I) INTRO
A. General Terms
1. Aliens
a. All people who are not nationals of the US
2. Immigrant
a. Someone coming to the US to live permanently
3. Nonimmigrant
a. Coming to the US to live temporarily
B. Core Distinctions in Immigration Policy
1. Citizen
a. Ways to become a citizen
i. Born in U.S.
ii. Born elsewhere to U.S. citizen parents
iii. Naturalization of legal permanent resident (“LPR”)
2. Non-citizens — “Alien” is the technical term
a. Three types
i. Immigrants (Legal Permanent Residents)
– Characteristics
° Possess “Green Card”
° Can work legally
° Can stay in U.S. indefinitely
° Can stay as LPR indefinitely
° After a number of years, can become naturalized
– Ways to become LPG
° Certain family connections
° Diversity visas
° Refugees
° Asylum
ii. Non-immigrants
– Arrive w/ visas
– Cannot stay past date of visa
– Almost no limits on numbers of non-immigrants
– Common types
° Students
° Businessmen
° Tourists
iii. Undocumented immigrants – 8 million today
– Unauthorized entry or
– Overstay visa
C. The Role of The Constitution
1. The Federal Gov’t has plenary power over immigration
a. The political branch of the Gov’t has an inherent power to exclude noncitizens
b. Fed’l statutes excluding noncitizens are not subject to review for constitutionality
c. When regulating immigration, Congress may discriminate on the basis of race
2. Sources of the Federal Immigration Power
a. The Immigration and Nationality Act (INA) specifies which noncitizens may enter the US and which of those already here may stay
i. Congress may exclude aliens of a particular race from the US;
ii. Prescribe the terms and conditions upon which certain classes of aliens may come to this country;
iii. Establish regulations for sending out of the country such aliens as come here in violation of law; and
iv. Commit the enforcement of such provisions, conditions and regulations exclusively to executive officers, w/out judicial intervention
3. Limits to the Federal Immigration Power
D. Procedural Due Process
1. Generally
a. PDP applies to all “persons” w/in the U.S. – but, for non-citizens at the threshold of initial entry, see Ekiu.
i. Aliens who have once passed through gates of US, even illegally, may be EXPELLED only after proceedings conforming to traditional standards of fairness encompassed in due process of law
– Even if they arrived recently or long ago
– But an alien on the threshold of initial entry stands on a different footing
b. If an alien lacks understanding of the English language, and it places him at some disadvantage in a hearing, that is his misfortune
i. Absence of interpreter violative of due process, but deportation order will be affirmed b/c harmless error
2. Judicial Review
a. Courts can’t review Congress’ exclusion of noncitizens
3. Mezei
a. In an exclusion proceeding; respondent was a returning LPR but was treated as an entering alien
b. The court distinguished “aliens” at the threshold from aliens inside the country
c. W/ respect to due process in an exclusion proceeding, “Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned”
d. Attorney General may exclude on the basis of confidential info, the disclosure of which may be prejudicial to the public interest
e. If exclusion alone doesn’t trigger due process rights, indefinite detention doesn’t either
4. Plasencia
a. An LPR who leaves the country and then returns will be entitled to procedural due process so long as he or she hasn’t been gone for too long
D. Visa Applications
1. General Rule
a. Noncitizens need visas to enter US
i. Immigrants à INA 211(a), 212(a)(7)(A)
ii. Nonimmigrants àINA 212(a)(7)(B)(i)(II)
iii. Authority for issuing visas and basic info applicants must provide, are found in 221 & 222
b. One exception to the general rule is the visa waiver program (AKA: Reciprocity Program)
i. Countries w/ low rates of visa refusals may enter US for up to 90 days w/out having to procure visas
– That other country must extend reciprocal privileges to US citizens and provide return ticket
– One cannot overstay their visa waiver
– One cannot adjust status if initially entered under a waiver program
2. Both immigrant/nonimmigrant visas
a. All are screened to determine whether they are eligible for status they seek
i. Applicants are subject to qualitative grounds of exclusion
b. Currently, there is NO administrative appeal, no judicial review, of a consular decision denying an applicant for either type of visa
i. But, the principal officer at that location reviews all refusals
ii. Justifications:
– The “prospect” of review would encourage accountability
– Review would clog the courts and overburden the State Dept. àAlmost 1 million visa denials per yr
3. Nonimmigrant Visas
a. An app approved by USCIS does NOT guarantee issuance of the visa by the counsel
i. Burden of proving eligibility is always in the applicant
ii. Called a “B” visa (tourist visa)
iii. One can change their intention once w/in the US, but must be approved to remain
b. This visa is used for short periods of stay
i. An applicant between 14-79 requires an in person interview w/ a consular officer (Form DS-156)
ii. Usually made at the consular post abroad where alien resides
iii. Fingerprints and photos req’d
4. Immigrant Visas (LPR’s)
a. Used for permanent residence (Form OF-155)à more detail required àincluding police certificate from abroad
b. Made at consular post abroad that services the applicant’s residence abroad
c. At the end, the applicant must physically attend the scheduled interview w/ the consul to secure the visa
i. This rule is extremely problematic in cases where it is a hardship for aliens to return to their home country
d. Half of these are approved abroad, and the other half are approved as an adjustment of status once in the US
i. Background req’t along w/ fingerprints sent to FBI, and a medical evaluation
e. By family (is relationship true and accurate?) or spouse
II) ADMISSION AND EXCLUSION
A. Actual Admission (At the border/port of entry)
1. Generally
a. Upon arriving at U
immigration system itself
– These provisions may also affect noncitizens who are already present in the US
c. Many years after entry, a noncitizen CAN be removed if, at the time of entry or adjustment of status, he was in fact “inadmissible” (237(a)(1)(A))
i. An alien present in the US who has NOT been admitted …shall be deemed for purposes of this act an applicant for admission
– As an applicant for admission, such a person becomes inadmissible under 212(a)(6)(A)
– Thus, exclusion grounds apply to those already inside the US w/out having been admitted
ii. Noncitizens who are found either inadmissible or deportable, and who don’t receive discretionary relief are “removed” à removal proceedings
2. Exclusion Grounds Related to Immigration Control
a. Is present w/out having been admitted – Inadmissible. § 212(a)(6)(A)(i)
b. Didn’t enter at an authorized port of entry – Inadmissible. § 212(a)(6)(A)(i)
i. Subsection (ii) provides exception for battered women and children
c. Was unlawfully present for a continuous period of between 180 days and 1 year and then voluntarily departed prior to the commencement of removal proceedings –
i. Inadmissible for 3 years after date of departure/removal. § 212(a)(9)(B)(i)(I). Doesn’t apply to LPRs.
ii. Don’t count time under age-18. Detention time during removal proceedings counts as unlawful-presence time, according to the INS. Subsection (iv) allows tolling for up to 120 days if alien was lawfully admitted or paroled, filed a non-frivolous application for extension/change of status before expiration, and didn’t work w/out authorization
iii. Waiver for “extreme hardship” available under § 212(a)(9)(B)(v).
iv. Note: If no Notice to Appear has been filed yet, can apply to INS for voluntary departure under § 240B(a).
– If Notice to Appear has been filed, apply to INS under § 240B(a). If INS agrees, it could either join w/ non-citizen in motion to IJ to dismiss case, then the INS could grant voluntary departure, or it could join w/ the non-citizen in requesting the IJ to grant voluntary departure, which he or she could then do.
v. The point is to try to accept an offer after a Notice to Appear has been filed, b/c then the non-citizen could avoid the 3-year bar in § 212(a)(9)(B)(i)(I), by not leaving “prior to the commencement of removal proceedings” but instead afterwards
d. Was unlawfully present for a continuous period of 1 year or more and then departed or was removed
i. Inadmissible for 10 years after date of departure/removal. § 212(a)(9)(B)(i)(II).
Doesn’t apply to LPRs. Don’t count time under age-18. Detention time during removal proceedings
