Middleton – Immigration Law (Summer 2014)
Immigration Law
What is the main scope of Immigration Law? A determination of who should or should not be admitted into the US, and the conditions upon which a legal entrant may remain. De Canas v. Bica, 424 U.S. 351 (1976)
U.S. Congress has plenary power to regulate immigration.
Key Players
The Immigration Law “Game Participants”
· Department of Homeland Security
· Department of State
· Department of Justice
· Department of Labor
· Petitioners
· Beneficiaries
Department of Homeland Security
· Created November 25, 2002
· Generally, protects the US’ borders and inward. Does have some minor role in protection outside of U.S. borders.
· Investigative and enforcement responsibilities for enforcement of federal immigration laws, customs laws, and air security laws.
· Responsible for providing many immigration-related services and benefits such as adjustment of status, naturalization, work authorization
Major Entities Within DHS Important for Immigration Law
U.S. Citizenship and Immigration Services (USCIS)
U.S. Customs and Border Protection (CBP)
U.S. Immigration and Customs Enforcement (ICE)
USCIS Ombudsman
U.S. Coast Guard
U.S. Citizenship and Immigration Services (USCIS)
USCIS is charged with processing immigrant visa petitions, naturalization petitions, and asylum and refugee applications, as well as making adjudicative decisions performed at the service centers, and managing all other immigration benefits functions performed by the former INS.
Other responsibilities include:
· Administration of immigration services and benefits
· Adjudicating asylum claims
· Issuing employment authorization documents (EAD)
· Adjudicating petitions for non-immigrant temporary workers
· Granting lawful permanent resident status
· Granting US citizenship
Operates primarily based upon petitions (forms) and applicant fees
Current Director – Alejandro Mayorkas
U.S. Immigration and Customs Enforcement (ICE)
ICE is responsible for enforcing the nation’s immigration laws. Also responsible for identifying, investigating, and dismantling weaknesses regarding the nation’s border, economic, transportation, and infrastructure security.
The two largest components of ICE are:
Homeland Security Investigations (HSI) –
· formerly known as the Office of Investigations (OI)
· focuses on human/drug trafficking, immigration crimes, national security threats and other crimes
· second largest federal investigative agency to FBI
Enforcement & Removal Operations (ERO) –
· Enforces and prosecutes violations of the nation’s immigration laws and ensures the departure of all removable aliens from the US
· Primary law enforcement agents: Immigration Enforcement Agents (IEA) and Deportation Officers (DO)
· Manages “Secure Communities” Program
One of ICE’s key functions is to initiate and prosecute removal proceedings against inadmissible or deportable aliens. ICE, just as CBP and CIS, has its own Office of General Counsel, which is staffed by a corps of trial attorneys. These attorneys represent ICE in administrative removal proceedings before the Immigration Court and the BIA. They also assist the Office of the U.S. Attorney whenever that Office has to appear in judicial proceedings involving an immigration matter.
U.S. Customs Enforcement and Border Protection (CBP)
Works to apprehend individuals attempting to enter the US illegally (including terrorists), prevent the flow of illegal drugs and other contraband, and protect US agricultural and economic interests from harmful pests and diseases CBP regulates international trade and collects import duties, enforces trade, customs and immigration regulations. Inspects incoming cargo.
Border Patrol Agents inspect aliens attempting to enter the US at land, air, and sea ports of entry as well as non-designated points of entry (“line watch” – land based surveillance activities).
CBP is the largest law enforcement agency in the US.
Department of State
Provides a range of services to U.S. citizens abroad as well as to non-citizens seeking to visit or immigrate to the U.S. at U.S. embassies and consulate offices abroad. Has a Bureau of Consular Affairs that administers laws, formulates regulations and implements policies relating to consular services and immigration. The Bureau’s Office of Visa Services has Consular Officers who are responsible for issuing all non-immigrant and immigrant visas.
Department of Justice
Houses the immigration court system; Executive Office of Immigration Review (EOIR) located in Falls Church, VA.
EOIR adjudicates immigration cases. It has two main components:
1. Board of Immigration Appeals – presides over appeals and rulings made by Immigration Judges and a few CIS decisions. Can have up to 15 members.
2. Approx. 53 Immigration Courts across the country presided over by approx. 200 Immigration Judges. Headed by Office of the Chief Immigration Judge. Immigration court in Missouri is in Kansas City.
Department of Labor
Oversees labor certification for employment-based visas (PERM Certification). Labor certification is the process that allows employers in the US to employ persons who are not U.S. citizens or LPRs. Employer files ETA Form 9089 “Application for Permanent Employment Certification”
Petitioners
A petitioner is a person who is seeking immigration benefits on behalf of a family member or an employee. Typically, the petitioner is the client. For family-based immigration law, the petitioner is typically a U.S. citizen or LPR – but there are some exceptions (e.g. VAWA self-petition, “B” visa, etc.).
Beneficiaries
A beneficiary is an alien seeking to come temporarily, or to immigrate to the US via his/her relationship to the petitioners. For self-petitions, the petitioner and the beneficiary are the same person.
The Immigration Law “Game Book”
· INA of 1952 (Title 8 of the U.S. Code)
· Title 8, Code of Federal Regulations
· Agency Policy Memos –
, on persons born in or having ties with an outlying possession of the US. INA 308
The term “outlying possessions of the US” means American Samoa and Swains Island. 101(a)(29)
The term “State” includes the District of Columbia, Puerto Rico, Guam, and the Virgin Islands of the US. 101(a)(36)
INA 341(b) A person who claims to be a national, but not a citizen, of the US may apply to the Secretary of State for a certificate of non-citizen national status. Upon proof to the satisfaction of the Secretary of State that the applicant is a national, but not a citizen, of the US.
§ 302 of Public Law 94 – 241:
Any person who becomes a citizen of the US solely by virtue of the provisions in § 301 [applying to those born in or residing in the Northern Mariana Islands] …may become a national but not a citizen of the US by making a declaration under oath before any court established by the Constitution or laws of the US or any other court of record in the Commonwealth in the form as follows ” I _____ being duly sworn, hereby declare my intention to be a national but not a citizen of the US.”
Unlawful Entry of Non-Citizens [Title 8 U.S.C. 1325(a)]
Makes it a unlawful to
(1) enter or attempt to enter the US at any time or place other than as designated by immigration officers, or
(2) elude examination or inspection by immigration officers, or
(3) Attempt to enter or obtain entry to the US by a willfully false or misleading representation or concealment of a material fact
When is a LPR seeking admission into the U.S.? INA 101(a)(C)
Usually, a LPR will not be considered to be seeking admission when returning to the U.S. from travel abroad. There are six exceptions. INA 101(a)(13)(C)
If the LPR:
1. Has abandoned or relinquished LPR status;
2. Has been absent from the U.S. for a continuous period of more than 6 months;
3. Has engaged in illegal activity after departing the U.S.;
4. Has left the U.S. while under removal or extradition proceedings;
5. Has committed an offense listed in INA 212(a)(2) unless the LPR was granted relief under 212(c) or cancellation of removal under 240A(a); or
6. Is attempting to enter or has entered without inspection
Who is a U.S. citizen?
Citizenship Clause – Amendment XIV, § 1, Clause 1, (1868). “All persons born or naturalized in the US, and subject to the jurisdiction thereof, are citizens of the US and of the State wherein they reside.”
