I. Federal Agencies and Courts: a. Chart on page 268 b. DHS c.

CBP: border protection and screening people and cargo

d. Immigration and Customs Enforcement: Removal and non-citizens

e. USCIS: service side of immigration Management f. DOS: i. Bureau of Consular Affairs: 1. Visa issuance: a. Overseas citizens services b. Passport services c. Review of consular visa decisions: i. New regulation requires supervisors to review a random selection of both positive and negative visa decisions my consular ii. Applicants can submit additional information to overcome visa refusal iii. Agency action is presumptively reviewable in the courts absent any clear signal from Congress iv. Visa petitions are are considered reviewable under the APA after exhausting administrative remedies g. DOL: i. INA requires USCIS to cooperate with DOL for granting visas for labor certification requirements h. Chevron v. NRDC:
i. Under the Clean Air Act, nonattainment States were required to permit "new or modified

major stationary sources." ii. Basically, this case said that the courts need to defer to Administrative Agencies when interpreting regulations.

1. The reasoning is that the Agency understands the technical specifics and possible implications much better than the courts ever could, so their interpretation is going to be more informed.
iii. Steps in Interpreting Agency Statutes, based on the Chevron Doctrine:

1. Is the Congressional intent clear? a. If yes, what is the right answer? b. If Congress' intent is ambiguous, then.... 2. Is the Agency's interpretation permissible? a. If the Statute gives the Agency express delegation, is the interpretation nonarbitrary? b. If the Statute only implicit delegation interpretation to the Agency, is the interpretation reasonable? II. Overview: Federal Power to Regulate Immigration and the Limits & Constitutional Foundation a. Relevant Statutes: Sections 103, 104, 212(f), 236(c) i. 103: AG is explicitly authorized to delegate responsibilities to the INS; has wide discretion ii. 104: Powers and Duties of the Secretary of State iii. 212(f): suspension of entry or imposition by President
iv. 236(c): Apprehension and detention of aliens

b. Exclusion laws enacted: i. Burlingame Treaty--> treaty to accept Chinese immigrant for cheap labor ii. 1882 Suspended immigration of Chinese laborers for 10 years; created optional id certificates iii. 1884 Required Chinese to have id certificates

iv. 1888 Prohibited use of id certificates and new immigration; those already here could stay, but could not leave and get back in
v. 1943 Exclusion of Chinese repealed

vi. Chinese Exclusion Case: Chae Chan Ping (Sovereign Powers):

1. Congress has the power to enact statutes that contradict the Burlingame Treaty by preventing Chinese laborers legally in the US from returning even if they obtained a certificate of identity. To exclude foreigners was an incident of sovereignty, which was a part of those sovereign powers delegated by the Constitution. The federal government had the right to exercise this power at any time when, in the judgment of the government, the interests of the country require it. Conceding that the Scott Act contradicted express stipulations in treaties, Field wrote that a treaty, according to the Constitutions supremacy clause, must be deemed as only the equivalent of a legislative act, to be repealed or modified at the pleasure of Congress. vii. Sources of Immigration Power:
1. Commerce power: Immigration = part of commerce w/ foreign countries 2. Naturalization power: Power to grant citizenship does not necessarily imply power

to restrict immigration, but has been interpreted this way.

3. War power: Allows Congress to regulate presence of enemies in US, but use of

power to exclude others is questionable.

4. Migration and Importation Clause: prohibits Congress from controlling immigration

until 1808 (slavery compromise); implies power to regulate immigration after 1808 (or is it limited to slavery?)
5. Foreign Affairs power: Power to regulate immigration is inherent in regulation of

foreign affairs; but some immigration regulations have contradicted foreign policy objectives (eg Chinese Exclusion cases) and state laws
6. Inherent power: If US govt is one of delegated powers, do inherent powers exist?

Should immigration policy be restricted to states under the 10th Amdmt? CurtissWright (1936) est that foreign affairs powers are inherent in independent, sovereign national govt but Curtiss-Wright has been questioned if power to restrict immigration is extra-constitutional that implies that it is not subject to any constitutional limits, which does not seem consistent w/ our system of govt.
7. Constructional/structural arguments: Rule of necessity (provisions necessary to

implement a document are inherent in the document) is accepted canon; Structure of govt requires making certain inferences in order to preserve govt; Immigration power is obvious didnt need to be stated (controversial); Ability to grant citizenship requires ability to say who can become part of the community.

viii. The Chinese Exclusion Law and Equal Protection:

1. Yick Wo v. Hopkins (1886): a. 14th amendment is not confined to the protection of citizens --> universal in

application (only applies to states, not government so this holding could not have applied to the Chinese Exclusion Acts) b. Statute vested in the board of supervisors the discretion to grant or withhold licenses to operate laundries in wooden buildings i. The statute was ostensibly intended to reduce the risk of fire; however the court also noted that only Chinese laundries were affected by the statute. The court concluded that the statute was intended to reduce Chinese laundries rather than the risk of fire and ruled that the statute was invalid under the Due Process Clause of the Fourteenth Amendment. 2. Removal: a. Expulsion: removal of noncitizens already in the US b. Exclusion: denying entrance
3. Fong Yue Ting v. United States (Removal Case) (1893) (Power of Congress to

Remove non-citizens): a. 1892 Act which authorized deportation of any illegal Chinese alien; required all Chinese laborers in US to get a certificate of residence; and required a white witness to testify to Chinese immigrants residence in US is valid based on US sovereignty and reasonable b/c Chinese do not respect oaths. Issue is a political question. Refusal of citizenship and deportation do not constitute punishment; deportation does not deprive of life, liberty or property. Constitutional protections of jury trial, against unreasonable searches and cruel/unusual punishments do not apply. Right to deport aliens who have not taken steps toward becoming citizens is as absolute as right to prevent entry. Note: like Yick Wo, Ting was lawfully present in the US; requirement was enacted after Tings entry. b. Supreme Court declared Congress had the right to legislate expulsion through executive orders 4. Wong Wing v. United States (1896) (Detention as Punishment):

a. The Chinese Exclusion Act imposed imprisonment at hard labor and deportation to Chinese persons convicted of unlawful entry to or presence in the United States. b. Congress may deport without a jury trial, but imprisonment at hard labor is an infamous offense calling for judicial trial to establish the guilt of the accused. "It is not consistent with our theory of government that the legislature should, after having defined an offense as an infamous crime, find the fact of guilt and adjudge the punishment by one of its own agents." 5. Kleindienst v. Mandal (1972) (Exclusion of Aliens):
a. Action was brought to compel Attorney General Kleindienst to grant a

temporary nonimmigrant visa to a journalist and Marxian theoretician whom the American plaintiff-appellees, Mandel et al., had invited to participate in academic conferences and discussions in the US. The alien had been found ineligible for admission under 212 (a) (28) (D) and (G) (v) of the Immigration and Nationality Act of 1952, barring those who advocate or publish "the economic, international, and governmental doctrines of world communism." b. Here, the people who wanted to listen to Mandel are asserting the 1st amendment claims c. Plenary powers for congress to exclude aliens has long been established i. Executive exercises this for a facially legitimate reason, the court will not look into that discretion nor test it.
d. Doctrine of consular non reviewability:

i. Facially legitimate reason as to why they are not letting you in 6. Harisiades v. Shaughnessy (1952) (Power to Regulate Immigration):
a. The Supreme Court heard an appeal brought by an alien being deported

because of his membership in the Communist Party earlier in his life. The opinion of the Court was that policy toward aliens is a component of foreign relations, and that such matters "are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference." III. Nonimmigrant Immigration

a. Relevant Statutes: Section 101(a)(15)(44)(45)(46); 212(e); 214(b)(e)(NAFTA)(g)(h)(i); skim 217, 221 (issuance of visas); 222(c-g); 248 (change of nonimmigrant status; 291(burden of proof); and 212(d)(3) (immigrant waiver)
i.

INA 214(a): Admission of Non-Immigrants. Conditions for admission determined by AG. Must prove passport; visa; and eligibility for admission each time you re-enter the country and in all respects. the U.S. is assumed to be seeking immigrant status. They must establish at the time of consular application that they are seeking non-immigrant status

ii. INA section 214(b): Presumption of status; written waiver. Everyone attempting to enter

iii. INA section 212(d)(3): Need to prove you are admissible:

b. Non-immigrant: noncitizen who seeks entry to the US for a specific purpose to be accomplished during a temporary stay c. Types of Visas under INA 101 (A)(15) i. Alien has the burden to prove that he has residence in a foreign country which he has no intention of abandoning. d. Visas:

e. International Bricklayers (B1 Visitors Visa):

i. P challenged B1visas because it displaces American Workers. Court agreed because employees in the US were able to do the same job.
f. Matter of Hira(Criteria for B1 eligibility:

i. BIA held that the term business does not include ordinary labor for hire, but is limited to intercourse of a commercial character. The BIA concluded that an alien entering with a B-1 visa to study the US business market, who on behalf of his employer (a Hong Kong based manufacturer of custom made mens clothing), took orders from, and the measurements of, prospective customers in the United States whom he did not solicit; and who then sent the orders, together with the purchase price, to his employer overseas, was engaged in intercourse of a commercial character, and was eligible for B-1 visitor for business classification. The BIA specifically stated that Hiras sojourn in the US was of a temporary character and he clearly intended to continue his foreign residence at the termination of his authorized stay. The profits of Hiras B-1 activities also accrued to the foreign entity. The BIA, however, also clarified that the nature of the business activity itself need not be temporary. The BIA held that for B-1 purposes, the business relationship may be of a

continuing or long standing nature. The only condition in this respect is that each visit be temporary in duration.
g. Nice v. Turnage(Treaty investors): i. Nice was turned down a change of status from B1 visitor business to E2 treaty investor

because he failed to prove that he was the "source of funds" used to make the investment. Requires an applicant for nonimmigrant treaty investor status to show he has invested ... a substantial amount of capital. 1. No clear record of whether he made the investment or his father in law. Nice claimed he only had to show it wasnt a sham, but that would create wholesale evasion of immigration quotas (front for third party investments)
h. Karmali v. USINS (L1 Intra company tranferees):

i. Canadian citizen working for a Canadian company closely held by his brother in law. He started working there in Nov 1976. They have him money to allow him to purchase a motel in Idaho, and he operated it from july 1977-oct 1977. He went to visit Canada, and upon returned was charged for working without an immigrant visa.
1. Thus, the Regional Commissioner determined that Karmali does not qualify as an

intra-company transferee because he entered the United States in July 1977, only eight months after he started working for AF-CHIM in Canada in November 1976, and remained and worked here until AF-CHIM filed the intra-company transferee petition for Karmali in December 1977.9 The appellants contend that the language employed continuously for one year means no more than what it says, and that neither section 101(a)(15)(L) nor its legislative history precludes a prospective intracompany transferee from spending part of the qualifying one-year employment period in the United States.
a. While the Services interpretation of section 101(a)(15)(L) as requiring one

year of continuous employment abroad is plainly consistent with congressional intent, the appellants have not advanced any support for their assertion that part of the one-year employment period can be spent in the United States IV. Employment Based Immigration

a. Relevant Statutes: 245(i); 101(a)(27)(32), 203(b)(1-5); 204(j); 212(a)(5)(A)-(D); 212(p) and 216(A) b. 1990 Act increased the number of employment based spaces an divided it among five more detailed preferences (203(b))1 Priority workers:

i. Priority workers:
1. Extraordinary ability (athletes, etc):

a. The service defines extraordinary ability as a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor b. It requires evidence that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise
c. Muni v. INS (388):

i. Canadian hockey player petitioning for a priority visa. Officer claimed evidence does not show that he is an extraordinary player ii. Ample opportunity to show how he was "extraordinary" iii. Government ignored lots of evidence iv. Should be an ultimate merits determination
2. Outstanding professors and researchers:

a. At least three years of experience

3. Certain multinational execs and managers:

a. Like the L-1 candidate, the alien has to have worked the one year, out of the last three, outside the United States b. There is no requirement that the years employment have been continuous ii. Professionals holding degrees because of their exceptional ability in the sciences, arts, or business while substantially benefiting the welfare of US (labor cert required and the employer must petition) iii. Professional with bachelorette degrees, and skilled and unskilled workers who fulfill where there is a shortage of workers (labor cert required) (employer must petit) iv. Special immigrants (religious workers, government, etc)
v. Investors whose investments will create a minimum of 10 jobs in the in America:

1. Basic amount of investment is 1 million, but AG can allow lesser amount c. Diversity Immigration under 203 (c): i. Threshold requirements:

1. HS education
2. At least two years of experience within 5 years of the application in an occupation

that requires at least two years of training or experience ii. Green care lottery iii. Some countries exempt d. PERM: i. Revamped process for labor certificate ii. employers need to make a good faith recruitment effort to find US workers iii. employer must make prevailing wage determination
e. Labor certification (212) (page 365):

i. Employer must show it has engaged in good-faith efforts to recruit US workers and found none qualified; that it offers the prevailing wage; and that the job reqs are normal for the job and not unduly restrictive. ii. In the Matter of Information Industries: 1. Where certifying officer denied cert b/c job reqs (Engineering BS + Computer Science MS) were unduly restrictive, case is remanded for consideration of what job title is most appropriate and whether job reqs listed are normal for the position. Precedent re interpretation of biz necessity is mixed. a. Business Necessity: 1) Must have reasonable relation to job in context of employers biz; 2) must be essential to perform job in reasonable manner. iii. Reddy v. US:
1. Indian national and civil engineer who was denied a labor cert because there are

enough workers here. Available job market information will not warrant a certification of unavailability of workers in the U.S. U.S. workers are available. Labor market information indicates a surplus of engineers who are willing to relocate. Thus, the reviewing officer's determination is patently insufficient. We have examined the record and can find not a whisper of evidence relating to availability of workers-- mechanical engineers or civil engineers-- in the area of Dallas. Case was remanded.

101(a)(27)- Special Immigrant (p. 31) 101(a)(32) definition of profession (p. 32) 203(b)(1)-(5) Preference allocation for employment-based immigrants (p.65) 212(a)(5)(a) Labor Certification requirements (p. 125) 212(p) Computation of prevailing wage level (p. 169)

Includes definitions and categories of special immigrants i.e. architects, engineers, lawyers, doctors, teachers Aliens w/ Extraordinary Ability (p. 65) National Interest Waiver (p. 67- AG waiver) Skilled Workers (p. 68) Certification requirements for skilled and unskilled workers i.e. No sufficient workers in US who can do same job Breaks it down for various types of employment

216(a) Conditional permanent resident Goes through requirement status for certain alien spouses and children (p. 217) f. V. Family Based Immigration
a. Relevant Statutes: 101(a)(35) and (39); 101(b)(1) and (2); 201; 202 (b),(c), and (d); 203(c) through

(h); 204-206; 213A, and 216; Child Protection Status Act; Form 1-130 b. Under the INA, immediate relatives consist of the spouses and the unmarried minor children of U.S. citizens, and the parents of U.S. citizens who are at least 21 years old i. However, some family members of an immediate relatives may themselves be entitled to independent immediate relative status, like stepchildren ii. Spouse: 1. Validity of marriage 2. Continuing marriage iii. Child of US citizen: 1. Unmarried under 21 c. Family-sponsored preference immigrants consist of: i. Unmarried sons and daughters of U.S. citizens (FS-1)

ii. Spouses and unmarried children of permanent resident aliens (FS-2) iii. Married sons and daughters of U.S. citizens (FS-3) iv. Brothers and sisters of U.S. adult citizens (FS-4) d. Fiallo v. Bell: i. Fiallo (P) and the other plaintiffs in this case are three sets of unmarried biological fathers and their illegitimate children who sought, either as an alien father or an alien child, a special immigration preference by virtue of a relationship to a citizen or permanent resident alien child or parent. Each plaintiff was denied special immigration preference. ii. It is not for the courts to probe whether Congress has decided not to extend preferential status to illegitimate children due to a perceived absence of close family ties, or due to problems of proof in paternity determinations. No factors exist in the instant case warranting a more searching judicial scrutiny than has generally been applied in other immigration cases. iii. However, Congress later responded in 1986 stating that fathers illegit children are allowed to petition if they have a bona fide relationship with the child. e. Family reunification: i. Excludes proxy marriages
ii. Adams v. Howerton (Homosexual Marriage): 1. Decision held that the term "spouse" refers to an opposite sex partner for the

purposes of immigration law and that this definition meets rational basis review. 2. Two prong test: a. Whether the marriage is valid under state law? b. Whether the state approved marriage qualifies under 201(b)? iii. Dabaghian v. Civiletti (Validity of Marriage): 1. Dabaghian was lawfully admitted. Got married a short time later and adjusted his status to LPR. Then got divorced a few months later. A year after that, he married an Iranian citizen. The INS then withdrew his LPR status. Court rejected this, and found that even though the previous marriage was dead, it was not a sham/fraud and valid under 245

2. Only question is whether it was legitimate at its inception, not when the residency was granted iv. Sham Marriages and Ethical Responsibilities (339): 1. Under Rule 1.6 of the Model Rules of Professional Conduct (ABA 1983) states in part: A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation with certain narrow exceptions. Applies to whats said in confidence and info related to the representation, whatever its source. 2. However Rule 1.2(d) the Model Rules prohibited a lawyer from assisting a client in conduct that the lawyer knows or reasonably should know is criminal or fraudulent. v. Young v. Reno (adoption): 1. Whether an adoptive daughter can apply for her natural siblings: a. No, because the relationship was severed. Looked at chevrons two prong test: i. Congress has never looked at the issue ii. Intent to preclude natural parent vi. Conditional residence
vii. Violence Against Womens Act pg. 346-348

Certain grounds of inadmissibility and deportability can be waived or overcome if the petitioner shows that the violation had a connection to the battery or cruelty. T & U categories established to help protect victims of gender-related abuse. Under VAWA spouses, parents, and children subject to extreme cruelty or are battered may file their own petitions for permanent residence. A self petition may be filed by: o Battered spouse if she is of good moral character, she entered the marriage in good faith, and resided in the US with an LPR spouse, and the spouse or child was subject to a battering or extreme mental cruelty during the marriage. o Battered children up to age 25 of a citizen or LPR o Elderly abuse victims of a U.S. Citizen or LPR viii. A VAWA self-petitioner who has an approved I-360 or who has a current priority date may file an application to adjust status on Form I-485

1. Grounds of inadmissibility 2. A VAWA self-petitioner may be exempt from the three-year and ten-year bars if she demonstrates a substantial connection between the abuse she suffered and her unlawful presence

ix. Child status protection act 101(a)(35) Definition of spouse, wife and husband 101(a)(39) Definition of unmarried 101(b)(1) 101(b)(2) 201 Definition of child Definition of parent, father or mother Worldwide level of immigration; numerical limitations

202(b)-(d) Chargeabilitydetermining what country you are from; relevant for caps on immigration for certain countries 203(c)-(h) Diversity Immigrants 204 205 206 213(A) 216 Procedure for Getting Immigrant Status Revocation of approval of Petitions Unused Immigrant Visas Requirements for sponsors affidavit of support Conditional permanent resident statuts for certain alien spouses and sons and daughters

VI.

Inadmissible and Deportable Aliens: Grounds of Inadmissibility and Deportation

a. Relevant statutes:
i. Grounds of Inadmissibility: 212(a)(1)-(10); 245(a); 101(a)(13); former 101(a)(13)

ii. Grounds of Deportability: 237(a)(1)-(6); 101(a)(43) and (48)(A)

b. Inadmissibility i. Applies to aliens who have not been admitted into the US
ii. Health related inadmissibility:

1. Have a communicable disease of public health significance 2. Have failed to receive certain vaccinations 3. Have a physical or mental disorder that may pose a threat to others 4. Are drug abusers or addicts 5. There are waivers c. Deportability: i. Section 237 ii. Non-citizens are deportable if they: 1. Inadmissible at the time of entry or guilty of subsequent violations of status
2. Convicted of criminal offenses

3. Failed to register or falsified documents 4. Engaged in activity that endangered national security or posed adverse foreign policy consequences 5. Became a public charge 6. Voted unlawfully d. Criminal grounds: 1. CIMTs: moral turpitude has been defined as an act of baseness, vileness, or depravity, or an offense that is intrinsically and morally wrong a. Goldshtien: i. Israel citizen married to a US citizen.

ii. Pleaded guilty to one count of conspiracy for violating federal laws and two counts of structuring financial transactions with domestive to avoid currency reports 1. Sentenced to 40-month prison term 2. Deportable under 237 iii. Deportable proceedings because he committed a crime a moral turpitude within 5 years of admission and sentenced to more than a year of prison iv. Is evil intent an essential element of the crime? 1. Intent to defraud the government is not an essential element in the statute. 2. Conviction: The term conviction means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the aliens liberty to be imposed 3. An illegal trafficker is inadmissible even if there has been no criminal charge or conviction for the offense, as long as the consular or immigration officer knows or has reason to believe that he or she is engaged in such illegal traffic 4. Aliens are inadmissible if convicted of two or more offenses 5. The statute requires the alien to be actually sentenced to confinement for at least five years 6. Waivers: a. Pardon b. Expunction sets aside a conviction but has no effect on immigration consequences. c. Juvenile offenders i. The law permits the admission of an alien who committed a single crime involving moral turpitude while under the age of 18, provided

more than five years have elapsed since the date the crime was committed ii. A dual offender is barred from admission but the limitation reaches only crimes d. Petty offense exception: i. The statute provides that the bar does not apply to a single crime involving moral turpitude if the maximum penalty possible for the crime of which the alien was convicted did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months e. Waiver under INA 212 (h): i. First: 1. he is inadmissible only for engaging in prostitution or procuring or attempting to procure prostitution 2. his admission would not be contrary to the national welfare, safety or security of the United States; and 3. he has been rehabilitated ii. Second: the alien must be the spouse, parent, son or daughter of a U.S. citizen or of an alien lawfully admitted for permanent residence iii. The statue specifically precludes several categories of aliens from eligibility for its benefits. These are: 1. aliens who have been convicted of acts that constitute murder or criminal acts involving torture, or an attempt or conspiracy to commit murder or a criminal act involving torture 2. lawful permanent residents if they have been convicted of an aggravated felony, or have not lawfully resided continuously in the U.S. for at least sever years before the initiation of removal proceedings against them ii. Aggravated Felonies: 1. Illeligible for most forms of relief 2. Lopez v. Gonzales: a. Jose Lopez, a Mexican national living in South Dakota, was convicted of aiding and abetting the possession of cocaine. The crime is a felony under South Dakota law, but only a misdemeanor under the federal Controlled Substances Act.

b. Does a drug crime constitute an "aggravated felony" under the Immigration

and Naturalization Act if the crime is a felony under state law but only a misdemeanor under federal law? c. No. The Court ruled 8-1 that a drug crime must be a felony under the federal Controlled Substances Act (CSA) in order to count as an aggravated felony for purposes of the INA. iii. Plea bargains: 1. Ineffective assistance of counsel : a. The defense counsel knew or should have known that the defendant was a non-citizen b. Counsel did not advise of removal consequences c. Prejudice resulted VII. Removal Proceedings and Procedure

a. Relevant statutes: 239, 240, 240(c)(3)(A)

b. NTA: c. Master Calendar Hearing d. No right to counsel:

i. Aguilera v. INS:

1. The court dismissed petitioner's claim because there was no due process violation when his request for an attorney was denied in a deportation hearing because the hearing was predicated on his guilty plea for possession of narcotics. 2. Test: fundamental fairness is the touchstone of due process 3. Whether an indigent alien has a right to counsel for deportation proceedings? a. In this case, counsel would have made no difference so he cannot attack constitutional lack of e. Jacinto v. INS (role of immigration judge):
i. Asylum case: Decision reversed for denial of due process rights. Petitioner did not receive a

full and fair hearing because judges failed to explain hearing procedures and she was denied an opportunity to present evidence. Petitioner suffered prejudice because she did not understand the implications of her negative responses regarding voluntarily departing. f. Evidentiary Rules:

i. Former rules of evidence do not apply in immigration proceedings

ii. Government has the burden to show alienage with clear and convincing evidence (240(c)(3)

(A)): 1. Woodby v. INS (governments burden of proof: clean and convincing evidence): a. The court set aside the judgment of each court of appeals and remanded. It held that the degree of proof required in deportation proceedings was not specified by statute and that because the standard for denaturalization and expatriation proceedings was one of clear and convincing evidence, the potentially greater immediate hardship of deportation required that it likewise be supported by clear, unequivocal, and convincing evidence. iii. Alien must present with clear and convincing evidence that he is here lawfully iv. 5th amendment right to refuse to answer anything that can be held against him in a criminal proceeding v. Felzcerek v. INS: 1. The court denied petitioner's request for voluntary departure and held that the evidence was properly admitted at the hearing because it was probative and fundamentally fair. Although the federal rules of evidence did not apply in deportation proceedings, the court noted that the Form I-213 and DMV application were records made by public officials in the ordinary course of their duties. 2. Petitioner alien's request for review of his deportation hearing was denied because documents were properly admitted into evidence at petitioner's deportation hearing. Petitioner's requests that the court consider the merits of his motion to reopen and that his deportation be stayed pending consideration of the motion were denied because the court lacked jurisdiction. g. In Absentia Orders (1072): i. INS 240 (b) (5): if you fail to show, you must show: 1. Lack of notice 2. In custody of state or federal facility 3. Exception circumstances

VIII. Remedies: Relief from Removal and Motion Practice

a. Relevant statutes: 212(i) and (h); 240(c)(7) 240(A), 240(B), 244, 245

b. Matter of Cervantes-Gonzalez (212(i) waiver):

i. Mexican national named Cervantes-Gonzalez, was convicted of possessing a false

identification document, namely, a counterfeit Texas birth certificate. IJ found the respondent inadmissible under INA section 212(a)(6)(C)(I), which provides that "any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the U.S. or other benefits provided under this Act is inadmissible." The respondent then filed a waiver of inadmissibility for fraud or misrepresentation under INA section 212(i). In adjudicating the waiver application, the IJ found that the respondent failed to establish extreme hardship to his spouse as required by INA section 212(i) and denied the respondents requests for a waiver of inadmissibility and adjustment of status. ii. The BIA set out a list of factors to be considered in determining whether an alien has established extreme hardship pursuant to INA section 212(i). It noted that the factors include, but are not limited to, the following: 1. the presence of lawful permanent resident or U.S. citizen family ties to this country; 2. the qualifying relatives family ties outside the U.S.;

3. the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relatives ties to such countries; 4. the financial impact of departure from this country;

5. and, finally, significant conditions of health, particularly when tied to the unavailability of suitable medical care in the country to which the qualifying relative would relocate. iii. Held that wide knew of his situation and spoke Spanish, so moving to Mexico would not qualify as an extreme hardship c. Cancellation of Removal i. Permanent Residents under 240(A)(a) AG may cancel if: 1. In the US continuously for 7 years and a LPR for five years a. NTA stops the clock

b. So does a crime under 212(a)(2) or 237 (a)(2)and (4) ii. Non-Permanent Residents (240): 1. Continuous physical presence: a. Ten years i. Same stop rules as above 2. Good moral character: a. No aggravated felony 3. Exceptional and extreme hardship: a. On the aliens spouse, parent, or child who is a citizen or a LPR 4. Matter of Gonzalez Recinas: a. Adult respondent is mother of four U.S. citizen children (ages 5 to 12), and the two minor respondents (ages 15 and 16). Her parents are LPRs as are her five siblings. She is divorced and has no immediate family in Mexico. b. Factors: heavy financial & familial burden on the adult respondent, lack of support from the children's father, the U.S. citizen children's unfamiliarity w/ the Spanish language, lawful resident in the country of all of the respondent's immediate family, lack of family in Mexico d. Cancellation of Removal for Battered Spouses or Children: i. VAWA (240A(b)(2)): 1. Standard for hardship is extreme 2. Good Moral Character a. No precluded by conviction that the AG finds connected to the battering b. Continuous Physical Presence of three years and an exception to the stop time rule (time doesnt have to stop at NTA) ii. Hernandez v. Ashcroft:

1. The court held that the BIA erred in denying the application for suspension of deportation, concluding that extreme cruelty must be evaluated in the context of domestic violence. In this context, her husband's actions subjected her to extreme cruelty. It further concluded that the BIA erred in denying adjustment of status. The visa scheme and other regulations established that she only had to show that a visa number was immediately available to her at the time she filed her application, and she met this burden. e. Numerical limits on Cancellation i. Waivers:
1. 212(h): discretionary waiver for noncitizens who satisfy certain prereqs.

a. Po Shing v. INS (Equal Protections): i. Petitioner, a lawful immigrant, pleaded guilty to attempted manslaughter for which he was sentenced to five years in prison. Several months after conviction, the Immigration and Naturalization Service charged petitioner with deportability. ii. Petitioner conceded deportability but sought to apply for a waiver of excludability under 212(h) iii. Board previously applied a waiver to deportation, the Board rationalized that it was only applicable in cases where the deportee had been able to file an adjustment of status or where the deportee had departed and returned subsequent to his conviction. Petitioner appealed, arguing that this distinction violated his equal protection rights. The court agreed. 2. 212(c): a. INS v. St. Cyr: i. In a 5-4 opinion delivered by Justice John Paul Stevens, the Court held that habeas jurisdiction was not repealed by AEDPA and IIRIRA. Additionally, the Court held that "[section 212(c)] relief remains available for aliens, like [Enrico St. Cyr], whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for [section 212(c)] relief at the time of their plea under the law then in effect." Justice Stevens wrote that "[w]e find nothing in IIRIRA unmistakably indicating that

Congress considered the question whether to apply its repeal of [section 212(c)] retroactively to such aliens." ii. Registry under 249 1. Entered before Jan 1972 iii. Private Bills f. Relief Short of Permanent Resident Status:
i. Voluntary Departure (240B):

1. Two kinds: a. Statutory eligibility b. Separate exercise of discretion 2. If you do not leave in time, then there is a potential fine, ten years of ineligibility to VD, cancellation of removal, registry, or adjustment of status.
3. Before removal proceedings or the completion of (240(B)(a)):

a. DHS or IJ(if during proceedings) b. 120 days to departure c. Show means to leave d. If during the hearing: i. Concede removability ii. No additional relief may be granted
4. At the conclusion of the proceedings (240(B)(b): a. Must post a bond (no less that $500)

b. 60 days to depart c. Be present in the US for one year before the NTA d. Good moral character for five years

e. Clear and convincing evidence that he has the means and intention to leave g. Ineffective counsel: i. Matter of Lozado: 1. Matter of Lozada sets out the requirements for filing a motion to reopen based on ineffective assistance. a. The motion must be supported by an affidavit by the respondent attesting to the relevant facts. The affidavit should include a statement of the agreement between the respondent and the attorney with respect to the representation. b. Before the respondent files the motion, he or she must inform counsel of the allegations and allow counsel the opportunity to respond. Any response should be included with the motion.

c. The motion should reflect whether a complaint has been filed with appropriate disciplinary authorities regarding such representation, and if not, why not.
ii. In re Compean (Right to competent legal representation in deportation proceedings): 1. In Compean, the introduction of a new procedural framework depended in part on

Attorney General Mukasey's conclusion that there is no constitutional right to effective assistance of counsel in removal proceedings.

iii. Matter of Arguelles: 1. Responded had opted for VD five times, and re-enter five times without inspection a. Denied VD h. Removal based on Criminal Conviction: i. Proceedings during incarceration: IX. Lenon

X. Refugees and Political Asylum:

a. Relevant Statutes: 101(a)(42), 207, 208, 209, 212(d)(5)(B), 235(b)(1)

b. Applications: i. Affirmative ii. Defensive application: if removal proceedings are underway c. Can receive work authorization d. Definition of a refugee: i. Alien is eligible if he or she qualifies as a refugee. ii. Any person who is outside any country of such persons nationality or in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion e. Well founded fear: i. Subjective and Objective: 1. Subjective: fear must be genuine 2. Objective: reasonable person would fear it: a. The applicant possesses a belief or characteristic a persecutor seeks to overcome in others by means of punishment of some sort; b. The persecutor is already aware, or could be aware, that the applicant possesses this belief or characteristic; c. The persecutor has the capability of punishing the applicant; d. The persecutor has the inclination to punish the applicant f. Persecution:
i. a threat to life or freedom on account of race, religion, nationality, political opinion or

membership of a particular social group, as well as serious violations of human rights: 1. killing other than as lawful punishment upon conviction in accordance with due process; genocide; slavery; torture and other, cruel, inhuman or degrading treatment; and prolonged detention without due process

ii. Grounds:
1. Race: The category of race includes all ethnic groups commonly referred to as races

Being a member of a particular race that suffers from discrimination or persecution will not, by itself, usually suffice to establish eligibility for asylum
2. Religion: Persecution on account of religion may be on the basis of observance of

religious practices, or on the basis of religious heritage, in which case it may overlap with social group persecution. Mere membership in a religious group is not usually enough to form the basis of an asylum claim, although there may be special circumstances where it suffices
3. Nationality: Nationality may include both citizenship and common ethnic and

linguistic characteristics
4. Membership in a particular group: A particular social group is made up of people of

similar background, habits or social status. Whatever the common characteristic that defines the group, it must e one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences: a. Whether the class of people identified is cognizable as a particular social group b. Whether the applicant has established that he or she is a member of the group c. Whether the social group has in fact been targeted for persecution on account of the characteristics of the group members d. Whether such special circumstances are present to warrant regarding mere membership in that social group as constituting per se eligibility for asylum e. Matter of H: i. Somali refugee. His clan was having issues--> his father and brother were killed; others and him beaten; etc. Court said he was a member of an unidentifiable group. Met his burden and set out a persuasive argument for persecution.
5. Political Opinion: Political opinion as the basis for eligibility for asylum should be

interpreted broadly, to include opinions about a government, its officials, or its policies. An applicant may also be eligible for asylum if he or she fears persecution

based on a political opinion imputed to him or her as distinguished from an opinion that he or she actually holds.
a. INS v. Elias: A guerrilla organization's attempt to coerce a person into

performing military service does not necessarily constitute "persecution on account of . . . political opinion." Moreover, persecution on account of political opinion is not established by the fact that the coercing guerrillas had "political" motives. In order to satisfy 101(a)(42), the persecution must be on account of the victim's political opinion, not the persecutor's. iii. Gender Related Claims:
1. Matter of Kasinga: 19 yr old Toga women fear FGM and it was because she was

part of a group (tribe or women). Set precedent that applicants can now seek asylum based on gender based persecution iv. Past persecution: Even if it has been established that there is not a well-founded fear of persecution, an applicant can still be granted asylum if he demonstrates compelling reasons for being unwilling to return arising out of the severity of the past persecution v. Mandatory Denials if Asylum: 1. The applicant must demonstrate, by clear and convincing evidence, that the application for asylum has been filed within one year after the date of his arrival in the US 2. For asylum applications filed on or after April 1. 1997, an applicant will not be granted asylum if the following conditions apply: a. If he ordered, incited, assisted, or otherwise participated in the persecution of any person based on the enumerated categories b. If he, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States c. If there are serious reasons for believing that the alien has committed a serious nonpolitical crime outside the United States before arriving in the U.S. d. If there are reasonable grounds for regarding the alien as a danger to the security of the United States

e. If the applicant is inadmissible or removable on certain grounds relating to terrorist activity, or f. If the applicant was firmly resettled in another country before coming to the U.S.
g. Matter of Carbelle: Cuban asylum denied because of aggravated felony

vi. Withholding v. Asylum

1. Asylum has a one year bar, and a road to LPR and can bring family:

2. First, in order to be eligible for withholding of removal, an applicant has the burden of establishing that it is more likely than not that he would be persecuted 3. This requires a showing of a clear probability of persecution, which is a heavier burden than establishing a well-founded fear of persecution for eligibility for asylum 4. Entitled to work authorization 5. Mandatory denial of Withholding: a. Aliens who ordered, incited, assisted, or otherwise participated in the persecution of individuals based on race, religion b. Aliens who having been convicted by a final judgment of a particularly serious crime, is a danger to the community of the United States c. Aliens for whom there are serious reasons to believe that committed a serious nonpolitical crime outside the United States before the alien arrived in the United States d. Aliens for whom there are reasonable grounds to believe that he is a danger to the security of the United States 6. INS v. Cardozo Fonseca: a. The Court rejected the Governments contention that the Section:243 more likely than not standard applied governed applications for asylum under Section:208. Congress used the broader language of refugee under Section:208 than it used to describe the class of aliens with a right to withholding of deportation under Section:243. The legislative history of the

Act and the text of the Act itself made it clear that Congress intended for two separate standards to apply to Section:243 and Section:208. vii. CAT: 1. No state party shall expel, return, or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture 2. Torture is defined as; any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third party information or confession 3. Torture does not include pain or suffering relating to lawful sanctions, including the death penalty 4. Matter of Y-L (951) (Government involvement) 5. Matter of MBA (957) (burden of proof)
viii. TPS: Temporary refuge in the United States, called temporary protected status may be

granted to nationals of countries that are experiencing ongoing armed conflict, severe natural disaster or other extraordinary temporary circumstances making it unsafe for them to return safely XI. Immigration Detention and Enforcement Matters:

a. Relevant Statutes: 235, 235A, 236, 236, 237, and 238

b. Shaughnessy v. US Mezei (Exclusion without a Hearing/Temporary Admission):

i. Mezei was a legal permanent resident for 25 yrs, and went to Romania to visit his dying mother. When he returned, he was temporarily excluded under the Passport Bill and then permanently excluded from the country without a hearing and based on secret evidence. M was considered a national security threat because he went behind the "iron curtain" for nineteen months. Detained in ellis island indefinitely because no other country wanted him either. 1. He applied for a writ of habeus corpus and was denied on the grounds that LPRS who have left the country for a significant amount of time does not have due process rights. He was treated as an arriving lien rather than deported one--> exclusionary proceedings.

2. Due process Rights: a. Right to know charge b. Right to be confronted by accuser c. To cross examine informers d. And to produce evidence in ones behalf 3. Has a right to procedural due process. c. Expedited Removal (235(b)(1)): i. See 235b1, 212a6C, 7 - Applies to aliens who arrive w/ no, fraudulent, or invalid documents; so far, only applied to arriving aliens, not EWIs. 1. Makes alien inadmissible for 5 years (212a9i) 2. Alien may be allowed to w/draw application for admission; many do 3. Unless they indicate fear of persecution or intent to apply for asylum under 208 a. Referral to asylum officer for credible fear interview b. If fear is credible, alien is detained for further consideration; release on parole possible (1997 80% of referrals had credible fear) c. If fear is found not credible, alien can request IJ special procedure review; must take place w/in 7 days; alien is detained pending review; alien may consult w/ attorney or get other assistance, at no expense to govt, w/o causing unreasonable delay. d. Debate re how much info should be provided to aliens subject to expedited removal re asylum i. 235b1Biv requires AG to provide information concerning the asylum interview to aliens who may be eligible. ii. INS says that providing all aliens subject to expedited removal w/ info re asylum would be inefficient (cause delays to millions of people for whom asylum is not relevant) and would encourage fraudulent claims of asylum; thus, INS does not use the word asylum in informing aliens

iii. Others argue that the potential risk of rejecting genuine refugees outweighs INS concerns; that INS could find less costly, more efficient ways of informing the masses. iv. Note that aliens who have been coached will not need prompting to claim asylum, while genuine refugees may be disadvantaged by INS refusal to mention asylum by name v. Other critiques concern conditions in which aliens are held, posture of credible fear interview, and lack of good interpreters. vi. 1997 Commission on Immigration Reform expressed reservations re expedited removal said asylum applicants could be handled through regular removal procedures w/ more protection. ii. Judicial Review of Expedited Removal: 1. Judicial review limited under 235b1; a. Only available in habeas corpus proceedings and on certain issues b. Court can only order new removal hearing (see 242e4, not decide the merits c. Challenges re the validity of the system can be brought only in DC District Court; no class actions; and review is still limited to certain questions iii. Expedited Removal of Aliens in the US (871) 1. 235b1Aiii allows AG to apply expedited removal to EWIs who have not proven 2 years of residence 2. Not reviewable d. Enforcement and Removal: i. Fourth amendment:
1. A PO may make an arrest only based on probably cause. But brief stops are

permissible if there is reasonable suspicion. ii. Enforcement and Ethnicity:

1. Considerable weight given to officers about reasonable suspicion and probable

cause

iii. Perspectives on Profiling: 1. Generally, fourth amendment exclusionary rules dont generally apply in deportation proceedings (INS v. Lopez) 2. Unless its an egregious violation, and racial profiling is iv. Immigration law as anti-terrorism: 1. NSEERS: call in registration for certain males in 25 countries v. Limits on Detention: 1. Zadvydas v. Davis: a. Case decided by the SC that held that indefinite detention of unremovable admitted immigrants (immigrants who have been ordered deported but have no where to go) under the plenary power doctrine was subject to Constitutional limitations. To justify detention of immigrants for a period longer than six months, the government was required to show removal in the foreseeable future or special circumstances (like terrorism charges) 2. Demore v. Kim: a. Kim, a lawful permanent resident alien, was convicted in state court of petty theft with priors, and sentenced to three years in prison. After his release from prison, Kim was detained by the Immigration and Naturalization Service (INS) on the grounds that his conviction was an aggravated felony and thus made Kim removable under section 1227(a) of the Immigration and Naturalization Act (INA). Kim filed a petition for a writ of habeas corpus in federal district court, arguing that the no-bail provision of section 1226(a) violates the Due Process Clause of the Fifth Amendment. The district court held section 1226(a) unconstitutional on its face and ordered the INS to hold a bail hearing for Kim. The court of appeals affirmed on different grounds; it held that section 1226(a) was not unconstitutional on its face but that it was unconstitutional as applied to lawful permanent resident aliens. b. Whether respondent's mandatory detention under section 1226(c) of the INA violates the Due Process Clause of the Fifth Amendment, where respondent was convicted of an aggravated felony after his admission into the United States i. Court rejected the due process challenge

ii. Supreme Court rejected a due process challenge to a statute mandating detention without bond for virtually all noncitizen offenders facing deportation. Demore is the Court's most recent foray into constitutional immigration law. It is also among the most disturbing of the Court's immigration cases, because it seems to signal a shift away from greater constitutional protection of noncitizens and toward unquestioning reaffirmation of the so-called plenary power doctrine. XII. Citizenship/Naturalization: Loss of Citzenship

a. Relevant statutes: 101(f); 301; 310-322; 334; 335; 336; 337; 340(a) and 349 b. Look at chart
c. Jus Soli: right of land birth in the national territory:

i. Unites State v. Wong: 1. Wong was born in the United States to Chinese parents. He traveled to China, and when he returned let him in because he was a native born citizen. Again, four years later, he traveled, and when he returned he was detained: 2. The Chinese Exclusion Acts denied citizenship to Chinese immigrants. Moreover, by treaty no Chinese subject in the United States could become a naturalized citizen. Wong Kim Ark was born in San Francisco. At age 21, he returned to China to visit his parents who had previously resided in the United States for 20 years. When he returned to the United States, Wong was denied entry on the ground that he was not a citizen. 3. Could the government deny naturalization to persons born in the United States in violation of the Fourteenth Amendment? a. No. The government could not deny naturalization to anyone born in the United States. To reach this conclusion, Justice Gray's tedious majority opinion managed to traverse much of western civilization 4. Upholding the concept of jus soli (citizenship based on place of birth), the court's majority held that the Fourteenth Amendment's citizenship clause needed to be interpreted in light of English common law,which had included as subjects virtually all native-born children, excluding only those who were (1) born to foreign rulers or diplomats, (2) born on foreign public ships, or (3) born to enemy forces engaged in hostile occupation of the country's territory.

d. Jus Sanguins: The law prevailing in many civil law countries is jus sanguinis, under which a persons citizenship at birth was determined by the citizenship of his parents e. Basic Substantive Provisions: i. Residence and physical appearance: 1. Reside continuously in the US for five years as an LPR 2. Physically present for atleast half the time 3. In the district for atleast 3 months ii. Age: atleast 18 1. Derivative under 320 2. Automatic for adopted kids iii. ELP iv. Knowledge of civics and history v. Good Moral Character vi. Attachment to Constitutional principles f. Naturalization Procedures: i. Goes to a USCIS officer ii. Of denied they must state why g. Dual nationality h. Loss of citizenship: i. Denaturalization:
1. United States v. Puerta: two prong test with clear and convincing evidence that it

was material
ii. Afroyim v. Rusk (14th Amendment/Involuntary Expiration):

1. P) was born in Poland and became a United States citizen in 1926. In 1950 Afroyim went to Israel and voted in an Israeli election the following year. In 1960 the State

Department refused to grant his reapplication for a U.S. passport on the grounds that he had lost his citizenship by virtue of the Nationality Act of 1940 which provided that a United States citizen shall lose his citizenship if he votes in a foreign election 2. Does Congress have the power to strip an American citizen of his or her citizenship if that person has not voluntarily renounced it? a. No. Congress does not have the power to strip an American citizen of his or her citizenship if that person has not voluntarily renounced it. b. Congress has no express power under the Constitution to revoke a persons citizenship. Congress recognized before the passage of the Fourteenth Amendment, as did the Supreme Court in Osborn v. Bank of the United States, that no such power can be sustained as an implied attribute of sovereignty. c. The Fourteenth Amendments provision that all persons born or naturalized in the United States are citizens of the United States completely controls that status and prevents the cancellation of Afroyims citizenship. iii. Vance v Terrazas (Expatriation): 1. Laurence Terrazas was born in the United States in 1947. Since his father was Mexican, Terrazas held both U.S. and Mexican citizenship at birth. While enrolled at a Mexican university in 1970,Terrazas applied for a certificate of Mexican nationality. As part of his application, Terrazas signed a statement renouncing "United States citizenship, as well as any submission, obedience and loyalty to any foreign government, especially to that of the United States of America." During subsequent discussions with an American consular official, Terrazas gave conflicting answers as to whether or not he had truly intended to abandon his rights as a U.S. citizen when he applied for his certificate of Mexican nationality. The State Department eventually concluded that he had lost his U.S. citizenshipa decision which Terrazas appealed, first before the State Department's board of appellate review, and subsequently to the courts.
2. Held: first, that it was not enough for the government to prove "the voluntary

commission of an act, such as swearing allegiance to a foreign nation, that 'is so inherently inconsistent with the continued retention of American citizenship that Congress may accord to it its natural consequences, i. e., loss of nationality.'" and that "the trier of fact must in the end conclude that the citizen not only voluntarily committed the expatriating act prescribed in the statute, but also intended to relinquish his citizenship

a. Finally, the Supreme Court majority upheld the validity of another aspect of the law as enacted by Congressnamely, that it was all right for the government to assume that a potentially expatriating act had been performed voluntarily, and that any claim that a person had acted under duress was up to the person involved to establish by preponderance of evidence. b. The Supreme Court did not explicitly rule on whether or not Terrazas had lost his U.S. citizenship; rather, it remanded