Immigration

Family-Based Preferences
 “Immediate relatives” = spouse, parent, or MINOR child (single, U21)
 All other family members of USC/LPR subject to quota

Time
 Child Status Protection Act: creates a fictitious age for child status petitioners so they don’t age out
o Created in 2002, NOT RETROACTIVE
o Average processing time is around 5 months, must wait after

Major Acronyms
 INA: Immigration and Nationality Act
o Technically a part of 8 USC but is never cited as such until you get to federal circuit court
o IIRIRA 1996: Huge immigration “reform”
 Made all EWI immediately removeable
o AAO: Administrative Appeals Office
 This is where you appeal your denial of an immigrant visa
o BIA: Board of Immigration Appeals
 Administrative court; part of the DOJ
o DHS: Department of Homeland Security
 Umbrella department covering CIS, CBP, and ICE agencies
 Absorbed much of the former INS
 All agencies may initiate removal proceedings!
o EOIR: Executive Office for Immigration Review
 Part of the DOJ
o OI: Operating Instructions
 Old set of directions given to officers of CIS/CBP/ICE
 Now being phased out in favor of DHS manuals
o UNHCR: UN High Commission on Refugees
 Certifies refugees and approves them before they are even sent to any country, including the
U.S., as a refuge

History
 30,000 years ago: first peoples come to what is now North America
 1490s: Europeans arrive, proceed to fuck up everything
o Immigrants came for religious/political freedom
o Convicts (“transportation”) and enslaved Africans
 1700s: Declaration of Independence accuses King George of not naturalizing people fast enough
 Post-independence: near-open borders
o U.S. starts to brand itself as a country for all people*
 1790: First immigration laws passed
o U.S. citizenship after 2 years’ residency and renunciation of foreign citizenship
 1798: First authority granted for deportation
o Alien Enemies and Friends Act gave President the power to deport
 1802: Now five years’ residency and citizenship
 1819: Collector of Customs (predecessor to CBP) established
 1830s: First waves of anti-immigrant sentiment
o In response to Irish, German immigrants
 First bases to inadmissibility:
o 1875: no prostitutes, convicts
o 1882: No lunatics, idiots, and those likely to become a public charge
o 1891: No people with contagious diseases, CIMT, and required medical inspections
 1890s: Jewish, Italian, and E. Asian immigrants
o First racist law: Chinese Exclusion Act of 1882
 1895: Congress first attempts to pass English-only bill
o 1906: English proficiency added for basis of citizenship
 1912: Taft vetoes English literacy test
o 1917: English literacy test added, did not work well
 Post-WWI: Nearly all immigrants now from East Asia
 1921: National origin quotas initiated
o 3% of the number of ethnicity counted in the previous census
o Explicitly preserves the majority-white status quo
 1924: National Origins Act
o No Japanese, limited E. Europeans
o Quota systems hurt refugees
 1939: Congress defeats a bill to admit 20,000 refugee children from Nazi Germany, which would have
overridden the quota
 WWII & Aftermath
o Bracero program instituted for Mexican guest workers
o Repeal of Chinese Exclusion Act
o President Truman admitted all war refugees, U.S. military wives and children
 1949-1960
o Admit more refugees than ever from WWII, defecting communists (Hungarians)
 1952: Congress passes the INA
o Consolidated all previous immigration laws into 1 statute
o Maintained quota system
o Repealed Japanese exclusion law
o Passed OVER Truman veto—he wanted more open borders
 1960s: Kennedy
o Wrote book as Senator denouncing quota system
o 1965 INA Amendments abolished quota system
 Distinctions between eastern and western hemispheres—prompted by nativism against
Spanish-speaking peoples
 Created first backlogs for Latin American countries
 1976: Hemispheres equaled, every country now has 20,000 person cap/country
o First year: only Mexico hits cap
o Ford, Carter wanted special treatment for Mexico, but no action taken
 1960s: 690,000 Cubans paroled in
 1970s: Indochinese, Soviet defectors, Chileans, Lebanese, and more paroled in
 1980: Refugee Act
o Admitted tons of refugees
 1982: Plyler v. Doe
o All children, including undocumented students and students were illegally, entitled to public school
education
 1986: IRCA—arguably the first instance of neoliberal policy being applied to imm
o Increased border enforcement
o Made it illegal for employers to knowingly hire anyone out of status
o 2 legalization programs—“Reagan’s Amnesty”
 If you can prove you were here before ’82, you got 18 months deferred deportation
 Could make it permanent through English-language and citizenship test
 Special Agricultural Worker Program
 Prove you had worked here illegally for 90 days, made permanent after 3 more years of
work
 Almost ENTIRELY for Mexican nationals
 o 2.6 MILLION obtained legal status
o No provisions for family members—had to petition for spouse/children after they gained LPR
o HUGE increase in backlogs from a few countries
 1990: Immigration Act of 1990
o Removed cap on spouses and children of USCs
o Huge increase in number of immigrant visas
o Introduced family unity visas (no longer exist) where family members could live in the U.S. with their
sponsor while their application was being processed or in line for backlog
o Expanded grounds for deportation
 1996: IIRIRA, AEDPA, “welfare reform”
o Expanded criminal grounds for removal
o Reduced immigrants’ ability to access public benefits
o Added affidavit of support requirement for family-based immigration
 Post 9/11
o Immediately ended negotiations between GWB and Vincente Fox regarding a program of earned
legalization for Mexican nationals
o New legislation:
 Interviews now required for visa applications abroad
 NSEERS: required registration of citizens of 30 largely Arabic/Muslim countries who were in the
U.S.
 US-VISIT: program to monitor all entry/exit into the U.S.
 Currently monitors only entries
 SEVIS: tracks foreign students in the U.S.
 PATRIOT Act: expanded removability of suspected terrorists

Current demographics of undocumented immigration:

 More than ½ have been in the U.S. for 10+ years
 Nearly 1/3 are parents of USC children
 More Central Americans fleeing from violence than Mexican nationals looking for work

Executive Changes
 DACA (2012): Obama program, created to stop deportation of young people
o Came to U.S. under the age of 16
o Physically present since June 15, 2007
o HS diploma or equivalent, enrolled in HS/GED program, or be in U.S. military
o No/negligible criminal record
o Under 31 years old as of June 15, 2012
o Must be at least 15 years old OR in removal proceedings
o Must not already have any lawful status
o Semi-rescinded as of October 2017
 Complaint alleges that recission violates equal protection (Trump’s statements on Mexicans
evidence of discrimination based on national origin), violates due process, violates the APA, and
is fundamentally unfair (we gave you our info in good faith, now you’re going to use it to deport
us)
 DAPA (2014): Obama attempt to expand DACA (no age limit, relaxed physical presence standards) and add
protection to parents of USC/LPR children
o Stopped by federal court injunction
o Largest court case is U.S. v. Texas, went to S.Ct., got kicked back down to 5th Cir.
 2014 Priority Enforcement Program
o Ended ICE’s Secure Communities Program
o Created priority system for initiation of removal proceedings
o Ended January 2017
 Central American Minors (CAM) program
 o Allowed Central American children to come in safely rather than have kids come alone
o Ended August 2017
 Border Surge 2014-Present
o Huge waves of unaccompanied minors arrived at southern U.S. border
o Started family detention
o Ongoing litigation says family detention violates Flores settlement order

Present-Day Issues
 Huge numbers of unaccompanied minors coming from Central America
 3-year wait for asylum
 American Immigration Council filed lawsuit against CBP for turning back asylum seekers rather than allowing
entry for credible fear interview
 Muslim Ban litigation & “constitutional whac-a-mole”

Birthright Citizenship

Generally
 U.S. law primarily based on jus soli
 All created by Congress—the Constitution has no definition of citizenship

Jus Soli: Right of the land/ground

 Wong Kim Ark: Even if your parents are ineligible to naturalize, you are a USC because you were born here
o Exceptions: children born of foreign occupations, children of diplomats
 2004: Hamdi, a USC detained at Guantanamo, successfully petitioned for due process rights because he was
born in Louisiana

Jus Sanguinis: Right by blood

 *** THE LAW AT THE TIME OF THE CHILD’S BIRTH CONTROLS***
o USCIS charts
o Kersban’s

Gender Discrimination in Jus Sanguinis

 309(c) treats derivative citizenship differently depending on whether the USC parent is the mother/father
 Nguyen: challenged 309(a), failed. Kennedy’s obsession with motherhood strikes again
 Sessions v. Morales-Santana: successfully challenged an older version of 309(g)
o Court agreed but said longer residency period should apply to both parents rather than shorter
residency period

Dual Nationality
 Sometimes a child may have more than 1 nationality at birth
o Citizenship of country of birth + 2 nationalities of parents
 Some states treat naturalizing to a new country as expatriating
 Naturalization may require renunciation of previous citizenship
 Some treaties clarify dual nationality
 In the U.S.:
o Arises when
 Child born in the U.S. to immigrant parents
 Birth outside the U.S. to USC and foreign national
 Naturalization with a renunciation requirement, but renunciation not recognized in country of
origin
 Naturalization, loss of citizenship, but resumption of original citizenship permitted (Australia)
 o Largest “sending” countries to U.S. (Mexico, Philippines, DR, Canada, India) recognize U.S.-born children
as citizens of their countries
 Not China, though
o Many countries altered their laws to permit retention of original nationality: Canada, Argentina,
Colombia, Costa Rica, DR, El Salvador, France, Ireland, Israel, Italy, Panama, Switzerland, the UK

Naturalization Historically
 Constitution grants Congress the power to have a uniform rule of naturalization
 1790: free whites with 2 years’ residency in the U.S. with good moral character who swore to uphold the
Constitution could be naturalized by ANY common law court of record
 1795: no’ residency, and now federal courts could naturalize
o Formal declaration of intent now required 3 years before naturalization, renunciation of formal
allegiance, oath of allegiance to the U.S., establish attachment to U.S. Constitution
 1798: Alien & Sedition Acts hugely increased requirements
o Repealed in 1802, replaced with 1795 requirements
 Naturalization courts had NO formal procedure or a centralized federal system
o Tons of fraud, mockery of process
 1906: A T. Roosevelt investigation lead to Naturalization Act of 1906
o Administrative power of naturalization with an agency in Dept. of Commerce/Labor
 1952: The INA
o Eliminated racial qualifications
o Prohibited denial based on race/sex
o Prohibited Communists & Nazis
o Precluded those with outstanding/pending deportation order
o Eliminated declaration of intention and certification of arrival requirements
o Enlarged grounds for repatriation, denaturalization
 1990: Transferred authority from judiciary to AG
o Now rests with USCIS (DHS)
 Today
o Naturalizations on the rise (both pre-and post-2016 election)
o 2013: leading countries of origin were Mexico, India, the Philippines, the DR, China, and Cuba (40% of
applicants)

Modern Process
 Written application adjudicated by USCIS officer who makes decision (INA 335)
o Examiner has authority to investigate and subpoena witnesses and documents, but usually there is only
an interview
 If approved, oath ceremony (INA 310(b))
 If denied, reasons may be stated (INA 336(a))
o Applicant has the right to a hearing before a USCIS officer
 If further denied, can seek de novo review in a federal district court (INA 310(c), APA)

Modern Requirements
 Age: must be 18 or older - 334(b)(1)
o Children are naturalized by law if they are LPRs and residing with their naturalized parent when the
parent naturalizes
 Residence/Physical Presence
o Must be LPR residing continuously in the U.S. for the past 5 years
 3 years if married to a USC (who must have been USC for at least 3 years) and living in “marital
union” with the USC
o Must have been physically present in the U.S. for at least half that time
o Absences over 6 months break residency requirement
  Can be overcome by demonstrating lack of intent to abandon residence
o Over 1 year out of the country is automatically disqualifying
o EXCEPTIONS:
 Employment abroad by U.S. government or U.S. research institutions, certain U.S. companies, or
public international organizations (INA 316(b))
 Does not waive physical presence requirement!
 Only waived for employees of U.S. government overseas or certain religious workers
(INA 316, 317)
 Good Moral Character for past 3/5 years
o INA 316(e): USCIS can consider earlier conduct to determine whether the applicant has good moral
character
o Defined by what it is not, rather than what it is: (INA 101(f))
 “habitual drunkard” (multiple DUIs, etc)
 Illegal gambling
 Immigration fraud (huge if true)
 Confined to a penal institution for 6 months or more (only last 3-5 years)
 Committed an aggravated felony (statutory)—AT ANY TIME
 Be a literal WWII Nazi
o USCIS will take your fingerprints and run them through an FBI check
 Demonstrate a knowledge of civics and history - §312(a)(2)
o Waived for disabled
o Easier version for longtime elderly residents
o Only 100 possible questions—there are study apps
 Knowledge of English
o Exempt if longtime elderly resident or disabled
 Oath of Allegiance - 8 CFR § 337.1(a), INA § 337
 Attachment to U.S. Constitutional Principles

Special Military Laws

 1 year honorable service in the U.S. military frees you from residency and physical presence requirements - §
328
 Noncitizens lawfully present in the U.S. at time of enlistment who served active duty during period of military
hostilities don’t have to be LPRs and do not have to show required residency or physical presence
o 2002: GWB declared hostilities, nobody ever ended it
o Generally must be a USC or LPR to join military with the exception of the MANVI program to
refugees/asylees with special skills (usually language)

Federal Agencies and the Courts

U.S. Department of State

 Travel to U.S. Consulate abroad
o 220 offices worldwide
o Reject ~15% of nonimmigrant visas
 Visas
o YOU ARE NOT GUARANTEED ENTRY: CBP can absolutely refuse to let you in, but it is subject to review by
an IJ
 Federal courts have routinely held visa denials to be unreviewable at that level
 DHS can revoke your visa and DOS cannot reinstate it
o 22 CFR 41.113(1): supervisors review a random selection of visa grants
 May grant visa if original application denied
 May submit to further review if they wish to deny a visa already granted
o Authority rests in the Bureau of Consular Affairs
 Specific authority rests with DHS
  Divisions include National Visa Center (NH), Overseas Citizens Services, and Passport Services
 Other major bureaus:
o Bureau of Population and Migration
 Official point of contact with UNHCR for refugees
o Bureau of Educational and Cultural Affairs
 Exchange programs (e.g. Fulbrights)
 Obtain equivalent to J-1 visas

Immigrant Visas
 Categories:
o Family-sponsored immigrants
 Immediate relatives of USCs have no statutory ceiling
 Spouses, children, or parents if petitioner is 21 or older
 Step-children if marriage creating the step-ness took place before the child’s 18th
birthday
 Preference categories (226,000/yr)
 1: unmarried sons/daughters of USCs
 2A: spouses and children of LPRs
 2B: unmarried sons/daughters of LPRs
 3: married sons/daughters of USCs
 4: brothers/sisters of USCs if petitioner is 21 or older
o Employment-based immigrants (140,000/yr)
 1A: extraordinary ability (athletes, etc)
 1B: outstanding professors and researchers
 1C: multinational executives and managers
 2: advanced degrees or exceptional ability
 3: bachelor’s degrees and shortage occupations
 Unskilled workers are capped at 5,000/yr
 4: Special immigrants (religious workers, employees of the U.S. government, SIJs)
 5: Investors: must create 10 jobs and invest $1m OR $500k in rural/high unemployment area
o Diversity Lottery Immigrants (50,000/year--potentially in jeopardy?)
 Want to come to the U.S.? Throw your name in the hat!
 If you’re a national of 15-20 high-immigration countries you are ineligible
 Must have a HS diploma or 2 years of training in an application that requires 2 years of training
 Can bring spouse and children
o Humanitarian Admissions
 Overseas refugees: ceiling set by Congress each year
 Asylees: no ceiling

How to get someone in the country if you are in the U.S.

 Start: file visa petition in the U.S.
o Family member: file with USCIS—need proof of familial relationship
o Employment: file with DOL for labor certification first, then file with USCIS
 If USCIS is satisfied that all documentation is true, the visa is granted
o If beneficiary is outside the U.S., the visa is transmitted to the closest consulate
o If beneficiary is inside the U.S., the beneficiary applies for adjustment of status

Per-Country Ceilings, Backlogs, etc

 No one country gets more than 20,000 admissions annually
 VERY harsh on Mexico and the Philippines
 This is why all visa bulletins have separate cutoffs and tables for Mexico, China, India, and the Philippines
 If you go to a new category, you STAY in line
 o If a petitioner naturalizes, their immediate family members SKIP the line
 Aging Out
o Child Status Protection Act: the child stays the age at the time the parent files the petition
 Ex: your client is, legally, 17 years old despite passing his 18th birthday
 If parent naturalizes, though, this pretense drops
 Derivatives
o Spouses and children are admitted with the principal visa holder
 They ARE counted against the ceiling for the principal immigrant’s category-- most
employment-based visas are actually used on derivatives

Marriage
 Must be a legal marriage according to the law of its place of celebration
o Polygamy: first partner only (also, probably inadmissible)
o For proxy marriages (one/both partners not present) must be consummated
o Same-sex marriages recognized
 Must be a bona fide marriage
o The parties’ intention at the time of marriage is controlling
o Q: Did the parties intend to establish a life together?
 Kerry v. Din: you do not have an absolute right to live with your spouse in the U.S.
o You have the right to marry the person of your own choosing
o You do not have the right to live with them together in the U.S.
o There are valid public safety considerations if the foreign spouse is a criminal
 Practical considerations:
o Does the couple live together?
o Do they hold themselves out publicly as a married couple?
 INA 204(c): if you engage in marriage fraud, you’re no longer eligible for ANY family-based petition
 If you get LPR based on marriage, you get a conditional green card
o Can apply to have restrictions removed after 2 years—idea that a sham marriage would not last 2 years
o Children of conditional LPRs get conditional LPR status as well
o Couple must jointly file for removal within the last 90 days before the 2-year period runs
 DHS may call for an interview, often waived
 In case of spousal death, may submit singly
 DHS WILL TERMINATE LPR STATUS IF YOU FAIL TO TIMELY FILE
o Waivers of the joint petition—INA 216(c)(4)
 (c)(4)(A) hardship waiver
 (c)(4)(B) divorced and USC spouse won’t help
 (c)(4)(C) domestic violence or extreme cruelty
 The burden is on the person applying to prove the marriage was bona fide
 Self-petitioners
o Widow/ers can file if they were married, had not remarried, and file within 2 years of the spouse’s death
o VAWA allows spouse to self-petition if the USC spouse is abusive/threatening not to jointly file
 marriage was bona fide, then turned bad and/or
 thought original marriage was bona fide, but the spouse was already married
 i-360 - Burden on the applicant to show qualify for relief sought
o Crimes are ok but must be related to the spousal abuse
 Other protective provisions
o Some grounds of admissibility/deportability may be waived if connected to being a victim of spousal
abuse
o Paired with STRONG deportation rules for noncitizen domestic abusers or noncitizens who violate CPOs
 T and U Visas: Victims of certain crimes
o T: victims of severe form of human trafficking who show removal would result in extreme hardship
o U: victims of qualifying crimes who cooperate with law enforcement
 Trafficking and Crime Victims other than T/U holders
 o “Mail-order brides” and IMBRA
 Massive background checks on international dating services—includes checking LPRs/USCs
through sex offender registry
 If international dating not a focus or if service is religious in nature, exempt
 Marriage and the Rules of Professional Conduct
o If you know your client is committing marriage fraud, you have to break confidentiality and call
DHS/USCIS
o Otherwise, you’re in on it too

Investors as Immigrants
 INA 203(b)(5): created EB-5 visa for investors
o 10,000 annual spots
o Must create at least 10 jobs for U.S. workers, not including the investor and their family
o Must invest at least $1m, or $500k for rural or special regions
o Conditional status for 2 years
 China has most of the EB-5s, with a 2-year backlog
 HUGE ABUSE AND SCANDALS
o Vermont in particular advertises buying your way into the country
o Canada had a similar program, ended it in 2014
o Many other countries have similar programs

Employment-based immigration
 Must get labor certification (LCA) through the DOL: prove that you will not take away a job from a U.S. worker
 INA 212(a)(5): A market test to determine:
o No domestic workers could possibly fill the job; and
o The immigrant coming in will not adversely affect wages of American workers
o PERM:
 Employer’s application
 Includes information about the noncitizen
 Noncitizen must sign under penalty of perjury
 Attestation that it meets regulatory requirements
 Job is open to U.S. workers
 Job is not available due to a strike or lockout
 Employer is able to pay the prevailing wage
 Must save (not submit) documentation of having met the requirements, in case of an audit
o Recruitment (20 CFR 656.17)
 The employer must place a job offer with the state wage agency for 30 days—must occur 30-180
days before filing
 OH: Ohio Means Jobs
 Posting must not be unduly restrictive
 Job duties must be normal for the occupation
 Place a print ad in two different Sunday newspapers of general circulation
 If professional job, may place ad in professional journal in lieu of newspaper and 3
additional steps of 10 options (job fair, employer website, job search website, etc)
 Can reject a U.S. worker only for job-related reasons
 Employer MUST pay the prevailing wage
o O*Net
 Each LCA requires an O*Net code on the application
 O*Net is a list of occupations, along with typical tasks, knowledge, skills, and abilities required,
along with special vocational preparation
o Common reasons for denial
  Some of required experience was obtained by the intending immigrant while working for the
applying employer
 Job description unduly restrictive
 Substituting a different immigrant
 Barter/sale of applications
 Immigrant being forced to pay for the application process
o Employer sanctions for abuse:
 Suspension of ability to file LCAs
 Suspended recruitment
 Criminal convictions for willful misrepresentations
 Post-LCA approval
o Employer files I-140 with USCIS, including LCA approval, within 180 days of the approval
 USCIS cannot question a valid DOL LCA
 Can deny on other grounds:
 Employee not qualified
 Employer cannot pay the wage
 Fraud or other misrepresentation
o Approved I-140 sent abroad/to domestic office for change of status
 Portability
o An INA 204(j) adjustment applicant whose application has been pending for more than 180 days is
permitted to change jobs or employers, if a new job in the same or a similar field for which the visa was
filed is available
o LCA must still be valid (within 180 days)—market test is a joke lmao
o If new job is different, prevailing wage test is also a joke
 Schedule A (20 CFR 656.5)
o A list of occupations for which there aren’t enough U.S. workers
o Employer can just skip the DOL and file directly with USCIS
o Now: licensed nurses, PTs, and noncitizens of exceptional ability in the sciences, arts, or performing arts
 National Interest Waivers (INA 203(b)(2)(B) and 8 CFR 204.5(k)(4)(ii))
o LCA and employer petitioner requirements for EB-2 can be waived in the national interest
o Matter of NY State Department of Transportation:
 Noncitizen must be employed in an area of substantial intrinsic merit
 Proposed benefit of national scope
 Not granting benefit would adversely affect the nation
 Important regional benefit is not national in scope
 Scientific research usually counts
 Labor certification would adversely affect national interest
 Demonstrate past history of achievement with some degree of influence as a whole
 Usually: extensive citation of petitioner’s published work

Nonimmigrants: Alphabet Soup

 A: Diplomats
o Must be accredited by State Department before visa issued
o 238,000 accredited diplomats
o Staff get derivative visas
 B: Temporary visitors (6 months, even if they intend shorter/longer)
o B1: Tourist
o B2: Temporary visitor for business
 Cannot receive money except as reimbursement!
 No local employment or work for hire (Int’l Union of Bricklayers)
o Border Crossing Card: Mexicans only, indefinite B1/B2 visa, geographic restrictions (not more than 100
miles from border, depends on the state)
 C: Transit
 o If your plane has a stopover in the U.S.
o Cannot adjust status to anything else
 D: Crewman
o For plane or boat crews
o Cannot adjust status to anything else
 E: Treaty of trade of commerce (2-year initial, unlimited 2-year extensions)
o E-1 Treaty Trader
o E-2 Treaty Investor
o Both seek to carry out activities under an international arrangement
o Do not need to show they intend to remain abroad
o Spouses can work, children cannot
o Requires nationality and treaty check of the principal visa holder
 F: Four-Year/Two-Year Student (duration of study)
o F-1 Most Common Student Visa
 Must have foreign residence they have no intention of abandoning
 State Department: don’t try too hard to determine whether 18 year olds have an
intention of staying. They’re 18.
 Must be accepted at school accredited by AG
 Must show they have sufficient funds for 12 months
 Must show they have a sufficient knowledge of English (TOEFL ok)
 May get optional practical training (paid internships)—often stepping-stone to H-1B
 Barred from off-campus employment unless a major change of circumstances (i.e. breadwinner
death)
 Can work on-campus if not displacing U.S. student workers
o F-2 Spouses and Children of F-1s
 G: Designated/Accredited Representative
o Tied to A visa
 H: Temporary workers
o H-1B Specialty occupations and fashion models (3 years, can be renewed once for 6 years total)
 Must require theoretical and practical application of a body of highly specialized knowledge
 Must have at least a bachelor’s degree
 Employer must post visibly in the workplace that they are seeking foreign workers
 If 15 percent or more of a 50+ employee company, must pay higher fees and provide additional
assurances
 Noncitizen must show they are qualified to work in the position
 Not required to have a foreign residence they intend to return to
 *** May have dual intent ***
o H-1C Nurses
o H-2A Temporary Seasonal Agricultural Worker (up to 1 year, renewed for same/different employer for 3
years)
 Streamlined labor certification
 No statutory ceiling
 Employer must show work is temporary
 Huge controversies/scandals
o H-2B Temporary Seasonal Non-Agricultural Worker (up to 1 year, renewed for same/different employer
for 3 years)
 Employer must show work is temporary
 Huge controversies/scandals (Mar-A-Lago)
 May switch to T visa in cases of trafficking
o H-3 Temporary Trainee
o H-4 Spouses and Children of any of above
 I: Media (duration of assignment)
o Must be with a credentialed news organization
 J: Cultural Exchange Visitors (duration of study)
o J-1 Some students, but also scholars, professors, teachers, trainees, specialists, foreign medical grads,
international visitors, au pairs, and participants in student travel-work programs
 Must be participating in exchange approved by State Department Bureau of Educational and
Cultural Affairs
 Bona fide cultural exchange program with clearly defined purposes and objectives
 Must have at least 5 visitors annually
 Must provide cross-cultural activities
 Must be reciprocal when possible
 If not government-sponsored, have minimum stay of 3 weeks UNLESS they are
designated short-term scholars
 Provide information verifying sponsoring program’s legal status, citizenship,
accreditation, and licensing
 Ensure program is not to fill staff vacancies or adversely affect U.S. workers
 Must have accident insurance for all participants including medical evacuations
 Provide full details of the selection process, placement, evaluation, and supervision of
participants
 Must show they are financially stable, able to meet the money commitment, and that they have
funds for return airfare
 Must have foreign residence they have no intention of abandoning
o J-2 Spouses and children
o Must go home for 2 years before adjusting to another nonimmigrant status/LPR if:
 U.S. government agency or foreign governmental agency financed their participation in
part/whole
 The BECA designates their home country as clearly requiring the services/skills they are pursuing
 They are coming to the U.S. to receive graduate medical training
 Very few exceptions—even J visa holders who marry USCs/LPRs must return home for 2 years
 K: Fiancé/e and family (“90 DAY FIANCÉ/E”)
o INA 214(d)
 Must have met spouse in person within the last 2 years
 Waivable in certain circumstances
 Have a bona fide intention to marry AND are willing/able to get married within 90 days
o INA 245(d): prohibits K visa holder from adjusting status in U.S. based on marriage to someone other
than the petitioner of their K visa
 If marriage occurs and petitioner is abusive, can self-petition under VAWA to stay
o K-1 Fiancé/e
o K-2 Spouse of USC (created to be faster than family-based; it’s not)
o K-3 Minor child of K-1/K-2
 L: Intra-company transferees
o L-1A Managers and Executives (3 years, extendable to 7 years)
 Must file with DHS—large corporations can file a blanket petition rather than individually
 Qualified for a EB-1C after term ends
o L-1B Specialized Knowledge (3 years, extendable to 5 years)
 Special knowledge: knowledge of petitioner’s product, services, or techniques that is distinct or
uncommon compared to that generally found in the industry
 Advanced knowledge: knowledge or expertise of the specific business’ processes and
procedures not commonly found and greatly developed
 Qualified for an EB-2 or EB-3
o *** Expressly permitted to have dual intent!***
o L-2 Spouses and Children
o Closed Loopholes
 Can’t buy U.S. company and then transfer over only the President/sole shareholder. Must keep
running the business.
  Can’t use L-1Bs to get around the H-1B cap
 M: Vocational Students
o M-1 Student
 Non-academic study—will not lead to a degree
 Least used of all student visas
 Same requirements as F
 Barred from working off-campus
o M-2 Spouse and Children
 N: Foreign Representatives
o Ties to G, A visas
 O: Extraordinary ability in sciences, arts, education, business, and athletics (limited to duration of specific
sport/activity)
o O-1A Extraordinary Ability (anything but film/tv)
 EXTRAORDINARY ATHLETE ≠ EXTRAORDINARY COACH
o O-1B Extraordinary Ability (film/tv)
o Not the same requirements as EB-1A—less strict requirements
o O-2 Supporting Workers
 Must be essential to the O-1 holder’s work—stage crew, etc
o O-3 Spouses and children
 Does not come with work authorization! (Russian hockey wives)
 P: Artist/Entertainer/Athlete (limited to duration of specific sport/activity)
o Less accomplished than O holders (NWHL vs. NHL)
o Still must have a high level of achievement in the field
o If you still don’t meet the burden, get a J visa
o P-4 Spouses and Children
 No work authorization
 Q: International cultural exchange
o “Disney visa”
o Rare to see this visa outside Epcot workers
 R: Religious Workers
o R-1 Ordained clergy, rabbis, imams, etc
 Fundraising specifically excluded
 S: Witnesses
o Obtained by law enforcement
 T: Victims of Trafficking (4-year term, nonrenewable)
o Victims of “severe forms of trafficking in persons”
 Does not include forced sex not for money!
o Individual would suffer extreme hardship if deported
o Individual has complied with all reasonable requests made by law enforcement
 Do not need certification of assistance, but it’s very helpful
o Can adjust to LPR after 3 years’ physical presence in the U.S.
o Can also bring spouse, children, parents, and siblings
o No cap
 U: Victims of Crime (4-year term, nonrenewable)
o Statutory requirements in INA 101(a)(15)(U), 214(p)
 Must possess information concerning criminal activity and have been helpful/be helpful/be
likely to be helpful to law enforcement
 Do need certification of assistance from police
o Can adjust to LPR after 3 years’ physical presence in the U.S.
o May also bring spouse, children, parents, and siblings
o 10,000 grants/year, cap almost always hit
 V: Family Unity (discontinued)
o Part of “Reagan’s Amnesty”
  TN: Only Canadian/Mexican, for professions in Appendix A
o Mexicans get TN visa, Canadians get TN status
o Mexicans get 1 year, Canadians get 3—both admitted for 3 years

Nonimmigrant Visas
 Noncitizen who seeks admission to the U.S. for a temporary stay and a specific purpose
 Valid for multiple entries (consulate may write valid for one entry only, but presumption of multiple entries)
 INA 214(b): all nonimmigrants are presumed immigrants with the intent to stay indefinitely until they
affirmatively prove otherwise
 Application process:
o Noncitizen applies for visa at U.S. Consulate
 May change status to any other nonimmigrant category (INA 248)
o Additional steps needed to change to F-1 (post 9/11)
 38 countries are on visa waiver program: automatic B1/B2 travel for up to 90 days
o Requires machine-readable passport
o Waive the following rights:
 Right to extend stay
 Right to change status
 Right to a removal hearing

o Canadians and Bermudians: 6 months, can apply at border
 Still need visa for A, E, K, and S

Parole
 Legal fiction that permits immigration officers to physically allow a foreign national to enter the U.S. without
being admitted
o Appropriate for urgent humanitarian reasons or significant public benefit
o Reality: used if someone is extremely ill or asylum applicants who present themselves at points of entry
 Issued I-94 card
 Can adjust status through family-based preference
 Parole-in-place
o 2013 program to assist spouses of USCs on active-duty military status
o Eligible even if EWI/undocumented
o May adjust status
o Does not cure the permanent bar
 Advance Parole
o Permits applicants for visas, etc to lease the U.S. while the application is pending and re-enter lawfully
o Inadmissibility bars still apply
o Typically used by applicants who are adjusting status

Adjustment of Status (INA 245)

 Process of becoming a LPR from within the U.S. after approval of an immigrant visa petition
o If foreign national is eligible for adjustment of status and is an immigrant relative or if the category is
current, can file for adjustment of status together with an immigrant visa
 You did this for clinic
o Can’t leave the country without advance parole
o 245(c) disqualifying categories
 Working without authorization
 Entered on a waiver program
 Not maintaining lawful status unless for technical reasons or no fault
 245(i) LAPSED, but may still be important because of a broad grandfather clause
o Allows adjustment of status notwithstanding EWI and unlawful presence for most individuals
o Visa petition or labor certification filed before 1/14/1998
 o Beneficiaries of visa petition or labor certification (4/30/2001) and in the U.S. on 12/21/2000

Overseas Processing – Immigrant Visas

 When priority date current and visa file complete, NVC sends the file to the consulate where the beneficiary will
complete the process in-person
o Can do in home country, can do in 3rd country if living there lawfully/hardship
 All Somali petitions go through Nairobi as Somalia has no government
o MUST have medical approval
 Nonimmigrant visas are very similar—including interview for all applicants 14-79 years

Ports of Entry
 Usually cannot board plane without a visa
o They may not let you in, but at least you have approval from someone
 If CBP rejects you:
o Can be put in expedited removal (goes on record)
o May be given a chance to voluntarily withdraw petition and go back on your own terms (does not go on
record)

Asylum Seekers
 Major exception to expedited removal
 Can claim asylum/fear of return
o Officer reads foreign national their rights in a language they can understand
o Officer then interviews them (“credible fear interview”), makes a summary of their claims, and then
sends the person to a detention center while their asylum claim is adjudicated
 INA 235(b)(1)(B)(v)
 Cannot take place before 48 hours of arrival
 May consult attorney at no cost or delay to government, but very difficult to do so
o If credible fear interview successful, set for full asylum hearing—may be released on bond in the
meantime
o If you fail your credible fear interview you can appeal to an IJ within 7 days
 Denial will be in writing
 24 hours – 7 days later you will get a hearing
o If IJ affirms removal, you get deported
o If IJ reverses, case goes for a full hearing
 Detention
o Expressly required by statute (exception for medical emergency/LE reasons)
o May parole out if identity established, no flight risk, and other good factors
 Current lawsuit against CBP
o AIC sued CBP claiming widespread violation of these rights and procedures

National Security and Screening

 Entry-exit controls
o US-VISIT takes photo and fingerprints for all entries and exits
 Except those outside the 14-79 age range
 Exit capability not 100% complete, not implemented on S. border
 SEVIS Student Visa Monitoring (F, J, M visas)
o Monitoring begins from time they are accepted until time they leave school
o Extensive communications with schools and extensive reporting requirements
 Regular and Special Registration
o Special classes of noncitizens get special registration and fingerprinting
 NSEERS, 2002-2011: massive questions regarding race and national origin, adopted pursuant to
INA 263
Review of Admissions Decisions
 If denial was made in the U.S.
o Denials of employment-based petitions heard by USCIS administrative appeals office
o Denials of family-based petitions heard by BIA
o Denied adjustment of status does not get an appeal right
 May be brought up in subsequent removal proceedings
 A USCIS denial does not bind the judge
 Appealable to BIA but limited to constitutional questions or questions of law
o Appealable denials reviewable in federal district court after exhaustion of administrative remedies
o The government may ask for a recission of adjustment of status within 5 years of the grant
 Can also be removed even if more than 5 years out, so
 If denial was made at a consulate
o Supervisors must review a random sample of decisions made at the consulate
o Applicants may submit additional documentation after denial, file may be reconsidered if they do so
o The visa office issues persuasive advisory opinions from time to time
 Bound by judgment of law
o You cannot appeal a consular visa denial to a higher administrative authority
 Held to be beyond the jurisdiction of courts
 Visa revocations are also beyond the scope of courts
 If denial is made at the border
o If first officer doubts admission, second officer asks more questions (secondary inspection)
o Foreign national may be allowed to voluntarily withdraw
 You do have the right to a removal hearing
 You do not have the right to counsel, but have 10 days to secure an attorney if you want one

Inadmissibility
 Admission: lawful entry after inspection and authorization by an immigration officer
o Key: whether noncitizen complied with procedure—not whether they should have been admitted under
law
o Matter of Quintanlan: waive-in entry is still admission (i.e., kids in the backseat)
 Inadmissibility grounds apply to any noncitizen who has not been admitted
o As soon as you are admitted, can only be removed under a deportability ground
 INA 101(a)(13)(C): returning LPRs are not seeking admission (some exceptions)

Inadmissibility Grounds
 INA 212(a): lists groups ineligible to receive visas (ineligible to be admitted to the U.S.)
 INA 237(a)(1)(A): you are deportable if you were inadmissible at time of entry or at time of adjustment of status
o If you commit a crime while here, for example
 Admissibility evaluated:
o By consular office when getting a visa
o By CBP when being admitted
o By USCIS when adjusting status
 INA 212(f): gives the President the power to suspend classes of immigrants by making them inadmissible
o ROOT OF TRAVEL BAN LITIGATION

Guidance from the Foreign Affairs Manual

 Cannot use fraud ground broadly—they must be construed narrowly because it results in a lifetime ban
 Cannot refuse a visa because you think the person is undesirable
 Misrepresentation must be an affirmative act by the alien
o Does not include failure to volunteer information
o Does not include silence
o Misrepresentation must be before a U.S. official
o Misrepresentation must be on one’s own application
  If prepared by an attorney, the attorney must be aware of the misrepresentation
o “Willingly” = knowingly and intentionally

I-601A Provisional Unlawful Presence Waiver

 Since 2016, relatives of both USCs/LPRs are eligible
 Intent was to reduce time of family separation, since previously one person had to stay abroad during the
adjudication
 Qualifying relative requirement is the same—must have USC/LPR spouse or parent (not child)
 Consulate can still identify additional grounds of inadmissibility, requiring denial of admission or adjudication of
additional I-601 waiver
 DOCUMENTATION IS KEY

National Security
 Post 9/11 legislation that affected visas:
o PATRIOT Act
o Abolition of INS
o REAL ID Act
 Kleindiest: Can absolutely exclude foreign nationals on basis of political beliefs under INA 212(a)(28)—includes
Communists and other Marxists
o Reworked after 1991: communists, former members of the Communist Party, and anarchists now
allowed in the U.S.
 AEDPA: criminalized material support to foreign terrorist organizations
o Broadened and expanded by USA Patriot Act
 Made representatives of terrorist organizations or individuals advocating terrorist acts
inadmissible
 Shifted the burden to the noncitizen to prove admissibility rather than keeping on the
government to prove inadmissibility
o Defined: must be in terms of violent attacks taken out or planned
 Also includes spouses and children of defined terrorists
 Organizations defined on FTO Tier I list
 Tier II list exists, but fewer sanctions

Deportability
 Only introduced in 1907!
 INA 237: broad categories
o Inadmissible at time of entry
o Entered, but later violated terms of entry
o Convicted of criminal offenses
o Falsified documents
o Failed to register
 30+ day stayers must be fingerprinted, register, and provide a U.S. address where they will be
staying (INA 262, 265(a)).
 Failure to provide change of address also a crime
 Almost never checked
o Engaged in activity raising national security/foreign policy concerns
o Became a public charge
o Voted unlawfully
 INA 237(a)(1): turns all inadmissibility grounds into deportability grounds
o NO STATUTE OF LIMITATIONS
o Waiver in 237(a)(1)(H); can be used by USC/LPR spouse, parent, or child
 INA 237(a)(1)(B)/(C): deportability ground for unlawful presence/visa overstay
 INA 237(a)(1)(C)(1): deportability ground for failure to maintain status
 o Includes everyone from failure to maintain visa and working without authorization to students not
enrolling in school and temporary workers switching jobs
 No exercise of discretion: language says they “shall” be removed if an order of removal is granted
 Retroactivity
o Due process clause does apply, ex post facto clause does not
o If courts find that the new law meets rational basis test, due process is satisfied
 Registry:
o Amnesty that allows someone to become a LPR if they entered before 1972
 Only useful if your client is OLD

Criminal Convictions and Consequences for Deportation

 The burden is on DHS to prove deportability
o Advice: deny the existence of a conviction and the deportability ground—make them prove it
 Padilla: attorneys must tell clients if guilty plea will result in deportability
o O.R.C. 2943.031: court itself must say that a guilty plea may result in deportation
 Person must understand what is being said
 The judge must read the statement as written
 Major categories: INA 237(a)(2)
o Crimes Involving Moral Turpitude
 No set definition but 3 broad categories
 Serious crimes against persons (murder, rape, ag assault, kidnapping)
 Serious property crimes: (arson, burglary, embezzlement)
 Crimes involving an element of fraud
 Also covers professional license revocation
 INA 237(a)(2)(A)(i): one conviction within 5 years of admission gets you automatic deportation
 Does not reset if you adjust status
 Sentence of 1 year or longer MAY be imposed
o Aggravated felonies (list changes every year)
 INA 237(a)(2)(A)(iii): if you commit an aggravated felony at any time, you are automatically
deported
 INA 101(a)(3): defined in broad terms
 Includes attempt to commit any of the listed crimes
 Only exception: social sharing of marijuana (no $ exchanged)
 Non-deportation consequences:
 Ineligible for most forms of relief: asylum, cancellation of removal, and voluntary
departure
 Barred for life from the U.S.
 No right to a hearing in front of an IJ
 Long sentence
 Esquivel-Quintana: if state-level acts do not exactly fit the federal definition, it is not an
aggravated felony
o Drug crimes
 Often an overlap with “drug abuser/addict” inadmissibility and ag felonies
 INA 237(a)(2)(B) applies to any conviction violating any country’s drug laws
 Only exception: single possession of marijuana <30g for personal use
 Make DHS prove the amount of marijuana!!! Always!!!!
o Firearm offenses
o Crimes of domestic violence
 Stalking, DV, child abuse/neglect/abandonment
 Statutory definition has two aspects (INA 237(a)(2)(E)(i)
 Must be a crime of violence as defined in 18 USC 16.
  Crime must be committed against a current/former spouse OR someone in the position
of a spouse
 Also covers local definitions of family/DV laws
 Often overlaps with ag felony and CIMTs
o “Miscellaneous” offenses
 Conviction: INA 237(a)(2)
o Requires a conviction, defined in 101(a)(48)(A):
 A judge or jury has found the alien guilty or
 The alien has entered a guilty/NC plea or
 They have admitted sufficient facts to warrant a finding of guilt AND
 The judge has ordered some form of punishment/penalty/restriction of liberty
o Deferred adjudications are convictions if:
 Defendant pleads guilty and the charge is later dismissed
o If a conviction is reversed on appeal for either procedural or substantive reasons, the government
cannot use the underlying crime to remove the defendant
 Unless the conviction was vacated for the explicit purpose of avoiding deportation
 The burden is on the defendant to prove those procedural/substantive grounds, according to
the BIA
 The federal circuit courts are split on this!
 Expungement
o Does not have an impact on deportation consequences unless it’s an expungement of a juvenile matter
 Sentence reductions
o New sentence replaces old one for determining immigration consequences
 Even if you did it to avoid deportation
 Pardons
o Must be a full and unconditional pardon by the President or Governor of the State
 Eliminates ALL deportation consequences unless it’s a DV or controlled substance crime
o Will not affect inadmissibility bars
 Other post-conviction relief
o Habeas/coram nobis, etc
o Major questions about Padilla – type motions
 Constitutional challenges & state crimes
o “Void for vagueness” doctrine—SESSIONS V. DIMAYA RIGHT NOW SCT
o Moncrieff: a state offense is a felony punishable under the Controlled Substances Act only if it proscribes
conduct punishable as a felony under federal law
o Lopez: only a crime punishable as a federal felony can be an aggravated felony under 101(a)(43)(B)

Waivers
 INA 212(h) waives inadmissibility based on crimes if certain other conditions are met
o Courts are split on whether the noncitizen must leave the U.S. to be able to use the waiver
o You cannot use waivers on aggravated felons—this has survived rational-basis scrutiny

The Categorical Approach

 Used to determine whether a criminal conviction comes within deportability and/or inadmissibility grounds
 To determine whether a crime is a CIMT or aggravated felony
 Categorical approach first, then modified categorical approach if that doesn’t work

3 Steps:
1. Does the generic definition of the crime in the removal statute match the elements of the criminal statute of
conviction?
a. Generic definition = technical, federal definition
b. DO NOT LOOK AT THE FACTS OF YOUR CASE
c. Only compare the statute of conviction to identify the minimum possible conduct that is criminalized
 i. If they match, it’s a removal ground
ii. If not, the statute is overbroad and the immigrant wins unless the statute is divisible
2. Is the statute divisible?
a. DeCamps and Mathis
i. Statute has discrete elements in the alternative
ii. At least one but not all elements must be a categorical match to the generic definition
iii. Jury must decide unanimously between steps to convict the defendant
b. If the statute is not divisible and is overbroad, then the immigrant wins BIG
c. If not, step 3
3. Modified Categorical Approach: YOU DON’T NEED TO KNOW THIS

Circumstance-Specific Approach
 Nihjawan v. Holder: still applies, and often relief upon by DHS to distinguish when the categorical approach does
not apply
 When the circumstance-specific approach is permitted, the decision-maker is permitted to look at everything
 When is it used?
o If the language of the statutory provision refers to conduct
o If the use of the categorical approach would render the statute applicable to very few
o Generally, when the statute involves a question of fact
 Specific amounts of drugs, [act] for [purpose], failure to appear for felony with a specific
sentence, heightened “violent or dangerous” offenses

Relief from Removal

 Similar to a criminal defense to action: “Yes, I am removable, but I should not be removed because ___.”
 2 forms:
o Statutory eligibility
o Favorable exercise of discretion

Favorable Exercise of Discretion

 Cancellation of removal for LPRs
o Do not need to establish hardship, but it helps
o Keeping the immigrant here would be in the “best interest of the country”
o Good factors: family ties within the U.S., residence of long duration, hardship, service in armed forces,
history of employment, property and/or business ties, evidence of value or service to the local
community, evidence of rehabilitation if they had a criminal record, any other good factors
o Bad factors: Nature of removal circumstances, additional immigration violations, recent/bad criminal
record, any other bad factors
 Cancellation of removal for non-LPRs
o Extremely discretionary but highly deferential review
o “exceptional and extremely unusual hardship” and good moral character
 Post Pereiria
o Mass confusion as to its implications
o Ohio IJ's did not grant motions, but judges did
o Thousands of cases were terminated
o Still allowing the holding as to time stop, but not termination
 Matter of Bermudez-Cota
o Aug 31 BIA ruling - A notice to appear that does not specify the time and place of an alien's initial
removal hearing vests an IJ with jurisdiction over the removal proceedings and meets the requirements
of sec 239(a), so long as the notice of hearing specifying this information is later sent to the alien.

Voluntary Departure
 “Under safeguards”
o For those detained
 o Respondent remains in the custody of ICE
o Must have a DIRECT flight home
o You’re free from ICE custody when you land

Relief from Removal—VAWA

 Only applies if your abuser is a USC/LPR!
o Parallel to cancellation of removal for non-LPR
 Must have 3 years’ continuous presence—can accrue after NTA
 Absences from U.S. related to the abuse do not count towards the 90/180-day rule
 “Extreme” hardship standard, may be to self not just spouse, parent, or child—8 CFR 204.2(c)(iv)
 Goes directly to a green card for the abused party and their noncitizen children

SIJ (INA 101(a)(27)(J))

 Must be under the age of 21
 Cannot be united with 1 or both parents due to abuse, neglect, or abandonment
o Some want to change this to only both parents
 Must be in custody of a state agency or another relative
 Court must find that it is not in the best interest for the child to return to their homeland
 Results in a green card
o Cannot bring over parents on this green card!
o Can only bring over siblings once naturalized
 Some countries hugely oversubscribed (EB-4)

Prosecutorial Discretion
 An agency may hold back deliberately
o It is monetarily impossible to deport everyone
o May be for humanitarian reasons as well: married to a USC, employed by a U.S. company, etc
 Macro: DACA, travel bans
 Micro: going after big fish rather than little ones, making individual decisions

Selective Prosecution
 Reno v. American-Arab Anti-Discrimination Committee: you cannot assert selective prosecution as a defense!
o The prosecution chooses, not you.

Deferred Enforcement
 Morton Memos: Our maximum capacity is 400,000 removals/year
 You may be able to obtain work authorization upon a showing of need
o No family reunification rights
o Subject to withdrawal at any time
 You do not accrue unlawful presence during deferred action for purposes of the 3 and 10 year bars
 Stay of removal: same thing, but a final removal order has already been issued

Johnson ICE Memo (not binding)

 Prosecutorial discretion should be exercised on:
o Issuing, serving, filing, and cancelling NTAs
o Stops, questions, and arrests
o Detention and release
o Settlements, dismissals, appeals, and joining in on cases
o Whether to grant deferred action, parole, or a stay
 Priorities
o National security and public safety threats
 Suspected terrorists and spies
  Foreign nationals apprehended at the border who attempt to enter
 Convicted gang members or gang participants older than 16
 Convicted felons (not felony immigration violations)
 Convicted aggravated felons
o Misdemeanors and New Immigrants
 Convicted of 3+ misdemeanors
 Convicted of a significant misdemeanor + cannot prove presence since January 2014
 Visa abusers/visa waiver abusers
o Anyone with a final removal order
Thrown out the window in January 2017—ICE is now removing anyone it wants to

Refugees, Asylees, TPS

Framework
 Refugee Act of 1980: authorizes President and Congress to set number of refugees accepted each year
o Refugees can adjust status to LPR after 1 year
 No cap for asylum grants, but must demonstrate well-founded fear of persecution
 Temporary Protected Status (TPS): for specific countries, and only in certain situations as designated by the
executive branch
o INA 244: The Secretary of DHS can designate TPS for armed conflict, natural disaster, or other situations
posing a serious threat
o Typically authorized in 18-month increments
o Protects only individuals already in the U.S.—no magnet effect
 To become a refugee, must satisfy Article 1(A)(2) definition
o 1951 Convention Relating to the Status of Refugees, modified in 1967
o “Any person with a well-founded fear of persecution” on account of race, religion, nationality, social
group, or political opinion
o Is currently outside their home country
o Is unable/unwilling to return
 Terms
o Refoulement: return of refugees to their country of persecution
o Asylum: shielded against return, also get package of rights
 Must have legal presence to get those rights!
 No legal presence still means you won’t be taken back to your country of persecution, you just
don’t get rights

Asylum
 INA 208: allows CBP to grant asylum status
 INA 241(b)(3): automatically withholds deportation if doing so would harm the deportee
 2 forms of relief from removal
o INA 208: for a well-founded fear of persecution
 9th Cir: “suffering or harm upon a person who differs, such treatment is offensive”
 Posner: “punishment for reasons society does not consider legitimate”
o INA 241(b)(3): when the person’s life and/or freedom is threatened
 Persecution: 8 CFR 208.13, 1208.13
o *** the persecution must be a government actor or an actor the government is unable or unwilling to
control***
o People who have experienced past persecution have a presumption of facing future persecution
 Rebuttable by the government, must show:
 A fundamental change in circumstances
 Applicant could avoid persecution by moving to a different part of the country
 INA 209(b): Asylees can adjust status to LPR after 1 year
o Can bring their families
  Withholding grantees may get public assistance
o They may not bring their families over
o They cannot adjust to LPR unless it is through marriage or employment

Procedure for Application

 1-year time limit for asylum; no time limit for non-refoulement
 Applicant must be advised of the right to counsel and provided a pro bono list
 INA 208(b)(1)(A): ASYLUM MERITS FAVORABLE GRANT OF DISCRETION!
 2 paths: affirmative and defensive
o Affirmative: before you’re in a removal proceeding
 Adjudicated in non-adversarial manner
 State Dept. Country and Religious Freedom Reports used heavily
 Failure to grant means automatic referral to IJ for removal
o Defensive: as a defense to removal
 As part of expedited removal:
 Credible fear interview within 48 hours, if claims credible you get a full court hearing
 If claims not credible, expedited removal
o Some review, almost NEVER happens
 80% found to have a credible fear
 Work authorization
o 180 days’ waiting period
 Delays required by asylum seeker do not count
o Today, most asylees get work authorization while the asylum decision is pending
 Form I-589: why are you seeking protection and what will happen if you return to your own country
o Fraud/misrepresentation will get you barred from all benefits
o Initial hearing must be within 45 days of filing your petition, the final disposition will be within 180 days
 All in theory, as there are huge backlogs

Membership in a Particular Social Group

 Defined by individuals with immutable characteristics or characteristics so bound to one’s identity that they
should not be required to change them (Matter of Acosta)
o Sexual orientation, clan membership, refusal to take part in FGM, etc.
o Political affiliation (e.g., fleeing Communism) can be imputed by the fact that they are fleeing the
country for their own safety
o Does not include current job (taxi driver) but can include former job (former member of Salvadoran
national police)
 Can’t change what you’ve already done
 Matter of M-E-V-G:
o Groups MUST be
 Visible
 Recognizable
 Discrete
o MUST be perceived as a group within the society by members of the society itself!
o It is the applicant’s burden to establish they are a part of the group and that such a group exists
o Does not include “former gang members targeted for leaving the gang”
o DOES include “mothers targeted because they refuse to let their sons join gangs” (Hernandez-Avalos)
 If there are multiple reasons for leaving/seeking asylum, a protected ground must be at least one

Gender-Related Claims
 Not included as a ground in the 1951 Convention OR the U.S. statute
o Asylum claims which include sexual assault/rape are in question, as are FGM, DV, and forced marriage
  Country-specific claims tend to do well: “Guatemalan women violently abused by their husbands unable to leave
their relationship” found to be acceptable class (Matter of ARCG)

Removal
 Applicable in removal proceedings
o Due process
o Fairness
o Constitutional rights
 Not applicable in removal proceedings
o Civil procedure
o Criminal procedure
o Federal Rules of Evidence (except when they are applicable)
 Generally, all evidence is admissible, even hearsay and unauthenticated documents
 It’s all admitted and the IJ has discretion to determine what weight should be given to the
evidence
 Authority of IJ (INA 240(b)(1))
o Administer oaths
o Receive evidence
o Interrogate
o Examine
o Send subpoenas
 If respondent wants a subpoena they have to ask the IJ

Immigration Detention
 Arriving aliens in expedited removal should be detained
o May be eligible for parole under certain circumstances:
 Serious medical conditions
 Pregnant women (ICE ignores this)
 Certain juveniles (ICE also ignores this)
 Witnesses for the U.S. government
 Aliens whose continued detention is not in the public interest
 ICE prisons
o Average stay is about 1 month
o Huge abuses
o Reforms:
 There’s no oversight, so why the fuck do you expect any reforms
o Juvenile detention
 Technically violates the Flores settlement agreement, but until the government finds them a
sponsor, youth are detained
o Alternatives to detention
 EMDs are bad, actually
Enforcement
 Really started in 1986
 For years, rested on cooperation between local law enforcement and INS/DHS
o Relied on phone calls to their local bureau at intake/booking, not on final disposition
o If EWI or visa overstayer, could be deported right there and then without charges being filed
 INA 287(g) “Secure Communities”
o Local law enforcement would send booking/intake fingerprints to the IDENT database to check for
previous removals
o No state or local officer had any role in determining DHS jurisdiction
o MANY law enforcement agencies refused to work with this program
o Cancelled in 2014, reinstated in 2017
o Only location in Ohio is Butler County (Sheriff) who is mega-racist
From Bittner:
 modified categorical approach ≠ on it
o too complicated, and will probably change
o know it’s used to determine whether it’s a crime involving moral turpitude or agg felony, but don’t need
to know how to apply it
 INA – need not cite, but may if want to
 DON’T IRAC short answers
 short answer questions, based on readings in the text; not bar style − policy questions
 The exam will be short answer, fact-based problems as in the textbook, and something on policy
 212 inadmissibility and 237 removability are separate statutes. They are not interchangeable so don't mix them
up. The petty offense and juvenile exceptions are only in 212, not 237.
 similarly, the time-stop rule is a concept unique to cancellation of removal, not inadmissibility or removability.
Time stops when the crime is committed; not when convicted
 registry required immigrants to register with legacy INS through a process available at that time, in the 1980's
 the exam is designed to be a 3-hour exam, but you may finish more quickly