Immigration Law Outline

Immigration Law Fall 2013
Matthew Kuenning
Citizenship (37-62)
§301; §309
·         Importance of Citizenship
o    If you're a citizen, then not subject to immigration laws:
▪       Have an absolute right to come into the country, that can’t be limited or taken away by the Government.
▪       Conditions under which you can stay in the country can’t be limited
·         Ways to become a citizen at birth:
o    Born in the U.S.
▪       Automatic
o    Born outside the U.S., but have at least one parent that is a citizen.
▪       This law is always changing, so law at time of birth is the one that governs.
·         Relevant Sections of INA:
o    §301—National and Citizens at Birth
▪       (a) Every person born in the U.S., with some exceptions, is a citizen of the U.S.
▪       (c) If BOTH parents are citizens, the child acquires citizenship at birth, provided only that one of the parents had a residence in the U.S. at some time prior thereto.
▪       (g) If ONLY ONE parent is a citizen, then the citizen parent must have been physically present in the U.S. for a total of 5 years before the birth, including at least two years after age of 14.
o    §309—Children Born out of Wedlock
▪       (a) §301 (c) and (g) will apply to a person born out of wedlock if:
▫       (1) A blood relationship b/w the person and father is established by clear and convincing evidence.
▫       (2) The father had the nationality of the U.S. at time of person’s birth
▫       (3) The father has agreed in writing to provide financial support for the person until they are 18, and
▫       (4) While the person is under 18:
s  The person is legitimated under the law of the person’s residence
s  The father acknowledges paternity in writing under oath
s  The paternity of the person is established by adjudication of a competent court.
▪       (c) Not withstanding subsection (a), a person born outside of the U.S. and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if mother is a U.S. citizen and has been physically present in the U.S. for a continuous period of one year.
·         What Counts as Residency?
o    Actual place of abode without regard to intention.
▪       Different from domicile, which is a place of abode with intent to stay there permanently.
o    Any place you stay, other than just going there for a visit is going to count as a residence.
▪       Example: attending school establish residency, but a summer vacation won’t count.
·         Children born out of wedlock
o    A child born out of wedlock abroad acquires citizenship at birth if his/her mother is a U.S. citizen who resided in the U.S. for one year prior to the child’s birth.
o    A child can acquire citizenship through a U.S. citizen father if the father agrees to provide financial support for the child until the child’s 18th birthday and acknowledges paternity by one of three specified methods before the child attains the age of 18.
 
 
Naturalization (114-133)
§320; §316; §312    
·         Process of Naturalization
o    A USCIS officer examines the applicant and makes a formal determination to grant or deny
▪       Usually just interview the applicant.
▫       If application is denied, reason must be stated.
▫       Applicant can then request a further hearing before an “immigration officer.”
▫       If applicant is again denied after a full-fledged hearing, he can seek judicial review.
·         Derivative Citizenship (§320)
o    If a child’s (under 18) parent becomes a citizen and the child is residing in the U.S. with the parent, then the child automatically becomes a citizen.
o    If adopt a child from overseas, child automatically becomes a U.S. citizen.
·         Requirements of Naturalization (§316)
o    At least 18 years of age
o    LPR
o    Have resided in district you are apply for3 months
▪       Unless obtain derivative citizenship
o    Continuous Residence
▪       Must have been continuously residing as a LPR for 5 years
▫        Spouses of U.S. citizen living in marital union with their spouse only have a 3-year requirement.
s  Marital union=actually living with your spouse.
▻      If separated then doesn’t count
s  If marriage began before spouse’s naturalization, then 3-year period starts at the time of spouse’s naturalization.
o    Physical Presence
▪       During the 5 years immediately prior to applying for naturalization, applicant must have been physically present in the U.S. for at least For at least half of the time (either 2.5 or 1.5 years), 
▫       Day you depart the U.S. counts as a day in the U.S., but day you come back does not count.
▪       Breaks in continuous residence:
▫       Period of absence:
s  If LESS than 6 months, then DOES NOT break continuance.
s  If MORE than 1 year, then it DOES beak continuance and clock starts over
s  If more than 6 months, but less than 1 year, then there is a rebuttable presumption that the continuous period is broken.
▻      Must prove that there was no intention to break residency.
▫       Exception
s  Government work
▻      Your feet actually on the land
▪       Military Service
▫       If have served honorably for one year, then don’t have to satisfy the residency or physical presence requirements.
▫       Noncitizens who serve in active-duty status during period of military hostilities don’t need to have been permanent resident aliens in order to be naturalized.
 
 
 
o    Civics Requirements (§312)
▪       Must be able to read, write, and speak English
▫       Age exceptions to English requirement:
s  If over 50 and have been a LPR for 20 years.
s  If over 55 and have been a LPR for 15 years.
▪       Must be able to pass a test about the system of government
▫       Both requirements can be waived if person can prove mental and physical disability
o    Good Moral Character (§316(d))
▪       §101(f) doesn’t define GMC, but gives examples of what isn’t good moral character:
▫       Habitual drunkard
▫       Grounds of inadmissibility
s  Crime involving moral turpitude
s  Controlled substances offenses
▫       Aggravated felony (§101(a)43)
(A) Murder, rape, or sexual abuse of a minor;
(B) Illicit trafficking in controlled substance, including a drug trafficking crime;
(C) Illicit trafficking in firearms or destructive devices or in explosive materials;
(D) Relating to laundering of monetary instruments or relating to engaging in monetary transactions in property derived from specific unlawful activity if the amount of the funds exceeded $10,000;
(E) An offense
(i) Relating to explosive materials offenses;
(ii) Relating to firearms offenses; or
(F) a crime of violence  for which the term of imprisonment at least 1 year;
(G) A theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment at least 1 year;
(H) An offense relating to the demand for or receipt of ransom;
(I) an offense described in section 2251, 2251A, or 2252 of title 18, United States Code (relating to child pornography);
(J) an offense relating to racketeer influenced corrupt organizations, or an offense relating to gambling offenses, for which a sentence of 1 year imprisonment or more may be imposed;
(K) An offense that-
(i) Relates to the owning, controlling, managing, or supervising of a prostitution business; or
(ii) Relating to transportation for the purpose of prostitution if committed for commercial