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

1^st    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

4^thSiblings 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 (9^th 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.


	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)


	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



	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


	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


	Indefinite authorized stay in U.S.
	General employment authorization
	Export Control License not required
	May sponsor some relatives for PR


	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


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


	Immediate relatives of U.S. Citizens = no quota
	“Preference Categories” for quotas
		1^st 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
		4^thSiblings of adult citizens


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


	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


	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)


“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


	Adjustment of status
	Cancellation of removal
	Asylum, withholding, CAT


	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 (9^th Cir. Jan. 9, 2002)


	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.