Immigration Law Outline

Immigration Law
Judge Gossart
Fall 2011
 
I.                   Introduction
A.    Alien defined in § 101(a)(3)- any person not a citizen or a national of the United States
B.     Types of Immigrant Visas
1.      Family Based (4 categories)
2.      Employment based (5 categories)
3.      Diversity Visas (55,000 lottery-based visas)
C.     Non-Immigrant Visas- Temporary visas, many categories
D.    Sovereign Right of U.S to invite in who they want and exclude who they want
E.     Congress has plenary power to control immigration
1.      U.S. needs reasonable/rational basis to exclude individuals
F.      Shaugnessy- whatever procedure is authorized by Congress is due process for someone seeking to enter U.S., can be detained to protect sovereignty of U.S.
G.    Inadmissible aliens- have not been admitted into country yet (excludable)
H.    Removable aliens- here but may have to leave (deportable)
I.       As long as there is a rational basis- rights of country/sovereign will prevail over individual in immigration
J.       Ex post facto does not apply to immigration law- only to criminal law
K.    Bill of attainder- precludes legislation enacted that is retroactive and punishes
1.      Does not apply- exclusion does not punish, neither is immigration according to Supreme Court
2.      Both are deemed “immigration control”
L.     Ekiu- Congress delegated power to officer to exclude aliens- Sup. Ct. held the exclusion was constitutional
M.   You can have a valid visa and still be denied entry/excluded- i.e. visitor visa with intent to stay
N.    Fong Yue Ting- Sup. Ct. held that Congress can provide the evidentiary burden in deportation cases (i.e. 1 white witness testifying about presence in country)- whatever Congress says the law is is the law in immigration (you now need rational basis)
O.    Congress’ immigration legislation is driven by the times and political pressure
P.      States have different ways of dealing with things, which may effect immigration (i.e. criminal law)
Q.    Knauff- Congress has plenary power to exclude
R.     St. Cyr- An immigrant criminal here 7 years could apply for waiver of deportation, IIRIRA (1996) changed this and said no waiver for certain crimes (aggravated felony); inference was that statute was retroactive; Sup. Ct. said statute under plenary power of Congress can be retroactive- crack in plenary power- reasonable expectation- if you pled guilty to offense, there was a reasonable expectation that you could still apply for the waiver; however, if you pled not guilty and were found guilty- cannot apply for waiver
S.      Ma-Zadvydas- Sup. Ct.- cannot hold someone indefinitely with no reasonable expectation of deportation, but can be held if person poses threat to community
T.      Kim- Mandatory deportation is not unconstitutional- some caveats- still need reasonable expectation of deportation
U.    Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act)- tripled number of border control agents, defines what terrorism constitutes, gives state department broad power in defining proscribed groups that are excluded, limits judicial review and habeas acts, permits mandatory detention, designed to give attorney general power he thinks he needs to win war on terrorism
Immigrant Visas
A.    80% Family based, 20% employment based
B.     Exempt categories- not subject to numerical limits
1.      Immediate relatives- spouse, parent, child of U.S. citizen- most significant category of immigrants
a.       Definition of child under immigration law- unemancipated/single child of a U.S. citizen under the age of 21
2.      Former U.S. citizens
3.      Children of permanent residents born abroad
4.      Court-granted status
C.     Key to immigrant visas is permanency
1.      Must prove your intent in coming to the U.S. is what you say- consul can say yes or no- no appellate review, due process
2.      If you show you do not want to live here permanently- may be put in removal proceedings
3.      Evidence may be circumstantial that will contradict stated intent
4.      Law now says that if you leave for 6 months without permission there is a presumption that you abandoned your residence- presumption is rebuttable
5.      Every person that arrives in U.S. and stands for inspection is presumed to be an immigrant until they prove otherwise.
D.    Process
1.      Petitioner (i.e. U.S. citizen) files visa petition for beneficiary (i.e. son)
II.                Family Based Visas
A.  Immediate Relatives- spouse, parent, or child of U.S. citizen- § 201(b)(2)(A)(i)
1.      Best ones to get, quicker (but can take up to one year), do not have to “wait in line”- no numerical limit, as quickly as the visa is approved, go to the head of the line- most important for family unification- exempt from quotas
2.      “Child”- unemancipated, single, under 21- once you turn 21- immediately go down to 1 of family based petitions- INA § 201(b)(2)(A)(i).
a.       Child as defined by § 101(b)
i.                    Unmarried, under 21, and born in wedlock
ii.                  Stepchild, unmarried, under 21, who was not yet 18 at the time of the marriage creating the status
iii.                Legitimated child (according to the law of the child or father’s domicile), under 21, unmarried, if legitimization occurred while child was under 18
iv.                Child born out of wedlock, unmarried, under 21, who seeks a status, privilege, or benefit by virtue of relationship w