Final Flashcards
Chae Chan Ping v. U.S.
US has power to regulate immigration under international law (essential to being a sovereign nation)
Political branches of federal government have plenary power over immigration without judicial review
Mathews v. Eldridge 3-Factor Balancing Test
- Is a private interest affected by official action?
- What is the government’s interest (including the burden that additional procedure would entail)?
- What is the risk of erroneous deprivation of the private interest using currently available procedure?
Knauff
Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned
Mezei
Ellis Island is not entry to US but an act of legislative grace
Detention is not constitutionally significant
Landon v. Plasencia
Exclusion hearings can be held for LPRs and they are entitled to due process in these situations
Rational Basis
Is the law/policy rationally related to a legitimate government interest?
Intermediate Scrutiny
Is the law or policy substantially related to an important government interest?
Strict Scrutiny
Is the law or policy narrowly tailored to a compelling government interest?
Facially Legitimate and Bona Fide
Used when the person is outside of the US and affected by government action
Immediate Relative
A parent, spouse, or child of a US citizen
F1
The unmarried son or daughter over the age of 21 of a US Citizen
F2A
Spouse or children under the age of 21 of an LPR
F2B
Unmarried children over the age of 21 of an LPR
F3
Married sons or daughters over the age of 21of a US citizen
F4
The brother or sister of a US citizen
Child Status Protection Act: Immediate Relatives
Ages are frozen at the time the visa petition is filed
Child Status Protection Act: F2A Children of LPRs
Relevant age is age when the visa becomes available minus the amount of time it took to process the visa application
What happens when 2A ages out?
Automatic conversion to 2B, they keep their original priority date + no need to refile
IMFA Conditional Permanent Residence
If the marriage is less than 2 years old when a noncitizen receives LPR status as an immediate relative, F2A or Fiancé, the noncitizen gets conditional residence
Petition to remove conditional status
LPR and spouse must jointly file for removal of conditional status and appear at an interview
Hardship Waiver for Removal following conditional permanent residence
- Removal would result in extreme hardship
- The marriage terminated and the applicant is not at fault for failing to meet the IMFA requirements, or
- Instances of battery or extreme cruelty
Subsequent marriage petitions
If someone became an LPR based on a prior marriage, DHS can’t approve the LPR’s petition for a new spouse until 5 years after the first person first attained LPR status, unless the person can prove by clear and convincing evidence that the prior marriage was not entered into to evade immigration laws
EB-1: Priority Workers
-Person’s with extraordinary abilities in the sciences, arts, education, business, or athletics (self-petition, no labor cert. required)
-Outstanding professors and researchers (employer must petition, labor certification required)
-Certain multinational managers/executives (employer must petition, labor certification required)
EB-2: Advanced Degrees/Exceptional Ability
-Advanced degree or equivalent (bachelor’s degree + 5 years of post-bachelor’s progressive work in the field)
-Exceptional ability in the sciences, business, or arts
-Expertise is significantly above that ordinarily encountered
EB-3: Skilled Workers, Professionals, Unskilled Workers
-Skilled workers: 2 years job experience, education, or training that meets job requirements
-Professionals: Bachelor’s degree (normally required for the job) or foreign equivalent
-Unskilled workers: ability to perform unskilled labor that requires less than 2 years training/experience
EB-4: Special Immigrants
-Religious workers
-Special Immigrant Juveniles
-Certain broadcasters
-Certain government employees
EB-5: Immigrant investors
-Investment of $1,000,000 + hire 10 USCs, or
-Investment of $500,000 in a rural area or regional center and hire 10 USCs
Inadmissibility: Crimes Involving Moral Turpitude (CIMT)
Any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a crime involving moral turpitude or an attempt or conspiracy to commit such crime is inadmissible
Inadmissibility CIMT Exception: Minors
Does not apply when the noncitizen committed only one crime, AND
The crime was committed when the noncitzen was 18 and the crime was committed more than 5 years before the date of the application
Inadmissibility CIMT Exception: Penalty Time
Does not apply when the noncitizen committed only one crime, AND
The maximum penalty possible did not exceed imprisonment for 1 year and the noncitizen was not sentenced to a term in excess of 6 months
Inadmissibility: Controlled Substances
Any Alien convicted of, or who admits having committed a violation of any law relating to a controlled substances is inadmissible with no exceptions
Inadmissibility: Multiple Convictions
Any alien convicted of 2 or more offenses… for which the aggregate sentences to confinement were 5 years or more is inadmissible
Inadmissibility Waiver for Certain Criminal Grounds
-It has been 15 years since conviction and the admission is not contrary to national welfare, or
-LPR or USC spouse, parent, or child will suffer extreme hardship if the waiver is not granted and rehabilitation is not contrary to national welfare
-VAWA self-petitioner and DHS consented to allow noncitizen apply for waiver
Inadmissibility Waivable Offenses
-CIMT
-Single offenses of simple possession (30g or less of marijuana)
-Prostitution
-Multiple convictions where aggregate sentence was 5 years or more
-Serious Criminal offenses where immunity was granted
Adjustment of Status
Requires person already in the US be
-Inspected/admitted or paroled in US
-Admissible to US for permanent residence
-An immigrant visa is immediately available at the time the application is filed
Deportability: CIMT One Conviction
-Crime is committed within 5 years of admission
-Sentence of 1 year or more MAY be imposed
Deportability CIMT Multiple Convictions
Not arising from a single criminal scheme
Deportability: Controlled Substances
Any time after admission convicted of a violation of a law relating to a controlled substance other than a single offense involving possession for personal use of 30g or less of marijuan
Deportability: Drug Abuser or Addict
Anyone who at any time after admission has been a drug abuser or addict
Deportability: Aggravated Felony Examples
-Murder, rape, sexual abuse of a minor
-Trafficking in a controlled substance
-Firearms offense or burglary offense with term of imprisonment at least one year
-Crime of violence with term of imprisonment at least 1 year
-Fraud offense with loss to victim of at least $10,000
Consequences of Aggravated Felony
-No time limit
-Ineligible for most forms of relief from removal (can’t obtain asylum, cancellation of removal, or VD)
-Not entitled to ordinary judicial review of removal orders (except for constitutional questions and issues of law)
-Permanent bar from re-entering US unless they get discretionary waiver
-Mandatory detention
-Enhanced criminal sentence for subsequent crime if previously removed for AF
-If they return without permission after AF removal, 20 years in US prison before deportation
Deportability: DV, Stalking, Child Abuse
Any crime of violence against current or former spouse; person with whom noncitizen shares child; person who cohabited with noncitizen; or stalking, child abuse, neglect, or abandonment
Deportability: Firearms or Destructive Device Conviction
Conviction for violation of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or attempting or conspiring to purchase, sell, offer for sale, exchange, use, possess, or carry any weapon, part or accessory of a firearm or destructive device
Deportability: Violation of Protective Order
Court finding of violation of protective order
-Waiver available under 237(a)(7)(A)
Deportability: False Claim to US Citizenship
Noncitizen falsely represents themself to be a USC for any purpose or benefit under immigration law or any state or federal law
-Exception:
—each natural or adoptive parent is or was a citizen;
—permanently resided in US before age 16
—Noncitizen reasonably believed at time of representation that they were a USC
Deportability: Document Fraud
Forging documentation for the purposes of satisfying immigration requirement or obtaining immigration benefit
Deportability: Alien Smuggling
If alien smuggling occurred before, at, or within 5 years after any entry
Alien Smuggling Exception
-If they were present in US prior to May 5, 1988
-Committed the act prior to that date
-Aided only someone who at the time was the person’s spouse, parent, or child
-Seeking admission through immediate relative or second preference relative, or to otherwise apply for benefits under family unity program
Alien Smuggling Waiver
-Alien who engaged in smuggling must be LPR
-Person who was smuggled must be the LPR’s spouse, parent, son, or daughter
-Discretionary waiver for humanitarian purposes to assure family unity, or when otherwise in public interest
When is a statute divisible?
If the law requires that the prosecution specifically charge the alternative and that the jury has to unanimously agree on that alternative to convict
Nijhawan v. Holder
$10k loss doesn’t have to be part of underlying criminal statute; rather judge should inquire into specific facts to determine whether loss occurred
Categorical Approach: Step 1
Is there a categorical match between the statute of conviction and the ground of removability?
If yes, Immigrant loses
If no, proceed to step 2
Categorical Approach: Step 2
Is the statute of conviction divisible (does the statute encompass multiple offenses)?
If no, immigrant wins
If yes, proceed to step 3
Categorical Approach: Step 3
Does the record of conviction establish that the offense of conviction falls within the removal ground?
If no, immigrant wins and can’t be deported under that ground
If yes, immigrant loses and is deportable under that ground
Gonzales v. Duenas-Alvarez
Origin of Realistic Probability Test: requires a realistic probability, not a hypothetical possibility that the state would apply its statute to conduct that falls outside the generic definition of a crime
Realistic Probability Evidence
-Published or unpublished decisions describing a conviction under the statute based on the conduct
-Criminal court records
-Affidavits from criminal defense counsel or prosecutors stating they have seen the conduct prosecuted
Pereida v. Wilkinson
An applicant for relief has the burden of producing evidence to prove that they were not convicted of an offense that’s a bar to relief
Crime of Violence
An offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another for which the term of imprisonment is at least one year
Leocal v. Ashcroft
Conviction for DUI under FL law required physical destruction of property but specified no mens rea is not a crime of violence (crime of violence use of force must be more than innocent, negligent, or reckless)
Sessions v. Dimaya
Elements clause is what is used for crime of violence definition
Residual clause that requires “by its nature, involving a substantial risk” is unconstitutionally vague and no longer used in removal cases
Cancellation of Removal: Part A
Cancellation of Removal for certain LPRs
1. LPR for at least 5 years
2. Continuously resided in US for 7 years after having been admitted in any status, and
3. No aggravated felony conviction
Termination of Continuous Period
Continuous residence or physical presence is deemed to end when
-Noncitizen is served with notice to appear (doesn’t apply to VAWA cancellation) or
-Noncitizen has committed an offense that renders them inadmissible or removable
-whichever is earliest
Cancellation of Removal: Part B
Non-LPR Cancellation
-Available to anyone who isn’t an LPR, including people who entered illegally or overstayed their visa and are undocumented
Available whether charged with inadmissibility or deportability grounds
-Continuous physical presence for at least 10 years immediately preceding the date of application
-Good moral character during 10 year period
-Not convicted of an offense
-Removal would result in exceptional and extremely unusual hardship to the applicant’s USC or LPR spouse, parent, or child
Treatment of Certain Breaks in Presence
-A noncitizen shall be considered to have failed to maintain continuous physical presence in the US under non-LPR cancellation and VAWA cancellation if the noncitizen departed the US
-for a period in excess of 90 days or
-any periods that, in aggregate, exceed 180 days
Cancellation of Removal: Part B(2)
VAWA/Special Rule Cancellation
-Extreme cruelty by USC/LPR spouse or parent
-Continuous physical presence for 3 years
-Good moral character during that 3 year period
-Not inadmissible or deportable or convicted of an aggravated felony, and
-Removal would result in extreme hardship to alien, alien’s child, or the alien’s parent
Voluntary Departure: Pre-Hearing
-In lieu of removal proceedings or before removal proceedings have been completed
-Ineligible: aggravated felons, terrorists, those previously granted voluntary departure
Voluntary Departure: Post-Hearing
At the conclusion of proceedings
-Ineligible: aggravated felons, terrorists, those previously granted voluntary departure
Requires:
-1 year physical presence
-Good moral character (5 years)
-Clear and convincing evidence of intent and means to depart
-Mandatory Bond
Mandatory Detention
(1) Noncitizens in expedited removal proceedings
(2) Applicants for admission who appear removable, including “arriving aliens” who have not been admitted or paroled
-Criminal aliens:
(3) Inadmissible by reasons of having committed inadmissibility grounds
(4) Anyone deportable for criminal offenses (multiple convictions, ag felonies, controlled substanes, firearms, misc.)
(5) Anyone deportable on the basis of an offense for which the alien has been sentenced to a term of imprisonment of at least 1 year (CIMT with sentence of 1 year or more actually imposed)
(6) Anyone inadmissible or deportable for terrorist activities
Refugee
Someone who experiences persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion
Persecution
Infliction of harm or suffering in a way regarded as offensive
Persecutor: government actors or private non-governmental actors whom the government is unable or unwilling to control
Well-Founded Fear
Whether a reasonable person would fear persecution (could be 1/10 chance)
Nexus “on account of”
Connection between the persecution and the protected ground
-Persecutor’s motivation for persecution must recognize a protected ground in the person and target them, at least in part, because of it
Protected Grounds
Race, religion, nationality, political opinion, membership in a particular social group
Particular Social Group
-Immutable characteristic: fundamental to identity, cannot be changed or should not have to change
-Social distinction: not literally visible, group must be distinct from society at large, perception of society as a whole is what matters
-Particularity: group must have clear boundaries, can tell who is and isn’t in the group
Asylum Status Changes
-After 1 year as an asylee/refugee, can apply to become an LPR
-After 4 years as LPR, can apply to become USC
Limitations on Asylum
One year filing deadline
-Must apply within 1 year of entering US
Exceptions to 1 year Asylum filing Deadline
-Changed circumstances
-Extraordinary circumstances:
-Serious illness or mental or physical disability, including effects of persecution
-Legal disability
-Ineffective assistance of counsel
-Maintaining lawful status, TPS, or parole until a reasonable period before filing deadline
-Death or serious illness or incapacity of applicant or immediate family member
Bars to Asylum
-Particularly serious crime (aggravated felony, others on a case by case determination)
-Firm resettlement in another country
-Persecution of others
Withholding of Removal
-Right protected by international treaty: person cannot be removed to a country of persecution
-Risk of persecution must be higher: showing that life or freedom would be threatened (more likely than not that person will be persecuted-50% chance or greater of future persecution)
Advantages of withholding of removal
-No 1 year filing deadline
-Fewer criminal bars
Mandatory relief if qualified bc no discretionary bars
Protection under Convention Against Torture
-Must show greater than 50% chance of future torture (more severe than persecution)
-Risk of future torture must be by government or with government’s acquiescence (higher standard for asylum withholding)
-Don’t need to show nexus or protected ground
-No criminal bars
Acosta
Generally harsh conditions shared by many others do not amount to persecution-persecution requires targetting
3 ways to get citizenship
- Jus soli “birthright citizenship”: being born in US
- Jus sanguinis “citizenship by blood”: children born abroad can derive US citizenship from parents
- Naturalization: immigrants can naturalize to become citizens
Jus Sanguinis
Rule 1: if both parents are citizens and at least one resided in US prior to child’s birth, then the child is a US citizen
Rule 2: if one parent is a citizen and the other isn’t, the citizen parent must have been present in the US for at least 5 years prior to the birth of the child, at least 2 years after the age 14
Sessions v. Morales-Santana
If one parent is USC, several requirements
-Establish blood relationship by clear and convincing evidence
-Show father had nationality of US at time of child’s birth
-Show father agreed in writing to provide financial support until 19
(1) child was legitimated under law of residence or domicile
(2) father acknowledged paternity in writing under oath
(3) paternity established by a competent court
Naturalization Requirements
- Residence and physical presence
-LPR for 5 years before applying
-Live in your state (or within same USCIS district) for at least 3 months before applying
-Continuously resided in US for 5 years (if married to USC, continuous residence reduced to 3 years, but spouse must have been a USC throughout those 3 years)
-Physically present in US for 30 out of last 60 months (If married to a USC and meet requirements above, only need to show physical presence for 18 out of last 36 months) - Age (must be 18+)
- English Language Proficiency
- Knowledge of Civics and History
- Good Moral Character
- Attachment to Constitutional Principles
Good Moral Character Bars
-Habitual drunkard
-Inadmissibility
-Income derived from gambling or convicted of 2+ gambling offenses
-Given false testimony to obtain benefit under INA
-Confined to 180 days or more in jail during period
-Convicted of aggravated felony
-Participation in genocide, torture, or extrajudicial killing
