Immigration Law and Procedure in a Nutshell
Authors:
Weissbrodt, David / Danielson, Laura / Myers, Howard S.
Edition:
7th
Copyright Date:
2017
24 chapters
have results for immigration
Chapter 3 Administrative Structure of Immigration Law 26 results (showing 5 best matches)
- 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 (EOIR).
- , which abolished the Immigration and Naturalization Service and transferred most immigration functions to the Department of Homeland Security. This chapter describes immigration administration after the Homeland Security Act (HSA).
- The Homeland Security Act transferred most of the immigration functions originally delegated to the Attorney General by the Immigration and Nationality Act ( ) 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.
- The Office of the Chief Immigration Judge oversees the more than 58 immigration courts and 260 immigration judges across the United States. Immigration judges preside primarily over removal hearings. Under the Criminal Alien Program, immigration judges may conduct on-site removal hearings in detention and correctional facilities. They may also participate in other adjudications such as proceedings to rescind adjustments of status under INA § 246 8 C.F.R. §§ 215, 215.4, 215.5. Decisions made by immigration judges are final unless appealed to the Board of Immigration Appeals.
- The Department of Justice placed immigration judges under the supervision of the Associate Attorney General when it created the EOIR in 1983. 8 C.F.R. § 3. Between 1983 and 2002, the Associate Attorney General directly supervised immigration judges working in the EOIR. The Homeland Security Act of 2002 placed the EOIR under the control of the Attorney General. HSA § 1101 . The EOIR is charged with interpreting and administering federal immigration laws. The EOIR consists of three components: the Office of the Chief Immigration Judge; the Board of Immigration Appeals; and the Office of the Chief Administrative Hearing Officer. The EOIR is an administrative body, not a court under Article I or III of the Constitution.
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Chapter 9 Removal Proceedings and Relief from Removal 95 results (showing 5 best matches)
- Local law enforcement officials have in the past participated in immigration enforcement activities. In (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.
- ] 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. 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.
- 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.
- In addition, the Code of Federal Regulations provides the immigration judge with the authority to consider claims for discretionary relief and to determine the country of removal. . As a presiding officer in a removal hearing, the immigration judge has the authority to hear motions for postponements, to rule on the admissibility of evidence, to order the taking of depositions if a witness is not readily available and his or her testimony is essential, and to issue subpoenas. . The immigration judge may not, however, exercise authority in matters exclusively under the control of the Department of Homeland Security, even if the immigration judge would otherwise have such authority, including, but not limited to, waivers of inadmissibility, Notices to Appear, and extensions of temporary stay. Finally, if the immigration judge considers him- or herself unqualified to conduct the hearing, he or she may withdraw pursuant to the provisions of ...when the immigration judge performed...
- At the same time as the INS detentions, the Attorney General’s Anti-Terrorism Task Force interviewed some 5,000 students, tourists, and visitors from mostly Middle Eastern countries, seeking information about terrorist activities. Although immigration violations were not the focus of these interviews, interviewers were instructed to notify immigration authorities if they suspected that any interviewee was in violation of status. Additionally, under the National Security Entry/Exit Registration System (NSEERS), male non-citizens from twenty-five designated countries were required to register with immigration officials following September 11, 2001. Of the 82,000 non-citizens who registered under the program, more than 13,000 became subject to removal proceedings based on previous immigration violations. While the government ended the registration portion of NSEERS in 2003, it retains the authority to reinstate the program.
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Chapter 4 The Congressional Role in the Immigration Process 20 results (showing 5 best matches)
- Congress has passed significant immigration legislation since passing the INA in 1952. Major reforms have occurred in 1965, 1980, 1986 (the Immigration Reform and Control Act), in 1990 (the Immigration Act of 1990), in 1996 (the Illegal Immigration Reform and Immigrant Responsibility Act), and most recently, 2002 (the Homeland Security Act).
- The most obvious responsibility of Congress in the immigration arena is considering public legislation. Congress took virtually no action in immigration legislation 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 functioned to exclude Asians, criminals, and the diseased from the U.S.
- 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 Immigration Reform and Control Act of 1986 offers an example of congressional action to establish an amnesty program for some of the hundreds of thousands of undocumented non-citizens in the U.S., to impose criminal sanctions on employers of non-citizens not eligible for legalization, and to provide for stricter border control in the future. The 1990 Act attempted to update family immigration quotas in light of increasing demand and to modernize grounds of inadmissibility. The 1990 Act also set out to 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 ...and procedures for seeking asylum. The 2002 Act demonstrates the power of Congress to alter the structure of immigration agencies,...
- Casework in the immigration area often involves the interests of a U.S. citizen who has filed a petition on behalf of a non-citizen relative or prospective employee. A complaint to a Senator or Representative that one of the immigration bureaus is giving inadequate treatment to a citizen’s petition will normally lead to communication from the member of Congress or the congressional staff to immigration officials. Such communication is occasionally helpful in relieving excessive delays and ensuring that the immigration bureau is enforcing immigration laws in accordance with congressional intent. Members of Congress may, and often do, request a status report on a USCIS petition or request USCIS review of a particular case. Sometimes, the Congressperson will also write a letter in support of a non-citizen, either to the USCIS directly or to a U.S. ...citizen. A Senator or Representative is normally unable to take action that might place a non-citizen applying for an immigration...
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Chapter 10 Refugees and Asylum 35 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.
- 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 and an increasingly large backlog of asylum cases, 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 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 the United States.
- 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. If the BIA conducts a . 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.
- Asylum may be terminated under certain circumstances. An immigration judge or a USCIS asylum officer 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 judge may terminate asylum at any time after the non-citizen has been provided a notice of intent to terminate. The termination may occur in conjunction with a removal proceeding.
- If the burden is met, relief is mandatory. The immigration judge will grant the new CAT form of restriction on removal if the non-citizen meets his or her . As with withholding of removal, CAT relief allows removal to a third country. Both forms of relief are available as affirmative claims to asylum officers and defensive claims to immigration judges. Neither, however, gives the successful applicant the beneficial immigration status that asylum provides. Moreover, receiving deferral of removal relief does not guarantee release from detention. Decisions on a non-citizen’s release are governed by
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Chapter 14 Criminal Aspects of Immigration 35 results (showing 5 best matches)
- In addition to the harsh consequence of removal, non-citizens may face criminal penalties for misconduct related to immigration. Both the Immigration and Nationality Act and portions of the U.S. Criminal Code provide for criminal sanctions related to immigration. 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.
- contains the Immigration and Nationality Act’s perjury provision. INA § 287(b) 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.
- Criminal prosecutions have become a signification part of immigration law. According to latest-available data, criminal prosecutions for immigration offenses rose dramatically from 17,100 prosecutions in 2000 to 85,458 prosecutions in 2012. Moreover, prosecutions for immigration offenses accounted for forty-six percent of all federal criminal cases in 2012. The vast majority of these prosecutions are for unlawful entry or reentry, and roughly ninety percent of immigration cases are brought in the five federal districts located along the United States-Mexico border. While at one time individuals ...removal for such immigration offenses, 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...
- Congress enacted the Immigration Reform and Control Act (IRCA) of 1986 as a response to growing concern that the United States had lost control over the influx of undocumented non-citizens to the country. IRCA attempted to control immigration by creating sanctions for the employment of unauthorized workers.
- These registration requirements have been part of immigration law since the Alien Registration Act of 1940, 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.” ...United States. If the nonimmigrants remain in the U.S., they must report to an immigration office thirty days after arrival and annually thereafter to confirm compliance with the terms...
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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...
- 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.
- 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.
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Index 66 results (showing 5 best matches)
- 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 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.; 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.
- See also Antiterrorism and Effective Death Penalty Act; Department of Homeland Security; Homeland Security Act; Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA); Immigration Act of; Immigration Reform and Control Act; Moral and Policy Issues
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Chapter 1 History of U.S. Immigration Law and Policy 97 results (showing 5 best matches)
- Despite these limits, over 5.2 million immigrants arrived in the 1880s, making relatively uncontrolled immigration a perceived threat to the U.S. economy. As a result, Congress began expanding the list of “undesirable classes,” hoping both to upgrade the type of immigrants and to limit overall entry. An 1891 law added the “diseased,” “paupers,” and “polygamists” to the list of excludable persons. The law also forbade advertising in foreign countries that encouraged immigration to America. In addition, it required immigrants to take medical examinations to determine whether they were “diseased.” A few years later, special boards were established to decide other questions of admissibility under the “quality” restrictions. The 1891 law established the Bureau of Immigration, the forerunner of the Immigration and Naturalization Service (INS) (now the U.S. Citizenship and Immigration Services, the U.S. Immigration and Customs Enforcement, and the U.S. Customs and Border Protection). The...
- Because the earlier “quality control” exclusions did little to stem the flow of immigrants, groups favoring restrictions on immigration began to advocate for literacy as an entrance requirement. In 1907, after several failed attempts to pass a literacy bill, Congress established a joint congressional-presidential commission to study the impact of immigration on the United States. In 1911, the Commission published its findings. It found that twentieth century immigration to the U.S. was significantly different from earlier immigration and that the so-called “inferior” and “less desirable” groups dominated the new immigration. As a result, the Commission concluded that the United States no longer benefited from a liberal immigration policy and suggested imposing further entry restrictions. The Commission recommended a literacy test as one such restriction.
- The Immigration and Nationality Act of 1952 (INA) consolidated previous piecemeal immigration laws into one comprehensive statute. As amended, the 1952 Act provided the foundation for immigration law in effect today.
- Having dealt with the politically achievable issues surrounding illegal immigration in 1986, Congress was more free to address the problems arising from deficiencies in the legal immigration structure. In 1990, Congress passed a series of amendments to the Immigration and Nationality Act, collectively referred to as the Immigration Act of 1990 (“1990 Act”; also known as “IMMACT 90”). IMMACT 90 primarily reformed the rules pertaining to the ), which focused primarily on illegal immigration. IMMACT 90 was followed by the Immigration Technical Amendments Act of 1991, which modified some of the provisions in the 1990 Act and clarified certain aspects of the new quota system. The framework established by these two acts remains largely intact today and their provisions are treated in their proper context throughout this book. This section presents a synopsis of the most prominent changes made by the 1990 Act and the Technical Amendments.
- The most visible feature of IMMACT 90 was the increase in the numerical limitation system, or overall immigration allowed, by approximately 35%. IMMACT 90 established an annual limit for worldwide immigration of 700,000 for three years; the limit decreased to 675,000 thereafter. Other provisions of the 1990 Act allowed immigration of groups not counted in the 700,000, and a separate law permitted admission of as many as 125,000 refugees, so the actual worldwide immigration limit was closer to 800,000.
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Preface to the Seventh Edition 7 results (showing 5 best matches)
- 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 (7th ed. 2011); Richard Boswell, Immigration and Nationality Law: Cases and Materials (4th ed. 2010); and Stephen Legomsky and Cristina M. Rodriquez, Immigration and Refugee Law and Policy (6th ed. 2015). It was gratifying to see that several parts of this Nutshell were reprinted and other views reflected in those coursebooks.
- 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.
- 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 immigration statutes in 1996, 2001, 2002, 2005, and 2010, immigration law and procedures have undergone significant change. On top of those legislative changes, the Obama administration has fostered significant executive actions. 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 seventh edition of this text is organized in six parts to reflect these changes and make them as comprehensible and accessible as possible.
- —chapters 14 through 17—identifies several ethical issues which immigration lawyers confront and which may help to clarify for students the nature of the immigration process. Chapters 16 and 17 contain a brief conclusion and a bibliography.
- 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.
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Chapter 15 Ethical Dimensions of Immigration Practice 20 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 frequently face issues of dual representation. Hence, the student of immigration law should be aware of the ethical dimensions of an immigration practice.
- 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?
- 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?
- A situation that frequently confronts the immigration lawyer is when the attorney becomes aware, through discussions with the client, independent investigation, or other outside sources, that the client is not observing his or her visa conditions. For example, a student-client with an F-1 visa accepts employment outside the educational institution without the requisite permission. Under these circumstances, what is the lawyer’s obligation to (a) report the client’s violation of immigration status to the immigration authorities, and/or (b) advise the client as to the possible consequences of accepting employment?
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Chapter 17 Bibliography 107 results (showing 5 best matches)
- 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
- Immigration & Nationality Law Handbook
- For articles about immigration law, policy, and procedure, the should be consulted under the following headings: Emigration & Immigration; Deportation, Citizens & Citizenship; and Aliens. The following periodicals are of continuing interest in the area of immigration.
- Transnational Immigration Law Reporter
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Chapter 2 The Source and Scope of the Federal Power to Regulate Immigration and Naturalization 61 results (showing 5 best matches)
- Lower courts have upheld state and local enforcement of the criminal provisions of federal immigration law. 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. Disputes remain, however, concerning the authority and role of state and local authorities in enforcing the civil provisions of federal immigration policy.
- Throughout the history of the United States, the Supreme Court has upheld all manner of federal statutes regulating immigration but has precluded states from passing legislation that directly impinges on the federal dominion over immigration. The Supreme Court’s basis for action is clear in the field of naturalization. specifically grants Congress the power to establish a “uniform Rule of Naturalization.” By expressly allocating this power to Congress, the Constitution prevents states from bestowing citizenship. The Constitution is not explicit in providing the federal government the power to deny admission or remove non-citizens. Hence, in deciding the early immigration cases, the Supreme Court faced the problem of identifying the source of the federal ...power over immigration. Later cases considered the plenary power of Congress to be an aspect of an inherent sovereign power. Some scholars have argued that such plenary power is susceptible to abuse, often at the expense of...
- Other theorists suggest sources of federal immigration power that lie somewhere between the explicitly delegated powers of the Constitution and the inherent powers. The “Rule of Necessity,” for instance, suggests that because federal power over immigration is
- First, the power to regulate immigration is essential to a nation’s self-preservation rooted in control over its national territory. Without such control, a nation would be unable to govern itself and its borders effectively, and as a result, would be subject to the sovereignty of other nations. The power to regulate immigration is therefore inherent in the Constitution’s creation of a sovereign nation.
- Second, the power to regulate immigration is essential to the process of national “self-definition,” a process by which a nation’s citizens determine the values espoused by the nation, and hence, formulate the nation’s identity. By determining who will comprise the nation and participate in creating the nation’s identity, immigration laws constitute the process of self-definition itself. Although the process of national self-definition may be characterized as racist, discriminatory against outsiders, and otherwise unjust, it is an essential characteristic of a sovereign nation. These theories of self-preservation and self-definition mandate broad federal powers over immigration.
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Chapter 8 Grounds of Inadmissibility and Removal 37 results (showing 5 best matches)
- Relatively minor crimes that could result in inadmissibility might not come to the attention of immigration authorities until a permanent resident returns to the U.S. after traveling abroad, at which time he or she could be denied entry. Permanent residents who have criminal records should therefore exercise caution in making any trip abroad, seeking new immigration benefits, or applying for citizenship.
- 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 were not aware of the severe consequences of criminal convictions for non-citizens who may, in some cases, be the sole supporter of U.S. citizen or permanent resident family members. In many cases, the rehabilitative and punitive purposes of prosecuting and sentencing can be achieved through imposing a stronger sentence for a lesser level crime without causing collateral unwanted immigration consequences.
- . 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.
- In fiscal year 2016, there were 138,669 removals based on criminal grounds, accounting for 58% of all formal removals. Drug crimes and immigration violations were the most common charges. Removal for criminal conduct applies only after a conviction. The conviction must be final; hence, a non-citizen may not be removed while a direct appeal is pending. Given the wide variation in statutes among the states, the federal courts struggled for some time to create a uniform definition of “conviction” for immigration purposes.
- that because of the new definition of conviction, expungement under a state rehabilitative statute does not cancel a conviction for immigration purposes. The Board reasoned that giving effect to the various state rehabilitation statutes would conflict with Congress’ desire for a uniform immigration standard. The Ninth Circuit subsequently reversed this decision as applied to first-time drug offenses, finding that it conflicted with the Federal First Offender Act. . The BIA then held that a judgment vacated through a mechanism other than a rehabilitative statute would not be considered a conviction for immigration purposes. if the court vacates the conviction based on a defect in the conviction or proceedings; because the Canadian court quashed the conviction solely for immigration procedures, the non-citizen had a conviction. The BIA has also held that a judgment deeming someone a youthful offender or juvenile delinquent is not a conviction.
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Preface: New Challenges to Immigration Law 17 results (showing 5 best matches)
- President Trump’s campaign criticized “sanctuary cities” as places that support illegal immigration and refused cooperation with immigration enforcement and national security. Sanctuary cities may limit their cooperation by, for example, refusing to ask residents for their immigration status or refusing to detain residents simply because of their undocumented status. President Trump has pledged that one of the top priorities in office is to “cancel all federal funding to sanctuary cities.” He took the first step in his Executive Order entitled, “Enhancing Public Safety in the Interior of the United States.” This Executive Order also specified certain enforcement priorities, provided for hiring 10,000 additional immigration officers, encouraged state and local law enforcement authorities to be empowered to enforce federal immigration laws under agreements entered into under INA § 287
- While most of this volume focuses on the broad structures, norms, and procedures of immigration law developed over decades, President Donald Trump and his new administration have brought particular attention in 2017 to several aspects of immigration law. President Trump made immigration law and policy a focal point of his campaign. Speaking to his supporters, President Trump promised to “prioritize the jobs, wages and security ,” by “establish[ing] new immigration controls to boost wages and to ensure that open jobs are offered to American workers first.” To achieve these goals, President Trump pledged to build a “wall” along the United States-Mexico border; to deport millions of immigrants living in the United States; to repeal President Obama’s key executive actions like
- U.S. Citizenship and Immigration Services (USCIS), under the directive of the DHS, holds all the information DACA recipients have provided to receive deferred action. Immigration and Customs Enforcement (ICE), also under the DHS control, is responsible for enforcing the country’s immigration laws. Given that there are currently no protections that would prevent USCIS from handing over all its information to ICE, it is foreseeable that, if President Trump chooses to revoke DACA, a removal effort to deport DACA deferred action status recipients may follow. In addition, DACA recipients, even if not removed from the United States, may lose work permits gained through deferral under DACA. It is not certain whether President Trump will prioritize the repeal of President Obama’s executive actions in the early months of his presidency. Thousands of futures await the next step from the President who promised to remove immigration law achieved in recent years.
- As soon as the 115th Congress convened, legislative activity began to change the immigration system. As of this writing, there were more than 100 immigration-related bills introduced in the early days of the 115th Congress. Some actions would overrule or refuse to fund President Trump’s Executive Order banning the entry of certain individuals from the United States; reforming the H-1B, H-1A, and L nonimmigrant visa classifications; modifying the treatment of unaccompanied children who are in federal custody because of their immigration status; punishing so-called “Sanctuary jurisdictions” by limiting federal funding, deploying enhanced technology along the Southern border with Mexico, reducing the overall numbers of entrants by one-half reductions in family immigration, cutting the number of entering refugees in half, and eliminating the Diversity Visa Lottery, while increasing the employment-based visa classifications, and eliminating the Diversity Visa, and increasing the...
- was decided by the U.S. Court of Appeals for the Fifth Circuit on November 9, 2015, and then affirmed by an equally divided U.S. Supreme Court on June 23, 2016. DHS may rescind compliance with President Obama’s Executive Order. DACA currently protects more than 700,000 undocumented migrants who came to the United States as children. Those individuals who qualified for DACA had to prove they were under the age of 31 as of June 15, 2012, and came to the United States before age 16, lived in the United States continuously for at least five years, attended or graduated from high school or college, and have no criminal convictions. U.S. Citizenship and Immigration Services (USCIS), under the directive of the DHS, holds all the information DACA recipients submitted as part of their application process. Immigration and Customs Enforcement (ICE), also under the DHS control, is responsible for enforcing the country’s immigration laws. Given that there are currently no protections that would...
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Chapter 13 The Rights of Non-Citizens in the United States 53 results (showing 5 best matches)
- In general, removal hearings, like judicial proceedings, are open to the public and the press, except for cases involving spousal abuse or child abuse. In 2001, Chief Immigration Judge Michael Creppy directed immigration courts to close hearings of “special interest” cases involving non-citizens suspected of having information about the September 11th attacks. Further, immigration courts were not to list these cases on courtroom calendars or in the immigration courts’ automated telephone information service. In support of the closure, the government argued terrorists might use information revealed in such hearings to plan future attacks against the U.S., that they might try to disrupt the hearings, and that non-citizens in such hearings would more readily cooperate with the government if the hearings are closed.
- In 2010, the Arizona legislature passed the Support Our Law Enforcement and Safe Neighborhoods Act, which mandates state and local officials to verify the immigration status of anyone with whom they come in contact. One week later, the legislature passed an amendment, which limited investigation of status to a “lawful stop, detention or arrest.” Legal challenges, including one by the federal government, raised extensive questions about the power of states to supplement what they see as a broken federal immigration system. The United States Department of Justice filed a lawsuit against the state of Arizona asking that the law be declared invalid because it interfered with the immigration regulations “exclusively vested in the federal government.” On June 25, 2012, the Supreme Court issued a ruling in the case ...justices agreed to uphold the portion of the law allowing Arizona state police to investigate the immigration status of an individual during a “stop, detention, or arrest”...
- From November 2001 through March 2002, the Department of Justice interviewed approximately 8,000 men between the ages of eighteen and thirty-three, primarily from Muslim and Arab backgrounds, who were present in the United States on nonimmigrant visas. The interviews were primarily intended to find people with information about terrorist activities, but the questioners were also instructed to report to immigration officers any interviewee whom they suspected of violating immigration laws. In similar circumstances, the D.C. Circuit in 1979 upheld a special registration rule applied to Iranian students during the Iran hostage crisis. . Although the rule differentiated on the basis of national origin, the court applied only rational basis scrutiny, deferring to the Attorney General’s power over immigration, and the President’s power over foreign affairs.
- For many non-citizens, a driver’s license is a necessity, without which they cannot 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 restrictive driver’s license 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
- On the one hand, persons seeking admission into the United States have virtually no rights under United States law. The judiciary is reluctant to interfere with Congress’s authority over immigration matters. As a result, Congress and immigration officials lawfully exercise a great deal of discretion in establishing and applying immigration law, controlling the hopeful immigrant’s application for admission. Far from having any right to admission, an individual is granted admission exclusively on the terms prescribed by Congress. In determining eligibility for admission, Congress has the authority to discriminate with impunity. Congress has done so on the basis of national origin and race, and currently employs a system of
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Chapter 5 Immigrants 37 results (showing 5 best matches)
- 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 typically results 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.
- 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. Immigration by immediate relatives is not limited, and the overall number of persons immigrating on the basis of family relationships each year, therefore, is usually far more than 480,000.
- The Immigration Marriage Fraud Amendments of 1986 attempted to deter immigration-related marriage fraud. The Fraud Amendments impose a two-year conditional residency requirement on non-citizen spouses and their “sons and daughters” before they may obtain permanent resident status on the basis of a “qualifying marriage” to a U.S. citizen or permanent resident. The requirement only applies if the marriage is less than two years old at the time the non-citizen seeks permanent resident status. To remove the conditional status, the couple must file a petition within the last ninety days of the conditional status period. An immigration officer will remove the condition based on the couple’s documentation. Alternatively, an immigration officer may interview the couple. The purpose of the interview is to ascertain that (a) the “qualifying marriage” was not entered into “for the purpose of procuring an alien’s admission as an immigrant;” (b) the marriage has not been judicially annulled or...
- Immigration authorities must also terminate the non-citizen spouse’s conditional resident status if the couple fails to file the petition or to appear at the interview, unless the non-citizen qualifies for a waiver. INA § 216(c) ), so that non-citizens would not have to remain in abusive relationships in order to maintain their immigration status. Immigration regulations, which were intended to prevent fraudulent abuse claims, state that non-citizens should support the waiver petition with evidence such as police reports or professional evaluations. . Immigration authorities must nonetheless consider any credible evidence of abuse presented by petitioners. INA § 216(c)(4)
- Immigration in the family-sponsored and employment-based categories is also subject to per-country numerical caps. plus 140,000 persons in the employment based category. The limit does not count immigration by immediate relatives. In an attempt to ease the backlog of second preference admissions (spouses and minor children of permanent residents), 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)
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Chapter 12 Citizenship 32 results (showing 5 best matches)
- 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)
- . 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.
- Because seemingly minor convictions can be a bar to naturalization and even expose an individual to the threat of removal, a non-citizen who has been convicted of one of these crimes should consider carefully whether to seek naturalization. Often these crimes only come to the attention of immigration authorities because of the non-citizen takes some action, such as applying for citizenship.
- The revocation statute also reserves to immigration authorities the power to reopen or vacate naturalization orders. INA § 340(h) . In accordance with this provision, the INS in 1996 instituted a procedure known as “administrative denaturalization.” This procedure, which the Service was later enjoined from using, enabled INS district directors to revoke a person’s citizenship if they had “clear, convincing, and unequivocal evidence” that the INS granted the person’s application by mistake or the person concealed or misrepresented a material fact. Immigration regulations required the district director to serve the naturalized citizen with notice of intent to reopen the naturalization proceedings. If the citizen did not request a hearing within sixty days, his or her citizenship was revoked. An individual whose citizenship was revoked could appeal to the INS Office of Examinations, Administrative Appeals Unit and could seek judicial review of an adverse decision from that agency.
- ...Court decided in favor of the government on this issue, holding that § 101(f)(6) does not contain a materiality requirement for false testimony for the purposes of determining whether naturalization was “illegally procured” because of a lack of good moral character. In the Court’s view, lack of good moral character is present to some degree whenever there is subjective intent to deceive, no matter how immaterial the deception. The Court pointed out, however, that “testimony” is limited to oral statements made under oath and that the false testimony provisions do not apply to “concealments.” Section 101(f)(6) applies to only those misrepresentations made with the subjective intent of obtaining immigration benefits, and this intent must be proven by clear, unequivocal, and convincing evidence. The Court concluded that it would be “relatively rare that the Government will be able to prove that a misrepresentation that does not have the natural tendency to influence the decision...
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Chapter 7 Nonimmigrant Students 13 results (showing 5 best matches)
- . The U.S. Citizenship and Immigration Services (USCIS) approves schools to admit foreign students. Each approved school appoints a Designated School Official (DSO), who handles 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. The U.S. Immigration and Customs Enforcement (ICE) uses the system to monitor foreign students while they are in the United States. Apart from monitoring students through SEVIS, immigration officials have very little involvement with foreign student programs. Foreign students must pay a SEVIS fee along with their visa application, the amount of which varies depending on the student visa classification.
- 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.
- Immigration officials may 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:
- Included in the Immigration Marriage Fraud Amendments of 1986 was an amendment to INA § 212(a) benefit conferred by the Immigration and Nationality Act is ineligible to receive a visa and will be denied admission into the United States. Before it was amended in 1986, the language of this provision applied only to individuals who obtained a visa or other documentation or sought to enter the United States through the use of fraud or willful misrepresentation. 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.” The amended 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 or permission to take less than a full course of study.
- Because of their numbers and the length of time they remain in the U.S., it is difficult for immigration authorities to monitor foreign students. While schools maintain records on all foreign students, until SEVIS 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 Homeland Security Act made U.S. Immigration and Customs Enforcement (ICE) responsible for SEVIS. ICE currently maintains SEVIS through its Student and Exchange Visitor Program (SEVP).
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Chapter 6 Nonimmigrant Visitors and Temporary Workers 21 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), for example, allows consular officials to check the names of visa applicants against records complied by the FBI and other law enforcement agencies. Consular officials also can access the records of previous visa determinations using the Consular Consolidated Database. 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 measures mandated by these Acts include 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, and that persons seeking entry under the visa waiver program carry machine-readable passports; 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.
- 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 visas. For this reason, it is advisable to change to a nonimmigrant status that allows dual intent before applying to adjust to permanent residence.
- Some labor organizations and other groups have expressed concerns regarding H-1B status, chiefly that nonimmigrants take jobs away from U.S. workers, that the availability of foreign workers depresses wages in the U.S., and that nonimmigrants are vulnerable to exploitation by employers who control their immigration status. The 1990 Act addressed the first two concerns by requiring employers petitioning for an H-1B worker to file a Labor Condition Application with the Secretary of Labor. INA § 212(n) ...dispute or lockout exists at the place of employment. A copy of the application must be conspicuously posted at the principal place of work for ten business days. Adversely affected parties can challenge an employer’s assertions in accordance with complaint procedures established by the Secretary of Labor. Civil penalties, backpay awards, and debarment from filing other immigration petitions may be assessed for successful complaints. In addition, employers must pay a $500 fee,...
- The Legal Immigration Family Equity (LIFE) Act of 2000 created a new V nonimmigrant status for a very limited and now obsolete number of relatives of lawful permanent residents who are waiting for an immigration petition to be approved. 114 Stat. 2763
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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 a 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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- The United States’ obligations under Protocol 4 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. In expedited removal proceedings (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)
- International Labor Organization (ILO) Conventions and recommendations protect the rights of all workers irrespective of citizenship. Several ILO conventions and recommendations, however, specifically protect migrant workers and their families. In 1949, the ILO promulgated Convention No. 97 concerning Migration for Employment and the related Recommendation No. 86 concerning Migration for Employment. These two instruments provide: safeguards against misleading information relating to emigration and immigration; assurance of medical services for migrants; a prohibition against discrimination in regard to conditions of employment, trade union membership, social security, and taxes; a prohibition against returning a migrant to his or her country of origin after he or she was admitted on a permanent basis, but is no longer able to work by reason of illness; and similar protections for migrants.
- ...does not have a right to enter another nation. Special travel rights are, however, given to stateless persons 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...
- ...right of every nation to exclude non-citizens, or to place upon their entrance whatever restrictions the nation may want. Most nations place great 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 deemed physically, medically, morally, or socially undesirable. Although international human rights treaties do not grant individuals the right to enter any nation other than their own, 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 states and the Civil and Political Covenant and European Convention on Human...
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Outline 28 results (showing 5 best matches)
- Publication Date: June 22nd, 2017
- ISBN: 9781683288985
- Subject: Immigration Law
- Series: Nutshells
- Type: Overviews
- Description: This compact, comprehensive title offers a thorough overview of the history, constitutional basis, statutory structure, regulatory provisions, administrative procedure, and ethical principles related to immigration law and practice. Updated to reflect developments since the 2016 Presidential election, it is valuable both as a teaching and a practice reference.
