an individual. Subsection (g)(10) does not exist in a vacuum; Congress enacted it alongside subsections (g)(1)-(9) and we therefore interpret subsection (g)(10) as part of a whole, not as an isolated provision with a meaning that is unencumbered by the other constituent parts of 287(g).9 In sum, 287(g) demonstrates that Congress intended for state officers to systematically aid in immigration enforcement only under the close supervision of the Attorney Generalto whom Congress granted discretion in determining the precise conditions and direction of each state officer's assistance. We find it particularly significant for the purposes of the present case that this discretion includes the Attorney General's ability to make an individual officer's immigration-enforcement duties permissive or mandatory. INA 287(g)(5). Section 2(B) sidesteps Congress' scheme for permitting the states to assist the federal government with immigration enforcement. Through Section 2(B), Arizona has enacted a mandatory and systematic scheme that conflicts with Congress' explicit requirement that in the "[p]erformance of immigration officer functions by State officers and employees," such officers "shall be subject to the direction and supervision of the Attorney General." INA 287(g)(3). Section 2(B) therefore interferes with Congress' scheme because Arizona has assumed a role in directing its officers how to enforce the INA. We are not aware of any INA provision demonstrating that Congress intended to permit states to usurp the Attorney General's role in directing state enforcement of federal immigration laws. Arizona argues that in another INA provision, "Congress has expressed a clear intent to encourage the assistance from state and local law enforcement officers," citing 8 U.S.C. 1373(c). Section 1373(c) creates an obligation, on the part of the Department of Homeland Security ("DHS"), to "respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual . . . for any purpose authorized by law." We agree that 1373(c) demonstrates that Congress contemplated state assistance in the identification of undocumented immigrants.10 We add, however, that Congress contemplated this assistance within the boundaries established in INA 287(g), not in a manner dictated by a state law that furthers a state immigration policy. Congress passed 1373(c) at the same time that it added subsection (g) to 287. See Omnibus Consolidated Appropriations Act, 1997, Pub.L. 104208, 133, 642 (1996). Thus, Congress directed the appropriate federal agency to respond

to state inquiries about immigration status at the same time that it authorized the Attorney General to enter into 287(g) agreements with states. Arizona and the dissent urge a very broad interpretation of 1373(c): because DHS is obligated to respond to identity inquiries from state and local officers, they argue, Arizona must be permitted to direct its officers how and when to enforce federal immigration law in furtherance of the state's own immigration policy of attrition. This interpretation would result in one provision swallowing all ten subsections of 287(g), among other INA sections. Our task, however, is not to identify one INA provision and conclude that its text alone holds the answer to the question before us. Rather, we must determine how the many provisions of a vastly complex statutory scheme function together. Because our task is to interpret the meaning of many INA provisions as a whole, not 1373(c) and 287(g)(10) at the expense of all others, we are not persuaded by the dissent's argument, which considers these provisions in stark isolation from the rest of the statute.11 In addition to providing the Attorney General wide discretion in the contents of each 287(g) agreement with a state, Congress provided the Executive with a fair amount of discretion to determine how federal officers enforce immigration law. The majority of 287 grants powers to DHS officers and employees to be exercised within the confines of the Attorney General's regulations; this section contains few mandatory directives from Congress to the Attorney General or DHS. The Executive Associate Director for Management and Administration at U.S. Immigration and Customs Enforcement within DHS has explained the purpose of this Congressionally-granted discretion: "DHS exercises a large degree of discretion in determining how best to carry out its enforcement responsibilities" which "necessitates prioritization to ensure ICE expends resources most efficiently to advance the goals of protecting national security, protecting public safety, and securing the border." Section 2(B)'s interference with Congressionally-granted Executive discretion weighs in favor of preemption. Section 2(B)'s 'unyielding" mandatory directives to Arizona law enforcement officers "undermine[ ] the President's intended statutory authority" to establish immigration enforcement priorities and strategies. Crosby, 530 U.S. at 377. Furthermore, "flexibility is a critical component of the statutory and regulatory framework under which the" Executive "pursues [the] difficult (and often competing) objectives," Buckman, 531 U.S. at 349, ofaccording to ICE "advanc[ing] the goals of protecting national security, protecting public safety, and securing the border." Through Section 2(B), Arizona has attempted to hijack a discretionary role that Congress delegated to the Executive. In light of the above, S.B. 1070 Section 2(B) "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress" as expressed in the aforementioned INA provisions. Hines, 312 U.S. at 67. The law subverts Congress' intent that systematic state immigration enforcement will occur under the direction and close supervision of the Attorney General. Furthermore, the mandatory nature of Section 2(B)'s immigration status checks is inconsistent with the discretion Congress vested in the Attorney General to supervise and direct State officers in their immigration work according to federally-determined priorities. 8 U.S.C. 1357(g)(3). [8] In addition to Section 2(B) standing as an obstacle to Congress' statutorily expressed intent, the record unmistakably demonstrates that S.B. 1070 has had a deleterious effect on the United States' foreign relations, which weighs in favor of preemption. See generally Garamendi,

539 U.S. 396 (finding obstacle preemption where a State law impinged on the Executive's authority to singularly control foreign affairs); Crosby, 530 U.S. 363 (same). In Garamendi, the Court stated that "even . . . the likelihood that state legislation will produce something more than incidental effect in conflict with express foreign policy of the National Government would require preemption of the state law." 539 U.S. at 420 (emphasis added).12 The record before this court demonstrates that S.B. 1070 does not threaten a "likelihood . . . [of] produc[ing] something more than incidental effect;" rather, Arizona's law has created actual foreign policy problems of a magnitude far greater than incidental. Garamendi, 539 U.S. at 419 (emphasis added).

Finally, the threat of 50 states layering their own immigration enforcement rules on top of the INA also weighs in favor of preemption. In Wis. Dep't of Indus., Labor and Human Relations v. Gould Inc., 475 U.S. 282, 288 (1986), where the Court found conflict preemption, the Court explained that "[e]ach additional [state] statute incrementally diminishes the [agency's] control over enforcement of the [federal statute] and thus further detracts from the integrated scheme of regulation created by Congress." (internal citations omitted). In light of the foregoing, we conclude that the United States has met its burden to show that there is likely no set of circumstances under which S.B. 1070 Section 2(B) would be valid, and it is likely to succeed on the merits of its challenge. The district court did not abuse its discretion by concluding the same.

S.B. 1070 Section 5(C) provides that it "is unlawful for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state." Ariz. Rev. Stat. Ann. 13-2928(C) (2010). Violation of this provision is a class 1 misdemeanor, which carries a six month maximum term of imprisonment. Ariz. Rev. Stat. Ann. 13-2928(F), 13707(A)(1) (2010). Thus, Section 5(C) criminalizes unauthorized work and attempts to secure such work. We have previously found that "because the power to regulate the employment of unauthorized aliens remains within the states' historic police powers, an assumption of nonpreemption applies here." Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856, 865 (9th Cir. 2009), cert. granted, Chamber of Commerce of the U.S. v. Candelaria, 130 S. Ct. 3498 (2010). Therefore, with respect to S.B. 1070 Section 5(C), we "start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Wyeth, 129 S. Ct. at 1194 (internal quotations and citations omitted) (quoting Medtronic, 518 U.S. at 485). Within the INA, Congress first tackled the problem of unauthorized immigrant employment in the Immigration Reform and Control Act of 1986 ("IRCA"). We have previously reviewed

IRCA's legislative history and Congress' decision not to criminalize unauthorized work. See Nat'l Ctr. for Immigrants' Rights, Inc. v. I.N.S., 913 F.2d 1350 (9th Cir. 1990), rev'd on other grounds, 502 U.S. 183 (1991). In this case, we are bound by our holding in National Center regarding Congressional intent. In National Center, we considered whether the INA, through 8 U.S.C. 1252(a), authorized the Immigration and Naturalization Service ("INS") to promulgate regulations which "imposed a condition against employment in appearance and delivery bonds of aliens awaiting deportation hearings." Id. at 1351. To decide this question, we carefully reviewed the history of employmentrelated provisions in the INA's legislative schemeincluding the legislative history of the IRCA amendments. Id. at 1364-70. We concluded that "[w]hile Congress initially discussed the merits of fining, detaining or adopting criminal sanctions against the employee, it ultimately rejected all such proposals . . . Congress quite clearly was willing to deter illegal immigration by making jobs less available to illegal aliens but not by incarcerating or fining aliens who succeeded in obtaining work."17 Id. at 136768. At oral argument, Arizona asserted that National Center does not control our analysis of Section 5(C) because it addressed the limited issue of whether the INS could require a condition against working in appearance and delivery bonds, whichaccording to Arizonahas no application to whether a state statute can criminalize unauthorized work. We agree that the ultimate legal question before us in National Center was distinct from the present dispute. Nonetheless, we do not believe that we can revisit our previous conclusion about Congress' intent simply because we are considering the effect of that intent on a different legal question. Therefore, our decision in National Center requires us to conclude that federal law likely preempts S.B. 1070 Section 5(C), since the state law conflicts with what we have found was Congress' IRCA intent. ... We are further guided by the Supreme Court's decision in Puerto Rico Dep't of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495 (1988). There, the Court explained: [D]eliberate federal inaction could always imply preemption, which cannot be. There is no federal preemption in vacuo, without a constitutional text or a federal statute to assert it. Where a comprehensive federal scheme intentionally leaves a portion of the regulated field without controls, then the preemptive inference can be drawnnot from federal inaction alone, but from inaction joined with action. This favors AZ for the labor part. Id. at 503. Given the facts in Isla, the Court could not draw this preemptive inference because "Congress ha[d] withdrawn from all substantial involvement in petroleum allocation and price regulation." Id. at 504. The present case, however, presents facts likely to support the kind of preemptive inference that the Supreme Court endorsed, but did not find, in Isla. Here, Congress' inaction in not

criminalizing work, joined with its action of making it illegal to hire unauthorized workers, justifies a preemptive inference that Congress intended to prohibit states from criminalizing work. Far from the situation in Isla, Congress has not "withdrawn all substantial involvement" in preventing unauthorized immigrants from working in the United States. It has simply chosen to do so in a way that purposefully leaves part of the field unregulated.So at the end this favors the U.S.??? We are also guided by the Supreme Court's recognition, even before IRCA, that a "primary purpose in restricting immigration is to preserve jobs for American workers." Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 893 (1984). As Arizona states, "Section 5(C) clearly furthers the strong federal policy of prohibiting illegal aliens from seeking employment in the United States." The Supreme Court has cautioned, however, that "conflict in technique can be fully as disruptive to the system Congress erected as conflict in overt policy." Gould, 475 U.S. at 286 (quoting Motor Coach Emps. v. Lockridge, 403 U.S. 274, 287 (1971)). In Crosby, the Court explained that "a common end hardly neutralizes conflicting means." 530 U.S. at 379-80. Similarly, in Garamendi, the Court explained that a state law was preempted because "[t]he basic fact is that California seeks to use an iron fist where the President has consistently chosen kid gloves." 539 U.S. at 427. The problem with a state adopting a different technique in pursuit of the same goal as a federal law, is that "[s]anctions are drawn not only to bar what they prohibit but to allow what they permit, and the inconsistency of sanctions . . . undermines the congressional calibration of force." Crosby, 530 U.S. at 380. In the context of unauthorized immigrant employment, Congress has deliberately crafted a very particular calibration of force which does not include the criminalization of work. By criminalizing work, S.B. 1070 Section 5(C) constitutes a substantial departure from the approach Congress has chosen to battle this particular problem. Therefore, Arizona's assertion that this provision "furthers the strong federal policy" does not advance its argument against preemption. Sharing a goal with the United States does not permit Arizona to "pull[ ] levers of influence that the federal Act does not reach." Crosby, 530 U.S. at 376. By pulling the lever of criminalizing workwhich Congress specifically chose not to pull in the INASection 5(C) "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines, 312 U.S. at 67. It is therefore likely that federal law preempts Section 5(C). In addition, as detailed with respect to Section 2(B) above, S.B. 1070's detrimental effect on foreign affairs, and its potential to lead to 50 different state immigration schemes piling on top of the federal scheme, weigh in favor of the preemption of Section 5(C).boom, it goes to the U.S. In light of the foregoing, we conclude that the United States has met its burden to show that there is likely no set of circumstances under which S.B. 1070 Section 5(C) would not be preempted, and it is likely to succeed on the merits of its challenge.