Notes

Outline

Presentation to Southwestern Association of Law Libraries by Paul Zoltan, Esq. Rodney Malpert, Esq.

Immigration Actors Congress Plenary power; no ex pos facto limitations State Department Consular Absolutism INS Admission, status determinations, removal, citizenship Services and enforcement will be split? Department of Labor Protects U.S. workers from effects of some immigration Federal Courts Limited jurisdiction; deferential review State Government Limited and controversial role Employers Employment eligibility verification (I-9)

Admission Visa – Issued by Consulate, permits alien to request admission in specified status at port-of-entry Status – INS admits into a status Change of Status – By INS

Nonimmigrants Temporary admission for specific purpose - examples: B - Tourists and business visitors (length of stay is hot issue) F - Students (tracking is hot issue) K – Fiancés of U.S. citizens Numerous employment statuses

Nonimmigrant Employment Statuses Examples: F – One year of post graduation employment allowed H-1B – Controversial, for positions requiring Bachelor’s L – Intracompany transfers O – People who are outstanding in field E – Investors who create U.S. jobs

Permanent Residence (“GREENCARD”) Indefinite authorized stay in U.S. General employment authorization Export Control License not required May sponsor some relatives for PR

Employment-Based Permanent Residence Equal number for all countries Step I: Labor Certification (DOL) Demonstrate no minimally qualified U.S. workers available Can take 1-4 years Reform is hot topic Step II: Classification petition with INS Step III: Adjustment of Status with INS (245(i) to avoid 3/10 year bars is hot topic) or Consular Processing

Family-Based Permanent Residence Equal numbers for each country create longer wait lists for high-demand countries Higher “preference categories” generally have shorter wait lists

Family-Based Permanent Residence Immediate relatives of U.S. Citizens = no quota “Preference Categories” for quotas 1st     Unmarried adult children of U.S. citizens 2A     Spouses, minor children of PRs 2B     Unmarried adult children of PRs 3rd     Married adult children of citizens 4th       Siblings of adult citizens

Citizenship Full membership in political community Voting Jury service Full constitutional rights All government jobs Not removable

Paths to Citizenship Birth – Jus soli, not jus sanguinis Mere birth in U.S. (even to illegally present parents) Birth outside U.S. to U.S. parents who have lived in U.S. Naturalization – May apply after five years of PR with 2.5 year years of “physical presence”; 3/1.5 for spouses or U.S. citizens Dual Citizenship Allowed

Asylum INA § 208(a) says must be “refugee” INA § 101(a)(42) defines “refugee”: “any person who is outside any country of such person's nationality… and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion” 8 CFR § 208 lists procedures for applying, describes burden of proof Related benefits: withholding of removal Convention Against Torture (CAT)

Removal Proceedings “Admission” fiction: excludability vs. deportability  INA § 212(a): Health Criminal activities/convictions Crimes involving moral turpitude Controlled substances Security Immigration violations  INA § 237(a) Immigration violations Criminal activities/convictions Firearms Domestic violence “Aggravated felonies” INA § 101(a)(43) Security

Defenses Against Removal Adjustment of status Cancellation of removal Asylum, withholding, CAT

Detention INA § 236(c): The Attorney General may release an alien described in paragraph (1) [deportable or inadmissible for virtually any criminal ground] only if the Attorney General decides… that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding. Unconstitutional as applied to permanent residents: Kim v. Ziglar, 99-17373 (9th Cir. Jan. 9, 2002)

Judicial Review INA § 242 (post-Illegal Immigration Reform and Immigrant Responsibility Act, or IIRIRA): No court has jurisdiction to review “any judgment regarding the granting of relief under INA §§ 212(h) (waiver of inadmissibility for criminal grounds], 212(i) [waiver of inadmissibility for fraud or misrepresentation], 240A [cancellation of removal], 240B [voluntary departure], or 245 [adjustment of status].” No court may review any other decision or action of the Attorney General which is discretionary under the statute, except with respect to asylum. Other constraints on judicial review: Decisions by the Attorney General denying waivers; concerning detention or the terms of release; and with respect to voluntary departure, or stay of removal pending consideration of voluntary departure all non-reviewable.