Immigration law outline
2010 fall
Prof. Kenning
naturalization §316 requirements of naturalization
1. is the process of becoming a citizen
2. §316 requirement:
a) residence:
(1) after becoming LPR, at least reside in US for 5 years immediately preceding to his filing of naturalization petition. §316
(2) Married to US citizen, after becoming LPR, 3 years immediately preceding to his filing of naturalization. §319
b) Physically present therein for periods totaling at least half of that time.
c) absence: >6 months 5 years, would be deemed to give up his LPR.
d) good moral character
(1) §101f, person who committed the crimes described in §212a2 don’t have good moral character.
A crime committed when the alien was under 18, or more than 5 years before the date of application. still have good moral character.
e) ability to understand English language, history, principles and form of government of US §312
(1) not apply to people who are unable to comply because of physical or developmental disability or mental impairment
(2) not apply to people who on the fate of the filing of naturalization, is over 50 years oldand has been living in US for at least 20 years as a LPR
(3) or 55 years ago and at least 15 years as a LPR
f) attached to the principles of the Constitution of the US and well disposed to the good order and happiness of the US.
3. Eligible if one believes the core value of US constitutional law
a) even if one believe a revolution should be undertaken to change the constitution and overturn the government, as long as he or she believes in the constitution, he or she will be eligible.
b) petitioner is a communist party member, who is not attached to US constitutional law. but did not violently oppose to the US government. Denied his naturalization. Schneiderman v. US
c) one cannot use constitutional law rights to present other people from free speech. eg, one believes legal means provided by con law, but believe that con law should be changed so US would be a country to white ppl only. ànot eligible.
3. what is corn value?
(1) 1st approach, as long as there is no violence revolution. one is eligible.
(2) 2nd approach, no bright line, 1st amendment is core value, 8th amendment might not be.
4. burden of proof: if challenging the naturalization decision, BoP is on you. but after you have been naturalized, BoP is on the government.
5. “attachment of constitution”
(1) is membership in communist party inconsistent of attachment of constitution?
(2) the court thinks the evidence is not strong enough in Schneiderman.
1) 1st view: becoming a citizen is like joining a team, you have to believe in your team, otherwise you shouldn’t join it.
2) 2nd view: becoming a citizen is like joining a market place, as long as the follows the rules, competing political opinions are free to compete.
Expatriation
1. §349a: a person will lose nationality by voluntarily perform the following act with the intention of relinquishing US nationality.
(1) obtaining naturalization in a foreign state upon his own app, or upon an app filed by a duly authorized agent.
(2) taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of 18.
2. burden of proof: the government has to prove the expatriating act and the intent to relinquish US nationality with a preponderance of evidence. after the act and intent is proved, the act is presumed to be a voluntary act. unless the actor prove otherwise.
immigrant
I. an immigrant is somebody lawfully admitted into the US for an indefinite period of time and for a unlimited purpose. same meaning as “green card holders” and “Legal permanent resident”
II. non immigrant: legally be in US for limited time for limited purposes
1. eg, F1 students, prohibited from engaging in employment, exceptions…
III. four ways to become an immigrant
1. family based immigration
2. employment based immigration
3. diversity visa program (lottery, applies to country that historically under0represented in US, being criticized for the threshold of winning a green card is too low)
4. refugee
Family based immigration
I. Immediate relative: means §201b2ai on P57, children, spouses, and parents of a citizen of the US. (parent of 21 years old or older citizen.)
1. children means: §101b1 unmarried under 21 years old. Including step children(been step children before 18), adopted children(been adopted before 16).
2. married, over 21, still is a son/daughter, but not a child.
3. spouse and children of immediate
is invalid under immigration law: §101a(35), the contracting parties, at the time of their marriage, are not physically present in the presence of each other, unless the marriage shall have been consummated
2. Marriages that are contracted contrary to the public policy of the state where the couple reside, are not valid under immigration law.
3. can only marry one person. even though in some other country, it is legal to marry more than one person.
4. sham marriages are not valid for immigration purpose.
a) sham marriage: the parties don’t intend to establish a life together at the time of their marriage.
b) sham marriage is a felony.
c) commercial benefits for marring the alien à sham marriage
d) the couple has a child, almost never be considered as a sham marriage.
e) Marry with a citizen à file I45 à becoming LPRàdivorcedàmarry second wifeà file I130 for second wife. Dabaghian v. Civiletti
f) ct cares: whether it is a sham marriage at the time of their marriage, not at the time of becoming LPR. Even if the alien and the citizen’s marriage was dead in fact when becoming LPR, it doesn’t give the ct any right to invade into the privacy of the alien. Aliens cannot be required to have more successful marriage than citizens. ppl with intent to share a life together might get divorce after their marriage.
(1) §204(2)(a) second wife’s petition will not be approved unless
A 5 years have elapsed after becoming LPR
B prove the first marriage was not entered into for the purpose of evading any provision of immi law.
policy reason: to promote the real family life, confer benefits only to ppl who are trying to start or continue a family. and weed out ppl who are motivated by any other reason. even when marrying a person who is valuable to one’s life. eg, a guy man marry a woman, they are friends, she gets along well with his mother and can
