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Immigration Law
University of Toledo School of Law
Davis, Benjamin G.

IMMIGRATION LAW

OVERVIEW

Immigrant

i. AKA – lawful permanent resident (LPR); green-card holder
ii. Have the right to remain permanently unless they “mess up”

Non-immigrant

i. Person admitted for a certain purpose for a limited amount of time

Immigration and Nationality Act (INA)

i. Passed in 1952
ii. Been amended ~100 times
iii. Calls people who are not US citizens “aliens”

INS ceased to exist in 2003

i. Most functions were transferred to the Dept. of Homeland Security (DHS)
1. 2 bureaus concerned w/immigration enforcement:
a. Customs and Border Protection (CBP)
b. Bureau of Immigration and Customs Enforcement (ICE)
2. Bureau concerned w/immigration services (ex: applications for visas):
a. US Citizenship and Immigration Services (USCIS)

CITIZENSHIP

Significance

i. Things citizens can do that non-citizens can’t:
1. vote
2. can get Welfare benefits
3. can get certain jobs (police officer, teacher, gov’t jobs involving public functions)
4. enter and remain in the country
5. pass on citizenship to children
6. sponsor family members for citizenship
7. diplomatic protection
a. US will complain if citizens are mistreated in another country
ii. Benefits of citizenship
1. undocumented alien
a. public education
b. due process, EP of law
c. emergency medical care
d. don’t get:
i. authorization to work
ii. public benefits
iii. SSI
2. non-immigrant
a. public education
b. some may be authorized to work
c. due process, EP of the laws
d. emergency medical care
e. don’t get:
i. public benefits
3. LPR
a. Public education
b. Authorized to work, including public jobs and professions except those affecting political functions (police, teacher, probation officer)
c. Due Process, EP
d. Medicaid
e. TANF – set by states
f. Some SSI
g. Food stamps

Acquiring US citizenship

i. Citizenship acquired at birth
1. Jus Soli – “right of the land”
a. Comes from 14th amend – “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.”
i. People not subject to jurisdiction of US: diplomats, enemy aliens in occupation, Native American tribes (at one time)
2. A person born in the US is a US citizen (even if parents are undocumented aliens, non-immigrants, or LPRs)
3. National of US – someone born in certain US territories abroad (American Samoa and Swains Islands)
a. Have the rights of citizens
4. A child born to parents that are US citizens is a US citizen as long as one of the parents resided in the US before the birth of the child (INA §301(c))
a. Same citizenship as people in US, but can’t be President
ii. Citizenship acquired after birth
1. Jus Sanguinis – “right of the blood”
a. i.e. citizenship by descent
2. If a US citizen and an alien have a child:
a. In US – the child is a US citizen
b. Outside US – child is a US citizen IF:
i. The citizen parent was physically present in US for at least 5 years (2 of which were after the age of 14)
1. purpose of the 5 yr. requirement is to stop the chain of citizenship somewhere (to stop generations of US citizens abroad w/essentially no connection to US)

Naturalization

i. Naturalization = nationality conferred after birth
1. Authorized by Constitution (art. I, §8, cl.4)
2. Federal issue (not state by state)
ii. For people who didn’t acquire citizenship some other way
iii. Requirements of becoming a citizen:
1. have to be admitted as an LPR
2. After admission as LPR, applicant has to reside continuously for 5 yrs. Immediately following in US (physically present for at least ½ the time)
a. For spouses of citizens and members of military, they have to reside continuously for only 3 yrs.
3. good moral character
4. have to be 18 yrs. Old
5. demonstrate understanding of English language (read, write, and speak it)
6. have a knowledge and understanding of the fundamentals of the history, and of the principles and form of gov’t of the US
7. Political Requirements
a. Cannot be politically disqualified
b. Must demonstrate an attachment to the principles of the US Constitution

Loss of citizenship

i. Ways to lose citizenship:
1. through denaturalization (only for naturalized citizens)
a. used when naturalization was obtained through fraud (concealment of material fact or willful misrepresentation)
b. gov’t must prove that there was fraud by clear and convincing evidence
c. has been used against some people who falsely denied having connections w/Nazi persecutions
d. legal status in US after denaturalization:
i. it’s possible to be denaturalized and not have grounds for deportation, and the person can remain as an LPR
2. through expatriation
a. loss of citizenship for behavior unrelated to anything involving acquiring citizenship in the 1st place
b. requires the consent of the individual
c. Before Afroyim:
i. Certain acts, if committed voluntarily, would have the effect of forfeiting citizenship:
1. when any American woman married a non-citizen and acquired a foreign nationality
2. voting in a foreign political election
d. 3 requirements of expatriation under the Expatriating Act (Vance v. Terrazas):
i. the act must be listed in the INA §349(a)
1. obtaining naturalization in a foreign state upon his own application after the age of 18
2. taking an oath or making an affirmation of allegiance to a foreign state after the age of 18
3. entering, or serving in, the armed forces of a foreign state if:
a. such armed forces are engaged in hostilities against US, or
b. such persons serve as a commissioned or noncommissioned officer
4. Performing duties of any office, post, or employment under the gov’t of a foreign state after the age of 18, if he has or acquires the nationality of such foreign state OR for which office, post, or employment an oath, affirmation, or declaration of allegiance is required
5. making a formal renunciation of nationality before a diplomatic or consular officer of the US in a foreign state
6. making a formal written renunciation of nationality in the US whenever the US shall be in a state of war and the AG shall approve such renunciation as not contrary to the interests of nat’l defense
7. committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the US
ii. The act has to be voluntary
iii. The person has to show intent to relinquish US citizenship
1. law of jus soli – once you are born w/a citizenship, it is yours to keep forever, unless you don’t want it anymore
2. expatriation depends on the will of the citizen, rather than on the will of Congress and its assessment of his conduct
e. Burden of proof:
i. Gov’t has burden of proof on 3 elements of expatriation
ii. Stand

ep-sibling under 4th preference:
a. To be considered as a sibling for immigration purposes, the citizen and step-sibling have to be of a common parent (usually citizens step-parent)
b. The marriage creating the step-sibling relationship had to have occurred before the step-sibling was 18
c. The marriage making the citizen and step-sibling relationship must continue, or a family relationship must be maintained between the step-siblings
d. It doesn’t matter if the citizen and step-sibling were not considered “children” for immigration purposes at the same time (Matter of Mourillon)
viii. Foreign adoptions
1. §101(b)(1)(F)
a. the term “child” means an unmarried person under 21 who is:
i. A child, under the age of sixteen at the time a petition is filed for immediate relative admittance, who has lost one or both parents to death or desertion (and sole surviving parent is incapable of providing proper care); OR
ii. A child who:
1. is a natural sibling of a child described in (i)
2. Has been adopted abroad, or is coming to US for adoption
3. is otherwise described in (i), except the child is under 18 at the time petition is filed for immediate relative admittance
2. §101(b)(1)(G)
a. the term “child” means an unmarried person under 21 who is:
i. a child, under 16 at the time petition is filed for immediate relative admittance, who has been adopted in foreign state that is a party to Convention on Protection of Children, or who is emigrating from such a foreign state to be adopted in US, by a US citizen and spouse jointly, or by an unmarried US citizen at least 25 yrs. old if:
1. the Attorney General is satisfied that proper care will be furnished the child if admitted to US
2. the child’s natural parents or other persons or institutions that retain legal custody of the child, have freely given their written irrevocable consent to the termination of their legal relationship w/the child, and to the child’s emigration and adoption
3. the child’s natural parents are incapable of providing proper care for the child
4. the purpose of the adoption is to form a bona fide parent-child relationship; and
5. in the case of a child who has not been adopted:
a. the competent authority of the foreign state has approved the child’s emigration to US for the purpose of adoption
b. the prospective adoptive parent has complied w/any requirements
ix. PROBLEM: X, who was admitted as an LPR 4 years ago, has just married Y, a native and citizen of Costa Rica. Y wants to become an LPR as well. Y is very close to her sister Z, who is married and has two sons, ages 2 and 7. Z and her husband and sons are all Costa Rican citizens. X is in your office. He wants your help in securing LPR status for Y and, if possible, Z and her husband and sons.
1. Y= chargeable to Costa Rica