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Immigration law


8/23/2011 3:19:00 PM

Agencies / Federal Courts How cases will end in a federal court? Remember plenary power . complete authority over this area, FEDERAL AUTHORITY Where is the authority of the courts? Could be not much , however will see if it is true or not - concept of admission VERY IMPORTANT. What it means being admitted, entry concept - when somebody is caught at the border is subject to exclusion not deportation . admission v entry what it means being admitted - Who stays out? Grounds of inadmissibility - who can come in? difference between immigrant and not immigrant - Who goes? People remove from the USA. Remove because is inadmissible who is entitle of relief statutory benefits Detention Refugees Asylum Citizenship naturalization judicial REVIEW COURTS

OJO leer el holding en el caso de Padilla

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- 1980 1986 IRCA first amnesty immigration reform Marriage fraud act 1988 the anti drug abuse act 1990 inmigration act IMMACT greater efforts to send back criminals out 1994 agravated felony offenses 1996 two statues anti terrorism and ___________ 1997 NACARA 2001 life act resolve some of the problems of the 1986 2005 Real ID act 2002 HOMELAND SECURITY ACT Restructure the INS now r CBP ICE ISCIS CBP Enforce immigration in the border P Notices to appear = indictment CBP issue a lot of them DOJ BIA Board of immigration appeals

___________________________________________________________________________ _________________________________________ Family base visa petition and it is denied te appeal goes to to the Board of immigration Adjustment statues denies appeal AAO (administrative appeal office) Cancelation removal immigration court

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Immigration law and

Body of stautory, regulatory and case law that regulates - who makes immigration law - congress plenary powers Statutory Framework LEER Expedite removal Administrative removal Reistatment of removal federal LITIGATION OVERWIEV Review petition Habeas corpus Mandamus (and$1331) Mandamus petition the most prevalent after habeas corpus uscis the most sued Naturalization Miscellaneous district court (including class actions)

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Federal Power on Immigration

- First wave Chinese immigration gold rush - second far of communism - third post 9/11 Chinese exclusion case. Chi chi pan v USA page 199 LEER plenary powers - if you are outside of the USA you dont have the constitutional right to due process they have less constitutional protection . - 1893 case congress acted 10 year suspension labor immigration Next case supreme court says the federal government has not only the power to exclude but to deport. Shaughnessy v ______ 701 page case. Court decision in that case is in page 703 - the most important constitutional element in this case is the first amendment and due process. First amendment freedom speech and association. - congress enact the categories for exclusion for expulsion felons prostitutes etc.-courts said the dont have why to observe any particular case by case because those are congress powers so then - leer selective prosecution

ojo leer 699 the marked page. Page 210 leer Chequear expo facto laws Point the in case EQUAL Protection In San Francisco Page 213 what is the constitutional point arbitrary punishment Illegal aliens have the right no to have and arbitrary punishments. Page 974, illegal have 4th amendment rights the exclusionary rule There is not retroactivity application of statutes in immigration Leer 212 ( c ) relief retroactive application of statues Congress can discriminate base of nationality (nacara) positive discrimination in favor of some negative for the others.

TONIGH CASES TALK about location where are you? location is very importat factor in yoyr rights o YAMATAYA V FISHER CASE - She was in the country . The constitution recognize due process if you are here. - how she loose the case ? there were not a formal trial at that time. - this is a habeas corpus case so COLLATERAL REVIEW . - She lost because she didnt exhausted the administrative procedure. KANUFF V SHAUGHNESSY - check page 592 first paragraph. - the government can exclude somebody based on secret evidence . - it is an exercise of plenary powers by the congress. Sovereignty - the constitution does not apply people do not have the right to come to the country. Kwong HAI Chew v Colding Stakes: how long have you been here. How strong your communities roots are.

- The Chinese sailor case he was resident screened and when he comeback his entrance was not permitted. - he alleged violation of the 5 amendment . - he has a big stake - there is not constitutional rule on that - he is not an alien he is a returning lawful permanent alien doctrine of constitutional _______________ . - this a case of court constructing statues Shaughessy v USA ex rel mezey - page 602 - the government gave the present !!! to let him getting out of the boat it is a privilege. -again there is a confidential evidence. - the court said about the fact that nobody wants him the usa has the right to decides who comes here who doesnt he was away for 18 months. - the court says he is an alien looking for initial admission - this a case who talks about indefinite detention -many years later the courts was resucited in the mariel case - ROLES OF THE COURT IN THIS AREA

- doctrines in immigration limitation the roll of the courts political questions Consular not review Standar of review facially legit plus bona fide

Rational basics review Substantial Review Discretionary review

Kryptos statue in the CIA What kind of protection would you find in this sculpture keeping in mind - it is a work for hire so it has copyright (there is a contract issue). -Trademark the name. - under the copyright we maybe talking sculpture = work of art Architectural element It is not a patent The copyright office did not copyrighted The architectural Kryptos is not copyright word unless it becomes like business exam : target IP IN MUSIC A lot of interlocking relationship different player use dferent models to achieve success. Base in Intellectual property Composer lyricist performers producer record labels to divide the money General works in use before 1923___ are not longer of copyright are in thea lo of the value is in the form of sound tracks movies tv shows Trasmission There are porcentages they give blan licences agrrements with radio stations depending how big the radio is. They keep logs of the music played in the It is possible to go independently cause is very difficult Differnete tyoes of licences sincoronization licences advertisment trascription licences blank licences for musician s


Concept of admission There is plenary power in this area of law therefore there are constrains that congress has impose in immigration matters Congressional impose ones: - standard of review to discretionary decision Change in 1996 Alien: is someone NOT CiTIZEN OR NATIONAL OF USA Arriving Aliens: Defined as as applicant for admission coming or attempting to come to the usa at port of entry , or an alien seeking .. - Immigrant : -Immigrant visa -Admission : is the lawful entry of the alien in the USA after inspection by an immigration officer An application for admission is NOT the application for the issuance of an immigrant or non immigrant visa National are not the same that citizens -Undocumented aliens have not constitutional rights -Admissions is a privilege not an entitlement -Lawful residents have liberty interest in continuous residence in USA Plasencia case: LANDMARK CASE first case to apply mathews v Aldrich the government bears the burden of prove A lawful permanent resident aliens liberty interest can be lost exam by lengthy of time out of the country or by activities outside of USA - can not apply for a visa

leer exclusion v deportation

SPECIAL ADMISSION RULES FOR LPRS -lprS OUTSIDE usa ARE NOT SEEKING ADMISSION UNLESS - Abandoned status -absent continuously for more than 180 day, abandonment of LPRS -legal activity outside USA -departing during removal or extradition proceedings: you need to show up for a removal proceeding. Committed an offense identified in section 2121a2 of the INA unless waived under section 212h or cancelled under 240Aa -attempting to enter at a time or place other as designed by immigration officers or is here without inspection and admission -detention is a lawful incident to exclusion for the USA and the length of detention does not change the constitutional analysis for aliens seeking initial admission to USA . -even a returning lawful resident permanent resident is entitled to no more t

What is Due process? -notice -opportunity to be heard adequacy of process is flexible concept depending circumstances presented mathews v eldridge 1976 test applies depends on constitutionally protected interest life liberty property - What makes a liberty interest? -physical location immigration status length and type of prior presence reason for absence (returning LPR) length of absence reliance on government in leaving

What process is due? Applicable test derives from Mathews v Eldridge 1976 Balancing 3 facts: Interest at stakes for individual Interest of government in existing procedures Gain to accurate decision making that can be expected from new procedure

Due process issues -EWIs and PIWIs EWIs entry without inspection PIWIS present without inspection INA 235c -removal of arriving aliens on security and related grounds summary procedure : officer order alien removed , subject to review by LPR in vacation less than 180 days is not seeking admission

September 13/2011 Grounds of inadmissibility

Grounds if Inadmissibility

Inadmissibilility section 212 (a) Aliens who are inadmissible may not - receive an immigrant or non immigrant visa -be grated adjustment of status -be otherwise admitted to the usa 10 broad categories 1 health related criminal and related security public charge lacking labor certifications illegal entrants and immigration violators lacking documents inegible for citizenship previously remove miscellaneous

Waivers many grounds of inadmissibility 212(a)(1) communicable disease fails to provided documentation vaccination certain physical and mental diseases 212(a0(1) invokes 212(g) discretionary waiver of communicable

criminal and related grounds 212 8 categories convicted certain crimes multiples crimes controlled substance trafficking

prostitution money laundering certain aliens who have asserted immunity from prosecution foreign official who have committed particularly severe violation in religion freedom significant traffickind persons Crimes involving moral turpide 212 a2 Ai I an alien is inadmissible who is convicted of or who admits commiting acts which constitutede what is moral turpitude CONDUCT THAT IS INHERENTLY BASE, VILE AND DEPRAVED that is contrary to the accepted rules of morality and the duties owed between persons or to society

Examples fraud offenses, malum in se offenses 9muerder, rape, mayhem) Moral turpitude exceptions Crimes commited before an alien was 18 and if more than 5 years before the application for visa and admission Crimes

Controlled substances offenses 212 a 2 A i II possession or manufactured of controlled substance conspiracy to distribute unlawful use of a telephone attempt to possess but not solicitation and accessory after the fact maintaining a place for distribution use and being under the influence multiple criminal convictions 212 a 2 B any two convictions, regardless of moral turpitude , single scheme of misconduct or single trial provided that the aggregate sentences to confinement imposed was five years or more exception for purely political offenses

Controlled substances trafficking 212a2C alien is inadmissible if the consular officer secretar applied as well to the spouses or children of drug traffickers no conviction necessary possession of drug when seeking admission can be sufficient belief of ICE/CBP officer can be sufficient

waivers Possible waiver available under 212 h 1 B But not for drug offenses involving more tthan 30 grams of marihuana Possible waiver under 212d3 if the person wants to come AS NONIMMIGRANT

September 15/2011 Security and related grounds of inadmissibility 212(a)(3)(A) general provisions.

- Kleindiest v mandel PAG 543 ojo leer this is one of the seminal cases in plenary powers (executive powers). - Evolution of INA security provisions today -espionage sabotage overthrow of the USA terrorism foreign policy

Foreign Policy Charges Ruiz-Massieu case leer pag 559 Matter of S-K case page 570

Iliegal entrants and immigrant violators -PIWIS Illegal 212 (a) (6) (A) (I) present in Illegal entrants and immigrant violators -fraud / misrepresentation Misrepresentation defined

212 I Waiver - extreme hardship matter of Cervantes Gonzales, 22 I &N dec. 560 (bia1999) Text Pag 515-19

entrants and immigrants violators Student visa abusers 212K waiver -Discretionary waiver for aliens case text page 512 is inadmissible, 212 a 7 B I II 212 a 9 A Applies to aliens ordered removed in expedited removal or in regular removal proceedings conducted upon removal - inadmissible for 5 year , or 20 years if second or subsequent removal -Permanent bar Unlawful presence 212a9B problem 8 page 512

Unlimited immigrants

September 20/2011

Immediate relatives -spouses unmarried child of usc ina 1019b)(1) parent o returning resident

four categories backlog : far more petitions than available visas procedures immigration visa petition i-130 petitioner (spouse, etc) beneficiary (non-citizen seeking admission) priority date visa bulletin -Adjudication of visa petition by USCIS -application for immigrant visa ti US consular -inspection and admission at port of entry form I-130 form I-485 -even dough you are here if you are applying for adjustment status is seeking for admission . EB Preferences overview (INA 203(B)) employment bases -first : priority workersEB-1 priority workers OJO NO LABOR CERTIFICATION!!!!!! You just file your petition with uscis -foreign national may SELF PETITION I1150 must show -nationally recognized prizes or awards -membership in outstadind association

Outstanding professors Recognized Three years experience

Multinational executives and managers -employed at least for one year within the 3 year prior admission

EB -2 Need labor certification requirement Job offer is required EB-3 Determine by the job offer (needs 2 years experience) Labor certification is required EB-4 No more than 5000 religious workers EB-5 employment creation Investor at least one million etc.

LABOR CERTIFICATION - an alien worker is inadmissible unless DOL certifies that: -the employment of the alien worker will not adversely affect the wages and working conditions of similarly QUALIFYING CRITERIA - employer must hire the foreign worker full time -there must be a bona fide job opening available to US WORKERS

-the employer must pay at least the prevailing wage for the occupation in the area of intended employment the employer must follow DOL standardized recruitment regime to determine if any US workers are available for the job procedures for EB immigrants labor certification I-140 EB 1,2,3 Immigrant visa petition I-526 (EB-5 Adjudication of visa petition

Marriages Issues

Sept 22/2011

congressional power to draw the line on immigration - the illegitimate children of the father an not have citizenship discrimination set by the congress against fathers page 317 third paragraph is cited frequently case Fiallo v Bell -Adams v Howerton case pag 328 state law cannot control the marriage aspects for immigration -defense of the marriage act is the valid one for immigration Marraiage Fraud amendments act


Non-immigrant visas

Tourist, students, cultural events, diplomats, workers, religious workers, family members. A - visa diplomat visa A-1 A-2 A-3 B- Business B-1 business B-2 Tourist medical too C Transit Visa C-1 C-2 E - Treaty and investors visa Self petition only with countries with treaty (E-3 just for Australia) F student visa G- intergovernmental visa IMF IDB etc deny because of national security H temporary workers visa H1B skill temporal worker H2A temporary agricultural H2B temporary no agricultural H1C nurse visa

I- Information press and its dependents spouses J- Professors etc it is a state department program K Fianc visa L- Intercompany transferee vice president mid level executives M vocational student O Extraordinary individuals recognize national or international P Performers visa Q- cultural programs R religious visa the person can S- Snitch visa Informant



Marriages Issues

Adams v Howerton pages 328 30 Dabaghian v Civiletti, 607 F.3d 869 (9th Cir. 1979) Marriage fraud Amendments Act of 1986 Violence Against Women Act Dabaghian Married after his visa expired separated after 2 weeks after his status was changed Government argue because they were separated it was a not a valid married 9th circuit says intention of the couple when got married it is the important element ojo leer 204 (g) IMFA 1986 petition and adjustment of status may be granted if alien stablish by clear and convincing evidence (to the satisfaction of thE AG) THAT: MARRIAGE ENTERED INTO in good faith Not for purposes of procuring admission and No fee

INA section 204(c ) If you have been involved in a married fraud you will be permanent barred from the USA INA section 216 Specifies that admission based on marriage (and for son and daughters) shall be on a conditional basis for two years Within 2 years period status may be terminated if AG determines that: Marriage entered into for purposes of admission Marriage has been judicially annulled or terminated and fee was given ..

Petition to remove conditional status INA 216 ( C ) REQUIERES joint petition Hardship waiver 216 (d)94) If joint petition not filed and or no interview alien can seek waiver based on:

Extreme hardship The marriage was entered into a good faith but has been terminated and the failure to petition was not the fault of the alien or The marriage was entered into a good faith but the alien was subject to battery or extreme cruelty and the alien was not at fault for not filing SIBLINGS

Young v Reno, 114 F .3d 879 (9th Cir. 1997) Text, pages 350 - 56 An adoption case: if a parent gives a child for adoption that child can not request the biological parent to come to USA. Chevron test: 203 d Treatment of family members Applies to spouses or children of the beneficiary of a family based employment based or diversity visa They shall be entitled to the same status and the same order of consideration as the beneficiary if accompanying or following to join the spouse or parent

101 (b) Definition of child applies for purposes of INA title II Generally 203 h 1 applies for purposes CSPA Priority date OJO LEER EJERCICIOS PAGINA 200 300

October 4/2011

Deportation grounds

INA Section 237

U visas Domestic Violence person who will help to prosecute a crime valid for 4 years you have to be helpful to federal o local law enforcement you need a certification from the law enforcement who investigate T visas Labor trafficking or sexual trafficking you do not need a certification Removal/ deportation substantive - where does congess derive the power to define who is removable? What are procedural

Who are deportables? - two kinds of deportable offenses: 1 Aliens subkect to removal fos conduct before or related to entry 2 aliens subject to removal for condict after entry grounds apply to aliens after being admitted 237 (a)(1)(H) Waiver Applie to aliens who were inadmissible at time of admission under 212 (a0(20(6)(i)

Aliens subject to removal for conduct after entry General Crimes Crimes moral turpitude Multiple CIMTS ETC


Foregoing crimes will not be a basis for deportation if the alien receives a full and unconditional pardon from the president or the governor of a state Vacaturs What if conviction vacated or sentenced reduced by the court rendering the convictions? Answer It depends Still basis for removal if conviction vacated solely for immigration purposes. Post judgment Conviction definided 101 a 48 A - Formal judgment of guilt entered by a court. - If final judgment withheld finding of guilt by judge or jury guilt or nolo plea or admission of sufficient facts to warrant guilty finding and

Judge has ordered some form of punishment, penalty or restrain to liberty Terms of imprisonment defined Reference to any term of imprisonment

Criminal offenses Controlled substances Certin firearms offenses Miscellaneous crimes Crimes of moral turpitude Aggravated felony jodido

Effects of convition for aggravated Crime of violence 101 a 43 F&18 Leocal p 746


Analyzing Criminal Grounds of Removal

Lopez case page 751 Holding CARACHURY ROSENDO V HOLDER CASE LEER Courts see has general offense Shepards case leer Circumstances specific approach Nijhawan v. holder, 129 S Ct. Circumstance specific offense Circumstance specific approach Circumstance specific

Taylor/Shepard Categorical Approach Not Applicable to All Aggravated Felonies, Some Require "Circumstance-Specific" Approach

Nijhawan v. Holder, No. 08-495 (U.S. June 15, 2009) Remember that circuit split over whether the Taylor/Shepard categorical approach applies to 8 U.S.C. 1101(a)(43)(M)(i), which includes as an "aggravated felony" "an offense that . . . involves fraud or deceit in which the loss to the victim or victims exceeds $10,000[?]" The split is no more, having been resolved by the Supreme Court in Nijhawan v. Holder. The question, as the Court framed it, was whether the phrase "loss to the victim or victims exceeds $10,000" refers to a generic crime (the categorical reading), or to "the specific way in which an offender committed the crime on a specific occasion" (the circumstance-specific reading). "If the first, we must look to the statute defining the offense to determine whether it has an appropriate monetary threshold; if the second, we must look to the facts and circumstances underlying an offender's conviction." Justice Breyer, writing for a unanimous Court, began by noting that one of the rationales for the Taylor categorical approach is a practical one: by limiting the inquiry to the offense elements and certain judicial documents, the approach avoids the difficultly in trying to determine the exact factual basis for a conviction in a later proceeding.

The Court then compared the ACCA's "violent felony" definitionthe statute at issue in Taylorto the "aggravated felony" definition as a whole. The language in the ACCA element of force, specific offenses, conduct presenting a risk of injuryall refer to generic crimes. And so do some portions of 1101(a)(43): murder, rape, sexual abuse of a minor, illicit trafficking in a controlled substance, illicit trafficking in firearms or destructive devices, and offenses described in particular statutes. "More importantly, however, the 'aggravated felony' statute differs from ACCA in that it lists certain other 'offenses' using language that almost certainly does not refer to generic crimes but refers to specific circumstances." For example: 1101(a)(43)(N) and (P) refer to generic offenses, but contain exceptions when certain circumstances are present, circumstances that aren't elements of the generic crimes. "Thus if the provision is to have any meaning at all, the exception must refer to the particular circumstances in which an offender committed the crime on a particular occasion." 1101(a)(43)(K) also refers to specific statutory offenses, but they are only aggravated felonies "if committed for commercial advantage." Only one of the listed statutes refers to "commerical advantage." "Thus, unless the 'commerical advantage' language calls for circumstance-specific application, the statute's explicit references to [other statutes] would be pointless." 1101(a)(43)(M)(ii) includes offenses "described in" 26 U.S.C. 7201, but only if "the revenue loss to the Government exceeds $10,000." As 7201 does not have a lossamount element, this provision would be pointless "unless the 'revenue loss' language calls for circumstance-specific application. So which one is (a)(43)(M)(i): a reference to a generic crime, or to "specific circumstances in which the offense was committed[?]" The latter. Why? The language: "In which" can refer to the circumstances in which the offense was committed, rather than just the elements. And the parallel structure to (M)(ii) suggests it should be read the same way as that provision. Anti-superfluity: Most federal fraud statutes have no loss-amount element, and those that do have thresholds other than $10,000. And even if Congress intended (M)(i) to apply almost exclusively to state offenses, there are only eight of those in which the $10,000 would have effect under a categorical approach. Nijwahan argued alternatively that, even if the categorical approach doesn't apply to (M)(i), the Court "should nevertheless borrow from Taylor what that case called a 'modified categorical approach[,]'" which would limit the immigration court to

examining the jury findings and judicial documents sanctioned by Taylor and Shepard. "To authorize any broader examination of the prior proceedings, petitioner says, would impose an unreasonable administrative burden on immigration judges and would unfairly permit him to be deported on the basis of circumstances that were not before judicially determined to have been present and which he may not have had an opportunity, prior to conviction, to dispute." Close, but no cigar, said the Court. The modified categorical approach was developed for a different purpose: to determine which elements underlay a conviction when the offense could have been committed in both generic and non-generic ways. [Not sure why that cuts against Nijhawan's argument.] Also, unlike Taylor et al., we're dealing here with an immigration case, where the evidentiary standard is "clear and convincing," rather than "beyond a reasonable doubt." These considerations, [together with a few other features of immigration proceedings], mean that petitioner and those in similar circumstances have at least one and possibly two opportunities to contest the amount of loss, the first at the earlier sentencing and the second at the deportation hearing itself. They also mean that, since the Government must show the amount of loss by clear and convincing evidence, uncertainties caused by the passage of time are likely to count in the alien's favor. Okay, I can sense some nervousness in the crowd. We know that statutes which have both immigration and criminal application should generally be interpreted the same way in both cases. "So, what about 1326's?", you ask. "Can the 20-year maximum in 1326(b)(2) be triggered by a loss-amount finding made for the first time at the illegal reentry sentencing, on a clear-and-convincing standard?" Yes and no. The Court addressed this matter: [Nijhawan] says that a circumstance-specific approach to subparagraph (M)(i) could create potential constitutional problems in a subsequent criminal prosecution [under 1326(b)(2)], because the loss amount would not have been found beyond a reasonable doubt in the prior criminal proceeding. The Government, however, stated in its brief and at oral argument that the later jury, during the illegal reentry trial, would have to find loss amount beyond a reasonable doubt, . . . eliminating any constitutional concern. Now this brings up an intriguing question: does Nijhawan offer additional support for a narrow reading of the Almendarez-Torres prior-conviction exception to the rule of Apprendi? Given the quoted paragraph, as well as the constitutional concerns identified in Taylor and Shepard, can we say that the prior-conviction exception is limited to the

fact of conviction itself, and that any facts about the conviction that would be necessary to trigger a recidivist enhancementsuch as those bringing it within the "aggravated felony" defintionmust be proven to a jury beyond a reasonable doubt or admitted by the defendant, either in the prior proceedings or in the proceeding in which the Government seeks to apply the enhancement? Or is that just a wordy way of stating the law as it already is? Discuss. Labels: 1326, 2L1.2, Aggravated Felony, Circumstance-Specific Approach, Taylor/Shepard

Cancellation of removal INA 240 A a, 8 usc 1229 b(a) Lawful permanent resident Lpr for at least 5 years Resident in US at least 7 years after any sort of admission (special rules 240 A d No aggravated felony convictions Discretionary relief

Problem page 793 problem 8 answer short in time the person can not have cancellation removal because is one month short . stop time rule