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I. Constitutional Foundations of Immigration and Citizenship Law

A. Foundations of Congress’s Plenary Immigration Power (Chapter 2)

1. The Chinese Exclusion Case and the Sources of Federal Immigration Power

a. Chinese Immigration

i. Burlingame Treaty 1868: treaty w/China wherein US accepted Chi immi and the Chi gov’t accepted emigration – was a crime to leave.

1. “inherent and inalienable right of man to change his home and allegiance and also the mutual advantage of fee migration and emigration of [Amer and Chi] citizens for the purposes of curiosity, of trade or PR”

2. US was interested in cheap labor

3. Suppl Treaty 1880: US can regulate, limit or suspend” immi of Chi laborers whenever entry affects or threatens to affect interests of country

ii. Chinese Exclusion Act 1882: enacted a 10yr moratorium on immi of Chi laborers

1. Hard to enforce b/c hard to determine who was here before effective date (Nov 17, 1880)

2. Req’d showing certificate if returning to US that said were here before date

3. Chi merchants, teachers, students, or travelers exempt from exclusion

4. Scott Act 1888: congress responded to federal judges making entry req’ts more laxed by barring Chi immi’s even if have certificate.

iii. Chinese Exclusion Case: chi laborer who cam in 1875, went to visit fam, but denied entry when returned. Court held: the federal power to exclude non-citizens is an incident of nat’l sovereignty. Inherent sovereign power to regulate immi clearly resides w/fed gov’t.

1. Every nat’l gov’t has inherent authority to protect nat’l public interest

2. Immi matter of vital nat’l concern

3. Role of fed gov’t to oversee matters of nat’l concern while province of states to govern local matter

b. Constitutional Framework:

i. Enumerated Powers: areas where fed gov’t may const. draw authority

1. Commerce Power: Const Art.1, § 8, cl.3

a. Provides congress power to “regulate commerce w/foreign nations”

b. USSC in Passenger Cases invoked Commerce Clause to ban the levy of fees upon foreigners wishing to disembark at state ports.

i. Court invalidated state immi fees even though congress had yet to implement any relevant fed reg

ii. Court reasoned Congress exclusively controlled foreign affairs and foreign commerce even when not exercised

2. Naturalization Power: Const Art.1, § 8, cl.4

a. Specifically grants Congress power to establish “uniform Rule of naturalization”

i. By expressly granting prevents confusion as to whether States can bestow citizenship

b. Does not explicitedly provide power to deny admission or remove non-citizens

c. Nishimura Ekiu v. US: cites power to establish uniform rule of naturalization; the power to declare war, and to provide and maintain armies and navies; and power to make all laws necessary and proper

3. War Power: Const. Art.I, § 8, cl.11

a. Gives Congress authority to “declare war”

b. Authorizes exclusion or expulsion of enemy aliens

4. Migration and Importation Clause: Const. Art.I, § 9, cl.1

a. “Migration or Importation of such person as any of the States now existing shall think proper to admit, shall not be prohibited by Congress prior to 1808.”

b. Could be construed to imply that after 1808 congress would have power to migration and importation

c. Prevailing interpretation was to prevent congress from stopping slave trade

5. Foreign Affairs Power:

a. No explicit mention in the const.

b. Congress is given power to regulate commerce w/foreign nations, define offenses against nations, declare war, Pres has power to make treaties – but not to deal w/foreign affairs

c. Courts have struck down state statutes regarding immi b/c say that power is for congress b/c states could embroil US in disastrous quarrels w/other nations.

ii. Inherent Power

1. US v. Curtiss-Wright: court clearly distinguished b/t powers delegated to fed gov’t in Const. and inherent sovereign powers.

a. Delegated powers over internal affairs were carved from general mass of legislative powers prev. governed by States

b. States never possessed int’l powers – these were transferred to ‘”union of states” – thus vested in nat’l gov’t before Const.

iii. Constructional and Structural Arguments

1. Rule of Necessity: suggest that b/c fed power over immi is necessary to the successful operation of const., this power may be interpolated into the const.

2. Structural Justification: draw inference of power from structure of const. as a whole rather than from individual clauses.

a. 2 major structural arguments:

i. Power to regulate immi is essential to nation’s “self-preservation” b/c w/o control over territory gov’t would be unable to govern itself and its borders effectively and make subj to other nations.

ii. Power to regulate immi is essntial to process of nat’l “self-definition” b/c by determining who will comprise nation and participate in creating nation’s identity, immi laws constitute a process of self-def itself.

2. The Chinese Exclusion Laws and Equal Protection

a. Yick Wo v. Hopkins: SF ordinance regulating laundries – effectively closes all of chi laundries. Court held: that EP clauses protected chin nat’ls against discriminatory enforcement of SF ordinance.

i. Rights of P are not less b/c they are aliens and subj to Emperor of China

ii. 14th amend says “any person” – these provisions are universal in their application to all person w/in territorial jurisdiction w/o regard to race, color, or nat’lity

b. Yick Wo suggests that noncitizens and citizens receive similar const. treatment in non-immigration matters.

c. 14th amend only applies to state action not fed action – may be reason why not invoked in Chinese Exclusion Case

3. From Exclusion to Deportation

a. Exclusion: process of preventing non-citizens form gaining entry into country

b. Deportation: (1) removal of non-citizens already w/in the US (expulsion); (2) physical removal to another country of any non-citizen inside US (excluded)

i. 1892 Act – authorized deportation of any chi alien unlawfully in the US

1. alien who failed to obtain cert. could be “arrested and taken before judge who duty it shall be to order that he be deported from US”

2. could escape deportation only by demo that “by reason of accident, sickness or other unavoidable cause, he has been unable to procure his cert.” – also needed 1 credible whi witness

c. Fong Yue Ting v. US: P was arrested and could not get req’d whi witness. Court held: that the power to expel or deport non-citizens rests upon the same ground as the exclusion power and is =ly “absolute and unqualified”

i. Congress has right to send non-citizens elsewhere if have just cause to fear that they will corrupt the manner of the citizens

ii. Immi and naturalization, like foreign policy, encompass an area where congress maintains almost plenary power and judiciary has very ltd responsibility.

1. Congress has the power prescribe the evidence that shall be rec’d and effect of that evidence in the courts of its own gov’t

4. Deportation & Punishment

a. Fong Yue Ting: Order of deportation is not a punishment for crime therefore the provisions of the const., securing right of trial by jury, prohibiting unreasonable search and seizures, and cruel and unusual punishment; have no application.”

i. BUT doesn’t mean can imprison non-citizens w/o DP

b. Wong Wing v. US: 1892 Act says any chi any US illegal can be imprisoned for hard labor. Court held: provision was invalid b/c can’t imprison alien w/o judicial trial.

i. Detention or temp confinement as part of the means necessary to give effect to provisions for exclusion or expulsion of aliens is valid

1. Not imprisonment in the legal sense

2. Gives time to figure out true character of alien and make arrangements for deportation

ii. Congress can declare act of alien in remaining unlawfully w/US an offense, punishable by fine or imprisonment if such offence were established by judicial trial

c. Federal Power to exclude/deport is:

i. Absolute

1. No torture of the excluded

2. DP applies at certain stages of limits

3. Some form of DP limits deportation

ii. Exclusive

1. States/localities providing benefits/burdens to non-citizen

2. Sanctuary law – won’t ask about immi status w/in SF, CA

3. 287(g) agreements – agreements w/fed gov’t wherein they agree to use local law enforcements to enforce immi law

4. it is clear that States do act on immi issues even when not supposed to

iii. Not subj to judicial review

1. Court willing to consider some questions of fund fairness/DP concerns

2. Court will interpret INA

iv. Greater political constraints

1. Repeal racial classifications

2. Const. norms developed in other areas may permeate into immi

5. Moral Constraints on the Exercise of Immigration Power

a. Is exclusion/deportation justifiable?

i. King: No. Should be helping aliens who want to immi.

ii. Walzer: Yes. 1000 petty fortresses, value membership, necessary for int’l order

iii. Carens: No. liberalism is part of the culture. Citiizens/Aliens are of = moral wroth. Global utilitarianism. Free trade/movement.

B. Alienage Law (Chapter 9)

1. State v. Federal Restrictions on Public Benefits

a. Generally

i. Under Us federal system a state could const. treat citizens and non-citizens differently in order to protect a “spec. public interest” in its common prop resources.

ii. Although special public interest is applied broadly some cases where court refused

1. Takahashi v. Fish & Game: CA barred issuance of commercial fishing license to any person ineligible for citizenship. Court held: court rejected the argument that CA was owner-trustee of all fish in its coastal waters.

a. Nondiscrimination principle applies to residence in any state by “all persons lawfully in this country.”

b. “any person ineligible for citizenship” made the statute a race-based law rather than a law that discriminated against non-citizens generally

b. State laws

i. States may not usurp fed power over immi – courts will invalidate state statutes that conflict w/fed policy

ii. Graham v. Richardson: non-citizen denied welfare benefits. Court held: non-citizens as a group constitute a discrete and insular minority deserving of heightened judicial protection and that alienage is subj to SS under EP.

1. To permit state legislatures to adopt divergent laws on the subj of citizenship req’ts would appear to contravene this explicit const. req’t of uniformity.

2. Conflict b/t the burdensome state regulation and decision by fed authorities to grant residency privileges to affected non-citizens.

3. Court laid to rest “spec. public interest” doctrine and right-privilege distinction

c. Federal laws

i. Graham says not addressing citizenship req’t for fed benefits.

ii. Resident aliens posses recognized const. rights but when pitted against fed power to regulate immi – these right provide little protection.

1. Mathews v. Diaz: statute that discriminates against 2-classes of non-citizens where alien denied fed med insurance. Court held: statute valid b/c it was not wholly irrational – court invokes power of congress over immi/naturalization as well as pol Q doctrine

a. Any rule of const law that would inhibit flexibility of pol branches of gov’t to respond to pol branches of gov’t to respond to changing world conditions should be adopted only w/greatest caution.

i. Pol Q doctrine dictate narrow std of review for decision by Congress and Pres in area of immi/naturalization.

b. The exercise of its broad power over naturalization and immi, congress regularly makes rules that would be unacceptable if applied to citizens.

iii. Guarantee of of EP inferred under 5th amend has little meaning for LPR’s

1. Court refuses to restrain fed gov’t in any area relating to non-citizens

iv. B/c congressional power is viewed as encompassing “regulation of the relation of the relationship b/t the US and alien visitors,” those justifications for deferring to Congress and Exec on matters of immi have apparently been extended to any fed actions that affect non-citizens.

d. Limits on Fed Alienage laws

i. Where classification is on basis of alienage court has declared that EP component of 5th is not co-extensive w/that of 14th

ii. Hampton v. Mow Sun Wong: regulation that excludes non-citizens from civil service commissions. Court held: when fed gov’t asserts overriding nat’l interest justification for discriminatory rule which would violate EP if adopted by a state, DP req’s that ther be a legitimate basis for presuming that the rule was actually intended to serve that interest.

1. If agency which promulgated rule has direct responsibility for fostering/protecting interest – reasonable to presume asserted interest was reason for rule.

2. If rule expressly mandated by congress or pres. – can be presumed that any interest might rationally be served by rule

3. 5th amend and 14th differ b/c there may be overriding nat’l interests which justify selective fed legislation that would be unacceptable for an individual state.

a. Only where fed gov’t acts very much like a state, must it adhere to stds applicable to the states

b. Plenary fed power does not allow any agent of fed gov’t to discriminate b/t non-citizens and citizens

4. Nat’l interest creating an incentive for non-citizens to be naturalized was sufficient to justify the rule

2. Equal Protection or Preemption?

a. States tht have attemptd to regulate concurrently in a field already occupied by fed statute will be struck down under doctrine of preemption.

i. Hines v. Davidowitz: PA registration provisions. Court held: fed law in a specific area may even preclude consistent state regulations – Federal Alien Registration Act preempted PA statute.

b. Mere existence of fed immigration power doesn’t automatically preclude state regulation affecting non-citizens

i. DeCanas v. Bica: CA statute prohibiting employer from knowingly employing undoc worker. Court held: not every state enactment which in any way deals w/aliens is a regulation of immi and thus per se preempted by this const. immi power, whether latent or exercised.

1. Nature of subj matter doesn’t compel a conclusion of exclusive fed control

a. CA statute didn’t cover ground specifically addressed by INA

b. Congress seemed to authorize concurrent state legislation in the area regulated by state law

c. Fed interest not predominant in a situation in which state law is fashioned to remedy local problems

d. Doesn’t conflict w/fed law

c. Court has limited state’s power in relation to non-citizens and education

i. Toll v. Moreno: right of children of non-citizens who were int’l org employees to pay lower state university tuition. Court held: if states req’d G-4 immi’s to pay higher tuition the state would be creating burden on them not contemplated by Congress.

1. Federal gov’t allowed G-4 non-immigrants to be a special group that was granted right of acquiring domicile in the US

a. Imposition of such a burden would be impermissible since it would frustrate the fed policy

2. State laws which impose discriminatory burdens upon the entrance or residence of aliens lawfully w/in the US conflict w/this const. derived federal power to regulate immi and have accordingly been held invalid.

3. 1996 Welfare Act (PRA/TANF) & Devolution to States

a. Before 1996 major fed-funded public benfits prog’s were open to citizens, LPRs, and non-citizens who were otherwise permanently residing in US under color of law

b. 1996 Welfare Act: was a major welfare reform that generally ltd recipients to 5yrs of benefits and req’d them to work w/in 2yrs of receiving aid

i. Set forth clearer rules barring undoc non-citizens from non-ER assistance prog’s

ii. “qualified aliens” as defined in the Act, can receive assistance in some circumstances but the state still imposed significant restrictions

1. §402(a): subj to certain exceptions qualified aliens aren’t eligible to receive SSI or Food Stamp benefits

a. (2): enumerates several exceptions that allow various subgroups w/in qualified alien population to remain eligible for SSI, Food Stamps, or both.

2. §431: qualified aliens incl: LPR, asylees, refugees, aliens who are paroled into the US, aliens who deportation is being w/held, aliens who have granted cond’l entry, certain Cuban/Haitian entrants, and certain “battered” aliens.

iii. Also barred anyone who became a qualified alien on or after Aug 22, 1996 from Medicaid and any other fed means tested public benefits for 5yrs.

1. Doesn’t apply to refugees, asylees, non-citizens granted w/holding removal, and certain veterans and activity duty military personnel and their families.

2. After 5yr bar expires most sponsored immi will stay ineligible for public assistance due to provisions that deem a sponsor’s income to be immi’s for deciding eligibility.

3. Modifications:

a. 2002 Congress restored Food Stamps to: (1) new LPR, refugees, asylees, and certain battered spouses and children after they’ve resided in US for 5yrs; (2) all qualified alien children regardless of arrival date; (3) non-citizens lawfully residing in US and rec’ing benefits under specified disability prog’s

c. Blurring Federal-State Line

i. 1996 Welfare Act gave states new authority to decide eligibility for jointly funded fed-state programs (TANF, non-ER Medicaid) and for state-funded public benefits.

1. Substantial shift in cost from fed gov’t to states and localities

ii. The Act authorized states to discriminate against non-citizens in provision of welfare benefits

1. Authorizes but does not req states to provide state-funded benefits to non-citizens who are barred by fed req’ts

2. Some states provide some benefits while others restrict eligibility for these benefits to certain classes of non-citizens or provide fewer benefits

iii. While such restrictions were found to violate in EP, some state courts have upheld these laws finding that SS doesn’t apply b/c of congress’ authorization

1. Aliessa v. Novello: non-citizens denied MediCaid assistance. Court held: that SS applied and the law statute was invalid b/c Congress can’t authorize state discrimination.

2. Soskin v. Reinertson: statute that removed optional MediCaid coverage for legal aliens except for “qualified aliens”. Court held: when congress exercises these powers to legislate w/regard to aliens, the proper std of judicial review is RB

a. Congress can give states this authority to assess whether burden to high and can in turn decide against optional coverage b/c it is addressing the congressional concern that individual aliens not burden the public benefits system.

4. Immigrants in Gov’t & Politics

a. Public Employment

i. USSC has allowed some state alienage classifications in area of gov’t and pol

ii. Sugarman v. Dougall: ltd state competitive civil service positions to US citizens. Court held: recognized a state interest in limiting gov’t participation to those persons who are are w/in basic conception of pol community, and state’s authority to define pol community, however, court found the statute swept far too broadly.

1. Menial civil service positions were subj to citizenship req’t while other elective and high appointive offices were not

2. Can req citizenship when:

a. Power of the state to def pol community applied to persons holding state elective or important non-elective legislative and judicial positions – officers who participate directly in forumation, execution, or review of broad public policy perform functions that go the heart of representative gov’t

iii. Cabell v. Chavez-Salido: citizenship req’t on “peace officer” positions incl. probation officer. Court held: SS on state restrictions on LPR only where a non-citizens eco interests were affected – here the restriction served a pol function and far less stringent std of review was appropriate.

1. 2 step process:

a. Specificity of the classification would be considered;

i. Substantial under – or over-inclusiveness would tend to negate the claim that the classification is intended to serve a pol function

b. Even if “sufficiently tailored” the classification as applied must affect only person who “perform functions that go to the heart of the rep gov’t”

i. Court would look at the extent of discretionary decision-making or policy implementation that affects members of the pol community.

2. Over-inclusiveness is not fatal – “the classification used need not be precise; there need only be a substantial fit” to support state’s claim that an important gov’t function is involved

3. Nearly all peace officers shared law enforcement function – power to arrest, must undergo training for arrests, and use firearms therefore could be ltd

5. Rights of Non-Citizens to Vote

a. Const reserves right to vote for citizens only – no state allows non-citizens

b. War of 1812 produced militant nat’lism and suspicion of foreigners heralded end of period of liberal attitudes towards non-citizens

i. Maybe due to arrival of non-english immi

ii. 1848 admission of WI revived alien suffrage

c. Throughout 19th and part of 20thc. non-citizens were able to vote in many states

i. Civil War helped fuel alien suffrage b/c needed able bodied men

d. Disenfranchisement due primarily to increased hostility to and distrust of foreigners

i. Anti-alien sentiment fueld by assassination of Pres McKinley, lg influx of immi not anglo-saxon, and WWI

e. Sugarman: USSC stated citizenship is a permissible criterion for determining who may vote – but did not explain basis for req’ing voters to be citizens.

f. Arguments CON – quintessential right of citizenship, unable to vote intelligently b/c of unfamiliarity w/US, lack loyalty due to strong ties w/native country

i. PRO – resident aliens commit selves to country when go through hurdles to get visa, ties before came to US, not so diff from citizens, still distinguishable from citizens even w/right to vote [Rosenberg article 1279]

C. Defining Citizenship (Chapter 1)

1. Citizenship and the Constitution

a. Const. as initially drafted incl no def of citizenship – had some significance b/c of req’t for pres. but no real def

b. Dred Scott: was court’s attempt to solve prob of def of US citizenship – holding free blks born in US were not citizens of US

i. After Civil War congress removed stain of Dred Scott

ii. 1866 Civil Rights Act: all person born in Us and not subj to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the US.

iii. Def of citizenship in 14th amend

2. Jus Soli: citizenship by the place of one’s birth

a. Citizenship at birth in US is conferred automatically – person’s volition plays no part

i. Automatic acquisition of citizenship assures that each person will have nat’lity in US

b. US has adopted a combo of the 2 principles

i. Principle of jus soli codified in 14th amendment

ii. ACT of 1790: children born abroad to US citizens who had resided in US were considered to be natural-born citizens

1. Principle of jus sanguinis

c. Elk v. Wilkins: P born member of NA tribe but severed relations. Court held: 14th amend failed to confer citizenship upon P b/c he was born subj to Jx of his tribe – can only be a citizen through naturalization.

i. 14th amend – “subj to the Jx thereof” provide for exception to general rule of jus soli

1. i.e. children born in US to parents of diplomatic svc of French gov’t are subj to French gov’t

ii. Allotment Act 1887: congress passed legislation to overcome harsh effects of holding. Act conferred citizenship on many Indians who resided in US, and later statutes expanded the scope of the grant.

d. US v. Wong Kim Ark: D was born in SF but parents chi. Court held: principle of jus soli was accepted as part and parcel of the CL inherited by England – 14th amend and CR Act affirmed jus soli principle.

i. Children born in this country were citizens w/o regard to the nat’lity of their parents

ii. EXCEPTIONS:

1. Children born on foreign public ships while vessels sit in territorial waters of US are not subj to US Jx – don’t receive citizenship

a. Children born to non-citizen enemies in hostile occupation of US territory not subj to Jx

2. Persons born in private vessel w/in territorial sovereignty of US do acquire US citizenship

3. Jus Sanguinis: citizenship by descent, or literally, blood relationship

a. Current jus sanguinis rules set forth in INA § 301(c), (d), (e), (g), (h); § 308(2), (4); and § 309

i. INA § 301(c): Children born outside US to parents either 1 or both whom are US citizens – if both parents US citizens child gets citizenship if at least 1 parent resided in US prior

1. (g): If 1 parent non-citizen, then citizen parent must have physically present in US for 5yrs before birth and >2yrs after age of 14

b. Restrictions are to avoid perpetuation of US citizenship jure sanguinis w/in families that realistically have lost touch w/Amer roots

c. Gender Discrimination:

i. Until 1934 statutory law allowed transmission of citizen jure sanguinis by US citizen fathers but not mothers

ii. Wauchope v. US Dep’t: gender discrimination violated modern EP principles in 5th amend’s DP clause and ruled holding should be applied retroactively.

1. INA § 301(h): allows children of disadvantaged US citizen mothers to take advantage of retroactive change. Future children can get citizenship as long as mother meets residency req’ts.

iii. Jus sanuinis also discriminates against men b/c can only confer citizenship when child is out of wedlock when a # of conditions met – whereas mother’s no evidence needed

1. Blood relationship msut be established w/clear and convincing evidence

2. Had US nat’lity at time of birth

3. Agreed in writing to support child

4. While child 55yrs and LPR for ≥15yrs, (c) also b/c of physical or developmental disability or mental impairment

v. Knowledge of Civics and History

1. INA § 312(a)(2): Applicants must demo a knowledge and understanding of fund of history and of principles and form of gov’t of US

a. INA § 312(b): waived for persons w/physical or developmental disabilities

i. AG gives spec consideration to persons >65yrs

2. Oral test conducted by DHS examiner during naturalization interview

a. Q’s on Amer. Gov’t, Amer history, integrated civics (geo, symbols, holidays), names of rep’s in congress, freedoms protected by 1st amend, conceptual Q’s

vi. Good Moral Character

1. INA 316(a): Must establish GMC for 5yrs preceding date of application.

2. INA doesn’t directly define GMC rather provides a list of acts that establish lack of GMC

a. INA § 101(f): Incl ref to INA § 212(a)(2) and crimes of moral turpitude and controlled substance offenses

i. (f)(3): applies only to crimes committed during relevant period

ii. (f)(8): applies to persons convicted at any of time of offenses identified = permanent disqualification

1. Include aggravated felonies in § 101(a)(43)

b. INA § 316(e): in determining whether the person applying for naturalization is of GMC the [CIS] shall not be ltd to the applicant’s conduct during 5yrs preceding the filing of app, but may take into consideration applicant’s conduct and acts at any time prior to that period.

vii. Attachment to Const. Principles

1. INA § 316(a): Must establish they are attached to principles of Const. and well disposed to good order and happiness of US

2. Purpose behind req’t is the admission to citizenship to only those persons who are in general accord w/basic principles of community.

3. Attachment to Const: belief in respective demo, a commitment to ideals embodied in BOR, and willingness to accept basic social premise that change only be effected in an orderly manner.

4. Good order and happiness of US: belief in pol processes of US, a general satisfaction w/life in US, and hope for future progress and prosperity

5. INA § 313: specifically and automatically precludes naturalization of certain persons

a. (a)(4): individuals belonging to Communist Party or other totalitarian groups, and person who advocate overthrow of gov’t by force or violence or other const. means

b. (d): not precluded if can show membership involuntary

i. also if can show membership terminated before turned 16yrs, operation of law, or for purposes of obtaining employment, food, or other essentials

c. (c): escape preclusion statute if >10yrs passed since member of subversive group

viii. Oath of Allegiance

1. INA § 337: req’s applicants to pledge: (1) support and bear true faith and allegiance to Const. and of US, (2) renounce allegiance to foreign state or sovereign, (3) support and defend const and laws of US against all enemies, foreign or domestic, (4) bear arms on behalf of US when req’d by law, or perform noncombatant svc in armed forces, or perform civilian work of nat’l importance when req’d by law

c. Schneiderman v. US: P citizenship revoked b/c was admitted member of communist party of US. Court held: facts of law should be construed as far as is reasonably possible in favor of citizen. Especially when attack made long after the time when cert of citizenship was granted and citizen has met his obligation and has committed no act of lawlessness.

i. R: test to set aside such a grant is evidence must be “clear, unequivocal, and unconvincing – it can’t be done upon bare preponderance of evidence which leaves the issue in doubt.”

ii. Rights once conferred should not be lightly revoked.

iii. Const. refutes idea that attachment to any particular provision essential or one who advocates radical changes is necessarily not attached

iv. Uphold right of free discussion and free thinking

5. Loss of Citizenship

a. Denaturalization: revocation of citizenship of naturalized alien based on fraud or illegality in the original naturalization. [INA § 340]

i. Naturalization is illegal procured when applicant did not in fact meet statutory req’ts at time of naturalization

1. INA § 101(f)(6), (7), (8): Also found where applicant did not meet GMC b/c lied under oath in course of proceeding or b/c of conviction of disqualifying crime

ii. US v. Puerta: D was a LPR who later discovered committed a crime using another name prior filing for naturalization – lied during interview. Court held: D’s failure to disclose other names used and incident while out of country did not amount to material b/c crime committed after and was allowed to leave US for short time.

1. Material fact is when false statements are coupled w/evidence giving rise to fair inference of ineligibility – if proven D can be denaturalized

b. Expatriation: deprivation of citizenship whether applied to native born or naturalized citizen for specified behavior not related to defects in the acquisition process.

i. Perez v. Brownell: P was US citizen but participated in Mex election. Court held: that provision prescribing loss of nat’lity for voting in foreign pol election is const. valid.

1. Rat’l nexus existed b/t congressional power to regulate foreign affairs and w/drawl of citizenship for voting in foreign election

2. Power of congress to terminate was based on voluntary performance of expatriating act

ii. Afroyim v. Rusk: P was naturalized citizen who went to Israel and while there voted in election. Court held: congress has no general power, express or implied, to expatriate w/o citizen’s assent.

1. 14th amend can most reasonably be read as def citizenship which citizen keeps unless he voluntarily relinquishes it

a. Once acq’d citizenship was not be shifted, canceled or diluted at the will of fed gov’t, states, or any other gov’t

2. Overruled Perez

iii. Vance v. Terrazas: P had dual citizenship but Mex nat’lity included renunciation. Court held: in proving expatriation, an expatriating act and an intent to relinquish citizenship must be proved by a preponderance of evidence. Also when one of the statutory expatriating acts is proved, it is const. to presume it to have been voluntary act unless proven otherwise by actor.

1. Courts will inquire if person taking oath actually intended to abandon US citizenship

2. Informal renunciations of citizenship are ineffective, however, as are other methods not meeting the State Dept regulations.

6. Dual Nationality: person who is considered as having citizenship in 2 nations at the same time.

a. Plural citizenship may arise in 4 situations

i. Birth in US to immi parents: Child has dual citizenship if country of immi parents has jus sanguinis rules that recognize child as a citizen of their country

ii. Birth outside US to 1 parent who is US and other not: If US citizen has maintained ties to US necessary for transmission of citizenship jure sanguinis, child is a citizen of both foreign nation and US.

iii. Naturalization w/renunciation req’t but renunciation not recognized by country of origin: parent naturalized in US but country of origin doesn’t deem naturalization elsewhere expatriating the citizen.

iv. Naturalization, loss of citizenship, and resumption of citizenship: parent naturalizes in US and country of origin deems person to have lost citizenship but provides for resumption of citizenship.

b. Dual citizenship may appear to be problematic b/c regime of nation-states arguably function more smoothly when person are assigned citizenship in just 1 state

i. But little evidence that it is harmful in US

c. Unprecedented tolerance of dual nat’lity strongly suggests the demise of exclusivity and a redef of citizenship itself, as a vehicle to facilitate civic participation and layered community Id’s rather than an indication of jealous fealties.

II. The Statutory and Administrative Regulation of Immigration

D. Federal Agencies and Courts (Chapter 3)

1. The Department of Homeland Security (DHS)

a. HSA created this new cabinet dept and consolidated a host of agencies who functions relate to homeland security – most immi control functions moved to this dept

b. Separates enforcement from svcs

i. Svcs = approval or denial of applications of migrants trying to enter US, or modify legal status, or by their sponsors, as well as petitions for naturalization

ii. Enforcement = patrolling border, investigating violations, arresting violators, providing for detention and removal

c. 3 bureaus of DHS: CBP, ICE, and USCIS

i. CBP: responsible for border enforcement and intended to operate as a unified border agency screening both ppl and cargo

1. Inherited full INS inspector corp – officers who review passports/visas at booths in Int’l airports and other ports of entry, as well as customs and ag inspectors

2. Border patrol focuses on areas b/t land border and ports of entry in order to prevent unauthorized entries or apprehended violators.

ii. ICE: interior enforcement of both customs and immi laws

1. Responsible for locating/arresting/charging person illegally in the country, representing gov’t in removal proceedings in immi ct, conducting efforst agasint fraud/smuggling, enforcing laws against unauthorized employment of citizens, and carrying out former customs svcs tasks in battling for ex. $ laundering and child porn.

iii. USCIS: adjudicating applications for various benefits.

1. Officer who passes on the petition/request msut decide whether the application is complete and bona fide, whether it meets req’ts set forth in statute and regulations, and whether application further merits a favorable exercise of discretion that INA vests.

2. The Department of State and Other Agencies

a. Bureau of Consular Affairs: state dept officials, called consular officers, are stationed at over 200 offices throughout world to decide on applications for visas

i. Headed by Asst Sec of State

ii. DHS was given authority over visa policy, incl issuance of regulations governing visas, and given authority to monitor the issuance of visas in foreign posts and may even veto issuance of individual visa

iii. HSA § 428: DHS may not direct a granting of a visa when consular officer has refused it.

b. Other Units

i. Bureau of Population, Refugees and Migration (PRM): plays key role for Dept of State in connection w/overseas refugee prog’s

1. Deals w/assistance to refuges in camps in 1st asylum countries and admissions to US through organized refugee resettlement prog

2. Principal point of contact w/Office of UN high Commissioner for Refugees

ii. Bureau of Education and Cultural Affairs (ECA): manages a host of prog’s meant to enhance mutual understanding b/t Amer and citizens of other countries.

1. Most important functions involve exchange arrangements

c. Regulations and Other Guidance

i. State Dept publishes a Foreign Affairs Manual (FAM) certain ch’s devoted to interpretations and instructions relating to immi and nat’lity q’s.

d. Other Fed Agencies

i. Dep’t of Labor: works w/USCIS in the process that leads to granting visas to person who are subj to labor cert req’t.

1. Must certify that Amer workers in applicant’s field are unavailable in the locality of the applicant’s destination and that the applicant’s employment will not adversely affect wages and working conditions of Amer workers.

ii. Public Health Svc: b/c several grounds of inadmissibility related to med conditions, PHS physicians and other authorized med officials play a role under INA both at ports of entry and overseas.

1. Conduct med exams

iii. Office of Refugee Resettlement: assistance to refugees who are resettled w/in the US

iv. SS Admn: sends “no match” letters to employers when combo of particular name and SS# doesn’t match w/info contained in agency records – alert employer that employee undoc

3. The Department of Justice

a. INA § 101(b)(4): immigration judge is an atty that the AG appoints as an administrative judge.

i. By statute immigration judges have to be atty’s – is not controlled by the constitution so is ok to require this.

b. INA § 240(a)(1): immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien

c. BIA docket has been increasing significantly since 1984 – what this lead to is a significant amount of streamlining proceedings

i. Make the cases go faster to get an adjudication

d. 1999 and again in 2002 efforts to streamline

i. 1999 allow for a single BIA member to affirm w/o opinion if:

1. The results reached were correct

2. Any errors were harmless

3. Or decision was squarely controlled by BIA precedent

ii. 2002 needed more streamlining – wasn’t enough

1. Now 1 judge rather than panel is the norm – is no longer an exception

2. Only use 3 members under certain circumstances

a. Settle inconsistencies among IJ’s

b. Establish precedent

c. Review legally erroneous decision

d. Review erroneous factual determination

e. Resolve case of nat’l import

f. Reverse a decision

e. Effect of streamlining is a significant drop in the # of reversals

i. INA § 242: there is a small window for appeal –

1. (b)(C): decision is conclusive unless manifestly contrary to law

2. Allows appeal of BIA to Court of Appeals

a. But establishes highly deferential std/review

b. But eliminates review in broad categories

i. Final removal on crime-related grounds

ii. Certain discretionary decisions

3. Upheld in INS v. St. Cyr (USSC 2001)

a. Reads § 242 to not eliminate Habeas Review (28 U.S.C. §2241)

b. Is custody in violation of const. or federal law?

4. But Real ID Act (2005) responds to St. Cyr

a. Eliminates habeas review

b. Provides for another form of review

4. The Courts

a. Before 1961 no immi statute expressly permitted judicial review of exclusion/deportation orders

i. Courts found Jx b/c exclusion/deportation req gov’t to take non-citizen into physical custody

ii. Custody allowed for review – allowed for habeas corpus

b. Admn Procedure Act: established general presumption that admn action was reviewable in dist. ct if no other statue either precludes review or channels it into some specially designated path

i. INA § 242: primary section structuring judicial review – non-citizen may appeal order to fed ct of appeals via petition of review

1. (b): sets out procedural req’ts w/regard to deadlines for filing, venue, and svc

2. Limits role of courts in several ways

a. Eliminated judicial review in broad categories of cases

b. Barred review of major categories of discretionary decisions – concerning certain waivers, relief from removal, and discretionary adjustment to PR status

3. Strengthened deferential review stds

5. Homeland Security Act

a. HSA § 441:

b. HSA § 451:

c. HSA § 471:

E. Admissions Categories (Chapter 4)

1. History of Immigration to the United States

a. See pgs 164-192

2. Theories of Migration

a. Not everyone wants to live in the US – group who end up in US are self-selected

i. b/c of self-selection typical immi will be diff from typical person who chooses to remain in the source country

b. As long as persons migrate to countries that provide better eco opportunities, the skilled workers in these countries have little incentive to leave. It is the least skilled who want to emigrate, and the immi flow will be composed of workers w/below-avg skills

c. Skills tend to flow to those markets that offer highest value

i. US is likely to attract highly skilled workers from countries (those where the returns to skills are low) and unskilled workers form other (those where the returns to skills are high)

d. Motivating factors to immi incl – desperate poverty, squalor and unemployment of many foreign lands

e. Migration in general and the flow coming to US in particular don’t originate mostly in the poorest countries or most destitute

i. Poorest lack the necessary contacts and info to make such a move

ii. Lack eco means to implement it

f. Deliberate recruitment through eco inducements has also been a common practice through the 20th c. w/the goal of provoking labor displacements form nearby peripheries for ex. from relatively less developed countries of the Caribbean /Mediterranean basin

g. Self-initiated or spontaneous labor flows are more recent phenomena

i. Arise out of change taking place in peripheral societies consumption patterns that reflect more and more those being diffused form advanced ctrs.

h. In Mex study major predicator of probability of labor migration was prior migrant experience by individual and his/her kin

i. Helps explain self-sustaining character of the flow as well as its selectivity of destinations

ii. Ties b/t specific sites of origin and destination aren’t exclusively eco, but also social as they depend on continuing existence of supportive networks

i. Migration performs a dual function: for capital it is a source of more abundant and less expensive labor; for migrants it is a means of survival and vehicle for social integration and eco mobility

3. Categories Overview: 4 categories

a. Family-sponsored (FS) immi’s:

i. INA § 203(a): To obtain PR based on family relationship non-citizens must qualify either under 1:4 preference categories assigned to family reunification. (FS) categories subj to annual numeric ceilings [INA § 201(c)]

1. 1st pref provides 23,400 admissions annually for unmarried sons/daughter of US citizens

2. 2nd pref allows for max of 114,200 admissions annually of spouses and unmarried sons/daughters of LPRs

a. Subgroup (A): those for whom lengthy separation is especially harsh

b. Subgroup (B): offspring who already reached age of 21 may not claim ≤23% of admissions under pref

3. 3rd pref provides 23, 400 admissions for married sons/daughters of US citizens

4. 4th pref provides 65,000 admissions for brothers/sisters of US citizens

a. child def well help determine if requisite sibling relationship satisfied

5. INA § 203(d): provides that spouse/child may be admitted in the same pref category and in the same order of consideration as principal alien

a. Derivative beneficiaries

b. “follow along” provision

c. only applicable where qualifying relationship existed at the time of principal’s admission

ii. INA § 201(b)(2)(A): Immediate relatives of US citizens

1. I/R: incl spouses and children if petitioning citizen is >21, parents as well.

2. INA § 101(b)(1): defines “child” – child must be 21yrs or married, provided relationship established while offspring satisfied statutory def of child

b. Employment based immi’s

i. INA § 203(b): 1990 Act increased #s available based on employment and divided these admissions among 5 more detailed employment-based pref’s

1. 1st pref provides 40,000 admissions for “priority workers” divided further into 3 categories

a. (1) Aliens w/extrodinary ability – req’s sustained nat’l or int’l acclaim

b. (2) Outstanding prof’s and researchers

c. (3) Certain multinat’l exec’s and mgrs [INA § 101(a)(44)]

i. INA § 204(a)(1)(F): employer must initiate petition

2. 2nd pref provides 40,000 admissions for professionals holding advanced degrees or their equivalent or who b/c of their exception ability in sciences, arts, or business will substantially benefit prospectively the na’tl eco, cultural or edu interests, or welfare of US

a. Svcs must be sought by employer unless waived by AG in the nat’l interest

b. INA §§ 204(b), 212(a)(5)(A): labor cert is req’d

c. INA § 204(a)(1)(F): employer must initiate petition

3. 3rd pref provides 40,000 admissions for professionals having only BA and for skilled or unskilled works that would fill positions for which there is a shortage of Amer workers.

a. INA §§ 204(b), 212(a)(5)(A): labor cert is req’d

b. INA § 204(a)(1)(F): employer must initiate petition

4. 4th pref provides 10,000 admissions for special immi’s as def by INA § 101(a)(27)(C) through (M)

a. Religious workers, former longtime employee of US gov’t or int’l org, etc.

5. 5th pref provides 10,000 for investors who investments will create amin of 10 jobs in US economy

a. Baseline investment is $1,000,000 but lowered if investment is in rural area or high unemployment area, and is increased if business is established in are of low unemployment

b. Initially will only get cond’l PR but will be reviewed after 2yrs [INA § 216A]

c. Children under 21yrs are treated more favorably

i. But when do they age out? Depends on category

1. I/R petition = child’s age at time when parent files visa

2. If petition began as 2nd pref but converts to I/R b/c parent naturalizes then its child’s age at time of naturalization [INA § 201(f)]

3. FS-2A = child’s age determined as of date when relevant category becomes current

a. INA § 203(h): age reduced by period time consumed while visa petition was pending if parent files w/in 1yr when category becomes current

d. Diversity immi’s: meant to reflect a treasured nat’l self-image – an image of pluralistic Amer open to all comers w/pluck and good fortune to make a go of it in new land

i. INA § 203(c): Establishes a lottery to choose ea. yr form among ppl who meet threshold req’ts

1. (2): must be (1) have high sch edu or equivalent, or (2) w/5yrs preceding application, have had at ≥2yrs of experience in occupation that req’s ≥2yrs of training or experience

e. Refugees: both overseas settlement prog’s and person who obtain status through filing of an asylum application on US soil

4. Constitutional Standards for Admissions Categories

a. Fiallo v. Bell: P was illegitimate child seeking pref by virtue of his relationship to natural father – was ok under natural mother. Court held: despite clear detrimental rights of citizens and LPRs court reiterated its ltd role to play in such policy decisions and applied extremely lax min rat’lity std of review to uphold restriction

i. Court declined again to expand the scope of judicial review

b. Immi Reform and Control Act 1986: INA §101(b)(1)(D): allows pref under natural father if he had a bona fide parent-child relationship w/child

5. Family Reunification & Marriage

a. What Marriages Recognized by INA

i. General rule is that the validity of marriage ordinarily is judged by the law of the place where it is celebrated

1. This rule applies for marriages in foreign countries or in state/territory of US

2. EXCEPTIONS: not valid if: “sham marriage” – entered solely for purpose of obtaining immi benefits, “proxy marriage” – k’ing parties not physically present in presence of each other unless marriage consummated [INA § 101(a)(35)]

3. May not be recognized if in conflict w/public policy – meant that marriage must be lawful in US

ii. Adams v. Howerton: same-sex marriage. Court held: congress did not intend for homosexual marriages to confer spousal status under INA § 201(b) therefore I/R classification denied.

iii. Dabaghian v. Civiletti: P tried to adjust status based on US citizen wife but were separated when granted. Court held: rejected “factually dead” test and held that if marriage is not a sham or fraudulent from its inception it is valid for adjustment of statue purposes until legally dissolved

1. Subsequent separation of spouses alone, therefore, shouldn’t be the sole basis for denying spousal petition

b. Immigration Marriage Fraud Amendments (IMFA) of 1986: attempted to deter immi-related marriage fraud

i. INA § 216: Impose 2yr cond’l residency req’t on non-citizen spouses and their sons/daughters before they may obtain PR status based on qualifying marriage to US citizen or LPR if marriage 180 days but 1yr for single period = 10yr bar once departs/removed

2. EXCEPTIONS to tolling provisions and waivers [(B)(iii)-(v)]

3. (B)(ii): defines “unlawful presence” – persons who either EWI or stayed beyond the expiration date of non-immi admission

a. Non-immi – other than an overstayer – starts the 180day clock only after rec’ing a gov’t notification that condictions have been violated.

4. Section doesn’t apply to non-citizens in US if they have not departed the US after accumulating 180days or 1yr of unlawful presence.

ii. INA § 212(a)(9)(C): non-citizen is inadmissible who has been unlawfully present for aggregate period of >1yr or has been ordered removed, and thereafter enters or attempts to enter w/o being admitted – that is attempts to sneak across the border, or actually succeeds in doing so.

1. This par is permanent but is in essence available after 10yrs

3. National Security & Foreign Policy

a. Background

i. Alien Act: gave Pres power “at any time during the continuance of the act, to oral all such aliens as he shall judge dangerous to the peace and safety of the Us, or shall have reasonable grounds to suspect are concerned in any treasonable or secret machinations against the gov’t thereof, to depart out of the territory of the US, w/in such time as shall be expressed in such order”

ii. Alien Enemies Act: permits internment and removal of nat’l of state w/which the Us is at war, after a congressional decl of war or in certain other circumstances involving threatened hostilities, upon the public proclamation of the Pres

iii. 1917 deportation grounds were extended to incl post-entry subversive conduct of aliens – any alien who at any time after entry shall be found advocating or teaching subversion could be deported

1. As WWI progressed, deportation ground expanded further, to cover aliens who were “members of or affiliated w/any org that entertains a belief in violent overthrow of gov’t or anarchism”

iv. Cold War = substantial expansion for deportation grounds based on activities deemed subversive, incl mere membership of Communist Party

1. Harisiades v. Shaughnessy/Galvan v. Press: court approved deportation of former members of CP who had each been LPR for >30yrs under statutes enacted after they had ceased membership

b. Exclusion of persons not yet in US based on links to communist or other org’s or activities viewed as subversive

i. Kleindienst v. Mandel: Belgian communist author invited to speak at Univ. Court held: un-admitted non-resident alien has no right to free speech in the US. Plenary power of congress to control admission overrides citizens right to receive info under 1st amend.

1. Non-citizens can excluded for views held or opinions expressed b/c non-citizens have no const. right of entry to Us

2. US citizens have no right to have non-citizens enter the country so that ideas may be exchanged

ii. Reagan admn used nat’l security provision of INA 212(a) against politically prominent non-citizens or sometimes against groups planning to take part in protests

iii. INA 1990 congress repealed provisions mandating exclusion/deportation of anarchists, members of CP and other totalitarian groups – replaced w/grounds based on terrorism and foreign policy findings

1. INA § 212(a)(3)(D): membership in a CP or other totalitarian party is grounds for inadmissibility but only as applied to persons coming as immi

iv. Amer Acad of Religion v. Chertoff: while exec may exclude an alien for almost any reason it can’t do so solely b/c the Exec disagrees w/the content of the alien’s speech and therefore wants to prevent the alien from sharing this speech w/a willing Amer audience – gov’t must provide an explanation.

c. Foreign Policy Grounds of Inadmissibility

i. INA §212(a)(3)(C): aliens will be excluded not merely b/c of the potential signal that might be sent b/c fo their admission, but when there would be a clear negative foreign policy impact assoc w/their admission.

1. Alien could be excluded if Sec of State has reasonable ground to believe an alien’s entry or proposed activities w/in US would have potentially serious adverse foreign policy consequences

2. EXCEPTIONS:

a. Alien who is an office of a foreign gov’t or purported gov’t, or who is a candidate for election to a foreign gov’t office would not be excludable under provision solely b/c of any past, current, or expected beliefs, statements or assoc which would be lawful in US

b. All other aliens – prevents exclusion on basis of an alien’s past, current, or expected beliefs, statements or assoc which would be lawful w/in US unless Sec of State personally determines that the alien’s admission to Us would compromise compelling US foreign policy interest

i. “Compelling foreign policy interest” std = significantly high std than general “potential serious adverse foreign policy consequences”

ii. Matter of Ruiz-Massieu: D was AG in Mex and flees to US when implicated in corruption investigation. Court held: admitting D would cause adverse foreign consequences b/c US had been pressuring Mex to deal w/corruption therefore would hinder US’s abilities to work w/Mex on this.

1. For this ground of inadmissibility the sec of state’s discretion is basically conclusive of the matter

a. BIA or IJ is not going to attempt to overturn

2. As long as it’s a facially reasonable determination that alien’s presence would cause serious adverse foreign policy consequences will be sufficient

a. BIA should not 2nd guess sec of state’s determination

4. Terrorism Grounds of Inadmissibility

a. Background and Evolution

i. INA § 212: barred person who were engaged in terrorist activity

ii. Terrorism difficult to define:

1. Identify forms of violent action that sufficiently extreme

2. Distinguishing terroristic act performed by gov’t from other acts of gov’tal force

3. Justifiable acts performed by nat’l liberation movements vindicating rt of ppl to self-determination

4. Can define by ref to 4 things:

a. Forms of violent action are sufficiently extreme

b. Types of method or types of victims

c. Association w/certain org’s

d. Material support to certain person/org’s

iii. INA 1990 defines terrorist activity in terms of violent acts or planned, w/o ref to their motivation

1. Designated groups that marked as terrorist

iv. AEDPA: INA § 219: establishes procedure for formal designation of terrorist org’s by Sec of State, incl compilation of an admn record and carefully prescribed form of judicial rev.

1. Sec of State must find that:

a. Org is a foreign org

b. Org engages in terrorist activity

c. Org’s terrorist activity threatens nat’l security or security of US nat’ls

v. People’s Mojahedin Org v. DOS: established that courts can rev findings on criteria (1) and (2) underlying the designation, but held that the (3) is nonjusticiable pol Q

1. Nat’l Council of Resistance v. DOS: org must have notice that designation pending. Notice must include action sought, but need not disclose classified info to be presented in camera and ex parte to court under statue.

a. Targeted org must have opportunity to present at lest in written form, evidence to rebut

vi. INA § 212(a)(3)(B): barred persons who had engaged in terrorist activity and those the CO had reasonable ground to believe are likely to engage in such activity after entry

1. After 9/11 expanded inadmissibility to incl individuals who are reps of org that publicly endorse or espouse terrorist activities AND spouses and children of persons barred under this ground

2. “engaged in terrorist” activity pertains to ppl who have provided material support for terrorist activity or org’s

3. (B)(vi): second form (Tier II) of designation only for purpose of apply the immi provisions and does not trigger crim sanctions or asset forfeiture.

a. Tier III covers group of ≥2 individuals whether org or not, which engage in activities described in subclauses

vii. Consequences of INA § 219

1. Inadmissibility possibilities under 212(a)(3)

2. Significant crim penalties for citizens/non-citizens for material support under 219 & 18 USC 2339B

3. US assets frozen under 219

4. 219 is fairly broad grounds

viii. Matter of S–K–: respondent donated $ to group identified as terrorist. Court held: court rejects argument that there needs to be a link b/t provision of material support and intended use by recipient org.

1. Designated list was intended to have an expanded reach and cover virtually all forms of assistance even small monetary contributions

b. Refugees, Duress, and Waivers

i. 3 possible arguments against material support provision

1. “Good guy” defense: group fits technical def of terrorist org, b/c of violence, but it’s a “good” cause supported by US

a. Rejected in Matter of S-K-

i. Not IJ/BIA role to decide what material support means

ii. 212(a)(3) is broad and may include “good guys”

1. May include policy that Us is for and policy that they don’t approve of

iii. Potential for waiver exists

2. De minimus defense: something of value given, but wasn’t significant to violence group engages in

a. Issue remains disputed (Singh-Kaur v. Ascroft (Fisher, dis))

i. In Singh-Kaur the court rejects this defense but the dissent says that should take “material” into consideration

1. Says material must mean something and it could mean that there are levels that can be gauged

ii. This is not a USSC case so not a final authority

3. Duress: provided support, but was forced

a. Not a settled issue

b. But DHS & DOJ argue that INA does not allow duress

i. But as a practical matter we should allow for some duress

G. Admissions Procedures (Chapter 5)

1. DP Requirement:

a. Knauff v. Shaughnessy: D is war bride denied entry. Court held: whatever procedure authorized by Congress is, it is DP as far as an alien denied entry is concerned.

i. AG might deny an alien a hearing before a board of inquiry in spec. cases where he determined that the alien was excludable under the regs on the basis of info of a confidential nature, the disclosure of which would be prejudicial to public interest

ii. Admission of aliens is a privilege – such a privilege is granted upon such terms as US shall prescribe

1. When Congress prescribes is implementing through inherent Exec power

b. Yamataya v. Fisher: lands in Seattle then 4days later she’s deportable. Court held: non-citizens have a right to notice of charges and an opportunity to be heard.

i. Court looking at DP rights of non-citizens during removal proceedings

ii. Now codified in INA § 239.

c. Chew v. Colding: D leaves 4mos boat job. Court held: while admitted non-citizens are entitled to const. protections of DP and freedom from unreasonable search and seizure.

i. Court held for const./immi purposes, P had status of continuous resident physically present in the US despite leaving for a short trip

1. Alien in these circumstances is entitled to notice of nature of the charge and a hearing before an exec or admn tribunal.

a. Deserves a fair opportunity to be heard

d. Shaughnessy v. Mezei: D leaves to visit dying mother denied entry everywhere. Court held: persons arriving at the borders of the US are not entitled to DP rights afforded those w/in the country

i. Excluded non-citizens have no const. right to a hearing AND can be indefinitely detained if their country of origin refuses to accept them

e. Landon v. Plasencia: D helps sneak aliens across border. Court held: created an exception Mezei, b/c of an LPR’s connection w/US upon returning from a short trip abroad they are entitled to DP such as notice and right to counsel.

i. However, if the PR alien’s absence is extended, of course, he may lose his entitlement to assimilation of his status

2. Admissions Procedures:

a. Immigrant Admissions

i. Process of securing status as LPR is elaborate and time consuming than non-immigrant admissions

ii. Filing a Visa Petition:

1. Process begins w/filing visa petition usually by mail w/fee to Regional Service Ctr of USCIS

2. Petitioner = Family member or employer who files visa petition

a. Can w/draw petition at any time w/o beneficiary’s consent

3. Beneficiary = non-citizen overseas who wants to immigrate

a. Receives no vested rights based merely on approval of petition

b. If at time of revocation, beneficiary has not already traveled to US under immigrant visa, or been accorded adjustment of status, the revocation may block or void the beneficiary’s admission as an immigrant

iii. After Visa Approved:

1. National Visa Ctr (NVC) plays an important role in next steps of US Immi Process

a. Creating case file, providing instructions to petitioners and sponsors, rec’ing fees and many req’s docs, and obtaining from sponsors executed Affidavit of Support forms

2. Non-citizens are ordinarily expected to complete visa process at a US consulate in their home countries

a. In ltd circumstances may persuade a consulate elsewhere to process the case and issue the visa in US

i. “Orphan Visa” or “Homeless Visa”: If they can demo: returning to their homeland would be hardship due to factors such physical infirmity, advanced age, presence of war or widespread civil disturbance, or unavailability of US visa svcs there

3. After all docs rec’d application is scheduled for visa interview and rec’s visa appointment notification, visa application form, instructions regarding the req’d med exam by approved physician and instructions for fee pay’t

4. USCIS approval of visa petition doesn’t mean applicant has been found admissible – must be decided by consul or examiner considering adjustment app

a. INA § 101(a)(43): def of aggravated felony

i. Murder, rape, sexual abuse of a minor

ii. Illicit trafficiking in controlled substances

iii. $ laundering/transactional crimes > 10K

iv. Crimes of violence

v. Theft/burglary for which prison term >1yr

5. If officer finds no disqualifications upon inspection – new LPR issued I-551 “green card” and is valid for 10yrs

a. If LPR plans to leave this country temporarily may do so and upon return is counted as “spec immi” under INA § 101(a)(27)(A), 211(b)

b. If will be gone ................
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