Immigration Outline - TA

Immigration Structure
I. How Immigration Is Administered
a. History:
i. INS made by Roosevelt in 1993. Placed within the Department of Labor,
meant to be part of the executive administrative state.
ii. In 1940, moved to DOJ under new exec order
iii. In 1952, Congress established special inquiry officers to review and
decide deportation cases. These officers were basically judges
iv. This system continues until 1973. Officers wanted to be called judges.
Nixon signed the exec order that made them judges. But still located
within the DOJ.
1. Before 9/11 INS was responsible for adjudication and policing of
immigration.
v. In 1983 – establish the Executive Office for Immigration Review (EOIR)
in the DOJ. Exists today. Another agency in charge of adjudication. Now
the INS is just in charge of enforcement. EOIR oversees the judicial
aspect.
1. The boss is the chief immigration judge. Under that about 600
judges. And they staff the court of first resort.
2. There is a single appellate court in VA. It is called the Board of
Immigration Appeals (BIA).
vi. Appeal system: Immigration Court -> BIA -> Fed App. Ct -> US SC
1. Either 1 or 3 judges. Ashcroft as AG allowed one judge only to
make the process more efficient
a. Said that judges can issue an AWO: affirmance without an
opinion.
b. All paper appeals
c. BIA only publishes a handful of cases as precedent.
d. The reason was that this way there will be a deterrence to
appeal. But this pushed the cases to the fed app cts.
e. BIA is often referred to as "the Agency" it is a term of art.
2. Decisions of BIA can be overturned by AG.
b. Impact of Chevron
i. Chevron addresses how much deference the expert agency should receive
from the Federal Courts.
ii. The Chevron Test:
1. (1) did Congress speak directly on the precise question at issue?
a. If yes, follow Congress (deference)
2. (2) If no, courts should see if the agency’s answer is based on a
permissible construction of the statute.
iii. In immigration law, the agency is the BIA. If the rules seem reasonable,
court defers and cites Chevron. If the statute is not silent, then follow the
statute. If the agency does not explain (as in an AWO – affirmance
 without opinion), then politics may come in. The judge may show
deference or not.
iv. Chevron has been limited in other contexts (Mead (2001) and Brand X
(2005)) but NOT so much in immigration
1. Scialabba v. Cuellar de Osorio (2014): affirmation of Chevron
doctrine.
v. But see, West Virginia v. EPA (2022): Held that EPA had overstepped. If
Congress wants an agency like the EPA to handle “major questions of
public policy” it has to give the agency explicit instructions on how to do
that.
1. Major Questions Doctrine
2. Did not overturn Chevron but set an expectation for action by
Congress to receive deference.
3. Unclear how this will impact immigration.
II. Statutes vs Rules vs Executive Orders
a. Executive Orders are rules set by the President that are in effect until challenged
in court
i. Examples: DACA, Trump Muslim Bans
ii. Immigration policy often implemented through executive orders.
b. Statutes have shaped immigration greatly.
c. List of Key Legislation:
i. **1790 Naturalization Act: Provides guidelines for naturalizing and gave
citizenship to children born abroad to US fathers
ii. 1819 Steerage Act: response to Irish & German immigration in 1820-
1860. Mandated ships be hygienic when coming to US
iii. **1866 Civil Rights Act: Persons born in US = citizens (excluding Native
Americans and those subject to foreign jurisdiction.
iv. **14th Amendment (1868): adds the naturalization aspect - naturalized can
be citizens
v. 1882 – Chinese Exclusion Act
vi. 1891 Immigration Act – bars polygamists, criminals, the ill. Establishes
federal office of immigration
vii. Immigration Act of 1921 and Immigration Act of 1924 – favors Europeans
and excludes Asians from immigration
viii. *1924 U.S. Border Patrol Created
ix. *1942 Bracero Program established
x. *1948: First refugee and resettlement law – to assist Europeans after
WWII.
xi. **1952 Immigration and Nationality Act (INA) – THE BASIS OF
OUR CLASS
xii. 1965 Hart-Celler Act – ends national quotas and establishes new
preference system and skilled workers program
xiii. 1980 Refugee Act / 1986 Immigration Reform & Control Act (IRCA):
penalizing hiring of undocumented workers
xiv. 1990 Immigration Act: increased immigration numbers
 xv. 1996: Anti-terrorism and effective death penalty Act (AEDPA) and Illegal
Immigration Reform and Immigration Responsibility Act (IIRIRA)
xvi. 2001: US Patriot Act
xvii. 2005 Real ID Act
xviii. **2014: Deffered Action for Parents of Americans / Deferred Action for
Childhood Arrivals (DAPA & DACA)
d. Impact of 9/11 on Immigration Adjudication
i. Homeland Security Act
1. Adjudication stayed with DOJ but Immigration enforcement
shifted from the Department of Justice to the Department of
Homeland Security post 9/11
2. Now TWO cabinets of the exec branch oversee immigration:
Department of Justice (DOJ) and Department of Homeland
Security (DHS)
III. Government’s Immigration Power
a. History
i. 1776-1985: Alien and Sedition Acts, otherwise open frontiers, little law
ii. 1882 Immigration Act: head tax, exclusions of mentally ill, convicts, poor
iii. 1900-1910: more immigration from southern and eastern Europe
iv. 1917-1924: more restrictive policies exclude illiterates and Asians, quotas
v. 1924-1952: Impact of WWII
1. Displaced Persons Act, 1948
2. Beginnings of family immigration
vi. 1952: Immigration and Nationality Act and 1965 amendments
1. Distinctions between immigrants and nonimmigrants
2. Expanded pool, fewer people excluded
3. Ended privilege for western hemisphere
4. Codified immediate family immigration
5. Special immigrant category
6. Privileging family and employment skills
vii. 1980 Refugee Act
viii. 1986: several statutes restricting immigration
ix. 1996: crimmigration expansion, limiting social welfare, expedited
removals
b. Source of Immigration Power
i. No direct authorization, so there are many theories (text p. 28)
1. Enumerated Powers
a. Naturalization power
b. Commerce power
c. Migration and Importation Clause
d. War Power
2. Implied Powers
a. Foreign Affairs Power
b. Inherent Power
 c. Rule of Necessity
d. Structural Justifications
3. Plenary Power
c. Tensions exist between State and Federal governments regarding immigration.
d. Foundational Cases Developing Govt Immigration Powers
i. Yick Wov. Hopkins (1886) – Noncitizens within US
1. Key Point: treatment of noncitizens within the country and outside
the country varies
2. Facts: Chinese laundry business owners were discriminated against
by being denied licenses to operate business. A statute required all
laundry businesses in wooden buildings to be licenses. Statute was
neutral on its face, but discriminatory in practice
3. Issue: Whether plaintiffs can envoke the EPC
4. Holding: Petitioners may invoke the EPC of the 14th Amend
because they reside within the country
5. NOTE: at this time the EPC only applied to states and not fed govt
which is why the Chinese Exclusion statutes were valid. EPC
protection was not extended through the 5ht amend to the fed govt
until Bolling v. Sharpe in 1954.
ii. Chae Chan Ping v. US (1889) – Exclusion at Border/Chinese Exclusion
1. Key Point: difference between exclusion and deportation.
2. Facts: Petitioner left the country before the Chinese Exclusion Act
of 1882 took effect. He took a certificate from the border with him.
When he tried to come back, he was denied entry.
3. Issue: Whether petitioner should be admitted.
4. Holding: The government may deny re-entry.
a. Congress has the right to exclude noncitizens, and
deference should be shown to their decision (plenary
power)
iii. Fong Yue Ting v. US (1893) – Treatment of Noncitizens
1. Key Point: deportation not seen as a punishment because
immigration is civil law, not criminal law
2. Facts: Statute required each Chinese LPR to have a white witness
to prove LPR’s legitimacy. Fong Yue Ting brought two Chinese
American witnesses and was denied certification. He was ordered
to be deported because he failed to produce a “credible” witness.
3. Issue: is the statute constitutional?
4. Holding: The statute is constitutional and the deportation upheld.
a. It is an absolute and unqualifiable right to expel or deport
noncitizens, just like preventing entrance to the country.
b. Congress is granted various powers related to immigration
c. Petitioner did not comply with a law that Congress saw fit
to pass
d. Petitioner is not deprived of life, liberty nor property
without due process because he had a chance to bring a
witness.
 iv. Wong Wing v. US (1896) – Begrudging Granting of Due Process Rights to
1. Key Point: when imprisonment at hard labor is involved, must
have due process.
2. Issue: whether noncitizens can be subject to imprisonment at hard
labor without a trial by jury?
3. Holding: No they cannot.
a. 5th and 6th amendments apply to all persons within the
territory of the US. Everyone is entitled to due process.

Citizenship
I. Types of Citizenship
a. Jus sanguinis citizenship
i. Transmission of US citizenship to children born abroad to American
parents.
ii. Statutory Provisions:
1. INA 301(c): child born to couple abroad, both parents citizens and
one parent lived in US before birth = child citizen
2. INA 301(d):
3. INA 301 (e):
4. INA 301 (g): child born to couple abroad, one parent citizen and
one not. Child is a citizen if citizen parent was in US for 5 years (2
years after age 14)
5. INA 301 (h)
6. INA 308(2)
7. INA 308(4)
8. INA 309: says that 301 applies to children out of wedlock if parent
proven to be the parent. Child born to two citizen parents not
married will be citizen if father satisfies paternity requirements. If
father fails, still a citizen if mother lived in US for 1 year AND
child born before June 12, 2017. If born after 2017, then mother
must live for 5 years in US.
a. Note: if a citizen father and non-citizen mother, father
MUST prove paternity, live in US for 5 year (2 after 14).
b. Note: if only mother is citizen, see above.
iii. Statutes can be amended so LAW AT THE TIME OF BIRTH GOVERNS.
iv. Key aspects:
1. Physical Presence in US
a. Parents must maintain historical residence in US
b. Applies only to first-generation living outside the US bc of
these rules
2. Gender Discrimination
a. Until 1934, fed statutes only allowed citizen men to pass
citizenship, not women
i. Women lost citizenship by marriage
 b. Recently, challenges to the statute say it discriminates
against men bc women do not have to prove maternity but
men have to prove paternity
i. Nguyen v. INS (2001): USSC upheld requirement
that father acknowledge paternity before child
reaches 18. (note that O’Connor dissented here)
ii. Sessions v. Morales-Santana (June 12, 2017): held
that mothers must meet the same physical presence
requirements as fathers (5 years rule from 301(g))
1. Prior to this case, citizen mothers only had
to live in US for 1 year, and citizen fathers
had to live in US for 5 years under 301(g).
The statute that allowed this 309(c) was
deemed unconstitutional by court.
2. Violated EPC via sex discrimination
3. Policy considerations:
a. Ensuring those born abroad to citizen parents have some
ties to US
b. Just soli citizenship
i. If born in US, citizen of US.
ii. Developing Principles
1. Constitution and early Congress did not define citizenship. Left
courts to define it
a. Dred Scott case: held that free black people born in US
were not citizens
b. Post-civil war reaction – 1866 Civil Rights Act – all
persons born in US and not subject to any foreign power,
excluding Native Americans, are citizens.
th
2. 14 Amend: anyone born in and subject to US jurisdiction is a
citizen.
3. Elks v. Wilkins (1884): held Native Americans were not citizens
even if they severed ties with their tribes because they did not owe
direct and immediate allegiance to the US.
a. Allotment act of 1887 softened this holding by granting
citizenship to many Native Americans.
b. As of 1940, all Native Americans born in US are citizens at
birth. (INA 301(b))
4. Exclusion laws
a. Persons of African descent included in 1870
b. Persons from western hemisphere in 1940
c. Chinese persons 1943
d. Everyone in 1952
5. Chinese exclusion laws:
a. Stated that Chinese people owe allegiance to the emperor
so cannot be citizens
 b. US v. Wong Kim Ark (1898): held every person born in the
US is a citizen of the US, no matter the citizenship of their
parents.
i. Issue: may congress deny citizenship to children
born in US to foreign parents?
ii. Majority: No, P’s citizenship derives from the
Constitution and the 14th amend. “subject to
jurisdiction thereof” excludes only foreign
nationals. P is not subject to a foreign power bc
born in US
iii. Dissent: Based on Elk and English common law,
Chinese nationals should be excluded from
citizenship.
c. Naturalization
i. Someone who is a citizen elsewhere looking to be a US citizen
ii. Key Points
1. Required steps have changed over time (broadening trend)
a. 1906 – English literacy
b. 1920 – quota system
c. 1952 – INA approach ENDS racial bars to naturalizing
by ADDING KEY PROVISIONS
d. 1965 – increased numbers of Asians who could immigrate
e. 1990 – naturalization becomes administrative rather than
courts.
2. Race Matters: 1790-1872 – certain Whites only; after 1870 those
of African descent, or those born outside US could be African
American by naturalization; Asians barred from naturalizing by
1882 Chinese Exclusion laws etc.
a. Ozawa (1922): USSC case that bars Japanese from
naturalizing
i. Held that person of Japanese descent is not white
within meaning of statute. White means Caucasian
according to Congress
b. Bhagwat Singh Thind (1923): USSAC case that bars South
Asians from naturalizing
i. British had categorized Indians as Caucasians, so
Thind argued he could naturalize as a Caucasian.
Race is a matter of linguistics not characteristics
1. US argued he was Asian, and thus excluded
under exclusion laws
ii. Held the statute had a “common sense” racial test
about the “unmistakable and profound differences
between them.” Free white persons = Caucasian
c. In re Rodriguez (1897): held Mexican citizen and Texan
resident “white enough” to naturalize according to the
judge.
 d. NOTE: although these people were all excluded, their
children born in US would be citizens.
iii. Key Provisions
1. 311: Eligibility for Naturalization
2. 312: English Language Requirement, with exceptions
3. 313 Prohibition of Naturalization for those who are subversive
4. 314 Deserters from armed forces cannot naturalize
5. 315 Those who apply for exemption from armed services cannot
naturalize
6. **316: Residency requirement; absence requirement; physical
presence; moral character; EXCEPTION: does not apply to those
making extraordinary contribution to national security
7. 317 can get around absence issue in 316 if doing religious service
8. 318 burden of proof to naturalize on applicant: must be LPR
9. **319(a): applies to LPRs “living in marital union” with US
citizen spouse, also applies to battered or victimized non citizens
who are LPRs (may be naturalized even though residence
provision 316a not met)
10. 320 children born outside US but residing in US permanently
under legal and physical custody of citizen parent.
11. 322: conditions of how child born and residing outside US can be
naturalized
12. 324 how to naturalize former citizen who wants citizenship back
13. 325 nationals who want to become citizens (mainly for people
residing in outlying possessions)
14. 327 how to naturalize former citizens who lost citizenship by
joining armed forces of another country
15. 328-329: naturalizing those who have served honorably in armed
forces with exceptions
16. 329(a) posthumous citizenship
17. 331: enemies – how to naturalize those who come from countries
that US is at war with
iv. Substantive Requirements for Naturalization
1. Age: INA 334(b)(1) – 18 years old
2. Residence & Presence: INA 316(a) – at least 3 months and
continuous residency from application till admission as a citizen.
Cannot leave US for more than 6 months.
3. Good Moral Character – INA 316(a) [no formal definition]
4. Civics knowledge – INA 312(a)(2)
5. English Language Proficiency – 312(a)(1)
6. Oath of Allegiance – INA 337(a)
7. Attachment to Constitution – INA 316(a) [SEE Schneiderman]
v. Specific Problems with Naturalization:
1. The marriage issue
a. 319(a) shortens residency requirement to 3 years for those
married to a citizen
 b. 334(a) allows an applicant to file 3 months early if they
have complied with all statutes; a reward to applicants who
adhere to law.
2. The criminal record issue
a. 101(f)(3) – basic statute about crimes. “No person shall be
regarded as a person of good moral character who (2) falls
under 212(a) and was convicted; (7) who has been confined
for 180 days or more regardless of the offense; (8) has been
convicted of an aggravated felony at any time.
i. 101(f)(43) – list of aggravated felonies
b. 316(e) – determination of moral character. AG may
consider conduct during 5 years preceding application, and
also conduct and acts any time prior.
vi. Cases:
1. Schneiderman v. US (1943):
a. Key Point: reduced the attachment requirement for
naturalization. Shows that it is difficult to revoke
naturalization.
b. Issue: can a communist be attached to the constitution?
c. Facts: P arrived from Russia at age 3. Filed intent to
naturalize at 18. Joined communist party at 19. Granted
naturalization at 20. Openly approved belief in Communist
Party at conference in Moscow. Ran for Minnesota
governor in Communist party. 12 years after naturalization,
govt attempted to strip him of citizenship.
d. Holding: A grant of citizenship will only be cancelled if the
government can provide clear, unequivocal, and convincing
evidence supporting its cancellation. Here, govt has not
shown that P is not attached to the constitution Belief in the
Constitution is belief in the first amendment freedom of
speech. P is using democratic process for change and that is
not incompatible with the constitution.
e. Dissent – plenary power of govt means that the court
should listen to the US here.
II. Dual Citizenship
a. International law disfavors dual citizenship
b. Some countries make citizens renounce dual citizenship, which can lead to
voluntary denaturalization
i. Vance v. Terrazas (1980):
1. Facts: P went to Mexico and applied for Mexican citizenship. He
swore an oath of obedience and submission to Mexican
government and renounced US citizenship. Department of State
issued a certificate of loss of citizenship. P sued against Secretary
of State for a declaration of his US citizenship.
2. District court held that govt had proven by preponderance of
evidence that P voluntarily relinquished citizenship. Appellate
 court reversed holding under Afroyim the Con required clear and
convincing evidence.
3. Issue: What is the standard of review? Congress’ preponderance
of evidence, or Con’s clear and convincing proof?
4. Holding: The statute prevails, so the standard is preponderance of
evidence of intent to relinquish citizenship.
c. INA 349(a): person shall lose nationality by voluntarily performing the following
with intention to relinquish citizenship
i. (1) naturalize in another country
ii. (2) take an oath of allegiance to another country
iii. (3) enter armed forces of another country
iv. (4) work for govt of another country if citizenship or an oath is required
v. (5) formal renunciation at a consulate
vi. (6) making formal written renunciation in US
vii. (7) committing an act of treason against US
d. INA 349(b): standard of review is preponderance of evidence. Burden on the
person claiming the loss occurred. There is a rebuttable presumption that these
acts are done voluntarily.
III. Denaturalization
a. Misrepresentation and Denaturalization
i. Statute Provision:
1. INA 340(a)-(h) – allows for denaturalization when citizenship is
illegally procured or procured by concealment of a material fact or
willful misrepresentation.
a. Depends on the materiality of the misrepresentation
2. 101(a)(43) – definition of aggravated felony
3. 101(a)(48)(A) – definition of conviction
4. 101(f)(7-8) – no good moral character where imprisoned 180 days
or more or convicted of aggravated felony.
ii. Materiality of Misrepresentation
1. Chaunt v. US (USSC 1960): a misstatement by a noncitizen who is
looking to get citizenship is material if its disclosure would have
justified a denial of that citizenship. Or it would have led to the
discovery of other facts that would have led to denial of
citizenship.
2. Kungys v. US (USSC 1988): Kungys was a war criminal. Question
was does this man have good moral character. In application, he
misrepresented place and date of birth. Court's question: is there a
natural tendency to mislead? Court held that the misrepresentation
was not material because facts were not relevant to qualifications
for citizenship.
3. US v. Puerta (9th Cir 1992): Born in Spain in 1956, enters on
student visa in 1981. Then in 1990 wants to be naturalized. Said he
did not have aliases but later was arrested for bank fraud. Had
other passports. He later clarified some statements after filing the
 forms, so he was deemed not to have concealed any amterial facts
on the application.
4. Maslenjack v. US (USSC 2017):
a. Crimmigration case
b. Facts: Husband convicted of lying on naturalization forms.
Wife testifies that she lied to get asylum. Both convicted
under 18 USC 1425.
c. Holding: USSC overturns the revocation of citizenship for
the wife.
d. Reasoning:
i. Court points to an actus reus problem. Must have a
causal relationship between lying to get citizenship
and knowing that she would be denaturalized for the
false statements.
ii. Taking away naturalization is serious.
iii. Lying on the form was not enough, so what is?
iii. Other Denaturalization Cases – There is a trend in caselaw of broadening
protections for individuals so that they do not lose their citizenship.
1. Mackenzie v. Hare (USSC 1915): expatriating us citizen who
married a non-citizen is upheld under congress 1907 act
2. Gonzales v. Landon (USSC 1955): govt given presumption on
expatriating but must do so by clear and convincing evidence.
3. Trilogy Case - Perez v. Brownwell (USSC 1958) expatriated after
voting in Mexican election and living in Mexico. Rational basis
standard given to govt. Used necessary and proper clause as
justification **overruled by Afroyim
4. Trilogy Case - Trop v. Dulles (USSC 1958): jus soli citizen who
deserted army. Applies for renewal of passport, denied by govt.
Court says cannot do this strip of citizenship.
5. Trilogy Case - Nishikawa v. Dulles (USSC 1958): jus soli citizen
who was conscripted to join Japanese army. Passport application
denied in Japan after War. Govt said it had power under 401.
USSC says govt cannot strip of jus soli rights.
6. Kennedy v. Mendoza-Martinez (USSC 1963): cannot denaturalize
citizen who stays out of US to avoid service
7. Schneider v. Rusk (USSC 1964): naturalized US citizen who
returned to live in home country for 3 years stripped. USSC says
cannot do that
8. Afroyim v. Rusk (USSC 1967): naturalized US citizen from
Poland goes to Israel. Votes in Israel. Seeks to renew passport and
is denied. SCOTUS overrules Perez and says that govt cannot strip
him of citizenship.
9. Vance v. Terrazas (USSC 1980):
a. Facts: P went to Mexico and applied for Mexican
citizenship. He swore an oath of obedience and submission
to Mexican government and renounced US citizenship.
 Department of State issued a certificate of loss of
citizenship. P sued against Secretary of State for a
declaration of his US citizenship.
b. District court held that govt had proven by preponderance
of evidence that P voluntarily relinquished citizenship.
Appellate court reversed holding under Afroyim the Con
required clear and convincing evidence.
c. Issue: What is the standard of review? Congress’
preponderance of evidence, or Con’s clear and convincing
proof?
d. Holding: The statute prevails, so the standard is
preponderance of evidence of intent to relinquish
citizenship.
b. Specific Problems:
i. Q1 P. 460 on 8/25
1. Girouard v. US: this kind of statement is not enough to prohibit
naturalization.
2. Petition for naturalization of Kassas: fed district court allowed govt
to deny the petition. (opposing case)
ii. Q2 P460
1. Case law goes both ways. Show cases for both.
a. Opposing – In the Matter of Williams – upheld denial of
naturalization of a Jehova’s witness.
iii. P. 467

Immigrant Visas
I. Five Ways to Be an Immigrant
a. Family-sponsored
i. Immediate Relative – INA 201(b)(2)(A)(1)
1. Children, spouses, parents of US citizens
a. Note: child does NOT equal son/daughter in statute. Child
is an unmarried person under age of 21, including children
out of wedlock, and children adopted before age 16. INA
101(b)(1)
2. Must be sponsored by a citizen (not LPR)
3. No quota for this category
ii. Family Member – INA 203(a)
1. Has quotas in preference order
a. First preference: 23,400 for unmarried sons and daughters
(over 21) of citizens
b. Second preference: 114,200 for spouses and unmarried
sons/daughters (over 21) of LPRs
c. Third Preference: 23,400 for married sons and daughters of
citizens
d. Fourth Preference: 65,000 for brothers and sisters over age
of 21 of citizens.
 iii. Child Status Protection Act: INA 201(f), 203(h) and 204(k)
1. Immediate relatives: child’s age determined when parent files visa
petition 201(f)
2. Non-immediate relative (second preference): (1) how old is child
when relevant preference category becomes current? (2) reduce
that age by period of time that visa petition was pending bw filing
and USCIS decision of approval.
3. Beneficiary must acquire visa within one year of category
becoming current. 203(h)
4. If a child ages out, priority date can be maintained only if there is a
category for the petition to be automatically converted into.
203(h)(3) [think of a grandson losing priority date due to
grandmother’s petition]
iv. Conditional Permanent Residence
1. 216(a) – must apply for removal of conditional basis to be an
permanent resident
2. 216(b) If marriage for purpose of obtaining admission or if
terminated before conditional period is up, status terminated
3. 216(c)(4) VAWA hardship waiver – if you miss the deadline to
apply for conditions to be removed, can apply for a hardship
waiver to prove that conditions should be lifted. (battered spouses)
b. Employment-based Sponsorship – INA 203(b)
i. Includes:
1. Preference 1: EB-1A extraordinary ability, EB-1B outstanding
professors and researchers, EB-1C: multinational executives and
managers defined in 101(a)(44).
2. Preference 2: advanced degree holders
a. Must have employment (or NIW)
3. Preference 3: skilled workers w/o advanced degrees,
a. Capped at 10,000 (low cap)
4. Preference 4: special immigrants (religious workers, foreign
employees of US govt), and
5. Preference 5: creative entrepreneurs (investors – one million
dollars and employ 10 Americans see INA 216A
ii. Has a quota INA 203(b) – 140,000 per year including derivative recipients
iii. Most on these visa do so through adjusting status 245.
iv. Labor Certification may be required. (EB3, EB2 unless waived)
1. Compliance – INA 212(a)(5)
a. Wages for noncitizen not lower than US workers
(prevailing wage requirement)
b. Must spend 1-3 months looking for US worker, avoiding
faux ads.
c. Must swear there was a good faith search
d. If department of labor certifies, then employer must gain
USCIS approval within 3 months.
c. Diversity Lottery – INA 203(c)
 i. Immigrants from countries with low representation can get a green card by
lottery
d. Humanitarian Green cards
i. Asylum and refugee process.
e. Following to Join – INA 203(d)
i. A spouse or child accompanying an LPR, the principle, on family,
employment, or diversity grounds. (NOT the same as immediate family bc
not citizen)
ii. Must be spouse of child before the admission of the principle.
iii. Must enter within 6 months after the principle has been issued the visa or
had status adjusted from nonimmigrant to immigrant.
iv. Policy goal: ensuring nuclear families are kept together.
v. Does not count toward the quota.
II. Constitutional Standard for Evaluating Admission Categories
a. Characterized by judicial deference (Chevron)
i. Fiallo v. Bell (USSC 1977)
1. Backgroud: under INA, non-citizens parents and noncitzen
children of US citizens or LPRs -> given preferential immigration
statute. INA 101(b)(1)(D) and 101(b)(2)
2. Issue: Can INA give preference to mothers over fathers?
3. Holding: very deferential YES
a. Court metions 4 considerations: power of sovereignty,
immigration tied to foreign relations, deference to exec and
legis, administrative agency’s cost considerations.
4. This is a pre-Chevron case, but shows great deference.
5. Dissent- Marshall:
a. 5th amendment concerns (EPC and due process)
b. Does not buy the admin cost argument.
ii. Kleindienst v. Mandel (USSC 1972)
1. Background: Mandel was a Belgian academic who came on and
off to the US. Denied the most recent time he tried to come
because he planned to talk about Marxism. AG argued he could
send tapes of the lecture over
2. Holding: court affirms AG’s decision citing plenary power.
3. Dissent: argues the audience has a FA right to access the
information.
iii. Trump v. Hawaii (USSC 2018)
1. Background: Trump admin’s 3rd attempt at Proclamation 9645
2. Holding: reversed lower court and upheld the travel ban
a. For violation of INA issue: Argued statute does not apply.
i. INA 212(a)(1)(A) – deals with non-discrimination
in issuance of immigrant visas bc of sex, race,
nationality, place of birth, etc.
ii. Court said (1) provision only applies to physical
dolling out of visas, but (2) here we are talking
about the determination of who is admissible .
 iii. SO 212 does not apply.
b. For Establishment Clause issue:
i. P has the right to bring the claim
ii. Rational basis applied (deference)
iii. Since there are some exceptions, a visa waiver, and
some nonimmigrants allowed in, it is okay
1. Exceptions were key in passing this through
the court.
b. Immigration and Marriage
i. Adams v. Howerton (USSC 1982) – Same Sex marriages
1. Same sex marriage and "spouse." Same sex couple tries to get a
visa as an immediate relative. Was denied because same sex
marriage does not count as marriage in US.
2. Meaning of Spouse in 201(b) interpreted by court NOT to include
same sex couples
3. HOWEVER, law has evolved since this case. Post-Obergefell,
same sex couples allowed.
ii. Dabaghian v. Civiletti (9th Cir. 1979) – Sham marriages
1. Background: P was a student and marries a US citizen in 1971.
Applies for adjustment of status, he gets it, then they get divorced.
INS is suspicious of a sham marriage, so said the marriage was
factually dead and the AG can rescind the adjustment of status
decision because the marriage never really existed.
a. Statute: INA 246: Recission of adjustment of status – AG
may do so within 5 years if AG thinks LPR was never
eligible.
2. Holding: If it is not a sham AG cannot rescind just on the belief it
is factually dead. P reinstated as an LPR.
iii. Bark v. INS (9th Cir.)
1. Precedent: Test to establish if sham marriage or not
a. Did the couple not intend to establish a life together at the
time they were married?
c. Employment Based Immigration
i. In the Matter of Digital Technology (Board of Alien Labor Certification
Appeals 2019)
1. Procedure: 1) certifying officer within DoL reviews, (2) appeals go
to BALCA within DoL staffed by admin judges governed by APA,
(3) appeals then go to Art. 3 fed courts (typically district)
2. Facts: Employer was looking for a software developer. Certifying
officer denied the request for labor cert because (1) hiring
noncitizen was not a business necessity, (2) having a Masters was
not a persuasive job requirement.
3. Holding: reversed CO’s judgment and granted labor cert
4. Reasoning:
 a. Case turns on whether higher education and experience
levels are necessary for the job. Noncit had this but
domestic applicants did not
b. To show a business necessity:
i. 1) reasonable relationship between the job
requirements and the occupation
ii. 2) requiring that the job requirements are essential
to perform, in a reasonable manner, the job duties.
c. Court says the above test not met by the company’s letter
BUT the expert testimony did meet #2 of the test
i. Therefore, business necessity for the position
requirements established.
5. Big issue: is a foreign language a business necessity?
a. Foreign language cannot be included UNLESS justified by
business necessity: ex. Nature of occupation (translator),
need to communicate with customers who cannot
communicate in English.
III. Adjusting Status
a. Family Visas - Practice Points
i. INA 245 – adjustment of status
1. 245(e): cannot adjust while in removal proceedings
a. (e)(3): exception if marriage can be proven valid
ii. What if the citizen who petitions dies?
1. 201(b)(2)(A)(i): carved out exception for this case
2. 204(a)(1)(A)(ii): Lena may self petition
iii. What if LPR divorces citizen spouse, then remarries noncitizen?
1. Must file 2nd preference for new noncitizen spouse under 203(a)(2)
2. In 204(a)(2) must show first marriage was valid by clear and
convincing evidence or must wait 5 years to petition new spouse.
iv. Nonimmigrant overstays and put in removal proceedings. Then marries
citizen
1. 245(e): cannot adjust while in removal proceedings
2. 245(e)(3): exception for adjusting if marriage proven valid.
v. What if nonimmigrant overstays, put in removal proceedings, and leaves
voluntarily 5 months after overstaying.
1. 204(g): has to live outside US for 2 years
2. 245(a)(3) if she can prove marriage was legal, then can petition
earlier than 2 years.
b. Employment Visas – Practice Points
i. “Business necessity” of job requirements (see above)
ii. ALWAYS note: which govt agency is handling this employment problem?
1. Department of labor? (labor cert)
2. DOJ? (adjudication?)
3. DHS? (enforcement?)
 iii. REMEMBER: can apply for more than one visa and hold two arguments
at once! (not two immigrant visas, but a non-immigrant and immigrant
visa or multiple non-immigrant visas)
iv. Consider the following with an university professor employment problem
1. 212(a)(5)(A)(ii): is the person (1) a member of the teaching
profession, (2) has exceptional ability in the sciences or arts
2. Under 20 CFR section 656.18: is the person “more qualified than
any of the US workers who applied for the job? Can the university
justify why he is more qualified than EACH worker who applied?
3. 203(b): which category does the person qualify for
a. If EB2, is a national interest waiver possible for labor cert?
(Dhanasar Test: Does the noncitizen add substantial merit?
Can the noncitizen advance the proposed endeavor? Would
it benefit the US(balance test)?
4. Look at charts, which qualified visa is fastest? Is there a time limit
on the problem?
v. EB-1: must be honestly and truly exceptional to get this. Most educated
people will be EB-2
vi. EB-5 investors
1. Two year conditional visa
2. 10,000 annual spaces
3. Must create 10 jobs for US workers not counting investor or
relatives. Must invest 1.8 million, with $900,000 minimum for
rural and high unemployment regions.
4. INA 203(b)(5)
5. Steps to analyze:
a. Use EB-5 statute as a model
b. What are the pros of the statute
c. What are the cons of the statute
d. Is investment level to high? Too low?
e. What are the fraud concerns with this type of visa?
c. Types of Discretionary Relief
i. Asylum
ii. Voluntary Departure
iii. Cancellation of Removal
iv. Adjustment of Status

Nonimmigrant Visas
I. Overview of Visas (See INA 101(a)(15) for statute)
a. B-1: Temporary Visitor for Business
i. always must see whether 101(a)(15)(B) bars certain type of labor – Bars
those coming for study, skilled labor, unskilled labor, media
ii. Always check to see if the Visa Waiver Pilot Program can be used –
section 217. You can enter quite easily without bureaucratic headaches up
to 90 days, but obviously this time limit can pose as a constraint as well.
 – one particular disadvantage is that using this program disallows you
from adjusting your status
iii. Note – can’t use B-1, if work you are doing is considered to be “local
employment for hire” – i.e., if it is considered labor, as opposed to work
business, then B-1 can’t be used
b. B-2: Temporary visitor for pleasure
i. See above
c. E-1: “Treaty Trader”
i. Must work on trade that is international in scope and between the US and
home country
d. E-2: “Treaty Investor”
i. Must have invested substantial amount of capital toward project that will
be critical to her making a living.
ii. E status will depend on international agreement that exists between US
and a foreign country. INA 101(a)(15)(e) allows spouse and children to be
brough as well. Renewable for 2 years at a time, so long as she continues
to work on activities that brought her here in the first place.
iii. Epetitions DO NOT require a preliminary INS petition, nor is there an
overall limit on a person’s stay in the US
e. F-1: Student headed for an academic institution
f. F-2: Spouse and children of student
g. H-1B: for those coming temporarily to US to provide service to a “specialty
occupation”
i. Post 1990 Act: can be admitted up to 3 years initially, not to exceed 6
years
ii. SEE 214(i): only a US entity can file an HB-1
iii. B.A. or higher education required; past work experience very relevant.
65K limit per year.
iv. DoL approval is not required, only an attestation. If employer does not do
this, there is a big fine.
1. Employer must attest to all employees that an ad is out and other
things. (see text?)
h. H-2A: Temporary worker in agriculture
i. Same deal with employer being required to find out if US workers are or
are not available – see 214(c)
ii. Worker must be here temporarily to fill a temp job (year or less)
iii. Irony – must show that there are no US workers to hire a temporary
worker. Would make more sense to fill those positions permanently.
iv. INA 214(g)(1)(B); (g)(2) – limit H-2B to 66K per year.
i. L-1: “intracompany transfers”- Those seeking to transfer from firm overseas to
branch in US
i. Must be managerial, executive, or specialized per INA definition
101(a)(44)
ii. Specialized knowledge 214(c)(2)(B)
iii. Must have worked for the firm at least a year 101(a)(15)(L)
 iv. For US multinational companies that use this a lot, INA allows blanket L-
1 petitions rather than filing one for each person – 214(c)(2)(D)
j. O: persons with extraordinary ability or international acclaim
i. 101(a)(15)(O)
ii. No numerical limit
iii. Can use to seek LPR (adjustment allowed)
k. P-1, P-2, P-3: applies to athletes and entertainers
i. 101(a)(15)(P)
ii. No numerical limit
iii. Can use this visa to seek LPR (adjustment allowed)
l. M: for those seeking temporary non-academic vocational training.
m. A: diplomats, ambassadors, their families
n. C: those in transit
o. D: crewmembers of vessels – non-renewable for 29 days
p. G: for members of foreign govt who wish to come to be part of an international
organization (World Bank, IMF, etc) and their families
q. J: individuals approved to participate in work and study based exchange visitor
programs
r. K: for spouses to be – finance visa
i. Must marry within 90 days
ii. Can seek adjustment of status after marriage
s. Q: cultural exchange visa – not to exceed 15 months
t. R: religious workers – not to exceed 5 years
u. T: for trafficked individuals
v. U: for abused victims of certain crimes
i. 101(a)(15)(U)
w. V: allows families to stay together while waiting for processing of immigration
visa for principle
i. LPRs may apply for their spouse or child (unmarried under 21) if petition
filed before December 21, 2000; the family member has been waiting at
least 3 years; immigrant visa not available on approval OR application to
adjust status is pending OR petition for immigrant visa is pending.
II. Practice Points
a. If a temporary visitor, could they use the INA 217 visa waiver program for 90
days of entry. No adjustment possible.
b. Consider what category of worker the person will be considered.
i. Definitions:
1. Crewman: 101(a)(10)
2. Profession: 101(a)(32)
3. Managerial capacity: 101(a)(44)(A)
4. Extraordinary ability: 101(a)(46) – for O visa “in the case of arts
means distinction”
c. Consider if the person wants to be able to adjust status or not.
i. Visas that do not allow this:
1. Visa waiver program (217)
2. D – crew member
 3. C – in transit
4. Those in transit without a visa
5. K – cannot adjust until married
6. S – informants on terrorism and family
7. M-1 students cannot adjust to F-1 or H visas
8. J-1 visitors may not adjust if admitted for medical training OR an
exchange visitor (but can get a waiver).
d. Consider how long the person wants to stay and how long the visa lasts.
e. If a visa is overstayed, it is automatically voided INA 222(g)
i. If you overstay, can go into 237 hearings for deportation.

Removal - Inadmissibility
I. Foundations
a. Asks the question: Have you been lawfully admitted or can you be lawfully
admitted?
i. Can occur at the border where CBP officer can declare someone
inadmissible under 221(h)
b. A person must prove that you are not inadmissible under 212(a).
i. Health related; criminal related; security related; public charge; labor
certification & qualifications for certain immigrants; unlawful entrants &
immigration violators; documentation requirements; permanent
ineligibility for citizenship; noncitz previously removed; misc. reasons
(polygamists, child abductors, unlawful voters, etc)
c. Rights during inadmissibility proceedings aka 212 hearings (NOT MANY)
i. Limited ability to call witness, limited CX, relaxed evidence rules
ii. Less common to have a lawyer
iii. No 6th amend rights to govt-appointed lawyer, but a statutory right to
counsel not at govt’s expense
d. EWIs (entry without inspection)
i. Until 1996, granted deportation hearings (had rights)
ii. KEY: have you been lawfully admitted?
1. If yes, 237(a) deport applies (more rights)
2. If not, 212(a) inadmissibility applies (less rights) – EWIs here now
212(a)(6)(A)(i)
a. INA § 212(a)(9)(A-C) applies
i. 9(A): current bar is 10 years for person removed
from inside US, 5 years for expeditated
removal/border removal/port of entry
ii. 9(B): unlawful single period of 180 days-less than
one year: 3 year bar; 1 year or more then 10 year bar
iii. 9(C): permanent bar if unlawfully present for
aggregate period of more than one year or ordered
removed and then after enters or attempts to enter
w/out lawful admittance
 e. Case law
i. US ex rel. Volpe v. Smith (USSC 1933): any time a noncitizen leaves, even
an LPR, that means they are seeking entry and can be subject to exclusion
or inadmissibility on return.
ii. Rosenberg v. Fleuti (USSC 1963): created exception for LPRs – those
leaving for innocent, casual, and brief excursion – not categorized as
seeking entry upon coming back.
1. 1996 Act codified this holding in 101(a)(13)(c)
iii. Collado (BIA 1998): LPR who commits offense and leaves, then seeks to
come back to US will be deemed as seeking admission and thus subject to
212(a).
1. Carves an exception from 101(a)(13)(c)
II. Grounds for Inadmissibility:
a. See above: H ealth related; criminal related; security related; public charge; labor
certification & qualifications for certain immigrants; unlawful entrants &
immigration violators; documentation requirements; permanent ineligibility for
citizenship; noncitz previously removed; misc. reasons (polygamists, child
abductors, unlawful voters, etc)
b. Deference in Inadmissibility
i. Two cases show that the courts are likely to be deferential to decisions
made about inadmissibility
1. Kleindienst v. Mandel (USSC 1972)
a. Revisiting this case again to see the second part
b. Issue: is P admissible or not, and if not, does he qualify for
a waiver?
c. Holding: P is not admissible and does not qualify for the
waiver.
d. Plenary power
2. Matter of S-K (BIA 2006)
a. Applicant had connections with a terrorist organization.
Her argument was that she should not be removed because
what she did was not material to any of the terrorist acts the
group did.
b. Court held that even if her support did not go directly
towards the terrorist acts, she still associated with them.
Therefore, she was inadmissible.
c. Note: Broad exemptions were applied to many Burmese
groups that had been labeled as terrorist orgs. S-K was
granted asylum through a BIA decision in 2007, but the
case would still be precedent.
i. Confusing for attorneys bc precedent says one thing
and actions of court say another.
c. Criminal Related Grounds for Inadmissibility
i. crimes 212(a)(2)(A)-(H).
1. 101(a)(43) defines aggravated felonies. NOT mentioned in the
statute, but can be overlap with CMT
 2. 101(a)(48) defines conviction and imprisonment.
3. Moral turpitude is at the discretion of the judge.
ii. Crimes Listed
1. (2)(A): those convicted of or having admitted to committing a
crime of moral turpitude OR a violation of any law or regulation of
a State, US, or foreign country relating to a controlled substance is
inadmissible
a. Exception: ONE crime of MT committed when under 18
years and more than five years before application will not
be considered OR if max penalty did not exceed one year
and sentence was not more than 6 months.
2. (2)(B) Multiple convictions: convicted of 2 or more offenses
regardless of MT and with an aggregate sentence of 5 years+ is
inadmissible
3. (2)C) Controlled Substance Traffickers
4. (2)(D) Prostitution and Commercial Vice
5. (2)(E) Certain Aliens Involved in Serious Criminal Activity who
have asserted immunity from prosecution
6. (2)(G) Foreign Govt officials who have committed particularly
severe violations of religious freedom.
iii. Noncitizen commits crime in US, leaves, and seeks admission again. If
crime is an aggravated felony or crime of moral turpitude, then will be
deemed inadmissible and ineligible for a waiver (see 212(h) waiver
provision)
d. Fraud and Misrepresentation of Facts Grounds for Inadmissibility –
212(a)(6)(C)(i)
i. How do address issue when noncitz fraudulently enters.
1. 212(a)(6)(C)(i): an noncitz who by fraud or willfully
misrepresenting a material fact, seeks to procure a visa, other
documentation, or admission to US or other benefit provided by
INA is inadmissible.
ii. Penalty can be lifetime exclusion unless waiver is granted.
iii. Misrepresentation vs failure to volunteer information
1. Misrepresentation
a. Occurs before a US official
b. Must be in non-citizen’s own application
c. Misrepresentation by attorney will be attributed to
noncitizen, if they knew
d. Must be willful
2. Failure to volunteer information
a. Silence on an issue.
iv. Cases
1. Strickland: Foundational case for claims for ineffective assistance
of council. Unclear if it applies to immigration context.
Immigration is civil in nature so 6th amendment does not apply.
a. This was unanswered until 1989
 2. Matter of Lozzato – held Strickland applies to immigration process,
but under the 5th amendment not the 6th.
a. But no automatic right to counsel in immigration context.
3. Matter of Cervantes-Gonzales (BIA 1999):
a. Facts: P used a fake birth certificate to gain a passport and
SSN. 212(a)(6)(C)(i) inadmissibility proceedings were
started. Under 212(i), P requests a waiver claiming that
leaving would cause him and his spouse extreme hardship.
His wife had never lived outside of America before, and
they could face financial hardship.
b. Issues: (1) Is there misrepresentation that would trigger the
waiver? (2) Should the waiver be granted?
c. Holding: Yes there is misrepresentation because he
submitted the birth certificate in front of an official for a
passport. No, he should not be granted the waiver because
he did not sufficiently show hardship to the citizen spouse.
e. Public Charge Grounds for Inadmissibility
i. MAY BE ON EXAM!
ii. INA 213(A) is key for public charge inadmissibility
1. Must have a contract with sponsor of noncitizen to agree to
maintain the sponsored person at an annual income that is not less
that 125% of the Federal poverty line during the period in which
the affidavit is enforceable.
iii. 5 step analysis – Looking at the SPONSOR’s finances
1. The income that is 125% of the fed poverty line in relation to
number of people in family. How many people?
2. Go to chart. What is the amount? Does person earn more than that
amount?
3. If no, can a spouse help? Spouse will need to sign a contract as a
sponsor (I-864A). If spouse has a salary, it can be counted toward
the total income. If no spousal income, what about joint assets?
Filling out I-864 can allow 20% of joint assets to be counted
towards total income.
4. Can the applicant’s assets be counted? Yes, but also only at 20%.
5. If the applicant is able to come to US and has financial obligations
they are unable to meet, then sponsors will be liable under INA
213(A)(1)(f).
a. Liability continues until the applicant either:
i. Works for 120 months
ii. Naturalizes
iii. Leaves US permanently
iv. Dies before 120 months
f. Foreign Policy Grounds for Inadmissibility
i. 212(a)(3)(C) gives Secretary of State authority to bar noncitizens upon
determining that admission would create serious adverse foreign policy
consequences.
 1. Two exceptions:
a. 1) noncitz who is an official of a foreign govt or a
candidate for election in foreign govt seeking entry prior to
election.
b. 2) no exclusion based on past, present, or future beliefs,
statements or associations which would be lawful within
US.(FA style provision)
2. Example: exclusion of Cuban govt officials for “exploitative labor
practices”
3. Courts cannot review this as long as Secretary of State provides a
facially reasonable and bona fide reason for decision.
4. USED SPARINGLY
ii. Steps of Analysis:
1. Does the problem suggest that the person is a terrorist? If so, use
9/11 anti-terrorism laws for exclusion. If not, see if there are policy
grounds
2. Does Secretary of State find reasonable ground to believe entry of
noncitizen would have potentially serious adverse foreign policy
consequences for US? If yes, inadmissible
3. Does one of the two exceptions apply to the noncitizen?
a. Govt official?
b. Exclusion based on beliefs that would be legal in US? (FA)
g. Terrorism Grounds for Inadmissibility
i. See statute page 152-155. This part is complex and may want to review
statute before answering a question.
1. INA 212(a)(3)(B)
ii. Cases:
1. Matter of S-K (BIA 2006)
a. Facts: Burmese native living in Singapore but felt unsafe,
so came to US. Visa denied based on affiliation with a
group that contributed money to a recognized terrorist
group.
b. Issue: what is material support?
c. Holding: Support was material
i. Court gives great deference to Congress (plenary
power) which wrote in INA 212 to ban people who
support terrorist orgs.
d. Concurrence: material support ban is sweeping. Support
here is not actually material, but Congress is clear.
e. NOTE: DHS changes regulation to make material support
bar no longer applicable to Burmese group and SK granted
asylum BUT this case is still precedent.
iii. Steps of Analysis
1. Is the person admissible or inadmissible? Look at the statute to see
if any actions or associations violate.
a. General terrorist activity statutes:
 i. 212(a)(3)(A)(ii) – any noncitz who consular office
or AG knows or has reasonable grounds to believe
seeks to enter US to engage solely, principally or
incidentally in any other unlawful activity is
inadmissible
1. A kind of catch all, but rarely used
ii. 212(a)(3)(B)(i)(II) – any noncitizen who a consular
officer, AG or. Secretary of Homeland Security
knows or has reasonable grounds to believe is
engaged in or likely to engage in any terrorist
activity after entry is inadmissible
1. More commonly used.
b. Look for specific acts that may bar him.
i. Associating with a designated terrorist organization
(212(a)(3)(B)(vi)(I))
ii. Planning prior bombings/soliciting material in
support or funding (212(a)(3)(B)(iv)
iii. SEE the section for more specific acts –
212(a)(3)(B)(iii)
c. NOTE THE CATCH ALL FOR INADMISSIBILITY
i. 221(g) – No visa. . . shall be issued to an alien if (1)
it appears to the consular officer. . . that such alien
is ineligible to receive a visa . . . under section 212
or any other provision of law
1. And courts will give great discretion and
authority to decisions made here.
2. If there is material support, is the mens rea component met? Must
prove by clear and convincing evidence that the person lacked the
mens rea while giving support to a terrorist org.
a. Mens rea for material support: commit an act that the actor
knows or reasonably should have know affords material
support 212(a)(3)(B)(iv)(VI)
3. Does a child/spouse Exception under 212(a)(3)(B)(ii)(II) apply?
a. A person who is the spouse or child of a person
inadmissible if terrorist activity occurred within 5 years is
ALSO inadmissible ((3)(B)(IX)).
b. BUT exception exists if
i. 1) spouse or child did not or should not reasonably
have known about the activity
ii. 2) AG has grounds to believe renounced the activity
4. Look at the waivers – 212(d)(3) waivers
a. 212(d)(3)(A) Allows a waiver of 212(a)(3)(B) terrorist
exclusion grounds, but only available to nonimmigrants.
b. In 212(d)(3)(B) – SoS, DHS, AG can together authorize an
exemption from terrorism related inadmissibility.
 i. Examples of activities exempt in past: material
support under duress, solicitation under duress,
military training under duress, voluntary medical
care, certain applicants with existing immigration
benefits, Iraqi uprisings, certain limited material
support, insignificant material support, afghan
allies, afghan civil servants
ii. Group based exemptions: 10 named organizations
in the Consolidated Appropriations Act of 2008
(CAA); All Burma Students' Democratic Front
(ABSDF); All India Sikh Students Federation-Bittu
Faction (AISSF-Bittu); Certain Burmese groups;
Democratic Movement for the Liberation of the
Eritrean Kunama (DMLEK); Eritrean Liberation
Front (ELF); Ethiopia People's Revolutionary Party
(EPRP); Farabundo Marti National Liberation Front
(FMLN); Iraqi National Congress (INC), Kurdish
Democratic Party (KDP) and Patriotic Union of
Kurdistan (PUK); Kataeb militias; Kosovo
Liberation Army (KLA); Lebanese Forces;
Nationalist Republican Alliance (ARENA); Oromo
Liberation Front (OLF); Tigray People's Liberation
Front (TPLF)
5. Secret Evidence
a. 235(c): allows AG to order removal of arriving noncitizen
on national security basis without a further hearing if AG
acts on basis of confidential information. BUT a person
could make an asylum claim if govt proceeds with 235(c)
motion.
III. Waiver Provisions for Inadmissibility
a. There is a waiver provision, but it is discretionary
b. Provisions:
i. 212(d)(3): establishes that an inadmissible person may petition to AG
1. 212(d)(3)(A)(i) a noncitizen applying for a nonimmigrant visa who
is deemed ineligible under 212(a) (except for the terrorism section)
and has a consular or Secretary of State recommendation may be
granted a waiver by the AG for a temporary noncitizen visa despite
inadmissibility
2. 212(d)(3)(A)(ii): a noncitizen applying for an immigrant visa who
is deemed ineligible under 212(a) but has all appropriate
documents or is granted a waiver may be admitted temporarily as a
nonimmigrant with AG discretion.
ii. 212(d)(5): AG may parole in people by discretion, but it is not considered
admission
iii. 212(d)(11): AG may waive application of admissibility hearing clause if
LPR voluntarily goes abroad not under and order of removal and who is
 otherwise admissible. ALSO may waive inadmissibility hearing for
someone who seeks adjustment of status or admission as an immediate
relative or immigrant after aiding a spouse, parent, son, or daughter in
unlawful entry.
iv. 212(e): J, H, and L visa holders may request a waiver from AG if
departure would impose exceptional hardship on spouse or child OR if
they will face persecution in home country.
v. 212(g): those inadmissible for having a communicable disease may get a
waiver from AG if the spouse or child or adopted child of citizen/LPR,
parent of citizen/LPR, or VAWA self-petitioner
vi. 212(h)*** important:
1. (1)(A): AG may waive inadmissibility for 212(a)(2)(A)(i)(I),
212(a)(2)(B), 212(a)(2)(D), 212(a)(2)(E) where there is only a
single offense of simple possession of 30 grams of marijuana that
occurred 15 years before date of application and it would not be
contrary to national safety/welfare/security, and person is
rehabilitated
2. (1)(B): if person is a spouse, parent, son, daughter of citizen or
LPR and denial of admission would result in extreme hardship for
family.
3. (1)©: VAWA self-petitioner
4. NOTE: NO WAIVER if convicted of murder or torture or
attempt/conspiracy. NO WAIVER if a previously admitted person
is convicted of aggravated felony or has not lawfully resided in US
for 7 years before initiation of removal proceedings
5. NO COURT has jurisdiction to review AG’s decision.
vii. 212(i): AG may waive application of inadmissibility due to
misrepresentation in application IF immigrant is a spouse, son, or daughter
of citizen or LPR and refusal would result in extreme hardship. ALSO if a
VAWA self-petitioner can show extreme hardship to petitioner or parent
or child .
IV. Inadmissibility and Due Process
a. Cases:
i. Yamataya v. Fisher (USSC 1903): teen girl sent to U.S. for school,
deemed inadmissible because she would be a public charge. P challenged
the deportation order because she was not given adequate notice of an
opportunity to be heard, so DPC of 5th amend violated.
1. J. Harlan holding: While Congress may establish regulation for
deportation, the power is not absolute, and an official cannot
deport a person without giving an opportunity to be heard or
answer questions. BUT P was given that opportunity and the
language barrier does not make it unconstitutional. Judgment
affirmed
2. Procedural due process is recognized but does not include
translation or a significant chance to be heard.
 ii. Knauff v. Schaughnessy (USSC 1950): European woman turned away
without a hearing, claimed she was an immediate relative of a soldier
spouse.
1. Issue: may a noncitz be excluded without a hearing upon AG’s
determination that entry is not in interest of US?
2. Holding: She may be prohibited from entering without a hearing if
there is a finding that her admission would be prejudicial to the
public interest.
a. Those seeking entry are not entitled the same due process
as a US citizen. She received enough due process, even
though hearing happened at an overseas consulate.
b. AG has broad plenary power under “national security”
iii. Kwong Hai Chew v. Colding (USSC 1953): LPR who is not let back into
the country after US ship time has more rights than someone who is
merely excludable. He would have a formal hearing if he was arrested in
the U.S. Therefore he is entitled to due process. (first glimpse of allowing
LPRs to come back in without seeking readmission)
iv. Shaughnessy v. Mezei: During red scare, P lives in the U.S. for 25 years,
visits mother for two years, not let back in. He was NOT an LPR, he had
reapplied for entrance. Immigration inspector excluded him from entry
and AG made exclusion permanent. He was forced to stay on Ellis Island.
No other country would take him. He was paroled on bond.
1. SC: when Mezei left his status changed and he became an alien,
it’s up to the AG to decide who can come in; doesn’t matter if no
other country could take him because he technically never entered
the U.S. He was excluded.
2. Chew distinction: Chew gone temporarily on a U.S. vessel – he
was an LPR. But Mezei was not an LPR and government unable
to track what Mezei did.
3. Jackson dissent: someone held in custody for years with no crime
and no trial shouldn’t be denied due process rights just because
he’s an alien
v. Landon v. Plasencia (USSC 1982): P, an LPR, tied to smuggling
operations, gets excluded because IJ found she acted knowingly.
1. Holding: she had the right to a deportation hearing, could invoke
due process rights during exclusion hearing
2. KEY POINT: Unique case because P is an LPR, but is put in an
inadmissibility hearing rather than a deportation hearing. Court
does not challenge this categorization, BUT they insist an LPR
 have 5th amend due process rights that they would get in a
deportation hearing.
b. History:
i. Before 1996
1. Exclusion proceedings (inadmissibility hearings) - would be
triggered by noncitizen entering without proper documentation at
the border
a. if inspection reveals that non-citizen is inadmissible, then
remanded into custody pending hearing in front of IJ
b. Hearings – what they usually were like: Closed to public,
few constitutional rights, great deference given by IJ to
gov’t
c. non-citizen often detained till final judgment made by IJ,
but in some cases could be paroled (if criminal prosecutors
want him/her; for medical reasons, etc.)
d. Non-citizen can apply for relief in the form of: adjust of
status; asylum; waivers
2. Deportation Proceedings
a. Used against non-citizens within U.S. (even for EWI’s)
who have done something for which the INA says they can
be deported
b. For one who is brought to a deportation hearing, burden on
government to show clear and convincingly why person
should be deported. Plus gov’t must bring specific charge.
c. Generally proceedings are open to public
d. Various constitutional protections given in this proceeding
– including challenging government’s request for detention;
appealing decisions to BIA and federal courts; habeas
corpus
e. Forms of relief available to person in deportation
proceedings: voluntary departure; adjustment of status;
waiver; asylum
ii. After 1996
1. IIRAIIRA changed the structure of removal
2. Now exclusion AND deportation fall under a larger umbrella of
removal. No longer a distinction as clear as before. ALL
REMOVAL
3. Process:
a. at border if non-citizen arrives with improper documents,
CBP will ask person a series of questions: Why did you
leave your home country; are you afraid of going home – if
so why; would you be hurt if you were returned home; do
you have any questions or would you like to say something
here? These sorts of things – if CBP determines that there
is a case for asylum, then non-citizen turned over to ICE for
asylum determination
 b. if border patrol and/or ICE does not believe asylum is
warranted, then non-citizen moved into expedited
removal proceeding
i. If an LPR, then given broader protections and will
likely not be returned immediately
ii. If noncitizen is not someone who falls into #1 -
inadmissibility, then will be subject to expedited
removal, with limited administrative appeal right
(e.g., EWIs would be in this category too)
4. Deportation
a. Non citizen being deported has greater rights in this
proceeding compared to a non-citizen who is in
inadmissibility/removal proceeding.
b. Generally an open hearing
c. Appeals that are allowed from IJ include: issues related to
habeas, challenges to remand, and final orders
d. ypes of relief allowed under removal proceedings: Vol
Departure, adjust of status, cancellation, asylum,
withholding, deferral under CAT
V. Secret Evidence and Removal
a. Rules of evidence do not apply to administrative hearings
i. Hearsay and unauthenticated documents are allowed at the discretion of
the judge.
b. Burden of Proof
i. In relief of removal – on the noncitizen
1. 240(c)(2): if a person is a noncitz. Must establish by clear and
convincing evidence that they are an LPR and admissible under
212.
ii. On determining if a person is a noncitizen – on the govt
1. Govt must show that a person is deportable, establishing by clear
and convincing evidence – 240(c)(3)(A)
2. If govt offers no evidence, noncitz’s silence cannot be offered as a
negative inference. BUT if govt does offer evidence and noncitz is
silent, then can make a negative inference.
c. Noncitizens have a right against self-incrimination.
i. Unlawful entry is a deportability ground but also a criminal offense under
275.
d. Note about high standard of proof – will prevent wrongful removal, but also
people who should be removed will not be.
e. Secret Evidence
i. 235(c): allows AG to order removal of arriving noncitizen on national
security grounds (212(a)(3)), without a further hearing if she acts on the
basis of confidential information. A person can still make an asylum claim
if govt proceeds with 235(c) motion.
ii. 240(b)(4)(B) does not allow govt to use undisclosed evidence to deport an
LPR on one of the national security grounds.
 iii. BUT noncitizen can be limited from seeking the evidence if the govt is
using other grounds to remove.
f. Alien Terrorist Removal Court – founded 1996
i. INA 501-507 – creates a secreat court used to go after noncitizens who are
not arriving but are already here. Used to go after an LPR or
nonimmigrant who is in valid immigration status. Used for those
suspected of terrorism.
1. 502(a): chief justice appoints 5 fed district judges
2. 503: court hears cases submitted by AG only
3. 504: public hearing must follow
a. Noncitizen must be given notice, right to be present, right
to a lawyer
4. Secret evidence permitted if national security risk – evaluated in
camera.
ii. As far as we are aware, has not been used yet.
VI. Religion and Inadmissibility
a. Cases:
i. Trump v. Hawaii (USSC 2018):
1. Majority points
a. 1) SC says it is possible to hear the case
b. 2) does INA 202 (non-discrimination in visa issuance)
apply
c. 3) First amend claim – establishment clause
2. Deference:
a. Court says that INA 202 which is about discrimination does
not apply to the determination of admissibility. It only
applies to consulates and visa administrators.
i. Fine distinction between exec and procedure.
b. Finding that a national interest needs securing is enough.
No further explanation needed.
3. Establishment claim
a. Used rational basis
b. Since there were exceptions to the ban, it had nuance.
ii. Kerry v. Din (USSC 2015)
1. Facts: Din was a citizen and her husband was Afghan who had
participated in Taliban govt. Din brought a case for her husband
claiming that she was prevented from living in the US by his
exclusion.
2. Issue: did denial of a visa application of a noncitz husband violate
a US citizen spouse’s Due Process Rights?
3. Holding: (plurality) affirm
a. Scalia, Thomas and Roberts – not about determining if Din
can be married to her spouse. It is a political question, so
deference
b. Kennedy and Alito: due process notice satisfied by consular
office. Denial fine because of terrorism concerns
 4. Dissent: Din’s due process rights violated and notice to husband
was insufficient.

Removal - Deportation
I. Overview:
a. IIRAIIRA set both inadmissibility and deportation to be considered removal.
b. Removal is for LPRs or noncitizens that are within the country.
II. Cases
a. Due Process in Deportation Cases:
i. Padilla v. Kentucky (USSC 2010)
1. Facts: 40 yr LPR, indited on drug charges, lawyer tells him to
plead guilty, won’t affect imm. status (NOT TRUE) Padilla takes
the plea, so the authorities move for deportation. Padilla argues
that he was given improper advice. Had he known that pleading
guilty could result in his removal, he would not have taken it.
2. Majority
a. INA 237(a)(2)(B)(i): any alien who at any time after
admission has been convicted of a violation of . . . any law
or regulation of a State, the United States, or a foreign
country relating to a controlled substance . . . is deportable
b. Mandatory deportation blurs the lines between civil
immigration and criminal law, so Sixth Amendment and
Strickland test apply (1. Performance 2. Prejudice)
c. Policy: "immigration as affiliation" perspective - treatment
of lawful immigrants should depend on ties they have
formed in US. "earned equality"
3. Alito concurrence: Sixth Amendment applies to a noncitizen, but a
defense attorney doesn’t have to be an immigration specialist.
Instead, counsel must refer the alien to an immigration specialist.
Too much to ask of counsel to do what majority expects.
4. Scalia dissent: Sixth Amendment shouldn’t require counsel to
advise on collateral issues unrelated to the prosecution. Legislation
should cover this.
5. Cites Strickland v. Washington: sets up the two prong test for
Ineffective Assistance of Counsel
a. 1) was the lawyer's counsel deficient?
b. 2) did the deficient performance result in prejudice for the
CL? (would CL be found guilty anyway?)
c. This is under the 6th amendment.
ii. In the Matter of Lozzada: a BIA opinion that imported the Strickland test
to immigration proceedings. This is precedent*
1. Distinction is that there is no automatic right to counsel in
immigration. So only when a lawyer is involved.
 iii. DHS v. Thuraissigiam (USSC 2020)
1. apprehended 25 yards AFTER crossing US border, claims asylum,
denied by IC and asylum officer, placed in expedited removal
2. INA 235(b)(1): w/in 100 miles or 2 weeks of entry, it allows BP
to order removal *no appeal, only way to get into court is claim
asylum*
a. Court holds INA 235 applies to anyone in the country.
Period.
3. INA 242(e)(2): expedited removal, only habeas in limited
circumstances: 1. Wrong person (misidentified) or 2. You can
show you have green card, asylum, or refugee
4. Issue: does 242(e)(2) violate the suspension clause? (suspension
clause protects privilege of writ of habeas corpus)
5. Holding: the statute does NOT violate the suspension clause.
iv. Patel v. Garland:
1. Builds on Thuraissigiam by saying these cases cannot even be
heard.
b. Crime Deportation Cases
i. Moncrieffe v. Holder (USSC 2013)
1. Noncitizen convicted for possession of marijuana with intent to
distribute under GA state law. Feds sought to deport saying he
violated the CSA by intending to distribute. Court had to decide if
the GA law fit in aggravated felony of illicit trafficking in a
controlled substance. Court held that it did not constitute an
aggravated felony because it did not involve remuneration and
only involved a small amount of marijuana.
2. Introduces the categorical approach to determining if a state law
fits with a fed law for deportation under aggravated felony
purposes.
3. Says that the govt should have the burden of showing that a crime
is an aggravated felony, not the noncitizen.
4. NOTE: Moncrieffe is still deportable, but he is also now eligible
for discretionary relief because it is not an aggravated felony.
ii. Esquivel-Quintana v. Sessions (USSC 2017)
1. Petitioner violated a CA law criminalizing unlawful sexual
intercourse with a minor more than three years younger than the
perpetrator; he had a consensual relationship at the age of 21 with a
17-year-old
2. Under generic fed law, sexual abuse of a minor in statutory rape
situations is defined to mean the victim is under 16.
3. Mismatch between state law and federal law, so not an aggravated
felony
iii. Mellouli v. Lynch (USSC 2015)
 1. LPR pleaded guilty to a Kansas possession misdemeanor; the
paraphernalia he was charged with possessing was a sock
containing four orange tablets. Mellouli didn’t identify the
substance but acknowledged it was illegal. Sentenced to 359 days
and 12 months’ probation. (hook to get into INA is fed law that
connects; for drug offenses Controlled Substance Act)
2. Conviction does not trigger deportation. The Kansas drug schedule
included at least nine substances not on the federal schedule. Not a
categorical match.
iv. Holder v. Humanitarian Law Project (USSC 2010)
1. An org was training PKK and LTTE in non-violent negotiation.
Both were considered terrorist orgs. Issue was if peaceful support
of terrorist orgs would get Brandenburg-type protection.
2. Federal law prohibiting material support to terrorist organizations
(even if the support is humanitarian or about peaceful resolution of
disputes) does not violate the First Amendment.
3. Statute requires more than mere association; requires support.
4. Plenary power and deference play a big role here.
III. Exclusion (Inadmissibility) v. Deportation
a. Key provisions
i. 237(a))(2): the provision that relates to crime-related grounds for
deportation – “crimes involving moral turpitude, aggravated felonies, drug
crimes, firearms offense, crimes of domestic violence, and several
miscellaneous offenses”
1. Includes aggravated felonies explicitly
ii. 212(h): inadmissibility waiver can apply to 237(a)(2) deportation cases,
according to BIA.
1. Other forms of relief: removal, asylum, adjustment of status,
voluntary departure – but all discretionary
IV. Crimes and Deportation
a. Major grounds (237(a)(2)): crimes of moral turpitude, aggravated felonies, drug
crimes, firearm offenses, cromes of domestic violence, and others.
i. DHS will often charge multiple grounds for the same facts.
b. Moral Turpitude – 237(a)(2)(A)(i)
i. One conviction makes a noncitizen deportable if committed within 5 years
after the date of admission AND sentence is longer than one year may be
imposed for it
1. Date of admission= admission by virtue of which noncitizen is
present in US. (adjustment does not restart the clock) (but
adjustment of status of a noncitz paroled would restart clock)
ii. Conviction of two or more crimes of moral turpitude (out of more than
one incident) make deportable regardless of date of commission or length
of sentence. 237(a)(2)(A)(ii)
iii. No clear definition of moral turpitude, but there are three broad categories
 1. Serious crimes against persons (murder, voluntary manslaughter,
rape, kidnapping, aggravated assault)
2. Serious property crimes (arson, burglary, embezzlement)
3. Crimes with element of fraud
c. Aggravated Felonies – 237(a)(2)(A)(iii) and 101(a)(43)
i. Any noncitizen convicted of an aggravated felony AFTER admission is
deportable
ii. See 101(a)(43) for list of aggravated felonies
iii. Aggravated felons are ineligible for most forms of relief from removal,
even if removal not based on the felony.
1. Barred from life from re-admission (unless given consent under
211(a)(9)(A)(iii)
2. Aggravated felons who are not LPRs are subject to administrative
removal (238(b)) without a hearing (expedited removal)
iv. NOTE: aggravated felonies are NOT explicit basis for inadmissibility,
only for deportation. BUT an aggravated felony may be considered a
crime of moral turpitude and trigger inadmissibility.
1. This matters because if deportable, then not eligible for
discretionary relief.
v. When a specific state or fed crime does not clearly match 101(a)(43), then
there is a process for determining if a crime is an aggravated felony. See
Moncrieffe, Esquvel-Quintana, and Mellouli
1. The Categorical Approach
a. Is a state offense comparable to what is listed in the INA? It
must match element by element.
i. Do not look to facts of a specific case or actual
conduct
ii. Govt has the burden of proving it is comparable.
b. Courts do not like to say they offenses match because it
empowers state officials to work under fed law in
immigration cases. There must be a federal law involved.
d. Drug Offenses – 237(a)(2)(B)
i. A conviction violating any law, including a foreign country, related to
controlled substances makes a person deportable
ii. An addict is also deportable with or without conviction. 327(a)(2)(B)(ii)
iii. Exception
1. Single use of marijuana 30g or less for personal use.
iv. Drug conviction may also trigger other grounds for deportability, such as
aggravated felony under “illicit trafficking in a controlled substance”
v. NOTE: this category is broader than aggravated felonies and MT. you do
not need to be convicted, you just need to be charged.
e. Crimes of Domestic Violence and Child Abuse – 237(a)(2)(E)
i. Key sub provisions: (i)Domestic violence and (ii) violators of protective
orders:
 1. Any alien who at any time after admission is convicted of a crime
of domestic violence, stalking, child abuse, child neglect, or child
abandonment is deportable
2. Any alien who at any time after admission is enjoined under a
protective order issued by a court and whom the court determines
has engaged in conduct that violates the protective order is
deportable.
ii. There is a VAWA waiver for self-defense against an abuser – 237(a)(7)
1. AG may waive application of 237(a)(2)(E)(i) and (ii) if alien has
been battered and is not the primary perpetrator of violence. Must
determine that person is (1) acting in self defense), (2) violated a
protective order, (3) committed, convicted of crime that did not
result in serious injury and there is a connection w being battered.
V. Deportation Waivers
a. VAWA self-defense waiver 237(a)(7)
b. Drug crime for less than 30g marijuana for personal use.
c. WAIVER: 212(h) – meant for admissions but can be used for deportation
i. Available when:
1. LPR departed from and is seeking readmission to US after
committing a deportable offense.
2. LPR deemed to be seeking admission at port of entry under
101(a)(13)(C)
3. Someone who has not left US after committing a crime is eligible
if adjusting status as relief from removal and apply for 212(h)
waiver
a. BUT if in US and NOT adjusting status, then cannot use
waiver. This person would need more general relief from
removal, not this crime-based removability waiver.
ii. Remember this wavier can apply to deportation. BIA extended its use.
Relief From Removal
I. Forms of Relief
a. Private Bills
b. Cancellation of Removal: INA 240(a) – T visa
c. INA 240(b): U visa
d. Adjustment of Status: INA 245
e. Voluntary Departure
f. DACA/DAPA
g. Humanitarian reasons: asylum, withholding, convention against torture
II. Cancellation of Removal – INA 240(a)
a. This takes a noncitizen out of the removal process
b. NO FIXED CRITERIA for granting this. See BIA case Matter of CVT (1998).
c. 240(A)(a) – for LPRs and EWIs
i. AG may cancel removal in the case of an alien who is inadmissible or
deportable if (1) has been an LPR for not less than 5 years, (2) has resided
in US continuously for 7 years after having been admitted on any status
and (3) has not been convicted of any aggravated felony.
ii. If you meet the criteria you MAY get the relief. Discretionary
iii. If you do not meet the criteria, you WILL NOT get the relief
iv. Calculating time period: once you receive the notice to appear, the clock
stops running. Time also stops where noncitizen has committed an offense
that renders them inadmissible under 212(a)(2) or removable under
237(a)(2) or (4).
 v. Applies to those lawfully admitted and EWIs
d. 240(A)(b) – for non-LPRs
i. AG may cancel removal OR adjust status of LPR or alien who is
inadmissible and deportable if (1) has been physically present
continuously for not less than 10 years immediately preceding date of
application, (2) has been a person of good moral character, (3) has not
been convicted of offense under 212(a)(2)/237(a)(2)/237(a)(3) AND (4)
establishes that removal would result in exceptionally and extremely
unusual hardship to alien’s spouse, parent, or child who is a citizen or
LPR
ii. This allows for EWIs, undocumented immigrants, to become LPRs.
iii. Note that it has an additional factor compared to 240(A)(a)
III. Voluntary Departure – INA 240(B)
a. AG may permit an alien to voluntarily depart US at alien’s own expense in lieu of
being subject to proceedings under 240 removal proceedings or prior to the
completion of such proceedings, if not deportable under
237(a)(2)(A)(iii)(convicted of AF) or 237(a)(4)(B)(suspected terrorist).
b. Two types
i. Pre-conclusion VD: ask for it at the beginning of your immigration case.
Must request on or before day of final hearing on the merits. Must agree
you are not legally in the US. Must waive or withdraw any applications to
stay in US. Must show you have intention and money to leave. Must
demonstrate you are a good person.
ii. Post-conclusion VD: available at the final hearing, but more difficult to
receive. Prove you have been in the US at least 1 year before Notice to
Appear. Pay bond of $500. Show you have intention and money to leave.
Prove you have been a good person the last 5 years.
c. Benefits
i. No order of deportation on record. Deportation orders may prevent a
person from returning to US
ii. More ways to lawfully return to US.
d. Drawbacks
i. Leave at own expense
ii. Serious consequences if you do not leave within the designated time
(fines, penalties, record)
iii. Admitting you were in the US unlawfully is not good, even if no record of
deportation
e. Dada v. Mukasey: quid pro quo. Noncitizen avoids detention and time bar;
government does not have to expend resources on deportation.
IV. Adjustment of Status – INA 245
a. Applicant files to be an LPR as means of avoiding removal. Must figure out which
immigrant category fits (immediate family, employment LPR, family-based LPR). Also
you do not have to leave the country.
b. Two pathways for getting adjustment of status
i. 1) File an I-485 form and submit to USCIS and wait for discretionary ruling
ii. 2) Or in removal proceeding (w DOJ) -> make a request for AoS from
immigration judge. If granted, then go do #1
 c. Who is more likely to get AoS in removal proceedings? "winner cases"
i. Fact specific, but often people who were impacted by a mistake or delay on the
part of the govt.
ii. Could also be a person who has family in US who will be adversely affected.
This is more to the sympathy of the judge
iii. Ex: person who inadvertently overstayed student visa etc.
iv. Contrast with "hard-luck" cases – aggravated felony, overstayed, left and entered
unlawfully etc
d. The process:
i. If USCIS denies an AoS application, that decision is generally non-appealable
ii. But applicant can file a motion to reopen and reconsider, which goes to the
Administrative Appeals Office within the USCIS
iii. When possible to appeal an AAO decision to a fed cir ct of appeals, but rarely
entertained.
1. So why have an AAO? For procedural issues like messed up fingerprints
or extended delay.
2. A request to substantively reconsider will be denied.
3. But lawyers will often start with the procedural motion, but if granted,
they will include substantive arguments.
V. Time Bars -
a. Term of art
b. Unlawful presence – period of time when you are in US without being admitted or
paroled or when you are not in a period of stay authorized by Secretary.
i. May be barred for:
1. 3 years if departed after having accrued more than 180 days but
less than 1 year of unlawful presence during a single stay before
removal proceedings begin
2. 10 years if you depart after accruing one year or more
3. Permanently if you reenter or try to reenter US without being
admitted or paroled after having accrued more than one year of
unlawful presence in aggregate during one or more stays in the US
c. Voluntary Departure – allows the noncitizen a certain period of time, not
exceeding 120 days, to leave US.
VI. DACA / DAPA
a. Deferred Action for Childhood Arrivals
i. Created in 2018 to allow young people brought to US unlawfully to
receive temporary reprieve from deportation and to receive permission to
work, study, and obtain driver’s licenses.
ii. Elements:
1. Must be younger than 31 when program began
2. Must prove have lived in US continuously since June 15, 2007
3. Must have arrived in US before age 16.
iii. DACA has been suspended since 2017. SC issued a decision in June 2020
upholding DACA procedurally.
b. Deferred Action for Parental Accountability
i. Established 2014. Govt would not deport undocumented immigrants who
have lived in US since 2010 if they had US citizen or LPR children.
c. DHS v. Regents of CA (USSC 2020)
 i. Court established that they may review DACA under the APA. Then said
the order from Trump was not detailed enough to justify DHS Secretary
deciding to end DACA. Must prove DACA given benefits that INA
prohibits.
ii. For DAPA, DHS must propose legis fixes before rescinding it.
d. In 2021, fed judge in Texas held DACA as uncon. Affirmed by cir court.
i. DACA recipients maintain status but no new applications accepted.
VII. Asylum - INA 208
a. 101a42a – must be refugee under actual persecution or well-founded fear of
persecution on basis of 1 of 5 categories
i. Persecution (or well-founded fear of it) + no protection from petitioner’s
home state + petitioner is in position of receiving international help
ii. Well founded fear is easier to show than other standards of review, but
still at discretion of DHS and IJ
b. Difference bw refugee and asylee
i. Refugee – application from abroad 101(a)(42)(A)
ii. Asylee – application from the border
c. Nonrefoulement: important term in Article 33 of 1951 Convention Relating to
Status of Refugees – related to withholding of removal from those deserving of
asylum
d. 1980 Refugee Act incorporated into INA 208, also includes withholding of
deportation in 241(b)(3)
e. Asylum leads to work visa leads to LPR status leads to citizenship
f. Filing Procedure: See INA 280 and INA 241(b)(3) for petition process.
i. Asylum can be filed before and during immigration court proceedings
ii. MUST FILE within one year of arrival. 209(b)
g. Can be affirmative or defensive:
i. Affirmative:
1. Conducted by USCIS asylum officer
2. Positive outcomes cannot be appealed
3. Negative outcomes can be appealed to IJ then BIA etc
ii. Defensive:
1. Because of expedited removal under 235(b)(1) conducted by DHS
immigration officer
2. Asylum as defense to deportation
3. DHS officer conducts a credible fear interview under
235(B)(1)(B)(v)
a. If credible fear found, goes to IJ for full hearing
b. If not, noncitizen can appeal to IJ, BIA
h. Asylum decisions are unreviewable at the asylum officer stage but ARE
reviewable after at the BIA stage.
i. If you are rejected by the asylum officer, you file the motion to reopen the
case (this is the procedural appeal) and then you can add a substantive
review.
i. Persecution:
i. Categories of actual or well-founded fear in 208: race, religion,
nationality, membership in a particular social group, or political
opinion.
ii. Actual persecution:
1. Must give an example of what happened
iii. Well-founded fear of persecution:
1. Harder to prove. Having a combination of grounds for fear makes a
case stronger.
2. INS v. Cardoza-Fonseca
a. Nicaraguan overstays visitor visa, claims defensive asylum
because of fear of the Sandinistas. SC, Stevens majority:
well-founded fear does not need to be greater than 50%
b. Powell dissent: Chevron deference should apply. If so, you
look to the facts of the case and determine whether relief
should be granted.
iv. Particular Social Group (PSG):
1. This category has been defined by caselaw. There are some
elements (from Matter of MEVG)
a. must be composed of members who share a common
immutable characteristic
b. defined with particularity, and
c. socially distinct within the society in question.
v. Case Law Defining Persecution:
1. INS v. Elias-Zacarias: asking whether a guerrilla organization’s
attempt to coerce a person into performing military service
necessarily constitutes persecution on account of political opinion
a. Silence in the face of a guerrilla org is not enough; you
must show you affirmatively asserted a claim that led you
to have a well-founded fear of persecution.
b. Stevens dissent: saying he can’t even make a claim
deprives him of a statutory right
c. BIA is much more open to accepting imputed political
opinion, distinguishing Elias-Zacarias
vi. Case Law on Defining PSG
1. Matter of Acosta: Salvadoran taxi drivers not a PSG
2. Matter of MEVG: Ocular visibility not required; social distinction
is (MEVG did not satisfy three criteria SEE test above)
3. Romeike v. Holder, 6th Cir. 2013: homeschoolers do not count as a
particular social group
4. Domestic violence: Matter of A-B- saga
a. A Salvadoran woman claimed asylum based on
membership in PSG of women who are unable to leave
 domestic relationships where they have children in
common with their partners
b. BIA compared case to A-R-C-G- and ruled in her favor
c. Sessions certified case to himself, reversed A-B-, overruled
A-R-C-G- Said because abuser was a non-state actor, not
enough for asylum claim. Relies on M-E-V-G- for lack of
particularity too.
d. Garland overturned Sessions’ decision in July
vii. Cases on Gang Violence as PSG
1. Henriquez-Rivas v. Holder, 9th Cir. 2013: can former members of
a gang who turn state’s evidence qualify as PSG?
a. Yes: meet social visibility element
2. Matter of L-E-A-: (withholding)certified to AG, noncitizen not
eligible for relief because father refused to sell drugs out of store,
making noncitizen target for gang violence (kinship ties, not every
nuclear family PSG)
a. Also overturned in Garland vacating of A-B-
j. Bars to asylum (or withholding)
i. INA 208(a)(2)(B): failing to file within one year of arrival
1. 208(a)(2)(D): exceptions only in exceptional circumstances
2. No deadline to file for withholding
ii. INA 208(b)(2)(A)(vi): no asylum for those firmly resettled
iii. INA 208(b)(2)(A)(iii); 241(b)(3)(B)(iii): committed a nonpolitical serious
crimes outside the U.S.
1. INS v. Aguirre-Aguirre: BIA given great deference to define
“serious”
iv. 208(b)(2)(A)(ii); 241(b)(3)(B)(ii): convicted of a particularly serious crime
in the U.S.
1. BIA decides on case-by-case basis
2. Usually means grave or heinous
3. Aggravated felonies also count if sentence is more than 5 years
v. 208(b)(2)(B)(ii): AG can consider additional offenses as PSCs
1. Matter of Y-L-: AG can deport person for drug crimes
vi. Being a persecutor
1. Issue of being a persecutor under duress: currently not a ground to
claim asylum under, but under review.
VIII. Withholding - INA 241b3
a. One may or may not be a refugee to be granted it
b. If probability that persecution will occur, on one of the 5 categories, then
withholding must be granted
i. Same analysis as asylum a higher standard of review.
 c. Standard of review: clear probability, probability
i. If qualify, then mandatory
IX. Convention Against Torture
a. Broader than INA bc no 5 groups. Standard is more likely than not. Burden of
proof on noncitizen
b. If you qualify, then mandatory
c. Determined by IJ, not DHS asylum officers
d. Right to appeal
e. Most noncitizens who get CAT protection are treated the same as those who get
241(b)(3) protection
i. Even those who committed torture can be protected under CAT
f. Most frequent CAT relief is deferral of removal, very limited rights but able to
receive work permit
g. Torture, CAT Art. I:
i. Severe physical or mental pain or suffering
ii. Intentionally inflicted
iii. Purpose of
1. Obtaining information or confession
2. Punishment
3. Intimidation or coercion
4. Any reason based on discrimination
iv. Inflicted by, at instigation of, or with consent or acquiescence of a public
official or other person acting in an official capacity
1. U.S. sees this as mandating that the public official know
beforehand of the torture and breach legal responsibility to
intervene
v. Does not include suffering arising only from, inherent in, or incidental to
lawful sanctions
h. Considered last resort for noncitizens who fail to qualify for asylum or
withholding
i. Can’t get LPR status
X. COMPARISON OF THREE HUMANITARIAN FORMS
a. Standards of review
i. Asylum: well-founded fear
ii. Withholding: clear probability
iii. CAT: more likely than not
iv. In order of strength: Clear probability (75% or higher) -> more likely than
not (51% or higher) -> well-founded fear (lower than that)
b. The higher the burden, the less discretion. For withholding, if you meet the high
burden, you will get the relief. For asylum, the burden is lower and there is more
discretion in granting it.
 c. Gaining 208 asylum status is better than 241(b)(3) status. Can apply for both at
the same time.
i. CAT does not allow LPR status, and sometimes not even work permits, so
a last resort option. Would need to try to get an AG waiver through an
immediate relative.

Judicial Review and Due Process Issues

I. Power of the IJ
a. Role of IJ: INA 240(b)(1): IJ “shall administer oaths, receive evidence,
interrogate, examine, and cross-examine the alien and any witnesses.”
b. Examples of how IJs can influence a case:
i. Matter of M-B-A- (BIA 2002) involving Nigerian woman who had
committed an AF and was claiming CAT protection. Denied but with BIA
dissent, showing preponderance of the evidence is not exact. Judges may
come out differently.
ii. Matter of Kasinga (1996) FGM case, included powerful testimony and
documentation, so she qualified as a member of a PSG. US govt did not
really contest it, maybe bc of policy shift regarding FGM.
iii. Jacinto v. INS (9th Cir.): unfair adjudication by IJ, cutting off and
belittling. 9th Circuit said IJ didn’t act as a neutral arbiter or conduct a
reflective, thoughtful deliberation. Instead, he was an additional
prosecutor and used powers, violating 5th Amendment due process rights.
Cites 240(b)(1)
iv. Serrano-Alberto v. AG (3d Cir 2017): judge interrupted and was
aggressive but still assumption that judge is a fair actor. Petitioner won
because judge denied him of rights.
c. Three prong test for when a due process issue is claimed (Matthew v. Eldridge
USSC 1976):
i. 1) what are the interests at stake for the individual?
ii. 2) what are the interests of the government?
iii. 3) What type of gain will there be to accurate decision making by adding
extra procedural protections?
II. Right to Counsel
a. No right to govt appointed counsel (6th amend), just a privilege.
i. However once a lawyer is appointed, must provide effective assistance
under 5th amend. Lozada right.
b. Aguilera-Enriquez v. INA: held it is not unconstitutional to have noncitizens pay
for their legal representation
 c. Franco-Gonzales v. Holder (DC Central CA): Under the Rehabilitation Act,
noncitizens have the statutory right to counsel at the govt’s expense if they have a
mental illness.
III. Motions to Reopen and Reconsider
a. This is what you do when a person has lost and wants a second chance.
b. The conditions for these motions:
i. Change to an underlying conviction for crime-based removal
ii. Altered circumstances that may impact eligibility for various forms of
relief
iii. New case law that changes removability or eligibility for relief
iv. Prejudicial defects in the immigration proceeding
v. Ineffective Assistance of Counsel
1. Test: was there error by counsel? But for that error would
immigrant be allowed to stay?
c. 240(c)(6) motions to reconsider asks for review of claimed errors in an earlier
appraisal of the law or fact.
i. Highly unlikely IJ will reverse if you accuse them of error. BIA may be
more sympathetic to an error argument, but Fed court is the best bet.
d. 240(c)(7) and (8): motion to reopen to offer previously unavailable material
evidence
i. NOTE: when in a situation where motioning to reopen before VD
deadline. If you accept VD will admit to being unlawful. But if you
challenge, you need new facts to show the opposite. Tough spot.
e. Dada v. Mukasey: Accepting voluntary departure doesn’t mean the noncitizen
sacrifices his rights, so he is still allowed to file a motion to reopen. But, if the
noncitizen files a motion to reopen, he gives up voluntary departure, meaning he
could be deported and time-barred.
i. Dissent: INA does not forbid relinquishment of right to reopen in
exchange for other benefits with BIA discretion
ii. Chevron still adhered to closely
IV. Limiting Judicial Review
a. Can be limited in discretionary relief situations
i. INA 242(a)(2)(B)(i) bars judicial review of any judgment regarding the
granting of relief under the waiver provisions in INA 212(h) and 212(i)
cancellation of removal, voluntary departure and adjustment of status.
ii. INA 242(a)(2)(B)(ii) bars judicial review of any other decision or action
that is specified under Title II of the INA to be in the discretion of the AG
or Secretary of Homeland Security.
iii. BUT 242(a)(2)(D) preserves judicial review over constitutional claims and
questions of law – how narrow or broad?
 1. What about mixed questions of law and fact?
a. Question of fact – reversed on clear error
b. Questions of law – standard of review is de novo
c. Mixed questions? – standard unclear, but this is most cases.
b. Guerrero-Lasparilla v. Barr (USSC 2020): Court holds that fed courts may
review IJ’s denial of motion to reopen as it is a question of mixed law/fact and the
Limited Review Provision (242(a)(2)(D)) can be interpreted to include law
applied to facts. Also, there is a presumption favoring judicial review in Kucana
v. Holder.
c. DHS v. Thurassigiam (USSC 2020)
i. Background cases post 9/11:
1. Rasul v. Bush: Gitmo detainees have a right to petition federal
courts for habeas
2. Hamdi v. Rumsfeld; enemy combatants cannot be held indef.
3. Hamdan v. Rumsfeld: military commissions to try detainees must
be set up by Congress, not the Executive Branch. Geneva
Convention and UCMJ must be followed.
4. Boumediene v. Bush: foreign nationals at Gitmo have habeas.
ii. Main issue: Can government refuse certain noncitizens in expedited
removal hearings from filing a writ of habeas corpus in federal courts?
1. Alito majority: yes. Under 242(e)(2), habeas review limited to
whether petition is an alien, whether petitioner was ordered
removed, and whether petitioner can prove by preponderance of
evidence that alien was admitted for LPR, refugee, etc.
2. Does not violate Suspension Clause - only LPRs get full due
process rights along with citizens
iii. Breyer & Ginsburg concurrence: Suspension Clause not violated but
concerned about slippery slope
iv. Sotomayor & Kagan dissent: clear violation of the Suspension Clause, due
process rights.
v. NOTE: Guantanamo detainees have an evolution of rights, but people in
immigration courts in the US do NOT get habeas rights. Seems like a
contradiction.
vi. Patel expands on this case.

Enforcement
I. Key point – politics is at the center of this because enforcement policy is shaped by
policymakers. There is an ongoing political debate about where to focus resources – at
the border or within the interior. When choices are made, there is inevitable selectivity in
enforcement.
 a. Push and pull factors contribute to this
i. Example: Mexican Bracero Program from 1942-1967 allowed low cost
labor for US businesses but Civil Rights revealed abuses of laborers and it
was dissolved
b. Border vs. Interior
i. Problems with border enforcement
1. Too sweeping, arbitrary, under supervised, inefficient, expensive,
racial dynamics
ii. Problems with interior enforcement
1. Expensive, inefficient, demoralizing for agents, less prioritized
iii. Both need to be mutually enforcing to be effective. Coordinated,
transparent, and constitutional.
1. Crackdowns are often politically motivated
c. Trump Era Enforcement
i. Zero-Tolerance Policy – subject to DOJ prosecution.
ii. Family separations: 2017-summer of 2018
iii. No more ICE coordinated release programs
iv. Border wall
v. National guard and active military as border patrol
vi. Authorized deadly force where “reasonable belief” that harm is imminent.
II. State and Local Enforcement
a. 287(g): fed govt may authorize state and local law enforcement officials to carry
out specified immigration law enforcement functions.
i. Can only use this provision once people are arrested after violating state or
local criminal law
b. 103(a)(10): allows fed govt to authorize state or local law enforcement to perform
immigration duties if an actual or imminent influx of noncitizens who pose a
threat.
c. Case Law:
i. Gonzalez v. City of Peoria (9th Cir 1983): Petitioner of Mexican origin
arrested in AZ by local police. Claimed they were illegally profiled in
violation of 4th 14th amends. Said that state officials could not enforce
immigration issues. Holding: Local authorities CAN intervene in come
crim law because where the purpose is the same there is no conflict. INA
does not preclude local authorities from action even though it is so
pervasive.
ii. Arizona v. US (USSC 2012): Arizona passed a law that strengthened State
enforcement of immigration policy in a variety of ways. The court struck
down all provisions except the ability of law enforcement to ask people to
show their papers (with no enforcement mechanism).
 1. Dissent believed the statute was valid because plenary power
means both federal and state government should be deferred to.
The states have the power to decide to regulate immigration if they
feel the federal government is not doing it right.
iii. Kansas v. Garcia (USSC 2020): (SEE EMPLOYMENT SECTION
BELOW) Garcia had a SSN of another person that he listed on his I-9
form. He was charged under state identity fraud statute. Garcia claims he
cannot be prosecuted under the KS statute because it is preempted by
IRCA.
1. Holding: IRCA is silent on what the state can do, so it is not field
nor conflict preemption. No supremacy clause conflict either.
a. KS and IRCA are compatible, which does not align with
Arizona v. US. (weakens precedent)
2. Dissent: Field preemption applies so State is precluded from
prosecuting unlawful employment.
d. Sanctuary Cities
i. Sanctuary Cities: cities that do not cooperate with federal immigration
enforcement. They do not send information requested by ICE. Cities argue
they are leaving immigration to the fed govt.
1. 1996 – 8 USCA § 1373(a) – state or local entity may not prohibit
or restrict any official from sending, receving INS information
regarding citizenship or immigration status of any individual.
2. Public definitions of Sanctuary Cities:
a. Non-cooperation with fed imm enforcement
b. Concerns that involvement with fed imm enforcement
would violate Con
c. Concerns that involvement will undermine trust in local
police
d. Efforts to integrate noncitizens regardless of immigration
status
ii. How to square being pro-preemption in some cases and not others. Those
who want to say that Arizona was preempted do not want to say that
sanctuary cities are also, and vice versa
1. Maybe the difference is the amount of govt discrimination
iii. Cases
1. INS v. St. Cyr (2001): whether Congress stripped fed courts of
hearing writs of habeas corpus petitions from noncitizens who
were ordered removed. Holding: two laws did not strip fed courts
from hearing claims like P’s
 2. San Francisco v. Trump (9th Cir 2018): Exec order 13768 from
2017 by Trump “placed into jeopardy federal funding for state and
city governments that refused to comply with fed immigration
orders, except law enforcement funding.
a. Holding: Exec cannot tie funding to local and state
immigration enforcement.
b. Part of an intracircuit split!
3. City of LA v. Barr (9th Cir 2019): A different panel of judges from
the previous case held that withholding of DOJ grant money for
community and city police department is okay if those localities do
not cooperate with fed immigration authorities.
a. Part of an intracircuit split!
4. El Cenizo v. Texas (5th Cir 2018): Texas bill punished cities,
counties, and employees for adopting, enforcing, or endorsing a
policy that limited fed immigration enforcement. P city sued Texas
for trying to force them to comply.
a. Court held that the bill also limited speech of a civil servant
overall on immigration, so it was partially stuck down as
unconstitutional.
b. Court held that there was no field or conflict preemption.
They viewed it as cooperation.
c. Parts of bill deemed valid: ICE detainer mandate, local
officials may not materially limit fed imm policy,
commandeering of municipalities to enforce immigration
policy.
5. US v. CA: CA law forbids state/local police from giving certain
forms of assistance to federal officers involving immigration
matters. Trump challenged it as seeking to undermine fed imm
enforcement.
a. Holding: unanimous ruling in favor of CA. Govt cannot use
a state to promote fed immigration policies.
b. Cert was denied.
III. Employment and Enforcement
a. INA 273(A) (from IRCA) two elements:
i. 1 ) Unlawful to hire, recruit, refer for a fee, or continue to employ a
noncitizen knowing that she is an unauthorized alien as to that
employment
ii. 2) Also requires employers to use form I-9 to verify work authorization of
all new hires.
b. Hoffman Plastic Compounds Inc v. NLRB (USSC 2002):
 i. Facts: Hoffman hired Castro who had provided fake documents for hiring.
During a labor strike that Castro participated in, Hoffman retaliated.
Found they were in violation of labor relations act. At the hearing in front
of the judge Castro admitted the documents were false.
ii. Issue: Does the NLRA mandated backpay have to be paid to a noncitizen
employee who entered unlawfully and used fraudulent documents to be
hired? Is there a conflict between the NLRB and IRCA?
iii. Holding: IRCA is frustrated by the NLRA, so backpay does not need to be
paid.
1. NOTE: majority does not give deference to NLRA, the expert in
employment issues, as Chevron would say to do.
2. Majority places the burden on the employee, the dissent places the
burden on the employer.
3. This case questions how much deference to give, and how politics
can matter.
th
IV. 4 Amendment and Enforcement
a. Immigration is civil, but immigration involves searches, seizures, arrests, and
stops, so the 4th amend is still relevant.
i. Note the INA may be more stringent than the 4th amend. 287(a)(1) and (2)
say authorities can interrogate any noncitizen or person believed to be a
noncitizen as to his right to be or remain in the US. And arrest any
noncitizen unlawfully entering, attempting to enter, or already in the US.
b. INS v. Delgado (USSC 1984)
i. Facts: 2 citizens and 2 LPRs sue when law enforcement came to a factory
and asked each person what their status was. Warrant was given but did
not list names. Those who did not give satisfactory answers were arrested.
ii. Issue: Is this an unreasonable seizure of facility and unreasonable seizure
of the people’s liberty?
iii. Holding: No seizure and the questioning by officers did not amount to
intimidation that violated the 4th amend.
iv. Dissent: sweeps were threatening, and arrest clearly required compliance
with 4th amend. No person would have felt free to leave in those
circumstances.
c. After Delgado, there was litigation over what a search is in the immigration
context
i. Reasonable searches
1. If there is a warrant then presumed reasonable
2. But warrantless searches are consistent with 4th amend in several
conditions, including
 a. Officer has probable cause to believe the person has
violated the law
b. Brief stops based on reasonable suspicion (when an officer
is aware of specific, articulable facts which when
considered with objective and reasonable inferences, form a
basis for particularized suspicion)(particularized suspicion
= (1) the assessment must be based on totality of the
circumstances. (2) that assessment must arouse a
reasonable suspicion that the particular person being
stopped has committed or is about to commit a crime.)
c. Searches incident to arrest
d. Searches based on consent freely and voluntarily given
e. Exigent circumstances
f. And search or seizure near the border. (US v. Ramsey
1977)
3. Intrusive searches need reasonable belief that illegal activity is
occurring
4. But someone can be detained at airport on suspicion of drug
smuggling for 10, 12, 14, 16 hours – US v Montoya de Hernandez
(1985)
5. Fixed checkpoints and roving patrols are different. Fixed points
have more latitude to search without probable cause.
d. INA 287(c): Any officer or employee can conduct a search without a warrant of
person seeking admission to US if officer has reasonable cause to suspect that
grounds exist for denial of admission to US.
e. Suppressing Evidence
i. Evidence is admissible in removal proceedings even if the govt obtained it
in violation of the 4th amend (INS v. Lopez- Mendoza: reliance on crim v
civil distinction, no exclusionary rule, plenary power)
ii. Lopez-Rodriguez v. Mukasey (9th cir 2008):
1. Facts: Petitioner falsified birth cert. claims her house was
unlawfully entered upon by INS. It was a warrantless search. Rebut
presumption that uncon.
2. evidence obtained in violation of 4th amendment, done in a
manner in which a fed should have known it violated the
constitution, should be suppressed.
a. Difference: egregious
iii. Perez Cruz v. Barr (9th Cir 2019):
1. Facts: ICE immigration sweep arrested 150-200 people.
 2. Issue: Do ICE warrants to detain, interrogate, arrest undocumented
noncitz without individualized reasonable suspicion satisfy the 4th
amend?
3. Holding: No, ICE must comply with 4th amend. The arrests did not
have enough individualized reasonable suspicion.
f. Miranda does not apply to the removal context
i. If a noncitizen makes a statement during an interrogation, it can be used
against them in a removal hearing. Bc civil
ii. BUT officer must advise alien that any statement made may be used
against him or her in a subsequent proceeding (8 CRF 287.3(c))
iii. Exclusionary rule has been invoked on constitutional grounds
1. Where the government’s behavior violated fundamental fairness
2. Circumstances of interrogation rendered statements involuntary
3. The noncitizen was prejudiced by violation of regulations meant to
aid the noncitizen
g. Ethnicity and 4th Amendment
i. Brignoni-Ponce (USSC 1975): authorities need more than ethnicity alone
to stop someone in a vehicle
ii. U.S. v. Ortiz (USSC 1975): a search during a secondary inspection at a
fixed checkpoint requires probable cause or consent, even if the second
inspection was based on the individual’s appearance when initially
arriving at the first checkpoint
iii. US v. Montero-Camargo (9th Cir 2000): Two border agents stopped two
cars containing people who appeared Latinx. First cars were beyond the 25
mile authorized perimeter. Court holds reasonable suspicion did not exist
based on ethnicity, though making a U turn on seeing border patrol is
reasonable suspicion.
iv. Equal Protection Case: Farm Labor Orgaining Committee v. Ohio State
Highway Patrol (6th Cir 2002): LPR stopped by highway patrol and police
seized green cards. Returned them four days later after officer took a
holiday.
1. Holding: Even if 4th amend is satisfied, 14th amend can be violated
bc police motivated by discriminatory intent. Lack of English
proficiency not enough to justify treatment. Can be a pretext for
racial bias. Also, there was a 4th amend violation bc seizure of
green cards.
V. Detention
a. Provisions
i. INA 235(b)(2): arriving noncitizens who are inadmissible but who are not
placed in expedited removal still shall be detained, unless
 A. Serious medical conditions
B. Pregnant women
C. Certain juveniles
D. Witnesses in government proceedings in the U.S.
E. No public interest in keeping noncitizens detained
ii. NOTE: those arriving have different detention rules than those already here.
iii. INA 236(c): group of noncitizens who must be detained:
A. Noncitz covered by terrorist grounds and those deemed as criminals
B. Multiple crimes of moral turpitude
C. Aggravated felonies
D. Controlled substance convicts, firearm convicts, some single crimes of
MT

E. EXCEPT: witnesses cooperating with govt or if detainee is not a flight

or security risk.
iv. INA 236(A): mandates noncitizens reasonably believed to be involved in
terrorism to be detained for up to 7 days. Then must be released and put into
removal proceedings or file crim charges.
b. Limits on Detention:
i. 241(a): after a final order of removal, removal must take place within 90 days
ii. What if no other country can take the noncitizen?
A. Mezei: indefinite detention ok since they were just seeking admission
(Ellis Island case)
B. Zadvydas v. U.S.: LPR who received a final order of deportation
because of criminal convictions, but had nowhere else to go, could not
be detained indefinitely. Court holds there must be a show-cause
hearing every six months
C. Demore v. Kim: noncitizen regardless of status can be held during
pending proceedings without show-cause hearings, even if the end
date is unknown (INA 236(c))
D. Jennings v. Rodriguez: AG can arrest and detain an alien pending a
decision and permits release on bond
A. Nothing requires periodic bond hearings or consideration of
length of detention (seems to contradict Zadvydas)
REMOVAL PROCESS:

If apprehended within 100 miles of the border or within 2 wees of unlawful entry, -> removal.
(235(b)(1))
Only way to get into court after expedited removal is to make an asylum claim

242(e)(2): expedited removal. Only way to get out is habeas writ for (1) wrong person or (2) can
show lawful status