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Immigration Law
University of North Carolina School of Law
Kim, Catherine Yonsoo

IMMIGRATION LAW
KIM
SPRING 2012
 
 
·         Birthright Citizenship
o   INA §301
o   Jus sanguinis: Citizenship by blood relation to American Citizen parent(s)
§  §301 (c)(d)(e)(g) define Jus sanguines condition
·         usually requires at least one parent who is a citizen and who has had residence in the US or has been physically present in the US for a certain period of time as defined by statute, or in residence.
§  Bastards:
·          §309(C) states Jus Sanguinis applies if the child’s mother is a US citizen and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year.
o   OR:
·         §309(A) if the father is a US Citizen when:
o   1) a blood relationship between the person and the father is established by clear and convincing evidence,
o   2) the father had the nationality of the United States at the time of the person's birth,
o   3) the father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and
o   4) while the person is under the age of 18 years- (A) the person is legitimated under the law of the person's residence or domicile, (B) the father acknowledges paternity of the person in writing under oath, or (C) the paternity of the person is established by adjudication of a competent court.
 
o   Jus Soli: Citizenship by birth within the territory
§  US Constitution, 14th Amendment, Article I: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside”
§  Didn’t apply to Indians since they are not subject to the complete jurisdiction/have complete alliance to the U.S. – Elk v. Wilkins (1884)
§  Under the 14th amendment, Children of resident aliens born within the US receive birth right citizenship, except for:
·         Children of foreign soverings
·         Children born on foreign ships
·         Children of enemies within and during hostile occupation of our territory
·         Indians
·         United States v. Wong Kim Ark  (1898)
§  Birthright Citizen Act of 2011: must be born in the US to parents, one of whom is: a citizen, an LPR or an alien serving in our armed forces
 
·         Naturalization
o   Procedures:
§  §335 investigation/examination of applicants
·         (b) …[The designated employee of the Service] is hereby authorized to take testimony …, to administer oaths, … and to require by subpoena the attendance and testimony of witnesses … and the production of relevant books, papers, and documents…  The record of the examination authorized by this subsection shall be admissible as evidence in any hearing conducted by an immigration officer under section 336(a). Any such employee shall, at the examination, inform the applicant of the remedies available to the applicant under section 336. 
·         (d) The employee designated to conduct any such examination shall make a determination as to whether the application should be granted or denied, with reasons therefor.
§  §336(a) Hearing on Denial of Application
·         if denied after §335 inquiry, may request hearing with immigration officer
§  §310(c) Judicial Review of Naturalization determination following §335, §336(a);  de novo hearing on the application
 
o   Naturalization Requirements
§  Age:
·         §334(b) must be 18 years of age to apply
o   Application, if granted, extends to minor children of applicant ?
§  Residence and physical presence:
·          §316 (a)
o   1) BEFORE applying, Must have been         
§  admitted lawfully for Permanent Residence
§  Resided in US for 5 years
§  Been physically present for at least half of that time
o   2) AFTER applying, must have resided continuously in US
·         §316(b) – absences
o   absence for 6-11 months during period which continuous residence is required breaks continuity of residence (subject to AG overturn)
o   Absence for 1year+ during period where residence required breaks continuity
§  Exception: if applicant was admitted and present for one uninterrupted year and thereafter absent as required by employed with an American firm, government position, ec.
§  Exception §319: married persons and employees of certain non profits organizations  (super complicated- see statute)
 
§  Good moral character
·         §316 (a)(3): during all periods refered to in this subsection, must have good moral character…
o   §101(f) DEFINES GOOD MORAL CHARACTER:
§  (3) lists various parts of section 212(a) (EXCLUDIBLE ALIENS) if the offense described therein, for which such person was convicted or of which he admits the commission, was committed during such period;
§  (7) one who during such period has been confined, as a result of conviction, to a penal institution for an aggregate period of one hundred and eighty days or more, regardless of whether the offense, or offenses, for which he has been confined were committed within or without such period;
§  (8) one who at any time has been convicted of an aggravated felony (as defined in subsection 101(a)(43))
·         murder, rape, drug traficing, gun trafficking, prostitution/pimping, a variety of crimes, usually with a requirement of imprisonment for a term of one year (sometimes more)
·         §316(e) : Determination of Good moral Character
o   316(e). In determining whether the applicant has sustained the burden of establishing good moral character and the other qualifications for citizenship specified in subsection (a) of this section, the Attorney General shall not be limited to the applicant's conduct during the five years preceding the filing of the application, but may take into consideration as a basis for such determination the applicant's conduct and acts at any time prior to that period
 
§  §312: Requirements as to understanding the English language, history principles and form of government in the US.
·         (a)(1): basic English proficiency
o   (b)(2) exceptions to the English Language Proficiency standard: usually advanced age and long time residence in the US
·         (a)(2):
o   (1) English literacy requirements
o   (2) knowledge and understanding of the fundamentals of the history, and of the principles and form of government, of the United States.
§  Generally established by basic civics questions
§  (b)(3) Exceptions, as determined by the AG, for people of advanced age and long-term residency
 
§  Attachment to constitutional principles
·         §316 (a)(3) required that during all the periods referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.
 
§  Take an Oath of allegiance to the United State
 
 
 Structure of Immigration Law
·         Federal Immigration Powers
o   Enumerated Powers
§   Article 1 Section 8: Congres

from the Immigration and Naturalization Service (INS) to USCIS.
§  Administrative Appeals Office
§  ICE- U.S. Immigration and Customs Enforcement: responsible for enforcing immigration and customs laws.
§  CBP- U.S. Customs and Border Protection: primarily responsible for keeping terrorists and weapons out of the U.S., also facilitates trade and travel and enforces other administrative regulations
·         INA 235 give CBP officers authority to:
o   -Inspect aliens,  and determine if alien is inadmissible under 212.
o   -Board and search vessels and aircraft
o   -Administer oaths and take testimony
o   -Detain aliens for further inquiry before an immigration judge
o   Department of Justice
§  EOIR- Executive Office for Immigration Review
The Attorney General of the United States delegates authority to EOIR to administer and interpret Federal immigration law and regulations through the conduct of immigration court proceedings appellate reviews, and administrative hearings. Three components:
·         BIA- Board of Immigration Appeals  hears appeals of decisions made in individual cases by Immigration Judges, DHS District Directors, or other immigration officials.
·         Office of the Chief Immigration Judge (OCH) oversees all the Immigration Courts and their proceedings
o   Immigration Judges
·         Office of the Chief Administrative Hearing Officer (OCAHO) adjudicates cases concerning employer sanctions, document fraud and immigration-related employment discrimination
o   Administrative Law Judges: jurisdiction over the alien labor certification process and appeals.
·         Office for Special Counsel for Immigration-related Unfair Employment Practice: responsible for enforcing the anti-discrimination provisions of the INA; enforces laws related to national origin discrimination, unfair documentary practices relating to the employment eligibility verification process, and from retaliation.
·         Office of Immigration Litigation (OIL): has jurisdiction over all civil immigration matters and coordinates immigration matters before federal district and circuit courts.
o   Department of Labor
§  Employment and Training administration
§  BALCA- Board of Alien Labor Certification Appeals
o   Department of Health & Human Services, Administration for Children and Families
§  Office of Refugee Resettlement: provides resources to newly arrived refugees in the United States.
§  Public Health Services
 
o   Department of State
§  Bureau of Population, Refugees, and Migration (PRM): provides aid for refugees, victims of conflict and stateless persons around the globe.
§  Bureau of Consulate Affairs
·         Visa Information Center: responsibility for handling visa requests (both of a temporary and permanent nature) from abroad falls with the U.S. Department of State.