Immigration Law and Procedure in a Nutshell
Authors:
Weissbrodt, David / Danielson, Laura
Edition:
6th
Copyright Date:
2011
25 chapters
have results for immigration law
Chapter 17. Bibliography 124 results (showing 5 best matches)
- LexisNexis: Area of Law—By Topic > Immigration (federal immigration statutes, court cases, administrative decisions, regulations, and treatises). Area of Law—By Topic > Immigration > Find Cases > Federal Immigration Cases; Area of Law—By Topic > Immigration > Find Cases > Federal Immigration Cases and Agency Decisions
- This chapter suggests some principal references for research in immigration law. Items which are starred (*) might be found in the core immigration law library of an immigration practitioner or serious student.
- (vol. 9 contains State Department interpretations and regulations on immigration and citizenship) (reproduced in
- For articles about immigration law, policy, and procedure, the
- Transnational Immigration Law Reporter
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Preface 9 results (showing 5 best matches)
- part—chapters 1 through 4—provides a general overview of the history, constitutional source, and institutional structure of immigration law. In addition to tracing the evolution of immigration law and history in the U.S., the first part discusses the increasing recognition of the federal power to regulate immigration and describes the federal agencies and congressional committees responsible for the formulation and implementation of immigration law.
- When the first edition of this Nutshell was written, there did not yet exist a standard casebook on immigration law and it was unclear what substance belonged in a course on immigration law and procedure. At that time only a few law schools considered immigration law worthy of a course. Since then many major law schools have decided to offer immigration law courses and three principal coursebooks have been published: Thomas Alexander Aleinikoff et al., Immigration and Citizenship: Process and Policy (6th ed. 2008); Richard Boswell, Immigration and Nationality Law: Cases and Materials (4th ed. 2010); and Stephen Legomsky and Cristina M. Rodriguez, Immigration and Refugee Law and Policy (5th ed. 2009, 2010 Update). It was gratifying to see that several parts of this Nutshell were reprinted and other views reflected in those coursebooks.
- This Nutshell presents the information that a student should want to know about the immigration process as it functions in the United States. With the enactment of new immigration statutes in 1996, 2001, 2002, 2005, and 2010, immigration law and procedures have undergone significant change. In addition to those legislative changes, political upheaval throughout the world has made immigration a far more visible and controversial issue—leading, in turn, to a constantly evolving body of laws, regulations, decisions, and policies. The sixth edition of this text is organized in six parts to reflect these changes and make them as comprehensible and accessible as possible.
- This brief text is designed to assist students in obtaining an overview of the material that might be expected to be found in a course on immigration law and procedure.
- part, chapters 10 and 11 discuss refugee and asylum issues and summarize international law as it relates to immigration.
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Chapter 9. Removal Proceedings and Relief From Removal 97 results (showing 5 best matches)
- Local law enforcement officials have in the past participated in immigration enforcement activities. In , 722 F.2d 468 (9th Cir.1983), the court found that the federal power over immigration does not necessarily preclude local enforcement of some provisions of the INA. State and local law agencies usually enforce immigration laws indirectly, however, by reporting persons who are suspected of violating immigration laws to immigration authorities.
- Although § 287(g)(1) was added to the INA in 1996 as part of the IIRIRA, it was not implemented until 2002. As part of its efforts to combat terrorism and undocumented immigration, ICE began entering into § 287(g) agreements with state and local officials that allow state and local law enforcement officers to perform immigration functions. Participating officers, supervised by immigration officials, can interrogate persons suspected of immigration violations, prepare Notices to Appear (which initiate removal proceedings) for signature by authorized immigration officials, and assist in pre- or post-arrest processing of non-citizens. 79 Interp.Rel. 1120. Many local communities have passed ordinances prohibiting cooperation with federal immigration authorities because they feel assistance would undermine their ability to fight crime and enforce state or local laws in immigrant communities.
- A few provisions of the INA allow local law enforcement agencies to participate more directly in immigration enforcement. Section 103(a)(8) allows the Secretary of Homeland Security to delegate any immigration powers he or she deems necessary to local law enforcement in the event of a “mass influx of aliens.” Section 103(c) authorizes the Secretary (formerly the Attorney General) to enter cooperative agreements with state and local agencies to enforce immigration laws. INA § 287(g)(1) further authorizes the Secretary to enter written agreements with any state or local officer or employee qualified to perform the functions of an immigration officer.
- In the past, the immigration judge was called an “inquiry officer,” and served as investigator, prosecutor, and judge. The judicial function was separated from the investigation and prosecution functions in a 1983 reorganization. Immigration judges and the Board of Immigration Appeals are part of the Executive Office for Immigration Review (EOIR), an office within the Department of Justice.
- The INA empowers an immigration officer to arrest, without a warrant, “any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest….” INA § 287(a)(2). The Tenth Circuit in entry conditions is insufficient for an arrest. The arresting officer must base the belief on something more than mere suspicion. After an arrest made without a warrant, immigration officials must follow specific administrative procedures. Once arrested, the non-citizen is taken before a different immigration officer for questioning unless no other officer is readily available. 8 C.F.R. § 287.3. If the examining officer determines that a prima facie case exists for removing the non-citizen, he or she refers the case to an immigration judge, orders the individual’s expedited removal, or takes other applicable action. 8 C.F.R. § 287.3.
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Chapter 4. The Congressional Role in the Immigration Process 23 results (showing 5 best matches)
- The most obvious responsibility of Congress in the immigration arena is considering public legislation. Congress took virtually no action in this regard until passing its first general immigration statute in 1882. Over the next 70 years, Congress passed a variety of restrictive immigration laws. In large part these laws were aimed at excluding Asians, criminals, and the diseased from the U.S.
- Members of the U.S. Senate and House of Representatives are important actors in the formation of immigration law and policy. They draft and approve legislation that, with Presidential signature, becomes the foundation of U.S. immigration law. Congress performs other vital immigration functions as well. In cases of extreme hardship, private legislation may be passed providing lawful permanent residence or even citizenship to an individual. Senators and Representatives are available to take up the case of a non-citizen who may be having administrative problems with immigration authorities. Both houses of Congress hold oversight hearings in which they examine the internal workings of the immigration agencies. Furthermore, particularly in the area of refugees, the executive branch must regularly consult with Congress.
- In 1952 Congress passed, over President Truman’s veto, the Immigration and Nationality Act of 1952 (also known as the Walter–McCarran Act). This legislation consolidated and revised many earlier immigration statutes. To this day the Walter–McCarran Act remains the foundation of U.S. immigration law.
- The 1990 Act was an example of an attempt by Congress to update family immigration quotas in light of increasing demand, modernize grounds of inadmissibility, toughen laws related to non-citizen criminal offenses, and to create a more globally competitive workforce while trying to protect the U.S. labor market. The 1996 Act manifests the capacity of Congress to make radical changes in immigration legislation, especially in enforcement, grounds for inadmissibility and removal, restrictions of benefits for non-citizens, and procedures for seeking asylum. The 2002 Act demonstrates the power of Congress to alter the structure of immigration agencies, as it dismantled the Immigration and Naturalization Service (INS) and created U.S. Citizenship and Immigration Services (handling immigration benefits), U.S. Immigration and Customs Enforcement (handling interior enforcement), and U.S. Customs and Border Protection (handling border enforcement). Congress placed these restructured
- Private legislation provides another way for Congress to contribute in the immigration area. Private legislation, through a private bill, may be introduced specifically to benefit an individual non-citizen or a group of non-citizens. In effect, through this process, a non-citizen is asking that he or she be exempted from the general immigration laws. In conjunction with this request, Congress acts as a tribunal of last resort—primarily through the House and Senate Subcommittees on immigration. Congress is generally hesitant to provide exceptions to immigration laws, however, unless individual circumstances are compelling enough to outweigh concerns about undermining those laws. Former House Subcommittee ...procedures and policy for private bills in the 99th Congress, spoke to this practice. “Since the Subcommittee acts as a court of equity in deciding whether to grant special relief in private immigration cases, it must reserve affirmative action to those of extraordinary...
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Chapter 1. History of U.S. Immigration Law and Policy 116 results (showing 5 best matches)
- The Immigration and Nationality Act of 1952 (INA) consolidated previous piecemeal immigration laws into one coordinated statute. As amended, the 1952 Act provided the foundation for immigration law in effect today.
- The most visible feature of IMMACT 90 was the increase by approximately 35% in the numerical limitation system, or overall immigration allowed. IMMACT 90 established an annual limit for worldwide immigration of 700,000 for three years, after which it decreased to 675,000. Because other provisions of the 1990 Act allowed immigration of groups not counted in the 700,000, and a separate law permitted as many as 125,000 refugees to be legally admitted, the actual worldwide immigration limit was closer to 800,000.
- With the federal government’s inability to enact comprehensive immigration reform, state and local legislatures became increasingly active in attempting to regulate immigration. In 2007, 1,562 pieces of legislation were introduced in all 50 states aimed at deterring undocumented immigration; 240 of the bills passed in 41 states. The number of immigration bills introduced in 2007 represented a five-fold increase from 2005. Many of these laws attempted to tighten citizenship verification and eligibility for employment, state benefits, and state licenses.
- The arguments against free immigration—that is, for maintaining a restrictive immigration policy—have figured prominently in the history of U.S. immigration law. These reasons are often based upon a fear that increased immigration will compromise the U.S. standard of living. It is argued that the very reason immigrants have historically been attracted to the United States—
- There is a moral component to the argument in favor of free immigration as well. Given the U.S. tradition as a country of immigrants, it is difficult to comprehend how current citizens—almost all of whom have benefited from immigration—can claim any right to exclude future immigrants. Also, family reunification is at the core of much of our immigration policy and is based upon a fundamental respect for the right to be with one’s loved ones. Moreover, immigration law is only as effective as its enforcement. Weak enforcement and illegal immigration mock the actual numerical limits. Some scholars argue that the U.S. should adopt an immigration policy commensurate with the country’s capacity for enforcement, or at least, legally recognize the actual number of non-citizens who enter the U.S.
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Chapter 2. The Source and Scope of the Federal Power to Regulate Immigration and Naturalization 80 results (showing 5 best matches)
- While some localities have sought to make it easier for undocumented immigrants to live in society through “sanctuary” policies, other localities have enacted ordinances that impose burdens on undocumented immigrants to deter their presence. The increased proliferation of local laws targeting undocumented non-citizens has prompted litigation throughout the country. Based on the Supreme Court’s analysis in , 424 U.S. 351 (1976), federal immigration law preempts these local immigration ordinances if states and cities go too far in seeking to restrict the employment, housing, and benefits of non-citizens. Hazleton, Pennsylvania, for example, passed an ordinance entitled the Illegal Immigration and Reform Act that imposed fines on landlords renting to undocumented immigrants, and suspended or removed the licenses of businesses that hired undocumented workers. Hazleton’s local immigration law, however, was struck down in ...(M.D. Pa.2007). The federal Immigration Reform and Control Act (...
- The 2002 OLC opinion and the prevalence of § 287(g) agreements are troubling to many. Critics argue that enforcement of federal immigration laws by state and local agencies leads to increased racial profiling of individuals based on their foreign appearance. In addition, studies show that non-citizens are less willing to report crimes and cooperate with state and local officers because of their fear that the police will enforce federal immigration laws. Others worry that state and local enforcement agencies lack the resources and expertise to administer federal immigration law properly.
- In 2010, Arizona passed a far-reaching immigration law aimed at dramatically expanding the power of local law enforcement officials to curtail undocumented immigration. The law authorizes local and state police to detain and conduct status checks of individuals they suspect are undocumented immigrants. The law also makes it a criminal misdemeanor for immigrants not to carry documentation of their citizenship or residency status. A provision of the law allows local citizens to sue local governments and agencies to enforce state and federal immigration laws. Many, including President Obama, condemned the Arizona law for invading federal authority as well as encouraging harassment and racial profiling of Hispanics.
- INA § 242(a)(5). The Act, however, allows for judicial review of factual and discretionary decisions that prompt constitutional claims or questions of law. INA § 242(a)(2)(D). Courts have taken divergent approaches in determining which immigration decisions raise “questions of law.” For example, the Second Circuit in , 162 Fed.Appx. 37 (2d Cir.2006) refused to review the decision of an immigration judge that a petitioner’s untimely application for asylum was not excused. The court held that to be a “question of law,” the issue must be more than a “quarrel” over the fact-finding and discretionary determinations of immigration authorities. In contrast, the Ninth Circuit in , 479 F.3d 646 (9th Cir.2007) asserted that it could review an immigration official’s decision regarding whether an untimely asylum application was excusable because “the application of law to fact” constitutes a question of law under the court’s jurisdiction.
- Lower courts have upheld state and local enforcement of the criminal provisions of federal immigration law. , 199 F.3d 1037 (9th Cir.1999). In addition, courts have determined that federal statutes do not preempt state laws authorizing police to arrest non-citizens for violations of federal immigration law. federal law, including immigration law”). Disputes remain, however, concerning the authority and role of state and local authorities in enforcing the civil provisions of federal immigration policy.
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Chapter 3. Administrative Structure of Immigration Law 31 results (showing 5 best matches)
- Under the Homeland Security Act, most of the immigration functions originally delegated to the Attorney General by the Immigration and Nationality Act ( INA § 103(a)) were transferred to the Secretary of Homeland Security. The functions of enforcing immigration law and administering immigration and citizenship benefits are now principally handled by three subdivisions of the Department of Homeland Security: the U.S. Citizenship and Immigration Services, the U.S. Immigration and Customs Enforcement, and the U.S. Customs and Border Protection.
- Until 2003, the Department of Justice was responsible for most immigration functions. The Immigration and Naturalization Service (INS), an agency of the Department of Justice, handled immigration and citizenship services and enforced immigration laws. These functions have now been transferred to the Department of Homeland Security. The Department of Justice has, however, retained authority over the Executive Office for Immigration Review.
- The U.S. Immigration and Customs Enforcement (ICE) agency is responsible for enforcement of immigration laws. It is divided into five operational divisions for immigration investigations, detention and removal, Federal Protective Service, international affairs, and intelligence. The immigration investigations program seeks to identify and remove non-citizens who are in the United States in violation of the law. The detention and removal program supervises the detention of non-citizens, represents the government in immigration proceedings, and executes the removal of non-citizens who have received a final removal order. The intelligence program provides information to aid in policy-making and day-to-day immigration operations.
- In 1983, the Department of Justice removed immigration judges from the INS and placed them under the direct supervision of the Associate Attorney General in the newly created Executive Office for Immigration Review. 8 C.F.R. § 3. The Homeland Security Act of 2002 placed the EOIR under the control of the Attorney General. HSA § 1102. The EOIR is charged with interpreting and administering federal immigration laws and maintains three components: the Office of the Chief Immigration Judge is responsible for managing the immigration courts; the Board of Immigration Appeals conducts appellate reviews of the decisions of immigration judges; and the Office of the Chief Administrative Hearing Officer focuses on employment cases related to immigration. The EOIR is an administrative body, not a court under Article I or III of the Constitution.
- In 1996, IIRIRA gave the Attorney General (now the Secretary of Homeland Security) the authority to enter into agreements with states and subdivisions of states to implement the administration and enforcement of federal immigration laws. INA § 103(a). With the appropriate agreements, for example, states can receive federal funds to construct and rehabilitate space for detention and confinement. The Secretary may also enter into agreements with law enforcement agencies at the state and local levels to enforce immigration laws.
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Chapter 15. Ethical Dimensions of Immigration Practice 21 results (showing 5 best matches)
- Immigration lawyers are confronted by ethical issues more often than the majority of other practitioners. The non-citizen clients of the immigration lawyer are often suspicious about the fairness of United States laws and administrative practices and are usually unfamiliar with them. Some non-citizens may try to suggest or pursue courses of conduct from their culture that might be inappropriate or, perhaps, unethical for a lawyer in the United States. In addition, immigration lawyers are frequently confronted with issues of dual representation. Hence, the student of immigration law should be aware of the ethical dimensions of an immigration practice.
- On the other hand, the Model Rules and the applicable C.F.R. provision, however, prohibit the lawyer from making false statements to the immigration authorities. According to the Model Rules, the lawyer shall not “knowingly … make a false statement of material fact or law to a third person.” Model Rules of Professional Conduct Rule 4.1(a)(2010). The Code of Federal Regulations contains similar language. 8 C.F.R. § 1003.102. On certain applications, the lawyer is required by law to reveal information about his or her client. If the lawyer knowingly makes a false statement on these forms, he or she is subject to substantial penalties. , 875 F.2d 219 (9th Cir.1989) (immigration attorney convicted of making false statements to Department of Labor).
- In such circumstances, a lawyer faces either violating the mandate regarding client confidences or violating the mandate regarding false statements. The Model Rules provide no clear answer. This immigration lawyer’s dilemma, however, is not without resolution. A minority of states, such as Minnesota, provide that a lawyer’s duty to the tribunal always trumps her duty to preserve the client’s confidence. Minnesota Rules of Professional Conduct 3.3[10](2005). The Model Rules suggest that the lawyer is charged with preserving client confidences only within the bounds of the law. Hence, while a lawyer cannot volunteer information about the client’s activities to the immigration authorities, he or she must advise the client to answer truthfully. The lawyer does not impermissibly violate a client confidence when he or she proceeds with an application at a client’s request and truthfully answers a direct question because to make a false statement would violate the law.
- This chapter analyzes three typical ethical problems encountered by the immigration lawyer from the perspective of the Model Rules of Professional Conduct and the relevant provisions of the Code of Federal Regulations. The three problems deal with common situations faced by immigration lawyers:
- Problem 1: The non-citizen is in violation of his or her immigration status, or has fraudulently married to gain permanent resident status. Must the lawyer report his or her client to the immigration authorities?
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Chapter 16. Conclusion 4 results
- The immigration laws and administrative structure and procedures described in this Nutshell have changed significantly in the twenty-six years since the publication of the first edition. Beyond landmark legislation like IRCA (1986), the 1990 Act, AEDPA (1996), IIRIRA (1996), and the Homeland Security Act (2002), the immigration authorities and the judiciary continually revise and clarify the regulations that form the foundation for practicing immigration law. After September 11, 2001, the threat of terrorism stimulated efforts to increase border security and tighten visa and admission procedures. These security concerns have led to increases in funding and staffing for the Department of Homeland Security and agencies the Department oversees: the Border Patrol, Immigration and Customs Enforcement, and Citizenship and Immigration Services. As a result, immigration authorities are apprehending, detaining, prosecuting, and removing undocumented immigrants at unprecedented rates. Many...
- It seems appropriate to conclude this Nutshell by making a general observation about the nature of immigration law practice. Faced with all the detailed requirements for visas and other immigration remedies about which this volume says so much, some advocates, including attorneys, and their clients devote most of their attention to gathering the minimum information necessary to fulfill the various requirements. Unfortunately, some lawyers and almost all unrepresented non-citizens do not view the immigration process as an appropriate place for intelligent advocacy. This tendency has been addressed by groups such as the American Immigration Lawyers Association (AILA) which, through seminars and publications, has sought to raise the level of expertise in the practice of immigration law.
- Ultimately, it is the duty of immigration lawyers to muster the relevant facts in such a way as to convince immigration officers that the lawyers’ clients should receive the appropriate immigration status. One should never forget when submitting an application that one has the power to establish the record on which the client’s case will be won or lost. In addition, lawyers should remember that immigration officers are administrative decision-makers who ought to receive the same sort of attention and polite, effective advocacy as judges. Certainly, immigration laws and the multitude of immigration forms about which the student has read are not invitations to forget all the advocacy skills used in other contexts.
- Congress and the Administration have undertaken reforms to modernize immigration procedures, to resolve at least partially the very difficult problems created by the hundreds of thousands—if not millions—of non-citizens who wish to live in the United States, and to decide which non-citizens should be allowed to immigrate. Many elected representatives, immigration officials, and lawyers recognize that new reforms are necessary to improve the current immigration system, but the debate over immigration reform has proven to be contentious and polarizing. Nonetheless, immigration concerns will continue to persist. Population analysts have noted that the U.S. may suffer a severe shortage of workers in coming decades and that immigration will be an important way of supplying workers for the U.S. economy. During periods of high unemployment and economic distress, however, immigration becomes particularly unpopular and the long-term needs of the U.S. economy may be ignored.
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Index 83 results (showing 5 best matches)
- See also Asylum; Citizenship and Immigration Services (CIS), U.S.; Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA); International Law; Public Assistance; Temporary Protected Status; Withholding of Removal
- See also Antiterrorism and Effective Death Penalty Act (AEDPA); Citizenship; Federal Authority over Immigration; Homeland Security Act; Illegal Immigration Reform and Immigrant Responsibility Act of (IIRIRA); Immigration and Naturalization Service (INS); Immigration Reform and Control Act (IRCA); Inspection
- See also Citizenship and Immigration Services (CIS), U.S.; Department of Homeland Security; Immigration and Naturalization Service (INS); Directorate of Border and Transportation Security; Immigration and Customs Enforcement (ICE), U.S.
- See also Citizenship and Immigration Services (CIS), U.S.; Customs and Border Protection (CBP), U.S.; Department of Homeland Security; Executive Office for Immigration Review; Immigration and Naturalization Service (INS)
- See also Citizenship and Immigration Services (CIS), U.S.; Customs and Border Protection (CBP), U.S.; Department of Homeland Security; Directorate of Border and Transportation Security; Executive Office for Immigration Review; Immigration and Customs Enforcement (ICE), U.S.
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Chapter 13. The Rights of Non-Citizens in the United States 82 results (showing 5 best matches)
- For many non-citizens, a driver’s license is a necessity, without which they would not be able to get to work or school or carry out many other everyday activities. Since September 11, 2001, however, many state governments have proposed or enacted laws that restrict non-citizens’ access to driver’s licenses. Proponents of such laws argue that driver’s licenses facilitated the activities of the terrorists responsible for the September 11th attacks, and that linking driver’s licenses to immigration status will enable state and local law enforcement officers making routine traffic stops to identify persons who are in the country illegally. Opponents of the laws argue that state driver’s license agencies lack the expertise required to determine a non-citizen’s immigration status and the authority to enforce immigration laws, that the laws will jeopardize highway safety by encouraging non-citizens to drive without licenses, and that many non-citizens will be subjected to great...
- had used fraudulent documents to obtain his job and the company did not learn of his immigration status until the hearing on his claim. Unlike the plaintiffs, the employee had remained in the United States. The National Labor Relations Board had previously determined that the employee was entitled to backpay for the period from his termination to the date the employer learned about his unlawful status, reasoning that, but for the wrongful termination, he would have continued at the job until that time. The Court found, however, that awarding backpay to an undocumented worker for years of work not performed, in a job that he obtained by criminal fraud, would contravene federal immigration policy, and it denied the backpay award. Since ...the issue of whether the Supreme Court’s ruling applies to claims under other federal labor laws, such as wage claims under the Fair Labor Standards Act (FLSA) or discrimination claims under the Americans with Disabilities Act (ADA) and Title VII of...
- For purposes of immigration and other laws affecting non-citizens, four broad classes of non-citizens can be identified: (1) persons seeking admission to the United States; (2) persons admitted as immigrants or lawful permanent residents; (3) persons admitted as nonimmigrants or temporary visitors; and (4) undocumented persons or “illegal aliens” who are present in the country without the official knowledge or permission of the federal government.
- Any rule of constitutional law that would inhibit the flexibility of the political branches of government to respond to changing world conditions should be adopted only with the greatest caution. The reasons that preclude judicial review of political questions also dictate a narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization.
- Hundreds of lawful classifications are embodied in the immigration laws that set preferences for admittance and establish conditions under which a non-citizen may remain in this country. In characterizing all legislation that burdens non-citizens after they have been admitted as part of an ongoing scheme with foreign policy overtones, the government may simply extend the prejudices expressed in the immigration laws. The U.S. government apparently prefers affluent immigrants who will not need Medicare; immigrants who will seek only private or state civil service employment, while refraining from federal employment; who will not request government farm loans, but who will nonetheless pay taxes, contribute to the community, and if necessary, serve in the military. A prospective immigrant could not know the true terms of entry without checking all federal legislation for restrictions as to citizenship.
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Chapter 14. Criminal Aspects of Immigration 44 results (showing 5 best matches)
- The Immigration Marriage Fraud Amendments of 1986 intended to deter non-citizens from seeking immigration benefits through a fraudulent marriage to a U.S. citizen or permanent resident. Those amendments, for example, impose a two-year residency requirement on non-citizen spouses before they may obtain unconditional permanent resident status on the basis of a “qualifying marriage” to a U.S. citizen or permanent resident. The Fraud Amendments also provide a criminal penalty for marriage fraud. INA § 275(c) states, “[a]n individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than five years, or fined not more than $250,000, or both.” The statute applies to the U.S. citizen or permanent resident and also to the nonresident involved in the fraudulent marriage. See § 5–2.1, , for a discussion of the Immigration Marriage Fraud Amendments of 1986.
- Criminal prosecutions have become a signification part of immigration law. Criminal prosecutions for immigration offenses rose dramatically from 17,100 prosecutions in 2000 to 91,899 prosecutions in 2009. Moreover, prosecutions for immigration offenses accounted for fifty-four percent of all federal criminal cases in 2009. The vast majority of these prosecutions are for unlawful entry or reentry, and roughly ninety percent of immigration cases ...districts located along the United States–Mexico border. While at one time individuals usually faced just the possibility of removal for such immigration offenses, it is now the case these violations will result in both criminal prosecution and removal. Those persons convicted for unlawful entry or reentry serve an average sentence of less than six months before facing removal. The consequence of a conviction is significant as criminal conduct constitutes a ground for inadmissibility that could prevent an individual from lawfully...
- In addition to the harsh consequence of removal, non-citizens may incur criminal penalties for misconduct related to immigration. Such criminal sanctions are found under both the Immigration and Nationality Act and portions of the U.S. Criminal Code. This chapter describes immigration-related conduct that may result in criminal penalties for both citizens and non-citizens, including unlawful entry, bringing non-citizens into the U.S. without inspection, transporting or concealing a non-citizen who entered unlawfully, encouraging non-citizens to enter unlawfully, misrepresentation or fraud in obtaining immigration status, failure to comply with removal regulations, and employment of unauthorized workers. The chapter also discusses the immigration consequences of a non-citizen’s criminal activity, including denial of asylum, inadmissibility, and removal.
- The perjury provision of the Immigration and Nationality Act is contained in INA § 287(b). This statute empowers immigration officers and employees to administer oaths, and imposes criminal penalties on anyone who knowingly makes a false statement after taking an oath administered by an immigration officer.
- These registration requirements have been part of immigration law since the Alien Registration Act of 1940, 54 Stat. 670, but for many decades they were not enforced. The INS routinely waived the fingerprinting requirements, and nonimmigrants received no registration card other than the Form I–94 Arrival–Departure record. (Permanent residents receive a Permanent Resident Card after admission to the U.S.) In 2002, however, the immigration authorities, acting under the authority of § 262(a), implemented special registration requirements for nonimmigrants from certain countries, principally in the Middle East. These requirements were intended to improve the ability of immigration authorities to monitor nonimmigrants whom it believes “present a heightened risk of involvement in terrorist or criminal activity.” 67 Fed.Reg. 40581–01. Nonimmigrants subject to the special registration procedure (as identified by notices in the Federal Register) are fingerprinted and photographed upon...
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Chapter 10. Refugees and Asylum 34 results (showing 5 best matches)
- Immigration judges have jurisdiction over all non-citizens in removal proceedings, including applicants for asylum. Asylum seekers may be placed in removal proceedings in a number of ways: they may be referred to an immigration judge if their affirmative asylum application is not approved by the Asylum Office; they may be arrested at the port of entry, establish credible fear of return, and subsequently be placed in removal proceedings; or they may be arrested by immigration officials for other immigration status violations. Once a Notice to Appear is filed with the immigration court, jurisdiction over the individual rests with the immigration judge, and any claim for asylum or related relief will be adjudicated by the immigration judge.
- (c) If a non-citizen who lacks an immigration status or a person whose nonimmigrant visa has expired applies for asylum, immigration authorities will become aware that the non-citizen is out of immigration status and if asylum is not granted, removal proceedings will be initiated to force the non-citizen to depart the United States. The application for asylum is considered “referred” to an immigration judge for further consideration. In light of the small percentage of applicants actually granted asylum affirmatively (for fiscal years 2000 (14.5%); 2001 (13%); and 2002 (11.9%)) individuals should consider carefully whether they wish to apply for asylum because if their application is rejected, they will be subject to removal proceedings. If the U.S. Immigration and Customs Enforcement (ICE) has initiated removal proceedings against a non-citizen, the non-citizen may apply for asylum as a defense to removal if the application is submitted within one year of his or her latest entry to...
- Asylum may be terminated under certain circumstances. An immigration judge or the BIA may reopen proceedings to terminate a grant of asylum. The immigration officer seeking to terminate the grant of asylum must establish by a preponderance of the evidence that conditions have changed in the asylee’s country of origin, that the asylee was guilty of fraud in the application process, or that the asylee had committed an act that would have been grounds for denial. An immigration
- , 480 U.S. 421 (1987) the Supreme Court established the standard of proof which the adjudicator must apply in considering asylum applications and examined the procedures available for review if such applications are denied. Stevic was a Yugoslav citizen who was ordered removed from the United States. While his motion to reopen his removal was pending before an immigration judge, he applied for asylum. The immigration judge denied the reopening and his appeal to the Board of Immigration Appeals was dismissed. The Board noted that “[a] motion to reopen based on a … claim of persecution must contain prima facie evidence there is a clear probability of persecution to be directed at the individual.” The Board concluded that Stevic had failed to prove that he would be singled out for persecution if he returned to Yugoslavia.
- Courts use a “substantial evidence” standard for reviewing asylum or withholding of removal. Before applying the substantial evidence standard, the court must first determine whether it reviews the immigration judge’s or BIA’s decision. The process generally followed is that if the BIA conducts a , 116 F.3d 391 (9th Cir.1997). If the BIA reviews the immigration judge’s decision for an abuse of discretion and simply adopts the immigration judge’s findings and reasoning, the court will review the immigration judge’s decision to determine if it was supported by substantial evidence.
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Chapter 8. Grounds for Inadmissibility and Removal 41 results (showing 5 best matches)
- Because of the serious, sometimes unanticipated consequences of criminal conduct for non-citizens and their families, lawyers representing non-citizens accused of a crime, prosecutors, and judges have several special considerations to keep in mind. First, if the non-citizen is accused of a crime of moral turpitude, or an “aggravated felony,” the lawyer will want to consider pleading the non-citizen to a lesser offense that does not involve moral turpitude, has a maximum sentence of less than one year, and/or is not classified as an aggravated felony for immigration. “Misdemeanor” is not an immigration concept and many state misdemeanors are aggravated felonies under immigration law. Some prosecutors and judges are not aware of the severe consequences of criminal convictions for non-citizens who may, in some cases, be the sole support of U.S. citizen or permanent resident family members. In many cases, the rehabilitative and punitive purposes of prosecuting and sentencing can be...
- d. Inadmissibility for Violations of Immigration Law or Procedure
- Several of the inadmissibility grounds in § 212(a) are related to the enforcement of other immigration laws and procedures. Non-citizens who enter the U.S. without being admitted or paroled, those who stay beyond the expiration of their nonimmigrant status, and those who have been removed from the U.S. may all be inadmissible for varying periods.
- Admissibility is also an issue for individuals seeking naturalization as U.S. citizens, because one of the requirements for naturalization is that the applicant was lawfully admitted to permanent residence. INA § 316. If the U.S. Citizenship and Immigration Services determines that an applicant for naturalization was inadmissible at the time he or she became a permanent resident, it may not only deny citizenship but may also initiate removal proceedings. Frequently, a person’s inadmissibility or removability only comes to the attention of immigration authorities when he or she applies for one of these immigration benefits.
- INA § 212(d)(3) grants the Secretary of the Department of Homeland Security broad discretion to admit otherwise inadmissible non-citizens. The only grounds of inadmissibility that cannot be waived based on § 212(d)(3) are related to terrorism under §§ 212(a)(3)(i)–(iii) or participation in genocide under § 212(a)(3)(E). A waiver under § 212(d)(3) must be tied to a non-immigrant visa such as a tourist or student visa. Although nearly all inadmissible non-immigrants qualify for § 212(d)(3) waiver, the decision to grant such a waiver is highly discretionary. To determine whether to grant a § 212(d)(3) waiver, immigration officials will evaluate (1) the risk of harm to society if the applicant is admitted; (2) the seriousness of the applicant’s previous immigration or criminal law violations; and (3) the applicant’s purpose in entering the U.S.
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Chapter 11. International Law Issues Related to Immigration 17 results (showing 5 best matches)
- The United States’ obligations under the Protocol to protect refugees are not respected by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The expedited removal process (IIRIRA § 302) is inconsistent with the international standards identified in Executive Committee Conclusions of the United Nations High Commissioner for Refugees (UNHCR). Executive Committee Conclusions are attained by consensus of the member states. In 1983, the UNHCR Executive Committee concluded that unless an asylum seeker’s claims are “manifestly unfounded or abusive,” full review of a negative decision should be available to unsuccessful applicants. Under IIRIRA § 302, however, asylum seekers are required to establish a “credible fear” before being allowed to present claims for asylum to an immigration judge. INA § 235(b)(1)(B)(iii). IIRIRA’s requirement of a credible fear thus reduces opportunities for review.
- Safeguards against misleading information relating to emigration and immigration;
- ...theory of sovereignty. Both Blackstone and Vattel recognized the right of every nation to exclude non-citizens, or to place upon their entrance whatever restrictions the nation may want. Most nations place the greatest restrictions on immigration. Nations regularly admit non-citizens for a limited period if there is a treaty of commerce, establishment, and navigation between the non-citizen’s home state and the admitting state. Parties to these treaties usually retain the right to exclude individuals who are deemed physically, medically, morally, or socially undesirable. The international human rights treaties do not grant individuals the right to enter any nation other than their own, but several provide protection from return to a dangerous situation. For example, the Convention and Protocol relating to the Status of Refugees protect a refugee from being expelled or returned to a country where his or her life or freedom will be threatened. The Convention Against Torture...
- ...and to refugees. These groups will be considered in the sections below. Nations do, however, admit non-citizens more readily for temporary travel than for immigration, especially if the nation is a party to a treaty of commerce, establishment, and navigation. The Helsinki Accord, which is a European/North American regional agreement adopted in 1975 at the European Conference on Security and Cooperation in Europe (CSCE), provides for freer movement of individuals between the signatories. In particular, the agreement provides for freer movement on the basis of family ties, family reunification, proposed marriages, and personal or professional travel. In addition, further agreements in the CSCE context and changes in Eastern Europe and the former Soviet Union indicate a trend away from obstacles to free travel. In 1994, the CSCE changed its name to the Organization for Security and Cooperation in Europe (OSCE). The new name reflects the development of an administrative structure and...
- It is not in accordance with the law; if the law itself allows for arbitrary practices, or is enforced in an arbitrary way; when it is random or capricious or not accompanied by fair and efficient procedures for its review. It may also be arbitrary if it is disproportionate or indefinite.
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Outline 47 results (showing 5 best matches)
- Chapter 1. History of U.S. Immigration Law and Policy
- § 1–10 Immigration Law as a Consequence of September 11, 2001
- § 2–2.3 Local Enforcement of Federal Immigration Law and “Sanctuary” Policies
- § 2–2.5 Local Enforcement of Local Immigration Laws
- Chapter 3. Administrative Structure of Immigration Law
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Explanatory Notes 1 result
- Immigration law is based considerably upon statutes and regulations. Hence, the text contains frequent references to the principal statutes and regulations, but for reasons of space the citations have been abbreviated in the text. Where both a statute and regulation appear relevant, only the statute is cited. The Table of Authorities contains fuller references to cases, statutes, regulations, and other relevant material.
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Chapter 5. Immigrants 39 results (showing 5 best matches)
- The 1990 Act authorized the immigration of up to 480,000 immediate relatives and persons in family-sponsored preference categories each year. The quota for the numerically-limited family-sponsored preference categories is calculated by subtracting the number of immediate relatives who immigrated in the previous fiscal year from the total allocation of 480,000 and adding the number of unused employment-based visa numbers. INA § 201(c). Regardless of the actual result of this computation, the Act mandates that the family-sponsored immigration quota must be at least 226,000. Due to high levels of immigration by immediate relatives, the quota only rarely exceeds the statutory minimum. Since immigration by immediate relatives is unlimited, the overall number of persons immigrating on the basis of family relationships each year is usually far more than 480,000.
- Under statute, non-citizens who marry while in removal proceedings may not obtain immediate relative or preference status by reason of that marriage until they have resided outside the United States for two years following the marriage date. INA § 204(g). A common exception to this foreign residency requirement applies if the non-citizen establishes by “clear and convincing evidence” that the marriage was undertaken in good faith and not for the purpose of evading immigration laws, and further, that no fee was paid in consideration of the petition. INA § 245(e). The Marriage Fraud Amendments impose criminal penalties for immigration-related marriage fraud of not more than five years and/or not more than $250,000 in fines, and make marriage fraud
- Immigration in the family-sponsored and employment-based categories is also subject to per-country numerical caps; the 1990 Act created a series of calculations necessary to determine these limits. INA § 202. Generally, the per-country ceiling is at least 25,000, and does not count immigration by immediate relatives. In an attempt to ease the backlog of second preference admissions (spouses and minor children of permanent resident aliens), particularly from Mexico, the 1990 Act exempted 75% of the second preference limitation from the per-country limits. In addition, if the quota for employment-based immigration exceeds the demand in that category in any calendar quarter, any remaining openings may be filled without regard to the per-country limits. INA § 202(a)(5).
- In general, immigrants within each preference category are issued visa numbers in the order in which their applications are received. Some countries with high immigration rates may become “oversubscribed” if the number of otherwise qualified applicants in a particular category exceeds the number of people who can immigrate within the per-country limits. To prevent an oversubscribed country’s immigration quota being entirely filled by immigrants in one preference category, the State Department prorates that country’s visa numbers so that the number of people allowed to immigrate in each category is proportional to the worldwide level of immigration in that category. This proration may result in a longer wait for immigrants in some popular categories. The State Department publishes a monthly bulletin that summarizes the availability of visa numbers, and lists any countries that are oversubscribed.
- Once the immigrant actually arrives in the U.S., an immigration officer at the border briefly examines the immigrant’s eligibility for permanent residence. If the inspecting immigration officer finds the immigrant to be inadmissible, the officer may commence removal of the immigrant, in spite of the visa. INA § 221(h). In that case, the immigrant may be temporarily detained, either aboard the vessel of arrival or in the U.S. while further determination is made. 8 C.F.R. § 235.3. If the immigration officer finds the visa to be in order and the immigrant to be admissible, the visa is retained by the CIS as a permanent record of admission. INA § 221(e). The immigrant is then issued a Form I–551 (green card) and becomes a permanent resident alien. “Green cards” (which are no longer green) must be renewed every ten years.
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Chapter 6. Nonimmigrant Visitors and Temporary Workers 28 results (showing 5 best matches)
- Immigration officials submit the personal information of visa applicants to several security watch lists. The Consular Lookout and Support System (CLASS) is one database in which consular officials check the names of visa applicants against records complied by the FBI and other law enforcement agencies. Consular officials also can access the Consular Consolidated Database that stores records of previous visa determinations. Other watch lists include the records kept by the Terrorist Screening Center, the TIPOFF database, the National Automated Immigration Lookout System, the Nonimmigrant Information System, and the Terrorist Threat Integration Center.
- The Legal Immigration Family Equity (LIFE) Act of 2000 created a new V nonimmigrant status for a limited number of relatives of lawful permanent residents who are waiting for an immigration petition to be approved. 114 Stat. 2763. A spouse or child who was the beneficiary of an immigrant petition filed before December 21, 2000, and who has been waiting more than three years to receive an immigrant visa or adjust status may apply for the V status. INA § 101(a)(15)(E). This status allows the nonimmigrant to enter or remain in the United States for up to two years and permits employment. 8 C.F.R. § 214.15. If the nonimmigrant’s immigrant petition or application to adjust to permanent resident status is denied or the nonimmigrant and permanent resident divorce, the person with V status will have thirty days to leave the United States. The V status is no longer available for spouses because, as of August 2008, CIS was processing applications for permanent residents sponsoring spouses...
- implementation of an entry-exit tracking system called for in the IIRIRA; the integration of immigration data systems; a requirement that the State Department issue only machine-readable visas by October 2004, and that persons seeking entry under the visa waiver program carry machine-readable passports by that date; and enhanced screening of nonimmigrant visa applicants who are nationals of countries that have been designated as state sponsors of international terrorism. The Homeland Security Act gives the U.S. Immigration and Customs Enforcement authority to make further regulations governing nonimmigrant visas.
- Generally, all nonimmigrants who are in the U.S. may apply to have their status adjusted to permanent residence status, with the exception of crew member (D) visa holders, J visa holders with the two-year home residence requirement, and most beneficiaries of the visa waiver program. INA § 245. Nonimmigrants other than immediate relatives of U.S. citizens are ineligible to adjust to permanent residence status if they have accepted unauthorized employment or have otherwise failed to maintain lawful immigration status since entering the United States. INA § 245(c). Section 245(k) of the Immigration and Nationality Act limits the restriction of INA § 245(c) by allowing adjustment of status if the nonimmigrant is lawfully present in the United States on the date of filing for adjustment of status through employment and has not failed to maintain lawful status continuously, engaged in unauthorized employment, or otherwise violated the terms and conditions of his or her admission for an...
- Immigration authorities usually treat an application to adjust to permanent residence status as evidence of immigrant intent, which could prevent a nonimmigrant from extending certain nonimmigrant statuses. For this reason, it is advisable to change to a nonimmigrant status that allows dual intent before applying to adjust to permanent residence.
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Chapter 12. Citizenship 64 results (showing 5 best matches)
- Although a majority of the justices agreed that § 101(f)(6) contains no materiality requirement, only three of the justices concurred in Justice Scalia’s opinion holding that denaturalization could not be affirmed under that provision. The question whether Kungys’ misrepresentations constituted false testimony for the purpose of obtaining immigration or naturalization benefits cannot be answered without first resolving two issues: (1) whether Kungys’ misrepresentations constituted “testimony” and (2) whether in making the misrepresentations, Kungys possessed the subjective intent to obtain immigration or naturalization benefits. The latter question is one of fact to be resolved by the trier of fact. Since the case had to be remanded in any event, the Court chose not to resolve the former question of law.
- If the application is initially denied, a new hearing takes place before another immigration officer. INA § 336(a). The applicant’s attorney may take an active part in this hearing, present evidence, subpoena witnesses, make objections, and conduct cross-examination of the government’s witnesses. The hearing is supposed to be scheduled within 180 days after a request is filed; it is tape-recorded or videotaped for purposes of judicial review. Upon consideration of the testimony and review of all documents properly submitted in support or opposition, the immigration officer decides whether the application for naturalization should be granted or denied. If the immigration officer fails to decide the matter within 120 days after the examination, the federal district court may determine the naturalization or remand the matter to the CIS with instructions. INA § 336(b).
- The increasing acceptance of dual nationality reflects changes in the nature of immigration. Until the late twentieth century, difficulties in travel and communication ...a total break from their country of origin. Today, however, immigration need not result in complete or permanent separation from one’s home country. Immigrants may retain property and provide financial support to family in their homelands or remain involved with politics there. Some immigrants intend to resume residence in their country of origin in the future. Some fear the loss of property or inheritance rights that are only available to citizens of their home countries. Consequently, many immigrants may be reluctant to relinquish citizenship in their home countries even though they have acquired the benefits of U.S. citizenship. While the U.S. requires non-citizens to renounce their previous nationality in obtaining naturalization (INA § 337), the effect of this renunciation, and thus the availability of dual...
- . Until 1981, the list of acts that bar a finding of good moral character included adultery. This provision of the INA created great controversy as immigration authorities struggled to define what constitutes adultery and what extenuating circumstances might excuse it. While the law remained in effect, immigration authorities took the position that anyone who had committed adultery would be ineligible for immigration benefits.
- With respect to adultery, the Committee believes that the Immigration Service should not be required to inquire into the sex lives of applicants for naturalization. Such questions clearly represent an invasion of privacy. Furthermore, in testimony before the 96th Congress witnesses concurred in the view that the adultery bar was merely “window dressing” in the law; INS estimated that “7 out of 10 persons today who would admit to that conduct would fall within one or more of the judicial interpretations which excuse that conduct for purposes of naturalization.”
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Chapter 7. Nonimmigrant Students 13 results (showing 5 best matches)
- The first step for a student who wants to study in the U.S. is to gain admission to a school that has received approval to admit foreign students. Schools that can admit F–1 students include colleges and universities, seminaries, conservatories, academic high schools, private elementary schools, and language schools. Community colleges can accept F–1 students or M–1 students depending on the program of study. Vocational schools accept M–1 students. 8 C.F.R. § 214.3. The U.S. Citizenship and Immigration Services (CIS) approves schools to admit foreign students. Each approved school appoints a Designated School Official (DSO), who handles most of the administrative aspects of the F–1 and M–1 programs. The DSO provides immigration officials with information about admitted students through the Student and Exchange Visitor Information System (“SEVIS”). In the wake of September 11, 2001, the U.S. PATRIOT Act mandated the use of SEVIS and the U.S. Immigration and Customs Enforcement (ICE)...
- Included in the Immigration Marriage Fraud Amendments of 1986 was an amendment to INA § 212(a) which increased the sanctions applicable to students who fraudulently or willfully violate the terms of their student status. This amendment provided that any person who fraudulently or willfully misrepresents a material fact in order to procure any benefit conferred by the Immigration and Nationality Act is ineligible to receive a visa and will be denied admission into the United States. Before the 1986 amendment, the language of this provision .... The prior provision did not include as a ground for inadmissibility or denial of a visa the use of fraud to obtain “other benefit[s] provided under this Chapter.” This broad inadmissibility provision could prevent a student from re-entering the United States, either as an immigrant or as a nonimmigrant, if that student misrepresented a material fact in order to qualify for immigration benefits such as permission to be employed...
- The school may authorize employment for the student if satisfied that the work qualifies as curricular practical training. DSOs must report the curricular practical training authorization in SEVIS and immigration officials receive notice of the training authorization through this process. All other types of off-campus employment require independent authorization from immigration officials. In practice, many DSOs interpret the concept of “internship” liberally to permit foreign students an opportunity to gain work experience. A student who receives one year or more of full-time curricular practical training is ineligible for optional practical training. Consequently, curricular practical training is usually authorized for less than one year. Both on-campus and off-campus employment count towards the one-year limit.
- In some circumstances, immigration officials will reinstate the status of students who have remained in the U.S. after their status has expired or have otherwise violated the conditions of F–1 status. Reinstatement is only allowed if the student:
- ...the length of time they remain in the U.S., it is very difficult for immigration authorities to monitor foreign students. While schools are required to maintain records on all foreign students, until recently there was no central repository for most of this information. The 1993 bombing of the World Trade Center raised serious concerns about the activities of foreign students in the U.S. because one of the perpetrators had been a foreign student. In 1996, Congress mandated the creation of a computerized system to track students. IIRIRA § 641. The INS subsequently initiated a pilot test of such a system, which was underway when the September 11, 2001, attacks occurred. At least one of the hijackers involved in those attacks entered the U.S. as a student, and two others had applied for student status. Consequently, the USA PATRIOT Act required all schools that admit foreign students to begin using the system, now known as “SEVIS.” 67 Fed.Reg. 34862. The Homeland Security Act made...
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Advisory Board 11 results (showing 5 best matches)
- Professor of Law, Michael E. Moritz College of Law,
- Professor of Law, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, Hastings College of the Law
- Dean and Professor of Law, Stanford Law School
- Professor of Law, Yale Law School
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Copyright Page 1 result
- Thomson Reuters created this publication to provide you with accurate and authoritative information concerning the subject matter covered. However, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. Thomson Reuters does not render legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
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- Publication Date: October 15th, 2010
- ISBN: 9780314199447
- Subject: Immigration Law
- Series: Nutshells
- Type: Overviews
- Description: This compact, comprehensive title offers an expert overview of the history, constitutional authority, statutory provisions, regulations, structure, procedure, administrative process, and ethical principles of immigration law and practice.
