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Family Immigration Nonimmigrant: no intention of making US permanent home Immigrant: wants to abandon former residence and have one in the U.S. Eligibility: to sponsor you must either be a citizen or an LPR and must be able to show you can support the immigrant at 125% of the poverty level (requires an affidavit of support). A. Visas to Family Members 1. (Immediate Relatives- Highest Preference) i. Unmarried son or daughter (under 21)of US citizen ii. If an immiediate relative child under age 21 gets married, he/she can no longer be classified as such and will become a ―third preference‖ category married son/daughter of a U.S. citizen & a visa would no longer be immediately available. iii. Gay spouse is ineligible, instead a visitor’s visa is usually issued iv. Conditional Permanent resident: whenever a noncitizen receives LPR status as an immediate relative or as a family-sponsored second preference immigrant or as a united state citizens fiancé, by virtue of a marriage that is less than 2 years old, the resulting permanent resident will be subject to conditions subsequent a. Doesn’t apply to accompanying or following spouse/statutory child b. Conditional residence is for two years and that resident in that time will have same rights and responsibilities as other permanent residents c. To maintain permanent residence past those two years, the conditional resident is required to file a joint petition with his or her spouse to remove the condition (must be done within 90 days before the card expires and if not, or if without good cause either spouse fails to appear at interview, permanent residence is terminated). d. IMFA also applies to anyone who acquires permanent residence by virtue of being the son or daughter of an individual through a qualifying marriage e. Certain restrictions are placed on a person who obtains LPR status by marrying a USC or another LPR and then after termination of that marriage, marries another non-citizen and seeks family-sponsored second pref for that noncitizen, unless a period of 5 years has elapsed after the alien acquired the status of LPR, or the alien established to the AG by clear and convincing evidence that the prior marriage wasn’t entered into for the purpose of evading any part of immigration laws. 2. First preference: unmarried sons and daughters of U.S. citizens and children if any i. As long as marriage took place before child turned 18 and the marriage is still intact, step-relationship would be found regardless of any existing parent-child relationship. ii. A citizen father may petition for his child born out of wedlock; whereas children born out of wedlock to citizen mothers automatically qualify iii. Adopted children may qualify but only if adoption was finalized prior to childs 16th birthday 3. Second preference: spouses or children of an alien lawfully admitted in U.S. for permanent residence- LPR a. The spouse or child must be acquired before the principal immigrant’s admission as an LPR: condition satisfied if child is product of marriage before the principal immigrant’s admission as an LPR b. A spouse or child will be regarded as ―accompanying‖ the principal immigrant until 6 months after the issuance of the principal immigrant’s visa c. There is no analogous time limit on a spouse or child who is ―following to join:\ i. 2As- spouses and children (under 21) of LPRs

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ii. 2Bs-all other 2nd prefs (over 21 unmarried sons and daughters of LPRs) 4. Third Preference: Married sons and daughters of US citizens 5. Fourth Preference: Brothers and sisters of over-age 21 U.S. citizens II. Employment-Based Immigration  Labor Certification: For the 2nd and 3rd preference applicants, a requiredstatement from the U.S. department of labor that a particular position at a particular company is ―open‖ because no jobs are available a. To get LC, the alien must get a permanent offer from one, full-time U.S. employer (multiple employers cannot combine)> the alien cannot be admitted as an LPR unless the mployer obtains LC that qualified U.S workers aren’t available for the employment offered to the alien and that the wages and working conditions offered will not adversely affect those of similarly employed U.S. workers.  A total minimum of 140,000 immigrant visas per year are available for PREFERENCE categories which is divided in 5 ways: 1. First Preference (E1) Priority Workers: Persons of extraordinary ability in sciences, arts, education, business or athletics; outstanding professors and researchers; and certain multinational executives and managers i. No LC required for this category- saves about a year of time ii. Includes inter-company transfers iii. To come via this category must have worked for at least 1 year as an executive or six months for very large corporations iv. For extraordinary ability, NO specific job offer is necessary, so long as they plan to work in their field of notoriety a. This group can self-petition v. Outstanding professors and researches with 3 years experience. No LC, but employer must offer job and file petition vi. Certain executives and managers with 3 years experience must be coming to work in that capacity. No LC required, but employer must provide job offer and file petition. 2. Second Preference (E2) Members of the Profession: Professionals holding advanced degrees and persons of exceptional ability in the sciences, arts and business and visa requires LC and job offer. i. LC and job offer requirement can be waived if alien shows how exemption could be in national interest ii. Professional holding advanced degree (beyond bachelors) or a bachelors plus 5 years progressive experience 3. Third Preference (E3) Professionals, Skilled and unskilled workers and workers who can demonstrate their labor is needed (―other workers‖): Professionals holding their bachelor degrees, skilled workers with at least 2 years experience and other workers whose skills are in short supply in the U.S. i. No more than 10,000 workers whose skills are in short supply in the U.S. ii. Requires Labor Certification iii. Professionals are those jobs that usually require bachelors iv. Skilled workers are persons capable of perfroming a job requiring at least 2 years training or experience. (Waitress, for example. Max 10,000) v. Note: The department of labor has flagged certain occupations which will require additional showings beyond the usually required. Schedule B-parking attendants, nurses aides, cab drivers. 4. Fourth Preference (E4) Special Immigrants: certain religious workers, ministers of religion, certain international organization employees and their immediate family members and qualified, recommended current and former U.S. government employees. i. No LC required

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ii. Preference not allowed to take overflow from other categories iii. Only 10,000 per year 5. Fifth Preference (E5) Employment Creation/Entrepreneurs: persons who create employement for at least 10 unrelated persons by investing capital in a new commercial enterprise in the U.S. i. Minimum capital required is between $500k and $1 million depending on the employment rate in the geographic area. ii. Business investment must employ at least 10 americans iii. No LC required 1. Displacing American workers: if the job offered to an immigrant has restrictive job requirements, the employer must show their business necessity. i. To establish a business necessity, an employer must demonstrate that the job requirements bear a reasonable relationship to the occupation in the context of the employer’s business and are essential to perform, in a reasonable manner, the job duties as required by the employer. ii. The Secretary of Labor can require the employer to advertise the job at the ―prevailing wage‖ (the average wage of workers similarly situated in the area of intended employment).  Diversity Based Immigration: countires of high immigration cant participate in diversity lottery. Theory behind this is to give people with no other hope a chance to enter the United States. Procedure: 1. USCIS determines number of noncitizens who entered from each foreign country over the past 5 years; 2. World divided into 6 regions and each receives inverse percentage compared to how many immigrants came from that region in last five years. III. Nonimmigrant Priorities  An entering non-immigrant must fit into one of 22 categories & not be excludable A. Commercial Visas a. Business Visitors i. B1: activities of a commercial or professional character (a) Consultations, attending seminars (b) Admitted for up to one year, with possibility of multiple extensions in six month increments. (c) Specifically excludes those coming to perform skilled, unskilled labor, or ―engaging in employement.‖ (d) Don’t include purely local employment nor construction workers (unless supervisor of construction) (e) Manual work may be ―business‖ rather than ―labor‖ and therefore qualify for a B1 visa if the work is a ―necessary incident to international trade or commerce.‖ (f) Transporting of passengers aren’t necessary incidents to trade, but transporting of goods does qualify for a B1 visa - Must have legitimate commercial or professional activity and must maintain a foreign residence b. Treaty Traders (E1) and Investors (E2) i. The eligibility of an individual under these visas rests on the terms of the particular treaty. The source for determining eligibility is the statute itself and case law ii. Both categories are admitted up to 2 years, with an unlimited number of possible 2 year extensions.

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on their own behalf or as employees of a treaty trader. a temp staffing service that has a permanent need for persons with a particular skill cant petition for H2B workers to fill its clients short term openings. (Nice v.S. Requires 1) at least a bachelors in the particular specialty or 2) the equivalent of the bachleors in the U. d.S. May not remain in U. Also for fashion models 2.S. ―Agricultural Workers‖.S. iv.intended to enable multinational corporations to transfer high level or essential employees from overseas offices to aid or initiate business operations in U.S. i. temporarily to direct or develop a bona fide enterprise in which they have made a substantial investment. or 3) a license to practice.S. workers c. constituting a ―personal business risk‖ in order to qualify for E-2 treaty investor status. not the temporary nature of the job. d. Employer must file labor condition application: assertions by the employer that wages are equal or exceed the prevailing avg and that there will be no adverse impact on U. The H status category is designed to help employers meet an immediate and temporary need for labor. longer than 3 years. b. ―Spouses and children of H‖-H4: may not accept employment in the U. a. H visas can enter with hope of attaining LPR. ―Lesser Skills & Labor Shortages‖-H2B: work of a temporary nature and includes nonagricultural seasonal workers a. Dual intent is okay.H2A: employer must still obtain from the DOL a certification that sufficient American workers cant be found and that the nonimmigrants employment wont adversely affect the wages and working conditions of American Workers.S. i. (a) Treated Traders (E1): granted to those entering the U. Requires that the applicant has been continuously employed abroad for one year out of the last three prior to the application. This nonimmigrant must be coming temp to the U. It is divided into six classes: 1. Whether a position is temporary is based on the nature of the petitioning employer’s need for that service. (b) Treaty Investor (E2): granted to those who are coming to the U. 4 . Temporary Workers i. ii. 3. offices may have a parent subsidiary relationship or may be affiliates owned by the same company.Intent to retain one’s foreign residence is not required. Spouse and children may follow to join. c. To qualify: must be executive. The U. or possesses essential skills. intent to depart upon termination is required. Require labor attestations not labor certs (no addtl docs needed unless audited). unless they specifically included in the employers petition. Intra-Company Transfers: L status. However. manager. Turnage) c. including trade in services or technology. Admitted up to one year with one year extensions for a max of 3 years b. Spouses have permission now to work. ―Specialty Occupations‖-H1B: requires theoretical and practical application of a body of highly specialized knowledge a. Therefore. ―Trainees‖-H3: coming as a trainee 5. The INS may require an alien to prove that investment funds belong to him. provided that at least 50% of iii.S. 4.S. to engage in substantial trade in goods or services. pg. and may be admitted for six years and apply for extension e.

v. (g) F1 students may still attend private elementary and secondary schools (h) Any student in violation is now deportable and inadmissible for 5 years after date of violation.Foreign students also engage in O. such as changes of research topics. for the max time must remain outside of the country for one year before applying to return as an H or L vii. Public is prohibited. problems or illness. It is renewable.). . Educational Visas. etc. iii. Following or accompanying to join included. Exchange Visitors (students. Off campus work only allowed when unforeseen circumstances arise. Spouses to work. (e) An applicant must also demonstrate sufficient funds . Transferees who have been in the U.Students may work on campus up to 20hrs/wk and 40 on vacation. faster intellectual & cultural interchange and. (b) M status may not accept employment. manager or exec. or have specialized knowledge of product or procedures. vi. build positive foreign relations. May have dual intent.5 years. The employee must be managerial.F1 Visas and F2 for their spouses/children i. iv. Students (F status): to receive a visa.If student comes to school that’s not approved. Vocational/nonacademic students (M status): need full course of study at an established or recognized or other nonacademic institution and children are granted M2 (a) Status is granted for the period of time necessary to complete the course of study plus 30 days (1 year). People who manage functions included. Employers may file blanket petitions for more than 1 employee intra transfer.A ―designated school official‖ estimates a reasonable ―completion date‖ for the particular program. .Student can apply for extension with the university for compelling academic or medical reasons. 5 . Exchange Visitors (J1 Status for them J2 for their spouses and children). In some circumstances.7 years/ specialized knowledge.each entity is owned and controlled by the same shareholders (clients aren’t affiliates). professors. (d) Foreign students are admitted for duration of status . (a) Most popular use is as a student pg. executive. Student may remain until then assuming good standing. iv. e.purposes of this program are to provide training that will enable the visitors to benefit their countires of origin when they return. practical training after completion of program may be authorized iii. student mustgo to private school. Usually granted for three years but extended according to the following: a.INA101(a)(15)(F) ii.P optional training program after they finish term of study . one must pursue a full time study: (a) Time is determined by school official plus 60 days (b) Full-time requirement can be waived to part time if approved y school official (c) If student wants to attend longer than 12 mos. he wont get visa (f) F1 students are prohibited from attending public elementary schools and public secondary schools unless they pay full per capita costs of their education & max 12 mos.S.

(f) The spouse and children of a nonimmigrant exchange visitor are also subject to the two year foreign residence requirement. Fiances and Fiancees: (K visa) visas facilitate getting married when the fiancé is a noncitizen i. Lesser standard applies to artists. the processing time is not immediate therefore K(ii) was created which allows the spouse to come in and wait until their immigrant visas are being processed. Spouses get immediate relative status. However. persons in arts. to pursue non-approved educational programs. (ambiguous statutes-construe in favor of alien) h. K1 is for fiancés and K2 is for children accompanying or following to join iii. sciences. ii. The noncitizen must be married within 3 months iv. not to alien himself (2) Non-objection letters from applicant’s home country (3) Persecution. Internationally Recognized Artists & Athletes (P visas): category for internationally recognized but not necessarily extraordinary athletes and members of internationally recognized entertainment groups. f. Persons with extraordinary abilities (O Visa). education & business i. or obtained J status to receive graduate medical training in the U. ii. iii. 6 . Many of the exchange programs provide fellowships or other types of funding. They may use B2 to seek out a business to invest in or to create themselves (which they can then use to obtain intra-company status) iv. The 90 day period may be tolled if the parties can show that a delay resulted from factors beyond their control. Tourists: B2 for pleasure (72% of all nonimmigrants admitted) i. There is one category of B2 that doesn’t involve pleasure: medical treatment. would be considered travel for pleasure (applies to both gay and straight) g.Its all discretionary. Another is that J students can remain as long as they are in a full time course of study and satisfactorily progressing whereas F only for duration that is approved by school official (c) Not every applicant qualifies for J visa because the specific program of study must be approved by the state dept.covers athletes. Requires that the couple has met each other during the two year period preceding the petitions filing. ii. (g) Waiver of 2 year residence requirement avaialable (if not eligible to change to A or G visa) (1) Cases of exceptional hardship on alien spouse or child who must be LPR or citizen. Accompanying a ―significant other‖ who is temporarily working or studying in the U. recognized intl agency or a private agency. (d) Professors and researches can stay for 5 years with no extensions (e) A 2-year foreign residency requirement applies to J1s in a program receiving financing from the U.S government or from their own government.S. These are K3 visas. Must have ―extraordinary ability‖ which is demonstrated by sustained national or international acclaim. B2 visitor for pleasure visa is not available for persons who come to the U. Support staff and family members are also covered. B2 visa holders are barred from employment.S. the applicant must be sponsored by a U. filed with USCIS.(b) Advantage over F1 is that there are more liberal employment rules. all these waivers apply to J visas except where an alien has had graduate medical training.S.S. They may be admitted up to 3 years with possible and unlimited 1 year extensions. Employers must file on their behalf. i. government agency. filed with USCIS . In addition. or are nationls of countires designated as clearly requiring the person’s services. These are P-1 pg.

P3: entertainers or artists who would provide programs that are culturally unique. Other Nonimmigrant Cateogries i. (a) Must meet conditions and obtain favorable exercise of administrative discretion. advise the client as to separate course of conducts’ consequences 2. However. P-1 admitted up to 5 years and extended up to 5 more. V: limited relief to long divided families. Accompanying to join can also come along iii. in accordance with the law. Excludable Aliens pg. of homeland security may. (b) P2: artists or entertainers who enter as part of an exchange program.S. (a) Can have negative impact in discretionary determinations. Must also comply with investigation. as a nonimmigrant whose continuing to maintain that status and whose not inadmissible under 212(A)(9)(B)(i). A person might enter U. 7 . with alternative plans in mind. authorize a change from any nonimmigrant classification in the case of any alien lawfully admitted to the U.(a) Members must have sustained a substantial relationship with the group for at least one yea and must be integral to the group’s performance.S. should opportunity present itself. if change occurs very soon after admission. regulations governing conduct of lawyers who appear before DHS &EOIR and model code (d) To avoid ethical issues. C. they apply directly to the USCIS. change (248) the sec. Intent to Remain Permanently: Ineligible. Change of Nonimmigrant Status: more convenient here rather than making the nonimmigrant go home. A desire to remain in country permanently. General Nonimmigrant Problems: 1. After 3 years may adjust to LPR under certain conditions iv.must show extreme hardship & comply with investigation. under such condition as he may prescribe. S. might be deportable for failing to maintain nonimmigrant‖ status. Remedy long processing times for immediate relatives (spouses/children) of LPR’s. U: for those whove suffered substatnital physical or mental abuse. (c) Employers must file on their behalf. (d) If a nonimmigrant just wants to extend their stay. preconceived intent to remain doesn’t preclude having a genuine change of mind.this allows nonimmigrant to become LPR without leaving (adjusts). (b) Preconceived intent differs from dual intent. neither P or O are numerically restricted B. Also nonimmigrants can switch to other nonimmigrant categories (changes).snitch visa for those who have valuable info for criminal organization or terrorists ii. IV. If ICE discovers the person originally entered with intent to remain permanently. Exclusion Grounds and Waivers A. is not inconsistent with lawful nonimmigrant status (c) Three sources of ethical constraint: model rules. T: for vistims of trafficking. then there is suspicion for fraud. other P’s have up to 1 year and extensions in 1 year increments (d) Unlike H1B. are also ineligible for change of status (c) However. Grounds Related to Immigration Control a. Non citizens who have overstayed their visas and some noncitizen categories aren’t eligible for change of status (b) Noncitizens who are inadmissible for having been unlawfully present for more than 6 months and certain other designated noncitizens.

or daughter of a US citizen or of an LPR if it is established to the AGs satisfaction that the refusal of admission to the US of such alien would reslt in extreme hardship to the citizen or LPR spouse or parent of such an alien. i. Who is right? INS can make the rule but BIA (EOIR houses BIA) has the power to interpret.S. Assisting other noncitizens to enter unlawfully is also a ground for inadmissibility. the time that it takes for the USCIS to render a decision is not considered unlawful presence unless the decision is unfavorable. Surreptitious Entry: Noncitizens who are present in the U. or other documents by fraud or misrepresentation become inadmissible for life i.excludes immigrants and nonimmigrants who are not in possession of valid passports and visas i. The violation of the terms of admission (F1 student visa. or qualified parent or child. a person w/ 2 separate 4 month periods of unlawful presence would not be inadmissible under the 180 day provision 2. Noncitizens who procure visas. until the immigration judge hears the case and determines whether a violation has occurred. False claims of citizenship. and reasonably believed they were citizen 4. 3. An individual who is granted the remedy of ―voluntary departure‖ is not considered ―unlawfully present‖ until the due date for his or her departure. 3. but the presence does not become unlawful. Unlawfully present: present after expiration of authorized stay or is present without being admitted or paroled. citizen. However. 8 . Noncitizens who have been unlawfully present in the U. if the AG is satisfied that inadmissibility was not known to. LPR. Document related. (See problem #3 below) iv. for 180 days but less than a 1 year are inadmissible for 3 years. iii. 1. When a person files for a change in status with the USCIS. Subject to a discretionary waiver authority granted in 212(k) pertaining to these immigrants. the immigrant before the time of departure from the port of embarkation.1. and thus the 180 day and 1 year period do not start to run.S. nor could have been determined by exercise or reasonable diligence by. 6. or in the case of an alien classified under 204(a)(1)(A)(ii. ii. v. AG has discretion to waive in case of an immigrant who is the spouse. 5.S. 10 year bar applies whether departure was voluntary. Doesn’t apply to persons who obtained LPR before 16. citizen. subject to family unification waiver.S. constitute grounds for inadmissiblility. for example) makes the person deportable. iv) or alien’s U. have a natural or adopted parent who is a U. The petitioner must also not have violated any of the terms such as work. both oral and written. For example. son. It believes that time spent in removal proceedings is not unlawful presence. Tolling for good cause: In the case of an alien who— pg. Presence must be continuous not an aggregate of two or more stays. 1. without having been admitted or paroled as well as those who arrive other than at officially designated ports of entry. ―Notice to appear‖ by ICE: The time from when the notice to appear is issued until the time a removal order is issued is counted as unlawful presence. 2. the new immigration department (EOIR) disagrees with this interpretation. i. Unlawfully present for 1 year or more inadmissible for 10 years.

S. the Secretary of Homeland Security has the discretion to waive this ground by consenting to the person applying for admission. 1. in such activites such as espionage. (aggregate presence): A noncitizen who was unlawfully present for an aggregate period of more than one year or was removed for any reason. provided the person hasn’t worked w/o authorization. for nonimmigrants only. or who left the U. but not to exceed 120 days. or other subversion iii. of Homeland Security/ Sec of State waivers. People who were removed after any other removal proceeding. a. participated in future & extrajudicial killings. if it had been committed in pg. sabotage. 3 or 10 year bar may be waived for an immigrant who is a spouse. General Waivers for Nonimmigrants i. are inadmissible for 10 years. 9. or daughter of a U. 2. 8.S. becomes inadmissible for at least 10 years. (I) has been lawfully admitted or paroled into the US. § 212(d) ―Temporary admission of nonimmigrants‖ authorizes join Sec. The calculation of the period of time specified in clause (i)(I) shall be tolled during the pendency of such application. failure to attend their removal hearing is inadmissible for five years.B. Inadmissibile if believed likely to engage. nonfrivolous app for either extension of stay or change of status is pending as ―a period of stay authorized by the AG‖ for purposes of § 212(a)(9). 7. Terrorism related exclusion: ―terrorist activity‖ means any activity which is unlawful under the laws of the place where its committed or which. and who then enters or attempts to enter without being admitted. if it is established to his satisfaction that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen of LPR spouse or parent of such alien. applicants for asylum. Waiver: The AG has sole discretion to waive clause (i) in the case of an immigrant who is the spouse/son/daughter of a US citizen or LPR.) i. (obvious ones are those who engage in genocide. Exceptions to this ground of inadmissibility 1. vi. The practical effect was to eliminate the 120-day limit and to extend the tolling to cover the 10-yr bar as well as the 3-yr bar. 2. Political and National Security Grounds: inadmissible because believed to engage in activies prejudicial to the public interest. son. while in removal proceeding. and 3. Note: the former INS in 2000 issued a memo that designates the entire period during which a timely filed. vii. minors. citizen or permanent resident if excluding the immigrant would cause hardship to the citizen or permanent resident spouse or parent. Inadmissible because they were members of affiliates of organizations whose purpose was to overthrow the U. public officials responsible for severe violations of religious feedom. No court has jxn to review a decision or action by the AG regarding a waiver under this clause.S. do not accumulate unlawful presence. (II) has filed a nonfrivolous application for a change or extension of status before the date of expiration of the period of stay authorized by the AG. However. b. 9 . gov or governments in general ii. (III) has not been employed w/o authorization in the US before or during the pendency of such application. or all but a handful of the exclusion grounds. after entry. i. (20 years for second offenders).

(V) to solicit any individual f. fraud. c. Inadmissible if: i. Was convicted of 2 or more offenses of any type and received total sentences of 5 or more years iii. (III) to gather info on potential targets for terrorist activity. it means in an individual capacity or as a member of an organization a. Exceptions and waivers to criminal grounds i. or other unlawful activity. 1. iv. rape. INA § 212(a)(5)(A) (labor cert) & 212(a)(4) (likely to become public charge) b. Has engaged in money laundering b. murder. vessel. C. for at least 7 years immediately preceding the initiation of removal proceedings is inadmissible. (II) to prepare of plan a terrorist activity. Public charge pg. theft. abuse.) iv. c. Convicted of or admits to committing a crime of moral turpitude or a controlled substance violation. Criminal Grounds. The ground of inadmissibility for moral turpitude does not apply if the person seeking admission committed the crime before the age of 18 and at least 5 years have passed since the end of any confinement or. e. affords material support v. Trafficked or assisted in the trafficking of controlled substances. The max penalty was less than one year and the person was actually sentenced for no longer than 6 months. Is coming to engage in prostitution or commercialized vice v. d.the U. as a condition for receiving immunity vi. vii.S.S. under circumstances indicating an intention to cause death or serious bodily injury. citizens who renounce their citizenship for tax purposes. Previously departed the U. b. ii. Contribution doesn’t have to be nominal. Engaged in violations of religious freedom as official of government vii. Engage in terrorist activity defined: as used in this act.S. a terrorist activity. etc.. foreign policy  WAIVERS: the only inadmissibility grounds that may not be waived for nonimmigrants under INA 212(d)(3) are those that cover individuals believed to be entering to engage in espionage. a. (IV) to solicit funds or other things of value for—(aa) a terrorist activity evidence that he did not know.S. Economic Grounds a. 10 . (VI) to commit an act that the actor knows. D. (I) to commit or incite to commit. Moral turpitude: larceny. Individuals who entries or activities might adversely affect U.S. and those that relate to WWII era Nazis and genocide. those relating to foreign policy. sabortage. etc 2. Did you provide material support? If doesn’t matter what the organization went on to use it for. iii. forceful overthrow of the gov. or vehicle. and should not reasonably have known. Nonimmigrants from certain countries who are considered sponsors of terror vi. or reasonably should know. that the org was a terrorist org. controlled substance: other than a single offense of 30 grams or more ii. The terrorist exclusion remains waivable even after 9/11. Newest one: those U. or knowingly benefited from it. Waiver not available to anyone who has previously been admitted as an LPR and has not resided continuously in the U. would be unlawful) and which involves and of the following: (1) the hijacking/sabotage of any conveyance including an aircraft.

i. Drug addicts and drug abusers are specifically inadmissible. government expense. In immediate relative cases or family preference cases. 179 defines sponsor: 18 years of age. Tourists do not require supporting documents. skills. self-petitioner must show: 1. family status. 11 .S. A. citizen that files the visa petition. However.S. education. See language on bottom of 176. Applicants are subject to exclusion grounds although not all apply to nonimmigrants. The affidavit is enforceable up until naturalization or the alien has worked for 40 qualifying quarters (basically 10 years) under social sec act. Neither a physical nor mental disorder is generally a basis for exclusion unless the associated behavior poses one of specified threats. Congress made exception for victims of violence. Admission & Removal Visa Petitions a. Nonimmigrant for short periods and immigrants for permanent residence leading to citizenship. which shall not include infection with HIV. Sponsors obligations can run for quite a long time. health. Nonimmigrants 1. Sec d of same page requires change of address. b. Factors when determining public charge: 1. defines public charge and the factors are listed in determining whether public charge is possible. good moral character 2. sponsor agrees to provide support at an annual income not less than 125% of poverty line. b. Usually made at consulate abroad. The sponsor can also be sued by the government. 123 of stat bk. Primarily dependent on the U.S. domiciled in state or territory of U. Public Health and Morals a. P. V. p. good faith in entering the marriage. they always want to know where the sponsor is. Excludes people with a communicable disease of public health significance. financial status. Draws attention to e on same page: the alien himself can sue the sponsor with respect the financial support. Age. See Ina 212(a)(1)(A)(iii). subjected to extreme cruelty by their citizen or LPR spouse. B. 4.S.E. and affidavits of support. Immigration law and procedure i. Remember: Certain types of visas will require labor cert. Comparison between nonimmigrant and immigrant visas 1. c. Major exception is the visa waiver program. pg. a. Nationals of certain countries can enter the country as B2 business or pleasure visitors for up to 90 days without having to procure visas. 3. ii. Visa Applications a. 2. This one is treated as a contract. whichever comes first. and some of the waiver provisions are not available to immigrants. Ages 14 an 79 require interview. or USCIS approval of a visa petition or both before the visa application may be submitted. waivers available. government? Institutionalization for long term care at U. i. the big thing is that whereas in the good old days you could get anyone to sign the affidavit for you. 3. 2. i. 2. it is the LPR family member or U. c. Statute provides for an affidavit of support.

c.e. Expedited Removal i. athlete or performing artist (P). Made at consulate abroad. C. 4. and formal records are maintained. education. Expedited removal available. admitted refugees. INA § 291 makes clear that an arriving noncitizen bears the burden of proving admissibility.S.A consular officer’s decision to issue or withhold a visa is not subject to administrative or judicial review. One major exception—all noncitizens who indicate a fear of persecution or an intention to apply for asylum receive screening interviews. created new INA § 240. they must make the latter showing by ―clear and convincing evidence. b. 2. Visas requiring prior approval of visa petition by USCIS a. 1. E1 (treaty trader) or E2 (treaty trader) usually require extensive document to show they meet the qualifications. fiancé (K). alien of extraordinary ability in sciences. iii. Hearings before Immigration judges i. c. Formal removal orders bar future admissions for up to five years. 12 . Person is removed without further hearing. arts. is considered resident of consular district of last residence aboard. After BIA. There is no appeal except for returning LPRs. noncitizens encounter CBP immigration inspectors. Temp worker (H). 2. Formal rules of evidence don’t apply. the petitioner may directly with court of appeals. Noncitizen or ICE may appeal to the Board of Immigration Appeals BIA. Appeals from immigration judge decisions i. .3. Under INA § 240(c)(2)(B). entry w/o inspection) are regarded as applicants for admission. and asylees. They must prove that he or she is clearly & beyond a reasonable doubt entitled to be admitted and is not inadmissible under section 212. and e. Is noncitizen ―clearly and beyond a doubt entitled to be admitted? A non-citizen may also be paroled. 1. e. Applies whenever immigration officer determines that an arriving noncitizen is inadmissible under 212(a)(6)(C) (fraud) or 212(a)(7) (lack of proper documents) 1. iii. [SB 290] which appears to address the issue: 2. Officers can also the noncitizen to withdraw their application and leave in order to avoid this bar on future admission. intra-company transferee (L). Their job: to determine whether inadmissibility grounds apply. Immigrant 1. Hearings recorded verbatim. they have to establish either that they are admissible or that they in fact have been lawfully admitted. Noncitizens who are alleged to be present in the US w/o having been admitted (i. business or athletics (O). Noncitizen bears the burden of proving inadmissibility. Immigration officer hears the case. Removal hearings: begin when ICE serves a ―notice to appear‖. INA didn’t specify the standard of proof that the IJ was supposed to apply until IIRIRA § 304. Immigrant has to interview before getting visa unless it is a hardship for the alien to return tot heir home country. but hearings are solemn affairs w/ both parties (ICE v. Actual Admission a. d. Upon arrival. b. ii. noncitizen) commonly represented by counsel. pg. Alien living temp in U.‖ d.

on date of filing for adjustment through employment (see above in re 1st. and 4th categories) and has not failed to maintain lawful status continuously. 245(k): mechanism to allow someone who has not been a major violator and who is trying to get an employment based visa. Admitted to provide evidence in a criminal investigation iv. Paroled: You haven’t been admitted but your presence is being tolerated because of some problem. may apply to have their status adjusted to permanent status except crew members. Adjustment may be allowed if the nonimmigrant is lawfully present in the U. Ex. & the category applying to is current? INA § 245 allows it! However. In transit w/o visa ii. must be admissible and the category must be current (immediately available). Only permissible issue for judicial review are: whether person is a citizen. Employment based and not in LPR status 1. INS decision granting or denying relief in re: adjustment is still un-reviewable. 2nd. 13 . INA § 245 is discretionary. What if the person is in U. a. d. Allows them to adjust if his unlawful presence. i. Losing your documents on the plane. Note: May be granted voluntary departure VI. Note: authorities treat adjustment apps as evidence of immigration intent thus preventing extension of current nonimmigrant status. and some 4th preference employment based slots could adjust their status while in the U. whether the person was in fact ordered removed. Remember: unlawful presence exclusion ground can kick in if they wait around to long.S. it is advisable to change to a nonimmigrant status that allows dual intent before applying to adjust to permanent residence.S. 1. engaged in unauthorized employment. Aliens for which it is unavailable i. Nonimmigrants other than immediate relatives are ineligible to adjust if they have accepted unauthorized employment or have otherwise failed to maintain lawful immigration status since entering the U. provided that they had entered lawfully (inspected and admitted or paroled) and were not out of status more than 180 days. Those under visa waiver program iii. b. Therefore. vi. Deportability Grounds pg.. or whether the person comes in previously mentioned classes (LPRs.S. Unlawfully employed because not an LPR or otherwise violated terms of employment f. absence. i. Deportable terrorist v.3. 3rd.S. or time working illegally didn’t exceed 180 days. otherwise violated the terms and conditions of his or her admission for an aggregate period exceeding 180 days. Otherwise eligible applicants for 1st. ii. and asylees). Eligibility or inadmissibility is reviewable. e. All nonimmigrants who are in the U. Wrongly denied adjustment? Only recourse is to wait for removal proceedings and renew adjustment application before the immigration judge. even if currently or formerly out of status. D. Applicant may submit visa petition and adjust app at the same time provided that approval of petition make visa immediately available. and visa waiver beneficiaries. 3rd. J visa holders. Adjustment of Status a. refuges. c.S. 2nd.

or by evading inspection. free from official restraint. the judge decides whether the individual is deserving of discretionary relief. ii. 2. INA § 212(a)(6). and b.S. In removal proceeding. IIRIRA has changed entry to admission. INA 240(e)(2) ii.S. entering to engage in terrorism. a. 2. Admission determines whether the alien will be subject to the inadmissibility grounds or the deportability grounds. constitutes an entry. The meaning and significance of ―Entry‖ and ―Admission‖ i. a person’s inadmissibility or removability only comes to the attention of immigration authorities when he or she applies for one of the immigration benefits. 1.S. Definitions 1. iv.S. b. entering to perform labor and becoming a public charge after entry keep the word entry. Entry: refers to physically crossing into the U. however. mandatory expedited removal. and for those who are apprehended quickly. 1. discretionary expedited removal. at least 2 years. Noncitizens that have lived in the U.A. In practice. This was deliberate. Aliens who escape custody and enter the country after denial of admission are subject only to deporation proceedings. Some provisions such as smuggling citizens. not exclusion proceedings (Matter of Chin and Chen) 1. In general i. the loss of the right to a removal hearing if they illegally ―reenter”. why entry is relevant: it can mean the difference between a. Policy considerations and the legal consequences of expelling noncitizens who have reached the interior differ from those concerning the removal of noncitizens arriving at ports of entry. in violation of the law.S. Usually. Entry may be achieved after being inspected and authorized by an immigration officer.S. that procedure is inapplicable to noncitizens who have been present in the U. While arriving noncitizens whom immigration inspectors find inadmissible on document or fraud grounds are automatically subjected to the expedited removal procedure described in chapter 6. ICE initiates by presenting noncitizen with notice to appear which contains facts and inadmissibility grounds. Whether the person fits into one of the deportability grounds. after inspection and authorization by an immigration officer. 14 . but physical presence as a result of parole does not constitute entry. They are considered applicants for admission. and even its applicability to those in the U. iii. a. Criminal provisions also use the word entry as an essential element. for those who have previously been ordered removed. INA § 237(a)(1). pg. less than two years is at the discretion of the AG. they are considered removable for being present in the U. v. territory. The precise of meaning of the word entry used in these provisions is unresolved. for many years can be considered inadmissible if the evaded inspection and thus entered without being admitted when they entered the country. Admission: the lawful entry of the alien into the U. the opposing parties are ICE and the noncitizen.S. Immigration judge hears the case and determines whether the person is a noncitizen and whether if the person is deportable ie. Not every physical crossing into the U. (so are nonimmigrants trying to adjust thus they subject to inadmissibility grounds). If found deportable.

brief. INA § 237(a)(1)(A). upon the order of the AG. b. Entry without inspection as deportability ground was repealed and replaced with presence in the U. A NC also commits a criminal offense by entering w/o inspection (subject to fines). (vi) waiver authorized (for pardon by gov or president)]. § 237(a) [SB 270]: Any alien (incl.S. Gonzalez] Alien went abroad. the offense can be a felony. Fleuti). be removed if the alien is w/in one or more of the following classes: 1. (2) Criminal offenses (A) General crimes [(i) crimes of moral turpitude. (E) Smuggling. drug trafficking. Have committed a criminal or related offense identified as crimes of moral turpitude. (iv) high speed flight. Deportability Grounds concerned with immigration control i. (v) failure to register as a sex offender. 2. INA § 101(a)(13)(C). (B) Present violation of law. Govn’t couldn’t get him under absence for not being ―casual. committed sexual battery and then came back after 3 weeks. for a continuous period in excess of 180 days. f. (D) miscellaneous crimes.S. (C) Violated nonimmigrant status or condition of admission. Are attempting to enter at a place other than a designated port of entry or have not been admitted to the U. after inspection and authorization by an immigration officer. (D) falsely claiming citizenship.S. c. 15 . (B) failure to register or falsification of documents. briefness doesn’t matter anymore under IIRIRA. (ii) multiple criminal convictions. Have been absent from the U. while in removal or extradition proceedings e.S. an alien crewman) in and admitted to the US shall. without admission a ground for inadmissibility. vi. [Carmins v. b. (H) waiver authorized for certain misrepresentations a. crimes against children (3) Failure to register and falsification of documents (A) change of address. or prostitution. and innocent. 1. (F) repealed.S. (B) Controlled substances. However. 2nd time entry problem when LPR returns (Rosenberg v. (D) Termination of conditional permanent residence. (C) certain firearm offenses. (G) Marriage fraud. or violation of protection order. Any alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time.S. (E) crimes of domestic violence. d. i. Have departed from the U.After a prior removal order.B. (C) Document fraud. Have engaged in illegal activity after their departure from the U. since Fleuti no longer applies but his crime of moral turpitude qualifies under this provision. Have abandoned or relinquished their permanent resident status. (iii) aggravated felony. LPRs will not be regarded as seeking admission (and thus not subject to inadmissibility grounds) unless they: a. (1) Inadmissible at time of entry or of adjustment of status or violates status (A) Inadmissible aliens. stalking. briefly which does not meaningfully interrupt the noncitizen’s LPR status may not be considered to have entered for purposes of deporation. pg. One leaving the U.

Convictions relating to controlled substances other than a single offense involving possession for one's own use of 30 grams or less of marijuana. there is a discretionary waiver available. What is a conviction? i. a judge or jury has found the person guilty or the person has entered a plea of guilty or nolo contender or has admitted sufficient facts to warrant a finding of guilty. Is not a visa and not ―other documents‖. ii. The judge can defer judgment on condition that the noncitizen not violates certain conditions. for which the maximum possible sentence is one year or longer. Convicted of an aggravated felony. penalty. the judge has ordered some form of punishment. Two elements 1. This definition applies retroactively to crimes committed before enactment of IIRIRIA. (5) Public Charge (6) Unlawful voters (7) Waiver for victims of domestic violence  WAIVER: Secretary of homeland security has discretion to waive this ground for LPRs who assist only certain family members Crime-Related Grounds for Deportability i. 16 .Where there is a conflict between state law and federal law in classifying a crime. INA § 237(a)(1)(h) Passport would not fall under the exception.C. Convicted of high speed flight from an immigration checkpoint. For (C). genocide. Judgment deeming someone a youthful offender or juvenile delinquent is not a conviction. [U. iv. (B) terrorist activities. ii. or restraint on the person’s liberty. iii. 2 Es in original). b. Convicted of two or more crimes of moral turpitude regardless of possible sentence. citizen or permanent resident spouse or parent. INA § 101(a)(48)(A). (E) participated in commission of severe violations of religious freedom (note. iii. Although noncitizen can appeal. or the commission of any act of torture or extrajudicial killing. a. (C) foreign policy. (4) Security and related grounds (A) in general. (D) participated in Nazi persecution. Conviction of a crime involving moral turpitude.S. Although you procured the visa or Labor cert fraudulently. the procedure has to provide the constitutional safeguards normally attendant on criminal convictions. Conviction for a crime of domestic violence and violation of protective orders. conviction is final for immigration purposes while appeal is pending. [case where burden of proof was preponderance and not beyond reasonable doubt therefore making it easier for prosecutors to prove their case]. b. v. we’ll forgive you if exclusion would result in extreme hardship to a U. iv. vi. or vii. Parrino] Surprise as to consequences of a sentence that results from erroneous information received from the D’s own pg. a. v.S. Withdrawing Guilty pleas 1. federal law controls. 2. (E) recipient of military-type training. Convictions for most firearms offenses. In re: violation of state laws and for the conviction to give rise to a conviction of a crime for immigration purposes.

the question of which criminal convictions involve an act of moral turpitude have been determined by court decisions and are very fact-specific. INA §§(a)(2)(A)(i and ii) 1. c. To constitute a single scheme. vileness. Simple assault. [Marciano v. Also removable if convicted at any time of two or more crimes involving moral turpitude ―not arising out of a single scheme‖. b. no substantial interruption that would allow the participant ii. Expungements 1. 17 . Criminal offenses i. immorality. Between 18 and 21 states are requiring their judges to advise the noncitizen of the potential immigration consequences. Direct consequences required to satisfy due process but not collateral consequences. vi. there must be i. Executive Pardons 1. and pg. The meaning of ―crime involving moral turpitude‖ a. v. Expungements of first time possession of narcotics cannot be used as a ―conviction‖ in subsequent removal proceedings. aggravated felonies. Moral turpitude definition: an act of baseness. it would have been a different story if the surprise stemmed from reasonable misunderstanding of prosecutor or judge in re: length of sentencing. reflect on what he has done. or violence which are not defined in the immigration laws. d. to disassociate himself from his enterprise and iii. INS]. and convictions of high speed flight from immigration check points. the judgment can be set aside if there was a flaw in the original proceeding that was not a harmless error. However. Presidents and governors can eliminate a noncitizen’s deportability for moral turpitude. As a result. 2. yes! Aggravated DUI can be moral turpitude if there is knowledge of one’s license being suspended. no. Generally referring to crimes involving dishonesty.attorney is not sufficient ground to permit withdrawal of the guilty plea. For deportability purposes. the crimes must not take place at one time. Expungements never erase convictions for immigration purposes. (I) is convicted of a crime involving moral turpitude committed within five years after the date of admission. Aggravated assault. However. Crimes involving Moral Turpitude i. (i) Crimes of moral turpitude Any alien who— a. or moral depravity. c. statutory rape involves moral turpitude regardless of the factual context of the crime. Analysis of these crimes is additionally complex because the law generally requires that crimes involving ―moral turpitude‖ have been committed within five years of coming to the US and involve a potential sentence of at least one year (INA § 237(a)(2)(A)(i)). (A) General crimes 1. Crimes involving fraud or intent to defraud is a crime of moral turpitude.

3. (E) relating to explosive materials offenses or relating to firearms offenses. (ii) Multiple criminal convictions Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude. b. e. bond during immigration proceedings. (II) is convicted of a crime for which a sentence of one year or longer may be imposed. iii. (C) illicit trafficking in firearms or destructive devices d. While an alien can be deported for a number of violations ranging from simple immigration violation to serious criminal convictions. mandatory detention. In re: drug possession. i. d.S. (F) a crime of violence for which the term of imprisonment at least one year. ii. Aggravated Felonies i. In determining whether a crime is an aggravated felony. although federal courts do have jurisdiction to determine whether a particular offense is an aggravated felony. (iv) high speed flight from an immigration checkpoint is deportable. INA § 237(a)(2)(B): controlled substance which is defined in 21 U. etc. A noncitizen convicted of trafficking in a controlled substance has more to worry about than deportation. (A) murder. Noncitizens may be sentenced up to 20 years if they re-enter illegally after being convicted. The term ―aggravated felony‖ means a. v. Aliens convicted of an aggravated felony may be permanently barred from any relief from deportation. rape. iv. federal law not state law controls. the most serious and unforgiving ground of deportability is aggravated felony. is deportable. ii. Aggravated felony is defined in the immigration laws at INA § 101(a)(43) as follows: 1. f. e. 4.000. This is an aggravated felony. 5. b. the BIA defers to the federal district circuit courts of appeal as to whether a particular state crime constitutes felony drug trafficking offense. certain forms of judicial review. Drug Offenses i. is deportable. not arising out of a single scheme of criminal misconduct. or sexual abuse of a minor. found at INA § 237(a)(2)(A)(iii). regardless of whether confined therefor and regardless of whether the convictions were in a single trial. pg. Removal orders based on aggravated felony are not subject to judicial review. § 802.2. (D) (relating to laundering of monetary instruments) or (relating to engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds exceeded $10. (iii) Any alien convicted of an aggravated felony at any time after admission. (B) illicit trafficking in a controlled substance c. 18 . (v) pardon by the President or by the Governor waives all.

(L) relating to gathering or transmitting national defense information (relating to disclosure of classified information. for which the term of imprisonment is at least one year. s. child. or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year. or altering a passport or document fraud for which the term of imprisonment is at least 12 months. l. and u. (R) an offense relating to commercial bribery. n. slavery. the term applies regardless of whether the conviction was entered before. q. managing. or revenue loss to the Government exceeds $10. except in the case of a first offense for which the alien committed the offense for the purpose of assisting. The term applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years. (S) obstruction of justice. (T) an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years' imprisonment or more may be imposed. or peonage. i. and trafficking in persons. (G) a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment at least one year. except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting. (U) an attempt or conspiracy to commit an offense described in this paragraph. perjury or subornation of perjury. on. abetting. t. or parent (and no other individual). or gambling offenses. (I) child pornography). 19 . or bribery of a witness. (Q) failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more.(i) relates to the owning. or aiding only the alien's spouse.(i) involves fraud or deceit in which the loss to the victim or victims exceeds $10. involuntary servitude.000. Notwithstanding any other provision of law (including any effective date). forgery. abetting. o. child. (J) racketeer influenced corrupt organizations. sabotage. m. k. or after September 30. (O) committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph. j. (N) alien smuggling). mutilating. (K) an offense that . or parent (and no other individual).000. (P) an offense (i) which either is falsely making. counterfeiting. for which a sentence of one year imprisonment or more may be imposed. forging. r. 1996.). pg.g. or aiding only the alien's spouse. i. counterfeiting. h. (H) demand for or receipt of ransom). controlling. p. (M) an offense that . or supervising of a prostitution business. transportation for the purpose of prostitution if committed for commercial advantage. treason. protecting the identity of undercover intelligence agents.

[Can be partially suspended. vi. a foreign conviction can never be used against noncitizen in the states if the noncitizen was never imprisoned. b. ―The first person I see. pulled someone’s hair and this was considered crime of violence. Defense attorneys now ask judges to impose 364 day sentences rather than a year to get around this requirement. b. Relief From Deportation  Relief provisions are seen as affirmative defenses for which the noncitizen has the burden of proof A. they may be inadmissible at entry because of it. There must be some active employment of force. Has resided in the U. page 581. he is not setting up in his mind.D. To be eligible. Burglary is a crime of violence since by its nature it involves a substantial degree of risk that the burglar will use force against the victim.S. Again. but it will still count]. Deportable for becoming a public charge within 5 years after entry unless he or she can affirmatively show causes arising after entry. If someone is DUI.INA240A i. Conviction of vehicular burglary does not satisfy prong G. Cancellation of removal: part B 1. There is no deportability ground based on affiliation with the communist party. I’m running over!‖. Crime of violence can encompass minor crimes. E. Intentional is needed for the statute to apply. Political and National Security grounds a. b. Problems 1-3.S. c. Ashcroft] State DUI offenses that require no showing of mens rea or only a showing of negligence are not crimes of violence justifying deportation under 237(a). General applicability and scope a. Granted or denied at the discretion of the immigration judge. Deportable for past or present drug abuse or addiction. Lasting Relief. [case where a lady had been living all her life in the U. 2. continuously for seven years after having been admitted in any status. General applicability and scope a. Allows immigration authorities to cancel noncitizen’s removal and adjust his or her status to that of a lawful permanent resident. Remember: 237(a)(1)(A) renders any one deportable who was inadmissible at the time of either entry or adjustment of status. This is the accidental use of physical force not intentional use of force. prong F [Leocal v. etc. VII. and iii. c. Available to any removable noncitizen who: i. Has been lawfully admitted for permanent residence for at least 5 years. Has not been convicted of any aggravated felonies b. Crimes of Violence. Cancellation of removal: part A 1. Other deportability grounds a. 3. 1. 20 . the noncitizen must: pg. ii. Deportable for violating health related conditions imposed at entry. 1. tt also applies to LPRs who don’t fit part a’s requirements. 4. ii. Only a pardon saved her from deportation]. a. Petty larceny can be aggravated felony as long as one year sentence is imposed. However.

he didn't leave under threat of deportation and there is no break in continuous physical presence. taken back in a truck. fail to depart under grant of voluntary departure. for a continuous period of at least 10 years. Applicable to both parts 1.. iii. parent. In contrast. Ashcroft v. b.. they are inadmissible or otherwise removable on national security grounds. c. iii. iv. Exceptional and extremely unusual hardship pg. Now. if immigration inspector merely says "i'm tired! Walk back across the border." this merely turning the alien back at the border. Not subject to any of the security grounds of inadmissibility or removability. or c. i. There was no deportation proceeding! ex. he has been merely sent back across the border NOT left under threat of deportation. Needs good moral character. his continuous physical presence is broken. 2. For victims of abuse. Not convicted of any crimes or document offenses that would make him inadmissible or removable. must show that removal would resut in exceptional and extremely unusual hardship to their citizen or LPR spouse. If an alien voluntarily departs under threat of deportation. whichever is earlier. about continuous presence requirement in 240Ab1A in re romalez. comes back across border and gets taken back in a truck. For battered spouses/children. this does not constitute a break in the continuous physical presence. Noncitizens are ineligible for cancellation if: a. will not interrupt if alien can show absence was related to battery. Morales 384 f. are ordered removed for failing to appear at removal proceedings.3d 418. 1. or when he or she is served with a notice to appear. Continuous residence or continuous physical presence ends when the noncitizen commits an offense that makes him or her removable.. merely turning an alien back at the border after visiting his sick mother does not break continuity. LPR status only ends when a final removal order is entered against the noncitizen. continuous physical presence is broken. or child. if an alien voluntarily departs under threat of deportation. ii. 7th circuit. INA 240(d) defines continuous physical presence a. An absence of more than 90 days or aggregate of more than 180 days interrupts continuous presence. ii. 21 . Physically present in the U. However. physical presence is reduced to 3 years and extreme hardship rather than exceptional… iii. However. So if he's he been here for 9 years and visits his sick mother. i.i. and iv. 2. b..S.

When an immigration judge grants adjustment to LPR status based on cancellation of removal. 6. 240B(a): at their own expense. a. terrorists.Not having marketable skills in Mexico. 3. B. Sorry chuck.S. A noncitizen’s political involvement could expose him and/or his family to exceptionally and unusual extreme hardship. a. Deferred action i. 1. BIA’s definition is binding on IJ and federal courts. is not sufficient to satisfy the standard. pg.S. for example. even if the noncitizen can show that intervening circumstances have given rise to prima facie eligibility for relief. Financial and educational detriment to a noncitizen’s two citizen children did not meet this standard. [In re: Recinas] divorcee w/ 6 children 4 of which were U.S. 22 . this standard is very difficult to satisfy. and those previously removed but then returned are ineligible. [Hee Yung Ahn v. was a big factor in deciding that removing her would pose an exceptional and extremely unusual hardship. either in lieu of removal proceedings or during removal proceedings. John Ha Wang] The immigration court’s discretion allows it to deny a noncitizen’s motion to reopen a case for the purpose of requesting cancellation of removal. One who accepts this gets in return.S. child. Limited Relief a. Technically ICE remains free to proceed against the person in the future if its workload or its priorities change. as a permanent resident as of the date of the cancellation of removal or adjustment of status. even though the noncitizen’s status as a single mother and her lack of family in the country to which she would be removed made her case unusual. They were different in degree but not in kind as the 1st case. Another case dealt with someone trying to show that his or her U. or parent. citizens. 2.S. [INS v.1.S. citizen child would fare less well in the alien’s country than in the U. it was cumulative. Noncitizen may be required to post bond and the period allowed for voluntary departure may be up to 120 days. ii. b. Aggravated felons. no formal removal order issued against them. The board found that the 4 U. b. the noncitizen is admitted to the U. since the actual reason for holding back is the presence of exceptionally sympathetic factors. 4. Here. …to a citizen or LPR spouse. The BIA has broad discretion in determining what constitutes ―extreme hardship‖ and may construe that term narrowly. 5. INS] A BIA ruling denying cancellation of deportation should contain a discussion of the reasons for its decision and an indication that all pertinent factors were considered. On the other hand. c. She had a business and some assets. realistically. Hardship claim must be supported by affidavit or other evidentiary material. citizens were fully dependent on the mother and the mother had no one back in Mexico who could care for the children. The family support group in U. the actual NUMBER of children that would be affected. Her mother took care of the kids. relief will typically be permanent unless those factors change.

241(b)(2) sets up a multi-step approach to selecting the removal country. If the alien gets voluntary departure.S. the noncitizen: i. a person who has been present in the U. 240B(b): at the conclusion of the removal proceedings at alien’s expense. A decision to deny relief is not subject to judicial review.S. ii. 1. withdraw their applications. enables noncitizens to select their destinations. 2. 3. 2. giving false info to receive immigration benefits. or the AG decides it’s prejudicial to the US. the govn’t isn’t willing to accept. The hardship waiver removes the 3 year ban for purposes of applying for LPR once his family sponsored visa comes current. he will be able to apply for LPR before 3 years if he gets the hardship waiver. The final decision lies with the immigration judge. 4. is not subject to the 5 year (10 year if departed while order was outstanding) bar on reentry after removal. [no contiguous islands] a. physically present in the U. iv. the govn’t of the country doesn’t accept/deny w/in 30 days. a. Note statutory language: prior to commencement. AG can disregard designation if alien takes too long. iii. however. not discretionary. To be entitled. They can. Good moral character for the preceding 5 year period. Noncitizen will still be accountable for any unlawful presence accumulated and therefore 3 year or 10 year bans would apply. However. A noncitizen granted voluntary departure is not considered removed and consequently. The secretary of Homeland Security may issue regulations that further limit eligibility for voluntary departure. Step 1: non-citizen’s preferred country. etc. for between 180 days and 1 year and is granted voluntary departure at the commencement of removal proceedings is not subject to the 3 year bar. Objections to destination i. it doesn’t say after commencement. Show by clear and convincing evidence of means and intent to depart. Finality 1. iii. Voluntary departure avoids the stigma of removal. The noncitizen must demonstrate the ability to pay for his or own departure. a.S. 5. Benefits 1. pg.c. sent there unless exception applies. 1. a. 20 years for 2nd immigration offense or permanent for aggravated felony.S. b. Bond is mandatory. Max period is 60 days. and facilitates the possibility of return to the U. 3. habitual drinking. ad no court may review any such regulation. and iv. gambling. Not have been removable under agg felony or national security. 240B(a)(4): doesn’t apply to arriving aliens. the government may grant voluntary departure and pay the expenses if it’s deemed in the best interests of the U. for at least 1 year immediately before notice to appear served. 23 . However. 2. its discretionary.

If removal to any of these ―impracticable. c.S.‖ i. citizen or LPR family may request the AG’s consent to reapply for admission. the citizen child will be free to return to the U. the motion and application are considered withdrawn. or citizen‖ unless the govn’t of that country doesn’t accept/deny w/in 30 days or other reasonable period. ii.B. Reasons why removing noncitizens and their U. Only step in which the country’s affirmative acceptance is a prerequisite to removal. v. b. pg. Since the mere filing of a motion to reopen does not automatically stay removal. Defense that deportation is cruel and unusual punishment doesn’t work. b. national. Sorry chuck! Miscellaneous Defenses a. Stay of removal i. Upon attaining age of majority. therefore. Citizen child cannot make a real choice in re: where to live and is dependent. Step 2: removed to the country where he or she is a ―subject. INS] Even if country in paragraph E (i-vi) doesn’t accept. aliens have no right to remain the U. [Jama v. Country from which person was admitted to U. citizen children is not unconstitutional: i. Country that had sovereignty over alien’s birthplace when born. iii. 3. the regulations authorize non-citizens to couple a motion to reopen with a request for a stay to permit a decision on the motion. iv. Country in which aliens birthplace is located when removed. c. ii. c. Granted at discretion of CIS district director. Claim that the statute is unconstitutional. Step 3: six possibilities i. Citizenship: a person who can prove it has a complete defense to removal. A government’s failure to act timely is not enough. Not appealable but the noncitizen may renew the application to stay removal before the BIA. Affirmative misstatements are not affirmative misconduct. If a person is removed while the application to stay removal or motion to reopen is pending. U. 2.S. ii.S. inadvisable.S. Estopping government from deporting a noncitizen requires a showing of ―Affirmative misconduct. ―Another country whose government will accept‖ language in vii does not require acceptance for those countries listed in E. Country where alien resided before entered the country from which he entered the US. e. judge still has the discretion to send him there. INS] Deportation is neither a punishment nor extradition. Step 4: immigration judge is free to designate ―another country whose government will accept the alien.S. d. ii. Country in which is located the foreign port from which alien left for US. rare. Furthermore. vi. or impossible. 4. or isn’t willing to accept the alien.‖ a.‖ then step 4 applies. iii.S.  A noncitizen whose been ordered removed and who plans to immigrate to be reunited with his U. If granted and he’s not otherwise inadmissible. the noncitizen will no longer be subject to the lengthy bars to admission. Parents may allow the child to live in foster care. 24 . [Linnas v. Country of birth iii. so due process is not required. bill of attainder is inapplicable. ii.

and usually permanently (discretionary) – ―withholding of removal‖ narrower remedy. prevents removal to the country of persecution (mandatory) A. Remedies i.. B. Among other requirements.‖ iii. Ex. iv. Discretionary 1. The noncitizen may be removed if they are later found to have not fallen within the ―Refugee‖ meaning at the time of their admittance. AG may waive inadmissibility in interest of family unity. permission to remain temporarily. b. Whereas asylum status may be terminated if conditions improve in the asylee’s home country. We should not hold the fraud against him. or public interest. They must first qualify as ―refugees‖. You should not focus entirely on the fraudulent documents. Meeting the ―Refugee‖ requirement i. 1. An application for asylum under § 208 is automatically treated as an application for withholding of removal. and valid entry documents and visas. religion. 25 . a. etc. 1. The refugee is eligible to apply for adjustment of status to LPR. ii. community organizations. Again.” § 212(d)(5)(B). Asylum i. Refugees are not subject to admissibility criteria relating to labor certification. ―We’re going to forgive you for these things.S. membership in a particular social group. b. It can provide relief of removal. The alien has been so persecuted that the ONLY way he has been able to come is by the fraud. ii. must be of special humanitarian concern to the U. the pg. 2. ii. the prohibition doesn’t affect the use of the parole power on behalf of these groups. After 1 year as an asylee. The IJ should look at all the circumstances. these are noncitizens who have reached the border or are present in the interior. or political opinion. border – Asylum-seeker  Seekers of either of the following remedies must first qualify as ―Refugee‖ under INA § 101(a)(42) – ―Asylum‖. Refugees & Asylum  Noncitizens seeking asylum overseas – Refugee  Noncitizens seeking asylum within U. Since the refugee definition doesn’t encompass people fleeing war or natural catastrophe. Overseas Refugees a. public charges. The refugee must be sponsored by a ―responsible person or organization‖. Must apply within 1 year of arrival to the U. After one year i.S. humanitarian purposes. foreign medical graduates. must be admissible under most 212(a) provisions. relatives. the applicant must possess a well founded fear of persecution on account of race. nationality. Ex.VIII. and 3. Churches. must not have firmly resettled in another country. Nonrefoulement (withholding of removal) and asylum under § 208.S. AG is prohibited from paroling a refugee into the US absent ―compelling reasons in the public interest with respect to that particular alien. refugee status is not conditional in this respect. Asylum and nonrefoulement a.

nationality. espionage. Three contexts in which it is applied for i. ― pg. we know your an asylee so we're going to forgive you for these things.Persecuted another on account of race. removal is ordered unless the noncitizen indicates an intention to apply for asylum. or political opinion.terrorists. During the removal process as a defense to removal.was he "firmly resettled in another country" if you have been granted asylum in another country. If deemed inadmissible under 212. When noncitizen applies for adjustment. E nazi persecution. A1. Agg felony is automatically a particularly serious crime. Thus. 2. Inspector has authority to allow inadmissible noncitizen to withdraw their application for admission. v. A serious political crime may not exclude you. 26 . etc. we don't need to give it to you. 1. A3 – a serious nonpolitical crime before arrival. a noncitizen may not be removed to a country where the noncitizens ―life or freedom would be threatened…because of the alien’s race.noncitizen is able to adjust status to that of LPR. A6 .? ii. After arrival. 1) conviction and 2) that the alien is a danger to the community of U. The other interpretation requires only a conviction (by mere conviction the alien is a danger to the U..come on!). iii. Exceptions: i. 5 (LC requirements. iv. A2 – alien. vi.more extensive into terrorist activity. Upon arrival at the airport. b. A4 . c. religion. Withholding of removal 241(b)(3) a. A5 . 4 (public charge).you should have two findings. membership in a particular social group. Remember: i. within one year. AG or Sec of HS may waive any another provision of 212 other than 2C (drug traffickers) A espion B terrorist C acticities potentially adverse foreign policy consequences. it is further reaching than withholding of removal. having been convicted of a ―particularly serious crime‖. Prof’s interpretation .S. ii. iii. constitutes danger the U. Mandatory: With some exceptions. The noncitizen is inspected. religion. 2..S. Participating in overthrow would not be create an automatic exception. A noncitizen that arrives at the border is deemed an applicant for admission. d. within 1 year. or iii.S. etc. 7A (documentary requirements). the language "constituting danger" is therefore redundant.

must be granted withholding of removal. Persecution or fear of persecution a. Fear is proven through affidavits. corroboration is not req’d. Fraudulent documents won’t automatically deny them relief if getting fraudulent documents was the only way they could flee from persecution. There must be a link between crime and political element. pg. constitutes a danger to the U. Nature of offense v. a. Political element should outweigh the other aspect of the crime. fraud. persecution feared. 27 . Alien. a noncitizen. religion. 1. Language in re: agg felony differs from § 208. e. having established a clear probability (more likely than not) of persecution.S. Crime must be committed out of a political motive. they may be removed to a third country if such country is willing to accept the individual. d. b. nationality.S. Withholding of removal relief may be terminated pursuant to changed country conditions. [Matter of Acosta] In order to qualify as a refugee. Exceptions 1. Court looks at the totality of the circumstances. or political opinion. 3. Therefore. Mandatory if the applicant is qualified.b. Controversial issues generated by asylum and withholding of removal. and 4) be unable or unwilling to return because of persecution or his well-founded fear of persecution. the alien must: 1) have a well founded fear of persecution. and only removal to a certain country is prohibited. It doesn’t allow the opportunity for LPR status. Danger to security of the U. or exception. petitioning for family members. Courts tend to look at the nature of the crime to determine whether it has met the seriousness component. Therefore.? ii. i. 5 year term of imprisonment imposition required to make it a particular serious crime. but may be denied asylum at the discretion of an immigration judge. Alien granted this relief is considered removed. religion. 4. The standard of proof is higher than for asylum. 3) show that persecution is on account of race. having been convicted of particularly serious crime. c. etc? 2. etc. however it gives AG power can find that the alien has been convicted of a particularly serious crime despite the language requiring 5 year sentence imposition. Persecuted someone else on account of race. There is no balancing test. membership in a particular social group. Serious nonpolitical crime. ii.

Persecution defined: BIA relies on congressional committed reports that define it to ―require either a threat to the life or freedom of.‖ The BIA adds that the term contemplates that harm or suffering must be inflicted to punish individual for that difference. past pg. those who differ in a way regarded as offensive. ii. prosecution 1. ―Would be threatened standard for withholding‖ iii. vi. [Matter of Izatula] Prosecution for an attempt to overthrow a lawfully constituted government does not constitute persecution unless it’s a country where a coup is the only means to effect regime change (totalitarian). If applicant can establish that there is a ―pattern or practice‖ of persecution in their country on account race. 208(a) only requires a showing of past persecution or ―good reason‖ to fear future persecution. religion. However. ―Well founded fear standard‖ for asylum: the court in INS v.i. b. A less than 50% showing of fear will do. v. or the infliction of suffering or harm upon. Examples of reasons why it wouldn’t be well founded a. Subjective: applicant shows that his fear is genuine 2. etc. Govn’t must prove either by preponderance of the evidence. fear is presumed. ― c. Can the alien relocate to another part of the country? b. A fear is well founded if a reasonable person in the applicant’s circumstances would fear persecution. Two components: subjective and objective 1. Thus. If applicant has suffered past persecution. Subjective mental state of the alien is somewhat determinative. 1. Coercive population controls as persecution i. Cardoza-Fonseca held that the well founded fear standard is more generous than the 241(b)(3) clear probability standard (more likely than not). Remember: it’s still discretionary. Changed country conditions? i. it can be rebutted by change of circumstances. Prosecution v. the applicant need not show they will be individually singled out. iv. 28 . and that their fear of persecution upon return is reasonable because the persecuted group of persons is similarly situated to the applicant. Objective: requires showing by credible and specific evidence in the record of facts that would support a reasonable fear of persecution. Was added to 101(a)(42) as a ground for achieve ―refugee‖ status. Even if already sterilized.

Common characteristic must be unchangeable and it should not be req’d to be changed because it is fundamental to their identity. INS 9th cir].persecution triggers a presumption of future persecution under which the government may rebut if they prove by preponderance that there are changed circumstances in the country. 2. nationality. Spouse of one who is sterilized can also qualify as a ―refugee‖. religion. in proving past persecution. Ninth circuit has held that political neutrality is a political opinion for purposes of determining persecution. 1. Neutrality as political opinion 1. General definition of ―social group‖ 1. Political opinion i. this would be sufficient for relief on grounds of persecution on account of political belief. 2. all of whom share a common. however. the applicant must produce evidence. ii. b. 29 . Minority view [Sanchez-Trujillo v. immutable characteristic. Elias-Zacarias] A guerilla army’s attempt to coerce military service does not necessarily constitute “persecution on account of political opinion”. b. [Matter of Toboso-Alfonso] Homosexuals constitute a particular social group subject to persecution. from which it is reasonable to believe that the harm was motivated in part by an actual or imputed protected ground. Imputed political opinion: if persecutor imputes certain political opinion to alien even if the alien doesn’t hold opinion. Gender and social group pg. or political opinion‖ a. an asylum applicant is not obliged to show conclusively why persecution has occurred or may occur. iii. ―I don’t want to get involved with this cause!‖ 2. The term “particular social group” implies people voluntarily & cohesively associated with each other who are motivated by some common desire. In mixed motive cases. Minority: A refusal to support a cause can express a political opinion. Was the actor’s action in part motivated by an assumption that Alien’s political views were adverse to those of the government or was it for example. to ascertain the whereabouts of someone that they believed DID hold political views that were adverse to the government. either direct or circumstantial. ii. Majority: Ask what the persecutor’s motive or cause for persecuting the alien is. a. membership in a particular social group. Nexus requirement: ―on account of race. Sexual orientation and social group 1. Majority view [Matter of Acosta BIA] Persecution “on account of membership in a social group” means persecution that is directed toward an individual who is a member of a group. ii. Particular social group i. [INS v.

Well founded fear & would be threatened: methods of proof a. Plus. it could constitute a ―particular social group‖. Material facts i. Reason: continuing harm applies to sterilization or forced abortion not FGM. Persecution would not be on account of her membership in a particular social group. Although I have had FGM. 30 . I want relief on the basis of the theory that persecution is continuing. ii. Does membership in the persecuted group establish that the particular applicant is sufficiently likely to incur those consequences? a. Gender is a social group. 3. You already had FGM when you arrived. INS] In order for an alien to obtain asylum using gender. There is no basis for recognizing FGM on the basis of past persecution alone. b. (Fatin failed this prong) b. [Fatin v. Male circumcision: is not obligatory. BIA rejects FGM as continuing persecution. Membership in a persecuted group 1. There is no explanation as to why you waited so long. and iii. Alien had already undergone FGM but has no memory. the alien must show that members of that group are persecuted for their membership. identify group and whether it constitutes a particular social group. 2. Three part test with particular social group problems: i. Alien must show a pattern or practice of the country persecuting a group of people and the applicant’s inclusion in that group…the alien must also show pg. Moreover. you have to qualify within one year. a. Circumcision does not affect eradicate sexual function like FGM.1. a. Last argument: Alien feared she would be subjected to arranged marriage. There are no changed circumstances. [In re A-T] Alien came in as visitor for pleasure and applies for asylum. establish membership. The mere fact that it’s arranged does not equal persecution. forcible nature of FGM that is so reprehensible. Therefore. Having a child that would have to undergo FGM is too speculative. women who opposed arranged marriages did not have social visibility and were not readily identifiable. Note 7: Practice of religion may be fundamental to one’s identity and thus immutable. show alien will be persecuted or has a well founded fear of persecution on account of that membership. [Matter of Kasinga] Forced female genital mutilation is a basis for asylum.

Materiality to asylum eligibility a. The refugee definition makes past persecution an independent basis for refugee status. corroborating evidence is not req’d due to the difficulty of acquiring such info. A reasonable possibility that he or she may suffer other serious harm upon removal. An applicant who has suffered past persecution but who lacks compelling reasons or reasonable possibility of serious harm critical to the favorable exercise of discretion will want to assert the past persecution as a way of establishing a future threat to life or freedom in order to qualify for withholding of removal. aliens have still been granted asylum because its nature constitutes a ―continuing harm‖. Past persecution 1. 3. Evidence of past persecution can help the applicant establish a well founded fear of future persecution. i. Although sterilization/FGM has already been suffered and future persecution because of it is unlikely. ii. pg. 31 . Observe demeanor and candor. However. Regulations guiding IJ discretion in Asylum a. Government can rebut presumption of future persecution if it shows by preponderance of evidence 1) changed circumstances or 2) the alien can relocate to another part of the country and it would be reasonable for the alien to do so.that fear of persecution upon return is reasonable. Refugee status not implicated in withholding of removal. Limitations a. The applicant’s own testimony 1. Relevant evidence i. 2. 2. Thus. nor is past persecution as basis for withholding. b. credibility of the applicant is required. b. b. Denials of asylum are often because of lack of corroborating evidence. even where there is no threat of future persecution. c. Compelling reasons for being unable or unwilling to return b.

did the alien receive an offer to resettle permanently in that country? ii. Does he enjoy normal rights as other inhabitants of that country? b. we'll give you LPR but you can't leave the house. Persecution of others . Particularly serious crimes.‖ 1. iv. Firm resettlement: (significant ties) will be found if he received an offer of LPR status. availability to work. and explicit threats on the individual’s life all provide substantial evidence of a clear probability or well founded fear of persecution. iii. prior arrests or imprisonment due to political beliefs or ethnicity. INS] Newspaper accounts of persecution in the individual’s country of origin. AG may label it particularly serious despite language.S. Sometimes politics plays a part so actual human rights violations are downplayed. doesn’t really pay them any mind in adjudicating immigration cases. same for both a. State department opinions 1. Terrorists. Exceptions to eligibility a. U. 1. iii. ―Yes. Before arriving to the U.wouldn’t be able to even qualify as ―refugee‖. one caveat for withholding of removal. Procedural fairness is questioned because alien cannot cross-examine the writer of the letter. 2. 4. Judge must consider the conditions in which other residents of that country lives in. 32 . Nature of conviction – elements of crime pg. Determining particularly serious. Agg felony is not automatic. or some other type of permanent resettlement in another country unless his entry to that country was a necessary incident from his flight from persecution or the conditions of his residence were so substantially restricted by the authority of that country that he was in fact not resettled. the disappearance of family members. ii. Reasonable grounds to believe danger to the U.. language varies between asylum and withholding of removal. Firm resettlement i. 5 year sentencing requirement for it to be considered a ―particularly serious crime‖ and thus automatic.S. living conditions. Past wrongdoing i. holding property. therefore it is redundant to have it as an exception to asylum and withholding of removal.3. Advice from UNHCR (united nations) 1.S. Country reports: describe status of human rights in most of the world’s countries. Advisory opinions: issued for individual cases. ii. [Damaize-Job v. citizenship.

However. based on discrimination of any kind a. Underlying facts of conviction d. The NC need not show that it will be on account of race. Haitian Centers Council]. 33 . or pg. ii. punishing foran act he or a third person has committed or is suspected of committed. Statute i. Torture defined 1. Beyond Persecution: Protection against other dangers a. religion. ii. or 4. Neither the non-return provision of § 243(h) nor Article 33 of the UN protocol applies to actions of forced repatriation by the Coast Guard on the high seas. b. drugs or devices 3. or 5. Physical force against another is a particularly serious crime. [Sale v. Prof notes note 1 on p. 2. they will be detained. [Matter of Carballe] Final conviction of a particularly serious crime is the test. relief is mandatory subject to bars in 241(b)(3)(B) 1. Torture must be by government officials or by private actors with government acquiescence [see below]. Two separate findings 1) conviction and 2) that the alien is a danger to the community is not the test. Convention against torture i.1073. In order to constitute torture. mental pain or suffering must be prolonged mental harm caused by or resulting from: 1. IIED or pain 2. C. CAT relief requires the individual face a specific risk of being tortured by the government or at the instigation of or with the consent or acquiescence of the government.b. any act by which severe pain or suffering. nationality. Torture does not include pain or suffering inherent in or incidental to lawful sanctions. If met. Courts have held crimes against persons are particularly serious crimes per se v. IF determines whether NC has established that he or she is more likely than not to be tortured in the country of removal. deferral of removal is granted. Type of sentence imposed c. However. 1. intimidating or coercing him or a third person. for information or a confession. membership in a particular social group. if so. or political opinion. Prof believes that it should be two separate findings. security threat a. is intentionally inflicted on a person 3. persecutor of another 2. whether physical or mental. threat of imminent death. Acquiescence requires willful acceptance of the torture. Mitigating factors can be considered in determining whether the nature of the crime is particularly serious.

B. Day laborers or other casual workers engaged in any compensated activity. Employment includes any service or labor performed for any type of remuneration within the United States. Statute requires only that the employer verify that the document appears genuine on its face. Basically. 1 in (C) and 1 in (D) ii. A deliberate failure to investigate suspicious circumstances imputes knowledge. citizen over an alien with work authorization only where the U.4. c. 1. Perform certain paperwork for every person hired. knowing the alien is unauthorized to work. etc. pain or suffering. (B) Those that simultaneously establish identity & employment authorization. 3 categories of documents a. Employer must get either 1 in (B) or ii. A pre-1986 hiring would not subject to the statute. this would suggest a ―knowing‖ ineligibility of an alien’s authorization. 1. threat that another person will imminently be subjected to death.S. i. (D) Those that establish the former.S. If employer does nothing. 34 . unauthorized worker if a reasonable person would infer it from the facts. i. Recruitment and Employment of Illegal Aliens (274A) a. examination of identity documents. drugs or devices. Exception: sporadic domestic service by an individual in a private home. or to refer an alien for a fee. Compliance with employment eligibility verification a. 1. b. b. ICE conducts random checks and discovers identification for one of the employer’s employees belongs to someone else. including supporting documentation. Constructive knowledge constituting a violation of federal law has been found where a. Employers may give preference in recruitment and hiring to a U. (1) the I-9 employment eligibility form has not been properly completed. c. citizen is equally or better qualified. a system designed to – in good faith – verify that the employee may be hired lawfully. Compliance requires no knowledge of ineligibility i. b. Ex. i. Continuing to let the alien work would be unlawful. Employers must comply with employment eligibility verification requirements before hiring. ii. Enforcement A. IX. ii. An employer has constructive knowledge that an employee is an illegal. It is unlawful to hire or recruit an alien. It is equally unlawful to continue to employ an alien knowing that the alien is unauthorized to work. (C) Those that establish the latter. pg.

or (b) not admitted for employment under the INA or by the Attorney General. b. citizens. that the alien is unauthorized to work.S. Section 274B’s citizenship status discrimination provisions apply only to ―protected‖ individuals which are defined as U. 2. U. Knowledge cannot be inferred solely on the basis of an individual’s accent or foreign appearance. Protection against document abuses i. which occurs when the employer asks an employee for more or different documents than those required by the employment eligibility verification system in section 274A. U. b. Finally. pg. or any source of information available to the employer.S. Actual specific knowledge is not required. Unauthorized aliens are excluded from coverage 1. citizenship. Prohibitions on Discrimination a. 2. refugees and asylees. For example. regardless of claims that their convictions require them to assist aliens. ii. It is illegal for non-profit and religious organizations to knowingly assist an employer to violate employment sanctions.S.S. citizen or an alien authorized to work in the United States on the basis of citizenship status. 35 . Who is covered? i. Specifically.C. the statute prohibits retaliation or intimidation by an employer against an employee seeking to exercise his or her rights under this section. recruit or refer a U. General i. Only applicable to protected citizens 1. c. media reports. Moreover. with the intent of discriminating against the employee in violation of section 274B. a. (3) the employer acts with reckless disregard for the legal consequences of permitting a third party to provide or introduce an illegal alien into the employer’s work force. c. In order to continue being protected under these provisions. permanent residents. a newspaper article stating that ballrooms depend on an illegal alien workforce of dance hostesses was held by the courts to be a reasonable ground for suspicion that unlawful conduct had occurred. Section 274B of the INA prohibits employment discrimination on the basis of citizenship status or national origin. any employer. (2) the employer has learned from other individuals. the statute prohibits "document abuse" on the part of the employer. Protection against retaliation i. d. protected individuals must take steps to acquire U. and temporary residents.S. Harboring or aiding illegal aliens is not protected by the First Amendment. ―Unauthorized‖ is defined as: (a) not lawfully admitted for permanent residence. recruiter or referrer for a fee who employs more than three persons may not discharge or refuse to hire. or c.

permanent residents must apply for naturalization within 6 months of becoming eligible or if he or she has applied but has not been naturalized within 2 years. Substantive criteria of Administrative naturalization i. requirements: 1. Rationale i. government of history/principles. Our system is a mixture of both. 6. Physically present: Must be physically present for at least half that period. Jus sanguinis: Country only grants its nation’s citizenship on the children of its existing citizens. 7. he or she must show that he was actively pursuing. Citizenship 1. during the 5 year period immediately preceding the filing of the application and must continue to reside continuously until grant of naturalization. ii. X. good moral character: during all periods where continuous residence and physical presence are req’d. e. For example.S. No communist involvement in 10 year preceding filing. regardless of where the children were born. 18+ 5.S. Procedure (AG has sole power to naturalize) i. Citizenship acquired at birth a.a. d. An applicant who is not subject to the judicial exclusivity rule (either because the court declines to assert exclusive jurisdiction or because the pg. 36 . [3 if married in preceding 3 yr period – only a citizen] 2. ―Citizenship by descent‖ b. Jus solis: confers the nation’s citizenship on persons born within that nation’s territory. Resided cont: Once an LPR. [In re petition for Vafaei-Makhsoos] INA § 316(b) does not provide an exception for involuntary absences under its requirement for continuous residence for naturalization. c. b. Congress included section 274B in IRCA out of a concern that employers might overreact to the threat of employer sanctions penalties by refusing to hire anyone who appears "foreign" or who speaks with an accent. Knowledge of U. Applicant may elect to take final oath. Exceptions: age (over 50 and living in U. 8. c. There are other laws that award nationality after birth. 4. for 20 yrs or over 55 and has been living here for over 15 years) and disability. ―Administrative naturalization‖ is the most common. Citizenship acquired after birth a. LPR only: nonimmigrants or those who have not been admitted at all are disqualified.S. English fluency a. 2. OATH! iii. 3. must have resided continuously in the U.

b. automatically confers citizenship on child who: a. Revocation of naturalization aka denaturalization i. Expatriation i. This usually happens due to fraud or misrepresentation. Unlike denaturalization. INA 340(a) requires revocation of any naturalization order that was illegally procured or procured by concealment of a material fact or by willful misrepresentation. citizenship unless it is found that he or she subjectively intended to relinquish it. has a U. Note: federal courts may assert authority to administer oath of allegiance in naturalization. 3. child resides outside U. Problems i. 45 day period has expired) may elect to have the oath administered by an immigration judge.] A misrepresentation is material if it has a natural tendency to lead to the conclusion that the applicant is qualified. 2 of which were after the parent was 14. *Brought by USCIS iii. Other methods for naturalization (generally for children) 1. for at least 5 years.S. Military service eligibility iv. also applies to citizens by birth. 2. Double taxation iii. citizen parent. INA 340(h): naturalized citizen may be served with an intent to reopen naturalization proceeding within 2 years of the effective date of that naturalization. 2 of which were after parent or g-parent was 14. and c. Only the country whose nationality the applicant purports to renounce can ultimately decide whether to give effect to that renunciation. pg.S. Double voting Losing citizenship a. Divided loyalty ii.S. *Brought by U. [Kungys v. either citizen parent or citizen parent’s parent b.S. d. citizenship by descent if: a. before child’s birth for 5 years exp d. but is temporarily in U. one citizen parent b. U. is under 18.S. b. has been physically present c. ii.3. who was physically present c. b. resides in the U. children abroad who satisfy neither of the previous methods may be naturalized as long as: a. attorneys ii. in legal/physical custody of citizen parent e. as an LPR in the legal physical custody of the citizen parent.S. after a lawful admission Dual nationality a. B. before child turns 18 is. before birth not required. Person applying for citizenship in another country will not lose U. for children born overseas.S. 37 .

after having attained the age of 18 years 3. or employment an oath. INA 349: Somebody says I want to give up my citizenship. Citizen must be voluntarily performing an act with the intention of relinquishing U. post. or upon application filed by a duly authorized agent. Preponderance of the evidence is the standard vi. or serving in.ii. serving in. post. after attaining the age of 18 years for which office. b. affirmation. [Vance v. Had to have done the act voluntarily 2. 38 . or employment under the government of a foreign state or a political subdivision thereof. In armed forces of hostile foreign countries. actual intent to renounce may form the basis of revocation of citizenship. voluntariness w/out consent is NOT sufficient v. (2) Taking an oath or making an affirmation of other formal declaration of allegiance to a foreign state or a political subdivision thereof. post. after attaining the age of 18 years. or (B) such person serve as commissioned or noncommissioned officer 4. if he has or acquires the nationality of such foreign state. INA 349(b) Act shall be presumed to be voluntarily. govn’t must meet preponderance of the evidence standard. (4)(A) accepting. and voluntarily. To prove act was voluntary. and expatriates themselves as a US citizen iii. Has to be an ACT PLUS INTENT 1. or (B) accepting. Renouncing citizenship to avoid taxes… still taxed 10 years after and can never come back. or performing the duties of any office. by a preponderance of evidence. or performing the duties of any office. What acts result as expatriation for purposes of INA 349 1. that the act or acts committed or performed were not voluntarily vii. pg. Presumption of voluntariness may be rebutted upon a showing. 1. This standard also applies to citizen’s rebuttal. after having attained the age of 18 years 2. serving in. look for intent. or declaration of allegiance is required iv. [349(a)(1)] Obtaining naturalization in a foreign state upon his own application. nationality. Treason or subversion c. w/ the INTENTION of giving up his citizenship a.S. or employment under the government of a foreign state or a political subdivision thereof. (3)entering. Terrazas USSC 1980] Only an express. Other methods of expatriation a. but such a not presumption of intent. the armed forces of a foreign state if (A) such armed forces are engaged in hostilities against the US.