1
Q
A. Sources of Federal Immigration Power • Enumerated Powers o Oceanic Stream Nav. Co. v. Stranahan (1909) - o Commerce Clause - o Migration/Importation Clause
o Naturalization Clause along with the Necessary and Proper Clause
o War Powers Clause
A
- Power congress has is plenary and their power final!
- Regulation if “substantially affects” interstate commerce
2
Q
• Implied Powers and the Anti Chinese Sentiment
o Chae Chan Ping (Chinese Exclusion Case) -
A
- Lawful worker left US and upon return was denied entry because the certificate program he was residing under had been revoked.
Court finds that that statue (Exclusion Law) and the treaty with China are on equal footing.
Court holds the Exclusion Law is constitutional because Congress validly passed it.
3
Q
• Residual State Power
o Two reasons for federal government to control immigration, -
A
- foreign affairs relationships and uniformity.
4
Q
B. Limits to the Federal Immigration Power
• Ekiu v. US -
o
A
- Non-citizen was excluded at the boarder because officer believed that she would become a public charge.
o Court held the administrative findings of fact are valid due process since they are acting within powers granted by Congress. Whatever Congress decides is due process is due process!
5
Q
• Fong Yue Ting v. US -
o Matthews v. Ellridge 4 part Due Process Test
A
- Laborer in the deportation proceedings and challenged law under due process that would allow residency if white person vouched for residency.
o Court finds that Due Process applies but that Congress not the Courts decide what process is due
1- Private Interest
2- Risk of Erroneous Deprivation
3- Probative value of a substantial procedural safeguard
4- Government’s interest
6
Q
• Knauff -
o
A
- Wife of citizen was excluded and brought due process claim
o Court finds Congress’s procedure is due process, whatever it may be.
o Admission is a privilege, not a right!
7
Q
• Mezei -
A
- LPR was denied re-entry after 19 month visit to Romania. Was order excluded by AG based on national security and is essentially indefinitely detained on Ellis Island. Argued in habeas proceeding that he is entitled to process (some explanation)
o Court holds due process was not violated. Congress has largely immune power over immigration
o Holding has been limited to national security
8
Q
• Plascencia -
A
- LPR left US for a few days to help illegal immigrants into the country and was then denied re-entry herself
o Court doesn’t look at if she should get due process instead how much is due
o Since she was only absent 2 days, she had procedural due process rights in exclusion
9
Q
• Yamataya -
A
- Was in deportation proceedings and didn’t understand English, no translator given.
o Court finds that procedural due process applies, and she is entitled to process but the process she was given was sufficient
o Seems like the Court gives more review than in Fong Yue Ting
10
Q
• Harisiades v. Shaughnessy -
A
- 3 LPR’s joined and resigned alliengence to communist party before Congress enacted a law that authorized deportation of people who wanted to overthrow the government.
o Three arguments:
5th Amendment DP- no fundamental rights are infringed because immigration is a privilege
1st Amendment- not violated because violent speech isn’t protected
Ex- post facto law- not retroactive because membership is a ground and technically ex-post facto only applies criminally!
o Court also found statute was legitimate and not arbitrary because of national security/safety.
11
Q
• Fiallo v. Bell -
A
- Equal protection claim that father’s naturalization of children is discriminatory.
o Court finds equal protection applies (non-citizens) but not violated on rational basis
12
Q
• Nguyen v. INS -
A
o Court upheld statute where only children of mother could establish citizenship
13
Q
• Francis v. INS -
A
- Equal Protection claim that LPR’s cannot ask for relief but returning LPR’s can. Court applies min. scrutiny and strikes statute. “Failure to travel abroad” was not a rational factor.
o Court acknowledges that it can’t review decisions of standards between groups of people but can review decisions where individuals in a group are being disparately treated
• Keep in mind that it is easier to challenge the “process” not the actual decision who to admit or deport. EP claims are also not very successful
14
Q
• INS v. Chada -
A
o Court finds that although Congress has plenary power, they must implement the power constitutionally
o Court strikes statute under separation of powers grounds
15
Q
• Zacnydas v. Davis -
A
o Statute that allows for indefinite detention after removal order is challenged
o Court holds that there is a 6 month rule. The person can challenge that the removal won’t happen in the foreseeable future. If so, then he must be released.
o Difference from Mezei because this is deportation not exclusion
16
Q
• Clark v. Martinez -
A
o When in exclusion proceedings, people can not be detained indefinitely. Not Mezei because not national security
17
Q
• Demore v. Hyung Joon Kim -
A
o Court held pre-removal hearing t determine detention is not required. Congress can legislate in regards to aliens in ways that are unconstitutional to citizens.
18
Q
A. Quotas and Preferences - • Exemptions from Quotas o 1- o 2- o 3- o 4- o 5- o 6- o 7- o 8-
A
1) Immediate relatives of US Citizens (children, spouses, and parents)
Child must be unmarried and under age 21
2) Returning LPR’s
3) Former US citizens
4) Children born abroad to LPR’s
5) Discretionary relief
6) Refugees
7) Parolees (not technically considered admitted)
8) Other congressional approved group exemptions
19
Q
• General Quota Categories for Permanent Status (INA § 201)
o 1-
o 2-
o 3-
o 4-
o * See p. 255 and 258 for problem examples
A
1) Family Sponsored immigrants (480,000 minus INA § 201(c))
2) Employment
3) Diversity
4) Refugees
20
Q
• Preference for Family Sponsored Categories (INA § 203(a)) o 1- o 2- o 3- o 4-
A
1) Unmarried children over age 21 of citizens
2) Spouses and unmarried children of LPR’s
3) Married children of citizens
4) siblings of citizens who are over age 21
21
Q
• Employment based Categories (INA § 203(b)) o 1- o 2- o 3- o 4- o 5-
A
1) Priority (extraordinary ability)
2) Advanced degrees (exceptional ability)
3) Skilled workers
4) Special Immigrants (skilled workers)
5) Investors
22
Q
B. Family Immigration
• Marriages
o Adams v. Howerton -
Two step process for immediate relative § 201(b) -
1 -
2 -
Keep in mind that after Windsor, -
A
- Court looks at dictionary meaning of spouse (opposite sex) and that INA explicitly excludes gay non-citizens (uses Chevron) and holds § 201(b) is constitutional under rational basis equal protection and due process.
Deals with plenary power because it’s a decision about who to exclude not who can marry!
1- is marriage valid under state law?
2- does the marriage qualify under § 201(b)?
- this case may come out different because benefits conferred on hetrosexual couples are also applied to gay couples.
23
Q
o Fraudulent Marriages
§ 216 IMFA, Spousal Conditional LPR -
A
For marriages under 2 years old
See also § 204(a)(2)(a) for other conditions
24
Q
• Other family members
o Matter of Mourillon -
A
- There must be a “common parent” under § 101(b)(1)(c)
Common mother was established as a step-parent relationship and the relationship was not terminated upon death or divorce because the children maintained the relationship
After case, “child” definition has changed and illegitimate children are included if there’s a bona fide relationship
25
```
C. Employment Based Immigration
• 5 Preference Categories § 203(b)
o
o
o
o
o
```
- Priority
- Advanced degrees
- Skilled workers
- Special immigrants
- Commercial Enterprise
26
• Business Necessity
| o Marion Graham -
- Court found overnight and live-in requirement for a housekeeper/nanny was unduly restrictive and not a business necessity!
27
o Business necessity showing must be made for:
1) -
2) -
3) -
- Requirement not normally required
- Not listed on ONET
- Foreign language
28
o To establish business necessity employer must show:
1) -
2) -
1) Reasonable relation between duties and occupation
| 2) Duties are essential to perform the job in a reasonable manner
29
o Tel-Ko Electronics -
o If 1 qualified American worker applies -
- Court granted certification to worker who would be speaking to Korean speaking customers 95% of the time
- then he gets the job over a foreigner!
30
D. Diversity Immigrants -
• number available -
• Eligibility -
• Statute -
- 55,000 visas available
- Certain countries are ineligible
- INA § 203(c)(2)
31
```
A. Commercial Categories
• Business Visitors (B-1)
o Requirements
1) -
2) -
3) -
```
1) 6 months to 1 year
2) no intent to abandon homeland
3) no labor certifications
32
o Bricklayers v. Meese-
Post Bricklayers-
Under Hiro, -
Company was issued B-1 visas based on INS operational instruction for workers to assemble purchased machinery. American union argued that assembly was skilled work and H- visas should have been issued.
Court does not defer to agency’s interpretation because statute not ambiguous and holds that H-visas should have been issued
- Allows foreigners to “supervise” construction but not perform it
- labor incidental to commerce is ok!
33
• Treaty Traders (E-1, E-2)
o Two types:
E-1: requires
E-2: requires
- substantial trade intent
| - substantial capital
34
o Issuance for 2 years
o Nice v. Turnage -
No risk=
- Court holds that investment must be made by the non-immigrant and that person has personal risk! Not a third party!
- less incentive to manage investment well
35
• Temp Workers
o O-Visas
1) Extraordinary ability in
2) International
1) science, arts, business and education
| 2) acclaim
36
o P-Visas
| Internationally -
- recognized (but not extraordinary) athletes or entertainers performing in an event
37
```
o H-1B Visas (§ 214(i)(1))
Usually -
Degree? -
Intent?
Certification?
```
- architects, doctors, engineers
- Bachelor’s degree or higher
- May have dual intent to become immigrants - - Labor condition certification required (employer attests)
38
o H-2 Visas
(a)
(b)
Both requires
- agricultural
- temporary service or labor
- labor certifications
39
o L-Visas
| Used for
- intracompany transfers
40
Karmali v. INS -
Court gives agency decision deference that employee must be living/working continuously for 1 year abroad before visa issuance
41
1 year abroad before visa issuance
B. Educational Categories
• F-Visas
o Must be -
o Generally -
- accepted by school, document sufficient funds, and full course of study
- barred from off-campus employment
42
• M-Visas
| o Type of school?
- Vocational schooling
43
```
• J- Visas
o
o
o
o
```
- Cultural exchange program
- Au pairs
- Must be approved by government
- Must return home for 2 years before adjusting status
44
o Sheku v. Kamara -
- Court holds that accompanying wife is subject to same requirements (2 year foreign residence) as husband who held a J-1 visa. Court rejected her argument that she didn’t benefit from the issuance of original J visa.
45
C. Other Categories
• Tourists (B-2)
o Healy and Goodchild -
- Court holds that B-2 visa holders can’t attend school. Invalid purpose for pleasure!
46
• Fiancées (K-Visas)
o Marriage must -
o Under § 214(d) if
- take place in 90 days
| - marriage doesn’t take place, the visa holder must depart or be removed
47
o Moss v. INS -
Kim thinks that -
- Court holds that a marriage taking place 92 days after admittance was substantial compliance with the statute and immigrant should be able to show why marriage didn’t take place on time and that the circumstances weren’t her fault.
- Court got this wrong!
48
• “Snitch” Visas (S- Visas)
| o Must give -
- police valuable information
49
```
• T- Visas
o For -
o Extreme -
o Must -
o Can apply for -
```
- victims of trafficking
- hardship
- comply with police
- LPR status after 3 years
50
• U-Visas
o Victims of -
o Cooperation with-
o Can -
- violence or abuse
- police
- adjust to LPR
51
General Non-immigrant Problems
• Change in Status
o § 245-
o § 248-
- non immigrant can adjust to another nonimmigrant category without leaving the country
- non immigrant can adjust to LPR
52
```
Exclusion
• Ineligibility Grounds § 212(a)
o 1- Health-
o 2- Criminal-
o 3- National security-
Matter of SK -
• After this case -
```
o 4- Public Charge-
o 5- Labor-
o 6- Illegal Entry
o 7- No Documentation
o 8- Ineligible for Citizenship
o 9- Previously removed
- § 212(a)(1) communicable diseases. TB is inadmissible but HIV is no longer
- Waivers located in § 212(d) and (i)
-§ 212(a)(3) security related
§ 212(a)(3)(A) espionage, sabotage, unlawful activity, overthrow government
§ 212 (a)(3)(f) suspension by president
§ 212 (a)(3)(b) terrorist exclusions
- • Court found that asylum applicant was excludable because she gave material support to the CNF who were opposed to the country’s government in power and thus a terrorist group.
- case law was changed to provide for a duress exception
- Factors are: age, health, family assets, and education
§ 213(a) affidavit of support
- Labor certification § 212(a)(5)(a)
53
• Three Step Analysis
o What -
o Criteria -
o Is -
- are ALL of the possible grounds?
- met?
- there a waiver? (See § 212(d)(3)(A))
54
```
A. Modern Admission
• Procedure
o 1-
o 2-
o 3-
o 4-
```
1) Obtain labor certification (if required)
2) Fill out visa petition with US CIS
3) File visa application with US consulate abroad
4) Noncitizen presents at boarder with visa
55
B. Visa Petitions
• I-130 -
• I-140 -
- Family member files
| - Employment
56
C. Visa Applications
• INA § 221, 222 -
• INA § 217 -
• INA § 202(a) -
- Visa Issuance
- visa waiver program
- prohibits discrimination
57
D. Actual Admission
| • § 240 (c)(2)(a)-
- “clearly and without a doubt entitled to be admitted”
58
```
• Expedited Removal § 235
o Misrepresentation -
o Lack -
o National
o Enter US
```
- § 212(a)(6)(c)
- of proper documents
- security
- illegally and have been here for 2 years
59
• Arrival at Boarder
o 1-
o 2-
o 3-
1- be admitted
2- be denied and leave voluntarily
3- be denied and either ordered removed (expedited or removal hearing)
60
I. Deportability Grounds
• Entry vs. Admission
o Definition of admission requires lawful entry
o Rosenburg v. Fleuti -
Factors:
o Currently we use -
- Court held LPR’s 2 hour trip to Mexico was not “meaningfully interruptive”
The re-entry was not an entry under the meaning of the statue because LPR’s would constantly have to be reassessed. Court applied Golden Rule, not plain meaning because no way Congress intended this absurd result
- length of time, purpose of the visit, whether the alien must procure travel documents to leave
- INA § 101(a)(13) and factors!
61
```
• Deportation Grounds
o INA § 237(a)
1-
2-
3-
4-
5-
6-
```
```
1 - inadmissible at time of entry or illegally present
2- convictions
3- document fraud
4 - national security threats
5- public charges
6 - unlawful voters
```
62
o Crime/Conviction Related Deportation
Multiple Convictions
Fong Haw Tan -
* Court holds -
* CURRENT LAW -
In 1st Cir.-
In 9th Cir. –
Can’t -
- Chinese alien convicted of 2 counts of murder, challenges if this is “more than once” under INA.
- that “more than once” are separate incidents
- is § 237(a)(2)(A)(ii), 2 or more crimes not arising out of a single scheme
- “no substantial interruption”
- “planned at same time and executed in accordance with plan”
- challenge the validity of a conviction at an immigration proceeding
63
US v. Parrino -
Expungements
Generally -
Possibly helpful -
- (Overruled by Padilla)
- do not erase conviction for immigration purposes unless it was reversed for flaws in the judgment
- for youthful offenders
64
Crimes of Moral Turpitude
Three approaches:
• 1-
* 2-
* 3-
1) Traditional/categorical (looks at statute and indictment only)
2) Pino (generally if moral turpiyude then it is- discounted)
3) Eiselle’s Dissent (take actual factual circumstance into account)
65
Marchiano v. INS
• Court held -
Current approach is -
Usually -
* Any crimes involving -
* All other crimes require -
- that ”moral turpitude” was not unconstitutionally vague and affirmed the deportation order based on stat rape
- looking to stat under categorical approach, if that doesn’t resolve question then look at conviction, guilty plea, or indictment, and if that doesn’t resolve question use additional evidence necessary and appropriate.
- reprehensible conduct + bad intent (Scinter)
- fraud or deceit or theft
- intent to harm
66
Drug Offenses
| ICE can -
- charge under drugs and agg felony
67
Aggravated Felonies
No -
Ground at -
A crime doesn’t need to -
Usually mandatory -
Usually ineligible -
Actual -
Crime of Violence
• 2 Parts
1)
2)
- time limit
- § 237(a)(2)(iii) and definition at 101(a)(43)
- be a felony under state law to be an immigration “agg. felony”
- detention until removal
- for relief
- sentence imposed
1) Use (threatened or attempted) of force
2) felony with substantial risk of force
68
• Leocal v. Ashcroft -
- Court found DUI was not crime of violence after looking at statue that just required negligence not use of force (categorical approach)
69
```
. Relief from Deportation
• Lasting Relief (Cancellation Part A & B)
o INA § 240A(a)
Categories ineligible for relief
Failures-
Aggravated -
Third? -
Requirements
LPR for -
reside in US , -
and no -
LPR status terminates upon -
IS DISCRETIONARY!
```
```
Favorable factors include,
1)
2)
3)
4)
Adverse factors include
1)
2)
3)
```
- to appear
- felonies
- Terrorists
- 5 years,
- for 7 years
- aggravated felonies
- final order of exclusion/deportation
1) family ties,
2) long residence,
3) ties to community,
4) rehabilitation
1) additional crimes,
2) violations,
3) bad character
70
```
o INA § 240A(b)
Requirements
1)
2)
3)
4)
```
Only -
If granted this relief, -
1) Physically present in US for 10 years
2) Good moral character
3) No crimes or false documentation
4) “Exceptional and extremely unusual” hardship to alien’s citizen spouse, parent, or child
- 4,000 people per year may receive
- LPR status is also granted
71
Jong Ha Wang
Couple argued -
Court found -
- extreme hardship on children because they did not know Korean and would be lost in Korea
- that there needs to be sufficient facts alleged in the affidavit to show extreme hardship. Additionally that Congress left Attorney General the power to determine the meaning of “hardship”
72
Recinas
Single Mexican mother demonstrated extreme hardship because -
Very -
- her children were dependents, she had no child care or family in Mexico, and no quick way for her to gain LPR status.
- factor dependent!
73
o Reviewability
Courts can’t review -
Can review denials to -
Can review denials of -
- denials of extreme hardship
- reopen cases
- cancellation
74
• Limited Relief
o Deferred Action
Registry -
Legalization -
```
Deferred Action
1)Gives -
2) DACA-
3)DAPA-
4) Both programs filed with
5) Texas federal court
```
- (available to people who entered before 1972)
- (programs that forgive illegals and give path to LPR status)
- (discretion to have case put on back burner, very factor dependent!)
1) temp status and work authorization
2) meet criteria then the child can stay in US temporarily
3) meet criteria then removal of US citizen’s parents is stalled
4) USCIS and information not shared with ICE unless national security problem
5) granted injunction against these programs
75
```
o Voluntary Departure
§ 240B
Part (a) is in -
• how long to leave? -
• will not be considered -
• Application needs to be made-
```
```
Part (b) is at -
• How long to leave? -
• Requires -
• Does not apply to -
• 5 years -
• physical presence in US for -
```
- lieu of removal proceeding
- 120 days to depart
- “removed”
- at, before, or 30 days after master calendar hearing
- conclusion of removal proceedings
- 60 days to depart
- intent and means to depart
- aggravated felons or national security risks
- good moral character
- 1 year
76
o Objections to Destination
INA § 241(b)- Removal Destinations
Linnas v. INS
• Court upholds -
• § 241(b)(3)(A) now -
- removal to Russia even though alien had been deemed a war criminal there and would likely be killed upon entry. Alien had opportunity to designate a proper country and he refused.
- prohibits removal to a country where life would be threatened
77
Three Step Process
• 1-
• 2-
• 3-
1) deportee designates a country
2) country of deportee’s citizenship
3) 7 categories of countries that can serve as alternates
78
III. Deportation Procedure
• Timeline
o 1- Apprehension
o 2- Pre hearing
o 3- Removal Hearing
o 4- Administrative Review
o 5- Judicial Review
Matters not subject to review § 242(a)(2)
1- expedited removal
2- discretionary relief
3- crime related grounds (although crime being moral turpitude can be challenged)
§ 242(j) prosecutor discretion
Can review questions of law and constitutional issues
§ 236(e) bars review of detention decisions but Habeas may be used instead
Habeas Corpus
Article I, §9, cl. 2
Non citizens who are detained may seek this relief
Offers protection against executive and legislature
INS v. St. Cyr -
o 6- Execution of Orders
1) § 287 lists apprehension powers
2) Notice to appear (gives charges, time and place of hearing)
Detention may be mandatory during this time
Conditional parole may be granted § 236(a)
3) Shifting burdens of proof (not on exam)
Designate country of removal
4) BIA is first appellate body (one judge, sometimes panel of 3)
30 days to file notice of appeal
Once BIA decision, it is administratively final
5) Appealed to Circuit courts, at one point was 40% of 2nd Cir. Cases
Filed 30 days from BIA order
Level of deference is substantial evidence standard
- Court looks at text of statue and holds that statute did not bar Habeas Corpus even though the title of the statute expressly stated so
• Court will not presume lack of jurisdiction unless Congress expressly does so
2005 Real ID Act made it clear that there is no statutory Habeas right. § 242(a)(2)(B).
6) 90 days from administrative order
At government’s expense
79
• Representation
o There is a right to -
o Study shows that access -
o Aguilera -
Court holds -
Court used -
- counsel but there is no right to appointed counsel!
- to counsel produces more favorable results to the alien
- no right to appointed counsel at removal proceeding under fifth amendment due process.
- Strickland instead of Matthews balancing test. He pled guilty so nothing a lawyer could have argued.
80
o Padilla v. Kentucky
Court holds -
Strickland -
After Padilla -
- sixth amendment right to be advised of immigration consequences.
- 2 prong test still applies. Performance is advising of consequences and then prejudice
- defense attorneys must advise clients that there may be deportation consequences and to speak to an immigration lawyer
81
o Lozada
Denial of -
1-
2-
Court found-
- due process in deportation cases requires
1) proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case
2) and the alien was prejudiced by the lawyer’s performance
- failure to submit brief was not prejudice
Immigration Law
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