Professional Documents
Culture Documents
Contents
(I) SOURCE OF FEDERAL IMMIGRATION POWER..................................7
(A) CASE LAW....................................................................................................................7
(1) PING V. U.S. (CHINESE EXCLUSION CASE)........................................................................7
(2) YICK WO ....................................................................................................................8
(3) FONG YUE TING—........................................................................................................8
(B) DELEGATED POWERS.................................................................................................8
(1) WAR POWER.................................................................................................................8
(2) SOVEREIGNTY...............................................................................................................8
(II) FEDERAL AGENCIES AND COURTS..................................................9
(A) FEDERAL AGENCIES.................................................................................................10
(1) DEPARTMENT OF JUSTICE..............................................................................................10
(2) DEPARTMENT OF STATE................................................................................................12
(B) OTHER FEDERAL AGENCIES....................................................................................12
(1) DEPARTMENT OF LABOR................................................................................................12
(2) UNITED STATES INFORMATION AGENCY.............................................................................12
(C) RESTRUCTURING.......................................................................................................12
(D) COURTS......................................................................................................................13
(III) ADMISSIONS; CATEGORIES; GROUNDS OF INADMISSIBILITY...14
(A) IMMIGRANTS..............................................................................................................14
(1) FAMILY-SPONSORED IMMIGRANTS/ PREFERENCES ....................................14
(2) EMPLOYMENT-BASED IMMIGRATION .................................................................................21
(B) NON-IMMIGRANTS.....................................................................................................26
(1) F VISA....................................................................................................................27
(2) H-2A VISA – TEMP. AGR. WORKER...............................................................................27
(3) H-2B VISA – TEMP NON-AGRIC. WORKER.......................................................................27
(4) H-1B VISA – SPECIALTY OCCUPATION CATEGORY..............................................................28
(5) O & P NONIMMIGRANTS VISAS......................................................................................29
(6) L NONIMMIGRANT VISAS L-1 VISAS.................................................................................29
(7) E NONIMMIGRANT VISAS E-2 VISAS.................................................................................30
(8) B1 NONIMMIGRANT VISAS B1 VISAS...............................................................................31
(IV) INADMISSIBILITY OF ALIENS ..........................................................33
(B) GROUNDS FOR INADMISSIBILITY ...........................................................................33
(1) HEALTH RELATED GROUNDS § 212(A)(1) P. 107 (SM A)...................................................33
(2) CRIMINAL CONVICTIONS § 212(A)(2) P. 109 (SM A)....................................................33
(3) FRAUD AND WILLFUL MISREPRESENTATION § 212(A)(6)(C) P. 122(SM A).............................33
(4) NATIONAL SECURITY § 212(A)(3)...................................................................................35
(5) TERRORISTS § 212(A)(3)(B)(I), (II), (III)..........................................................................35
(6) FOREIGN POLICY..........................................................................................................35
(C) STATUTE (§212)..........................................................................................................37
(D) JUDICIAL REVIEW OF VISA DENIALS......................................................................42
(E) 1996 AMENDMENTS...................................................................................................42
(F) MODERN ADMISSION PROCEDURES.......................................................................43
2
Remember: To study and understand immigration law, you must look at statutes
first, cases second, and policy third. Much of immigration policy is
decided administratively.
STATUTORY INTERPRETATION
REMEMBER:
Federal govt. has exclusive power to regulate immigration—due to Constitution’s grant to
fed’l govt. of power to establish uniform rule of Naturalization and Congress’ plenary power to
conduct foreign affairs. Article 1, Section 8.
Also S. Ct. held that federal govt.’s power to control immigration is inherent in a nation’s
sovereignty. See Chinese Exclusion Case and Fong Yue Ting.
Judicial inquiry into immigration legislation is limited. Court has repeatedly emphasized
Congress’ sole and absolute power concerning admission of aliens and limited judicial
responsibility to review Congress’ line-drawing. See Fiallo v. Bell.
Also, in exercising its broad power over immigration and naturalization, Congress
‘regularly makes rules that would be unacceptable if applied to citizens.’ There is a
narrow standard of review for immigration and naturalization decisions. Matthews v. Diaz
Alien admission, naturalization, and regulation of conduct are within the fed gov’ts exclusive
power. So, state laws are preempted by Congressional authority to regulate activities of
resident aliens. Graham v. Richardson.
Level of judicial scrutiny of federal classifications involving alienage is far more deferential than
that applied to states. Matthews v. Diaz.
Despite Congress’ plenary power over immigration and naturalization in Chinese Exclusion
Case, federal power over aliens is not so plenary that any agent of the National Govt. may
arbitrarily subject all resident aliens to different substantive rules from those applied to citizens.
Mow Sun Wong????
S. Ct. has consistently recognized that immigration laws have long distinguished b/w aliens
seeking admission…and those in US after an entry, irrespective of its legality. Fong est’d there
is Congressional power to deport foreigners. Also stands for the proposition that due
process applies in deportation proceedings. However, excludable aliens have NO DUE
PROCESS rights in the admissions process.
• In Mezei, S. Ct. noted that “aliens who have once passed through our gates, even
illegally, may be expelled only after proceedings conforming to traditional
standards of fairness encompassed in due process of law.”
• An excludable alien has no procedural due process rights regarding admission
or exclusion. S. Ct. stated in Knauff that “whatever the procedure authorized by
Congress is, it is Due Process as far as an alien denied entry is concerned.”
• Yet, In Landon v. Plasencia, S. Ct. said that a resident alien briefly leaving US is
entitled to DP on return. But in a footnote to the case, Court claimed that exactly
what DP procedures are due was not decided. Whether the excursion was brief,
and if alien intended to abandon US and his LPR status is determined on a factual
case by case basis.
IN SUM:
Fiallo, Mandel, largely immunize the political branches’ substantive immigration decisions (i.e.
what categories of aliens are allowed to enter and remain in the US) from judicial scrutiny. S.
Ct has repeatedly claimed that a court must uphold legislation if there is a “facially legitimate
and bona fide reason” for the statute’s enactment and that it should not look behind the INS’
discretion in immigration decisions for that reason. See Kleindest v. Mandel.
Knauff-Mezei doctrine largely immunizes the political branches’ procedural decisions in
exclusion cases.
6
Japanese Immigrant , Plasencia, and other cases suggest greater judicial scrutiny for
procedural due process claims.
Wong Wing places constitutional constraints on government imposed punishment.
• Wong Wing afforded 5th and 6th Amendment protections to aliens, but only with
respect to criminal sanctions, not immigration proceedings. Thus while legislation
incarcerating for violation of immigration laws can be imposed, such legislation must
provide for a judicial trial to establish guilt of accused.
7
Since the founding of US there has being national discussion over how many and what kind of
immigrants should be permitted to enter and reside. Nothing in Constitution gives Congress
authority over immigration policy. S. Ct. did not address the source of Congress’ power over
immigration until Chinese immigration was at the heart of the debate and Chinese Exclusion Act
became 1st federal immigration statute to be subjected to judicial scrutiny.
doctrinal holding was that U.S. can regulate the entrance of immigrants b/c
Plenary power of Congress severely limits aliens’ constitutional
rights when it comes to entering or remaining in this country, as
immigration is a constitutional oddity.
We can regulate whenever a national purpose, or public good, is at
issue with foreign aliens,
The power to regulate immigration is inherent in the concept of a
sovereign nation.
What then can the judiciary branch do? Court should have right to
review certain things for due procedural process.
Yet due to Congress’ plenary power further debate on the issue
must be taken up with the political department, which is solely
competent to act on matter as Court is not a censor of the morals of
gov’tal dep’ts, b/c Congress is given power to regulate commerce with
foreign nations, even if boldly extrapolated from Constitution.
Under Curtis-Wright reasoning, the Constitution is no longer
scrutinized to find immigration powers. Now, “ power to regulate the
flow of noncitizens over [U.S.] borders is inherent in the concept of
sovereignty.”
Does the President’s power come from Plenary power of legislative
branch? Enemy Alien Act gives President (Commander in Chief) power
to deal with enemy aliens, BUT care needs to be taken when applying this
rule, as war has to be declared on nation whose people are expelled.
Assumption: immigrants, mainly Chinese could not assimilate and
must be regulated.
8
(2) YICK WO
Held that immigrants within U.S. borders are protected by Constitution in
non-immigration matters.
Dealt with Chinese laundromat owners where “no reason for [the
discrimination] exists except hostility to the race and nationality to which the
petitioner belongs.” But Constitutional protections were applied as it was seen
as violation of the Equal Protection Clause, based on “proposition that
noncitizens are members of the constitutional community.”
Note that Chinese in Yick Wo were already in U.S. In Chinese Exclusion, plaintiff
was seeking admission.
Note that Court can find creative ways to avoid the plenary power of Congress
(2) SOVEREIGNTY
Argument is that every sovereign nation has the power to control their borders
9
Generally immigrants coming to US need a visa. But there’s a visa exception program
where some immigrants are excluded simply b/c of their country of origin. This includes
Japan, U.K. Belgium and France non-immigrants seeking 90 days admission b/c of
their low visa abuse rates.
Process of obtaining a visa:
1) Petition goes to DHS to verify family relationship via Form I-130--
Visa Issuance
is
Petition for Alien Relative or DOL for employment relationship via Form
responsibility I-140—Immigration Petition for Alien Worker, often with labor
of Bureau of certification. Person filling out form is a benefactor. Denied petitions
Consular can be appealed before BIA in the Department of Justice--DOJ.
Affairs
2) National Visa Center checks for accuracy and notifies consular
abroad, who arranges an interview of prospective immigrant and
nonimmigrant applicants. Interview does not take place until the priority
date is reached (priority date is when the processing of the
preference category has been reached which marks an immigrant’s
place on the waiting list). Preference category determines if applicant
is coming to U.S. as a student or as a tourist.
For those applying for an apr (green card), a photo, fingerprint, and
signature is required.
Green Card/ Permanent Resident Card is not issued abroad. B-1
and B-2(business/visitor) visa could be applied for and issued by
mail. Since 9/11 student delays are longer and DHS has refused to
waive the student interview process.
Most immigrants with a visa can take multiple trips to US. Yet a visa
does not guarantee admission-- INA 221(h). Immigration officials at
border or port of entry representing DHS are not bound to counsular’s
(officers of Department of State) granting of visas.
• Immigration Judges are part of this dep’t and are not Article 3 judges but
rather administrative law judges spending majority of time in removal issues
formerly known as deportation/exclusion and exercise discretion.
• Trial attorneys under the former INS usually become immigration judge. Wong Yang
Sung held that S. Ct should terminate the practice of immigration judges being
closely involved in enforcement functions which violated due process to a fair
hearing.
• Thus Congress created fully insulated, quasi-judicial adjudicating officers.
o These judges can issue oral or written decisions, most of which are in loose
leaf publications highlighting the judges’ opinions. Very few written opinions
are est’d as precedent and known as Index Opinions. Due to severe back
log streamlining regulations allow BIA members to dispose of appeals with
an affirmance or without an opinion (AWO),
o Before being placed in EOIR, immigration judges were answerable to no
one in INS. Today, a different line of accountability provides a (1) better
structural assurance of adjudication neutrality and (2) fosters a strong spirit of
professional independence among judges. EOIR also implemented a set of
uniform rules of practice replacing local customs.
• Executive Office for Immigration Review (EOIR), the umbrella organization
housing BIA (Board of Immigration Appeals), both of which are under the
Department of Justice-DOJ. BIA is entirely a creature of Attorney General and
not recognized by statute.
o BIA decides most cases in 3 member panels and has 15 members.
o Under 8 c.f.r. § 3.1(b), aliens found removable by immigration judges
have a right to appeal to BIA.
o Other types of appeals the board hears stems from decisions relating to
bonds and detention of certain removable aliens, and from decisions
11
Hearing Officer (OCAHO) who supervises the ALJ’s carrying out this
function.
(C) RESTRUCTURING
(D) COURTS
Before 1961, no immigration statute expressly permitted judicial review of exclusion and
deportation orders, or of other gov’t decisions in immigration cases. Courts took
jurisdiction b/c exclusion and deportation requires that gov’t eventually takes the
alien into physical custody. This allowed for judicial review in federal district courts
via a writ of habeas corpus.
Next milestone was adoption of Administrative Procedure Act. With subsequent
enactment of INA in 1952, declaratory and injunctive relief became available under
APA to test deportation and exclusion orders w/o physical custody requirement.
In 1961, Congress restructured judicial review. Former INA § 106 established the basic
scheme that prevailed until 1996. In 1996, INA § 242 replaced § 106. An alien may
appeal removal order to federal court of appeals and sets out procedural
requirements with regard to deadlines for filing, venue, and service. Most
significantly, however, the new §242 limits the role of the courts in several ways.
Judicial 1) §242 eliminates judicial review in broad categories of cases. E.g any
Review final removal order against an alien deportable under most of the crime-
§ 242 related deportation grounds shall not be subject to review by any court.
o Also specifically barred is judicial review of major categories of
discretionary decisions: concerning certain waivers, relief from
removal, and discretionary adjustment to permanent resident status.
2) Where judicial review is still available, §242 establishes deferential review
standards.
3) 1996 act generally strengthens the statutory preference for consolidating
judicial review by deferring it until gov’t action is reduced to a final
removal order against an individual alien.
4) Scope and standard for review allows review when a reasonable
adjudicator finds admin findings inconclusive, or admission denial is
manifestly contrary to the law or under abuse of AG’s discretionary
judgment. INA pg 303
14
Ch. 4 p. 265-452
American immigration system allows for the admission of two broad categories of aliens: immigrants and
nonimmigrants. Noncitizen in either group must show he qualifies for admission and that none of the multiple
grounds for inadmissibility in §212(a) renders him ineligible.
§201- Worldwide level of immigration; p. 54
§203- Allocation of immigrant visas (numerical limitations); p. 62
§204- Procedure for granting immigrant status; p. 75
§245- Adjustment of status of nonimmigrant to LPR; p. 319
Immigrants – seek to take up permanent residence noncitizen authorized to take up
permanent residence in the U.S. After admission are often referred to as LPR’s
(lawful permanent residents), until they obtain citizenship through naturalization.
They may stay as long as they wish provided they don’t commit crimes or other post-
entry acts that render them deportable. No obligation to apply for citizenship. LPR
can stay indefinitely.
most Ame immigration begins w/ visa petition filed by person already in U.S. usu a
family member/prospective employer (petitioner) whose relation to noncitizen
(beneficiary) will become basis for noncitizen’s proof he fits w/i a qualifying
category
Within the immigrant classification, there are four categories, each regulated with intricate
rules:
1) Family sponsored immigrants
2) Employment based immigrants
3) Diversity immigrants
4) Refugees
(A) IMMIGRANTS
S. Ct. considered these matters in the following case that presented a challenge to the definition
of “child” in INA § 101(b)(1)(d); p. 41 as it read before the amendment in 1986. At the time of the
decision, the statute recognized only the relationship between the illegitimate children and their
natural mothers, excluding such relationships with the natural fathers.
Judicial inquiry into immigration legislation is limited. Court has repeatedly emphasized
that Congress has the sole and absolute power concerning the admission of aliens and
that there is limited judicial responsibility to review Congress’ line-drawing. See Fiallo v.
Bell.
Same sex marriages recognized by a foreign country or state are not recognized
by the INS.
Adams v. Howerton (9th Cir.)
Courts have rejected such an argument by the INS on the grounds that
the INS has no expertise in the field of predicting the stability and
growth potential of marriages. According to the 9th Cir. in
Dabaghian, if a marriage is not a sham or fraudulent from its
inception, it is valid for purposes of determining the eligibility of
adjustment for status until the marriage is legally dissolved. Thus,
the 9th Cir. ruled in 1979 that the INS cannot rescind LPR status.
Dabaghian v. Civiletti (Ct. App. 9th Cir. 1979)
Dabaghian sought LPR status after marrying a U.S. citizen. It was granted
on the date where there was no evidence to show that he was separated
from his wife, but 16 days later, he filed for divorce, which was granted 7
months later. He remarried an Iranian citizen. Ins sought to revoke his
status on the ground that the marriage was factually dead at the time the
adjustment was granted.
Court rejected the INS’ legal position.
♦ Discussed Bark
♦ Court said that eligibility turns on whether he was the
spouse of an American citizen at the time of adjustment of status.
♦ “spouse” in the act includes all parties to all marriages that
are legally valid and not a sham. There is no exception for
marriages that the INS thinks are factually dead in the statute.
7 years after the Dabaghian case, Congress passed the IMFA that allows the INS
to rescind a status change that had occurred while a LPR on a conditional
status.
Moreover, courts will still scrutinize evidence of current separation in order to
determine whether the initial marriage was sham or fraudulent. The BIA
has also stressed that petition may not be granted on the basis of
marriages legally terminated as of the date that the immigration benefit is
to be conferred.
In order to deter and detect fraud marriages more effectively, Congress adopted the
Immigration Marriage Fraud Amendments of 1986 (IMFA)
Under the IMFA, INA § 216; p. 197, all persons who obtain lawful permanent resident
status based on a marriage that is less than 2 years old at the time receive such
INA status “on a conditional basis.” The conditional period lasts 2 years, unless INA acts
§216 before that time to terminate the alien’s resident status. However, the conditional
status counts fully toward the necessary residence period for naturalization. §216(e)
p. 202.
Within the last 90 days of the 2 year period, both spouses must take the initiative to
petition the DHS to have the conditional status removed, although under certain
circumstances the alien may secure a waiver to the requirement of a joint filing.
§216(c)(4) p. 199 (if waiver sought, alien bears burden of proof)
DHS has clear statutory authority to call both spouses for an interview at this point,
although in interview is usually waived, thus reserving the examiner’s time for those
cases where the papers raise a question meriting further inquiry. 8 C.F.R. § 216.4 p.
741, 216.5 p. 744.
20
You need a joint DHS removes the conditional basis at the end of the 2 years if it find that the marriage
petition to have the was valid and has not ended. Removal signifies that the alien has graduated to full
conditional status permanent resident status. INA §216(c) p. 198, (d)(1) p. 200. Note that the actual
removed by the
DHS if the spouse
time frame we are talking about is ~6 years. It takes 2 years to actually be
is not a victim of considered for conditional basis status. Then you wait another 2 years before you
domestic violence can petition to have the conditional status removed. Then, it takes another 2 years
for the removal status to be processed. During all of this period, the person who is
an LPR on a conditional status has “no status” status.
DHS, however, can If DHS finds that the underlying marriage was improper or has been judicially annulled or
terminate the
conditional status terminated §216(b)(1) p. 198, (you can be terminated for failure to file a timely
and deport removal petition §216(c)(2)) p. 199, the DHS can terminate the permanent
resident status and the person is deportable under INA §237 (a)(1)(D) p. 257.
If removal of conditional basis I denied at end of 2 yr period, noncitizen, becomes
deportable. If the person seeks reconsideration in the deportation proceedings, the
DHS has the burden of proof and must meet a preponderance of the evidence
standard on most such issues §216(b)(2) p. 109, (c)(2) p. 199, (c)(3) p. 199.
IMFA also used to tighten other provisions meant to prevent and punish marriage fraud:
(K category) nonimm fiancé(e)s §§214(d) p. 181, 245(d) p. 320; strengthened
restrictions on future imm of persons who have been involved in marriage fraud
§204(c) p. 81; estab crim sanctions for involvement in marriage fraud §275(c) p. 394;
made it more diff for person who immigrated on basis of 1st marriage to bring in 2nd
spouse following divorce from 1st (must wait 5 yrs since granting of L.P.R. status, or
prove by clear and convincing evid to A.G. prior marriage wasn’t entered into for
purpose of skirting immig laws §204(a)(2) p. 80; rendered it more diff for noncitz in
deportation proceedings to cure probs by 11th hr marriages entered into while
deportation proceedings were pending §§204(g) p. 84; 245(e) p. 320 marriage
cannot be basis for adjustment here unl noncit prove genuineness of marriage by
clear and convincing evid.
see also §§ 204(c) p. 81 , 245(e) p. 320.
§216(c)(4)(A)-(B) p. 200: waiver for “extreme hardship,” “good faith/not at fault-” judge
has discretion to grant or not grant. Cases where alien spouse wasn’t at fault for
marriage failing, but purpose of giving immigration benefit to alien spouse is to keep
family together- immig benefit lost was only made b/c of marriage to U.S. citizen or
resident- no reasb justification for special immig benefit to continue if marriage failed.
Sometimes children from prior marriage of noncitz spouse also get conditional P.R.
IMFA also includes a new waiver for domestic abuse- re: self-petitioning
1) For battered spouses who had already been granted conditional status
and §216(c)(4)(C) p. 200.
2) For a battered spouse who is eligible for family-based immigration based
on marriage to file a petition on her own behalf for LPR status. (extreme mental
cruelty as a reason for the waiver must be certified by an expert to prevent from
fraud.)
3) VAWA amends: §§204(a)(1)(A)(iii), (A)(iv), (A)(v), (B)(ii), (B)(iii), (B)(iv)
p. 75-76- to protect abused noncitz spouse; §204(a)(1)(C) gives examiner
discretion to find petitioner possesses good moral character despite certain
criminal convictions, if crim act was connected to alien’s abuse/extreme cruelty,
See also §§212(a)(6)(A)(ii) p. 122; 212(a)(9)(B)(iii)(IV) p. 127; 212(a)(9)(C)(ii) p.
128 , 237(a) p. 256.
(c) SIBLINGS
21
Siblings of adopted children do not qualify as brothers or sisters under the fourth
preferential status of family sponsored preference. Young v. Reno
Young v. Reno court skillfully used statutory construction under the doctrine that
the “expression of one thing is the exclusion of another” and demonstrated
once again that there is limited judicial responsibility to review Congress’
line-drawing.
Young v. Reno
Karen young was adopted as a child by a paternal aunt in Hong Kong and was permitted
to immigrate to the U.S. b/c of this parent-child relationship. In 1984, she sought
preferential status on her four biological siblings, pursuant to §203(a)(4) p. 63 of the
INA. Ins approved the petitions and forwarded them to the state dept. Consulate in
Hong Kong and when visas finally became available for 4th preference individuals
with 1984 priority dates, her siblings applied for immigration visas. The consulate
returned the petitions to the INS for visa relocation proceedings, explaining that the
petitions should not have been approved b/c the adoption severed the relationship
Karen had with her biological siblings.
Court held that the INS interpretation was reasonable under the chevron doctrine.
INA prevents a natural parent from receiving immigration privileges through
an adopted child. INS’s interpretation of the INA was that because
natural parent no longer has the status of parent under the act, the legal
relationship between adopted child and natural sibling also ceases. They
no longer have a common parent for immigration purposes.
Court first concluded that Congress had not spoken on the precise question
at issue - whether the natural relationship between natural siblings would
survive adoption.
Neither the plain language of the statute nor the failure by Congress
to exclude preferences for natural siblings after adoption
indicates that Congress clearly intended that the natural sibling
relationship should survive adoption for immigration purposes.
Legislative history further indicates that when Congress adopted
these provisions, it was not concerned with whether the legal
relationship between natural siblings would survive adoption.
Before the enactment of § 101(b)(1) p. 41, the definition of child
did not include adopted children. Thus, the focus was on the
unification of adoptive, not natural, families. No indication that
Congress’ intention extended to natural siblings of adopted
children.
Court then concluded that the INS’s interpretation was a permissible
construction of the statute.
primary concerns are adversely affecting wages and working conditions of U.S. workers;
law essentially presumes foreign workers aren’t needed- noncitz and her employer
must take initiative to get certification.
Formal employment based immigration system is structured with the domestic labor
market very much in mind. To protect the American worker, an Employer seeking
the services of immigrants who enter under the employment-based categories must
first: DOL certifies this
FIFTH PREFERENCE § 203(b)(5)Provides 10,000 numbers for investors whose investments will create a
immigrants minimum of 10 jobs in the US economy. The baseline minimum investment is
$1,000,000, but the required amount is lowered if the investment is in a rural area
or a high unemployment area, and it is increased if the business is established in
investor visa
an area with low unemployment. Concerned about possible fraud in this category,
Congress provided that fifth preference immigrants will initially receive only
conditional permanent residence status, under procedures that are designed to
result in a careful review of the investment after two years § 216A p. 203. §275(d)
p. 394 criminalization of imm related to entrepeneurship fraud. Must be a new
commercial enterprise
*alien can petition herself §204(a) p. 75
24
3) ER must show that it has offered prevailing wage as defined in 20 c.f.r. § 656.40
p. 835 and is capable of paying that wage
4) if certification is denied, employer may contest and file additional info- entitled to
admin review, before panel of Board of Alien Labor Cert Appeals of DOL
5) Reduction in Recruitment (RIR)- streamlined process. To qualify employer must
demonstrate app is for occupation for which little/no availability of potential employees,
no restrictive reqs, prevailing wage, conducted adequate recruitment for 6 mos. Frees
employer from mandatory 30 day recruitment.
6) National interest waivers §203(b)(2)(B) p. 65. allows AG to waive req that 2nd pref
imm’s services be sought by employer in U.S. when waiver is deemed ini natl int. Also
exempts imm from labor cert. 8 C.F.R. § 204.5(k)(4)(ii) p.616. Three prong test: (1)
employer must show imm working in area of substantial intrinsic merit (2) benefit will be
natl in scope (3) alien will serve natl interest in much greater degree than would available
U.S. worker w/ same min qualifications. For Drs. §203(b)(2)(B)(ii) p. 65.
Information Industries
Information industries was a nationwide computer consulting business headquartered in
co. Ii has applied for labor certification and listed the duties in highly technical terms.
The certifying officer (co) denied the labor certification on the ground that the
application had not met the requirement that the job description not be unduly
restrictive. E filed a rebuttal on the ground that the requirement of 2 degrees was not
unduly restrictive but were normal for such a job in the U.S.. E appealed to the
board of alien labor certification appeals (balca)
Held that to establish business necessity under § 656.21 (b)(2)(i), an e must
demonstrate the job requirements bear a reasonable relationship to the
occupation in the context of the E’s business and are essential to perform, in a
reasonable manner, the job duties as described by the e. (business necessity
2 prong test)
E cannot obtain labor certification by showing that the job requirements merely tend to
contribute to or enhance the efficiency and quality of the business.
Job requirements advertised conform to the dot of a systems engineer, but it is not clear
that the requirements are normal for this job of systems engineer or that that is the
correct title.
♦ Neither party attempted to analyze the job requirements in terms
of the job duties. The e has not explained which job duties require its
systems engineers to have a bs in engineering and the co has not
explained why this degree, or a ma in computer science, are not bona
fide requirements for this position regardless of which title best suits it.
Muni v. INS
• Canadian hockey player
• Held INS abused its discretion by denying P’s visa by improperly concluding he wasn’t
alien of extraordinary ability under §203(b)(1)(A)(i) b/c failed to consider supporting
evid and failed to explain why evid presented was insufficient to estab P’s
extraordinary ability.
• stand of review is abuse of discretion and INS abuses when decision is made w/o
rational explanation, inexplicably departs from estab policies, or rests upon
impermissible basis such as race descrim.
26
• INS ignored affidavits submitted estab P was a superior player and evid submitted.
(B) NON-IMMIGRANTS
Non-immigrants are aliens who seek entry to the U.S. for specific purposes to be accomplished
during a temporary stay. Qualifying categories §101(a)(15) p. 19.
• §214(b) p. 174: presumption noncitizen is attempting to immigrate. Noncitizen must prove
entitled to nonimmigrant status.
Nonimmigrant categories include:
(a) Tourists (granted 6 month entry period) b-2 visa
(b) Students f-1 visa
(c) Student spouses f-2 visas
(d) Business related categories b-1 visa
(e) Diplomats and employees of foreign governments or affiliated with international
organizations
There are no fixed numerical limits on nonimmigrant admissions, except in the h-1b and h-
2b categories. Control over nonimm admission regulated by applying reqs for each category and
inadmiss grounds in §212(a) p. 107.
• most noncitizens need visa (doesn’t guarantee admission), but citz of some countries can
come for up to 90 days w/o visa as business visitor or tourist. If lawfully admitted as nonimm
can try to change to different nonimm status under §248 p. 342.
Most important requirement for admissibility is that the alien has a residence in a
foreign country which he has no intent of abandoning. INA § 101(a)(15)(B),
(F),(J) p. 20-23. In deciding whether to issue nonimmigrant visas, consular
offices are wary of a country’s reputation for a high incidence of visa
abuse.
An alien is not a bona fide nonimmigrant if his or her intent from the beginning is
to remain in the U.S. permanently by any means possible, legal or
otherwise. However, under the dual intent doctrine, a desire to remain in
this country permanently, in accordance with law, should the opportunity
present itself, is not inconsistent with lawful nonimmigrant status. Matter
of Hosseinpour.
Matter of “Dual Intent”
(1) F VISA
• admitted as a nonimmigrant for the period of the program of study, referred
to as the duration of status
• requires that the student have a foreign residence that they have no intention
of abandoning
BUSINESS AND ENTREPRENEURIAL NONIMMIGRANTS
Admission under tourist and student nonimmigrant visa are fairly straightforward and
usually do not demand the attention of an atty. Business categories, however, are
more complex and typically necessitate legal counsel for their successful navigation.
Why you need nonimmigrant categories for business and not seek entry as an
immigrant b/c employer may need workers only temporarily and going through
labor certification would be timely, expensive, and backlog other visa categories.
Also, employer may need workers immediately, but it takes time to process labor
certification.
TYPES OF BUSINESS AND ENTREPRENEURIAL NONIMMIGRANT VISAS:
• H-2B nonimmigrants are admitted for up to a year at first with one year
extensions possible up to the a maximum of 3 years. 8 C.F.R. §212(h)(9)(iii)
(C) p. 711 (h)(15)(ii)(C) p. 716.
• Limited to a maximum of 66,000/yr. §214(g)(1)(B), (g)(2) p. 184.
Victim Visas: VAWA- two new nonimm visa categories for victims of abuse or
trafficking related crimes if helpful in prosecution/investigation of perpetrators. T category
visa lim to 5,000/yr; U category based on abuse from specific crimes capped at 10,000/yr
§§101(a)(15)(T), (U) p. 27-28.
OVERSTAYS
If an alien (a) There is an Under INA §
overstay bar…
Is unlawfully present for a single Voluntarily departs Of 3 years §212(a)(9)(b)(i)(i)
period of more than 180 days
but less than 1 year
is unlawfully present for a single Voluntarily departs Of 10 years §212(a)(9)(b)(i)(ii)
period of 1 year or more
Is unlawfully present for an Has been ordered Permanently but §212(a)(9)(c)(i)(i) & (ii)
aggregate period of more than removed and then waivable
1 year enters or attempts to
enter illegally
Waiver for overstays available in § 212(a)(9)(B)(v) if refusal of admission would create extreme
hardship to the alien’s citizen/LPR spouse or parent.
Congressional intent
34
• Prevent aliens from attempting to secure entry into the U.S. by fraudulent means
and then, when the falsity is discovered, proceeding with the application as if nothing
has happened
Nature of penalty
• Lifetime bar, unless waiver is obtainable
Matter of Cervantes-Gonzales: D procured fake birth certificate and ssn and intended to
use docs to get U.S. passport, but wants waiver of inadmiss b/c of extreme hardship.
Ct held: act of getting fake birth cert w/ intent to defraud U.S. by using it to get a passport
falls w/i §212(a)(6)(C) rendering alien inadmiss and subj to deportation.
• Since 1996 §212(a)(9)(B) as of 4/1/97 noncit who has been unlawfully present for
single period of more than 180 days but less than one yr, then voluntarily departs, is
inadmiss for 3 yrs. 10 yr bar if present for single period of 1 yr or more, triggered
once person departs or is removed. Exceptions and waivers §212(a)(9)(B)(iii)-(v)
• §212(a)(9)(B)(ii) unlawful presence- person who either entered w/o inspection or
stayed beyond expiration date of nonimm admission.
• §212(a)(9)(B) doesn’t apply to noncitz in U.S. if thy haven’t departed U.S. after
accumulating 180 days or one yr of unlawful presence.
• §212(a)(9)(C) noncitz is inadmiss if unlawfully present for more than one yr or
ordered removed, and then enters or attempts to enter w/o being admitted.
35
• §222(g) if noncitz is admitted on noncitz visa and overstays, visa is void at concl of
authorized period of stay.
•
Court will not look behind the exercise of the INS’s discretion in immigration
decisions. However, agency actions must be facially legitimate and bona
fide. Thus, burden is on the govt. For coming up with substantive reasons
for denying a visa. Kleindest v. Mandel
• Alien can be excluded if the sec of state has reasonable grounds to believe
an alien’s entry or proposal activity within the U.S. would have “potentially”
serious adverse foreign policy consequences.
--is Inadmissible.
(ii) exception
Clause (i)(i) shall not apply to an alien who committed only one
crime if--
(I) The crime was committed when the alien was under 18
years of age, and the crime was committed (and the alien
released from any confinement to a prison or correctional
institution imposed for the crime) more than 5 years before
the date of application for a visa or other documentation
and the date of application for admission to the united
states, or
(II) The maximum penalty possible for the crime of which the
alien was convicted (or which the alien admits having
committed or of which the acts that the alien admits having
38
--is Inadmissible.
--is Inadmissible.
Any alien who a consular officer or the attorney general knows, or has
reasonable ground to believe, seeks to enter the united states to engage
solely, principally, or incidentally in—
--is Inadmissible.
--is Inadmissible.
(C ) FOREIGN POLICY
(i) in general
An alien whose entry or proposed activities in the united states the
secretary of state has reasonable ground to believe would have
potentially serious adverse foreign policy consequences for the
united states is Inadmissible.
(ii) exception for officials
An alien who is an official of a foreign government or a purported
government, or who is a candidate for election to a foreign
government office during the period immediately preceding the
election for that office, shall not be excludable or subject to
restrictions or conditions on entry into the united states under
clause (i) solely because of the alien's past, current, or expected
beliefs, statements, or associations, if such beliefs, statements, or
associations would be lawful within the united states.
(iii) Exception for other alien
41
(D) MEMBERSHIP
(E) NAZI PERSECUTION/GENOCIDE
(F) ASSOCIATION WITH TERRORIST
i.) Petitioner files a visa petition by mail to the INS regional service ctr.
• Petition allows the INS to verify the family or employment relationship
that underlies the alien’s claim to preference or immediate relative status.
• Family petitions are files on form i-130.
• Employment based petitions are filed on form i-140, and e must have a
labor certification from the labor dept. Before presenting the i-140 to ins.
ii.) Upon approval, the INS examiner endorses the visa petition, which is
forwarded to the state’s dept. National visa center where the nvc creates a case
file and handles the preliminary paperwork needed before scheduling an
interview with the US Consul in the alien’s country.
iii.) If the petition indicates that the alien is in the U.S. and wishes to obtain
residence through adjustment of status, rather than through the visa process, the
petition will be sent to the appropriate office. Approval of the visa process does
44
not mean that ins has found the alien generally admissible. The issue must be
decided by consul or by the INS examiner considering an adjustment application.
iv.) When the visa petition is received by the nvc, an officer checks to see if it
is complete and technically correct, creates an electronic files, and notifies the
consulate where the alien is expected to apply to the visa. Aliens who do not
adjust statutes in the U.S. are ordinarily expected to return to their home
countries to pick up their visas at the US Consulate there.
v.) If the priority date is current or if the beneficiary is a no quota immediate
relative, then no waiting lists apply and a visa will be available.
• Beneficiary then must complete packet 3 which includes:
1) Police certificate or certificates
2) Certified copy of prison record
3) Record of birth
4) Military record
5) Certified copies of all other records or documents which
the consular officer considers necessary
6) Affidavit of support that alien will not become a public
charge
• Once the biographical information is completed, the alien then notifies
the consulate when she has all of the documentation
• Once the officer makes sure that all of the information has been correctly
supplied on the application form, and has interviewed the applicant, the
officer then decides whether or not to deny the visa
1) Denial is subject to a limited form of review by another
officer at the post and, under some circumstances, referral to the
dept. Of state’s visa office for an advisory opinion.
2) If the applicable Inadmissibility ground is subject to
waiver, however, the consul usually assists the alien in
completing a waiver application, to be forwarded to the INS for
adjudication, along with the consul’s report of any pertinent
information.
• If the consul finds the alien Inadmissible, the officer issues an immigrant
visa, valid for 6 months.
• Visa is not stamped into the alien’s passport but consists of
separate documents with attachments that must be presented to the
admitting immigration officer at the port of entry
• If that officer finds no disqualification’s upon his inspection, he will keep
the immigrant visa, make a notation of admission as a lawful permanent
resident in the alien’s passport, and forward the necessary papers to an ins
facility for the ultimate issuance of the alien registration receipt card (AKA
green card). Issuance may take several additional months.
vi.) If a visa is not immediately available, the officer notifies the alien and it is
held until a visa is available.
INA § 245 (c) Note: adjustment does not eliminate the need for a visa petition in those immigrant
categories to which the petition requirement applies (family preference and
(8)
employment based preferences)
Unless they are immediate relatives of US Citizens, aliens are ineligible for
adjustment under §245(a) if they worked without authorization before filing
or if they are in unlawful immigration status on the date of filing the
application for adjustment of status or who have failed for their own fault to
maintain a continuously lawful status entry into the US. Pei-Chi Tien v.
INS
However, under INA § 245(k), §§245(c)(2),(7), & (8) DO NOT bar adjustment of
status by certain aliens in the employment based preferences if they have
NOT been out of lawful status or engaged in unauthorized work for more
than an aggregate of 180 days.
§245(i)(1): adjustment of status is also available for illegal aliens if the alien
pays $1000 as of the date of receipt of application to the AG.
Entry means any entry, not just the first one. US Ex. Rel. Volpe v. Smith
(1933)
Once an alien gains admission into the U.S. and begins to develop the ties that
go with permanent residence, however, his constitutional status changes
accordingly. According to Fleuti, an innocent, casual, and brief excursion by a
resident alien outside of this country’s borders may not have been intended as
a departure disruptive of his resident alien status and therefore may not
subject him to the consequences of an ‘entry’ into the country on his return.
Fleuti/ since amended in § 101(a)(13)(c)
In Landon v. Plasencia, the S. Ct. made clear that a resident alien who
briefly leaves the U.S. is entitled to DP when she returns. However, in a
footnote to the case, the court made clear that exactly what DP procedures are
due was not decided. Whether the excursion was brief is determined on a
factual case by case basis and whether the alien intended to abandon the
united states and his LPR status.
Landon v. Plasencia (1982)
• Plasencia was a resident alien found to be transporting illegal aliens at the border
after a brief absence from the U.S. and was denied re-entry. She was gone for only
Note that here 3 days. She had substantial ties to the U.S. (spouse and children). Government
the alien did agreed she was entitled to DP.
return quickly • Held that a resident alien who briefly leaves the U.S. is entitled to DP when she
returns.
• It has long been a rule that an alien entering the U.S. has no due
process rights, but a permanent resident, upon initial entry, begins to
develop the kinds of ties to our society that creates constitutional
guarantees.
• An alien that leaves for a lengthy period of time may lose these
guarantees, but a brief absence does not void them.
• When an LPR’s substantial interest in remaining in this country is at
stake, the DPC forbids the government to stack the decks against the alien.
• Court distinguishes Mezei and held it inapplicable to this case since she was
gone for only 3 days and thus did assimilate her status soon after leaving the country.
• Court does not decide what procedures are due though.
Plasencia distinguishes Mezei but doesn’t’ overrule it. Plasencia’s trip fell outside Fleuti
exception, but ct still gave her constitutional d.p. as returning permanent resident.
§101(a)(13) says that a returning permanent resident isn’t seeking admission unl: absent
for more than 180 days, or commission of crime that would make noncitz inadmissible.
Goldberg: Sup Ct moved beyond restrictive d.p. doctrines that guaranteed procedural
safeguards only for traditional forms of prop- now Ct 1st asks whether claimant has
50
property or liberty interest under 5th amends d.p. 2nd decides on case-by-case bases
exactly what procedural protections d.p. requires
Board of Regents v. Roth: not all govt actions negatively affecting people deprive them of life,
liberty, or prop. To have
Mathews v. Eldridge: modern d.p. test (1) interests at stake for person, (2) interest of govt in
using existing procedures, (3) gain to accurate decision-making that can be expected from
procedural protection sought.
§235(c) permits A.G. to order removal of arriving alien on most natl security inadmissibility
grounds w/o further hearing if he acts on basis of confidential info, disclosure of which would be
prejudicial to pub interest, safety, or security.
Nonimmigrant admissions
Nonimmigrant visa: noncitz bears burden of proving he qualifies for the visa, and the most important
issue in the high-demand categories (B-1, B-2, F, M, J) will be whether he truly has home in foreign
country to which he intends to return.
• Visa waiver: some eligible countries w/ low visa abuse rates can enter as temporary visitors for
up to 90 days in B-1 or B-2 category w/o visa. Visitor waives all rts to extend stay, change
nonimm status under §245(a) once in U.S. except as immediate relative of U.S. citizen, waives rt
to removal hearing, except may apply for and have hearing on asylum. §217(b).
Immigrant admissions
LPR- 1st visa petition usu required- person can then get an imm visa at U.S. consulate and come to
U.S. or become PR through adjustment of status.
• if permanent resident plans to leave country, she may do so and then return as a special
immigrant under §101(a)(27)(A), 211(b)- if gone longer than 12 mos, green card may be used as
needed re-entry permit §223.
Parole
• concept under which noncitz is allowed to travel away from border and detention facilities- noncitz
remained subj to exclusion proceedings when it came time to test their rt to remain.
• used often to bring in lots of refugees where statutory provisions are inadequate.
• can be used either before or after administrative finding of inadmiss: to permit medical treatment,
allow appearance in litigation or criminal prosecution, prevent inhuman separation of families, etc.
Efficiency
• post 9/11 long delays b/c of emphasis on security
Adjustment of Status
• §245- from nonimm to imm for noncitz who meet certain requirements. Whole process can be
carried out in U.S.
• §245(a) does applicant meet requirements under (a) and (c)? Noncitz must have been inspected
and admitted or paroled- if you entered w/o inspection you don’t qualify for adj under (a), (c)
makes noncitz ineligible to adj under (a) if they are terrorists deportable under §237(a)(4)(B)
• unl immediate relatives of U.S. citz §245(a) adj is unavailable for noncitz who worked w/o
authorization before filing, or if unlawful imm status on date of filing app
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There is no DP for the arriving alien here being excluded. See Knauff.
An alien subject to § 235(b) is to be removed “without further hearing or
review unless the alien indicates either an intention to apply for asylum
under § 208 or a fear of persecution.”
• If asylum he is detained and referred to an asylum officer, who
conducts an interview to determine if the alien has a “credible fear of
persecution.” § 235(b)(1)(b)(v)
• If credible fear of persecution he is detained for further
consideration of the application of asylum with possible release from
parole.
• If no credible fear of persecution the alien may request
review by an immigration judge in a special procedure.
• Review must take place within 7 days after asylum officer’s
decision and the alien is detained pending review.
• Otherwise, IJ review is available by statute only to persons who
claim to be LPR’s or those admitted as refugees, or to have been granted
asylum.
52
American Imm Lawyers Assoc v. Reno: Ps and advocacy orgs allege certain interim regs
violate Illegal Immigration Refor and Imm Responsibility Act of 1996 (IIRIRA) contending
expedited removal procedures shouldn’t apply to persons w/ facially valid visas.
Held: IIRIRIA’s expedited removal procedures apply to any alien holding a visa regardless if visa
is “facially valid.” –Aliens seeking admission may be physically allowed w/i borders of U.S.
pending decision, but regarded legally as being detained at border and as never having entered
country.
Alien 1:
Alien 2:
Against expedited removal for Larry For expedited removal for Larry
§ 235(b)(1) is not applicable to Larry based on He is Inadmissible under § 101(a)(13)(c)(5) of
statutory construction. It only applies to those the INA. It specifies that an alien lawfully
without valid documents and does not include admitted is not considered seeking admission
those who committed crimes of moral but they are considered seeking admission if
53
Alien 3:
Against expedited removal for Ursula For expedited removal for Ursula
§ 235(b)(1)(a)(3) is arbitrary in limiting an alien Under plain language of statute, § 235(b)(1)(a)
who has left the U.S. for 2 years. (i), the INS can expeditiously remove an alien
without hearing unless the exceptions apply.
Under (i)(i)(i), A/G can apply clause 1 and 2 to
any or all aliens described in subclause 2 and
such designations are under the sole
discretion of the AG. Thus, clear language of
statute says that anyone who is not under
parole or who has not been admitted into the
U.S. is expeditiously removable.
Residents living here have greater due We do not have an open border removal
process rights than those aliens coming here system. We have certain rules and
for the 1st time. Alien who is actually within the regulations concerning aliens into this country.
border of the U.S. continuously for a period is They are not entitled to full DP
afforded greater protection than those aliens
seeking admission. (EP violation and EP does
not distinguish between aliens and citizens)
Under Knauff Mezei doctrine, abuses of aliens Knauff court said that whatever the procedures
it, it is DP. Thus, these aliens are
Inadmissible. Mezei takes this even further
and holds that we can hold aliens for an
indeterminate time if they are deportable.
Matthew v. Eldridge test requires court to Judicial review of expedited removal orders
consider interest at stake for individual, under INA § 235(b)(1) is severely limited.
interest of government, and gain to accurate A court may review such orders only in habeas
decisionmaking if additional procedures are corpus proceedings and the statutory text
added. Under this framework, it is clear that would limit review to certain issues:
Ursula is in a different position than a resident • Whether the petitioner is not an
alien; Ursula has greater liberties at risk alien ordered removed under §
235(b)(1) and
• Whether he can prove by a
preponderance of the evidence that
he is a permanent resident, was
admitted a s refugee, or granted
asylum.
Court can only look at this case under habeas
corpus review. Ursula can only contest this
case if she was seeking asylum or refugee
status. If she wants to appeal, she has to go
to the BIA and contest it under procedural
grounds, not on constitutional grounds.
55
CHAPTER 6 – p. 535
§A Deportation Power
(H) DEPORTATION
- Deportation (expulsion): removal of a noncitizen who has entered the U.S. Began w/ Alien and
Sedition Acts of 1798 that authorized Pres. to deport alien enemies and aliens “dangerous to
the peace and safety of the U.S.” Controversial.
- Fed. govt. became involved in reg. of immig. Created deportation statutes to supplement laws.
- 1907 Amdmt: authorized deportation for post-entry acts.
- § 237: DEPORTABLE ALIENS p. 256-265 – upon order of Atty General, can deport:
inadmissible, criminal offenses (most common), failure to register/falsification of docs, security,
public charge, unlawful voters. Waiver for victims of domestic violence.
- only applies to those that have been admitted (entrants without inspection – EWIs – not
deportable, inadmissible §212).
- significant increase in resources devoted to detention/removal – increased. 100K in ‘01/’02.
DEPORTABILITY applies only to those aliens who have been admitted and for whom grounds
of deportability apply. INA § 237(a). Definition is found in §101(a)(13).
EXCLUSION (inadmissible) applies to noncitizens present in this country without having been
inspected and admitted.
- Galvan v. Press, 1954: deported for past affiliation w/ Communist Party based on new statute.
deportation ground had retroactive applicability.
- Harisiades v. Shaughnessy, 1952: Const. norms don’t apply to deportability. Can’t claim 1st
Amdmt. to challenge deportation. Bill of Rights applies when it’s not immig. (i.e. criminal)
- Congress ultimately has plenary power over immigration issues. Ct. interprets
narrowly. [Frankfurter: for Congress to determine even if offend tradition and jeopardize peace]
- American-Arab Anti-Discrim Comm. v. Reno, 1995: S.C. has held that Bill of Rights does
apply to resident aliens. Diff. than seeking to enter. 2 LPRs had 1st amdmt. protection.
- 1st amendment freedom of association (with identified terrorist org.) protects permanent
residents and citizens equally in the deportation context. Not participating, just associating.
- Congress’ plenary power over immig. doesn’t justify lower 1st amdmt. standard.
already in U.S., entitled to protection. 1st amdmt. says “persons,” not citizens only.
- INA §237(a)(4)(b) allows the INS to deport an alien for terrorist activities engaged in after
arrival or during arrival for participation individually or in group.
2) GROUNDS OF DEPORTABILITY
§237 – list of traits and acts Congress deems undesirable.
- EWIs – inadmissible (§212), not deportable (§237) in 1996 Act. no inspection given.
- distinct – inadmit. are at port of entry. deportable are in and admitted.
- grounds could be before entry, after, both, or within certain number of years since entry.
- Court has generally read deportation statutes quite narrowly b/c stakes for the individual are
considerable and the court will not assume that Congress meant to trench on his freedom
beyond that which is required by the narrowest of several possible meanings of the words used.
- states that an aliens deportable for a crime of moral turpitude within 5 years
after entry (10 years for LPR’s) and conviction sentence can be one year or
longer.
- problem: there’s no workable def. of what’s “moral turpitude.” Most popular def.
is from Black’s dictionary: “act of baseness, vileness, or depravity in the private
and social duties owed to fellow man.”
- P met standards b/c 1) pleaded guilty to act of moral turpitude within 5 years after entry and 2)
sentenced to prison for more than a year [concurrent 40-month terms].
- 9th Cir. holds crime does NOT involve moral turpitude b/c intent to defraud is not essential
element of the crime, not inherent to crime. Not deportable. Committed act – not immoral.
- “moral turpitude” determined by the Court. Common law has broad guidelines.
- issue is that lack of precise definition doesn’t give notice of deportation ground.
No Judicial (i) Aggravated Felonies – added to INA in 1988 Act to target drug
Review of Atty trade
General
♦ 237(a)(2)(a)(iii) p. 259 (deportability ground)
decision
♦ INA § 101(a)(43) – all crimes defined as AF – p. 36-39
237(a)(2)(A)(iii) or INA § 101(a)(43) allows the deportation
of any alien who is convicted of an aggravated felony at
Under INA § 238 (b)(2)
any time after admission.
(A), and (B),
- Can AF definition include criminal offenses that are not felonies? §101(a)(43)(F) – p. 37
- F includes “crime of violence” [physical force against person or property] for which term
of imprisonment is at least 1 year is part of AF definition.
- HYPO: driving under the influence – no current INA provision lists DUI as deportability ground.
- INA has argued “moral turpitude” – DUIs are necessarily morally reprehensible.
- under AF: “crime of violence” b/c DUI is substantial risk of harm to person/prop.
- Thirteen states currently req. Ct. to inform noncitizens of deportation possibility if guilty plea
entered. In rare case, noncitizen can withdraw plea. i.e. if counsel misinforms.
Consequences of Removal
- if deported, can’t re-enter for 10 yrs. w/out Atty General’s permission. Compare to only 5 yr.
ban if person removed at time of arrival.
- noncitizen deported more than once must wait 20 yrs. for reentry.
- AF violation faces lifetime bar (except if AG permission allows application for re-entry).
- If noncitizens fail to depart after final removal - $500/day fine. INA §274D – never used.
60
REGULARIZATION OF STATUS – b/c of ties to U.S., can receive relief granting LPR status.
Most aliens prefer establishment of permanent resident status as form of relief from removal.
- Period of continuous residence or physical presence necessary for relief under 240(a) ends
with the service of notice or with the commission of a criminal offense that renders the alien
Inadmissible or deportable. i.e. during deportation proceeding, not counting toward 10 yrs in
U.S. – became incentive for stalling. 240A(d). p. 283
- Judicial review of decisions to deny cancellation is restricted. 242(a)(2)(B). p. 301
- Factors considered when deciding cancellation of removal: age, health of family members,
how lower standard of living will affect qualifying family members.
- no relatives in Mexico, all family in U.S. Kids don’t speak Spanish. Kids entirely dependent on
mother and Mexico won’t provide for employment, housing, and emotional needs.
- totality of circumstances and hardship from mother to kids demonstrates EEUH.
- BIA determines hardship narrowly and assesses solely on qualifying relatives, not to self (1996
amdmt) or extended family (grandparents, etc.)
- numerical limits on cancellation: 1996 amdmt. imposed cap – no more than 4000 each FY.
240A(e) p. 284.
- cancellation for victims of spousal abuse: special relief for battered spouses/kids. Batterer
must be U.S. citizen or LPR. 240A(b)(2) p. 281.
WAIVERS – use waiver (of excludability) from specified grounds of inadmissibility. 212(h) p.
136. deals with criminal inadmissibility grounds for LPRs.
- Can apply at 3 times: 1) applying for visa, 2) for admission, and 3) for adjustment of status
(used in relief of removal).
- BIA allowed waiver to apply b/c would apply in admission or status adjustment – stretched
statute to also include deportability.
PO SHING YEUNG v. INS, 11th Cir, 1995 – convicted of attempted manslaughter and found
deportable for crime involving moral turpitude. pled guilty, sentenced to 5 yrs. applied for
waiver of excludability (§212(h)) since married to LPR and had child.
- IJ said ineligible since waiver is remedy applicable to exclusion proceedings.
- appealed on basis of const. right to “equal protection” since BIA applied waiver to deportation
before. Ct. held 5th amdt. applies b/c Congress has plenary power to regulate immig. Fed.
statute upheld under rational basis test – ok if not arbitrary or unreasonable.
- BIA couldn’t treat Po diff. b/c he failed to depart and re-enter to get adjustment of status.
- waiver was tightened and made consistent with cancellation of removal by adding 7 yr. rule
and barring aggravated felons from possibility of waiver.
REGISTRY - § 249 – p. 343. Creates record of lawful entry for permanent residence. Purpose
is to legalize residence of noncitizens who had entered improperly or who couldn’t locate record.
- if qualify, creates record of entry. Eligible to anyone who entered before ’72, has had
continuous residency, is a person of good moral character, and no aggravated crimes.
- helps illegals create legal permanent resident status.
PRIVATE BILLS – used to be primary form of relief from deportation. Bill introduced to
Congress to help alien faced w/ deportation. Can sometimes become law. Today, private bills
not as successful. i.e. Elian Gonzalez’s deportation was not stayed by private bill.
- If can’t get relief by LPR status – other relief from removal includes: [didn’t discuss]
1. voluntary departure – § 240B – p. 284. most common form of relief. Works like a
plea bargain for govt. Alien waives full removal hearing in return for statutory advantage of
departing (i.e. can return sooner). Helps manage dockets for removal hearings.
2. Prosecutorial discretion: immig. authorities decide not to place proceedings.
62
- Ct. ruled that due process does apply to deportation hearings, but broadly and slightly.
- due process does not apply to exclusion!! The Knauff-Mezei doctrine established that
although citizen and noncitizens have a right to due process, an extraterritorial alien has no right
to due process. See Ch. 5 Knauff/Mezei cases.
- Cts. usually apply closer scrutiny towards procedural Constitutional challenges than
substantive (deference to Congress).
63
Modern test to determine what process is due: in evaluating whether the procedures
in any case meet requirements of the Constitution, courts must balance these factors:
1) The interests at stake for the individual,
2) The interest of the government in using the existing procedures
3) The gain to accurate decisionmaking that can be expected from added procedural
protections.
See Mathews v. Eldridge, 1976.
§B REMOVAL PROCEEDINGS – Hughes made it clear that this section is NOT on the exam.
Basic points:
- Since 1996 Act, exclusion and deportation proceedings is a single removal hearing for
both inadmissibility and deportability. INA § 240.
- If DHS wants to initiate removal, commands “Notice to Appear” Form I-862 before an
Immig. Judge. Proceedings in 2 stages: 1) master calendar hearing and 2) indiv. merits
hearing.
- For noncitizens in removal, impt. question is whether to release or detain while
proceedings are pending. Detention sometimes necessary to enforce removal orders.
- An alien in a deportation hearing is not necessarily entitled to appointed counsel. Are
told that what they say can be used against them, but are not given right to remain silent.
- Alien’s right to reopen removal proceedings based on situation of case.
§C DETENTION – an obvious restraint on personal liberty that shouldn’t be imposed w/out good
reason. Seems indistinguishable from a prison sentence, creates separation, disrupts lives,
very costly, and limits ability to obtain legal representation. Still, sometimes necessary.
Purposes of detention:
1) Important to make sure that noncitizen appears for removal hearings
2) Important to ensure that the alien will actually leave the U.S. if ordered removed
3) Some aliens are removed b/c they pose a risk to society – detain to minimize risk.
4) Acts to enforce the immigration system/law. Otherwise, noncitizens might just come
and stay as long as they can before removal. Restores credibility in system.
- Nov. 2000 – INS established uniform standards for housing facilities for detainees. In 2002,
Homeland Security Act transferred authority of juveniles to Dept. of Health – Office of Refugees.
1. STATUTORY OVERVIEW
- Arriving aliens not in expedited removal “shall be detained” according to INA §235(b)(2), p.
248. Four levels or priority for detention: required, high, medium, and low priority.
- Conditions of release could include bond – for bond, alien must demonstrate to the
satisfaction of the officer that such release would not pose a danger to property or persons,
and that the alien is likely to appear for any future proceedings. See 8.c.f.r. § 236.1(c)(2)
- INA § 236(a), p. 252 – aliens other than arriving aliens may be detained or released on
their own recognizance or on bond (min. $1500). Factors considered in bond hearing
include the noncitizen’s employment history, length of residence in the community,
existence of family ties, record of appearance or nonappearance in court proceedings, and
previous criminal or immigration law convictions.
- After 9/11 – USA PATRIOT Act added INA § 236A, p. 254 – Mandatory detention of
suspected terrorists. Provision requires detention of specified noncitizens reasonably
believed to be involved in terrorism for up to 7 days b/f placing them in removal
proceedings or filing criminal charges. Detention req. certification by Atty. General.
- Diff. rules govern detention AFTER removal order. INA § 241(a), p. 288.
- removal must take place w/in 90 days “removal period.” During period, AG
shall detain alien and may not release those found inadmissible or deportable
under criminal or natl. security grounds. INA 241(a)(2).
- If removal doesn’t take place during 90 days AG has discretion to release
noncitizen under supervision. INA 241(a)(3). i.e. Zadvydas v. Davis.
2. CONSTITUTIONAL LIMITS
- Look at constitutional limits on detention in two settings:
1) Indefinite detention when a removal order has been issued but the noncitizen cannot
be removed [issue reached the S.C. first]
2) Mandatory detention pending removal proceedings
- Mezei: S.C. approved indefinite detention of an excludable alien (w/out any judicial testing of
the substantive merits or procedural validity of detention order) b/c aliens under final removal
order seen to have same status as excludable – so no due process owed. BUT Wong Wing v.
U.S. (1896) limits the reach of Mezei IF noncitizen can characterize detention as criminal
punishment.
- In past, issue of indefinite detention not an issue. Then, in 1980, Cuba refused to take back
Cubans w/ criminal records (known as Marielitos after the port they left from).
- U.S. had to use Status Review Plan to filter out and release some of the detained.
Marielitos face possibility of endless confinement b/c excluded, but Cuba won’t take them back.
- Barrera-Echavarria v. Rison, 1995: Mariel Cuban who arrived in 1980. Orded
excluded, but Cuba wouldn’t take back. Confined since ’85. 9th Cir. said govt. does have
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- Immigs. from Cambodia/Vietnam/Laos also “stateless” – their countries won’t take them back.
Most were LPRs who committed crimes, ordered removed, and now indefinitely detained.
ZADVYDAS v. DAVIS, S.C., 2001 – Typically, when final order of removal entered, alien
removed w/in 90-day period. INA §241(a)(6) authorizes detention past 90 days (if removal still
likely) or supervised release of certain aliens – must have review to determine situation after 90
day period; another review in three months; another review w/in a year.
- Zadvydas is resident alien. Ordered deported in ’84 for criminal record and history of
flight from criminal/deportation proceedings. Home country wouldn’t take back. INS argues
eventual deportation is still possibility since P is applying for citizenship.
- Ma (shared petitioner) is resident alien detained for criminal record. U.S. has no
repatriation agreement with Cambodia – no realistic deportation option. Const. forbids post-
removal-period detention permanently.
- Ct. held that aliens have already entered U.S., so entitled to Due Process Clause
protection (5th amdmt.). Statute does NOT permit indefinite detention – “may” lang. of statute
doesn’t suggest unlimited discretion.
- Once removal is no longer reasonably foreseeable, cont’d detention no longer
authorized by statute. Alien should be released under supervision pending deportation.
- After 6 month period, if alien shows good reason there’s no significant likelihood of
removal in the reasonably foreseeable future, govt. can rebut or must release.
- DISSENT: AG has clear statutory authority (“may”) to detain criminal aliens for no
specified time limit. No Const. right b/c no right to be in U.S. since under final order of removal
(Mezei). Says Wing Wong only holds that aliens subject to deportation can’t do hard labor w/out
trial.
- DISSENT: Ct. committing Const. error by writing statutory amendment, disregarding
Congressional intent (plenary power over immig. law), releasing dangerous aliens, harming
Exec. foreign relations (repatriation talks), and disrupting balance of power. “reasonably
necessary” lang. of Ct. isn’t in statute, contradictory, and implausible. Congress gave AG
discretion – not job of judiciary to change statute. Express authorization given to detain “beyond
removal period.” Congress chose not to put detention limitations in statute. Can detain to avoid
flight or danger to community. Procedures to review alien cases ensures due process rights.
DENMORE v. KIM, S.C., 2003 – Kim, citizen of S. Korea, is LPR who was convicted of first-
degree burglary and petty theft w/ priors. INS charged him deportable and detained him
pending removal under §236(c) which req. detention of aliens convicted of specified crime and
prevents release on bail pending final determination of deportability.
- Kim filed habeas corpus action challenging constitutionality of §236(c). Argued
detention violated due process b/c INS made no determination that he posed a danger to
society or is a flight risk.
- S.C. holds that §236(c) is constitutional b/c Congress is justifiably concerned that
criminal aliens don’t continue to engage in crime of fail to appear in removal hearings. Provision
was initially adopted to control increasing rates of crime by aliens – detention necessary.
- more than 20% of deportable criminal aliens fail to appear for removal hearings after
release. Studies show detention of criminal aliens is best way to ensure removal.
- Congress has broad power over immig.; therefore, it can make rules that would
be unacceptable for citizens.
- Aliens are entitled to due process, but detention during deportation process still valid.
- Finding of dangerousness not necessary to detain deportable alien.
- Diff. from Zadvydas b/c removal is still a possibility for Kim. Detained pending
proceeding. Because evidence proves large portion of aliens skip hearings, detention is const.
- Majority implies that alien should have petitioned for hearing to argue “burglary” not in
mandatory detention category, rather than file habeas petition challenging §236(c) itself.
- CONCUR: alien must be deportable for §236(c) to be valid. INS must have merit to
deportation charge and detention must be reasonable.
- CONCUR: S.C. doesn’t have jurisdiction (judicial review) to set aside discretion of Atty
General in detaining criminal aliens under §236(c) while removal proceeding is ongoing.
- DISSENT: INS didn’t have merits b/c never found that Kim needed to be detained to
ensure his appearance or to prevent danger to society. Never conceded to removability crime.
Permanent residents have due process right to liberty from personal confinement (habeas
corpus) and can’t be locked up for no reason. LPR part of U.S., established, so deserve Due
Process Clause protection greater than other aliens.
- The 5th amdmt. permits detention only where heightened, substantive due
process scrutiny finds a sufficiently compelling govt. need. Must have indiv.
determination b/f detention. Can’t use class of people for confinement on a
categorical basis and deny members of the class indiv. due process.
- Detention can be no more time than what’s reasonably necessary. Zadvydas.
- DISSENT: Kim didn’t concede deportability. Claims that his convictions don’t fall under
§236(c). Deserves bail so long as he’s not dangerous or a flight risk. Deserves bail if
deportability in doubt. Should interpret statute to permit detained alien to seek individualized
assessment of flight risk and dangerousness.
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- Before Kim decided, Atty General issued decision in Matter of D-J- (2003) holding that Haitian
asylum seeker and those “similarly situated” could be detained w/out bond for natl. security
reasons. Decision was considered individualized determination – unlike Kim.
- Those seeking admission (incl. LPRs trying to return) may not obtain individualized bond
determination by an immig. judge. Again shows diff. b/w arriving and those already here.
§D Court Review – need complex mechanisms for admin review b/c personal consequences
of immig. decision are severe. Actions of fed. agencies are subject to review by courts unless
Congress has foreclosed review in certain categories of cases.
- Approx. 4K lawsuits/yr are filed against govt. in immig. cases asking for judicial review.
- Conflict is that govt. wants to ensure correct application of laws (thru judicial review),
but don’t want to let noncitizens abuse judicial review to prolong stay. How to balance?
c. “Zipper clause” – provides for consolidation of all issues that allows review only upon
final order of removal. Must complete removal process before asking fore review.
§242(b)(9) p. 305.
- Ct. unable to STOP removal proceedings. no review until proceedings commence.
- “zipper” b/c all of your complaints about removal have to be enclosed in one garment.
Can’t argue issues piecemeal – final order must have occurred.
KOLSTER v. INS, 1st Cir., 1996 – Deals with Antiterrorism and Effective Death Penalty Act of
1996 AEDPA § 440(a). Later superseded by the 1996 Act.
- 1st Cir. held that section 440(a)’s deprivation of jurisdiction for any finding or order of
deportation against criminal aliens applies to petitions that were pending on the date of the
AEDPA's enactment. Thus, the prohibition of judicial review does not offend the constitution.
Kolster v. INS
- On April 24, 1996, the AEDPA was signed into law, prohibiting judicial review of
deportation orders issued against aliens who have committed certain types of crimes.
- Kolster pled guilty to drug possession crime and filed a petition with the 1st Cir. on Feb. 28,
1996, 2 months before the AEDPA was signed into law. He argued that the BIA decision that
he was ineligible for discretionary relief from deportation was erroneous b/c § 440(a) does not
apply to cases already pending on the date of the AEDPA’s enactment.
- §440(a) constitutional b/c habeas review of core const. issues still available to alien.
- Ct. held that section 440(a) does apply to petitions that were pending on the date of the
AEDPA’s enactment and is Constitutional. Petition for review denied for lack of jurisdiction.
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- Since some avenue for judicial review remains available to address core constitutional and
jurisdictional concerns (habeas), we find that section 440(a)’s repeal of our jurisdiction to review
final deportation orders does not raise a constitutional issue.
- As the nature and scope of habeas corpus review is not properly before the court at that time,
they denied reaching those questions.
- Purpose of §440(a) was to prevent criminal aliens from abusing process and asking for waiver.
b. Habeas Corpus Review – barring of judicial review justified by fact that habeas still available
to alien. Neither 1996 Act or AEDPA specifically mentions general habeas statute.
- writ of habeas corpus [Art. I, §9, cl. 2]: “The privilege of Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
INS v. ST. CYR, S.C., 2001 – St. Cyr is Haitian citizen, LPR who pled guilty on March 8, 1996 to
selling a controlled substance – deportable violation. 1996 Acts were enacted AFTER he pled
guilty – D argues that restrictions on discretionary relief from deportation doesn’t apply to plea
made b/f enactment of 1996 statutes. Alleging habeas corpus violation made by AG
through error of law in deportation proceeding. INS disputes and also that District Ct. has
no jurisdiction.
- Ct. holds that district ct. retains juris. under general habeas corpus statute.
- judicial review allowed for questions of law in deportation proceedings and habeas
issues.
- some judicial intervention in deportation cases is unquestionably req. by the Const. (like
habeas). Necessary to review question of law over executive detention.
- for habeas cases, judicial review has historically been available.
- DISSENT: even if min. guarantee of habeas review is owed, alien in this case falls outside
scope.
- DISSENT: indisputable that 1996 statutes forbid all cts. from hearing claims of deportable
criminal aliens. Also, due process clause doesn’t req. judicial determination of the alien’s claim.
- 5th amdmt. guarantee of life, liberty, property guaranteed. In deportation proceedings, issue is
liberty when detained. St. Cyr ensure that Const. protection of habeas always available for
judicial review.
- Since alien still has right to challenge detention through habeas, court-stripping provisions are
constitutional/permissible.
- St. Cyr does NOT allow Ct. to use habeas review to “challenge purely discretionary (yet
arguably unwise) decision made by the Exec. branch that don’t involve violations of the Const.
or federal law.” Gutierrez-Chavez v. INS, 2001.
- §242 leaves habeas review intact – can do habeas review in district ct. instead of Ct. of
appeals. St. Cyr.
70
Alienage law concerns the constitutional protection of aliens after admission to the united states:
non-citizens may not 1) vote 2) hold federal civil service jobs 3) have limited access to state and
federal employment and 4) have limited access to public welfare. These distinctions force us to
think about the differences b/w membership and citizenship.
beneficiary is an alien, upon his having resided in this country for a specified number
of years. State enactment
Held that a state statute that denies welfare benefits to resident aliens and one that
denies them to aliens who have not resided in that specific state for a number
of specified years violates the EPC.
♦ Welfare benefits are a right, not a privilege, and states may only
limit privileges to resident citizens.
♦ Special public interest doctrine applies only to privileges,
not rights.
♦ State laws that deny public benefits b/c of alienage conflict with
an area constitutionally entrusted to the federal government
Congress has no constitutional duty to provide all aliens with the
welfare benefits provided to citizens and may discriminate in favor of
citizens and against aliens in providing welfare benefits. Matthews v.
Diaz.
Matthews v. Diaz stands for the proposition that the level of judicial
scrutiny of federal classifications involving alienage is far more
deferential than that applied to the state.
Matthews v. Diaz
Appellees are resident aliens who were lawfully admitted to the U.S. less than 5 years
ago all three are over 65 years old and were denied enrollment in Medicare part b.
That part of Medicaid grants eligibility to aliens only if they have been admitted as
permanent residents and also have resided in the U.S. for at least 5 years. Federal
enactment
Issue: whether Congress may condition an alien’s eligibility for participation in a federal
medical insurance program on continuous residence in the US For a 5 year period
and admission for permanent residence.
Real issue was whether Congress could discriminate within the class of aliens –
allowing benefits to some aliens but not others.
Held that Congress has no constitutional duty to provide all aliens with the welfare
benefits provided to citizens and may discriminate in favor of citizens and against
aliens in providing welfare benefits.
Although Congress’ plenary power give its authority over immigration
and naturalization made clear in Chinese Exclusion Case, the federal
power over aliens is not so plenary that any agent of the national govt.
May arbitrarily subject all resident aliens to different substantive rules
from those applied to citizens. Government must identify a reasonable
interest in discriminating against aliens. Mow Sun Wong.
President Ford then went on to issue an executive order that imposed the same
citizenship requirement, which lower courts later upheld.
Mow Sun Wong stands for the proposition that either the president or
Congress can regulate the activities of aliens as long as a reasonable
interest is proffered. Taken even further, even another government
agency’s regulation would probably not be scrutinized.
• Diaz provides precedent: Congress has no duty to provide all aliens with
the welfare benefit provided citizens. The fact that an act on congress
treats aliens differently does not imply that the disparate treatment is
invidious.
• A statute survives rational basis scrutiny if there is a rational relationships
b/w the disparity of treatment and some legitimate government purpose.
• Congress’ policy to encourage alien self-sufficiency.
• Congress’ intent not to have availability of Welfare as an incentive to
immigrate to US.
• The executive branch says the act incentivizes naturalization.
• Holding:Matthews requires application of a rational basis for the disparity
of treatment and the Act survives because it is rationally related to a
legitimate government concern.
*Remember the three tests used to test constitutionality of a state statute that tries to
classify aliens.
1.Rational relationship b/w classification in state legislation and legitimate govt interest.
This is the least stringent
2.Intermediate std: test substantial relation b/w two. Used often for gender based
statutes.
(C) DEPORTATION
The S. Ct. has established essentially no limits on Congress’ authority to define classes of
deportable aliens. This parallels the doctrine developed by the court in exclusion cases.
DEPORTABILITY applies only to those aliens who have been admitted and for whom
grounds of deportability apply. INA § 237(a). Definition is found in §101(a)(13).
EXCLUSION applies to noncitizens present in this country without having been inspected
and admitted.
INA §101(a)(13)
Congress will apply the same 1st amendment standard to aliens’ claims as they do
to citizens. Harisades v. Shaughnessy
Harisades v. Shaughnessy
Issue: whether the U.S. could constitutionally deport a legally resident alien because of
membership in the communist party which terminated before the enactment of the
alien registration act of 19401 deportation proceedings were issued for three
individuals who then brought suit asking to forbid their expulsion. Each of the three
were offered nationalization but denied it and kept their own nation’s citizenship.
Held: that the act was not invalid under the DPC, 1st amendment (deportation for the
expression of political views), or ex post facto constitutional arguments
Rationle: That aliens remain vulnerable to expulsion long after long term
residence is a weapon of defense inherent in every sovereign state
1
Alien Registration Act of 1940 provided for deportation of any alien who had been a member of a
subversive group at any time irrespective of their entry into the US. It was intended to apply to aliens who
were associated with subversive organizations for no matter how short a time or how far in the past.
75
Not our job to make judgments about legislation. Judicially we must tolerate what
personally we may regard as a legislative mistake.
DPC does not protect individuals from conscription and the calamity of being separated
from family and friends when the purpose is to stem the tide of communism.
We think that in the present state of the world, it would be rash and irresponsible to
reinterpret our fundamental law to deny or qualify the govt.’s power of deportation.
If communist aggression creates such hardships for loyal citizens, it is hard to find
justification for holding that the constitution requires that its hardships must be spared
against the communist alien.
1st Am. does not prevent the deportation of aliens.
Court used the ______ standard of review
76
Deals with convictions, not simply for committing a crime. The conviction must be
FINAL.
(i) Crimes involving moral turpitude –
§237(a)(2)(a)(i)
§237(a)(2)(a)(i) states that an aliens is deportable for a
§ 237(a)(2)(A)(II): crime of moral turpitude within 5 years after entry (10
years for LPR’s) and convicted to prison for more than a
A crime of moral
year.
turpitude includes one
where the alien was
convicted of a crime for The question whether a crime is one of moral turpitude is
which a sentence of 1 whether “a crime is one with an intent to defraud as an
year or longer may be element, thereby making it a crime involving moral turpitude, is
imposed. determined by the statutory definition or by the nature of the
crime, not be specific conduct that resulted in the conviction”
Goldeshtein
Subsection (ii) reaches alien drug abusers who have not been
convicted of controlled substance offenses while subsection (i)
reaches all aliens convicted of controlled substance violations,
including the U.S.e of drugs.
Flores-Arrellano v. INS
• Flores entered the U.S. as a permanent resident in
1990. All of his parents and children were LPR’s. After the
INS issued an order to show cause charging Flores with
deportability on the basis of his conviction for being under
the influence of drugs, Flores argued that “use” convictions
were excluded from deportability.
• Held that a lawful resident alien convicted of use or
being under the influence is deportable as one convicted of
violating “any law…relating to a controlled substance”
79
nonLPR’s and This statute is harsh b/c it allows an alien who has been in the U.S.
conditional permanent for 20 years to be deportable for an aggravated felony.
residents are subject to
expedited removal if Consequences of aggravated felony convictions are harsh:
they have been a) Not eligible for most forms of relief from deportation
convicted of an AF. b) No asylum
c) No judicial review of deportation orders
d) Barred from life from re-entering without the AG's
consent
e) Subject to removal procedures under INA §238(b)
In re Batista Hernandez
• B-H was a citizen of the Dominican Republic who entered the U.S.
without inspection in 1985. 3 years later, the INS granted the respondent
temporary resident status and he thereafter adjusted his status to LPR. In
1993, he was convicted of the offense of accessory, an aggravated felony,
and a controlled substance violation. The immigration judge found him
deportable on both grounds and certified his decision to the immigration and
naturalization board.
• Held that the conviction did not relate to a controlled substance
violation for purposes of establishing deportability under § 241(a)(2)(b)
(i) of the act but that it did come within the statutory definition of an
aggravated felony.
(2) repealed.
(5) (a) the attorney general may, except as provided in subparagraph (b)
or in section 1184(f) of this title, in his discretion parole into the united
states temporarily under such conditions as he may prescribe only on a
case-by-case basis for urgent humanitarian reasons or significant public
benefit any alien applying for admission to the united states, but such
parole of such alien shall not be regarded as an admission of the alien
and when the purposes of such parole shall, in the opinion of the attorney
general, have been served the alien shall forthwith return or be returned
to the custody from which he was paroled and thereafter his case shall
continue to be dealt with in the same manner as that of any other
applicant for admission to the united states.
(b) the attorney general may not parole into the united states an alien
who is a refugee unless the attorney general determines that
compelling reasons in the public interest with respect to that
particular alien require that the alien be paroled into the united
states rather than be admitted as a refugee under section 1157 of
this title.
(6) repealed.
(7) The provisions of subsection (a) of this section (other than paragraph (7))
shall be applicable to any alien who shall leave Guam, Puerto Rico, or the
virgin islands of the united states, and who seeks to enter the continental
united states or any other place under the jurisdiction of the united states.
The attorney general shall by regulations provide a method and procedure for
the temporary admission to the united states of the aliens described in this
proviso. Any alien described in this paragraph, who is denied admission to
the united states, shall be immediately removed in the manner provided by
section 1231(c) of this title.
(11) the attorney general may, in his discretion for humanitarian purposes, to
assure family unity, or when it is otherwise in the public interest, waive
application of clause (i) of subsection (a)(6)(e) of this section in the case
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(12) the attorney general may, in the discretion of the attorney general for
humanitarian purposes or to assure family unity, waive application of
clause (i) of subsection (a)(6)(f) of this section--
(A) In the case of an alien lawfully admitted for permanent residence
who temporarily proceeded abroad voluntarily and not under an
order of deportation or removal and who is otherwise admissible
to the united states as a returning resident under section 1181(b)
of this title, and
(B) In the case of an alien seeking admission or adjustment of status
under section 1151(b)(2)(a) of this title or under section 1153(a) of
this title, if no previous civil money penalty was imposed against
the alien under section 1324c of this title and the offense was
committed solely to assist, aid, or support the alien's spouse or
child (and not another individual). No court shall have jurisdiction
to review a decision of the attorney general to grant or deny a
waiver under this paragraph.
§212 (H) WAIVER OF SUBSECTION (A)(2)(A)(I)(I), (II), (B), (D), AND (E)
The attorney general may, in his discretion, waive the application of
subparagraphs (a)(i)(i), (b), (d), and (e) of subsection (a)(2) of this section and
subparagraph (a)(i)(ii) of such subsection insofar as it relates to a single offense
of simple possession of 30 grams or less of marijuana if--
(1) (a) in the case of any immigrant it is established to the satisfaction of the
attorney general that--
(i) The alien is Inadmissible only under subparagraph (d)(i) or
(d)(ii) of such subsection or the activities for which the alien
is Inadmissible occurred more than 15 years before the
date of the alien's application for a visa, admission, or
adjustment of status,
(ii) The admission to the united states of such alien would not
be contrary to the national welfare, safety, or security of
the united states, and
(iii) The alien has been rehabilitated; or
(b) in the case of an immigrant who is the spouse, parent, son, or
daughter of a citizen of the united states or an alien lawfully admitted for
permanent residence if it is established to the satisfaction of the attorney
general that the alien's denial of admission would result in extreme
hardship to the united states citizen or lawfully resident spouse, parent,
son, or daughter of such alien; and
83
(2) the attorney general, in his discretion, and pursuant to such terms,
conditions and procedures as he may by regulations prescribe, has
consented to the alien's applying or reapplying for a visa, for admission to
the united states, or adjustment of status.
also held if a person had already made an entry. Now, however, expedited removals
are possible.
There is no DP for the arriving alien here being excluded. See Knauff.
An alien subject to § 235(b) is to be removed “without further hearing or
review unless the alien indicates either an intention to apply for asylum
under § 208 or a fear of persecution.”
• If asylum he is detained and referred to an asylum officer, who
conducts an interview to determine if the alien has a “credible fear of
persecution.” § 235(b)(1)(b)(v)
• If credible fear of persecution he is detained for further
consideration of the application of asylum with possible release from
parole.
• If no credible fear of persecution the alien may request
review by an immigration judge in a special procedure.
• Review must take place within 7 days after asylum officer’s
decision and the alien is detained pending review.
• Otherwise, IJ review is available by statute only to persons who
claim to be LPR’s or those admitted as refugees, or to have been granted
asylum.
Notice that the original order is not subject to being reopened or reviewed,
and the alien is ineligible for any discretionary relief under the INA.
INA §§ 501-507 provides for a special court and procedures for removal
of alien terrorists.
Under INA § 503(a), (c), special procedures apply iff the A/G certified,
and a single judge of the removal court determines:
a) That the alien is an alien terrorist
b) That the alien is physically present in the U.S.
c) That removal of the alien under normal procedures would pose a
risk to the national security if the united states
Alien must be given notice, including a general account of the basis for
the charges. The alien has the right to be present and to be represented
by counsel, including appointed counsel for any alien financially unable
to obtain counsel.
86
§ 240 (b)(4)(b) at the bottom of pg 222 states that aliens have a right
1) To review all evidence being used against her,
2) To present evidence in her own defense,
3) To cross examine all evidence, and
4) To have access to any records relating to her admission to the US [§240(c)
(2)]
But that does not include the right to examine national security
information which is confidential or secret.
87
INA § 240(c)(2) says that the alien shall have access to visa or entry
documents that are not confidential.
If you want to argue that the repeal of the secret evidence act is critical
in order to protect an alien from having her liberty curtailed, argue that
DP clause of constitution does not distinguish between citizens and
aliens. Due process clause is given to all persons.
So the question is why was the secret evidence then even utilized if he was
already removable?
• Because one can apply for a bond for a status violation such as
overstaying a visa. In order to prevent his release on bond, the INS uses the
secret evidence to ensure that he remains in custody.
The case ultimately came before the court by k applying for habeas corpus.
Ultimately a NJ court granted his HC petition on the grounds that the secret
evidence deprived him of his liberty. Interestingly, 5 days before he was
released, an IJ granted his adjustment of status. One of the atty. Defending
him argued the secret evidence repeal act and that such provisions in the act
were necessary to protect certain immigrant communities from abuses. Arab
and Muslim communities are the most highly targeted communities where
secret evidence is used against them.
Detroit Free Press v. Ashcroft: does a 1st Amendment right confer a public
right of access to deportation hearings?
• The Creppy Directive issued by chief imm judge creppy required
closure to all deportation hearings from the public friends and family.
• As to congress’ plenary power over imm, the constitution meaningfully
limits non-substantive imm laws and does not require special
deference to the govt
• Kleindiest distinguished because it involved a substantive imm issue
(who may enter US). This case involves procedural issue: who may
access hearings.
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Hypo:
Q: alien a is Arnet, an alien who arrived with a facially valid visa but in fact
misrepresented. Therefore, he is Inadmissible b/c of this misrepresentation.
Alien b is Larry and is an LPR who has been out of the country for 1 month. He
seeks admission into the U.S. again, but is Inadmissible b/c he committed tax
evasion a 5 years ago. Alien c is Ursula and is undocumented. 1 year ago she
walked across the border from Canada to Detroit. When she tried to break up
with her boyfriend, he reported her to the INS.
Assume that the issue is argued before a court and all aliens are at the border
trying to be readmitted. What are the arguments for and against readmission?
Alien 1:
Alien 2:
Against expedited removal for Larry For expedited removal for Larry
§ 235(b)(1) is not applicable to Larry based on He is Inadmissible under § 101(a)(13)(c)(5) of
statutory construction. It only applies to those the INA. It specifies that an alien lawfully
without valid documents and does not include admitted is not considered seeking admission
those who committed crimes of moral but they are considered seeking admission if
turpitude. Hearing is required here. an LPR has committed an offense § 212(a)(2)
Furthermore, Expedited Removal does not and returns shall be considered seeking
apply to returning LPR’s seeking readmission, admission despite his LPR status.
despite that they may be inadmissible. It only
applies to aliens seeking admission without
papers or with fraudulent papers.
If you do it violates his DP rights. To uphold § In Volpe, S. Ct. held that entry means any
235(b)(1) is to deny some form of DP. Court entry. Also in Knauff and Mezei, we see the
held in Yamatayo that deportation procedures court has expressly held that it is specifically
must conform to the dictates of the DPC of the within Congress’ discretion to exclude any
constitution also look at Plasencia. He is a aliens from admission and courts cannot
LPR who briefly left and is entitled to DP. substitute their judgment for legislative
Fleuti doctrine dictates this case. mandate.
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Alien 3:
Against expedited removal for Ursula For expedited removal for Ursula
§ 235(b)(1)(a)(3) is arbitrary in limiting an alien Under plain language of statute, § 235(b)(1)(a)
who has left the U.S. for 2 years. (i), the INS can expeditiously remove an alien
without hearing unless the exceptions apply.
Under (i)(i)(i), A/G can apply clause 1 and 2 to
any or all aliens described in subclause 2 and
such designations are under the sole
discretion of the AG. Thus, clear language of
statute says that anyone who is not under
parole or who has not been admitted into the
U.S. is expeditiously removable.
Residents living here have greater due We do not have an open border removal
process rights than those aliens coming here system. We have certain rules and
for the 1st time. Alien who is actually within the regulations concerning aliens into this country.
border of the U.S. continuously for a period is They are not entitled to full DP
afforded greater protection than those aliens
seeking admission. (EP violation and EP does
not distinguish between aliens and citizens)
Under Knauff Mezei doctrine, abuses of aliens Knauff court said that whatever the procedures
it, it is DP. Thus, these aliens are
Inadmissible. Mezei takes this even further
and holds that we can hold aliens for an
indeterminate time if they are deportable.
Matthew v. Eldridge test requires court to Judicial review of expedited removal orders
consider interest at stake for individual, under INA § 235(b)(1) is severely limited.
interest of government, and gain to accurate A court may review such orders only in habeas
decisionmaking if additional procedures are corpus proceedings and the statutory text
added. Under this framework, it is clear that would limit review to certain issues:
Ursula is in a different position than a resident • Whether the petitioner is not an
alien; Ursula has greater liberties at risk alien ordered removed under §
235(b)(1) and
• Whether he can prove by a
preponderance of the evidence that
he is a permanent resident, was
admitted a s refugee, or granted
asylum.
Court can only look at this case under habeas
corpus review. Ursula can only contest this
case if she was seeking asylum or refugee
status. If she wants to appeal, she has to go
to the BIA and contest it under procedural
grounds, not on constitutional grounds.
(F)DETENTION
PURPOSES OF DETENTION
5) Important to make sure that alien appears for removal hearings
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6) Important to ensure that the alien will actually leave the U.S. if ordered removed
7) Some aliens are removed b/c they pose a risk to society
8) Acts to enforce the immigration system
INA § 236(c) provides that the following aliens, including LPRs, must be
detained and may not be released (MANDATORY DETENTION):
c) Aliens covered by the terrorist grounds
d) Aliens removable on criminal grounds
e) Multiple crimes of moral turpitude
INA § 236(c) provides that the following aliens, including LPRs, must be
detained and may not be released (mandatory detention):
• Aliens covered by the terrorist grounds
• Aliens removable on criminal grounds
• Multiple crimes of moral turpitude
[when INA had § 242(a)(2) in the books (its no longer there), there was substantial
litigation b/c the provision required mandatory detention of aggravated felons after they
had served their prison sentence. The following cases are examples of such litigation
and can be seen as previews of the likely arguments one can raise in litigation over
mandatory detention.]
Leader v. Blackman
Leader was a 30 y/o citizen of Bermuda who had been a LPR of the U.S. since 1976. In
1989, he was arrested for selling cocaine. He was sentenced to 1 year in prison and
when released, taken into custody by the INS for deportation b/c he had been
convicted of an aggravated felony as well as a crime relating to a controlled
substance.
Leader argued 1) that his substantive and procedural DP rights had been violated. He
contended that mandatory civil post-conviction detention of LPR’s is unconstitutional
for individuals who have served their prison sentence and are eligible for
discretionary relief from deportation and 2) that indefinite detention without showing
that petitioner is likely to flee or poses a threat to the community is unconscionable
and a further violation of his rights.
Held that the provision violated the substantive and procedural due process requirements
of the 5th amendment. Thus, although there is no absolute right to bail, there is a
liberty interest that is implicated when one is detained, which creates the right to a
bail hearing.
♦ Court looked at legislative intent behind the statute and
concluded that the intent of Congress was to constitutionally prevent the
release on bail of those deemed to present a risk to society and to
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Davis v. Weiss
Alien was arrested and convicted for possession with intent to sell narcotics in
Connecticut.
Petitioner/alien filed an application for a writ of habeas corpus and for a temporary
restraining order seeking to enjoin the INS from continuing to detain him in custody,
denying him the right to a hearing for the determination of a reasonable bond under §
242(a)(2) of the INA. He claims that the statute is constitutionally infirm, b/c it denies
bail to all aliens held in detention pending a final determination of deportability.
Alien argued 1) that the statute is unconstitutional b/c it does not comport with the
procedural and substantive DP and 2) that he has a right to bail.
Held that the government’s interest in ensuring the presence of convicted aggravated
felons at deportation hearings is paramount to an alien individual’s right to bail.
Plain language of statute and legislative history illustrates that the Congressional
intent behind enacting the legislation is bona fide and does not offend the
constitution
♦ Purpose is to prevent aliens from absconding
♦ Another purpose is to aid in the fight against drug trafficking
Court utilized Matthews test to determine whether the procedures afforded aliens who
meet aggravated felon status and who are being detained pending a final
determination of deportability meet with the requirements of the constitution.
♦ Private interest at stake is the alien’s right to bail. However,
mandatory detention provisions in the INA demonstrate that Congress
has determined that such a hearing for bail is unnecessary.
♦ Less than a vitally protected interest at stake here
♦ Government’s interest is weighty however. Designed to
supplement Congress’ assault on drugs and to ensure the alien’s
presence at deportation hearings.
No EP violation here b/c not all aliens are subject to mandatory detention. The act
provides for special deportation proceedings only for aliens convicted of specifically
identified convictions.
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An alien being detained without opportunity for bail under the act has sufficient
safeguards to determine whether he properly falls under it.
♦ INS determination of custody may be reviewed by an IJ upon
application by the respondent for release from custody
♦ At such a hearing, the alien is entitled to contest whether his
conviction meets the aggravated felony requirements of INA § 101(a)
(43).
♦ Statute further requires expedited deportation proceedings.
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INS’ denial of an alien’s parole from detention pending exclusion does not
implicate equal protection rights. Jean v. Nelson
Jean v. Nelson
Jean, a Haitian national held in indefinite detention pending exclusion, contended that
his being denied parole constituted a denial of equal protection.
Held that it was not a denial of equal protection
S. Ct. precedents make it clear that while aliens seeking entry to the U.S. are
afforded constitutional rights in some contexts, they are not when it comes to
entering the U.S..
Congress has complete control over the admissions of aliens, which it can
delegate to the executive.
Only juridical review afforded an excluded alien is an inquiry to whether
immigration officials, when making their challenged actions, were acting
within the scope of their delegated powers.
Note: S. Ct. granted cert. In Jean v. Nelson to decide whether unadmitted
aliens may claim the safeguards of the 5th amendment, in particular
the equal protection component. It held that the Ct. App. should not
have reached & decided the parole question on constitutional grounds
but should have simply remanded to the district court whether the INS
officials discriminated in violation of the statute, regulations, and
governing ins policy.
• Overall structure of the provisions relating to excludable aliens assumes that the
A/G has authority to detain aliens who are subject to exclusion proceedings or who have
been ordered excluded unless she decides in her discretion to grant parole.
• Reading a time limit on detention would risk frustrating the government’s ability
to control immigration policy and relations with foreign nations. Would lead to our losing
control over our borders.
• There is no constitutional right to parole under Mezei and therefore he has not
right to be free from detention pending his deportation.
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Q: at what stage in the administrative proceedings should JR take place? What form of
action is appropriate? What judicial forum should hear the case? Should it for example
be the federal district court or federal Ct. App. or the supreme court? What standard
ought to be utilized for judicial review? Should JR be precluded for certain types of
matters?
A: look at § 242 and try to answer these questions.
First off:
1) There is always a presumption that agency action is subject to judicial review.
• APA §10 provides that:
“any person suffering legal wrong because of any agency action, or adversely
affected or aggrieved by such action within the meaning of any relevant statute, shall
be entitled to judicial review thereof.”
2) However, the fundamental principle of administrative law that a party must exhaust
administrative remedies before seeking JR!!!
3) Usual APA rules for JR often do not apply to immigration cases!!! APA does nothing with
respect to other limitations to JR and does not confer authority to grant relief if any other
legal statute prevents the relief.
INA § 242(b) sets a filing deadline of 30 days after the final removal order.
(1) §2241 Habeas Corpus Claims (Not claims about deportation, but claims
that challenge an unconstitutional restriction on the alien’s liberty. Denial of JR
must amount to a fundamental miscarriage of justice. See Mbiya.)
A court may review such orders only in habeas corpus proceedings and the statutory
text would limit review to certain issues:
1. whether the petitioner is not an alien ordered removed under § 235(b)(1)
AND
An alien came to the US at 3. Became US citizen at 12 y/o. Father of 11 year old child. 11 years after
becoming a citizen, he pled guilty to a charge of without authority knowingly entering a Ford Explorer
belonging to another with the intent to commit a theft BUT he did NOT steal it. This was his first offense.
He got a sentence of 3 years although he was not convicted of an aggravated felony. Because of the
charge of burglary, a felony, the INS seeks his removal.
Q: Alien wants tot appeal the decision of the IJ and the BIA to the 7th Circuit based on the
arguments he presented to the IJ and the BIA. What arguments would you make that CoA has
jurisdiction notwithstanding that INA § 242(a)(2)(c) says that there is no judicial review of
someone who is removable bc of crime-related deportation grounds.
A: Recognize that INA § 101 (a) (43) (G) says that an aggravated felony is a theft offense or
burglary offense for which the terms of imprisonment at least one year. However, the
plaintiff can argue that the proper definition of burglary should be based on the federal
definition rather than the one in the INA. Adams v. Howerton is analogous. In Adams the
court held that the INA’s interpretation of a definition is a federal question
Also argue the POLICY behind the statute. There are 50 different states and they vary in
how they define certain offenses. Looking at the statute, Congress most likely wanted
federal uniformity and in order to get that, we have to have JR be a federal tribunal.
This hypo is based on an actual case decided in March 2000. The court gave no attention to
whether or not they have jurisdiction. Instead, they basically said “we always have the right to
determine whether we have jurisdiction.” The threshold question of whether the alien did commit
the aggravated felony.
Note the Counter Argument: the reason Congress enacted that was to speed up the
removal of disfavored aliens, e.g. those that had been convicted of criminal convictions.
So if the court takes such a face flying in the face of speedy removal orders, the
counter argument is that historically, the administrative agency’s decision is final.. Also
look at Plasencia which held some sort of DP procedures are due. You must ask
whether the lack of circuit court review has been eliminated to deprive one of DP
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Note:
(1) Be aware that in the courts in the cases below dealing with HC were all deciding
HC under ADEPA and dealing with the transitional rules under IIRIRA.
(2) In Richardson 2, decided recently, the INS held that plaintiff/LPR was removable
b/c he went to Haiti for a brief 2 days. The issue was whether the HC petition to
get released and the denial of parole were eliminated by INA §242. The S. Ct.
denied cert. In the 11th Cir. decision, which held that IIRIRA takes away habeas.
If one takes this as an indication of the USSC’s position, one can argue that
habeas is not available. But remember that many people argue that the denial of
cert. Is not an indication of where the court stands on an issue. What you need
to consider then is, if it is true that one can conclude that §242 eliminates HC as
its provided for in the statute, what about the constitutional questions of whether
one still has habeas b/c of what is available in the constitution? The Richardson
2 case talked about the §2241 and concluded that Congress intended
IIRAIRA to remove habeas from judicial review. It said no more than that.
Some courts have found that §242(g) of the INA precludes habeas jurisdiction
under §2241 to contest removal orders or collateral matters such as stays of
removal, leaving only the constitutional writ, unaided by statute. These decisions
seem to say that the scope of this habeas jurisdiction is narrow, under a standard
similar to the “fundamental miscarriage of justice or grave constitutional error”
standard that we see in Mbiya.
1st Cir. held that section 440(a)’s deprivation of jurisdiction for any finding or order
of deportation against criminal aliens applies to petitions that were pending on the
date of the AEDPA's enactment. Thus, the prohibition of judicial review does not
offend the constitution. Kolster v. INS
• Held that section 440(a) does apply to petitions that were pending on the date of
the aedpa’s enactment.
• Since some avenue for judicial review remains available to address
core constitutional and jurisdictional concerns, we find that section
440(a)’s repeal of our jurisdiction to review final deportation orders does
not raise a constitutional issue.
• As the nature and scope of habeas corpus review is not properly before
the court at that time, they denied reaching those questions.
Similarly, a N.Y. district court held that while the ADEPA amendments manifest
Congress’ desire to streamline the deportation process, the ADEPA and the IIRIRA
leave undisturbed the independent authority of federal district courts to entertain
HC petitions under §2241 of title 28. Mojica v. Reno
Mojica v. Reno
• Mojica and Saul Navas filed petitions for writs of HC to challenge deportation orders against
them. The section of the ADEPA that barred permanent residents who had been convicted of
certain crimes from seeking a waiver of deportation under former INA § 212(c) became law while
their applications were pending. They argued that barring them from seeking judicial review
erroneously gave retroactive effect to ADEPA § 440(d) and violated equal protection b/c it barred
deportable aliens but did not bar excludable aliens.
• Government argued that judicial review was barred b/c they had been
convicted of certain crimes and the only judicial review available for them was
for substantial constitutional claims, which theirs is not.
• Petitioners argued that they were challenging an interpretation of law (the
refusal of the IJ and the BIA was based on a misconstruction of the effective
date of the ADEPA section 440(d) and so the court need not decide whether
there is jurisdiction to review discretionary determinations of findings of fact.
• Held that while the AEDPA amendments manifest Congress’ desire to streamline
the deportation process, the AEDPA and the IIRIRA leave undisturbed the
independent authority of federal district courts to entertain HC petitions under §2241
of title 28.
♦ Congress did not repeal § 2241 by implication. Neither the
IIRIRA nor the AEDPA address or amend the habeas jurisdiction of the
district courts under section 2241 of title 28.
♦ In similar cases before the court, the court held that since the
AEDPA makes no mention of our authority to hear habeas petitions filed
as original matters in this court, we decline to find a repeal of § 2241 of
title 28.
♦ No indication that Congress intended to take the dramatic and
arguably unconstitutional step of repealing the habeas statute with roots
traceable to our nation’s beginning.
♦ § 2241 provides in relevant part that writs of habeas corpus may
be granted by the USSC, any justice thereof, the district courts, and any
Cir. court within their respective jurisdictions.
• In immigration contexts, physical restraint is not required for habeas jurisdiction.
Where the petitioner is subject to a final order of deportation, the custody requirement
is satisfied.