Finals Flashcards
1
Q
B-1 visa
A
temporary visitor for business - always have to see whether 101(a)(15)(B) bars certain types of labor. always check if visa waiver pilot program can be used (217). Cant use if work is local employment for hire.
2
Q
B-2 visa
A
Temporary visitor for pleasure
3
Q
E-1 visa
A
Treaty trader - must work on trade that is international in scope and between the US and their home country
4
Q
E-2 visa
A
treaty investor - must have invested substantial amount of capital towards project that will be critical to their making a living. E status depends on international agreement between US and foreign country (101a15E) allows spouse and children to be brought in as well.
5
Q
F-1 visa
A
student headed for an academic institution
6
Q
F-2 visa
A
Spouse and children of student
7
Q
H-1B visa
A
for those coming temporarily to US to provide service to a specialty occupation: Post 1990-act can be admitted up to 3 years initially not to exceed 6. per 214i only a us entity can file. requires BA or higher. 65k limit per year. Employer attestation required but not certification.
8
Q
H-2A visa
A
temporary workers in agriculture. employer must file with DoL. must comply with 218(a)(1). if labor cert is granted INS must the approve petition. employers must provide housing, meals, and workers comp and insurance.
9
Q
H-2B visa
A
temporary workers in other fields. labor cert required, see 214(c). worker must be here temporarily to fill a temp job (year or less). section 214(g)(1)(B), (g)(2) limit to 66k per year.
10
Q
L-1 visa
A
for those seeking to transfer from firm overseas to a branch here in US “intra-company transferees.” must be specialized or managerial and above per 101(a)(44), 101(a)(15)(L), 214(c)(2)(B). must have worked at firm for at least a year. blanket petition possible. 214(c)(2)(D).
11
Q
O visa
A
101(a)(15)(O): person must have extraordinary abiity or international acclaim. no numerical limit.
12
Q
P-1,2,3
A
101(a)(15)(P): applies to athletes and entertainers. No numerical limit
13
Q
M visa
A
for those seeking to come here temporarily for non-academic, more vocationally based training.
14
Q
A visa
A
for diplomats, ambassadors, their families
15
Q
C visa
A
for those going in transit
16
Q
D visa
A
for crewmembers of vessels - non renewable for 29 days
17
Q
G visa
A
for members of foreign governments who wish to come and be part of an international organization (like world bank) and their families
18
Q
J visa
A
for individuals approved to participate in work and study-based exchange visitor programs.
19
Q
K visa
A
fiance visa: must get married within 90 days, can seek adjustment of status after marriage.
20
Q
Q visa
A
cultural exchange visas - not to exceed 15 months
21
Q
R visa
A
for religious workers - not to exceed five years
22
Q
T visa
A
for trafficked individuals
23
Q
U visa
A
for abused victims of certain crimes
24
Q
INA provision governing assylum
A
208
25
Requirement for getting assylum
must be a refugee, under 101(a)(42)(A) which requires actual persecution or a well founded fear of persecution on the basis of 1 of 5 protected categories.
26
Refugee definition under US law and USCIS
a person who is located outside of the US, is of special humanitarian concern to the US, demonstrates that they were persecuted or fear persecution due to race, religion, nationality, political opinion, or membership in a particular social group, is not firmly resettled, and is admissible to the US. Does not include anyone who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of 1 of the 5 categories.
27
Per USCIS an assylee is
an alien in the United States or at a port of entry who is found to be unable or unwilling to return to his or her country of nationality, or to seek the protection of that country because of persecution or a well founded fear of persecution. Persecution or the fear thereof must be based on the aliens race, religion, nationality, membership in a particular social group, or political opinion. for persons with no nationality, the country of nationality is considered to be the country in which the alien last habitually resided. Asylees are eligible to adjust to lawful permanent resident status after one year of continuous presence in the US. limited to 10k per year.
28
Standard of review for asylum
if asylum officer grants then it is unapealabel. if its denied and appealed or IJ grants then standard is well-founded fear.
29
Witholding INA 241(b)(3)
one need not be a refugee to be granted withholding. if there is a probability that persecution will occur, on one of the 5 categories, then withholding must be granted. Standard of review is clear probability.
30
CAT
no need to fit in one of the five groups or be a refugee to qualify. Standard of review is more likely than not.
31
Jus Soli citizenship
the right of land. nationality confered based on birth within the territory. governed by 301 c-e, g-h; 308(2), (4); 309.
32
INA 301 jus soli citizens are
1. those born in US and subject to its jurisdiction
2. those born ex us to citizen parents, one of which had a residence in US prior to persons birth
3. a person born outside the US to one citizen parent if that parent was physically present in the us for a continuous period of one year prior to the persons birth and if the other parent is a non citizen national.
4. a person born in a us territory to a citizen parent who was present in US for a continuous year prior to birth.
5. a person born outside the us to a citizen and an alien if the citizen parent was present in the US for a total of five years two after 14.
33
308: nationals but not citizens of the US at birth
a person born ex US to national parents is a national at birth. A person born to 1A and 1N if the N was present for 7 of a continuous period of 10 years and wasn't out of US for more than one and 5 of the years were after 14
34
309: children born out of wedlock
makes the requirements from 301/308 apply as long as there is clear and convincing evidence of blood relationship of father, financial support from father, acknowledgment of child under oath, paternity established by competent court, before the child turns 18.
35
Jus Sanguinis
the right of blood, nationality is conferred based on descent irrespective of place of birth.
36
Naturalization statutes
b. 334(b), 316a, 312a2
37
312
english language and civics requirements for naturalization
38
316: requirements of naturalization
1. continuous residence, following being LPR for five years prior to application.
2. physical presence for periods totalling at least half that time, during the five years prior to applying.
3. good moral character: a finding that a person isn't deportable is not the same as finding that they have this. consideration not limited to period considered for physical presence and residence requirements.
4. attachment to the principles of the constitution
39
334
requires people be 18 to naturalize and file a sworn statemnt
40
337:
oath of renunciation and allegiance
41
general requirements for naturalization
1. residence and physical presence
2. moral character
3. civics knowledge
4. english language knowledge
5. oath
6. attachment
42
Denaturalization under 340:
refers to the revocation of a natrualized aliens citizenship based on fraud or illegality in the original naturalization
43
chaunt v. uS
mistatment in procuring naturalization is material if its disclosure would have justified denial of C or led to facts justifying such denial.
44
Kungys case
To determine if a mistatment in natrualization was material look to if there was a natural tendency to mislead. If there was then Denaturalization can continue.
45
Puerta case
prevails on materiality despite lying about having used other names in the past.
46
Trilogy cases
1. pere v. brownwell: can denaturalize a jus soli citizen who votes in and lives in Mexico
2. trop v. dulles: jus soli deserter applies for a new passport and is denied. the court says that citizenship cant be revoked here.
3. nishikawa v. dulles: a jus soli citizen was conscripted into the Japanese army and then denied a passport. court doesn't allow denaturalization.
47
standard of proof for denaturalization
Terrazas case: must show an expatriating act by a preponderance of the evidence and must show intent t relinquish by a preponderance of the evidence
Maslejak: there must be a causal connection between a lie during the process and why the lie happened. denaturalization occurs when an illegal act played some role in Naturalization. misstatements alone arent enough. need strong causality between illegal acts and procurement of citizenship.
48
18 USC 1425 and INA 340e
A conviction for illegaly getting citizenship cancels naturalization but per maslenjak if the illegal act is a falsity or misrepresentation the government must show that the fact lied about contributed to getting naturalization. This requires showing that an official who knew the truth would have denied N or would have been prompted to undertake further investigation and that that investigation would have predictably disclosed some legal disqualification.
49
Ex-patriation: INA 349
the government must prove that an individual committed a voluntary expatriation act with the intent to relinquish citizenship.
50
Sessions v. Morales-Santana:
this is a challenge to the difference in timing for the residence requirement for a father v. a mother. Court adopts a somewhat restrictive approach and while validating the equal protection challenge holds that it is not the court's place to grant citizenship so it prospectively strikes the lower requirement for mothers.
51
Schniederman v. U.S.
deals with meaning of attachment to the constitution. Requires clear and convincing evidence from the government to be able to revoke citizenship.
52
Maslenjak v. US
the gov has to establish that an illegal act by the defendant played some role in their acquisition of citizenship. when the act is a false statement they must have lied about facts that would have mattered to an immigration official because they would have justified denying naturalization or would predictably led to other facts justifying that result.
53
Two things gov has to prove for denaturalization by misrepresentation
1. that the misrepresented fact was sufficently related to a naturalization criterion that it would have prompted reasonable officials seeking only evidence concerning citizenship qualifications to undertake further investigation.
2. if one is met the government must then show that an investigation would have predictably disclosed some legal disqualification.
54
Vance v. Terrazas
the party claiming loss of citizenship must prove it by a preponderance of the evidence. if renunciation through taking oath of renunciation to other country then voluntariness is rebuttably presumed. this presumption is not applicable to intent to relinquish and that must still be proven by the government.
55
Applicabillity of constitutional rights
depnds on whether the person entered legally and stayed illegally or entered illegally and is an EWI. if the former then they get regular due process and constitutional rights. if the later then they get far fewer rights.
56
Fong Yue Ting
Court doesnt consider deportation to be criminal punishment which means that due process rights arent implicated.
57
wong wing
here the fact that aliens were sentenced to hard labor for 60 days prior to deportation pushes them into the area where due process rights are required. that is too much like punishment.
58
chevron deference
ask: has congress spoken to the precise question at issue, if intent is clear and unambiguous then do that.
if statute is silent or ambiguous then the question is whether the agency answer is based on permissible construction of the statute. defer to the agency interpretation unless arbitrary, capricious, or manifestly contrary to statute.
59
Mead case: chevron deference only if
1.congress has delegated authority to agency generally to make rules carrying the force of law and
2. agency interpretation is promulgated in the exercise of that authority.
3. if part two isn't met then skidmore v. swift deference: look to agency care consistency formality and relative expertise as well as to persuasiveness of its position.
60
4 main categories of immigrants:
1. family-sponsored: highest number of visas allotted--no limit for immediate family admissions
2. employment based: caped at 140k annually and divided into five preference categories. families of immigrants count towards the cap if they use the follow to join provision
3. diversity lottery: about 50k are chosen
4. humanitarian admissions (asylum and refugee): number admitted varies widely.
61
How immigrant visa process works
visa petition is filed by a U.S. resident (the petitioner) on behalf of a noncitizen outside the U.S. (the beneficiary)
62
Immediate relative: 201(b)(2)(A)
1. children (definition in the statute is important), spouses (conditional), parents of U.S. citizens. A noncitizen cannot be a sponsor for this category.
2. per 101(b)(1): a child is someone under 21 and unmarried.
3. this category has no quota.
63
Family relative first preference: 203(a)(1)
unmarried sons and daughters of citizens (this is for people over 21 and therefore not qualifying as children under 201(b)(2)(A))
64
Family relative second preference: 203(a)(2)
spouses and unmarried sons and daughters of permanent resident aliens. (the immediate relative equivalent for LPRs)
65
Family relative third preference: 203(a)(3)
married sons and daughters of U.S. citizens (lower preference compared to first preference because now there are people who can follow to join)
66
Family relative fourth preference: 203(a)(4)
brothers and sisters of citizens.
67
Employment-based first preference: 203(b)(1)
Priority workers (options A-C)
A. extraordinary ability demonstrated by sustained national or international acclaim whose achievements have been recognized through sustained documentation.
B. outstanding professors and researchers: these are internationally recognized, have three years of teaching experience in the field, and are entering for tenure track or comparable position in a private company.
C. certain multinational executives and managers: need at least 1yr with the company.
68
Employment based second preference: 203(b)(2)
aliens who are members of the professions holding advanced degrees or aliens of exceptional ability: these are people with advanced degrees or equivalent who will substantially benefit US. labor certifications is required but there is a waiver available.
69
Employment based third preference: 203(b)(3)
Skilled workers, professionals, and other workers: mainly for people with skills requiring 2 years of training and experience or a bachelor's degree or for those who have unskilled labor experience in areas of need. this requires labor certification.
70
employment based fourth preference: 203(b)(4)
certain special immigrants: other statutes are referenced but these are for people who qualify for things like the SIV program.
71
Employment based fifth preference: 203(b)(5)
Employment creation: for people who invest a million bucks and create full-time jobs for at least 10 citizens who arent family members. this is conditional in the same way that visas for spouses of U.S. citizens are conditional. amount of investment is lower for rural or targeted areas.
72
DIversity: 203(c)
this is a lottery where people from historically unrepresented immigrant groups can get LPR status.
73
Following to join: 203(d)
if a beneficiary qualifies for a visa under a, b, or c and their spouse or child doesn't then the spouse or child can follow to join and get a visa that way. these affect the caps for the visa type that is being followed.
74
Following to join: timing
must be done within a year of the "leader" green card's issuance. this is an important window for purposes of children who might age out. they get an age subtraction for the amount of time that the visa was pending for. this can help an over 21-year-old child follow to join but only if they also meet the within 1 year of issuance requirement.
75
currency date:
Immigrant visas are processed in the order received and there are huge backlogs. DOS publishes currency tables that reflect the priority date an application needs to be eligible to receive their visa in the present.
76
Priority date:
When a person applies in one visa category and then later switches to another their priority date--their place in the visa line--stays the same. what changes is the visa category that their visa comes from. this is basically one skipping as it allows a person to apply for a shorter wait category, transfer to a longer wait category, and get in way sooner than they would have had they started in the second category.
77
203(h)(1):
what matters for priority date is petitioner changes in status. that is what usually controls whether a person ages out and has to start over or is able to keep their priority date and change categories.
78
Examples of how petitoner change in status can affect beneficiary
1. P is an LPR. P's son, B, who is under 21, is able to follow to join under 203(d)
2. P is an LPR. P's son, B, is 22 , and thus doesn't qualify to follow to join. B does qualify for the 203(a)(2) second family preference visa. P naturalizes. B can now transfer into the first family preference category and keep his original priority date
3. P is an LPR. P's son, B, is 22 and under second family preference. B marries, thereby aging out of the available visa array. B's priority date is lost. P naturalizes. B can now qualify for the third family preference but must start over with a new priority date.
3.
79
After acquired statuses
the time that matters for following to join is when the LPR status was granted. If a marriage didn't exist at that time then there is no spouse to follow to join.
80
Labor certification: 212(a)(5)(A)(i)
To obtain labor certification have to meet a prevailing wage requirement, have to make good faith recruitment efforts between 30 and 180 days before filling an application (this is to try and find qualified U.S. workers), have to file an application with the DoL on form ETA 9089. Appeals from denial of Cert. go to the Board of Alien Labor Certification Appeals (BALCA). if certification is approved then you have to file with UCIS within 180 days.
81
in the matter of digital technology solutions LLC:
involves 212(a)(5)(A) and 20 CFR 656. Job posting fails initially because of a failure to show sufficient relationship between job requirements and desired qualifications. employer must demonstrate that job duties bear a reasonable relationship to the occupation in the context of the employers business and are essential to perform the job in a reasonable manner. an experts testimony wins the case for the employer hear.
82
Appeals process after a loss at BALCA
case can go to either federal district court or in some cases to federal appeals court.
83
Special problems for immigration based on marriage
a. situations where a spouse is excluded from conditional status
b. requirement of joint filing to remove conditional status
c. way around if spouse refuses to help terminate conditional status
d. hardship waiver.
84
Fiallo v. bell
in context of a challenge to 101(b)(1)(D) and (b)(2) (defining what a child is, defining parent, father, and mother). Can the INA give preference to certain types of family relationships over others--yes. court uses sovereignty rationale. sees immigration as tied to foreign relations power and defer to congress.
85
Kleindienst v. Mandell
mandell has visited before but gets denied because gov doesn't want him talking about marxism. argument is that keeping him out violates 1A rights of those who want to hear him. sides with government based on plenary power.
86
Debaghian v. Civiletti
Gov claims sham mariage because of divorce in same month the green card was issued. Court is skeptical of claims that marriages are shams. Test comes from Barke v. INS: did the couple not intent to establish a life together at the time they were married. INS argues that marriage was factually dead so they can revoke. Court says they can only revoke if a sham so LPR status must be reinstated.
87
222(g)
voids an overstayed visa. to get back in have to reapply from home country and hope for leniency and extraordinary circumstances.
88
removal
the forum for denial of entry and deportation is the same but the rules are different. in either case the immigration judge has the power to develop the record. I.E. to call witnesses, cross examine, and call for experts. in exclusion cases the non-citizen is typically detained with parole possible but unlikely. post iraira exclusion and deportation were redefined. both are called removal but the statutes are still spearate.
89
yamataya v. fisher
inadmissible on public charge grounds. files habbeas saying due process lacking. no formal hearing no notice, hearings in language she doesn't speak. court says that the process given was adequate. rationale is one of deference to government also views this through the lens of procedural due process. the procedures given were proper and she still has her substantive rights.
90
knauff v. shaughnessy:
can a NC be excluded without hearing on AG determination that entry not in interest of US. tension between war brides act and AG and AG wins because the court defers to war power and national security powers.
91
Kwong Hai Chew v. Colding
chinese LPR who left for four months on US merchant ship was allowed back in without admissibility determination. different from Yamataya and knauff because he's an LPR. emphasizes idea that LPRs get more rights.
92
Shaughnessy v. U.S. ex rel Mezei
LPR not allowed back because of length of absence abroad. Reconciled with Chew because continuous residency broken here.
93
Landon v. Plascencia
LPR who tries to smuggle in illegal immigrants ends up in exclusion hearing because of knowing violation of the law. Court allows her to invoke due process right because she is an LPR, she wouldn't be able to if she wasn't. Leaves main difference between lpr in 212 proceeding and 237 proceeding with high deference to gov in 212 and clear and convincing evidence in 237. Due process rights stay the same. Ultimately distinguished from but doesn't overrule mezei.
94
Kerry v. Dinn
A plurality:
bloc one: says this is a plenary power issue because its immigration/foreign relations. its a political question
bloc two: believes due process notice was satisfied by the consular office and denial was fine because of terrorism concerns.
bloc three: sees due process as violated, not enough notice given.
95
Padilla v. Kentucky
Crim defense lawyers cant affirmatively misadvise their clients and they have a duty to affirmatively advise their clients of the immigration consequences of taking a plea.
96
DHS v. Thurasigiam
Habeas limited for those in expedited removal proceedings. argument that these restrictions are unconstitutional is rejected by the court.
97
Denial of entry (also called exclusion)
Governed by 212. a non-citizen must both prove that they are admissible and that they are not inadmissible.
98
212(a)(6)(A) and 212(a)(9)(A)-(C)
Entry without inspection and time bars.
9A has a ten year bar for removal or 5 if expedited removal
9B if a non-citizen overstays for between 180 days and a year, and then departs before a proceeding they are bared for 3 years, if they stay for over a year they are bared for 10 years
9C includes a permanent bar if unlawfully present for an aggregate of more than one year or has been ordered removed and tries to sneak in without being admitted again.
99
1996 act
codifies rule from rosenberg v. Flueti in 101(a)(13)(C). LPRs on casual brief excursions arent considered seeking admission.
100
Collado case
if an LPR leaves and commits a crime and then comes back they count as seeking admission
101
Waiver provisions
these are discretionary
1. 212(h): waiver for limited marijuana use convictions
2. 212 intersects with 101(a)(43) and (48): don't want felonies or moral turpitude. moral turpitude isn't defined so judges discretion rules.
102
Fraud and misrepresentation: 212(a)(6)(C)(i)
1. misrepresentation must be before a U.S. official
2. must be in non-citizens own application
3. by attorney will be attributed to non-citizen.
4. must be willful
103
Public charge inadmissibility: 213(a) and form I-864P
1. is income 125% above federal poverty line for non-citizens family and petitioner's family combined?
2. spouse may be able to help-consult I-846A. 20% of joint assets can be counted.
3. Person being sponsored can have 20% of their assets counted.
4. Under 213(a) liability of sponsors for sponsored continues until sponsored works for 10 years or naturalizes.
104
inadmissibility on foreign policy grounds: 212(a)(3)(C)
allows a non-citizen to be kept out based on potentially serious adverse foreign policy consequences. the secretary of state has pretty wide latitude. sub iii has exceptions one of which is for candidates for foreign offices who cant be excluded for beliefs/statements/associations if those would be lawful in the US.
105
Inadmissibility on terrorism grounds: 212(a)(3)(B)(iii)(V)
defines terrorist activity as any activity unlawful here or under the aliens home country that involves certain things like bombs, nerve gas, or guns. There is no time limit for this provision. Sub (ii)(II) has a renunciation exception but that is super narrow.
106
212(d)(3)(A) and (B)
provide a terrorism-related waiver but only to non-immigrants, it may be available to immigrants through a USCIS regulation.
107
Expedited removal: 235(b)(1)
EWIs are subject to this. this is an expedited process with limited administrative appeals available. NCs can be stopped anywhere in the US and removed without a hearing if they cant prove they've resided in the US for at least 2 years. If fear of return is expressed then NCs get referred to asylum officer to make a credible fear determination under 235(b)(1)(B)(v)
108
secret evidence removal
235(c): allows AG to order removal of arriving non-citizens on national security grounds without further hearing if acting on the basis of confidential info. some might still make an asylum claim though.
240(b)(4)(B): doesn't allow government to use undisclosed evidence to deport an LPR on one of the national security grounds.
109
Mother of cervantes gonzales:
question is whether there was misrepresentation to trigger the need for a waiver. here there wants enough evidence for the waiver. not enough was done to prove extreme hardship. waiver was also discretionary so even if hardship shown there is no requirement to grant it.
110
Matter of S-K
burmese chin christian denied asylum under material aid to terrorists provision because she donated to a group fighting Burmas government. support was material because she knew what the group was capable of and still donated. Deference to government is huge here.
111
Trump v. Hawaii
strong deference given to government interest. rational basis at most is applied. Interprets 202(a)(1)(A) as applying to only admissions decision not to ministerial visa issuance decision.
112
Categories of deportation under 237
Moral turpetude: (a)(2)(A)(i)-(ii)
Aggravated felonies: (a)(2)(A)(iii)
drug crimes: (a)(2)(B)
Firearms offenses
Domestic violence/child abuse: (a)(2)(E)
Miscellaneous Waiver
113
Deportation moral turpitude: 237(a)(2)(A)(i)-(ii)
makes NC deportable after one convciction if it was committed within 5 years of admission and a sentence of 1 or more years may be imposed. admission in any sense starts the clock and adjustment of status, other than by parolee, doesn't restart it. conviction of 2 or more crimes arising out of more than a single criminal scheme make an NC deportable regardless of state of commission or length of sentence.
114
Three general categories of crimes of moral turpitude
1. serious crimes against persons
2. serious property crimes
3. crimes with an element of fraud
115
deportation Aggravated felonies: 237(a)(2)(A)(iii)
if one is commited any time after admission it leads to deportability. ineligible for most forms of discretionary relief even if removal is not based on the felony. cant get asylum, cancelation of removal, or voluntary departure. bared for life from readmission unless the NC gets consent to apply under 212(a)(9)(A)(iii). unlike moral turpitude, aggravated felony status isn't an explicit ground for inadmissibility.
116
Deportation drug crimes: 237(a)(2)(B)
any drug offense in any country counts except a single offense for possessing 30g or less of marijuana.
117
deportation, firearms offenses
these will fall under ag felonies but the book separates them out.
118
Deportation, Domestic violence/child abuse: 237(a)(2)(E)
any conviction after admission of domestic violence, stalking, child abuse, child neglect, or child abandonment. also includes people who violate protective orders by making threats of violence, causing bodily injury, or repeated harassment. VAWA waiver is available where there is self-defense against the abuser 237(a)(7).
119
Deportation, miscellaneous waiver: 212(h)
This is a waiver that an NC can apply for if they are applying to be an LPR or already one, their crime is described in 212(a)(2) (moral turpitude, prostitution, 2+ convictions with total imposed sentence of 5+ years, drug offense not for simple possession of <30g marijuana.
120
Requirements for 212(h) waiver
must meet one of the following
1. have USC or LPR parent, spouse, son, or daughter whom you can establish would suffer extreme hardship if you were removed
2. the inadmissible incident occurred at least 15 years ago and you can show rehabilitation and admission not contrary to nat sec.
3. inadmissible only on prostitution ground and can show rehabilitation and admission not contrary to nat sec.
4. you are VAWA self petitioner and can show waiver should be granted as matter of discretion.
121
Categorical approach to clasifying criminal convictions
ignores specific conduct and focuses on range of conduct covered by the convicting statute compared to range of conduct covered by removal ground. question is whether all possible convictions under the statute charged implicate the deportation ground charged. if any possible conviction would not implicate a deportation ground then it isn't a categorical fit and wont trigger deportation.
122
modified categorical approach
1. a divisible statute is one that lists elements in the alternative and thereby defines multiple crimes
2. an indivisible statute lists several factual means of vomiting a single element.
3. if record of conviction says which part of a divisible statute was violated then use the elements for that, if not and there is not other way to discern and one option isn't a removable offense then cant use the crime for removal.
123
Circumstance specific inquiries: Nishawan v. Holder
for fraud based aggravated felonies, dow the court have the ability to look into the facts to determine if the monetary harm threshold has been met?
court says that monetary threshold doesn't reer to an element of the crime but to particular circumstances in which an offender committed a more broadly defined fraud or deciet crime on a particular occasion. means fraud and deceit provisions are circumstance specific and cant be categorically interpreted.
124
Moncrief v. Holder
question is what counts as a drug trafficking offense for purposes of aggravated felony deportation. a state crime is only a felony under the CSA if it proscribes conduct punishable as a felony under the CSA court must assume conviction rested upon least of the acts criminalized and ask if those are encompassed by the generic federal offense. in this case the crime charged could involve conduct that could be a misdemeanor so the crime was not deportable.
125
Mellouli v. lynch
LPR pleads guilty to misdemeanor drug offense in Kansas and feds argue that state law is parallel to a CSA law. court says state crime isn't deportable, need state charge to involve a substance that matches one in the CSA. affirmatively confirms that immigration is a federal matter. have to have federal law connection and there must be a match.
126
Esquivel-quintana v. sessions
does a conviction under state law for statutory rape count as sex abuse of a minor in the INA? court agrees with petitioner that when statutory rape crime punishes solely based on age difference the generic federal offense requires the victim be younger than 16.
127
Descamps v. US
modified categorical approach doesnt apply because the alternatives were not listed and statute is broad and unusable as an ACA predicate.
128
Holder v. Humanitarian law project
1A challenges to removal. deference given to executives determination of danger of particular group.
129
Time bars
Unlawful presence is the period of time when a person is in the country without admittance or parole. an unlawfully present person may be barred for
1. 3 years if departed between 180 days and 1yr before removal proceedings begin.
2. 10 years if 1 year or more in a single stay whether or not removal has started. (or if between 180 and a year and did not depart before removal proceedings began)
3. Permanent if an aggregate of more than 1 year is spent unlawfully present over multiple illegal stays.
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Discretionary relief: 245
1. Asylum
2. adjustment of status
3. cancellation of removal
4. voluntary departure
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Asylum: to apply
1. fill out form I-589 prior to institution of a removal proceeding. this is called an affirmative application and it will be heard by an asylum officer. if that officer grants asylum then that decision is not appealable. if officer denies application then case can be appealed to an IJ whereupon it becomes appealable by all parties
2. file a defensive application once removal has begun. this is heard by an immigration judge and is appealable by both sides.
3. expedited removal: for people deemed inadmissible under 212(a)(6)(C) or (7). a DHS officer would hear this application and if they deny it there are extremely limited appeal rights for the applicant.
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Under US law a refugee is someone who
1. is located outside the US
2. is of special humanitarian concern to the US
3. demonstrates that they were persecuted or fear persecution due to race, religion nationality, political opinion, or membership in a particular social group.
4. is not firmly resettled in another country
5. is admissible to the US.
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To qualify for asylum: threshold
1. must be a refugee under 101(a)(42)(A) meaning that you are suffering from actual persecution or a well-founded fear of persecution on the basis of one of the 5 protected categories.
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People who are not refugees
anyone who ordered, incited, or otherwise participated in the persecution of any person on account of one of the protected groups.
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Asylum: standard of review
asylum is discretionary and the standard of review for granting is well-founded fear. this is lower than the clear probability required for withholding which is in turn lower than the more likely than not required by CAT but both of those are mandatory.
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Romeike v. Holder
German family cant claim persecution based on fact that they homeschool their children by mandatory schooling law. claim is rejected because the law is neutral on its face and is enforced neutrally against all violators. it doesn't matter that the german law is violative of the US constitution because the only protected categories for asylum purposes are the five grounds.
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INS v. Cardoza Fonseca
person enters from nicaragua, overstays visa, refuses voluntary departure, and asks for asylum and withholding. held that there is no subjective component for withholding so there is a higher evidentiary bar. sees a subjective component in asylum so lower bar.
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INS v. Elias Zacharias
is a querilla organizations attempt to coerce a person into military service necessarily persecution on account of political opinion under 101(a)(42)?
1. in this case it wasn't enough because refusal wasn't seen as expressing a political opinion. there are other reasons besides politics for refusal.
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Two step analysis for persecution on political grounds
Elias-Zacharias case: expressed overt statement on basis of politics and fear of persecution based on that.
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Matter of MEVG
for social group category the group must share a common characteristic that defines the group and is not changeable. establishes the following test for social group identification
1. is the group composed of members sharing an immutable common characteristic
2. defined with particularity
3. socially distinct within the society in question.
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Matter of AB
can an NC who is a victim of domestic violence make a successful claim of being in a particular social group? key precedent discusses matter of ARCG. AG use chevron for proposition that his decision gets deference basically means that private actors making claims against other private actors have an extra step to go through.
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Adjustment of status: what is it?
lets you get a more favorable status without returning to home country
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Adjustment of status: requirements
1. apply
2. be eligible for an immigrant visa and admissible for permanent residence and
3. an immigrant visa must be available at the time the application is filed.
can be preemptive: file I-485 form with USCIS and wait for discretionary ruling.
If a removal proceeding: request adjustment from the immigration judge. if granted file I-485
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Adjustment of status: effect of denial
generally unappealable but can file motion to reopen and reconsider which goes to the administrative appeals office within USCIS. only procedure may be challenged this way. In theory, can go from AAO to circuit court but this is rarely done.
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Cancellation of removal: LPR
includes statutory and discretionary elements. the discretion here is great.
LPRs apply under 240A(a): no fixed criteria to grant. have to meet the statutory criteria to get a yes but a yes isn't required. applies to lawfully admitted or EWIs who manage to get LPR. timing is critical. notice to appear stops the clock as does a 212(a)(2) offense or becoming removable under 237(a)(2) or (4).
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Cancelation of removal: nonimmigrant
apply under 240A(b). Adds good moral character to the requirements that LPRs are under. has a longer time period. has a family hardship requirement.
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Voluntary departure: 240B
allowed in lieu of a 240 removal if a person is not convicted of an aggravated felony. 237(a)(2)(A)(iii) or a suspected terrorist 237(a)(4)(B). a privilege because it allows an applicant to avoid time bars.
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Pre-conclusion voluntary departure:
asked for at the start of a case. to qualify:
1. request prior to scheduling for final merits hearing
2. concede that you are here illegally
3. waive or withdraw any applications to stay in the US, show you have intention and money to leave, and demonstrate good moral character.
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Post conclusion voluntary departure
asked for after a case is decided. this is harder to get to encourage people to seek it earlier to save resources. to qualify:
1. prove you've been in the US for at least one year before notice to appear and pay a $500 bond.
2. show intent and money to leave US.
3. prove good moral character for at least 5 years.
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DACA:
gives young people brought in illegaly by parents temporary reprieve from deportation and other rights.
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DHS v. Regents of the University of California
argument is that DHS incorrectly rescinded DACA. APA establishes basic presumption of judicial review for one suffering agency harm. rebuttable by showing agency action committed to agency discretion by law. COurt basically says that the APA applies here. DHS didn't give a good enough explanation for why it was rescinding DACA.
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Henriquez Rivas v. Holder
can a former gang member who turned states evidence qualify as a member of a PSG for 208 or 241(b)(3)? Yes: they meet the social visibility requirement
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Mater of LEA:
can membership in a family group count as PSG? AG says no, point of view of persecutor isn't enough, society's view is what matters. kinship ties can matter but not every family group counts as PSG. (overturned by later AG opinion so law in flux)
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Matter of Kasinga
FGM case. Person likley to suffer FGM is PSG member.
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Jacinto v. INS:
claim is persecution from guatemalan military. 240(b)(1) gives IJ an inquisitorial role, they abuse it. COurt says that IJ wasn't neutral and acted as prosecutor violating 5A rights.
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Serrano Alberto v. AG
240(b)(1): soccer player threatened by MS-13 gets mistreated by IJ. 3d Cir. uses 3part mathews v. eldridge test to evaluate due process. find due process violated here.
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Mathews v. eldridge test for evaluating dues process
1. interests at stake for individual
2. interests of the government
3. what gain there is to decisionmaking by adding more due process.
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CAT:`
1. Beneficiaries treated as those with 241(b)(3) status. they are paroled into country, can send kids to school, can work. No path to LPR though.
2. Unlike asylum, people who have tortured others can qualify. just need to show they will more likely than not be persecuted if sent back.
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CAT: what is torture?
any act by which severe pain or suffering is intentionally inflicted to get information or a confession. It does not include pain or suffering inherent in or incidental to lawful sanctions.
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Matter of MBA:
argues she will be jailed in Nigeria and seeks CAT protection. BIA presumes that one wont be tortured if there is an imprisonment penalty for a crime in that countries penal law. it is up to the applicant to prove persecution.
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right to appointed counsel in removal proceedings
no right to a lawyer paid for by the government but once you get a lawyer you become entitled to effective assistance of counsel.
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Aguilera enriquez
case that holds that it is not unconstitutional to have a non-citizen pay for their own representation
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Franco-Gonzalez v. Holder
Q is wehther NC with mental illness in removal gets right to gov appointed lawyer? decided on statutory grounds. rehabilitation act requires reasonable accommodation which in this case means a lawyer. This avoids conflict with 240(b)(4)(A).
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What is a motion to reopen or reconsider
option for noncitizens that have exhausted their remedies and want to present new evidence or get a new hearing to avoid deportation. petitioners often ask for both.
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240(c)(6): motion to reconsider
asks for review of claimed errors in an earlier appraisal of the law or the facts. this is unlikely and would require a lot of resources.
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240(c)(7),(8): motion to reopen
used to offer previously unavailable material evidence. this isn't really going after the IJ or BIA for messing up. instead you are just showing them that they decided based on incomplete information.
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Dada v. Mukasey:
person gets voluntary departure then motions to reopen and overstays departure date while motion to reopen is happening. COurt allows the withdrawal of the voluntary departure but doesn't allow its revival after the motion to reopen fails. NC can pick their form of discretionary relief but has to live with the consequences of that choice.
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Limitations on judicial review in discretionary relief situations:
1. 242(a)(2)(B)(i): bars review of any judgment regarding the granting of relief under the waiver provisions in 212(h),(i), cancellation of removal under 240A, and adjustment of status under 245
2. 242(a)(2)(B)(ii): bars review of any other decision or action specified under title II of the INA to be in discretion of the AG or secretary of DHS.
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Judicial review in asylum cases: 242(b)(4)(D)(2)
1. chevron greatly adhered to
2. 242(b)(4)(D) has a precision expressly preserving judicial review over constitutional claims and questions of law.
